Rhodes v Lake Macquarie City Council and another

Rhodes v Lake Macquarie City Council and another - [2010] NSWCA 235 - NSWCA 2010 case summary — Zoe

[12]

Outline of facts 4 I will commence with an outline of facts that can be accepted as not being in dispute. 5 The appellant has lived since about 1997 in a house at Booragul, owned by the Housing Corporation. A large gum tree (a grey gum, eucalyptus punctata) has during this period been situated on a neighbouring property, also owned by the Housing Corporation, close to the boundary of the appellant's property. This tree was about 18 metres high, and its canopy was about 14 metres wide. Its branches overhung the driveway used for the purposes of gaining entry to the appellant's house. 6 Within a short time of occupying the premises, the appellant noticed that branches would fall from this tree onto the front area of her house. 7 In about 1999, the appellant's daughter, who was walking with her to the car, was struck by a branch from the tree, and she sustained a minor scratch to her stomach. The appellant telephoned the Department of Housing and told them that the tree located near her driveway was dropping branches just about every day, especially in wind and rain, and that her daughter had been struck by a branch. 8 On a number of occasions (according to the appellant, about every three months) between 2000 and 24 December 2005, the appellant telephoned the Housing Corporation and informed them of problems from falling debris from the tree; and she asked that it remove the tree. 9 The occupiers of the adjoining property on which the tree was situated were a Mr and Mrs Mason. After the incident involving the appellant's daughter, Mrs Mason spoke to a Ms Anne Bulla at the Toronto office of the Department of Housing. She said to her that the tree was dangerous, and she was advised that an application would be made to the Council to have the tree removed. 10 About six months later, Mrs Mason again made enquiry of the Department, and she also made enquiry of the Council. The Council told her that no application had been made to remove the tree. However, it appears that there was a Council inspection of the tree in 2000 and 2001; and on one occasion about this time, persons attended and trimmed the tree. According to Mrs Mason, on this occasion, the trimming ended when a person said he had to get out of the tree because he was being eaten alive by insects. 11 It appears that the tree was in fact trimmed on one or more other occasions between about 2002 and 2005, possibly as much as once every year or eighteen months. 12 On an occasion in about 2004, branches falling from the tree in a storm broke a window in the Masons' house; and during the same storm, one of the appellant's windows was also broken. On another occasion, a branch from the tree (said to have been about three inches round) resulted in broken tiles on the roof of the Mason house. 13 By an application dated 28 February 2005, the Housing Corporation made application to the Council for permission to remove the tree. The reason given in the application was that the tree was unstable. 14 On 18 April 2005, Mr Khemananta, an arborist who had delegated authority from the Council to authorise removal of trees in its area, attended the premises. In his report of 20 April 2005, Mr Khemananta checked a number of tree assessment criteria, including H/S (healthy/stable) for condition, 90 per cent for crown cover, no major deadwood, and P (prune) for recommendation. The notes to the report read: This tree locates more than 5 metres from dwelling. Tenant does not want this tree there; since 1998 she has been requesting DOH to remove this tree as it drops leaves and debris. There is no gap/movement in the surrounding soil and the tree root crown. Removal is not warranted. 15 Mr Khemananta sent a notice of determination to the Housing Corporation, stating that the application was refused, and giving the following reasons: 1. The tree appears to be in a sound and stable condition.

[59]

3.2 It is my view that the Council was lacking in its assessment as it was mindful of the history of complaints at the two properties regarding the tree and demonstrated such in its notes on the Tree Assessment Report and was aware of the continual problem with deadwood by advising the applicant in its correspondence for notice of determination that the tree could be pruned to remove deadwood and crown thinning by 15%, save for height reduction. 27 Mr Draper was not cross-examined. 28 In oral evidence Mr Khemananta said that, when he inspected the tree in April 2005, Mrs Mason mentioned to him that she had contacted the Department of Housing since 1998 about this messy tree, which dropped leaves and twigs and she did not like to clean it up anymore; she also mentioned that the tree moved in the wind and it could have been unstable. However, Mr Khemananta did not recall any evidence of the tree having dropped limbs or significant branches (meaning branches above about 35mm in diameter) prior to the event that injured the appellant. 29 Mr Khemananta said that he had regard to DCP 43 in considering the application to remove the tree; and that he took into account the health of the tree, the climatic conditions, the soil type, location of the tree, the proximity to buildings and structures, and whether it was a hazard to persons or property. He said there was no sign that the tree had been dropping significant limbs, as there would be damage to other portions of the tree below and there was no such damage. 30 Mr Khemananta said that anything above 15mm in diameter could be considered dangerous, depending from where it fell: if such a limb fell from 15 metres, it may cause some damage but that from ground level it was difficult to detect deadwood that was 15 metres above with normal eyesight. He said that the particular species of tree produced deadwood, and sooner or later deadwood falls to the ground. 31 The Housing Corporation led evidence from Mr Miller, but not from any of its own officers or employees.

