Dungog Shire Council v Babbage - [2004] NSWCA 160 - NSWCA 2004 case summary — Zoe

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Dungog Shire Council v Babbage

[2004] NSWCA 160

Court of Appeal (NSW)|2004-02-13|Before: Handley JA, Santow JA, Burchett AJ

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Court

Court of Appeal (NSW)

Decision date

2004-02-13

Before

Handley JA, Santow JA, Burchett AJ

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

CITATION : Dungog Shire Council v Babbage [2004] NSWCA 160 HEARING DATE(S) : 12, 13 February 2004 JUDGMENT DATE : 20 May 2004

[2]

JUDGMENT OF : Handley JA at 1; Santow JA at 2; Stein AJA at 88 DECISION : 1. The appeal be allowed. The cross-appeal be dismissed with costs; 2. The verdict and judgment below be set aside and verdict and judgment be entered for the defendant in the proceedings below; 3. The respondent to pay the costs of the appeal; 4. If eligible, the respondent to have a certificate under the Suitor's Fund Act.

[3]

CATCHWORDS : LIABILITY - Motorist injured when the car she was driving collided with a fallen tree on the road which was said to be in sickly condition and collapsed in a storm - Evidence that tree's stability compromised - contest as to this and as to whether obviously so - Whether vehicle which passed fallen tree and failing to stop was Council driven vehicle - Duty of care owed by the appellant to the respondent - specific or ad hoc breach by reason of failure to remove tree - no system breach in failing to have pro-active system to inspect and remove diseased trees - practicality and feasibility of such a system in the country road setting of local shire - Held Council not negligent. Brodie & Anor v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 CASES CITED : Graham Barclay Oysters Pty Ltd v Ryan (2002) 71 ALJR 183 Schiller v Mulgrave Shire Council (1972) 129 CLR 166 Timbs v Shoalhaven City Council [2004] NSWCA 81 PARTIES : DUNGOG SHIRE COUNCIL (Appellant/Cross Respondent) Erin BABBAGE (Respondent/Cross-Appellant) FILE NUMBER(S) : CA 40562/03 J D Hislop, QC/ M J McCulloch (Appellant/Cross-Respondent) COUNSEL : J P Gormly, SC/ A Scotting (Respondent/Cross-Appellant)

[8]

20 MAY 2004 DUNGOG SHIRE COUNCIL v Erin BABBAGE Judgment 1 HANDLEY JA: I agree with Santow JA. 2 SANTOW JA: OVERVIEW The appellant Dungog Shire Council was the unsuccessful defendant in Supreme Court proceedings in negligence brought by the respondent, Ms Erin Babbage. Those proceedings before Burchett AJ were for damages for the injuries she suffered when her car collided with a fallen tree on the road. It had fallen from the appellant Council's roadway reserve. It blew down during an exceptionally severe windstorm onto the trafficable part of the roadway. Windstorms are known to be a relatively frequent occurrence in the area. There was evidence that the tree was "sickly" by reason of partial ring-barking and a depleted canopy. The trial judge concluded that it showed "obvious signs that its stability was compromised". That finding is contested on appeal. The appeal contests liability but not damages. 3 There is also a cross-appeal alleging that one of the Council trucks had earlier driven past the fallen tree without the Council driver stopping to avert the danger that the tree created. Though unnecessary to decide, the trial judge concluded that it was not a Council driven vehicle which failed to stop. Those matters are again at issue by way of cross-appeal. 4 The trial judge found the appellant owed the respondent a duty of care as the highway authority. 5 He concluded that there were two distinct breaches of duty, and that each of those breaches was in a legal sense a cause of the collision. The first of these could be called a specific or ad hoc breach. It consisted in the council's road-workers failing to take any steps in relation to the particular tree when "showing obvious signs that its stability was compromised". The second could be called a system breach. This was in failing to have a pro-active system to inspect and remove diseased trees. He concluded that such a system would have identified this tree as requiring removal (judgment at [13]). To quote the trial judge's conclusion (judgment at [19]): "[19] In my opinion, the defendant was in breach of its duty of care by reason of the failure of its road workers, particularly the supervisors, to take any steps in relation to a tree they must have seen, close to the road and showing obvious signs that its stability was compromised, at various times when they must have passed along Alison Road so near to Dungog carrying out road maintenance work during a period of years. The defendant was also in breach of its duty of care by reason of its failure to institute and maintain any system of inspection of roadside trees, in an area prone to storms, other than a system that was purely reactive to complaints. Each of these breaches of duty was, in the legal sense, a cause of the collision, which would probably have been avoided had reasonable care been taken, since the tree would have been removed long before June 1998."

[9]

ELABORATION OF DISPUTED FINDINGS AND FACTUAL BACKGROUND 6 Every one or two years the Dungog Shire suffers severe windstorms. Numerous trees, many healthy, are knocked down in such windstorms. That occurred, for example, earlier in 1996; see evidence of Council employees summarised in the appellant's written submissions at (16) to (22) Orange, 32. 7 The tree in question, along with many others (Black, T, 461.31-.37), fell during a severe windstorm which struck the Dungog area in the late afternoon or early evening of 23 June 1998. The tree was about 2.7 kilometres along Alison Road itself 6 or 7 kilometres from Dungog. 8 Erin Babbage, the injured plaintiff, was then just 21 years of age. She was six months from completion of her full-time studies at the University of New South Wales for the degrees of Bachelor of Applied Arts (Dance) and Bachelor of Education. She had driven her mother to a farm where she was to dine, and had promised to return by 11 pm to take her back to her home in Dungog. 9 Shortly before eleven, when Miss Babbage drove out again, the storm was raging. She drove alone in a Holden Gemini along Alison Road, a bitumen sealed road at the outskirts of the town, where the speed limit was 80 kilometres per hour. Since no one witnessed the accident, the severity of which left Miss Babbage with amnesia after the event, her exact speed at the time of the accident is unknown. The appellant argued that the respondent was going too fast at the time of the accident. That was based upon the evidence of passengers of two vehicles that passed the respondent along the roadway prior to the accident. That evidence was the basis of a claim for contributory negligence. It is considered later. However, contributory negligence did not feature largely in this appeal. 10 The respondent crashed into the trunk of a substantial ironbark tree more than half a metre in diameter. It was lying completely across the bitumen. She suffered serious injuries. The road upon which the accident occurred was only four and a half to six metres wide, with no gravel shoulder. Before its collapse the tree stood on the roadway reserve which was owned by the appellant (Red, 39). The road is part of a loop road. It leads to numerous properties, intersects with other roads and other areas and was regularly used by many vehicles including Council trucks. Though not within the immediate township of Dungog the relevant part of Alison Road is quite close, in a relatively built up area. The appellant however contends that fact does not suffice to differentiate it from other rural roads in the Shire for purposes of council liability. I agree. 11 The respondent's submissions outlined the main characteristics of the tree: "24 (f) The tree was very tall (20 metres) (Meys T296H) and close to the edge of the road [four metres from the bitumen (Black Book 1 of 3 T300M)]. If it fell, it would fall across the road, falling onto or at least representing a hazard to traffic. … (g) This tree was not blocked from sight by other trees. It was visible from a long distance. It was damaged and sickly." 12 The appellant disputed that the tree was damaged and sickly. The appellant disputed the trial judge's finding that the tree was remarkable for the sparseness of its foliage and was noticeably bare by comparison to other trees depicted in the immediate surrounding area (Red, 35). I set out below the expert evidence from both parties on the health of the tree.

[10]

The Expert Witnesses 13 Although the day after the accident, road workers employed by the appellant cut the tree into logs with a chainsaw so as to remove it from the road, the stump or butt and a partially up-rooted root system still remained on 18 September 2001 some three years later. It was only then that they were inspected by a Mr Robert Meys, the expert witness called by the respondent. Mr Meys has a certificate in horticulture from the Ryde School of Horticulture, as well as significant experience and other qualifications, and is a specialist arborist. He identified the tree as a eucalypt and agreed that it may have been, as local evidence suggested, a grey ironbark. In forming his opinions about this tree, Mr Meys did however take into account what he could see on a video taken on the adjacent farm in 1993. That was five years before the tree fell. This video confirms that the relevant part of Alison Road is quite close to the township of Dungog, because a relatively built-up area is seen in the background. It picks up the tree in question in a view across the neighbouring farm to the road. The trial judge remarked on the bareness of foliage on the tree as seen in the video: "4. …The tree that fell is remarkable for the sparseness of its foliage. There are few leaves and little in the way of branches. The tree stands noticeably bare by comparison with the other trees in the area" 14 Before us on appeal were two relatively indistinct stills from the video; Blue, 522. Two clearer photos show scarring but only on what was said to be a comparably scarred tree, adjacent to the tree in question; Blue, 523-5. 15 The appellant disputed the trial judge's findings that the tree was noticeably bare. The appellant noted that the video was of poor quality as indeed it was. 16 The trial judge commented on the evidence of Mr Meys at paragraph [5] of his judgment: "5. …Apart from the lack of foliage revealed by the video, Mr Meys noted that the stump showed a large area of scarring which appeared to have been present for a number of years. The scarring covered about 25 per cent of the circumference of the tree, so as to affect about 25 per cent of the transport tissue, that is to say, as I understood his evidence, the tree was effectively about one quarter ringbarked. He explained that, depending on the precise position of the scar in relation to a buttress root, "the damage to the root system would be substantial because of lack of transport [of nutrients through the phloem] to the root system". This extensive scarring was visible from the road, on the side of the tree next to the bitumen, from the edge of which it was distant within four metres. Mr Meys concluded that both the "minimum amount of foliage" and the scarring were "indicative of the tree being in poor health", and that because of the degree of the inadequacy of the foliage this was "obviously" so. In cross-examination, he said it was "highly unlikely" that the buttress roots of this tree "could be healthy", explaining that if a tree has damage like this, "it is highly likely the root system has been damaged accordingly".

