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Kim Hedges  
#1 Posted : 28 November 2012 14:43:14(UTC)
Rank: Super forum user
Kim Hedges

Link: http://www.bbc.co.uk/new...outh-west-wales-20299954 A tree fell over injuring 2 people at a public zoo in Pembrokeshire. I heard on BBC Radio 2 today, that the above case ended with a fine of £100,000.00 given out. I am surprised that the court issued such a large fine for what is essentially and act of god, what do you think? As safety professionals, have you considered trees in previous site inspections of businesses? I am new to the profession and I have not heard of tree inspections in any of the courses in safety that I have taken in the past 3 years of study, with this ruling I will now, do you have any experiences?
NickH  
#2 Posted : 28 November 2012 15:03:32(UTC)
Rank: Super forum user
NickH

Hi Kim There were a couple of threads on a similar topic recently - a quick search came up wioth this one: http://forum.iosh.co.uk/...spx?g=posts&t=107094 There was one relating to the case too, but I couldn't find it. Hope this helps. Nick
jwk  
#3 Posted : 28 November 2012 15:09:52(UTC)
Rank: Super forum user
jwk

I work for a national care charity with a number of services in historic buildings, and we have many hundreds of trees, from ornamental ones in grassed areas to quite extensive areas of natural and planted woodland. And yes, we do feel that we have a duty of care to workers, service users and visitors to our site where trees are concerned, and we do get tree surveys done. You have to look at the risk before deciding what to do. A tree in the middle of a large wood where people are not invited poses much less risk than one in a car-park, by a building or bordering a public road or footpath. It's the latter type that we focus on. I think part of the reason the fine was so high is that the duty isn't really onerous. We get a tree surgeon in to do the survey, though recent civil case law suggests that more or less anybody can do an initial survey with some experience and training. Still, we are thinking about criminal law here, so I think a tree surgeon is a good idea. We ask for a report, we get somebody (usually another tree surgeon) to do the work, and we ask when a return visit is needed. We can afford it, and we are a cash-strapped charity with thousands of trees. So the zoo had no excuse. If the survey is done, and an apparently healthy tree falls over and kills somebody, it's an act of god. If no attempt to address the risk is made, it could well be an offense under the Health & Safety at Work Act and the Management of H&S Regulations, John
chas  
#4 Posted : 28 November 2012 15:23:52(UTC)
Rank: Super forum user
chas

I am paraphrasing here but I understand the level of fine given was partly due to the refusal of the Zoo Management to voluntarily close the park after the incident, (they expected/waited for the Council to order it to be closed). Also there was a failure to take previous advice given about the tree(s) and area of the park in question and there had apparently been failures over a number of years prior to the incident to manage the risks to the paying public. (Source: Workplace Law).
roshqse  
#5 Posted : 28 November 2012 16:56:00(UTC)
Rank: Forum user
roshqse

As Chas says. The history behind the incident has influence on teh penalty. If it had been during a storm, lightning had struck the tree and it fell over, then yes it would be an 'act of god' . (Whatever that means.) But if the tree was dead, or had damaged roots, the management had a culture of not carrying out proper inspections and assessments, then it is hardly an unpredictable event?
Clairel  
#6 Posted : 28 November 2012 18:59:02(UTC)
Rank: Super forum user
Clairel

I heard it on Radio Two. The HSE only ever prosecuted once before for a tree incident. At that case (B'Ham Council) the lack of an inspection regime was seen as a primary failing. There was recent case (Fellbrigg) but that was a civil case and that was rejected by the courts as being unforseeable. Generally the HSE and courts have considered the risk to be low and have only expected a reasonable level of managament planning, inspections and obviously records. It has been firmly expressed by all that trees are preferable to no trees and therefore a small level of risk is inherent. As others have said Zoning inspection regimes based on usage is expected. So I was suprised by the ruling in the Zoo case. Initally my thoughts were that it was a harsh conviction. However, the facts are rarely reported accurately and I don't expect Anna Ryder Richardson to have given a fair reflection of the prosecutions case against her! Like I said I was suprised by the verdict so I have to assume that there were strong aggravating factors involved that we were not told on the radio. Presumably something to do with the fact that it was high pedestrian usage zone. As to the level of fine. That is reduced by a percentage for pleading guilty, so if they defended as not guilty then they wouldn't have received that reduction. Other than that it would have been based on financial information given to the court about the business. So I guess the business is doing better than Anna Ryder Richardson was alluding to in her little speech on the radio about living in a hut.
Ron Hunter  
#7 Posted : 28 November 2012 22:28:59(UTC)
Rank: Super forum user
Ron Hunter

The prosecution are quoted (in the written article at first post and the news footage) as stating: "There is evidence to link a breach of health and safety laws with that incident. It is unclear whether a proper regime would have prevented it." The Prosecution (via the LA) may well feel obliged to bring the case to court based on the tragic outcome and public interest issues, but making statements such as that surely gives the defence counsel ample scope to fight their corner.
farmsafety  
#8 Posted : 29 November 2012 00:32:58(UTC)
Rank: Forum user
farmsafety

