We live in an increasingly litigious society and I am often asked to advise landowners on preventative measures they can take to avoid claims from damage caused by falling trees or branches.

Step 1 is to take out insurance with a reputable insurer so that, if a tree on your land falls and causes damage to a neighbouring property or injury to a member of the public, your policy will meet any claim. However, if your insurers decide that you have failed to maintain the tree, for example if it is dead or diseased, they may hold you responsible and increase your premiums in future years or in some circumstances not meet the claim at all leaving you to pick up the bill.

How far are you expected to go in inspecting and maintaining trees on your land? The court has recently considered how far a landowner’s maintenance obligations go in a case brought by a railway company when a train hit a 150 year old Ash that had fallen on their railway line causing £325,000 of damage. Both parties were insured and so the case was a battle over whose insurers should pay. The railway company said the landowner should have known that the tree was rotten and dangerous and that she should have had an expert arboriculturist to inspect the tree regularly to make sure it was safe.

The Court said that the law only requires a landowner to act prudently which normally involves carrying out informal inspections on a regular basis and only arranging for fuller advice where a potential problem is found. The landowner had limited resources and there was no obligation to go to the expense of having the tree regularly inspected by an expert just because it was by a railway line and, as there was nothing to put her on alert as the tree appeared healthy, she and her insurers were not liable.

What is the moral of this tale? Your duty may depend on your resources – if you can afford to do more then the law may expect you to. You should take reasonable and sensible steps to maintain trees, regularly inspecting them and obtaining expert advice if there is a potential problem. However, you are not expected to be ‘an insurer of nature’; accidents do happen with no one being at fault.

Problems can also arise where tree roots cause subsidence problems for neighbours; again, courts will expect owners to be prudent and will look at whether a 'reasonably prudent' landowner would have foreseen the risk of damage. Happily court claims for tree root nuisance between residential householders are relatively rare because under the ABI Domestic Insurers Agreement insurers have agreed not to pursue recovery claims, except in limited circumstances.

• For further help and advice, please contact Johanne Spittle on 01904 561425 or email johanne.spittle@lf-dt.com