[11]

Having looked at the video, Mr Meys considered the "poor foliage and poor branch structure" of the tree indicated it "would have been in poor health" for at least ten years before 1993. In his report of his inspection, he stated that "the loss of approximately 25% of transport tissue had a great effect on the maintenance and formation of supporting and feeder root systems", and expressed the opinion that the fall of the tree "can be directly related to [its] poor health". 17 The appellant disputes the finding of the trial judge in relation to the evidence given by Mr Meys, pointing out that the findings ignore the fact the tree seems to have withstood other severe windstorms as well as the severity of the windstorm which brought it down: "15. …The appellant does not accept that the scarring observed by Mr Meys would have been visible to anyone except a person who conducted the same sort of inspection as conducted by Mr Meys, an inspection which it is submitted the appellant was not bound to undertake." 18 Further, "63. It was not apparent from the evidence of Mr Meys that the tree in question should or would have been assessed as "quite sick". The size of scar noticed on the stump was a matter for speculation with no objective basis other than inference from the existence of a scar on an adjacent tree which was still standing (Black AB -309 E-O, 310E). The relevant significance or insignificance of the size of the canopy of the tree was not analysed and it cannot be said that in a rural setting that all trees with sparse canopy should be removed as the evidence of Mr Pittendrigh [the expert called by the appellant] (Exhibit 43) (BlueAB-1421) was that trees are often retained in rural setting for their habitat value. Mr Meys conceded that he could not be "totally certain" that any buttress roots had been damaged before the tree fell (Black AB 310V) and did not know the possible size of the scar which affected the transport tissue within the tree (Black AB 310E)." 19 The trial judge commented on the submissions of Mr Pittendrigh, the expert produced by the appellant: "8. For the Council, the report of an arborist, Stuart Pittendrigh, was tendered in answer to the evidence of Mr Meys. Mr Pittendrigh did not give oral evidence and, although I accept he is qualified in horticulture, I do not know what the nature of his relevant experience may be. He did not view the remnants of the tree or attend the scene, but commented on the video and the report and photographs produced by Mr Meys. He conceded that the "video images of the standing tree", which he called "poor", nevertheless "indicate that the tree displays no significant crown", but, without discussing the relationship between the crown and the roots, or between a partial ringbarking and roots dependent on the severed phloem, matters which I found convincing in the evidence of Mr Meys, he contented himself with saying: Trees that exhibit sparse crowns are not necessarily structurally weak or hazardous in fact [sic] they can be quite sound and are often retained because of their habitat value. To say the tree was not necessarily structurally weak is not to deny the conclusion to be derived from the evidence of Mr Meys that it was highly likely a buttress root or roots had been weakened, so that the tree could be more readily uprooted in a high wind. I did not find in what Mr Pittendrigh himself described as his "brief report" any reasoned refutation of the opinions expressed by Mr Meys. 9. The plaintiff relied on certain answers made by the defendant to interrogatories. These answers admitted that no one on behalf of the defendant assessed …the health and stability of the tree [with which the plaintiff collided] before it fell across the road in the storm on the night of 23 June 1998 and no work had been done on the tree by way of tree surgery, lopping, inspection or other work with a view to assessing the health or stability of the tree in the five year period prior to 23 June 1998. In the same period, no "horticultural or tree experts" were "consulted by the Defendant to assess the health and stabilities of trees in the Shire and in particular on Alison Road"; nor did the defendant "have in place a roadside tree management plan". No assessment had been carried out by the Defendant to determine whether roadside trees in the Shire could fall across its roads (other than in the area of towns or villages in the jurisdiction of the Defendant) in the five year period prior to 23 June 1998." 20 The trial judge took stock of the evidence making the following finding: "13. I am satisfied that the tree with which Miss Babbage collided had been for a number of years in an obviously sickly condition, indicative of the likelihood that the root system on which its stability depended would also be unhealthy, and weakened. The Council itself, by entrusting its supervisors with the assessment of complaints, acknowledged the practical experience of its country-bred employees, and I am satisfied that they, and certainly the supervisors, were well able to recognise the potential danger of such a tree. It was standing on land under the control of the Council, as part of its road, and close to the edge of the bitumen. Its lack of any significant canopy and the extent to which it was partially ringbarked were plainly apparent from the road. Had it been necessary to provide the supervisors with some minimal guidance as to what to look for (which, in this case, I do not think it was), the Council could have obtained expert advice and issued an appropriate instruction. In a shire so subject to recurring severe windstorms, that would have been an obvious precaution. At all events, the Council did receive occasional complaints about dangerous trees, generally from outsiders, which it passed to the two roadworks supervisors to investigate. It could have issued a general instruction to them to be proactive themselves, as they went about the roads carrying out maintenance work, in order to detect and deal with potentially dangerous trees, just as, I have no doubt, it would have expected them to observe and remedy blocked culverts in sections of roads where they were working. Had such an instruction been issued and enforced, I am satisfied that this tree, within a few kilometres of the central town of Dungog and on a road that linked up with other roads which must have required work from time to time, would have been identified as a risk to be eliminated." 21 I shall return to the testing of this evidence and particularly that of the two experts, when dealing with how I consider this appeal should be resolved.

[12]

Roadside Management System - why was the tree not spotted? 22 The trial judge remarked that the roadside system of checking trees was only upon complaint and that that was all the Council had in place by way of system at the time of the accident: "10. …Mr Cox, the Council's Roadworks Supervisor, who reported to Mr Gray, made it clear the only system the Council had to deal with possibly dangerous roadside trees related to "residents complaining to Council"; in such a case, he "would end up with a memo on [his] desk", a "pro forma form", upon receipt of which he "would inspect the situation". Having done so, he did "recall removing a couple" of trees, and on "other occasions when [he] inspected the tree [he] decided not to remove the tree". Although it was argued on behalf of the Council that its supervisors would not have the expertise to recognise an ailing tree which should be removed from the edge of a road on safety grounds, it is clear from this evidence that in fact its supervisors were required to make assessments of this kind, but only after a special complaint had been lodged. And considering that most of the employees of the Council who gave evidence had grown up in the country and lived there most of their lives, it would indeed be surprising if the ability were lacking in any of them to recognise the tell-tale signs of a partially ringbarked tree with grossly impoverished canopy. 11. Mr Cox's evidence was confirmed by his superior, Mr Gray. Asked whether the Council had "any system of inspecting trees adjacent to roadways", he replied: No, we had no system other than responding to reports from residents or motorists or anything that our staff would have identified in their normal course of their duties. Pressed, he added: Reports of that nature [that is, "received from a member of the public"] would have been recorded on our action request system, a computerised system, and that would issue a works order or an instruction. Trees were inspected by our work supervisor Ron Turner. (Mr Turner was, in fact, one of two supervisors concerned with roads who reported to Mr Gray, the other being Mr Cox.) Later in his evidence, Mr Gray described the Council's system as "purely a reactive system". He said he had not himself inspected trees in response to complaints. He had not grown up on a farm, but his staff had "all been brought up on the land", and it "was certainly clear to [his] staff even outside storms that there were some trees that needed to be removed". Work orders in respect of trees that had been the subject of a complaint were usually referred to Mr Turner. Asked: Did you understand that he had some capacity to go out and inspect trees to determine whether they represented a risk? Mr Gray replied: I understood his experience in undertaking that type of work. He had no formal qualification. He said: If a tree was determined by Mr Turner to be unsafe then we would remove the tree. Asked about the possibility that Mr Turner might be unsure, Mr Gray's evidence was that Mr Turner "would decide the question one way or the other". 12 The defendant's Operations Engineer, who was at the relevant time an assistant engineer, Mr Hitchins, gave similar evidence about the Council's system, except that he said a complaint would be given to an appropriate employee, and it was "[i]f that employee could not do the work [that] it would go back to management for them to make a further decision on the matter". This indicates that someone like Mr Cox or Mr Turner might have considerable discretion, and is in keeping with Mr Cox's evidence, which I regard as probably reflective of the actual practice that was followed." 23 The respondent noted that the evidence of Mr Gray (the superior officer), to the effect that the Shire relied on Mr Turner (supervisor of road maintenance staff) to make a decision about dangerous trees, was not actually led by Mr Turner himself, who was called before Mr Gray. 24 The appellant disputed that the specific breach of duty found by the trial judge caused the accident; that is, had its employees acted according to their duty, they would have identified the sick tree in the course of their employment, and removed it: "54…(i) The appellant's employees gave evidence that they could not identify a 'sick tree' (Mr Hancock- BB537; Mr Gray - BB665 "If the tree was upright I wouldn't be concerned about it"); (ii) There was no evidence that the appellant's employees or supervisors would consider a tree with depleted canopy or scarring to be unhealthy or require inspection for removal; (iii) There was no evidence as to the frequency of appellant's employees or supervisors upon Alison Road before the accident; (iv) There was insufficient evidence that the scarring on the tree (on 25% of its circumference) was capable of being seen by appellant's employees driving along Alison Road if they had been instructed to report "sick" trees."

