Which case won?

The case for the plaintiff
  • The covering letter sent to me by council with my certificate of exclusive burial rights stated that “Council provides perpetual maintenance of the lawn and surrounding areas”.
  • This covering letter created an implied contractual obligation on the council to maintain the trees on the cemetery grounds.
  • The council was in breach of this contract and is therefore liable for the damage caused.
  • Notwithstanding any contractual obligation, the council is also liable in negligence for failing to maintain the tree.
  • Given that the Widow Maker is known for its propensity to drop branches without warning, the council could clearly foresee the risk that the tree posed to the grave.
  • The council should have taken precautions against this foreseeable risk by trimming the lower branches in order to raise the crown of the tree. Its failure to do so was negligent.
  • The council argues that it was not negligent, because under its tree management policy, the onus is on me as the private landowner to recognise and report the risk of the tree falling on my mother’s grave. This is a spurious argument, since the tree management policy does not apply to the cemetery.
  • The tree management policy is intended to apply to public land such as nature strips, where it would be easy for someone like myself to recognise and report a risk. It does not extend to public land where it would be difficult for a private citizen to recognise the risk. In any event, the council’s tree management policy was only implemented in the last 10 years, whereas I purchased the burial plot 18 years ago.
  • Given that the council breached its contractual obligation to maintain the tree and was also negligent in failing to maintain the tree, the court must order the council to pay the full cost of repairs to my mother’s grave.
The case for the council
  • The covering letter that we sent to the plaintiff did not create a contractual obligation to maintain the trees near his mother’s grave.
  • The cemetery offers burial rights over a specific lot in exchange for a one-time fee. By purchasing a burial right over his mother’s plot, the plaintiff gained an implied right to erect the burial monument of his choice and at his expense. He did not gain a right to have us maintain the trees above the plot.
  • In fact, it is for this reason that we advise all people who purchase burial rights, including the plaintiff, to insure their burial monuments. It is unfortunate that he chose not to do so.
  • When we say that council provides “perpetual maintenance of the lawn and surrounding areas”, we are simply referring to the regular procedures we have in place for the maintenance of the grounds that involve works like lawn mowing, attending to garden beds and cleaning the toilet amenities.
  • All other works, including tree pruning, are done on a reactive basis only if we are notified by a burial plot owner of the need to do such works. To do otherwise would require the allocation of council resources that we do not have.
  • Our tree management policy therefore makes it clear that the onus is on the burial plot owner, in this case the plaintiff, to notify us of any risk of damage. The plaintiff failed to do so.
  • The plaintiff is misguided in arguing that the tree management policy does not extend to the cemetery. The cemetery is on Crown land and we manage that land on behalf of the Crown, making it public land to which the policy applies.
  • Had the plaintiff notified us of any concerns about the tree, we would of course have responded by inspecting it and taking any action required. In fact, once we learned of the tree branch falling, we took reasonable reactive steps including removing the branch, covering the grave, and pruning the tree to reduce future risk.
  • Even if the court concludes that the cemetery is not covered by the tree management policy, there was nothing visually wrong with the tree. Therefore, any risk was unforeseeable.
  • Nor were there any reasonable actions that we could have undertaken to prevent the risk of damage.
  • As we were not in breach of any contractual terms and we were not negligent, the court should dismiss the plaintiff’s claim against us.

So, which case won?

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Case B won. You were right!

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Expert commentary on the court's decision

Nick Burton
Nick BurtonLawyer
“When it comes to damage to private property caused by trees situated on public land, it is crucial to remember that the onus is generally on the owner of the private property to notice the warning signs and to advise council of any concerns.”
Local Court finds in favour of council

In this recent case before the Hornsby Local Court Small Claims Division, the magistrate found in favour of the Hills Shire Council.

No contractual obligation to maintain tree

The magistrate rejected the plaintiff’s argument that the council had a contractual obligation to maintain the trees on the Castle Hill Cemetery grounds.

The council’s covering letter containing the statement on which the plaintiff relied was not found to be an implied term of the contract.

According to the magistrate, the letter could not comprise part of the contract, since it came after the transaction between the parties was completed.

Negligence to be determined by reference to section 5B of the Civil Liability Act

The matter boiled down to whether the council was negligent in failing to regularly maintain the tree. This turned on the application of Section 5B of the NSW Civil Liability Act 2002.

Section 5B states that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant and a reasonable person in the person’s position would have taken those precautions.

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity that creates the risk of harm.

Additionally, Section 5E of the Act places the burden of proving the above factors on the plaintiff.

Risk was significant but not foreseeable

Ultimately, the plaintiff failed to prove the criteria required under section 5B of the Act for establishing council’s negligence.

The magistrate agreed with the council that the cemetery was covered by the council’s tree management policy. However, in the magistrate’s view, neither the plaintiff nor the council could have foreseen the risk posed by the tree.

In particular, neither an expert nor a layperson would have been able to foresee the risk, due to the lack of evidence that the tree was unhealthy or suffered a defect likely to cause the branch to fall.

However, the magistrate did find that due to the size of the tree, the risk was not insignificant.

Reasonable person would not have taken precautions against risk of harm

The magistrate concluded that a reasonable person in the council’s position would not have taken precautions against the risk of harm.

This was because the random occurrence of branch shedding would not necessarily have been reduced if maintenance activities had been undertaken prior to the branch falling.

Also, the risk of damage was not shown to be anything more than a small probability.

Further, although the seriousness of any potential harm that would be caused by all or part of the tree falling was large, due to the size of the tree and its lower hanging branches, this was mitigated by the fact that precautionary measures may not have prevented this risk.

The magistrate also accepted the council’s argument that it would be too onerous a burden to expect the council to monitor all trees on its public land. In doing so, the court referred to a case citing Noble v Harrison (1926). In that case, the court made the pertinent comment that there is “no ground for holding that the owner is to become an insurer of nature”.

The magistrate also found that the social utility of having trees and greenery within the cemetery, which had long been advertised as a garden/bushland cemetery, outweighed the utility of removing the risk.

The plaintiff’s claim was therefore unsuccessful, and costs were awarded for the council.

Steps to be taken in establishing negligence

Negligence is a finicky area of law. It is not simply a case of slipping over in a public area and suing the council for a massive payout, as popular media likes to portray.

Rather, you must be able to establish that there was a foreseeable risk of harm, and that had actions been taken to reduce that risk, the harmful event may not have occurred.

When it comes to damage to private property caused by trees situated on public land, it is crucial to remember that the onus is generally on the owner of the private property to notice the warning signs and advise council of any concerns.

Consider insurance and pre-emptive tree pruning when buying a burial plot

If you are purchasing a burial plot, you should consider the benefits of monument insurance, weighing up the long-term costs of insurance versus the potential repair costs should something go wrong.

It might also be worthwhile to consider the location of your plot. Check whether it is in the direct line of overhanging branches, particularly those of larger gum trees, or whether the cemetery has plans to plant trees near the grave site in the near future.

If there is a tree over the grave site, or if you already own a plot with a tree looming overhead, and it happens to be of the Angophora costata genus, consider obtaining an arborist’s opinion about possible falling limbs.

Then proactively advise council so that they are on notice and can get an inspection done.

If, after conducting an inspection, the council tells you that the tree is of the “no way to tell about possible damage, it looks healthy” variety, you may decide to push for the council to trim the tree pre-emptively to achieve crown lifting.

And so, in the words of the Andrews Sisters, we leave you with a simple reminder… Don’t sit under the apple tree unless you have warned the council first!

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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