Claiming compensation for injuries caused by falling trees and branches

There is a breed of unique cases involving injuries caused by falling trees and tree branches. These cases are not the average public liability claims like slip and fall in a supermarket or trips on a footpath owned by council cases; they are unique because they involve the forces of nature.

This article will give you an insight into these unique cases and how Australian courts have interpreted and assessed claims for compensation for injuries caused by falling trees and branches.

Injuries caused by falling trees and branches are often quite serious and the impact of those injuries can be significant on a person’s quality of life.

Unfortunately, the significance of the injury alone is not enough to claim compensation. To be eligible for compensation for injuries sustained by falling trees, negligence must be established against the occupier of the area where the injury occurred. This may be a private dwelling owner, a corporation or a council or state authority. To establish negligence, there must have been something that someone who controls the area did wrong or failed to do, and this failure caused the injury.

Negligence in these cases is most contentious because of the inherent risk of injury from forces of nature when outdoors. It is unlike the small and controlled environment of a supermarket. There are often forces beyond a person’s control.

This is best summarised by his Honour Judge Batt in the case of The Secretary to the Department of Natural Resources & Energy v Harper [2000] 1 VR 133:

“To enter a forest or its immediate surrounds, like entering the surf, is to take a risk of injury albeit a remote risk. The risk is “endemic” or part and parcel of the recreation of camping, walking and indeed living outdoors in the Australian bush and in particular in forest reserves.”

In considering the question of negligence, courts have focused on the location of the tree and the control of the occupier in that location; ie, bushwalking tracks, scenic reserves, campsites, streets etc.

The main theme coming out of previous cases appeared to be that negligence is more likely to be established in areas that are more densely populated and frequently visited by the public. Ultimately, however, the court’s judgement rests on the facts of the specific case in determining whether the relevant occupier or authority has breached its duty of care to the injured person.

The two cases below demonstrate how the courts have handled the specific matters differently.

In the case of Schiller v Council of the Shire of Mulgrave [1972] HCA 60; 129 CLR 116, on 9 November 1964, Mr Schiller was walking along a rough bush track in a reserve in a rainforest in north Queensland when a tree fell suddenly and struck him causing him to suffer very serious injuries.

Mr Schiller brought a public liability claim against the local council for compensation.

In the initial trial, Mr Schiller was unsuccessful in establishing negligence against the council. Mr Schiller ultimately appealed the decision to the High Court and was successful in establishing negligence against the council.

Their Honours considered that the council was placed in control of the whole area, including where Mr Schiller was injured. Their Honours referred to various cases for this proposition including Aiken v Kingborough Corporation (1939) 62 CLR 179 and Burrum Corporation v Richardson (1939) 62 CLR 214.

It was found that the tree that had fallen was dead. The court noted that the council could have, and should have, identified this risk had it done a proper inspection before the incident happened because the tree appeared ill.

The council argued that they do not regularly patrol the walking tracks but that they would remove any trees which are seen in the course of maintenance patrols, and which were at a distance of six feet or so from the track. It was not policy for them to remove all dead trees because of the costs involved. This argument related to ‘maintenance costs’ was irrelevant to the court.

The court held that the council failed to exercise reasonable care to prevent damage from the danger that existed on the land they controlled. They neglected to undertake any inspection in the relevant part of the reserve and by not discovering or dealing with any dead tree that was on the track.

The court discussed whether warning signs would have been sufficient to mitigate liability, however, it was ultimately held that while signs may have mitigated liability, the fact that the council did nothing at all to rectify the source of danger was more significant.

The location of the reserve was considered, particularly the fact that it was adjacent to the walking track which meant that the council could have identified the ill tree when using the walking tracks during inspections.

It was noted that the scenic reserve covered a relatively small strip of forest adjacent to the track (about 19 acres), was not an open and extensive area of bushland and attracted tourists. The court held:

“The nature of the area, the extent to which the public resort to it and the practicability of eliminating the risk, having regard to the expense, the funds available and the difficulty of the operation, have all to be considered.”

The court ultimately found in favour of Mr Schiller and awarded him $84,076.99 plus legal costs in compensation.

In the matter of The Secretary to the Department of Natural Resources & Energy v Harper [2000] VSCA 36, on 15 August 1993, Ms Harper was on a camping trip to Toorongo Falls Reserve with friends. Ms Harper and her friends decided to go down to the river and look for some “gold”.

It was a very windy day and as they were walking along a small sandy area at the edge of the river, a tree fell and struck Ms Harper on her back. Her friend was also struck and died from the incident.