[14]

The viability of a more extensive vegetation management system 27 The respondent produced an additional expert, Mr Swan, who stated that a more fastidious system of roadside vegetation should have been in place. The trial judge commented on this evidence: "14. For the plaintiff, expert evidence was adduced in support of the proposition that some more elaborate and focussed plan of management of roadside vegetation should have been in place. This evidence came from Mr Swan, who has had great experience in local government administration, as shire and city engineer and town planner. Mr Swan considered it "part of the normal risk management strategy of council to assess and manage [the] risk" of "trees falling across roads". He referred to rural councils as having remnants left of native vegetation which is certainly prone to dying trees from time to time which would be uprooted by wind storms or rain storms. He said he himself, as City Engineer, had been involved in an audit at Queanbeyan which started at the centre and moved out "to ascertain the number of trees and state of those trees" alongside roads. He advocated a programme of roadside vegetation maintenance and he referred to having himself, as a council employee, removed "dead" or "dangerous" trees, but he conceded a programme, other than the audit at Queanbeyan, had not been instituted. But he confirmed the practicality and minimal cost of an instruction to the person in charge of road maintenance to report any possibly dangerous roadside tree. I accept Mr Swan's evidence." 28 The appellant argued that trees were far too extensive in the Shire to allow any such system as Mr Swan advocated, given the financial constraints. Moreover, this was when no Council in New South Wales carried out the system of roadside vegetation maintenance that Mr Swan was advocating. Quoting from the appellant's written submissions: "28 …the inspection of trees in road reserves was unreasonable given the number of kilometres of road in the Shire, the preponderance of trees and vegetation in the road reserves, the rural nature of the Shire generally, and Alison Road not being a road within the immediate township of Dungog so as to warrant more consideration than any other rural road in the Shire… 40. …The formulation [of the supposed duty of care by the trial judge] should also have had regard to the entire roadway network of the Shire and the number, type and variety of trees within the roadway reserve where on the evidence most of the trees within the appellant's control are to be found in the various road reserves which cover a distance of 760 kilometres (BlackAB392). One road, Bingleburra Road was estimated to have thousands of trees lining it (BlackAB662). The appellant's area also included areas bounded by National Parks and Forests (RedAB33N). 43. …The evidence of Mr Swan, the local government engineering expert called by the respondent, established no Council in New South Wales carried out the system of road side vegetation maintenance that he advocated (Red AB40L-X) (Black AB -682R). Even when he was City Engineer at Queanbeyan Shire Council he had done no more than conduct an audit (Black AB - 684D). 57. …The trial judge did not give sufficient weight to the evidence of the financial constraints in implementing a system of inspection of trees in road reserves. That evidence was available (exhibits 39-42; Michael Gray's evidence that the appellant did not have sufficient resources to engage an arborist -BB664; the cost of an arborist to assess each tree was approximately $1,200 per day-Mr Mey's evidence: BB314)." 29 The trial judge stated in relation to economic considerations that: "17. …In the present case, no detailed evidence was led to suggest the measures discussed earlier in these reasons were financially impracticable, although the proposition was asserted in broad terms. Mr Swan persuasively rejected it, at least so far as a system utilising the supervisors is concerned. Cf South Sydney Council v Walsh [2003] NSWCA 102 at [21]-[23]." 30 The appellant responded to the finding of the trial judge that there was no evidence put forward outlining the financial constraints of such a system: "62. …The appellant's budget did not permit a program of routine or systematic inspection of trees within the road reserves in its local road network (Blue AB- Exhibits 39-42). The rejection by the trial judge of the sufficiency of the appellant's evidence in this regard was in error (Red AB44 T-45B). There was ample evidence in the exhibits before his Honour to find the appellant could not afford to implement a system costing $1,200.00 per day (to have external expertise inspect sick trees) nor did it have the manpower available to deploy in the execution of the work of identifying and removing sick trees."

[17]

The nature of the storm 32 At trial the appellant contended the severity of the storm and its possible consequences were not such as to make it reasonably foreseeable that the tree with which the Plaintiff collided, even if not completely healthy, might be uprooted and thrown onto the roadway. The appellant emphasised the significance of the fact, itself not controverted, that the storm was extremely severe and one of the worst on record in the Shire: "36. …The risk was not of a tree falling upon the road but a tree which fell during a particularly violent storm. The winds recorded at Williamtown, the closest Bureau of Meteorology Station, recorded winds of up to 56 knots or 146 kilometres per hour (Blue AB -720,723-725,728 ). The unequivocal evidence of the appellant's witnesses and Mr Flannery, most of whom have lived in the Shire all their life, was that the storm was severe and, according to some, the worst they had ever experienced (Black AB Turner 378O; Wade-448S; Hancock - 508C-F; Flannery - 543T; Cox - 622G; Gray - 653C; Thornton - 704T; Atkins - 742X). 64. …Of significance is the fact that the storm which occurred in 1996 which was severe but less severe than the storm on 23 June 1998, did not cause the tree to fall over." 33 The respondent also referred to evidence about how local storms uprooted trees in the area. That evidence was however something of a two-edged sword. On the one hand it could point to a severely debilitated tree like this one being vulnerable. But on the other, it showed how perfectly healthy trees were at risk, given the severity of the winds, including in particular the larger trees with thicker canopies. "16. Most of the evidence concerning storms in Dungog came from the defendant's witnesses in cross-examination. Mr Michael Gray, assistant engineer for the Shire, recalled that during his periods of time with the Shire, there were other storms that had knocked trees down (T654W). … Mr Gray agreed that prior to the storm in question, it was well known to the Shire that if there was a storm, there was going to be some trees that would come down (T659R). 17. The work supervisor, Mr Rodney Wade, remembered the 1996 storm which caused trees to fall over the road (T456B) and resulted in newspaper reports and discussion among Shire workers (T456G-N). 18. Mr Garry Hancock recalled the 1996 storm in which trees were uprooted (T535W). He also remembered other occasions where storms in the area had uprooted trees onto roads, apart from 1996 and 1998 (T536P). 19. Mr Ronald James Turner, work supervisor of the Shire, did not specifically recall a storm in November 1996 (19 months prior to the storm in question - Black Book 2 of 3 T403L), but agreed that there had been storms from time to time which had caused trees to fall. 20. Mr William Thornton, plant operator with the Shire and volunteer member of the State Emergency Service for 18 years, had tarped roofs (covered them with tarpaulin) during storms and had cleared Shire roads of trees on many occasions (T708H-N and R). Dungog gets big storms (T708U-W) every 12 months (T709I). Trees had fallen on buildings (T709K) but dealing with trees across roads was the thing he had done most often (T709P). Most of the damage was by trees being blown over in the wind and not by lightening strike which tended to shatter the tree into splinters (T712K-Q). 21. Mr Stephen Hitchins, currently operations engineer at Dungog Shire Council, could not remember the 1996 storm specifically, but recalled a number of storms before June 1998, some of which had brought down trees (T753P-V). 22. There was ample evidence to conclude that Dungog was prone to windstorms, trees were uprooted by the windstorms and that trees over the road were the main problem for the Shire during storms (Wade T458N). 23. There was some evidence of an impression by workers that the 1998 storm was worse than other storms (Hancock T535U, but see Cox T622H), but the defendant did not endeavour to prove that the character or strength of this storm was so different from the history of windstorms in the Dungog area as to represent a different risk from the storm risk that was already understood. This storm and the previous storms all caused trees to fall across the road. 34 I pause to make these comments. The evidence indicated that it tended to be the larger trees with thicker canopies that were up-rooted in a storm; Black, T, 399.49-.57. That suggests that a thinly crowned canopy, as this tree, should prima facie be less, not more, vulnerable to being up-rooted in such a storm than trees with a larger canopy, subject to the significance of ring-barking or scarring of this tree. Of course we know this tree was up-rooted. But that fact does not confer a res ipsa loquitur character to that result. One should not discount the significance of the fact that the up-rooting occurred in an exceptionally severe storm. Moreover, what is here relevant is not ex post facto knowledge, but what a Council employee passing by, or operating under the system advocated by Mr Swan were that feasible, would derive from his or her pre-storm impression of this tree. That is in order to ascertain whether, on the evidence for scarring, and concerning the impoverished canopy, there was in truth an obvious danger of collapse, as the trial judge concluded (at [8]), or whether there was no sufficient basis for such an inference. 35 In order so to conclude, the trial judge necessarily had to prefer the expert evidence of Mr Meys to that of the respondent's expert Mr Pittendrigh. This he did. The trial judge appears to set aside the conclusion of Mr Meys, that such a tree "was not necessarily structurally weak", by pointing to the fact of its collapse from weakened roots. But what was missing from the respondent, who bore the onus, and in particular from its expert, was any evidence as to the following: given the frequency and severity of windstorms in the area, what proportion of trees like this one (that is, exhibiting the scarring and depleted canopy of this tree) would be likely to collapse in such a storm and moreover show obvious signs of that likelihood? To that question should be added, what was the likely number of roadside trees in the Shire bearing comparable signs of scarring or ring-barking, and of depleted canopy? Could they be identified under a feasible system and at an affordable cost? And finally, given it was the larger trees with thicker canopies which according to Mr Turner were the most vulnerable to collapse, how was that to be reconciled with the trial judge's finding that it was the trees with depleted canopy and scarring which should be the primary target for identification and removal? Was it scarring that made the difference? To what degree? These questions were not the subject of any evidence or real attempt to answer by the respondent, as I explain.