[86]

Negligence of the Council 40 Mr Barry pointed particularly to the report of Mr Draper; and also to Mr Khemananta's admission that a branch of 15mm diameter falling from about 15 metres would be dangerous, and that grey gums produce deadwood which sooner or later would fall to the ground. Accordingly, he submitted, there was a clear risk of injuries to persons; and Mr Khemananta acted unreasonably in not acceding to the application to remove the tree. 41 In my opinion, the terms of DCP 43 make it clear that the policy adopted by the Council favours retention of native trees, including trees such as grey gums which produce deadwood and drop branches; and that substantial justification is required for consent to be given for removal of such trees. Mr Draper's report confirms that no error was made by Mr Khemananta in assessing the tree as healthy and stable, with no major deadwood. His comments on broader social implications were outside his area of expertise. 42 I accept, in terms of s 5B of the Civil Liability Act, that the tree posed a risk of damage to property or injury to persons from twigs and branches dropping from it, which can be considered a not insignificant risk. However, in relation to a healthy tree of this kind, in my opinion the risk was not shown to be such a risk that a reasonable person would have authorised removal of the tree. The risk of substantial damage to property or significant injury to a person was not shown to have more than a relatively small probability, or to be any different from the risk posed by other trees of a similar type in positions in the vicinity of property and/or frequented by persons. In circumstances where the maintenance of such trees is considered to have social utility, in my opinion it was not shown to be unreasonable for the Council to have adopted DCP 43; and it was not shown that the decision by Mr Khemananta in application of DCP 43 not to authorise removal of the tree was unreasonable. 43 A fortiori, in my opinion, the Council was not shown to have done anything that no Council could consider to be a reasonable exercise of its functions or powers, within the meaning of ss 43 and 43A of the Civil Liability Act.

[87]