Another tree had fallen down only 4 months before in this same enclosure as this 25 metre beech tree that fell on to the mother and child, and 5 more dangerous trees were cut down soon after the accident. Clearly the Court felt a heavy fine was appropriate for failing to address the risk of dangerous trees, some of which had been identified as such, in a place where the public was encouraged to visit and where people were employed ... http://www.walesonline.c...d-70-000-91466-32288470/
flysafe  
#9 Posted : 29 November 2012 09:36:45(UTC)
Rank: Forum user
flysafe

Thanks for posting that link farmsafety, it clarifies why such a large fine was imposed in my opinion. It will also be a useful case for me to discuss with site managers in my new post. We have Fire, Asbestos, Legionella etc risk assessments which they have paid large sums for, but have not completed any of the actions they contain. This appears to be mostly because they have just filed them on receipt without even opening (box ticked) or sometimes due to the cost involved or being to busy to bother, (head in sand and it will go away).
blodwyn  
#10 Posted : 29 November 2012 11:31:08(UTC)
Rank: Forum user
blodwyn

One word then...forseeability - in this particular case on this particualr site. I seem to recall in the dim and distant past that the Crown Estates receiving some form of Notice on trees in Windsor Great Park
Canopener  
#11 Posted : 29 November 2012 11:57:34(UTC)
Rank: Super forum user
Canopener

I don’t know if it was or not as I only have access to a summary of the case rather than having sat through the whole trial and had the advantage of hearing all of the issues. My understanding is that the fine is determined by a number of factors including any aggravating factors, plea and the financial position of the company or individual concerned. I like to hope that the courts try and strike the right balance in accordance with the sentencing guidelines and the factors mentioned above.
redken  
#12 Posted : 04 December 2012 16:30:27(UTC)
Rank: Super forum user
redken

sadlass  
#13 Posted : 04 December 2012 23:05:07(UTC)
Rank: Forum user
sadlass

The fine(s) were disproportionately high. Compare to other current reports of cases where employers have killed workers more directly, from unsafe machinery, premises or work activities. These are where there are quite specific standards and expectations, with a far greater degree of employer control and foreseeability than can be applied to trees. The particular tree which fell and caused injury, was acknowledged to have had an unidentifiable defect - the incident could have happened regardless of diligence. The prosecution was not about this particular tree, but about the 'failure to follow tree management guidance', and that there were other 'dodgy' trees on the site, and that what had been done was not enough to manage these. So the 'existence of risk' and insufficient effort was what the fine was effectively for. Emotion seems to have unduly influenced the outcome.
Graham Bullough  
#14 Posted : 05 December 2012 10:27:50(UTC)
Rank: Super forum user
Graham Bullough

As an aside to this thread I think Sadlass's concluding comment at #13 that "emotion seems to have unduly influenced the outcome" also applied to HSE's decision some years ago to prosecute the headteacher of a private school in Wales where a 3 year old boy had suffered injury through jumping down steps. Tragically the boy died a month later after contracting pneumonia and MRSA while in hospital. Though the prosecution led to the headteacher (James Porter) being convicted, the conviction was overturned by a Court of Appeal hearing in Sept 2008. Further details of the case and discussions of its implications regarding risk in terms of i) reasonable foreseeability and ii) controllability can be seen on the following 2 web articles picked from the internet: http://www.walkermorris....93-risk-light-r-v-porter http://www.cfs-law.com/r-v-porter.html Though the second article mentioned that the prosecution (HSE?) intended to respond to the Appeal Court judgement by taking the case to the House of Lords, I'm not aware that the case was so taken. If so, it seems that the prosecution either 1) analysed the case in the light of the judgement and decided to abandon its intention or 2) could not gain consent to pursue its intention. I guess that many OS&H professionals, especially ones like myself working with schools at the time, thought that the grounds for the original prosecution were flawed and therefore were relieved to see that reasonable practicability and common sense prevailed and led to the Court of Appeal judgement.
flysafe  
#15 Posted : 05 December 2012 10:53:15(UTC)
Rank: Forum user
flysafe

Talking of excessive fines I read this case recently and wondered about it, it seems to me that what the employees did was not foreseeable. http://www.hse.gov.uk/press/2012/rnn-ldn-20812.htm Just my opinion though and there may have been more to it.
A Kurdziel  
#16 Posted : 05 December 2012 11:20:52(UTC)
Rank: Super forum user
A Kurdziel

flysafe wrote:
Talking of excessive fines I read this case recently and wondered about it, it seems to me that what the employees did was not foreseeable. http://www.hse.gov.uk/press/2012/rnn-ldn-20812.htm Just my opinion though and there may have been more to it.
What the employees did was pure muppetry but the employer should have known that if they had not arranged for proper waste disposal then the employees would have improvised some sort of stupid solution. In this case the staff were the hazard and it was foreseeable that they would do something daft.
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