Ms Harper was pinned underneath the tree and suffered extensive injuries including fractured and dislocated lumbar vertebrae, fractures in three ribs, left foot fractures and a ruptured spleen. She had spinal fusion surgery.

Ms Harper was 31 years old at the time and due to her injuries suffered serious consequences and she was unable to return to work.

The location of the reserve in this case was also of importance. It was in a secluded part of the forest, albeit close to a walking area and a popular campsite. In this respect, it was distinguished from the Schiller case referenced earlier.

In the initial trial, Ms Harper succeeded in establishing negligence against the Department of Natural Resources and Energy and was awarded approximately $349,000.

The Department appealed this decision to the Court of Appeal. Ultimately, the Department succeeded in overturning the trial decision and they were found not to be liable.

In the appeal, the court determined that even if there were warning signs, they would not be enough to prevent the injury from happening as trees can ultimately fall without warning. As stated by the expert called in this matter, the court agreed that “forests are a hazard by the very nature of them” and the risk of injury in a forest is “ever-present”.

In contrast to Schiller, there was no specific hazard that caused the tree to fall, other than the weather conditions. In Schiller, it was a dead tree that could have been identified and rectified to prevent the likelihood of an injury. In this case, the tree was a silver wattle and was alive at the time of the incident. There was some commentary that the tree was close to a river putting it at a greater risk of falling because the soil was more susceptible to moisture. It was also noted that strong winds were more likely to cause it to fall, but this was no different than any other tree in the forest.

These were significant factors that the court considered relevant in finding that the Department was not negligent, and Ms Harper ultimately lost her case.

If you were injured from a fallen tree or fallen branch whilst driving your car, you may be entitled to claim compensation from the Transport Accident Commission; a TAC claim. You will need to show that the injury was directly caused by the driving of the motor vehicle or arising out of the use of the motor vehicle. You may not be able to claim compensation from TAC where the vehicle was stationary and turned off at the time of the injury.

If you have an accepted TAC claim, you may be entitled to “no-fault” statutory benefits including:

• loss of income;
• medical expenses; and
• lump sum impairment benefit for permanent injury.

You may also be entitled to claim common law compensation if you can show that your injury was caused by the negligence or conduct of another person, such as the council.

The council may be found negligent in instances where it was put on prior notice of a particular defective tree and failed to comply with its Road Management Plan in managing the tree in order to minimise the risk of injury.

In the case of Timbs v Shoalhaven City Council [2004] NSWCA 81, a tree fell through the roof of the house due to strong winds and killed Mr Timbs. Mr Timbs and his family had previously complained about the tree (to the council) and were concerned about their own safety on multiple occasions. The council did not eradicate the tree as it was found to be healthy.

The court initially determined that the council was not negligent as it had complied with its own procedures and inspection.

Mr Timbs’ family appealed the decision and the Court of Appeal found that the representative from the council, who conducted the inspection and found that the tree was healthy, did not do a thorough inspection and had he done so, it could have prevented Mr Timbs’ death.

In considering the council’s liability, the court referred to the council’s “significant and special measure of control over the safety of homeowners” that it held in addressing their concerns about the trees and how it had failed in its responsibility to adequately advise on the condition of the tree.

Similar to other cases against the council, the council cannot be held liable where it had complied with its Road Management Plan and where there are applicable defences to it as under the Road Management Act 2004 (Vic).

As can be seen from these cases, while the courts have applied similar approaches, they ultimately reached different conclusions. One thing remains clear, each case rests on its own facts. Generally, where the occupier’s scope of control (that is, the person or entity that has control of the land where the tree is) can be defined, the location of the tree can be clearly identified and if the tree is in an area with a large number of visitors, an injured person will likely have recourse to claim compensation.

We all know and appreciate that there is an inherent risk of injury in the great outdoors. It’s generally accepted that falling trees and branches (causing injury) are an uncommon occurrence, however, when it does occur, there is more likely than not a reason that caused that particular tree or branch to fall.

If there is a unique reason that sets the tree apart from others (whether by sickness or type) and is in a location that is frequented by visitors, then it is more likely than not a tree that requires regular inspection and assessment. Absence of a tree inspection and assessment regime (or schedule of inspection) is likely to lead to a finding of negligence should someone be injured by falling branches.

If an injured person can successfully establish negligence, they will be entitled to compensation for pain and suffering, past and future economic loss, past and future medical expenses and care pursuant to the Wrongs Act 1958.

If you or a loved one have been injured by a fallen tree or a fallen tree branch, please do not hesitate to contact Polaris Lawyers.