Tree claims – getting to the root of the matter

Risk Matters - Spring 2020

An old philosophical question asks - if a tree falls in the forest, does it make a sound? In the indemnity business, the question is more likely to be when a tree falls, who is likely to pay?

Tree related claims account for approximately one third of all claims referred to the LGIS Liability Scheme. In the last two years, more than 870 tree related notifications were lodged with LGIS. This is by far the most common claim with a single cause.

While trees do not have the highest payouts per claim – these claims can take a toll on local government reputation, on resources required to investigate a claim, and time spent preparing for and attending court by local government employees and contractors.

Trees are an important natural asset for local governments – they increase the liveability of urban areas, cool suburbs, contribute to mental wellbeing, they calm traffic and can make it safer for pedestrians.

People are passionate about their trees, one way or another, and they can be contentious local issues. Trees on local government land are often the subject of media scrutiny with councils coming under the spotlight for the position of trees, pruning, fallen branches and root issues.

Trees present complex, emotive issues for local governments. There’s increasing community demand for urban tree canopies and the accompanying, well recognised benefits of greenspaces. Simply removing trees is not an option in many cases.

Local governments also have a duty of care to people using the land under their control. There might be a risk of death or injury associated with trees growing on local government owned land.

Trees may require inspection outside the scheduled program, following:

  • Storm damage
  • Bushfire
  • Vandalism
  • Complaint

Local governments must manage these risks through: 

  • Compliance with relevant legistlation
  • Policies
  • Tree management programs
  • Awareness of the risks trees may pose to persons and property.

Local governments owe a general duty of care to neighbouring landowners as well as members of the public to take reasonable care to prevent loss or injury in respect to their assets, however, this duty is lower than what would be expected from a private property owner and this is enshrined in legislation.

Common law places the onus of proving negligence on the claimant who has allegedly suffered a loss.

In this respect, and in a local government environment, the following four elements need to be proven: 

  • The claimant has sustained some actual loss, injury or damage.
  • The local government owed the claimant a duty of care.
  • The local government breached the duty of care owed to the claimant.
  • The claimant’s injuries, loss or damage was caused by the local government breach of duty.

Possessing limited resources, it would be considered unreasonable to expect that all local governments be in a position to regularly inspect and maintain every tree within their jurisdiction.

Where a tree is located on land within a local government’s control, they will owe a duty to the public to take reasonable care to prevent reasonably foreseeable damage or injury occurring.

It would not however, be reasonable to expect a local government to prevent every risk associated with trees from eventuating.

WA local governments have millions of trees within their boundaries therefore any risk management strategy must take into account applicable legislation, their capabilities, financial and human resources, expertise, goals and strategic plans.

Local governments should maintain a register or local trees near high use areas like footpaths, roads and paths, where realistic. They should then decide how often these trees are inspected.

The register should include tree: 

  • Location
  • Size
  • Health
  • Species
  • Age
  • Condition
Tree inspection rates will depend on: 
  • How many people use the area?
  • How many vehicles travel underneath the tree?
  • How much it would cost if the damage occurred?

Trees may require inspection outside the scheduled program, following: 

  • Storm damage
  • Bushfire
  • Vandalism
  • Complaint

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Contact LGIS’ Risk Management consultants or your Regional Risk coordinator for guidance on how best to manage tree risk.

Watch this space

The LGIS Tree Management Manual is coming soon and will be available to all Scheme members.

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