Negligence of the Housing Corporation 44 Although the primary judge did not explicitly find that the Housing Corporation was informed of the incidents when the appellant's daughter was injured, when windows were broken in both the adjoining houses, and when tiles were broken on the roof of the Mason house, in my opinion that finding is implicit. In any event, it is a finding which in my opinion should plainly have been made, in circumstances where the Housing Corporation did not call evidence from its own officers or employees. 45 The Housing Corporation owed to the appellant (and also to the Masons) a duty of care as explained by the High Court in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166. The Housing Corporation had notice that the tree on its land posed some risk to its lessees; and so far as the evidence goes, it did not itself have expertise to assess the degree of that risk. It may be inferred that the Housing Corporation had engaged Mr Miller, or some other arborist, on some occasions between 2000 and 2005 to prune the tree; but there was no evidence that it sought and obtained advice from Mr Miller or any other qualified arborist as to the degree of risk posed by the tree. In my opinion, this would not in itself amount to negligence; but it does mean that, so far as the evidence goes, when the Housing Corporation applied to the Council for consent to remove the tree, it was relying on the Council to make an appropriate determination as to whether the tree should be removed. 46 In all those circumstances, in my opinion a reasonable lessor in the position of the Housing Corporation would have used reasonable care to ensure that the Council had all the information it had that was relevant to the Council's assessment of whether consent should be given. There was no evidence from any officer or employee of the Housing Corporation that the Housing Corporation had reasonable grounds to believe that information concerning damage caused by the tree to nearby houses and the injury caused to the appellant's daughter would not be relevant to the Council's decision; and in my opinion, the Court should take it that the Housing Corporation did not have such reasonable grounds. In my opinion, in the particular circumstances of this case, including the absence of evidence from the Housing Corporation, the Court should conclude that a reasonable lessor would have provided that information to the Council. 47 Mr Barry went further, and submitted that a reasonable person in the position of the Housing Corporation would have written a strong letter to the Council with the application, giving extensive detail of the history, and pointing out that, if the Council refused consent and the tree did cause damage or injury in the future, the Council would be sued for damages. I do not think the lessor's obligation to exercise reasonable care went that far; but in my opinion, for the reasons I have given, the Housing Corporation did breach its duty of care in not conveying to the Council the substance of the history provided to it by the appellant and by Mrs Mason. 48 Mr Barry also submitted that there was a breach of duty of care in giving a false reason for the application for removal, namely instability. However, the primary judge generally accepted the evidence of Mr Khemananta, and that evidence referred to a statement by Mrs Mason that the tree moved in the wind and could have been unstable; and I would not infer that no such allegation had previously been conveyed to the Housing Corporation. 49 Mr Barry submitted that the Housing Corporation was also negligent in not having sought a review of or appealed from the Council decision. Except to the extent that this ground of negligence overlaps the ground referable to failure to give the Council the history of the tree, I see no reason to overturn the primary judge's decision that this was not a breach of the lessor's duty. Aside from the question of whether the Council was given all relevant information, there was in my opinion no reasonable prospect of obtaining a different ruling, such that there was a breach of a duty of care in not challenging the Council's decision. 50 The final allegation of negligence concerned failure to erect a protective walkway. I see no basis for overturning the primary judge's decision on that question. It is true that the judge could possibly have drawn inferences concerning matters as to which he said there was no evidence; but in the absence of evidence directed to these matters, it is not shown that the judge was in error in not finding negligence in this respect. 51 However, for the reasons I have given, I would find breach of the Housing Corporation's duty of care in not providing the Council with the information it had concerning damage and injury previously caused by the tree.

[88]

Causation 52 Mr Barry submitted that had Mr Khemananta been given the history of damage and injury caused by the tree, and had his attention appropriately drawn to safety issues, he would have given consent. Mr Barry submitted that in those circumstances, he would have recognised that issues of safety were more important than the retention of this tree. He submitted that the primary judge erred in not making this finding. 53 In my opinion, that submission should not be accepted. 54 The evidence showed that the tree was, of its type, a sound and healthy tree. Any risk that it posed was no different from that posed by any tree of a similar nature placed in situations in the vicinity of property and frequented by persons. In my opinion, on the evidence before the primary judge as to the proclivities of trees of this kind and as to the condition of this tree, the history of two broken windows, some broken tiles, and one very minor injury to a person, over a period of about six years, was not such as to suggest that this tree was any more dangerous than the general run of such trees. Consistently with the objectives appearing from DCP 43, that history would not be likely to have brought about a different decision. 55 Furthermore, it was never put to Mr Khemananta that, had he known of the history of the tree, his decision would have been different; and the general tenor of his evidence strongly indicates that it would not have been. Of course, there are difficulties with putting hypothetical questions of that kind; but Mr Khemananta could certainly have been asked what decision he would now make, on the basis of the history of the tree before the appellant's accident (or indeed, on the basis of the history of the tree including the appellant's accident); and again the tenor of his evidence was such that it is likely that he would have said that his decision would have been no different. 56 Mr Khemananta noted in his Tree Assessment Report that he recommended pruning of the tree. This view was reflected in the terms of his letter to the Housing Corporation (see [16] above) which also referred to crown-thinning of the tree by 15 per cent. Following this, a qualified arborist, Mr Miller pruned and crown-thinned the tree on 22 June 2005 (see [17] above). In the absence of evidence from Mr Khemananta indicating that the position would have been otherwise, the inference is readily available that he would have regarded these steps as sufficient to deal with the problems indicated by the history of the tree, if the Housing Corporation had informed him of that history. 57 Accordingly, although I find that the Housing Corporation was negligent in the respect I have identified, I do not find that this was causative of the injury to the appellant. It was not shown that the Council would have come to any different decision; and without Council consent, the tree could not lawfully be removed.

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