[18]

Contributory Negligence 36 The appellant produced evidence in court of other cars that were present on the road being able to stop in time, before hitting the tree. The appellant produced a statement by Mr Flannery that said that he: "considered the speed of the vehicle was inappropriate for the prevailing weather conditions". 37 The appellant included in its submissions that: "68. The weather conditions were severe, and the vehicles in which Mr Flannery and the Haigh family were travelling, were able to stop in time. This was sufficient to find some negligence on the part of the respondent." 38 The respondent's submissions discussed the evidence relating to any contributory negligence on behalf of the respondent at the time of the accident: "42. The tree in question was hard to see when wet and was a similar colour to bitumen (Gray, Black Book 3 of 3 T655T, T656B-D). There was a storm in process at the time. The plaintiff would not have had the same expectation of trees on the road as would Mr Flannery or Shire workers who were receiving reports of trees on the road, were seeking them out and clearing them. 43. The Judge rejected Mr Flannery's unconvincing suggestion of excessive speed (Flannery Black Book T569T-570N). 44. The defendant also points to evidence that the Haigh family who passed a truck moments before reaching the fallen tree were also able to stop in time. Sharon Haigh, however, said that as they passed the truck, each vehicle moved slightly off the road (Black Book 1 of 3 T95Q). The tree appeared 5 or less seconds later (Black Book 1 of 3 T98V). The driver of the Haigh vehicle had to brake quickly (T98S) because the tree was difficult to see (T98H). Sharon Haigh thought that their car had been doing 80 kilometres (T94G), but at the time their vehicle passed the truck, Sharon Haigh's father, Phillip Haigh, thought that their car was only doing 40 or 50 kilometres per hour (Black Book 1 of 3 T243Y). His evidence on time taken then to reach the tree was unreliable (5 minutes - longer than the entire trip would have taken along Alison Road), but he said that the tree was difficult to see, "because it's a grey gum and it was wet and blended in with the colour of the road basically" (T245E)." 39 The trial judge found that there was insufficient evidence to found the claim for contributory negligence. So far as the allegation of excessive speed was concerned, I consider that the trial judge's rejection of it was a finding well open to him for the reasons he gave.

[19]

