L6 arboricultural students Moulton College Lecture notes Dull as ditchwater

1. LEM3020
Integrated consultancy
practice
Week 4, 21 February
Jonathan Hazell

2. This week’s topics
• The legal framework
surrounding consultancy
practice
© Jonathan Hazell
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3. Next week, week 5 : 28 February
• Assignment, due 7 March:
• ES1- Essay - 2,500 words
• Evaluate the principal Acts of
Parliament, Regulations and
common law that will influence
the delivery of arboricultural
consultancy
• Examine the main areas of
consultancy practice e.g. tree
safety, tree health and condition,
tree management, trees and the
built form, tree valuation
© Jonathan Hazell
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4. The law
• The legal framework naturally
divides into two:
• criminal, and
• civil
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5. Criminal law
• rules of behaviour laid down by Parliament for the greater good
http://upload.wikimedia.org/wikipedia/commons/9/97/Palace_of_Westminster,_London_-_Feb_2007.jpg
© Jonathan Hazell
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6. Criminal law
• enforcement by a number of
different agencies
• sanctions may involve loss of
liberty so the burden of proof is
beyond reasonable doubt
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Week 4
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7. Criminal laws
• Health and Safety at Work Act
• Occupiers Liability Acts
• Road Traffic Acts
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8. Civil law
• disputes between individuals, or
individuals and companies
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© Jonathan Hazell
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9. Civil law
• the plaintiff brings the action to sue the
defendant to address a civil wrong or tort
• the court is concerned with liability rather
than guilt, the burden of proof is the
balance of probability
• sanction is generally compensation, maybe
costs
© Jonathan Hazell
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10. Civil law
• For cases involving health and
safety civil dispute usually follow
accidents or illness and concern
negligence or a breach of
statutory duty
• The vast majority are settled out
of court
© Jonathan Hazell
• Actions are often between
individuals, but where the
defendant is an employee who
was acting in the course of his
employment during the alleged
incident the defence of the
action is often transferred to the
employer
• The civil action then becomes
one between the individual and
a company
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11. The process?
• Most criminal cases begin and
• The Magistrates Court has
end in the Magistrates Court
limited powers
• Health and safety cases are
brought by the HSE or EHO and
heard by a bench of 3 lay
magistrates, known as Justices of
the Peace, or a single District
Judge
• The latter is legally qualified
© Jonathan Hazell
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12. The process?
• The Crown Court hears the more • The Crown Court can impose
serious cases, passed to them by
unlimited fines
the Magistrates
• The usual reason is that the
sentences available to the
Magistrates are too lenient
• Cases heard by judge and jury
• Crown Court hears appeals from
Magistrates Court
© Jonathan Hazell
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13. The process?
• Appeals from the Crown Court
are made to the Court of Appeal
(Criminal Division)
• The most senior judge at the
Court of Appeal is the Lord Chief
Justice
© Jonathan Hazell
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14. The process?
• The lowest civil law Court is the
County Court
• Cases normally heard by a Judge
sitting alone
© Jonathan Hazell
• For personal injury claims <£5k a
small claims court is also
available
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15. The process?
• The High Court (Queens Bench
Division) hears most health and
safety cases
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16. The process?
• Appeals from the High Court are
made to the Court of Appeal
(Civil Division)
• The most senior judge at the
Court of Appeal is the Master of
the Rolls
© Jonathan Hazell
Week 4
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17. Sources of law – the common law
• Established in the 11th Century
by William I to apply a common
standard
• Based on judgements made,
courts are bound by precedent
• Lower courts must follow the
judgements of the higher courts
© Jonathan Hazell
• Judgements made by the Law
Lords/Supreme Court form the
basis of most common law
• In health and safety law the legal
definition of negligence, duty of
care and terms such as
practicable and as far as
reasonably practicable are all
based on judgements and form
part of the common law
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18. Sources of law – statute law
• Laid down by Parliament as
• Acts of Parliament
• Regulations
• Statutory Instruments
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19. • Criminal law draws on both
• Civil law draws on both
• Common law, and
• Statute law
• Criminal law seeks to protect
everyone in society
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• Common law, and
• Statute law
• Civil law seeks to recompense
the individual citizen
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20. Research source
• The recently published National
Tree Safety Group text
http://www.forestry.gov.uk/pdf/FCMS024.pdf/$FILE/FCMS024.pdf
© Jonathan Hazell
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21. Research source
• An abridged legal framework can
be found here
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22. The Robens Report, 1972
• Earlier health and safety
legislation had been industry or
workplace specific
• 5M workers were unprotected
by health and safety legislation
• Contractors and the public were
largely ignored
© Jonathan Hazell
• The law required work
equipment to be safe rather
than raise health and safety
awareness amongst employees
• The law lagged behind technical
advances
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23. The Robens Report, 1972
• His principal recommendations:
• there should be an emphasis on
health and safety management
and the development of safe
system of work
• enforcement should be targeted at
self-regulation by the employer
rather than reliance on the courts
• a single catch all Act that
contained general duties which
should influence attitudes
• the Act should embrace everyone
affected by the undertaking,
whether directly employed or not,
including contractors, visitors, the
public
© Jonathan Hazell
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24. Health and Safety at Work Act
• Health and Safety at Work Act
• The oversight of tree surveys and inspection regimes is now considered by the
HSE to be covered by S3 of the HSW Act, i.e. General duties of employers and
self-employed to persons other than their employees.
