The Health and Safety Executive (“HSE”) has successfully prosecuted Bupa Care Homes (CFHCare) (“Bupa”) under Section 3(1) of the Health and Safety at Work etc. Act 1974 for failing to provide and implement a system of tree management at the Oak Lodge Care Home in Southampton (the “Care Home”).
The HSE’s prosecution stemmed from an 8-year old girl suffering extensive injuries after jogging on the pavement, outside the entrance to the Care Home, when a lime tree fell on her. The girl was subsequently admitted to Hospital and her leg was amputated.
Health & Safety at Work etc. Act 1974
Section 3(1) of the Health and Safety at Work etc. Act (the “Act”) states that “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.”
This essentially means that during the course of their business, all employers must ensure, so far as is reasonably practicable, that those not in his/her employment are not exposed to health and safety risks. Failure to comply with this duty constitutes a criminal offence under Section 33(1)(a) of the Act.
Investigation and sentence
The HSE conducted an investigation and found that Bupa did not have a tree management strategy in place inclusive of adequate risk assessments, surveys, inspections, and monitoring to identify and prevent the risk of the tree falling. On further investigation, the lime tree was found to be diseased and likely to have been rotting for several years prior to the incident.
During the hearing at West Hampshire Magistrates Court, Bupa pleaded guilty and was fined £400,000 and ordered to pay costs of £3,275 and a victim surcharge.
Reflection
This decision illustrates the duty owed by Providers to ensure that their premises, in totality, e.g. inclusive of grounds, are not only health and safety compliant for residents and employees but also for members of the public who pass by the premises.
Providers should therefore ensure they have a tree management strategy in place, which includes trees bordering public pavements or roads, and take any action required, to mitigate any liability which may arise. The HSE has helpfully provided guidance to manage the risks from falling trees on their website and this can be located here.
