Lister & Anor v Hong & Anor

Grounds of appeal 7 The grounds of appeal are that the Magistrate erred in finding that the plaintiffs' claim for damages occasioned by tree roots was statute barred; the Magistrate erred in finding that the defendants' payment of $400 to the plaintiffs was limited to confirmation of damage caused by tree branches; the magistrate erred in finding that there were two separate actions to be determined; the magistrate erred in finding that the two actions should be considered separately; the Magistrate erred in not finding that the nuisance was continuing; the Magistrate erred in finding "the question in this case is whether the occupier could have controlled the nuisance by removing the tree, or whether he adopted the nuisance"; the Magistrate erred in finding that the tree could only be removed with council approval; the Magistrate erred in finding that the council had refused to grant approval; the Magistrate erred in finding that there was no evidence that extensive pruning of the tree did not also require council approval; the Magistrate erred by placing the onus of proof on the plaintiffs as to what did or did not require council approval; the Magistrate erred in finding that the defendant did not have the legal power to remove the tree; the Magistrate erred in finding that the defendants did not have the capacity to remove the nuisance constituted by the tree; the Magistrate erred in finding that the claim for damages for two vehicles damaged in 2000 and 2003 was not made out. 8 The defendants relied upon a "Notice of Contention", which is not particularly helpful. It says that the plaintiffs firstly, failed to prove breach of any duty owed; secondly, failed to prove that breach of any duty owed cause them loss or damage; thirdly, failed to prove any entitlement to damages; and fourthly, that the appeal discloses no or no proper ground of appeal.

Extension of time to file appeal 9 On 23 May 2005, the Magistrate handed down her decision in relation to the limitation, issue which disallowed part of the plaintiff's claim. On 23 August 2005, the Magistrate handed down her final decision. 10 On 19 September 2005, summons was filed. The appeal from the first decision was, on one view, lodged three months out of time. However, in this particular case it makes sense that both the appeals be heard at the same time. This approach saves both court time and the expense occasioned by the parties. For this reason, an extension of time to lodge the appeal is granted.

The first decision - 23 May 2005 - damage caused by tree roots 11 The plaintiffs claimed that a gum tree growing on the defendant's property had damaged the plaintiff's property as a result of (a) branches falling from the tree; and (b) the tree roots causing damage to the plaintiff's house. The defendants sought a ruling as to whether the claim for damages by tree roots was statute barred and this preliminary issue was heard on 23 May 2005. Had there been no acknowledgement of the debt pursuant to s54(1) of the Limitation Act 1969 (NSW) and no claim that the proceedings were statute barred, the issue would have been a relatively straightforward one. It would have been whether the plaintiffs could prove, on the balance of probabilities, that the defendants continued or adopted the nuisance created by the trees. However, that was not the case. 12 The plaintiffs had argued that the tree was the cause of action and that the payment of $400 by the defendant constituted confirmation of liability for the fallen branches and for any other nuisance caused by the tree. The defendants had argued that the $400 payment related only to the nuisance of falling branches from the tree, that the damage caused by the roots was known to the plaintiff in 1996, that time had started to run in 1996, and by 2003 the action in relation to root damage was statute barred. 13 Magistrate Schurr identified three relevant dates as being:

(a) 1996 - the plaintiffs became aware that the tree roots were causing damage and retained Mr Bevan, builder, who advised the plaintiffs that the tree roots were causing damage;

(b) November 1998 - the defendants paid $400 to the plaintiff after having been asked to pay the excess of $400 after a tree branch from the defendants' tree fell on one of the plaintiffs' cars, causing damage which was repaired under the vehicle's insurance;

(c) 22 December 2003 - the Statement of Claim was filed in the Local Court. 14 The central issue raised in the first hearing was the operation of s 54(1) of the Limitation Act, in relation to the defendants' payment of $400 to the plaintiffs in November 1998. 15 The Magistrate accepted that, pursuant to s 54(1) of the Limitation Act, the defendants confirmed a cause of action. Importantly, the Magistrate noted that the parties waived the requirement contained in s 58(4) of the Limitation Act that the confirmation must be in writing and that such a provision implied that the acknowledgement should be clearly stated. This reasoning does not form part of this appeal.

