I have previously written about potential Liability for dangerous trees (April 28, 2015; and see also Liability for advice on dangerous trees (June 13, 2016)). A case from the Land and Environment Court of New South Wales revisits these issues.]

In Byrnes v Ryan (No 3) [2022] NSWLEC 1177 (30 March 2022) before Commissioner Galwey the court had to consider liability for damage caused by a storm damaged tree that was brought down by the SES. The tree grew on the property owned by the Ryan’s but overgrew the property owned by Ms Byrnes. In 2020 Ms Byrnes had applied to the Court for orders to have the tree removed or pruned. This application was dismissed by Commissioner Douglas who held “there was no reason to interfere with the tree: it had not caused damage, nor was it likely to cause injury or damage in the near future” ([2]).

Later a branch ‘cracked’ during a windy day. The branch did not fall to the ground. The State Emergency Service (SES) were called and removed the damaged branch. In the course of the SES operations, “Ms Byrnes’ clothesline and vegetable garden were damaged. She said the fence was damaged too” ([8]).

Ms Byrnes again sought orders to have the tree removed or pruned and financial compensation for the damage to her property.

Commissioner Galway held that the fact a branch had come down meant the situation had changed and he could again consider the question of removal or pruning of the tree; that is he was not bound by Commissioner Douglas’ decision. He said (at [14]):

The recent loss of one long branch over Ms Byrnes’ property has now opened up the crown to different, and possibly greater, wind forces on that side. Another long branch over Ms Byrnes, dwelling is now more exposed. Its bark is a lighter colour than bark of the branch to which it is attached, suggesting this branch is of epicormic origin. That is, the branch is attached more weakly than an original, or non-epicormic, branch. Relying on my own arboricultural expertise and experience, I find this branch is likely to fail as a result of the recent change in circumstances. The risk can be mitigated by pruning.

As a result, His Honour made an order requiring the Ryan’s to have the tree pruned “to remove one branch over the applicant’s dwelling” ([17]).

The more interesting issue is the question of damages. As I’ve noted many times, the law does not require a guarantee of safety. Commissioner Galwey said (at [12]) that ‘the Ryans had no cause to remove the branch prior to its failure, given the Court’s earlier findings and decision’.  Further, His Honour said that “it is not clear whether [the damage] … resulted from the branch breaking and becoming suspended, or as a result of the SES personnel getting the branch to the ground. The adduced evidence does not show that the branch caused damage when it fell.”  In the circumstances he declined to order compensation.

Discussion

The duty on anyone is to act reasonably. Decisions are made with imperfect knowledge. Given the Court had rejected an application to have the tree pruned then it is reasonable that the Ryan’s did not remove it. That would mean there was no negligence.

The issue of the SES is interesting. The State Emergency Service Act 1989 (NSW) s 25A says

Any damage to property caused by the exercise in good faith of functions … by: …

(b) a person acting on and in accordance with a direction given by the Commissioner or a senior emergency officer authorised by the Commissioner under section 22A (1) during an emergency to which Part 5 applies, is taken to be damage by the happening that constitutes the emergency (being flood, storm, tsunami or other risk, contingency or event) for the purposes of any policy of insurance against the risk, contingency or event concerning an act or omission that covers the property.

That’s a long way of saying that if the tree was damaged in a storm (which is not defined; see The NSW SES is the combat agency for floods and storms – but what is a flood? or a storm? (October 6, 2015)) then any damage done by the SES is deemed to be damaged caused by a storm and the property owner (in this case Ms Byrne) could look to her insurer (if any) to cover the cost of repair.

Further s 25 says that anything done by a member of the SES “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.” If it was the SES that did the damage, the members could not be liable, but the SES could be if there had been negligence in the way the volunteers performed their task (see Law Reform (Vicarious Liability) Act 1983 (NSW) s 10 – Effect of statutory exemptions). The Law Reform Act says that in deciding whether an agency like the SES is vicariously liable for the negligence of its volunteers, the fact that the volunteers have a statutory exemption is to be ignored, that is you cannot make the argument ‘the volunteer is not liable, and therefore there is no vicarious liability to be applied to the SES’. The Civil Liability Act 2002 (NSW) s 3C, on the other hand, says any protection provided to an individual by that Act extends to exclude vicarious liability. Protection of SES volunteers can be found in both Acts – SES Act s 25 and Civil Liability Act s 61. How vicarious liability will be applied – ie is the SES liable even though the volunteers are not; or does the protection of the volunteers extend to the SES – remains to be determined in a suitable case at some future time.

Arguably though, if the SES members had negligently damaged Ms Byrne’s property, then the SES could have been liable to make good the damage. But remember it’s not damage per se that is compensable, compensation is only payable when the damage is caused negligently. If there was no way to remove the risk posed by the dangerous branch without doing the damage complained of, then there could be no negligence.  Commissioner Galwey did not and could not determine whether there had been negligence by the SES. He was making a decision under the Trees (Disputes Between Neighbours) Act 2006 (NSW); it was not a common law claim for damages. Further the SES were not a party to the action, this case was between the neighbours. A court could not find that an agency that is not a party to proceedings was negligent as they had not had the chance to be heard. The issue of whether or not there had been negligence by the SES was simply not a question the Commissioner was asked or could decide.

Conclusion

This case confirms the position that I had previously argued and that is one is not liable just because your tree falls and causes damage. There has to be negligence, a failure to take reasonable care. Clearly where the issues have been canvassed before a court and a court has ruled that there is no reason to prune the tree, one cannot be under a duty to prune it and cannot be found negligent even if later, as the original applicant feared, a branch does fall and cause damage.

The position of the SES was not an issue before the court, but the facts do give rise to an interesting legal questions about the apparent contradiction between the Law Reform (Vicarious Liability) Act 1983 (NSW) s 10 and the Civil Liability Act 2002 (NSW) s 3C. This was not a case to determine the legal outcome if the SES volunteers had negligently caused the damage (and I don’t suggest that they had); but it does raise that interesting legal question.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and  NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.