0 week 4

LEM3020 Integrated consultancy

practice

Week 4, 21 February

Jonathan Hazell

This week’s topics

• The legal framework surrounding consultancy practice

© Jonathan Hazell Week 4 2

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


The law

• The legal framework naturally divides into two:• criminal, and

• civil

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Criminal law

• rules of behaviour laid down by Parliament for the greater good

© Jonathan Hazell Week 4 5http://upload.wikimedia.org/wikipedia/commons/9/97/Palace_of_Westminster,_London_-_Feb_2007.jpg

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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Criminal laws

• Health and Safety at Work Act

• Occupiers Liability Acts

• Road Traffic Acts


Civil law

• disputes between individuals, or individuals and companies


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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

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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

• 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


The process?

• Most criminal cases begin and end in the Magistrates Court

• 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

• The Magistrates Court has limited powers


The process?

• The Crown Court hears the more serious cases, passed to them by 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

• The Crown Court can impose unlimited fines


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

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The process?

• The lowest civil law Court is the County Court

• Cases normally heard by a Judge sitting alone

• For personal injury claims <£5k a small claims court is also available


The process?

• The High Court (Queens Bench Division) hears most health and safety cases


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


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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

• 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


Sources of law – statute law

• Laid down by Parliament as • Acts of Parliament

• Regulations

• Statutory Instruments


• Criminal law draws on both • Common law, and

• Statute law

• Criminal law seeks to protect everyone in society

• Civil law draws on both • Common law, and

• Statute law

• Civil law seeks to recompense the individual citizen


Research source

• The recently published National Tree Safety Group text


http://www.forestry.gov.uk/pdf/FCMS024.pdf/$FILE/FCMS024.pdf

Research source

• An abridged legal framework can be found here


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

• The law required work equipment to be safe rather than raise health and safety awareness amongst employees

• The law lagged behind technical advances


The Robens Report, 1972

• His principal recommendations:• 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

• 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


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.


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.



(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.



(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.


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”



• 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



• 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



• 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


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.


Statutory Instruments

• Quick way to get law on the statute books?


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)


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)


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, and2. procure competent advisors as necessary, and3. carry out and record necessary remedial actions.

• Other incidents have resulted in similar Improvement Notices and requirements.


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.


Common law

• On 30 June 2011 a branch failed in a recreation ground in Yaxleykilling 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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