If a tree falls in your hood, who pays? A big legal question gets trickier amid climate crisis
Its a trick legal question: a tree from a neighbouring property falls onto your house during a storm who pays for the damage? If you ask insurance companies, and most lawyers, the answers easy and maybe not one youd like: you do (or your insurance company, if youre covered). The neighbour is off the hook, unless you can prove negligence. But in a climate emergency , with severe storms brewing faster than you can say Timber! some experts say its time to re-think this convention. READ MORE: * A law could allow flood-hit homeowners to seek safer ground, if the Government would fund it * Auckland floods: 'Massive crack' as multiple trees smash into Auckland home * Research finds cash settlements better for economic recovery following Christchurch earthquakes Auckland Council , owner of a significant chunk of the citys land , is already discussing it internally and with people whose properties were hit during this years weather events. After the Auckland Anniversary Weekend floods and Cyclone Gabrielle , there were about 130 cases where slips from public land affected private properties and another 65 involving fallen trees. Auckland Councils interim group recovery manager, Phil Wilson, said when it comes to slips, its complicated. Weve got situations where private land slipped through public land and on to another private property, says Wilson. So theres a whole lot of complexity. With tree damage, the norm is laid out in a recently-updated Insurance Council consumer guide. Under a scenario where a neighbours tree has fallen onto your property during a storm, the Insurance Councils guide states: Your neighbour is generally not liable because it was the storm that caused the damage, unless it is shown that they were negligent in some way. But Wilson said Auckland Council is taking a different approach. Its not a case of the council saying, Thats the legal position, bugger off. Well look at situations on a case by case basis, he said. Its no promises, but certainly we would rather have a conversation. There have definitely been situations where we dont accept liability, but weve been able to help, such as with the disposal of materials. It doesnt mean we will pay for everything thats damaged on private property, but we at least owe people the opportunity to have a conversation. Hes not saying theres an open cheque book this is a council under budget pressure , after all. But with predictions of more severe storms, the issue of damage on and from councils 400m square metres of land needs confronting, Wilson said. During this years wild weather, there were 800-1000 slips on parks and community facilities and 1300 slips on roads, while council dealt with more than 4000 call-outs for fallen trees and branches. About 6000 tonnes of waste material has been disposed of for free through the citys transfer stations and landfills. Wilson said work to prevent damage from storms is under way, as is analysis to help council develop policies for flood and slip risks. Its part of getting an evidence base to come up with some of the policy, Wilson said. But before anyone starts re-writing policy, whats the law and where does it come from? According to Dr Simon Connell, a senior law lecturer at Otago University, it falls under the umbrella of what some people may know as act of God situations although insurance policies rarely refer to act of God these days. The basic idea... is a natural hazard that a person cannot be held responsible for, Connell said. That means things like earthquakes, tsunamis, hail storms, lightning strikes, volcanoes and floods. Connell points out, this is a legal concept, not a theological one. People have sometimes tried to sue God, although Im not aware of this having ever succeeded, he said. Where cases have succeeded is when an act of God has been used as a defence against a claim of negligence. AA Insurance s head of product, Matthew Hickey, said there can be liability over an event if it can be proven that someone should have acted to prevent an event from happening. For example, if there is a tree on council land or a neighbouring property thats rotting, and you contact the council/owner of the tree stating youre concerned there will be damage to your home if its not taken care of, the council/owner of the tree can be found legally liable if they choose to do nothing and the tree damages your property, Hickey said. Under this scenario, a home insurance policy would usually look after the damage. But the insurer will also seek recovery of the costs involved from the person who is legally liable for the damage, he said. So, does the climate emergency change the question of liability? Connell said theres certainly an argument to be had because human activity has changed the climate, and [storms] are becoming increasingly common. Further, sometimes damage might be caused because of a combination of a weather event and human activity, for example damage caused by forestry slash washed onto a property by a flood, Connell said. Climate change economist Professor Ilan Noy agrees that thinking about liability may change. The question is whether extreme weather events will still be considered under those clauses as unanticipated, Noy said, Te Awhionukurangi Chair in the Economics of Disasters and Climate Change at Victoria University. Noy said he could imagine cases where insurers push back and say damage should have been anticipated negligence, because risk wasnt mitigated. So for councils, for instance, whether they need to be more proactive in maintaining trees and making sure land isnt vulnerable to slips and flooding that might cause damage to other properties, he said. Private property owners may need to consider this too. So you have a tree in your backyard and the ground is really soggy, and its fallen into your neighbours yard. Whos liable for this? Could it have been anticipated? Noy said. Its these sorts of scenarios Wilson said are already under discussion at Auckland Council. Out west, where slips and tree fall caused much damage to public and private land, local board members see it as a critical issue one they are prepared to get in the weeds over. Greg Presland , chairperson of the Waitakere Ranges Local Board, said theres an issue with invasive weeds, such as wild ginger , taking over banks. It has very shallow roots and so as soon as theres a big dump of rain it just cant hang on and Ive seen a number of slips where thats happened, Presland said. The board spends about $500,000 annually dealing with weeds, although were only just hanging on were not making gains. He fears the work may be reduced under budget cuts and the weeds will get away. Were going to have to improve stability and you can do that with big engineering projects, he said. But controlling weeds and planting the right kinds of native plants can help, too. So I think theres a strong economic argument to be made. Whatever unfolds, an Auckland lawyer who deals with insurance cases, Adina Thorn, said this year's weather events are a reminder there needs to be a serious look at insurance in Aotearoa for starters, requiring home-owners to have insurance cover. Society cant afford to have peoples houses that are uninsured, and they cant afford it, Thorn said. There also needs to be a review of Toka Tu EQC s cover there are caps depending on the circumstances. (Liability is not one of those circumstances a spokesperson says EQC doesnt consider where the inundation originated from, just whether its been caused by a landslip, storm or flood and where it ended up.) I had a client who had a major landslip and it was $250,000 and a real drama and it made me see that $250,000 in todays world is just insanely low, Thorn said.