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.

So, which case won?

Cast your judgment below to find out

Nick Burton
Small claims
Stacks Collins Thompson

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