I went for a run (well more a slow stumble) on Wednesday last week and you may recall that it was a particularly windy day. Whilst my suburb is not the most heavily wooded area, my run was diverted as a result of a tree branch lying across the boundary fence between two properties. Significant damage had been inflicted on the fence and the childrens’ swing set in the adjoining property. Had the tree fallen at a different angle it no doubt would have caused significant damage to the chicken hutch and the shed.

If a tree falls in the woods (or your backyard) … and causes significant damage … who is responsible?

The short answer is, it depends on certain circumstances.

In one case, the Court found a local Council to be liable to pay $750,000 in damages when a tree from adjacent land fell onto the roof of a house with fatal consequences for one of the owners. In that case, the owners had requested on two separate occasions for a council worker to attend to inspect what they considered was a dangerous tree. Both times the Council employee conducted a routine visual inspection on the tree and concluded the trees were healthy and safe and could not be cut down. These trees were also the subject of a Tree Preservation Order. The Council’s liability was based partly on the significant and special measure of control over the safety of the home owners who brought to the attention of Council their concerns about the tree. The standard of care by which the Council employee’s actions were measured was raised because he chose to express an opinion on the safety of the trees and his advice was found to be negligent. Perhaps if he had not expressed an opinion and independent advice by an expert was obtained there may have been a different outcome.

In another case involving a different local Council, the Council was not held to that higher standard of care because of the surrounding circumstances. In that case, a driver on a long country road drove into a tree that had fallen down during a wind storm and suffered injuries. Importantly, the Court found that the Council was not liable in negligence and had not committed a systemic breach in failing to have a proactive system to inspect and remove diseased trees as it was not practical for it to do so.

Bulletin Bites:

Whilst each case will be determined on its specific facts, points to consider for statutory authorities like local Councils and individuals alike include:

• If there is a dangerous or sick tree on your property, any damage it causes to neighbouring properties could be your responsibility.
• Regular checks on trees by appropriate persons may be required to protect you from any negligence claim for damages.
• Particular care must be exercised if the tree(s) in question are the subject of a Tree Preservation Order.

John Kettle – Solicitor Director