THE CROSS APPEAL 40 The cross-appeal asserts a further basis for the Council to be liable. It would not need to be determined at all if the appeal against liability fails. The additional ground of liability so alleged, was that an employee or employees of the defendant had seen the fallen tree shortly prior to the collision and left the scene without taking any steps to eliminate the danger, or give warning of it. The trial judge did not have to deliberate on this question having found for the appellants on the first two breaches alleged, namely ad hoc breach and lack of system breach. However he did add this: "20 The evidence for the plaintiff is that of three persons, a Mr Haigh and his two daughters [Sharyn and Kirraley], who were in a car on Alison Road, earlier that evening, when it is alleged a road maintenance truck belonging to the council passed their car travelling in the opposite direction. If their account is correct, and the truck was one of the defendant's trucks, its driver must almost certainly have seen the tree lying across the road and neglected to do anything about it. But identification of a truck in the moment of its passing, at night, would have been difficult. Furthermore, the description by which it was identified as belonging to the Council was challenged, although not wholly convincingly; no council worker has acknowledged being on Alison Road at the relevant time; and most of those who could possibly have been there have given evidence denying their presence. The major problem about accepting the evidence on which the plaintiff relies is that an electricity authority vehicle was on Alison Road shortly before the collision, according to its driver, Mr Flannery, whose evidence is in serious conflict with the evidence of Mr Haigh and his daughters. No precise reconciliation is possible, but the most likely explanation seems to me to be a confusion about times, and that it was the electricity authority vehicle that was observed leaving what was later the scene of the collision. Of course, if that was so, serious moral blame might well be placed on Mr Flannery, a mature man who said he almost collided with the tree himself ("It was very dark in its trunk and I nearly ran into it"), but the electricity authority was not under the legal duty of the defendant in respect of the road, and in any case it has not been sued. A feeling of discomfort concerning his failure to do anything about the danger, although he was accompanied by an apprentice and had a torch, may be, however, relevant as explaining the otherwise almost inexplicable attitude of Mr Flannery, who has actively sought to persuade some council employees of his view that the plaintiff's case is unmeritorious, and ignored all requests from the plaintiff's solicitors to provide a statement which he was quite prepared to make for the defendant. But such an explanation is consistent, rather than inconsistent, with the conclusion that it was his vehicle, and not a council vehicle, that Mr Haigh and his daughters saw. On the whole, although with some doubt, I find accordingly." 41 The cross-appellant/respondent argued that this finding was unreasonable on the evidence because inter alia, Mr Flannery was driving a vehicle completely different to the vehicle described by the witnesses in their evidence. 42 The cross-appellant sets out the following version of the facts, according to the three witnesses (Mr Phillip Haigh and his two daughters) who gave evidence that they saw a council truck on Alison Road after the tree came down: "9. In the evening of 23 June 1998, a storm hit the Dungog area (Red 34F). It was severe enough to cause damage to buildings and blow down numerous trees (Red 33M-Q). 10. Phillip Haigh, his wife, his daughters Sharyn and Kirraley Haigh, and Kirraley's boyfriend Damien Wade were gathered at Phillip Haigh's home at 59 Lord Street Dungog for dinner (Black 1:91F-H, 239L-U). 11. The storm had caused a blackout at the Haigh residence (Black 1:91D, 239M). As a result, Phillip Haigh, Sharyn Haigh, Kirraley Haigh, and Damien Wade decided to take a drive around the local area to see what damage the storm had caused (Black 1:91L, 239W, 240L, 2:336H-I). Mrs Haigh remained at home. 12. Sharyn Haigh gave evidence that they left the house at about 8.15pm (Black 1:92S). 13. The storm had abated, but it was raining (light drizzle) when the group went out (Black 1:93Z, 111S-T, 112E-L, 240D, 251V, 264N, 2:336B). 14. Mr Wade drove the group in Mr Haigh's vehicle (Black 1:91O). 15. The group drove around the Dungog township, and then out of Dungog, eventually turning into Alison Road (Black 1:92T-Y). It was intended to drive along Alison Road, turning left into Pinebrush Road, and returning to Dungog on Clarencetown Road (Black 1:111Q, 112Q-113C). 16. Mr Haigh's vehicle, was passed by a vehicle travelling in the opposite direction, shortly after turning into Alison Road (Black 1:94O, 241V, 2:336T). 17. This vehicle was a white single cab truck with a silver tray. The truck had "lollipop" stop/go signs protruding over the top of the cabin. (See paragraphs 39 to 41 below for transcript references) 18. This was the only other vehicle the Haighs and Mr Wade saw on their journey (Black 1:94O-Q, 241V, 2:336T-U). 19. A short time after passing the truck (five seconds or less) the group came across a tree that blocked Alison Road (Black 1:97X-98B). 20. The tree was difficult to see because it was wet and the colour of the bark blended in with the road (Black 1:98H, 245F, 2:341C). 21. The tree blocked Alison Road prior to the intersection with Marshdale Road. (Black 1:116H, Ex 7 Blue 3:602, Black 1:244Q, Ex 10 Blue 3:609, Black 2:372A, Ex 15 Blue 3:621). 22. Mr Wade made a U-turn and drove back into Dungog (Black 1:99S, 245N). 23. The group did not see the truck again (Black 1:99V-X, 245Q, 2:341G). 24. Sharyn Haigh gave evidence that they returned to Dungog at about 8.45pm (Black 1:131U). 25. On returning to Dungog, the group stopped to talk to William Flannery, a Northpower employee who was known to Mr Haigh, as a former work colleague (Black 1:245W). Mr Flannery was attending to the repair of damage to electrical infrastructure caused by the storm. (Black1:100V-103V, 245N, 246E-H; 2:544D) 26. Mr Flannery was with his apprentice Daniel White (Black 1:246D, 3:586F) 27. Mr Flannery was driving a Mitsubishi L300 four-wheel drive van (Black 1:261V-Y, 3:615G). It was described as having a door on the drivers side, a door and a sliding door on the passenger side. It was prominently marked with lettering to indicate that it was a Northpower vehicle. (Black 3-615G-H) 28. Mr Flannery was working on a power pole on Clarencetown Road, near the intersection of Mary Street, adjacent to Berry's Service Station. (Black 1:132R, 2:543K-M) 29. After speaking to Mr Flannery, for up to five (5) minutes, the group returned home to 59 Lord Street Dungog (Black 1:132M-U). 30. When Mr Flannery finished his work at the site adjacent to Berry's Service Station he proceeded to other jobs (Black 2:544K-T) 31. Later that night Mr Flannery drove his vehicle north on Alison Road towards Dungog (Black 2:546S). 32. Mr Flannery's passage was blocked by a tree across the road north of the intersection of the intersection with Marshdale Road (Black 2:545Q-T) 33. Mr Flannery almost crashed into the tree as it was difficult to see. (Black 2:545R) 34. Mr Flannery drove around the butt of the fallen tree (Black 2:546A-L). Shortly thereafter he saw a small sedan travelling south on Alison Road towards the tree (Black 2:546U-X). He believed that this was the respondent's vehicle (Black 2:548Q, 568W). 35. The respondent drove her vehicle south on Alison Road, near Dungog, a short time after 10.30pm (Black 1:24R). At this time the storm was raging (Red 34J). 36. About 2.7 kilometres along Alison Road (6 or 7 kilometres from Dungog) the Plaintiff collided with a tree trunk and suffered severe injuries (Ex 36 Blue 3:716; Black 3:746). 43 Each of three witnesses was said to have identified the truck as belonging to the appellant Council: "39. Sharyn Haigh identified the truck by reason of the following observations: · it was white (Black 1:95W); · it had a silver tray (Black 1:131 Q-T); · it was a single cabin truck (Black 1:95Y, 123S); · it had "lollipop" signs visible over the top of the cabin (Black 1:95C, 96E-K); · she recognised the Dungog Shire emblem on the drivers door as it passed (Black 1:96N-P, 96V-97K); · she had seen Council trucks around town from time to time (Black 1:97A-G). 40. Phillip Haigh identified the truck by reason of the following observations: · it had red and green "paddlepop" stop/go signs and other equipment sticking up off the back of the vehicle (Black 1:242C, 242S); · he thought it was a Mitsubishi Canter similar to the vehicles used by Northpower (Black 1:249I-K); · it was white (Black 1:249E); · it was a single cab (Black 1:249H); · it was a short wheelbase vehicle with a single cab and a tray on the back (Black 1:260L); · both Sharyn and Damien Wade identified it to him in their conversation as a shire vehicle (Black 1:243O). 41. Kirraley Haigh identified the truck by reason of the following observations: · it was white (Black 2:338B); · it had a cab and a trailer part (Black 2:347O, 351I); · it had "lollipop" signs sticking up above the cab (Black 2:362N); · it had roadworks signs in the tray (Black 2:346D); · it had the shire's sticker on the driver's door (Black 2:338N-Q); · she had seen the sticker on other Council vehicles around town (Black 2:338X)." 44 The cross-appellant argued that the trial judge's finding that Mr Flannery's vehicle fitted the general description of the vehicle seen by the Haigh family (and thus was an electricity authority vehicle and not a Council vehicle) was in direct conflict with the evidence: "61. Firstly, his Honour's finding is based on the assumption that Mr Flannery's vehicle fitted the general description of the vehicle seen by the Haigh family at the relevant time. However this was in direct conflict with the evidence: · the Haighs described the vehicle as a single cabin truck with a silver tray (see references to paragraphs 39-41 above); · Mr Flannery's vehicle was a van, with a door on the driver's side, a door and a sliding door on the passenger side (see references to paragraph 27 above); · Mr Flannery's vehicle could not have had the "lollipop" signs displayed in the fashion described consistently by each member of the Haigh family; · His Honour put the proposition to Phillip Haigh in evidence that he could not have mistaken the truck for a van; this was accepted by the witness (Black 1:262A-B). If his Honour rejected Mr Haigh's evidence on this point that it is not apparent from the judgment and he did not give reasons for so doing. 62. Secondly, Sharyn Haigh gave evidence of being familiar with Northpower vehicles as a result of her father being employed by Northpower (Black 1:100D-S). Her description of the markings on the vehicle was inconsistent with it being a Northpower vehicle. Evidence was given by Mr Flannery to the effect that the markings on the Northpower vehicle were prominent. He described them as "large lettering basically all over the vehicle". (Black 3:615M). 63. Thirdly, each member of the Haigh family gave consistent evidence that they only saw one other vehicle on the road at the relevant time. If his Honour's finding was correct then the Haighs would have also seen the respondent's vehicle prior to the collision (see references to paragraph 18). 64. Fourthly, the evidence relating to the timing of the Haigh's journey is inconsistent with his Honour's finding. In this respect the relevant evidence was: · the Haighs vehicle stopped to have a conversation with Mr Flannery and/or his apprentice when Mr Flannery was engaged in work on a transformer at Clarencetown Road near Berry's Service Station in the town of Dungog, all witnesses agreed this occurred (see references to paragraphs 25 to 29 above); · the Haighs gave evidence that this conversation with Mr Flannery took place at a point in time after they had seen the tree across Alison Road (see references to paragraph 25 above); · Mr Flannery's diary entries were tendered in evidence in respect of his whereabouts on the night in question (Ex 28 Blue 3:691). Mr Flannery gave evidence that he was required by his employer to make a time log of certain tasks he undertook in the course of his duties involving interruptions to high voltage power (Black 2:542O); · a note was made, by Mr Flannery's apprentice to the effect that at about 8:50pm on the night Mr Flannery replaced a fuse at the site where he had been working at Berry's Service Station (Ex 28 Blue 3:691); · Sharyn Haigh gave evidence that she thought the group had returned to Dungog at about 8.45pm (Black 1:131U); · Sharyn Haigh gave evidence that the group went home after their meeting with Mr Flannery (Black 1:132M); · Mr Flannery did not come across the tree until some time after 10.10pm (Black 2:557J); · the respondent collided with the tree sometime after 10.30pm (Black 1:24, Red 34J). 45 The cross-respondent in response summarised the evidence of Mr Flannery in its submissions: "11. Mr Flannery said he drove south along Alison Road to the Dillon's property which necessitated him passing the point where the Plaintiff's collision occurred, and returned to Dungog on the same road travelling north when he came upon the fallen tree outside Bill Kelly's property [Black AB 545R] sometime after 10:30pm [Black AB 547H] and, after driving around the tree, he passed a small sedan [Black AB 546 X]. That tree is in the location where the accident occurred [exhibit 5- Blue AB 521P; exhibit 10- Blue AB 610]. 12. The effect of the acceptance of Mr Flannery's evidence is that the time at which the Haighs said they were on Alison Road (about 8:30pm - Black AB104.45 & 110.55) is wrong and they came across the tree sometime after 10:30pm." 46 The cross-respondent pointed out a number of difficulties in the evidence of the Haighs, especially the identification by the younger witnesses of the council emblem: "15. The Cross appellant relied upon the evidence of Mr Phillip Haigh, his daughter, Sharon Haigh, and younger daughter, Kirralee Haigh, to prove that a Council vehicle was travelling in a northerly direction (away from where there was "the" purported fallen tree) while they were travelling in a southerly direction along Alison Road. 16. None of the three Haighs give similar evidence about the time of their trip or journey along Alison Road. 17. Significantly, only Kirralee and Sharon Haigh purported to see the Council emblem on the door of the vehicle which passed the vehicle in which they were travelling. 18. Mr Phillip Haigh, a Northpower employee, who was most familiar with different kinds of vehicles and identified them correctly in his evidence (Black AB 260.45 - 261.20) thought the truck they passed was a Mitsubishi Canter operated by Northpower [Black AB 242E; 259.55]. It was only when he said it was a Northpower vehicle, and others in the car said it was a "shire vehicle" that Mr Haigh accepted that it was a shire vehicle [Black AB243.R]. 