A correspondent with NSW SES says:

I was out with the NSW SES during the recent storms. On two occasions residents had claimed they had asked the local Council for permission to remove a tree that had now damaged their property. In fact our neighbour has a “dangerous” tree (it has an increasing lean on it), they approached Council and they have refused to approve removal. I have three questions:

  1. Could the Council be in any way liable for damage caused by a tree they did not give permission to remove?
  2. Could an insurance company refuse liability in any way (eg known risk)?
  3. Could the SES (or an individual member) be liable if we said that we thought a tree was safe, but later this caused property damage or person injury? Remembering SES members are not trained arborists.
  1. Would the Council be in any way liable for damage caused by a tree they did not give permission to remove?

This question is reminiscent of the facts in Timbs v Shoalhaven City Council [2004] NSWCA 81.  In that case the council was liable.  The deceased had approached a council employee regarding permission to remove trees that 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 advise the owner to make an application so that they could properly consider the request and consider whether the trees were dangerous.   By not giving correct advice or taking steps to inspect the trees the employee was negligent. If, however an application had been made, the trees had been competently inspected and a decision made, in good faith, not to allow the removal of the trees there would have been no liability even if the tree had fallen in the wind.  (See also An act of God? (January 12, 2016) and Liability for dangerous trees (April 28, 2015))

So the answer can be ‘yes, the Council can be liable’ but it depends on much more than we know from this story.  Was a formal application made?  Was it considered?  Were the steps taken to consider the application reasonable in all the circumstances?  Did the tree owner get their own inspection to confirm the state of the tree or just rely on council?  To many questions to give a specific answer. (And that is why this blog talks in general terms, but in an actual case, people need to go to a lawyer of their choice to consider all these sorts of questions and the particular facts).

  1. Could an insurance company refuse liability in any way (eg known risk)?

That would depend on the terms of any given policy.

  1. Would the SES (or an individual member) be liable if we said that we thought a tree was safe, but later this caused property damage or person injury? Remembering SES members are not trained arborists.

This is taken from the ‘headnote’ or summary of Timbs’ case:

1.The Council was not bound to express any opinion about whether the tree was dangerous. The Council, through its officer, took unto itself the responsibility of determining whether the tree was dangerous…

2. … the Council officer did not know that the tree on the Timbs’ property was dangerous when he made his inspections …

3. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. In this case, the Council held a significant and special measure of control over the safety of homeowners who brought to the Council’s attention their fears that overhanging trees were dangerous. This was particularly so, as the Council opted to advise the particular homeowner about whether the trees in question were dangerous…

5. When the Council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his expertise and experience. In those circumstances, the requisite standard of care required of him was higher than that of a layman and, like a general practitioner, the sufficient level of expertise he professed to have, required him to make a reasonably informed diagnosis or to admit the need for referral to a specialist…

10. This decision does not mean that a Council officer, who is asked informally for advice or consent in relation to a potentially dangerous tree, is obliged to give expert advice. In the present case, the Council officer could have stated that it was open to the deceased to obtain his own advice and to make a formal application to remove the tree and also that if the tree was dangerous, it could be removed without Council consent. There would then be no breach of duty.

Substitute ‘SES’ for Council, and change the past tense to future tense, and you get

  1. The SES is not bound to express any opinion about whether a tree is dangerous. But the SES, through its officer, could take unto itself the responsibility of determining whether the tree was dangerous…
  2. … the SES officer may not know that the tree … [is] dangerous …
  3. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. In this case, the SES holds a significant and special measure of control over the safety of homeowners [because the SES can decide to take action to remove a threatening tree and, in any event, the SES should appreciate that a person who has brought to the SES’s attention their fears that overhanging trees are dangerous is asking the SES because they are on scene as the combat agency for responding to damage from storms and they’re being asked because they’ve responded to a call for help about a tree, they carry lots of kit that makes it look like they know about trees]. This is particularly so, if the SES opts to advise the particular homeowner about whether the trees in question were dangerous.
  4. When an SES officer takes it upon him or herself to express a positive view as to the safety of the tree, they are representing a capacity to do so based upon perceived expertise and experience. In those circumstances, the requisite standard of care required is higher than that of a layman and, like a general practitioner, the sufficient level of expertise he professed to have, required him to make a reasonably informed diagnosis or to admit the need for referral to a specialist…
  5. This does not mean that an SES officer, who is asked informally for advice in relation to a potentially dangerous tree, is obliged to give expert advice. In a similar case the SES officer could state that it was open to the deceased to obtain his own advice and to make a formal application to remove the tree. There would then be no breach of duty.

Conclusion for question 3

What follows is that it would seem to me that an SES member could put the SES into the same position as the Shoalhaven Council. If a person asks the SES ‘is that tree safe?’ and the member says ‘yes.  In those circumstances it may well be arguable that

  • the tree owner was vulnerable (if the tree is not safe, it’s going to hurt them);
  • they are looking to the SES for advice;
  • in circumstances where it can be anticipated that they are going to rely on that advice.

That could give rise to a ‘duty of care’ but the duty would be to answer the question honestly and reasonably – ie give reasonable advice.  Just as in Timbs a simple statement of ‘that tree is safe’ may be enough to stop the person taking further action and then suffering if the tree falls.  As my correspondent says ‘SES members are not trained arborists’ so any advice would have to be couched in those terms for example: ‘We’re not experts and we can’t say whether that tree is safe or dangerous.  You will need to contact your council or an arborist as soon as you can if you have any ongoing concerns’.

Do note that in that conclusion I haven’t addressed the multitude of defences that would be open including s 25 of the State Emergency Service Act 1989 (NSW) (‘A matter or thing done … does not, if the matter or thing was done in good faith for the purpose of exercising the functions of or assisting the State Emergency Service … subject the member, officer or volunteer personally to any action, liability, claim or demand’) and various issues under the Civil Liability Act 2002 (NSW).  The question of whether there is a) a duty of care and b) a breach of that duty can only be answered in a particular case based on the particular facts of that case.  The question I was asked was ‘Could the SES (or an individual member) be liable…’  In the right circumstances I can see an argument that the SES could be liable but that is not a complete answer and a complete answer is not possible in a blog like this.  Like the tree expert, if you want to know the answer in relation to a particular tree, at a particular house, independent advice is required that takes into account all the circumstances.