40 This passage, with particular reference to the words "and supervising" shows that the appellant's submission is misconceived so far as it is suggested that the Council somehow failed carefully to discharge its own duty of care by reason of the supervisory role it retained. On the contrary, the retention of an adequate system of control over the performance of a subcontractor is an important aspect of any analysis of the question of breach in a case where a person seeks to discharge its duty by appointing a specialist subcontractor.
41 What is reasonable in such a situation will vary with the context: thus a school or prison authority faced with an emergency involving a pupil or inmate would not be expected to send the headmaster or prison governor to supervise the surgeon called in to perform emergency surgery.
42 The appellant's submission ought also to be rejected insofar as it suggests that what is reasonable to discharge the appellant's separate duty of care towards the plaintiff is qualified in some way by the Council having reserved, in its own interest, the right to monitor the appellant's performance of its contractual obligations to the Council. If the Contract and the licence it conferred armed the appellant with responsibility for attending to safety issues stemming from the state of trees placed under the appellant's responsibility, then it is irrelevant that the Council also owed the plaintiff a duty of care.
43 This case involves the existence and scope of the appellant's duty and whether the appellant was negligent in not (by itself or its subcontractor) taking any steps to detect and remove branches that were dangerous within the fair interpretation of cl 3.3 of the Specification. The appellant's position, in short, is that this was not its job. It claims that it would only have been its job if the Council had agreed to pay it extra under the Contract and stipulated expressly that the necessary additional work had to be done under the Contract.
44 Barr J rejected this argument. His Honour first noted (at J80) that at trial Mr Nock SC did not dispute that a duty of care was owed by Prestige to persons in the position of Mrs Choi.
45 His Honour found that the branch which fell was "dangerous" within the scope of the appellant's obligation stemming from cl 3.3(c) of the Specification to remove all dead, dangerous and fallen branches in accordance with the best practices of the arboricultural trade (J81).
46 The submissions in this Court challenging this finding tended to track those that were advanced below and responded to by the primary judge at J81-96, paragraphs that I would adopt as part of my own reasons with the following additional remarks.
47 First, the word "dangerous" was never entirely free-standing. The General Objectives of the Contract reinforced the point that safety was involved as well as aesthetics in the purpose of the appellant's retainer. The key clause, 3.3(c) of the Specification, framed the appellant's duty to remove all dead, dangerous and fallen branches by stipulating that this was to be done "in accordance with the best practices of the Arboricultural Trade". In my opinion, this qualification went beyond the methodology of the removal process. It would have embraced diagnosis as well. At J104 Barr J accepted the evidence of the two expert arborists, Mr Ford and Mr Atkins, to the effect that the branch that fell was dangerous in the sense that it was detectable and such that a reasonable arborist would have removed the danger by removing or at least shortening the branch. I agree.
48 Second, the submission that it makes commercial nonsense to construe the Contract as requiring the type of monitoring that the experts agreed was required to detect dangerous branches is essentially a circular argument. The appellant's contractual obligations are to be determined by examining the promises it made, construing them in context and according to standard rules of interpretation.
49 Third, I find equally unhelpful the submission that the extent of the obligations that the appellant assumed under its Contract with the Council are governed by the arrangements that it did or did not procure with its subcontractor. If, on the true construction of the appellant's Contract, the appellant bound itself to monitor all trees and to remove all dangerous trees and branches, then it is the appellant's problem that it elected to take no steps to perform this obligation or to arrange for its subcontractor to do so.
50 I would specifically endorse the following passages in the judgment below:
If nothing could be detected on inspection, nothing would be expected to be done. It seems to me that as the term is used in the contract, a branch would not be considered dangerous which could not be ascertained on reasonable inspection as dangerous. On the other hand, a branch that was identifiable on inspection as likely to fall, with the consequent risk of injury to somebody, was dangerous.