19. Accordingly, the Cross appellant's case that the truck was a Council truck depended on the reliability of the evidence of Kirralee Haigh and Sharon Haigh. 20. Their evidence was unreliable (and insufficient to support a finding that the vehicle which they passed was a council vehicle) for the following reasons: (i) Contrary to their evidence that they saw a Council emblem on the truck which passed them, none of the Council vehicles on the road that night (see Ex 16 Blue AB 623) had a Council emblem on its door; (ii) The Council vehicle containing Messrs Wade and Hancock certainly did not (Ex 20 Blue AB 671); (iii) The Council truck driven by Messrs Wade and Hancock did not meet the description given of the offending vehicle (which was described by Mr Phillip Haigh as a Mitsubishi Canter [Black AB 242E] with one door on each side, a single cabin with a snub nosed front - consistent with the general description given by Kiralee Haigh [Black AB 337.55] and Sharon Haigh - [Black AB95.55; 96.10; 131.30;131.35; 131.40]).; (iv) Sharon and Kirralee did not have an adequate opportunity to see the nature of the emblem (see subheading below); (v) The Council workers who were on duty that night explained where they were on the night and, except Messrs Wade and Hancock, did not travel along Alison Road (see subheading below); (vi) Messrs Wade and Hancock travelled on Alison Road before the tree fell after 10:10pm and before the Haighs must have travelled south along the road (see sub heading below).; (vii) The tree did not fall until after 10:10pm" 47 The cross-respondent submitted that Kirralee and Sharon Haigh did not really recognise a council emblem on the side of the truck pointing to further difficulties in their identification of the vehicle as a Council truck: "21. Sharon Haigh said the vehicle she was in (Damien Wade driving, travelling at 80kms per hour) [Black AB 94C] and the vehicle they passed was "going slower". Sharon first saw the other vehicle when it was "a couple of metres" in front of her vehicle (Black AB 95 N). 22. At that point in time she was looking down but then looked up [Black AB 95O]. She did not turn her head to look at the vehicle as it passed the car (Black AB 122 N). She merely glanced at it (Black AB 125 S). 23. The other vehicle was travelling slower than her vehicle, at between 60 and 70kms per hour (Black AB 121.20). The closing speed therefore of both vehicle was between 140 and 150kms per hour. 24. Sharon Haigh said she noticed the emblem on the truck when it passed the passenger side window (Black AB 122 T). She did not see the emblem at any point in time before the truck passed the window (Black AB 123C). Ms Sharon Haigh agreed it would have been less than a second for the truck to pass her vehicle (Black AB 123F). 25. The truck was higher off the roadway then her vehicle (Black AB 125K). 26. Sharon Haigh was clinging to the belief she had on the night that it was a Council truck (Black AB 126 C) when she agreed she had only an impression that it may have been a Council truck (Black AB 126F). 27. She could not recall the design of the emblem or any writing on it (Black AB 127 P). 28. Kirralee said Damien was driving, Kirralee was sitting behind him in the back, her father was sitting in the front passenger seat and Sharon was seated behind her father - Black AB 335 R. This contradicts the evidence of Sharon and corroborates her father's evidence. This means Sharon would have had to look past Kirralee to glance at the truck. 29. Kirralee said when asked if she knew what was on the sticker she said "I do now, yes"( Black AB 339 B). This indicates the witness has reconstructed what she saw on the night by reference to what she had seen on the Council stickers afterwards (on a Rates notice which she said she received). 30. Kirralee said she turned around to see the tail lights of the vehicle which "made it more clear that it was definitely a Council truck" (Black AB 339X). The witness resiled from this cross examination saying that she meant to say that it didn't make it clear that it was a Council truck because "I'd seen the Council sticker on the door before I'd seen the tail lights" (Black AB 345Q). 31. Kirralee said, in answer to a question about how far the other vehicle was from her body that "gosh it was passing me so I sort of just turned around quickly and I couldn't tell you how far in metres sorry" (Black AB 349.50). 48 The cross-respondent referred to the uncontradicted evidence supported by Council time sheets, that the Council employees who worked on the night were all accounted for elsewhere and therefore could not have been driving down Alison Road at the time suggested by the Haighs: "32. The Council has proved, by reference to the time sheets of council employees for the period ended 28 June 1998 (Exhibit 17 - Blue AB 631 to 662) that every council officer or employee who recorded or submitted his time for payment on the night of the storm did not travel upon Alison Road (with the exception of Messrs Hancock and Wade). 33. Contrary to the Submissions made by the Cross appellant no occasion for the drawing of an inference based on the decision in Jones v. Dunkel (1959) 101 CLR 298 arises. (cf para 55 of Cross appellant's Submissions) 34. None of those Council employees, except Messrs Wade and Hancock, had the opportunity or reason to drive along Alison Road that night (Ron Turner T385.15; 388.35; 390.5-.25; Exhibit 21 - Blue AB 672; Kevin Cox -Black AB 620-628R ; William Thornton Black AB 697 - 707D; Kevin Atkins Black AB 729-735L; Bruce Studdert - Black AB 639M)." 49 The cross-respondent produced two witnesses who gave further telling evidence against the possibility of a council truck being in the area of the accident at the time of night identified by the Haighs. These two witnesses, Gary Hancock and Rodney Wade, would have been the drivers responsible for any breach by the Council in failing to remove or warn about the fallen tree but they were out before the tree fell according to that evidence. A fair summary of that evidence, taken from the cross-respondent's submissions, is set out below: "35. Messrs Gary Hancock and Rodney Wade left the council depot in Dungog to drive to the Dillon's property to remove a fallen tree outside that property. They left the depot at approximately 6:15pm and arrived at the Dillon's property at around 6:30pm where they came upon Messrs Dillon and Farley removing the tree outside the Dillon's property (Black AB 446.5-Wade; 510.25-Hancock). 36. They then turned around and drove back to Dungog. Assuming the time take to drive back to Dungog was approximately the same as the drive from Dungog to the Dillon's property, they would have arrived back in Dungog at approximately 6:45pm. 37. To find that Messrs Wade and Hancock's truck was the truck seen by the Haighs (at some point in time after 8:15pm), the evidence of Messrs Flannery, Wade and Hancock would have to be rejected. 38. Implicit in that rejection is acceptance of the propositions that, (i) despite being sent out to remove a tree from Alison Road, Messrs Wade and Hancock encountered the tree with which the Plaintiff later collided, and (ii) that, rather than remove it or leave any signs upon it, although they were supplied with the equipment and had been sent to the road for that very purpose, they then decided to drive around the tree. Such a challenge was not made. Messrs Hancock and Wade's return trip back into Dungog occurred about 6:45pm. 39. According to Mr Flannery he saw the Haigh's car when he was working at Berry's service station at about 8:50 pm according to the diary entry (Exhibit 28 Blue AB 691). This accords with Sharon Haigh's evidence as to when they left the house - ie at about 8:15pm (Black AB 92.45). This leads to the conclusion that the vehicle the Haighs passed was not Hancock and Wade's vehicle which was not on Alison Road after 6:45 pm. 40. Mr Wade said he left the council depot at 6:15pm (Black AB 445Q) and arrived at the Dillon property at about 6:30pm (Black AB 445 R). After discovering the tree had been cut off the road by Messrs Dillon and Farley (Black AB 446), he and Mr Hancock, who was driving as he had a Class 3 licence which Mr Wade did not have, drove back to the depot. 41. He and Mr Hancock upon arriving back in Dungog went to Eloiza Street behind the showground where they met with Ron Turner who gave them directions to go to Bingleburra Road (Black AB 447.45) where they removed a tree in front of Mr Martin Thorpe's property. They arrived at Bingleburra Road at about 6:45pm or 7:00pm (Black AB 448.15). They remained on that road for at least an hour and a half (Black AB 448.30). 42.`Mr Gary Hancock, the driver of the truck, said that Ron Turner asked he and Rodney Wade to attend to a tree which was down on Alison Road near Peter Dillon's property (Black AB 509.45). 43. Peter Dillon's property is approximately 800 metres to 1km past the intersection of Marshdale and Alison Roads (Black AB 510 B). He said they left the council depot at about 6:20pm (Black AB 510.10). They met Peter Dillon and another chap who owned the property next door at the location where the latter two had cut the tree off the road and they "more or less turned around and came back the way we went" (Black AB 510.25). 44. They did not see any other trees on the road whatsoever (Black AB 510.45). 45. He said he and Rodney Wade then went to Eloiza Street behind the showground to attend to a couple of trees across the road (Black AB 511.40). 46. Assuming it took approximately 15 minutes to drive out to Peter Dillon's property from Dungog, it would have taken a similar amount of time to turn around and drive back to Dungog. That half hour trip is estimated to have occurred from 6:20pm when he estimates they left the depot, they would have returned to Dungog by about 6:50pm. This roughly coincides with Mr Wade's estimate of their time of return to Dungog. 47. At this time, the tree had not fallen. 48. Mr Hancock marked where the tree outside the Dillon's property was located in relation to the road (Exhibit 26 - Blue AB 687). Mr Wade marked a similar position for the tree outside the Dillon's property (Exhibit 24 - Blue AB 682). 49. In any event, the vehicle which they were driving did not have a Council emblem on its drivers side door (Ex 20 Blue AB 671). Furthermore, it was a two door vehicle and did not meet the description of the "offending vehicle" identified by the Haighs." 50 The cross-respondent further undermined the evidence of the cross-appellant's witnesses by evidence indicating that the tree was not on the road when the Haighs travelled south down Alison Road, but fell after 10.10 pm, by reference to the evidence of Mr Flannery: "50. The tree with which the cross-appellant collided was not on the road when the Haighs travelled south down Alison Road. This flows from the acceptance of the evidence of Mr Flannery. 51. Mr Flannery's evidence was that he had driven south along Alison Road past Mr Kelly's property with which he was familiar. The tree with which the plaintiff collided was located adjacent to Mr Kelly's property (Exhibit 27 - Blue AB 689). He then drove past the Dillon's property, where he noticed a tree had been cut from the road. He was then prevented from travelling further along Alison Road in a southerly direction [(Black AB 544.45)(Exhibit 27 Blue AB 689)]. 52. He then returned to a point outside the Kelly's property where the tree had fallen between the time he passed it and the time of his return. Mr Flannery and his apprentice, Daniel White, drove around the tree and continued in a northerly direction into Dungog. This occurred at some point in time after 10:10pm which Mr Flannery was able to corroborate from his diary [(Exhibit 28) Blue AB 691]. The diary entries were made contemporaneously with the events listed (Black AB 555X). 53. Furthermore, the diary entries, as to when he said he was working on a telegraph pole in the Dungog town and encountered the Haighs and their car, coincides with that encounter given by the Haighs (Exhibit 28) Blue AB 691). The diary entries are exact in time so far as they relate to high voltage switch operations (Black AB 555 X). The high voltage fuse adjacent to Berry's Service Station was recorded as having occurred at 8:50pm and was accurate to within five or ten minutes (Black AB 557 C). 54. Mr Flannery recalls the Haighs travelling in a Falcon car, coming up upon him and his apprentice at Berry's Service Station ( Black AB 543.55). He then went to the substation on Stroudhill Road and was asked to attempt to close a circuit breaker that supplies power to the town (Black AB 544.25). 55. The diary reference referred to an entry "10.006610" and Mr Flannery explained the reference to "set 1 shot" and "reclosed". He noted that this work was carried out at 10:10pm. The significance being that Mr Flannery drove along Alison Road in a southerly direction after that work was completed, that is, after 10:10pm (Black AB 557.20). 56. The next entry is "opened ABS 4355" which Mr Flannery explained occurred at 11:58 which was in his handwriting and would have been taken from a time according to his watch (Black AB 557.50) which is at a location opposite Majors Creek Road. 57. Mr Flannery explained that his journey upon Alison Road occurred between 10:10pm and his recording of the work at Majors Creek Road at 11:58pm (Black AB 558.5). Mr Flannery said that he travelled south along Alison Road to investigate the report of two trees down at Farley and Berry. At Black AB 544.35 to 45, Mr Flannery said: 'We proceeded south along Alison Road to investigate the first report was that a customer by the name of Farley. We found nothing down there. His neighbour Dillon had also reported trees down in our power lines. I found nothing in our power lines there but I noted that there was a tree across the road that had a section removed and that enabled us again to head further south towards our third report, when only about half a kilometre past Mr Dillon's property we found several trees and branches across the road and they prevented us going any further.' 58. Mr Flannery gave evidence that he was forced to turn around and drive back into Dungog in a northerly direction along Alison Road and then drive out on Clarencetown Road (approximately 20 minutes after travelling down Alison) (Black AB 545.35) and upon his return: 'Adjacent to where Bill Kelly now lives, I almost crashed into a large iron bark tree that had fallen since my southward trip.' 59. That location was approximately "half a kilometre" north from the intersection (of Alison and Marshdale Roads) (Black AB 545.45). Mr Flannery gave evidence then of getting out of the vehicle, checking the long grass and the fence line to ensure there would be no damage to his vehicle to drive around the tree and he then proceeded to put his vehicle into four wheeled drive and drive off the road, over the shoulder and around the tree (Black AB 545.55). 60. The Haighs said that they came upon Northpower employees in Dungog town upon their return from their journey along Alison Road. They noticed one man was up a pole (namely William Flannery) with his offsider (namely Daniel White). This probably occurred before, rather than after, the Haighs returned from Alison Road.

