If a tree branch fell and caused damage to a grave, was the council negligent for not maintaining the tree? Which case won?
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 costata tree.
The Angophora costata is 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.