This concept appears to be one from America where insurance companies and others deny liability as an event was ‘an act of God’ (whatever that might mean).   I’ve never understood the concept as insurance is designed to indemnify the insured from events that come from the heavens (storms, floods, lightning etc).   How insurers get out of because an event was no-one’s fault is beyond me.

In any case that is not quite the point of this post. This post relates to a Victorian news story – Lisa Dennis ‘An act of God?’ Midland Express (online) 11 January 2016.

The gist of the story is that a street tree fell and damaged a person’s fence (which sounds like a scenario I was discussing in If a tree falls on a (NSW) road … (January 11, 2016), which may be what encouraged my correspondent to send this paper to me):

This is the second time in eight years a street tree has damaged the woman’s property. During the latest event the elm tree blew down in a wild weather and brought down the power line to her home. As a result, home owner Ruby had to pay to have the power reconnected and is also facing significant costs and labour to repair her damaged wicker fence and gardens…

On the last occasion she approached council for compensation as she felt the tree was their responsibility, however she was told by a council staff member that it was an ‘act of God’ and council was not responsible.

The first lesson here is never just take someone’s word that they are not responsible.   In Timbs v Shoalhaven City Council [2004] NSWCA 81 the deceased approached a council employee regarding permission to remove trees he thought were dangerous. The council employee pointed out that there was a tree preservation order and the landowner would be prosecuted if he removed the trees. The advice was right in that there was a tree preservation order but wrong in that the owner was not advised that he had to apply for permission and if he did the trees would be inspected and if they were dangerous he could remove them. Rather the owner relied on the advice he was given during an onsite conversation, did nothing about the trees that subsequently fell and killed him. The council was liable for failing to properly consider a request to remove trees that were dangerous.   By not giving correct advice or taking steps to inspect the trees the employee was negligent. That is of course little comfort to the family of the deceased.

In this scenario the council staff member may have said ‘that it was an ‘act of God’ and council was not responsible’ but that doesn’t make the advice correct.   So ‘who is responsible for the damage caused when a street tree collapses?’

The answer may be the person upon whom the tree falls.   There is no guarantee that everything is safe and nothing will ever happen. The Australian system of compensation is based on the tort of negligence so one has to prove that there was a lack of care. Bad things can happen, such as trees fall, without negligence and if that is the case, the loss lies where it falls or, to put that another way, the person responsible for the loss is the person who suffers the loss.

If a person wants to shift the loss they have to prove that there was some lack of care by someone. In that case the person or entity ‘responsible for the damage caused when a street tree collapses’ is the person or entity that negligently caused or allowed it to collapse. That may be a water authority that put drains under the tree that leaked and caused the soil to be waterlogged, or it may be ‘the guttering works … have weakened the root system of the trees along the thoroughfare and the trees were dying as they were no longer getting enough water.’ It may be the council as trees have a natural life span and are prone to disease so there should be a system of regular inspection to determine the health of trees and their risk.   What that shows is that just because a landowner can show that they have been damaged by someone else’s tree, it is not automatic that the owner of the tree is liable for the damage.

If that were not the case the simple solution for councils would be to remove all trees (which would also reduce, I assume, the bushfire risk). But people like trees and they have environmental and economic value.   So trees are kept and councils have to inspect them and take other steps to look after them, but there duty does not require them to guarantee that trees are safe, but to take ‘reasonable steps’ to ensure safety. What is ‘reasonable’ has to take into account all the circumstances including the ‘financial and other resources that are reasonably available’ and the other functions that place a demand on those resources (Wrongs Act 1958 (Vic) s 83) (see also Liability for dangerous trees (April 28, 2015)