[21]

RESOLUTION OF APPEAL - THE REMAINING ISSUES 52 The appellant did not contest the amount of damages awarded at first instance, leaving liability issues only. The appellant challenges the conclusion that it owed the respondent a duty of care to have taken steps to remove beforehand the tree with which the appellant collided. Accordingly the issues of liability raised on appeal can be summarised as follows: (a) Was the trial judge in error in finding that the appellant owed the respondent a duty of care (grounds 1, 2, 3 and 4)? (b) Was the trial judge in error in the way in which he determined the standard of care owed to the respondent (grounds 10, 11, 12 and 13)? (c) Was the trial judge in error in finding that the appellant was in breach of the duty of care as formulated by him (grounds 5, 6, 7, 8, 9, 14, 18 and 19)? (d) Was the evidence of Mr Meys and Mr Swan wrongfully admitted into evidence and did the trial judge wrongfully reject the evidence of the appellant's expert Mr Pittendrigh as well, when rejecting the appellant's evidence that it was financially impractical for it to put in place systems of inspection of the kind envisaged by the trial judge (grounds 15, 16 and 17)? 53 Had these proceedings been brought before the decision of the High Court in Brodie & Anor v Singleton Shire Council (2001) 206 CLR 512, a local shire council could have invoked the immunity from legal liability for negligence as roadway authority. That immunity was the result of judge-made law. Later judge-made law, Brodie, declared the position to be otherwise. The High Court in the majority judgment of Gaudron McHugh and Gummow JJ declared the common law in these terms: "The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist." 54 Earlier, at [120] and [148], the majority judgment precludes recourse to the analogy of an occupier of private land vis a vis entrants upon it. 55 The present circumstances giving rise to the claim of the respondent pre-date Brodie. It was for that reason that the appellant reserved its position upon an argument, which could only be addressed to the High Court, that the effect of Brodie should be taken to be prospective only, having regard to what was said by Callinan J in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 at [129]. 56 I proceed on the basis that the law applicable to the present circumstances is that declared in Brodie. The question therefore becomes whether Dungog Shire Council, as the roadway authority, failed to take reasonable steps by the exercise of its powers within a reasonable time to address the relevant risk. There are two underlying issues. First, would reasonable steps have revealed a latent danger that this tree would fall; either from observation in the ordinary course of road maintenance work or by way of a feasible system of inspection of roadside trees? Second, would reasonable steps have called for the removal of the tree on the basis that the latent danger from that tree would be so identified? (Judgment at [19]). 57 Brodie itself provides some guidance as to what constitutes reasonable steps in such a context. To quote again from the joint judgment (omitting footnotes) at [151]: "The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case." 58 Brodie itself was concerned with the structural capacity of a bridge within the purview of a council as a highway authority. What was said about the duty of Council to ascertain by inspection whether latent danger there existed can here be applied to inspecting for the latent danger from falling trees. What is thereby entailed by taking reasonable steps will then depend on application of the Shirt factors to the circumstances at hand. Quoting from the majority judgment at [165]: "Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them." 59 The case decided concurrently with Brodie; Ghantous v Hawkesbury City Council (supra), though concerned with a duty to construct a footpath and keep it reasonably safe for ordinary use, carries with it the salutary observation of Kirby J at [248]: "Local authorities are not insurers for the absolute safety of pedestrians or other users of roads and footpaths. To recover, a person in the position of Mrs Ghantous must establish a want of reasonable care causing his or her injuries. Her mishap was simply an accident. Her damage was not shown to be the result of negligence on the part of the respondent." 60 One of the grounds of challenge by the appellant is that the trial judge relied not only, nor primarily, upon Brodie but upon the earlier decision of Schiller v Mulgrave Shire Council (1972) 129 CLR 166. Therefore it was said that in articulating the duty and standard of care, the trial judge fell into error. That error was failing to recognise that Schiller was dealing by analogy with liability of occupier to entrant, not, as in Brodie, with the distinct liability of highway authority to road user, where considerations appropriate to a public authority are invoked, not those applicable to a private landowner. In Brodie at [148] (omitting footnotes) the majority judgment observed: "In Buckle, Dixon J had disavowed any analogy between the position of a highway authority and that of the ownership or occupation of private property. Nevertheless, as indicated above, that view of the matter did not inhibit Dixon J in Aiken in framing a duty of care analogous to that of an occupier and invitee where that which the authority "occupied" was not a highway. The formulation of the content of the duty of care in this field should not further pursue any analogy between occupation of privately owned land and the management and control by statutory bodies of lands set aside for public use and enjoyment. …" 61 In particular I accept that the present case is factually distinct from Schiller for the following reasons: (i) unlike the road reserve in the present case, the walking track to the picnic area in Schiller where injury occurred had the specific purpose known to the council, of use as a picnic area, so giving rise to a duty specific to that area and its users; (ii) the walking track would not have covered anything like the area of road reserve in the appellant's Shire (760 kilometres of local roads within the Shire: Black, 392); (iii) the walking track to the picnic area was not part of a 'road' or 'highway' within the meaning of the Roads Act 1993 (NSW); (iv) in contrast, there are thousands of trees lining just one local road, namely Bingleburra Road (Black, 662), and with many thousands more within the 760km of road reserves in the Shire. The trial judge moreover found the Shire included national parks and forests (Red, 33M). 62 The trial judge did not attribute any significance to those distinctions. He equated Dungog Council's control over Alison Road to Mulgrave Council's control in Schiller over the walking track leading to the picnic reserve. He therefore placed primary emphasis on the common feature of control rather than upon the Shirt factors equilibrating probability of risk to the resources required to alleviate or reduce that risk. Those were the factors to which the majority judgment in Brodie gives emphasis. These are important factors of practical import. They encompass the expense, difficulty and inconvenience to the authority in taking the steps to alleviate the danger and go to determine what is reasonable in that regard. The observations of Gleeson CJ, though in minority, in Graham Barclay Oysters Pty Ltd v Ryan (2002) 71 ALJR 183 (at [6]) are in point: "… decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political". He emphasised that "if the reasonableness of such priorities is a justiciable issue, that can be so only within limits" (at [7]). 63 The trial judge here sets those limits so as to impose what he considered a reasonable burden on the council and its country-bred employees. The appellant sets out to demonstrate that the burden imposed was far greater than reasonable judged by reference to the Shirt factors and the evidence bearing upon them. 64 In dealing with that evidence I put aside the notion that the duty of the highway authority is analogous to the duty of an occupier in relation to land set aside for recreational public use. I conclude that the evidence in the present case should indeed have led the trial judge to conclude that the "danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures", when that danger or risk is properly understood. 65 Here the danger or risk of a tree falling upon the road and causing injury could never be eliminated, more especially with the prevalence of windstorms. No council could practicably inspect 760 kilometres of local roads within the Shire nor even roads like Alison in relative proximity of the township of Dungog, in order to identify every tree that might fall upon the road. However, the trial judge concluded (at [19]) that here the risk which did come home was of a tree that road-workers employed by the council, particularly the supervisor, "must have seen, close to the road, and showing obvious signs that its stability was compromised, at various times when they must have passed along Alison Road so near to Dungog carrying out road maintenance work during a period of years". The appellant attacks that factual conclusion as not supported by the evidence. 66 First the appellant emphasises that the tree fell during an especially violent windstorm. The winds recorded at Williamtown, the closest Bureau of Meteorology Station, recorded at up to 56 knots or 146 kilometres per hour (Blue, 720, 723-5, 728). The unequivocal evidence of the appellant's witnesses and of Mr Flannery from the Electricity Authority, most of whom had lived in the Shire all their life, was that the storm was severe and according to some, the worst they had ever experienced; see Black, Turner 378, Wade 448, Hancock 508, Flannery 543, Cox 622, Gray 653, Thornton 704, and Atkins 742. 67 Moreover, this tree, in poor health since 1993 according to the respondent's own expert Mr Meys, had nonetheless survived the 1996 windstorm, severe as it was. That would hardly put Council employees on notice of any danger of collapse in a comparable windstorm in 1998. 68 The question is whether this was nonetheless, as the trial judge found, an "obviously" vulnerable tree; that is to say, obvious to these country-bred Council employees and in particular the supervisors. What was the evidence on this? The supervisors who were identified were Messrs Turner and Cox. It was never put to either of those witnesses that they should have noticed, inspected and removed the tree. The trial judge accepted their denial that they travelled on Alison Road on the night of the respondent's accident (Red, 46). But it was never put squarely to them that they should have noticed the vulnerability of that tree at some earlier point of time. 69 Nor were Messrs Cox and Turner asked if they could have identified the tree without guidance. They were never asked whether they even had opportunity to do so before the accident. Nor was there any evidence to support the proposition that if the supervisors had been instructed to look for unhealthy trees, this tree would have been identified, either with or without "the minimal guidance" by way of "expert advice" to which the trial judge referred (at [13]). The relevant time to which such questions should have been directed was of course before the respondent's accident. 70 The evidence discloses 287 kilometres of sealed rural roads within the Shire (Blue, 822) out of 760 kilometres of local roads altogether. That suffices to give a picture of the scale of the task. 71 Mr Gray, the Council employee employed as Assistant Manager of Engineering, gave evidence that the scale of the task of identifying and removing trees at risk of falling, was well beyond the resources of a small council like Dungog (Black, 664.4) and that "even if a slow rate there wouldn't have been the staffing resources or experience to do that sort of task" (Black, 664.7). 72 When it was suggested that one arborist could drive down a road and mark the trees that were thought to represent a safety risk in a storm, Mr Gray conceded that this was possible. But importantly he added the caveat "again within the resources available with the council. It all costs money" (Black, 664.20). He readily accepted that there was no process of doing it on a bit by bit basis; Black, 664.26. He acknowledged that it was "only those trees that were identified by motorists, land-owners or council staff in the course of their duties" which were removed. This was what the trial judge criticised as a reactive system. But Council adamantly insisted that this was the only practicable approach given the resources required for anything more than this. 73 He was then pressed about his capacity to identify the tree in question as an obvious danger. When it was put to him in cross-examination that this was a "very tall sickly looking tree" his telling response was, "if a tree was upright, I wouldn't be concerned about it" (Black, 664.47-665.56). 74 He readily conceded that there would be a difference between what he might regard as a risk and what an arborist would regard as a risk. However, evidence of what an expert arborist would charge was around $1,200 per day if the arborist came from Sydney and a little less if the arborist came from Newcastle. However, when one considers the extent of Shire roads the cost of any comprehensive coverage would obviously be enormous, the more so if an arborist were involved. As Mr Gray attested, it would indeed be likely to be beyond the financial capacity of a thinly populated Shire like Dungog (7,632 persons according to the 1996 census), if indeed within the capacity of any Shire. Thus evidence was given as to the Council's financial situation (Blue, 4/759). It disclosed a surplus of $608,000. There were $2.728 million of expenses applicable to transport and communications as against revenues from that source of $1.717 million. Given that the operating result applicable to transport and communications showed a loss of $1.011 million, the scope for any more ambitious programme than the modest "reactive" one criticised by the trial judge, was self-evidently not there. 75 Given that neither the supervisors nor Mr Gray were likely to identify such a tree as "obviously vulnerable" when, as Mr Gray said, "if it was upright I wouldn't be concerned about it", it is readily apparent from the evidence of the ordinary employees that they were in no better position. Take, for example, the evidence of Mr Hancock who was described as a shire-worker who lived in the area. His evidence included the following: "Q. From what you've seen as a Shire-worker and from your experience in the Dungog area would you agree with the view or is it your observation that trees that do come down in a storm are trees that are either top-heavy or that are sickly?

