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Falling Tree = A Duty of Care

March 2019

During high winds in January 2014, a tall century-old poplar tree located on land belonging to the Queenstown Lakes District Council snapped at its base and fell onto a motel owned by Plaza Investments Limited.  Extensive damage was caused to Plaza’s property, including to various motel units and parked cars. Plaza sued the Council and was unsuccessful in the District Court, which found that the Council was not liable in negligence.  On appeal, the High Court overturned the District Court’s decision and held that the Council was liable for the damage caused. The Council was ordered to pay the amount required to repair Plaza’s property.

The facts 

The evidence was largely undisputed. Post-incident inspection of the tree revealed that the base was riddled with white rot and that this was likely causative of it having fallen in high winds.There had been previous instances of trees of the same type having fallen on Council land, specifically in 2004 and in September and November 2009 (the latter incident having resulted in the death of a person). Following those incidents, the Council had commissioned various inspections and expert reports in relation to poplar trees at certain specific locations. 

Those reports recommended regular inspection of the trees in question and a phased felling programme of removal and replanting, but despite those recommendations, the Council did not implement a felling programme and only continued to undertake visual inspections. Importantly, no further internal testing was undertaken by the Council from 2007 until the tree-fall in 2014, which would likely have revealed the extent of the white rot infestation in the afflicted trees. 

A duty of care

The District Court was satisfied on the evidence that the Council owed a duty of care to undertake inspection and maintenance of the trees in the area, including the tree that had fallen on to Plaza’s property, but did not consider that the Council was under any positive duty to prevent or minimise known hazards from causing damage.

In the High Court, this formulation of the duty of care was rejected as unduly restrictive. The Court held that the Council had an additional duty to not only undertake inspection and maintenance, but to take reasonable steps to prevent or minimise known hazards on its land from causing damage to its nearby neighbours. Given the broader scope of the duty of care, adherence by the Council to its Tree Policy, which did not focus on health and safety risks for public or property and was more broadly aimed at heritage protection goals, was insufficient to meet its duty to control the risks associated with aged poplar trees.

The standard of care

The High Court held that the Council had known since at least 2005 that aged poplar trees were at heightened risk of fungal infection and internal decay. Notwithstanding this, the Council had failed to take the recommended steps of properly monitoring the trees in question for decay or decline. The Court was satisfied that had the Council taken those steps, the tree’s decay would most likely have been detected and its fall prevented.  On that basis the Council had breached its duty of care.  The Court was also satisfied that there was a causal link between that Council’s breach and the damage to Plaza’s property.

Conclusion 

With trees on your property, you have a duty of care to protect your adjoining neighbours’ properties from damage your trees may cause.