Sheriff finds death of gardener struck by falling timber could have been avoided with better safety practices

About this case:

• Citation:
  [2025] FAI 4
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Andrew Miller

Andrew Pirie, aged 53 at the time of his death, was pronounced dead at 10:10am on 25 June 2020 at a site near Dunnottar Woods in Stonehaven where he was contracted to remove two dead trees by the landowner. The accident was investigated by the Health and Safety Executive and resulted in prosecution of the tree surgeon, Scott Menhinick, however he was ultimately found not guilty of any offence.

The inquiry was conducted by Sheriff Andrew Miller, with Ms Ross-Davie, procurator fiscal depute, appearing for the Crown.

No discussion of drop zone

Around two weeks before his death, Mr Pirie was contacted by a client, Leonard Smith, who wanted two mature ash trees on his land, which he believed were dead, taken down to remove risk to users of an adjacent road. As the trees would require dismantling, Mr Pirie recommended Mr Menhinick, whom he had worked with before, and Mr Smith agreed to engage his services. Work commenced on the morning of 25 June, with Mr Smith cutting timber from the tree at height using a chainsaw while Mr Pirie and his labourer Kevin O’Donnell removed the cut timber and either cut it into smaller pieces or put sections through a wood chipper.

By about 9.15am, Mr Menhinick had removed all of the limbs of the tree and had begun to remove sections of the trunk. He cut a section from the top of the trunk, of between 1m and 2m in length. That section then fell to the ground when Mr Pirie was within the drop zone near to the base of the tree and struck him on the left side of his head and torso. Mr Pirie was immediately rendered unconscious and died at the scene from his injuries. Mr Menhinick was prosecuted for an alleged contravention of section 3(2) of the Health and Safety at Work etc Act 1974 and for attempting to pervert the course of justice but found not guilty of either offence.

In his evidence, Mr Smith said that he heard no warning or other shout from Mr Menhinick prior to the cut section of trunk falling towards Mr Pirie. He was adamant that there was no communication between the men when Mr Menhinick was up in the tree cutting sections of timber. Mr O’Donnell’s evidence was that there was no discussion about a drop zone in relation to the tree or expectations as to where cut timber would fall. Mr Pirie’s son Michael also discussed an occasion in May 2020 when he assisted his father at another job where Mr Menhinick was on site and described him as seeming to want the job done as quickly as possible and not saying when he was starting to cut or stopping.

Evidence was also given by Niall Miller, HM Principal Inspector of Health and Safety, who stated that he would have expected the drop zone to be physically marked to make its scope clear to anyone who might have been in the vicinity. When asked about Mr Menhinick’s evidence that a drop zone did not need to be marked if fewer than five people were on site, he said he had never heard of such a rule. The safety measures in place, which comprised a single cone at the drop site and a sign informing nearby road users tree cutting was taking place, were ineffectual.

Bore particular responsibility

In his determination, Sheriff Miller said of the evidence given: “In combination, Michael Pirie’s statement and the evidence of Leonard Smith and Kevin O’Donnell point to the conclusion that, on 25 June 2020, Mr Menhinick’s approach to the assessment and management of risks to those working on the ground did not reflect best industry practice. The responsibility for the safe execution of this work on 25 June 2020 rested with the work party as a whole. However, given that the focus of the work was tree-felling at height and that Scott Menhinick was the only person present who was qualified to undertake that work, it seems reasonable to conclude that he bore a particular responsibility for the assessment and management of the obvious risk, to himself and others, arising from the work which he alone undertook that day, including the risks to those working on the ground from falling timber.”

He added: “Whatever the reason for the final section of timber falling when it did and whatever the reason for Andrew Pirie entering the drop zone when he did, had there been a clearly identified and understood method of communication between Scott Menhinick and the others to indicate when it was safe for anyone on the ground to enter the drop zone - which I am satisfied there was not - the scope for anyone working on the ground to have entered the drop zone whilst there existed any risk of injury from falling timber would have been removed or at least reduced.”

Considering what could have prevented the accident, Sheriff Miller said: “It is clear from the evidence that Scott Menhinick was experienced in this work and that he was adequately trained and competent to carry the work out safely, although the evidence points to the conclusion that the work was not carried out safely. It is also clear that the leading industry code of practice, namely the Industry Code of Practice for Arboriculture (2nd edition, 2020), provides clear and easily accessible guidance on the identification and management of the very risks which were highlighted by the circumstances of Andrew Pirie’s death.”

He concluded: “I do not feel that I am in a position to make recommendations which would improve upon the contents of the code of practice. However I am concerned to ensure that the terms of the code of practice are disseminated, understood and followed as far as possible by those who undertake tree-felling work at height, with all of the resulting risks to themselves and to people on the ground.”

Sheriff Miller therefore recommended that the Arboricultural Association consider whether the industry code of practice for tree work at height required amended or revised in light of the circumstances of Mr Pirie’s death, and whether further steps could be taken to maximise awareness within the industry of the content of the code.