[25]

That is hardly evidence of obvious vulnerability. Nor is it convincing merely to submit that the tree should have been inspected, as distinct from removed. It begs the question, what would such an inspection have revealed. 78 Then there was the countervailing evidence of Mr Pittendrigh, the appellant's expert, that "trees that exhibit sparse crowns are not necessarily structurally weak or hazardous in fact …" 79 Finally we are asked to presume that Council employees travelling on a road with an 80 kilometre speed limit would in the course of their ordinary duties crane their necks along 287 kilometres of sealed road looking out for sick trees. Nor was it shown to be a reasonable step, or affordable, that the Council should pay an arborist either to train the Council workers to look out for sick trees either ad hoc or else to do so under some system of inspection of a more pro-active kind. 80 Here I should turn to the evidence of Mr Swan for the respondent. While unable to nominate any council which had a formalised documented "roadside vegetation maintenance programme" (Black, 682.37) he referred to an ad hoc system at his own council, Queanbeyan City Council. He conceded that he had never designed a roadside vegetation maintenance programme (Black, 690.16). He also conceded that the cost could be very significant depending on the area and "how much you want to spend"; Black, 690.50. He also conceded that he had not carried out any assessment so far as Dungog Council was concerned about how much it would cost to design or implement or maintain such a programme or system; Black, 691.30-.37. 81 I consider against that scanty evidence that, with respect, the trial judge was in error in rejecting evidence from the appellant as to its budget not permitting a programme of routine or systematic inspection of trees within the road reserves in its local road network (see earlier and Blue, 753-4). When coupled with the additional cost of around $1,200 per day for expertise to be brought in, on any application of the Shirt calculus it was simply not feasible or reasonable in cost or manpower terms to set up such a system for identifying and removing sick trees over the vast network of roads within the Shire. 82 Nor was it apparent from the evidence of Mr Meys that the tree in question should or would have been assessed as "quite sick". The size of scar visibly on the trunk when still standing was a matter for speculation, being at best a tenuous inference from the existence of a scar on an adjacent tree which was still standing (Black, 309 - 310) and what was observed on the stump. The relative significance or insignificance of the size of the canopy of the tree was not analysed. It could not sensibly be said that in a rural setting all trees with sparse canopy should be removed, quite apart from the fact that a large canopy can make a tree vulnerable in a windstorm. The evidence of Mr Pittendrigh (Blue, 1421) was that trees are often retained in rural setting for their habitat value. Mr Meys conceded that he could not be "totally certain" that any buttress roots had been damaged before the tree fell (Black, 310). Moreover he conceded that he did not know the possible size of the scar which affected the transport tissue within the tree (Black, 310). 83 My observations above do not lead me to any conclusion that the evidence of Mr Meys and Mr Swan was wrongly admitted into evidence. But that evidence I did not find convincing. For the reasons stated I consider that it would have been financially impractical to put in place systems of inspection of the kind envisaged by the trial judge. 84 Since writing these reasons I have read the judgment in Timbs v Shoalhaven City Council [2004] NSWCA 81. That Council was held liable in very different circumstances. Its employee had chosen to express an opinion that a tree which the owner wanted to cut down was not dangerous, reminding him of the Tree Preservation Order. Council accordingly had refused permission to cut the tree down. That had tragic results when the tree later collapsed, killing the owner. In the present case, there was no specific assumption of responsibility by Council electing to proffer an opinion on the particular tree's safety.