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The Facts
Plaintiff buys three adjacent burial plots
In June 2002, a man purchased three adjacent burial plots in a
cemetery in suburban Sydney.
One of the plots was for his late mother.
Council takes responsibility for maintenance of areas
surrounding plots
In July of the same year, the man received a letter enclosing
his certificate of exclusive burial rights to the plots, with the
words "Council provides perpetual maintenance of the lawn and
surrounding areas".
Large branch falls from apple tree causing damage to grave of
plaintiff's mother
The grave of the man's mother was situated directly under a
10-metre tall Angophora costatatree.
The Angophora costatais more commonly known as a
smooth-barked apple tree.
It is also known by its more infamous nickname, "Widow
Maker", due to its tendency to drop large branches without
warning.
In April 2018, a large branch fell from the tree, shattering the
top plate of the man's mother's grave and heavily damaging
the side plates.
Council refuses to cover full cost of repairs and plaintiff
seeks court order compelling payment
The man obtained a quote of $12,000 to repair the grave.
After initial discussions between the man and the local council,
the council offered to contribute $750 towards repair costs,
without admitting any liability for the damage.
The man rejected this offer and made a claim against the council
in the Local Court – Small Claims Division.
case a - The case for the plaintiff
case b - The case for the council
The covering letter sent to me by council with my certificate
of exclusive burial rights stated that "Council provides
perpetual maintenance of the lawn and surrounding areas".
This covering letter created an implied contractual obligation
on the council to maintain the trees on the cemetery grounds.
The council was in breach of this contract and is therefore
liable for the damage caused.
Notwithstanding any contractual obligation, the council is also
liable in negligence for failing to maintain the tree.
Given that the Widow Maker is known for its propensity to drop
branches without warning, the council could clearly foresee the
risk that the tree posed to the grave.
The council should have taken precautions against this
foreseeable risk by trimming the lower branches in order to raise
the crown of the tree. Its failure to do so was negligent.
The council argues that it was not negligent, because under its
tree management policy, the onus is on me as the private landowner
to recognise and report the risk of the tree falling on my
mother's grave. This is a spurious argument, since the tree
management policy does not apply to the cemetery.
The tree management policy is intended to apply to public land
such as nature strips, where it would be easy for someone like
myself to recognise and report a risk. It does not extend to public
land where it would be difficult for a private citizen to recognise
the risk. In any event, the council's tree management policy
was only implemented in the last 10 years, whereas I purchased the
burial plot 18 years ago.
Given that the council breached its contractual obligation to
maintain the tree and was also negligent in failing to maintain the
tree, the court must order the council to pay the full cost of
repairs to my mother's grave.
The covering letter that we sent to the plaintiff did not
create a contractual obligation to maintain the trees near his
mother's grave.
The cemetery offers burial rights over a specific lot in
exchange for a one-time fee. By purchasing a burial right over his
mother's plot, the plaintiff gained an implied right to erect
the burial monument of his choice and at his expense. He did not
gain a right to have us maintain the trees above the plot.
In fact, it is for this reason that we advise all people who
purchase burial rights, including the plaintiff, to insure their
burial monuments. It is unfortunate that he chose not to do
so.
When we say that council provides "perpetual maintenance
of the lawn and surrounding areas", we are simply referring to
the regular procedures we have in place for the maintenance of the
grounds that involve works like lawn mowing, attending to garden
beds and cleaning the toilet amenities.
All other works, including tree pruning, are done on a reactive
basis only if we are notified by a burial plot owner of the need to
do such works. To do otherwise would require the allocation of
council resources that we do not have.
Our tree management policy therefore makes it clear that the
onus is on the burial plot owner, in this case the plaintiff, to
notify us of any risk of damage. The plaintiff failed to do
so.
The plaintiff is misguided in arguing that the tree management
policy does not extend to the cemetery. The cemetery is on Crown
land and we manage that land on behalf of the Crown, making it
public land to which the policy applies.
Had the plaintiff notified us of any concerns about the tree,
we would of course have responded by inspecting it and taking any
action required. In fact, once we learned of the tree branch
falling, we took reasonable reactive steps including removing the
branch, covering the grave, and pruning the tree to reduce future
risk.
Even if the court concludes that the cemetery is not covered by
the tree management policy, there was nothing visually wrong with
the tree. Therefore, any risk was unforeseeable.
Nor were there any reasonable actions that we could have
undertaken to prevent the risk of damage.
As we were not in breach of any contractual terms and we were
not negligent, the court should dismiss the plaintiff's claim
against us.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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