|
|
此文章由 呼呼呼 原创或转贴，不代表本站立场和观点，版权归 oursteps.com.au 和作者 呼呼呼 所有！转贴必须注明作者、出处和本声明，并保持内容完整
本帖最后由 呼呼呼 于 2018-6-6 13:09 编辑
ls 很多人太，，，包子。这种伤人的，特别是提前通知的，邻居应该有责任。
Falling Trees
Liability for falling trees or limbs has been considered in a number of cases. In a decision of the House of Lords, Caminer v Northern and London Investment Trust Ltd[3], Lord Radcliff discussed the different types of legal responsibilities that might apply in relation to trees, depending on their location. He noted that this might result in an owner of a tree in a remoter and less populated area being able to take 'more chances at the expense of his neighbours' than the owner of a tree in a built up area, adjacent to a busy street. But his Lordship was not convinced of the logic of this differentiation adding that, 'a tree or its branch only falls once'.
Reported Australian decisions illustrate that the location of the tree in a particular case may be relevant and policy considerations may play a part where the defendant is a statutory authority. But ultimately a court, having considered the evidence, will have to decide whether a relevant duty of care has been established and whether it has been breached.
Decisions in cases where the question of the duty of care owed by a statutory authority in relation to hazards on land like falling trees or branches is involved, usually consider, among other issues, relevant statutory provisions, the adequacy of warning signs and policy considerations.
For instance, in Schiller v Council of the Shire of Mulgrave[4] the plaintiff was injured in a scenic reserve, which the Shire Council was appointed trustee of, when a dead tree suddenly fell on him while he was walking down a rough bush track. The Shire Council's duty was based on control of the land where the accident occurred.
The evidence showed that it was a known fact that trees in the North Queensland rainforest were subject to fungal invasion which, over a cycle of seasons, could cause rot and eventually the tree to fall. The council through its employees knew or ought to have known that fact. The tree in question was obviously dead and was close enough to the bush track to be seen and for the knowledge to form that, when it fell, there would be a risk of injury to any person on the track in the proximity of the tree.
Importantly the scenic reserve covered a relatively small area, was not an open and extensive area of bushland and attracted tourists.
By contrast, in Harper[5], the Victorian Department of Natural Resources and Energy was not in breach of any duty it owed to persons entering a national park when the plaintiff was injured by a tree falling in gusty winds. The tree fall also killed one of the plaintiff's companions. The case turned on the efficacy of warning signs. The trial judge found the defendant in breach of its duty by not having appropriate signs warning of the danger of hazardous trees in certain weather conditions.
The Victorian Court of Appeal reversed that decision taking into account the obviousness of the danger and the endemic risk of such accidents in outdoor recreational activities in state reserves. The burden of placing warning signs throughout the reserve was disproportionate to the remote risk of injury. In addition, there was no evidence that if such signs had been erected the plaintiff would have taken any notice of them.
The decision in Schiller was distinguished on the basis that the scenic reserve under the control of the Mulgrave Shire Council was concerned only with a relatively small strip of forest adjacent to a bush track and not with a substantial bush reserve. Relevant authority for the Court of Appeal's reasoning on the principles of negligence was found in the High Court's decision in Romeo v Conservation Commission (NT)[6].
Timbs v Shoalhaven City Council[7]
Mr Timbs was killed in his bed, asleep, when a tree blown over by very strong winds fell on the roof of his house. The tree, one of four adjacent to Timbs' house, was the subject of a tree preservation order which required the consent of council to cut any of them down.
According to the evidence of his wife, Mr Timbs had requested advice from council about the health of the trees in fear for the safety of himself and his family. In July 1996 and January 1998, a council officer attended the Timbs' property, inspected the trees, including the one that killed Mr Timbs, and advised the family that the trees were healthy and safe and could not be cut down.
The trial judge found that the council, through its officer, had exercised reasonable care in inspecting the trees, which had a healthy, normal appearance and the advice given and the refusal to allow them to be cut down did not amount to negligence.
The New South Wales Court of Appeal overruled the trial judge's decision and awarded damages of almost $750,000 to Mrs Timbs for damage to the house, for rent payable during its reconstruction and as damages for the death of her husband under the Compensation to Relatives Act 1897 (NSW).
The council's liability was based partly on the 'significant and special measure of control over the safety of home owners who brought to the Council's attention their fears that overhanging trees were dangerous'. [8]
The control factor was significant because the council, through its officer, agreed to advise the Timbs whether the trees were dangerous. The officer's expressed opinion was a representation by him of his capacity to do so based upon his expertise and experience. This raised the standard of care required of him. Accordingly, there should have been more than a routine visual inspection by the officer or advice should have been given to the Timbs that an inspection and independent advice by an expert should be obtained to support an order that the tree could be cut down. In the circumstances the advice was negligent.
Expert evidence at trial indicated a number of factors which contributed to the windthrow of the tree, including water logged soils and a decayed root system, which would have been revealed by a more thorough inspection.
There was, in the circumstances, an open inference that a proper inspection would have revealed the decayed structural roots and the tree would have been found to have been dangerous. Guidance on principle for the finding of negligence by the council through its officer was found in the High Court's decisions in Pyrenees Shire Council v Day[9] and Mutual Life and Citizens Assurance Company Ltd v Evatt[10].
[1] See The West Australian, 19 January 2005, p 5; The Australian, 3 February 2005, p 5
[2] Secretary, Department of Natural Resources and Energy v Harper (2000) 1 VR 133 at 148. This and surrounding passages from the judgment of Batt J were quoted with approval in Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 and relied upon by Ipp J in Prast v Town of Cottesloe (2000) 22 WAR 474
[3] [1951] AC 88
[4] [1972] 129 CLR 116
[5] Above, note 2
[6] [1998] 192 CLR 431
[7] [2004] NSWCA 81
[8] Above, note 6 at para 47
[9] (1998) 192 CLR 330
[10] (1968) 122 CLR 556 |
评分
-
查看全部评分
|
找了四十天工作，找到2份，下周上班了 (2006-4-27) 不会游泳的鱼 
2013信手随笔之不舍集 （14年2月1日175楼更新） (2013-4-10) astina 
楼主:fuguee
发表于 2018-6-5 21:15