To my mind there was nothing about the commercial relationship between Prestige and the Council or about the surrounding circumstances to lead to any other construction. The Council was not obliged to disclose to Prestige, whose Managing Director called himself an arborist of long experience in tree surgery, and which sub-contracted arborists to do the work it contracted for, the details of the reports it had received about dangerous trees. Council's withholding those reports and requiring tenderers to agree to rely on their own enquiries does not persuade me that the intention was to deal with branches that were dangerous other than for reasons adverted to in those reports.
51 Another argument advanced below was renewed here. When tendering, the appellant disclosed that "major tree maintenance" would be carried out by its subcontractor Active Tree Services Pty Ltd. The letter (at Blue 592) gave details about the work intended and the personnel that would be involved. One section of the letter stated:
Additional Services to be Offered
Following an inspection of the Parks and streets, there are a number of mature tees (sic) that pose a risk to the public, as they have a habit of dropping large branches. This risk could be reduced by pruning and crowd (sic) reduction. There are also a number of unsuitable trees that should be replaced. It is suggested a comprehensive inventory of these unsuitable trees be done at the commencement of the contract, and a list should be given to the Council (at an additional charge to Council).
52 The appellant submits that this letter shows that it never undertook to do the sort of work required to detect the branches that fell on the plaintiff as part of its responsibilities under the main Contract since the Council never agreed to pay an additional charge for the additional services.
53 To my mind, there is a real question about what was being proposed to be done in the first paragraph of the passage I have just quoted, when a fair reading of that paragraph is uncoloured by what may have been the subjective intent of the appellant or Active.
54 On one view of the proposal, when considered in light of the entire passage of the letter that I have already set out, the proposal is confined to suggesting the need for a "comprehensive inventory", being entirely silent about the work that would be done with the benefit of that inventory.
55 Be that as it may, it is undisputed that this proposal was not accepted by the Council. Nor did the letter in which it is contained become part of the contractual documents. I would also refer in this context to cl 5.18 of the Specification with its contractual obligation upon the service provider to provide tree condition reports.
56 The matters summarised at J47-50 show that the Council adhered to the position that the Specification and Contract would speak for themselves. There was to be no extra work for a specific extra cost. The appellant was left to build any costing for contract work into its tender price. And the expression "dangerous" in cl 3.3(c) of the Specification would remain without any particular contractual definition, especially one along the lines now advanced by the appellant.
57 I would therefore reject this ground of appeal.
58 The other two grounds that were pressed are as follows:
3. His Honour, having ordered the experts Atkins and Ford to prepare a joint report in which they answered questions including "6.1 If Prestige has been required to 'maintain trees' in Hyde Park North and 'remove dangerous branches' should the branch that struck the Plaintiff have been removed prior to December 2000"? erred in failing to consider the answer to 6.1 that the experts provided in their joint report of 2 November 2006.
4. His Honour erred in failing to give reasons for rejecting the evidence of the experts Atkins and Ford at 6.1 of their joint report of 2 November 2006.
59 The experts retained by the plaintiff (Mr Ford) and the appellant (Mr Atkins) produced individual reports and later a joint report. The joint report was more in the nature of a single document compiling their several views on common questions. Early in the trial there was discussion about a further joint report being prepared. This was requested by the trial judge (see Black 42).
60 The questions were agreed, although from the outset counsel for the appellant, Mr Nock, was flagging difficulties about the appropriateness of the experts being asked to deal with contractual issues (see Black 25, 40). This makes it ironical that the same party is now complaining that the second joint report was not given weight in his Honour's final determination as to the meaning of the Contract.
61 When prepared, the second joint report was submitted to the Court. It went into evidence by consent of all parties and became Ex T (see Black 621). Most of Ex T contains expert material that is uncontroversial in its admissibility.
62 It was the barrister for the Council who flagged an objection to para 6 of Ex T essentially on the basis that this paragraph addressed matters of contractual construction. After hearing submissions by all parties, his Honour ruled as follows:
I think that paragraphs 5 and 6 should come into evidence as part of the report, exhibit T.
