An unsavoury tort
Tort is the area of law involving obligations by one person or entity to another. The tort of negligence is where one party owes a duty of care to another. A tort arises when the party owing the duty of care breaches that obligation and damage are experienced by a party to whom they owed that duty.
I am not fluent in the language of Legal, but that sounds to me like they are saying that ‘you are required to look after your stuff’. And I am not a lawyer but stuff, as far as I can tell includes things like how you leave your worksite when unattended, how you secure your tools and equipment in the back of the ute, how you load a trailer, or in the case below how you look after your trees.
The findings of this tree case were released in March. A summary of the summary events goes like this. A tree growing on Council land fell over and landed on a parked car. Damage occurred and the owner of the car felt that the Council should pay to have the car repaired. The car was legally parked, the tree was owned by the Council and no other parties were involved. The Council didn’t believe that it was their fault, so the car owner took the Council to Court for the cost of damages.
As unfortunate situations go, I feel for the car owner. He had done nothing wrong and to make matters worse as he stood before his car with the Council’s tree lying on top of it, he couldn’t help but notice that the roots of the tree were missing (they were rotten). The car owner’s believed that Council had failed in its duty of care.
The Council disagreed, claiming that it was an Act of God; God after all works in mysterious ways… In fact, the Council being politically correct most likely called the event a Force Majeure. But whatever the case, the Council didn’t believe that it was obliged to pay for the damage. Their position was that they had managed their duty of care. They had inspected the tree eight months before it fell over, and at the time of the inspection, there were no external signs to indicate that the tree was about to fail.
The Court considered the evidence and determined that the respondent (the Council) had exercised reasonable care with respect to checking and maintaining the tree; no negligence had occurred and therefore the Council was not obliged to pay for the damage to the car.
As legal proceedings go, there are two things in there that are of interest;
- The notion of what is ‘reasonable’
- Evidence (the importance of record keeping)
Even though the tree fell over and caused damage the Court found that reasonable care was excised by the Council; that by visually checking the tree eight months beforehand, the Council were adequately managing their duty of care. But before you draw too many conclusions from this, every case is different. I have provided evidence where the Court found that visually checking a tree was not considered enough to be considered reasonable care. In this story, I’m guessing that the Council may have had 30 or 40,000 trees to manage, that it was a quiet suburban street, and there were no other compounding factors. In my case there were only about 20 trees, it was a high-use area and the trees have been failing in the past. Therefore what is and what is not considered reasonable is situationally dependent.
The point to consider here is that the Court decides what is reasonable and what is not.
And then evidence. The Council was able to produce documentary evidence of what it did and when it did it. Record keeping saved them. The sad reality is that accidents do happen, so what you do to try and prevent them from happening is important. The Court decided that it was an accident and that the tree did not fall over because of neglect or negligence.
As far as lessons to be learned, there are two things in there that are of interest;
- As a PCBU (a Person Conducting a Business or Undertaking) make sure that you look after your stuff and have something to document that you understand your duty of care. Have and follow policies and procedures – they don’t need to be long and elaborate, they need to be realistic. But they do need to exist and they do need to be followed.
- If you are a car owner and you park your car on the street… make sure that you have insurance.
- Written for NZ Landscaper Magazine