UKTC Archive

The Nicol case is an important one for many reasons and I will be publishing a more detailed appraisal of its implications for arboriculture in the near future.  As you have no doubt realised, I am reluctant to engage in a head to head re-run of the case, entertaining as I am sure it would be.  However, there are a number of points that do need to be clarified to address the misconceptions that seem to prevail.

Firstly to set the scene, I think it is useful to remind ourselves on basic principles of where facts stop and opinions start, and their relative importance.  Facts are items that are agreed as being correct;  the species of tree, the length of a bit of rope, a compass bearing, the weather at a particular time, the weight of a bit of wood, etc.  Opinions are the experts’ assessment/interpretation/appraisal of information based on the facts they have in the light their experience.  In a courtroom scenario, there are often several opinions and the role of the judge is to decide how much weight should be assigned to each opinion, not whether one expert is right and the other is wrong.  The point is that opinions cannot be right or wrong;  the issue is how much weight should be given to each.  The experts’ experience is a critical factor in assigning weight to an opinion.  For example, if an opinion were needed on a tree climbing accident, it would be natural to assign more weight to the opinion of an expert who had actually climbed trees for 20 years than to that of an expert who had watched other people climb trees for the same length of time.

This case was long and complicated – it took three days to hear – so it is not possible to give anything like a full report on all the issues.  But it is possible to pull out some of the relevant facts and give you some of my opinions on important points.  Here are some of the facts relating to the practical issues in the case:-

1.      The court spent three days of intensive examination of the facts and opinions and a judgement was made under the due process of the law.  The judgement was the Defendant was found not guilty on the charge of not having a safe system of work in place as was his duty laid out in Section 2(1) of the Health & Safety at Work Act 1974.

2.      In that judgement, the Judge dealt with 17 individual issues that the prosecution believed supported its allegation.  For each issue, he dismissed the prosecution’s arguments.

3.      No appeal has been lodged to dispute that verdict and there is no more time to do so.

Here are a few of my opinions (remember, they cannot be right or wrong;  you have to decide what weight you give to them based on my credentials):-

1.               I am fully supportive of HSE trying to reduce accidents in the workplace but to extend that to trying to achieve a high profile prosecution where there was no realistic chance is not a strategy that enhances that objective.  It is also a development that all contractors should be very concerned about.  If HSE believe that the working practices in this case are so dangerous that they justify an attempt at prosecution, then most contractors in this country will be facing prosecution in the event of an accident.

2.               Here are some of the issues that HSE were alleging as bad practice.  A sledge hammer handle had been shortened, which was unsafe practice!  A retired climbing rope was being used to pull over a trunk;  its diameter of 15.3mm was too small to allow sufficient grip!  There was no hand winch on site.  There was only one high lift wedge on site and the provision of wooden wedges cut on site as a backup was not acceptable.  The felling cuts at 1.1m above the ground were too high.  There were no escape routes for the feller when if fact, photographs proved that there were two clear routes in the appropriate places.  The work was being carried out on a rainy day.  The list goes on and on.

3.               On hearing the case, the Judge agreed that these allegations did not stand up to detailed scrutiny and that the Defendant was not working in an unsafe way.  I was not on site at the time of the accident but I have seen the detailed photographs and I have heard all the arguments.  Everything I have seen points to the work being carried out in a systematic and organised way that I would expect to see any competent contractor employing.  I believe that best practice was being followed and this is what I would expect as an industry norm.

4.            These statements about the judgement being flawed and industry best practice needing dramatic changes are red herrings thrown out to take the focus away from the prosecution’s failure to secure a conviction.  If the judgement was flawed, why didn’t they appeal?  The answer is obvious;  it wasn’t flawed and an appeal would have stood no chance.  As for industry best practice, surely that is for those with experience doing the actual work to decide and not those watching out of the windows from the comfort of their plush office suites.

5.               The bottom line is that HSE made a bad mistake on this case and were rightly delivered a humiliating defeat.  It is my duty to expose their failure primarily to reduce the risk of other contractors, working in a completely acceptable way, being unreasonably and unnecessarily subjected to the traumatic experience that Mr Nicol had to endure.  HSE have a responsibility to take greater care in these types of cases and I will be doing my best to make sure they do so in future.

6.            After all that the question remains, why did it all end so tragically?  The final felling cut was poor and the trunk fell in the wrong direction.  All the evidence suggests that the escape routes were clear and the feller was in a position of relative safety as the trunk started to fall so despite the poor cut, the safety procedures should still have been effective.  But at the last second, the feller moved into a position of danger, possibly to save a saw that had been left near the stump, and was hit by the falling trunk.  We don’t really know why he moved when he did but it was certainly that action that caused the accident rather than any failure up to that point to observe best practice.  Of course it is right that a poor felling cut is a serious error of judgement but there was obvious evidence of many other correct felling cuts so this appears to be an isolated mistake rather than consistent poor practice.  Anyone can make a mistake, which is why we have procedures like the provision of escape routes to cope with those rare occurrences.  Bad practice is consistently making mistakes, not making single mistakes.

I hope that this provides some clarification on how I see the issues of this case.  For those interested in getting the full story, the Judgement is available from Southampton Magistrates Court (for a fee I understand!).

Jeremy