Nuisance 16 The Magistrate noted that the parties were unable to refer any authority as to whether or not a defendant become liable for all aspects of a nuisance, once one aspect of the damage caused by the nuisance is acknowledged. Put another way, whether the action in nuisance relates to the whole of the tree or whether different aspects of the damage caused by the tree each have to be pleaded within time. 17 The tort of nuisance has been defined as condition or activity which unduly interferes with the use or enjoyment of land - Clerk & Lindsell on Torts, 19th ed at [20.01] p 1162, Sweet & Maxwell. Private nuisance is interference with an occupier's interest in the beneficial use of his land - Fleming, The Law of Torts, 9th ed at 464. 18 In a 1998 report of the New South Wales Law Reform Commission entitled "Neighbour and Neighbour Relations" (NSWLRC Report 88, November 1998) at Chapter 2, p 15 [2.13] deals with the issue of trees and reads: "A court can award damages to compensate a person affected by trees causing a nuisance. To get compensation the person must suffer actual physical damage. The law is more complicated where there is a continuing nuisance. The common law does not compensate a person for damage that will occur in the future. To avoid bringing repeated claims each time more damage occurs, a person can claim damages in equity and the appropriate court will assess damages taking into account future damage as well." [footnotes omitted] 19 The authority cited for this proposition is s 68 of the Supreme Court Act 1970 (NSW), which provides that a Court may grant damages instead of an injunction for future damages. 20 Is the nuisance caused by a gum tree a continuing one and one which causes damage in two different ways, firstly, by the action of roots; and secondly, by the falling of tree branches? Or is it that each time the plaintiff becomes aware of damage, there is a new cause of action in nuisance? For example (and leaving aside the operation of s 54(1) for the moment), if the branch damage occurred in 1993 and the plaintiffs decided not to take action, would the subsequent root damage that occurred in 1998 be statute barred? I do not think so, because the root damage would not have been known at that earlier date. Hence, I would prefer the latter approach. However, it is not necessary to resolve this issue because without the operation of s 54(1) of the Limitation Act coming into play, even if the 1993 claim for root damage and the 1998 claim for branch damage were separate causes of action, they both would have been statute barred. 21 The Magistrate in her reasons at [12], [14]-[17] stated: "12. For the Plaintiff to succeed, the Defendant would become liable by payment for one aspect of damage by a nuisance for all aspects of possible damage which the nuisance may cause, even though he may have no knowledge of other damage. 13. … 14. In this case, I am satisfied that the payment of the $400 was limited to confirmation of tree branch damage. There is no evidence that it constituted acknowledgment of root damage or of any other damage that may have been caused by the tree to the Plaintiff's property. 15. I am satisfied that the two actions should be considered separately and that the claim for root damage is not covered by the concession relating to the branch damage. 16. I am satisfied that the Plaintiff became aware of root damage in 1996 and that time commenced to run from that date. 17. Accordingly, I hold that the claim for root damage, first seen in 1996, is statute barred." 22 Hence, the Magistrate was satisfied that the payment of the $400 was limited to confirmation of tree branch damage. 23 It is my view that the Magistrate's decision in relation to the root damage is correct. The cause of action in nuisance arose when the damage first occurred, that is, when the plaintiff became aware of the root damage in 1996. As the statement of claim was filed in 2003 the claim was statute barred.

The Magistrate's decision dated 23 August 2005 - damages caused by tree branches 24 As stated previously, due to the way in which s 54(1) was argued in the Court below, the decision that the payment of $400 was an acknowledgement of tree branch damage means that claim is not statute barred. 25 The Magistrate referred to a passage from Sparke v Osborne (1908) 7 CLR 51 at 71 where Isaacs J (as he then was) stated: "The respondent's case rests upon the contention that every landowner is bound at his peril to prevent damage to his neighbour by reason of plants of any kind extending over his boundary, and irrespective of whether their growth and development are entirely the work of nature or not. In my opinion that contention cannot be sustained. If the plant which has caused the damage is entirely a product of natural causes; if the defendant and his predecessors have done nothing in the way of planting, trimming, guiding, cultivating or other interference which has affected the growth, development or condition of the plant, if in no way the existence or dangerous character of the vegetation is attributable to any act of the defendant or those for whom he is responsible, he is not answerable for the damage. The adjoining owner may lop overhanging branches as he pleases, and so guard himself against any nuisance to him or his property: Lemmon v. Webb ; but he cannot recover from his neighbour compensation for a burden which nature alone has imposed upon him, and to which his neighbour has not in any degree contributed. Here the damage is not in any form, directly or remotely, the result of the act of man." 26 In Noble v Harrison [1926] 2 KB 332 at 338, Rowlatt J adopted the same approach. "…But a branch of a tree is not kept from falling by artificial attachments to be maintained by man, but by the natural processes which develop the tree, and it is only when accident or decay interferes that human intervention is required. I see no ground for holding that the owner is to become an insurer of nature, or that default is to be imputed to him until it appears, or would appear upon proper inspection, that nature can no longer be relied upon." 27 But this position no longer represents the law, at least so far as trees are concerned and the Magistrate referred to this in her judgment. The law was changed in Davey v Harrow Corporation [1958] 1 QB 60 at 73. The Court of Appeal, per Lord Goddard CJ, in Davey referred to Noble v Harrison and disagreed with the proposition that there was a distinction between trees planted or self-sown. The Court of Appeal in Davey held: "…In our opinion it must be taken to be established law that if trees encroach whether by branches or roots and cause damage, an action for nuisance will lie…" 28 Davey has been followed in England in Leakley v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485. In New South Wales, it has been followed in Young v Wheeler (1987) Aust Torts Rep 80-126 and Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478. 29 The Magistrate in her reasons at [10] to [13] continued: "10. A change in the way the law evaluates of the occupier's duty to control a dangerous thing on his property was noted in Goldman v Hargrave [1966] 115 CLR 458 (PC). In that case, a 100 foot high tree was struck by lightning and, after the tree was felled, the fire was not entirely extinguished by the landholder. The fire spread and both the High Court and the Privy Council held that the occupier had not taken reasonable care to render the harmful object harmless: Goldman v Hargrave [1966] 115 CLR 458 at 466, 467. Their Lordships considered that the prickly pear case ( Sparke v Osborne (1908) 7 CLR 51) could be decided differently almost 60 years later because there would be a process of weighing up what is expected of a reasonable landowner and the consequences of inaction (ibid at 467). The court also held that each case depends upon its circumstances and the court has to consider whether the occupier had the ability to abate the nuisance.

