Gary and Laurel Chalker had previously raised concerns for the safety of their home posed by the 30-45° lean to their neighbour’s gum tree.
When a January 2013 storm brought the trunk crashing down on to their Hervey Bay home and garage, it caused extensive damage.
Rather than a negligence lawsuit against the Sunshine Coast developers on whose land the gum had stood, they made a demand for the repair costs under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 which specifies that “a tree keeper is responsible for keeping a tree keeper’s tree”.
Their O’Regan Creek Rd neighbour defended the claim. The tree crash was “an act of God” and it was not foreseeable that such a severe storm event would occur, they contended. The neighbour also asserted (correctly) that QCAT did not have jurisdiction to consider negligence cases.
Tribunal member James Allen pointed out that because it was a NDDFTA claim, rather than a common law claim for negligence, foreseeability of damage was irrelevant to his determination.
Rather, the tribunal was required to consider whether serious damage to persons or property on the adjoining site had occurred; whether the parties are adjoining landowners; and if Chalker had attempted to resolve the matter neighbour to neighbour.
QCAT can be asked to make orders it considers appropriate to remedy the damage including the payment of compensation under s 66 (2) . In such circumstances, regardless of negligence and foreseeability, a tree keeper is responsible even for an “act of God”.
In any event, the tribunal accepted the Chalkers’ evidence that they had bought the condition of the free to the owner’s attention previously.
It was satisfied that the three statutory elements had been made out and that repair costs ought to be allowed in the total sum of $17.5k.