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When a tree falls in a storm, who pays?

This fact sheet is for information only. It is recommended that you get legal advice about your situation.

CASE STUDY – Part 1

Jane lives on a block with lots of trees. One night there was a huge storm and four trees on her property came down. One a big old eucalypt fell in the backyard. Thankfully, it did not hit anything but she now has a massive fallen tree that is blocking her from getting to the back gate. A second one crashed and damaged her shed. A third one crashed and landed on her car that was parked on the street A fourth has landed on the house next door! It has caused the boundary fence to come down, and has damaged the neighbours guttering. Jane recently had a landscaper out; he told her all the trees on her property were in really good condition.

WHEN A TREE FALLS IN A STORM WHO PAYS?

After a storm, the most common inquiries on the In­surance Law Service advice line are:

  1. Is my insurer liable for the removal of a fallen tree, or damage caused by the tree to my property; and
  2. My tree has fallen on a neighbour’s property – am I or my insurer liable for the removal of, or damage caused by, the tree?

To answer these questions, we need to go back to basics.

Insurance is a contract between you and an insurer.

Under the contract between you and the and the insurer, you agree to pay an amount of money (a premium) to the insurer in exchange for the insurer agreeing to compensate you for certain defined losses or liabilities during a set time period.

Insurance does not cover all risks. There will be exclusion and condition clauses in the policy to limit the scope of what the insurer has to cover you for.

What you are covered for with your insurance policy will depend on the wording of the policy. To understand your coverage, read your Product Disclosure Statement (PDS) carefully. Cover can vary significantly from insurer to insurer.

Whether your insurance covers fallen trees depends whether it causes damage to the home or contents.

When it comes to damage caused by fallen trees, some insurance policies will only cover you for the removal of the tree if it causes damage to the insured home and contents. If there is no damage to the home or contents, then you may be up for your own removal costs.

When a tree falls and it is a tree on your own property it can be a straight­forward application of the policy wording.

CASE STUDY – Part 2

In the case of Jane, her policy covers her for storm, but excludes the cost of removing fallen trees where there is no damage to the insured property. As the first tree has fallen in the backyard but not hit any of the property, her insurer will not pay for the cost of the removal.

With her second tree crashing into her shed, where she had build­ing insurance that covered sheds and outbuildings, she is covered to remove the tree and fix the shed. With the tree that fell on her car, her car is not covered by her home and contents insurance! Luckily, she has comprehensive car insurance and so she can make a claim on the car insurance. Her car will be repaired, but the tree removal costs will be up to her.

Jane’s neighbour has sent her an angry letter demanding she pay for the removal of the tree, and claiming money for the damage to the gutters! Jane’s insurer says she is not liable and to ignore it! Jane’s insurer says they will only pay for 50% of the fence, and tells her the neighbour has to pay for the rest!

If your tree falls on your neighbour’s property, you are not automatically liable

Difficult situations often arise when the tree falls on your neighbours’ property. The neighbour may think you are automatically liable, because it is after all your tree.

The law about neighbours rights and responsibilities is covered generally by the common law, being the tort of nuisance or negligence.

Just because the tree is on your property, it does not mean you are automatically liable for the tree falling or dropping branches in a storm.

If the fallen tree is in a dangerous condition, or is known to drop branches, you may be liable to your neighbour

For you to be liable, generally you need to be aware the tree:

  • Is near the boundary and is in a dangerous condition, or
  • Belongs to a species which is known to ‘drop’ branches

If you knew the tree was dangerous, for example, the tree started leaning, or an arborist recommended its removal, then you may be exposed to liability. If you think there may be an issue, notify your insurer immediately.

When you are the owner of property you are liable as the home owner for any claim of nuisance or negligence made out against you. It is generally advisable to have Home and Contents insurance which will cover you for your “legal liability”. An insurer generally sets a limit of (eg $20 million) for “legal liability” to pay damages arising from a claim for an accident that results in death, bodily injury, or damage to property of a third party not living with you. This extends to damages if a tree on your property falls and damages another persons property and you are liable.

But if you are not liable, then your insurer is not either.

If the fallen tree is healthy, you are not liable because this is an ‘act of God’

If a strong, healthy tree blows down across the fence in a storm, this is generally considered to be an ‘act of God’ for which you are not liable.

Again, if you are not liable, then your insurer is not either.

If your healthy tree damages a boundary fence, each neighbour is responsible for 50% of the cost of the repair or replacement of the fence

With boundary fences, generally each neighbour is responsible for 50% of the cost for repair or replacement of the fence. As you are only liable for 50%, then your insurer is only liable for 50%.

CASE STUDY – Part 3

Jane’s tree is healthy. The severity of the storm meant lots of trees blew down, and there was nothing she could have done.

Jane writes back to her neighbour and explains that as the tree was healthy, her insurer says she is not liable and she suggests they claim on their own insurance. She forwards them the invoice for the 50% of the fence repair.

Jane’s neighbours (or their insurer) could still insist she is liable. They would need evidence to show that it was a reasonably foreseeable risk that the trees would pose a danger.

They should proba­bly seek legal advice before they commence any proceedings against Jane as Jane has a report saying the trees were healthy and the storm was very severe.

How to prepare for potential damage to trees caused by storms

Read your insurance policy’s Product Disclosure Statement (PDS)

It is always a good idea to read your PDS to check the extent and conditions of your coverage.

Take preventative steps to address the danger posed by dangerous trees

Where trees cause damage and it is not a storm, for example your tree was dead, damaged or a species prone to having branches fall and you have a reasonable suspicion it might fall down you should take steps to address the danger.

Contact an arborist or your local council about whether the tree can be removed. If the dangerous tree or branches causes damage in a storm, then you may be liable.

Your insurer will not pay the cost for these preventative steps, but it is in your interests to address the problem.

Check your policy for exclusions for damage to third party property when cutting or lopping dangerous trees

It is a common exclusion in the “legal liability” that the insurer will not be liable for damages to third party property where you are cutting or lopping trees. This would be a risk you would bear.

NEED SOME MORE HELP?

See our Getting Help factsheet for a list of additional resources.

Last Updated: January 2021