11. Both parties in the present case referred to the decision of Wood J in Young v Wheeler (1987) Aust Torts Reports 80-126. That was a case involving tree roots and future possible damage to underground pipes caused by those roots, and the actions of the Plaintiff in removing and replacing water pipes before they were damaged by the roots of the trees on the Defendant's property. Wood J principally addressed the issue of abatement, and presumed that in overhanging tree cases that the owner of the overhanging trees had a liability in nuisance." 30 The law in relation to the adoption of a nuisance is clear. It has most recently been stated in State of South Australia v Simionato & Ors [2005] SASC 412. In Simionato the Full Court held that the cause of action in nuisance does not arise until the damage first occurs (see McCombe v Read [1955] 2 QB 429; Peisley v Ashfield Municipal Council (1970) 21 LGRA 243; Barton v Chhibber (1988) Aust Torts Reports 80-185). In Simionato at [56], Besanko J (with whom Debelle and Nyland JJ agreed) stated: "A nuisance may be created by a previous owner or occupier or by a third party, such as an independent contractor or trespasser, or by natural causes. The present occupier may be held liable for the nuisance which exists on his land by reference to principles which bear a close, but not precise, analogy with the principles of the tort of negligence ( Cambridge Water Co v Eastern Counties Leather Plc (above) per Lord Goff of Chiveley at 300). The present occupier will be held liable if he has "continued or adopted" the nuisance, which means if he has knowledge, or ought to have knowledge, of the nuisance and fails in a timely fashion to take steps to abate it. It is sufficient for present purposes to refer to Wilkins v Leighton [1932] 2 Ch 106; Sedleigh-Denfield v O'Callaghan [1940] AC 880; Hargrave v Goldman (above); Goldman v Hargrave (1966) 115 CLR 458; Morgan v Khyatt [1964] AC 475; Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549; Valherie v Strata Corporation No 1841 Inc (2003) 86 SASR 245." 31 The encroaching of tree roots is difficult to detect and a present occupier, who did not plant the trees, is not liable until he has knowledge or means of knowledge of the encroachment and fails in a timely fashion to abate it. The Simionato decision was handed down after one of the Magistrate's decisions but it did not alter the existing law. 32 The Magistrate, in reaching her decision, stated: "12. It is settled law that the encroachment of the branches of a very large gum tree may constitute a nuisance if the owner of the trees, not being the person who planted them, fails to take reasonable actions to abate the nuisance, and may be liable for damages both for actual damage and loss of enjoyment of property. The question in this case is whether the occupier could have controlled the nuisance by removing the tree, or whether he adopted the nuisance. The tree could only be removed with Council approval, and the Council has refused to grant approval…The occupier's duty to abate a nuisance does not extend to requiring him to break the law. The tree overhung the Plaintiff's property extensively, with possibly half it's canopy…The lopping of branches overhanging the property would involve removing half the tree. No trimming was undertaken by the Plaintiff in abatement because the tree was too high. There was no evidence that extensive pruning of the tree did not also require Council approval. 13. The Defendant did not have the legal power to remove the tree. That power rests with the Council, and the Council has refused permission for removal. I find that the Defendant did not have the capacity to remove the nuisance constituted by the tree. While the Plaintiff may have suffered damage to cars and diminution of the enjoyment of land, the Defendant is not liable for that damage. I dismiss the application." 33 The Magistrate had to determine whether the defendants took steps to abate the nuisance in a timely manner. On this issue, the plaintiffs submitted that there was no evidence to support the Magistrate's finding that the tree could only be removed with Council approval and that the Council had refused to grant the approval. The plaintiffs further submitted that there was no evidence to support the Magistrate's finding that the lopping of branches overhanging the property would involve removing half the tree and in effect, that the Magistrate reversed the onus of proof. 