25 January 2022

TCCS in clear in car park damages claim but chipped for lack of tree management

| Ian Bushnell
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The applicant said the Territory had breached its contract to her and that TCCS was negligent regarding the maintenance of the tree.

A damages claim over a fallen tree branch on a car parked in a city car park has been dismissed, but not before the ACT Civil and Administrative Tribunal found that the ACT Government should be more proactive in how it manages older trees in high-traffic areas.

Jayne-Louise Bryant parked in an ACT Government car park in the city on 23 November 2020, only for a branch to fall on her car during a storm.

She claimed damages from Transport Canberra and City Services but it rejected the claim, arguing it could not have foreseen that the branch would fall, prompting Ms Bryant to take her claim to ACAT.

In her application she claimed $4946 in damages, including an insurance excess of $695, travel costs of $453 while the car was unavailable, the cost of the increase in insurance premiums plus the cost of the loss of the ‘no claims’ bonus of $535, the cost of the loss in the resale value of her car of $3100, and reimbursement of her filing fee of $162.50.

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Ms Bryant asserted that the ACT was liable, being responsible for the maintenance and upkeep of the tree in question and was negligent in this regard.

She argued the ACT breached its contract to her, a fee-paying customer of the car park.

She also claimed that TCCS had breached the ACT Parking and Landscaping Code by allowing the mature tree to hang over the car park.

TCCS argued that it could not regularly inspect every one of the 760,000 trees it cared for, including the one in question, that there were no records indicating that it knew of any risk the tree posed, and that the Parking Code only applied to new developments.

It also told ACAT that on the day in question the Bureau of Meteorology had issued a severe thunderstorm warning, including advice not to park near trees.

ACAT agreed, but did say that given the age of the tree and its position in a high use risk area, TCCS should have been keeping an eye on it and have kept a record of any inspection.

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“The Tribunal accepts that it is common knowledge that the subject tree was located in a car park in Canberra’s central business district, and near shopping and recreational areas,” it said.

“Given its location the Tribunal finds that it was in an area that should have attracted the proactive approach set out under the Guidelines similar to the other examples, being district playing fields and shopping malls.

“The fact that the subject tree, similar to many in its location, was recognised to be an ‘an older planting’ further supports the Tribunal’s finding that the subject tree should have received proactive management.”

It also said the risk was significant given the amount of damage the branch caused, and the possibility that a person could have been in the car.

But the case hinged on whether TCCS could have reasonably foreseen the risk of what would happen.

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Ms Bryant contended that if the key TCCS witness, arborist Brent Schwartzkoff, had inspected the tree before the branch fell then the outcome from the storm would have been different.

But Mr Schwartzkoff said the tree would not have been removed any sooner than the medium to long term if he had inspected it beforehand.

He said the cause of the branch falling was the “strong winds that day”, although the tree had some rot and structural characteristics that were “not ideal”, and that even healthy trees fail in such weather.

Ms Bryant did not provide any proof to challenge Mr Schwartzkoff’s testimony or support what ACAT called TCCS’s “omission in management of the subject tree” was a necessary condition of the damage.

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Michael and Mark, depends if it was a Truffula tree because not everyone needs a thneed. Although it is very handy at Canberra Stadium watching the football in winter. Just in case someone needs context try reading ‘The Lorax’ by Dr Seuss.

An interesting conundrum.

We don’t want trees being removed from the city but we also don’t want branches falling everywhere, if it killed a person rather than damaged a car would the ruling have been any different?

I don’t think it’s fair to say if it was inspected, nothing would’ve changed in the medium-long term. These inspections should be taking into account strong winds and hail, if ‘even healthy trees fail in such weather’, maybe we should be cutting back the unhealthy ones.

Finally, I do think TCCS should inspect every tree. There are multiple ways to start and I’d be curious to see if they’ve even tried. How many of these 760k trees have been inspected? Just because they didn’t know, doesn’t excuse them.

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