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A couple of months ago an Arborist cut through Telstra’s cable supplying our building. The Arborist was removing a tree stump from a garden bed and the cable was just a few inches below the surface and in the middle of the tree roots. The garden bed has always been a garden bed, it’s raised and sits behind a retaining wall – no change of usage would have occurred since the cable went in the ground.Telstra initially pursued the Arborist for their $2k costs, but the Arborist has denied responsibility on the basis of the terms of hire stated in their quote which read ‘No responsibility taken for damage to underground pipes unless specified time of quotation’. Telstra are now pursuing the owners for their $2k.Now I’m no Erin Brockavic, but this seems like a ridiculous action by Telstra…
- The waiver in the quote refers to ‘pipes’ which would be owned and maintained by the building. It makes no mention of cables which in this instance are owned/maintained by a third party.
- Our acceptance of their quote, cannot release the Arborist from resposibility towards Telstra’s property – Only Telstra themselves could provide this release.
- No signed agreement including any waiver exists.
I also think the Arborist has a strong case for rejecting the claim since the cable was buried a few inches below the surface of a garden bed. Telstra’s positioning of the cable is completely inadequate to protect it from the normal activity associated with garden beds ie pointy things being jabbed into the soil and things getting uprooted).I’ve told the Strata manager to reject the claim, but would like to know if any legal eagles see any issues with this defence or if there is anything else that needs to be considered.
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As none of our Lawyers has posted (as yet), I’ll offer a bush-lawyer’s comment, and that’s that you’re spot-on Erin!
The Arborist should have availed themselves of the Dial before you Dig service as opposed to their meaningless disclaimer, but that said as Telsta has used authorised contractors (and their sub-contractors) for so long, their Cable Plans are known to be very much advisory.
Telstra probably does have the right to lodge an ambit claim against the Arborist, but it certainly has none against your Owners Corporation.
I’d strongly recommend that your Owners Corporations keeps up the dialogue with Telstra, because as your Strata Plan (and its residents) are the recipients of the services provided by their cable, any debt-recovery “incentives” that they may employ could affect those residents as the innocent third parties.
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