There is a possibility that in expressing one or more opinions the experts, jointly or individually, may be seen to be interpreting obligations under the contract. The matter, however, is not so simple. The Council, which is the only objector to these paragraphs, relies on the contract. The contract in part requires the contractor to act according to the best practices of the arboricultural trade. The opinions which are objected to may be seen as based upon the opinions of the authors of the requirements of the best practices of the arboricultural trade.
I have in mind what the President said in Regina v GK in his Honour's observations on section 80 of the Evidence Act . Plainly, that section preserves the admissibility of evidence of the kind now objected to even though it may come to, or close to, the ultimate issue. It will be for Council at a later stage of the trial to make their submissions about any caution of the kind advocated in GK I should apply when using these portions of the joint experts' report.
63 The passage of my judgment in R v GK to which his Honour was referring in this ruling of 6 November 2006 states:
In New South Wales, opinion evidence is not admissible only because it is about a fact in issue or an ultimate issue, Evidence Act s80A. However, judges should exercise particular scrutiny when experts move close to the ultimate issue lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions. ( R v GK (2001) 53 NSWLR 317 at 326[40], citations omitted.)
64 Barr J's qualified interlocutory ruling did not in any way pre-empt his consideration of Ex T. After the ruling the two experts were extensively cross-examined in conclave. Then followed submissions.
65 In the judgment under appeal Barr J made reference to Ex T and he clearly drew upon portions of it (see J24-32).
66 It was not incumbent on his Honour to spell out those portions of Ex T that he ultimately found not to be probative or of assistance. The brief ruling on 6 November 2006 clearly flagged concern about paras 5 and 6 of Ex T. And the parties subsequently weighed in on the issues when subsequently cross-examining the experts in conclave.
67 Nor did his Honour err as suggested in ground 5 of the Amended Notice of Appeal. Merely because he did not adopt the reasoning of the experts in their several answers to question 6 does not meant that he failed to consider it.
68 In my opinion, both question 6 and the experts' responses to it were largely irrelevant and positively unhelpful. The question posed was:
If Prestige had been required to 'maintain trees' in Hyde Park north and 'remove dangerous branches' should the branch that struck the plaintiff have been removed prior to 14 December 2000?
69 The premise to the question was both misleading and unhelpful. There is no category of tree maintenance contracts that have defined legal incidents or standard terms. The Contract in question went well beyond requiring the appellant to maintain the trees in Hyde Park. It imposed clear obligations to remove branches of trees in certain circumstances.
70 The reports of the experts in response to question 6 were equally unhelpful for several reasons quite apart form the fact that the question addressed was itself irrelevant and misleading. The reports may be found at Supplementary Blue Appeal Book 287-300.
71 The appellant particularly complains about the judge's decision to ignore the views of Mr Ford.
72 Mr Ford makes it quite clear that the matter addressed by him in that part of the joint report, Ex T, was the scope and operation of the hypothetical contract to "maintain" trees. He also disclosed that he had had regard to "the manner in which the works were undertaken with the apparent approval of the Council", an approach that bespeaks error because it proceeds upon unproven and unaddressed facts as well as construing a contract by reference to what is said to have been done pursuant to it after its commencement.
73 Mr Ford also reveals his opinion that "dangerous" should be construed as synonymous with "broken". Suffice it to say that his opinion is irrelevant and wrong insofar as it may be sheeted home to the Contract construed in accordance with proper canons of interpretation. Mr Ford's reasoning at Supplementary Blue 298T-X discloses that he had regard to extra-contractual communications referable to a suggested timescale for attending to the removal of dead, dangerous and fallen branches. He himself recognised that the discussion about that timescale did not base itself upon a definition of what was a "dangerous" branch.
74 I would reject grounds 3 and 4.
75 For these reasons the appeal should be dismissed with costs, with the intent that the costs order will cover the substantive costs of the two respondents to the main appeal. The plaintiff's cross appeal should be dismissed with no order as to costs.
76 HODGSON JA: I agree.
77 HANDLEY AJA: I also agree.
78 MASON P: The orders of the Court will be as indicated.
**********