© Jonathan Hazell
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25. S3 Health and Safety at Work Act
(1) It shall be the duty of every employer to conduct his undertaking in
such a way as to ensure, so far as is reasonably practicable, that
persons not in his employment who may be affected thereby are not
thereby exposed to risks to their health or safety.
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26. S3 Health and Safety at Work Act
(2) It shall be the duty of every self-employed person to conduct his
undertaking in such a way as to ensure, so far as is reasonably
practicable, that he and other persons (not being his employees) who
may be affected thereby are not thereby exposed to risks to their
health or safety.
© Jonathan Hazell
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27. S3 Health and Safety at Work Act
(3) In such cases as may be prescribed, it shall be the duty of every
employer and every self-employed person, in the prescribed
circumstances and in the prescribed manner, to give to persons (not
being his employees) who may be affected by the way in which he
conducts his undertaking the prescribed information about such
aspects of the way in which he conducts his undertaking as might affect
their health or safety.
© Jonathan Hazell
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28. Occupiers Liability Acts
• The 1957 Act provides for the liability of an occupier of land when an
accident occurs on the land to a person who is a “visitor” to the land
• The occupier owes a duty to the visitor to “take such care as in all the
circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purposes for which
he/she is invited or permitted by the occupier to be there”
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29. Occupiers Liability Acts
• The 1984 Act provides for an occupier’s liability to people other than
visitors, in particular trespassers, in circumstances where the occupier
knows of the potential presence of such people on their land and of
the risk posed to them by features of the land such as trees, and the
risk is one against which, in all the circumstances, the occupier may
reasonably be expected to offer them some protection
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30. Occupiers Liability Acts
• The duty under S1 of the Act to a person on “access land” in the
exercise of a right to roam conferred by S2(1) of CRoWA 2000 will be
determined having regard to the fact that the existence of the right
ought not to place an undue burden upon the occupier, and having
regard to the importance of maintaining the character of the
countryside
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31. Occupiers Liability Acts
• The duty under the 1984 Act is also limited in that no duty will arise in
respect of risks resulting from any natural feature of the landscape
(which will include a tree), nor from any river, stream, ditch or pond,
providing that the occupier does not intentionally or recklessly create
the risk
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32. Management of Health and Safety at
Work Regulations 1999
• The Regulations require employers, and self-employed persons, by
Regulation 3 to make a suitable and sufficient assessment of the
risks to the health and safety of persons not in his employment
arising out of or in connection with the conduct by him of his
undertaking.
• This requires an employer, and a self-employed person, to undertake
a risk assessment of the tree stock on the land which forms part of
the undertaking.
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33. Statutory Instruments
• Quick way to get law on the statute books?
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34. Common law
• Edwards – v – National Coal Board (1949) provided a general
precedence of what is reasonably practicable. Asquith LJ in his
summing up narrowed the interpretation of this to:
• ‘Reasonably practicable’ is a narrower term than ‘physically possible’ . . . a
computation must be made by the owner in which the quantum of risk is
placed on one scale and the sacrifice involved in the measures necessary for
averting the risk (whether in money, time or trouble) is placed in the other,
and that, if it be shown that there is a gross disproportion between them –
the risk being insignificant in relation to the sacrifice – the defendants
discharge the onus on them.
(LJ Asquith, cited on hse.gov.uk)
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35. Common law
• In Chapman – v – Barking and Dagenham LBC (1997) there was a
clear failure to inspect. Judge Viscount Colville of Culross QC stated:
• I am satisfied that, despite all encouragement and advice both from external
sources and to some extent from their own officers, the defendant Council did
not at any relevant time appreciate the distinction between making lists of
trees and routine maintenance, as opposed to systematic expert inspection as
often as would be reasonably required. I find that no such inspections were
ever made, that it was a clear duty on the defendants to make them, and that
they have failed in that duty.
(cited in Mynors, 2002:150)
© Jonathan Hazell
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36. Common law
• In 1999 a tree failed in Birmingham, killing three people; the City
Council was successfully prosecuted for their failure to comply with
the HSW Act, S3 (1) (Crown – v – Birmingham City Council, 2002).
• An Improvement Notice was served as part of the proceedings,
requiring the council to;
1. improve its systems to provide suitable and sufficient routine inspection,
including identifying all trees and woodland, and
2. procure competent advisors as necessary, and
3. carry out and record necessary remedial actions.
• Other incidents have resulted in similar Improvement Notices and
requirements.
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37. Common law
• The need to use a suitably trained, experienced and/or qualified tree
inspector was at the core of Poll – v – Bartholomew and
Bartholomew (2006) when the claimant successfully sued the
landowners for negligence.
• The judgement also recognised that there are varying levels of skill in
inspectors and it is the employers’ duty to ensure that they employ a
competent person at the appropriate skill level, re-asserted in Atkin –
v – Scott (2008).
• The HSE SIM now takes precedence.
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38. Common law
• On 30 June 2011 a branch failed in a recreation ground in Yaxley
killing a teenager sitting on a bench
• In November 2012 the family reached an out-of-court settlement
with Yaxley Parish Council which was responsible for the tree.
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