34 There were in evidence two letters and one conversation that are relevant. On 4 September 2002 (albeit four years after the tree branch damage first occurred) the plaintiff, Mr Lister wrote to Ku-Ring-Gai Council and sought a permit to have a gum tree on the neighbour's property removed. He pointed out that "is a very tall and expansive tree with large roots that have encroached on our driveway…Huge branches continually fall in our yard posing a real threat of danger to anyone in our yard…" and "Branches have also damaged cars in our driveway". He requested that Council inspect the tree and sought its advice as to what he could do about it. 35 On 30 September 2002, Mr Lister received a telephone call from Ms Miller, the Tree Management Officer at the Council. She said: "…Council is not in a position to tell the neighbours to remove the tree. Unless the tree is in extreme condition and will fall we cannot do anything. You should get legal advice…" (Statement - G Lister, undated [24]) 36 The second letter is a reply by the Council to the new owner, Mr Cook (who purchased the property from the defendants in 2004), dated 15 February 2005 referring to his application to remove the gum tree. Relevantly, the reply by Ms Miller was: "Council has considered your concerns however a recent assessment by Council's Tree Management Officer has found that this tree appeared to be in a healthy and stable condition and there was no obvious evidence to indicate that predictable tree failure was likely at the time of inspection. Therefore after consideration of relevant and available information, Council cannot support your request for tree removal at this time. As a result, you application for removal has been refused." 37 The plaintiffs, (further Statement - G Lister, undated [Annexure C]) by letter dated 24 February 2005, then wrote to the Council referring to its "dismissive refusal of [the Cookes] application". They pointed out that the Council "missed the entire point" and suggested that it "notify [its] insurer and also provide [the plaintiffs] with details as to where the next claim should be made". This Court did not have the statement of Sun Kye Hong (one of the defendants) (Exhibit 7 in the Local Court), so it is not known if there was any relevant evidence contained in that statement. 38 In 2002 (a period of about four years after the branch damage first occurred), the Council informed the plaintiffs that, unless the tree was in extreme condition and would fall, it could not do anything. As at February 2005, the gum tree was [still] in a healthy and stable condition. 39 The Court of Appeal in The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 (at 137 & 138), in defining what constitutes an error of law, stated that a finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding and there is evidence capable of supporting its inferences. Such a finding can be disturbed only if there is no evidence to support its inferences, or if the facts inferred by it and supported by the evidence are incapable of justifying the finding of fact based upon those inferences, or if the tribunal has misdirected itself in law. 40 It seems that the Magistrate inferred that the tree was healthy and stable in 1998 and that, at the time, had Council approval for the tree to be cut down been sought it would not have been forthcoming. That inference was capable of being made. 41 However, this does not dispose of the plaintiffs' submission that there was no evidence to support the Magistrate's finding that the lopping of the branches overhanging the property would involve removing half the tree and that there was no evidence that extensive pruning required Council approval. Mr Lister, in his statement, stated that branches of the Eucalyptus tree were overhanging the entire length of the driveway, which is 31 metres [para 8] and that it was an expansive tree (letter to the Council). There were also some photographs of the tree in evidence but these are not helpful, as they do not show the extent of overlap of the branches on the plaintiffs' property. In 2002, Mr Lister wrote to the Council requesting permission "for the tree to be cut down". The Magistrate acknowledged that there was no evidence that extensive pruning of the tree did not also require Council approval and then decided that the defendants did not have the capacity to remove the nuisance constituted by the tree. The onus was on the defendants to prove they could not remove the overhanging branches, as it would have been against Council regulations. I do not think that it was open to the Magistrate to make this finding. 42 The appeal is upheld in part. The matter is remitted to the Local Court to be dealt with according to law, on the issue of nuisance caused by the branches. 43 Costs are discretionary. Normally costs follow the event. The defendants are to pay the plaintiffs' costs as agreed or assessed. The defendants are to have a Certificate under the Suitor's Fund Act, if applicable.

(2) The decision of Magistrate Schurr dated 23 May 2005 in relation to tree root damage is affirmed.

(3) The decision dated 23 August 2005 in relation to tree branch damage is set aside.

(4) The matter is remitted to the Local Court to be dealt with according to law, on the issue of nuisance caused by the branches.

(5) The defendants are to pay the plaintiffs' costs as agreed or assessed. The defendants are to have a Certificate under the Suitor's Fund Act , if applicable. **********

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