Sarah Kell v Girl Guides Association of New South Wales

Local Court of NSW|2014-11-14

JUDGMENT

The plaintiff, Ms Kell, resides at Fullerton Street in Stockton. The property adjoins a property leased by the Girl Guides Association of New South Wales ("Girl Guides Association" or "the Association"). The property leased by the Girl Guides Association is used to deliver the Australian Guide Program to girls and young women. On 13 October 2013 Ms Kell parked her motor vehicle near to her garage. The motor vehicle was actually parked within the boundary of the Girl Guides Association's property. Moments after walking away from her motor vehicle a large branch from a tree situated on the property leased by the Girl Guides Association fell, causing damage to Ms Kell's motor vehicle and garage. Ms Kell seeks to recover damages from the Girl Guides Association. The Girl Guides Association denies that it owed a duty of care to Ms Kell or, if it did, that it breached that duty.
For the reasons that follow the Court is satisfied that the claim by the plaintiff fails on the grounds that while the defendant was in breach of its duty of care, that breach was not causative of the loss suffered by the plaintiff.

Duty of Care

In the context of a common law claim in negligence, it is well recognised that the Girl Guides Association, as both an occupier of property and a neighbour, owes a duty to take reasonable care to prevent damage to Ms Kell.
In respect to an occupier of premises, the duty extends to invitees and trespassers although the question of what is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises": Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488.
Ms Kell in the present case was a trespasser and not an invitee on the Girl Guides Association's property. In Phillis v Daly (1988) 15 NSWLR 65 at 67 - 68, Samuels JA stated: "... the degree of care appropriate to a trespasser, whose entry may fall at any point in a long continuum of knowledge, perception and expectation on the occupier's part, may be much less than that which can reasonably [be] demanded by the business visitor, whose appearance is anticipated and welcomed, and less than that owed to someone whose entry is anticipated but merely tolerated."
The fact that Ms Kell was a trespasser is not fatal to her case. A duty of care can be recognised towards a trespasser in circumstances where the use of the land, although uninvited, may be anticipated. Basten JA in Talbot-Price v Jacobs [2008] NSWCA 189 at [109] notes that if the area entered by the trespasser was "an attractive feature of the premises" then that would be a relevant factor in establishing a duty of care.
In the present case there was no dividing fence or other distinguishing marker that separated Ms Kell's property from the Girl Guides Association's property. Ms Kell's garage was close to the boundary and it would have been convenient for her to park her vehicle so that it encroached to a minor degree on the Girl Guides Association's property. The tree was situated close to the boundary of Ms Kell's property and the tree branch fell across the boundary onto Ms Kell's property. Although Ms Kell's vehicle was parked on the Girl Guides Association's property, the openness of the land between the properties means that it should not be unanticipated that there would be casual instances of trespass. To my mind there should be no material lessening of the duty owed by the Girl Guides Association to Ms Kell as a trespasser as opposed to a neighbour.
In relation to the duty of care owed towards neighbours, Preston CJ in Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98 referred to the established categories of relationships where the law imposes a duty of care and noted at [96]: "The relationship between the owners or occupiers of neighbouring property is a familiar category where the common law imposes a duty of care on each neighbour in relation to the other neighbour."

Breach of the Duty of Care

Ms Kell asserts that the damage suffered is a consequence of the Girl Guides Association failing to have in place a proper process of inspection and maintenance of trees on its property. Furthermore, Ms Kell submits that the defendant was negligent in failing to give warning on the dangers to persons entering onto the property of the dangers of falling trees or branches.
The consideration of the scope of a duty of care and questions of breach are to be determined by reference to provisions within the Civil Liability Act 2002 (NSW) ("the Act").
Section 5B of the Act provides a statutory guide for determining whether a breach of duty exists. As noted by Young CJ in Eq in Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 at [530], "[s] 5B of the [Act] ... seems to embrace substantially what was once called the 'Shirt Calculus' (see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48)".
Section 5B of the Act provides as follows: "5B General Principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
In regards to the potential risk of tree branches falling it is inarguable that, to any person with the most basic experience of the natural world, it is reasonably foreseeable that tree branches will fall. It takes no expertise to understand that tree branches will fall for a variety of reasons including age, disease, overburdening weight or due to environmental forces such as wind. It is also readily foreseeable that if a branch falls from a larger tree then there is an increased risk that it may cause injury to either persons or property that is within the area below the tree.
While the risk of a branch falling from a tree situated on the Girl Guides Association's property causing either injury to person or property might be described as relatively low, it cannot be described as being so remote to be fanciful. The program provided by the Girl Guides Association has a significant "outdoors" component. No doubt the parkland setting of the Stockton property is a feature that made it amenable for use by the Girl Guides Association. In this context it can be expected that young women and girls regularly use the grounds surrounding the Hall. The property is also hired out for use by other community groups. The property is located in a residential area surrounded by a number of houses. It is likely that any major failure of a branch near the perimeter of the property may affect neighbouring properties. The outdoor use of the property combined with the proximity of trees to other residential properties increased the risk of damage.
The seriousness of the harm likely to arise as a consequence of a branch falling no doubt increases commensurate with the height, size and weight of the tree branch. The branch that failed in this instance was approximately 10 metres in length. It landed with sufficient force to cause a large dent in the roof of the plaintiff's vehicle and shatter the rear window. It is not difficult to conceive that had the branch collapsed on a person it would have resulted in grievous injuries or death.
The question then to be determined by the Court is what precautions would a reasonable occupier take in response to the risk that materialised. A number of earlier authorities involving branch and tree failures give guidance as to the reasonable obligations on occupiers.
In Noble v Harrison [1926] 2 KB 332, a tree shed a limb onto a person causing injury. The Court of Appeal held that the owner was not liable as the defect in the tree could not be discovered by inspection. Rowlatt J said at 338: "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."
In Brown v Harrison [1947] 177 LT 281, Somervell LJ referred to the obligations in the following terms: "...If there is a danger which is apparent, not only to the expert but to the ordinary layman which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible, because in the management of his property he had not acted as a normal reasonable landowner would act."
Caminer v Northern Investment Trust Ltd [1951] AC 88 was a case involving the failure of a tree situated on land owned by a company. Lord Reid said: "I think that the respondents' duty was not limited to dealing with any danger of which they might happen to be aware; and if a person has any further duty than that with regard to trees his first step must be to look at those trees which are near the highway or to get someone else to do so on his behalf to see whether any of them is dangerous. .. I think that it was their duty to have this tree inspected within a reasonable time, and it was not suggested that they did not have before the accident ample time to do this and to consider the results of an inspection and take any necessary action."
Lord Reid went on to consider the knowledge and skill of the person carrying out an inspection: "So in my judgment the appellants can only succeed in this appeal if they can show that there was something about this particular tree which should have suggested that lopping or other action was necessary. What inspection will suggest will depend on the degree of knowledge and experience necessary for adequate inspection. Plainly, it would be no use to send a person who knew nothing about trees. The alternatives put forward were that he should be an expert or that he should have at least such knowledge and experience of trees as a landowner with trees on his land would generally have. As the question depends on what a reasonable man would do I think that it may be put in this way. Would a reasonable and careful owner, without expert knowledge but accustomed to dealing with his trees and having a countryman's general knowledge about them, think it necessary to call in an expert to advise him or would he think it sufficient to act at least in the first instance on his own knowledge and judgment?"
In Stagecoach South Western Trains Ltd v Hind & Anor [2014] EWHC 1891 (TCC), Justice Coulson reviewed the authorities relating to the obligations on occupiers for damage caused by falling branches and summarised the principles as follows at [68]: "(a) The owner of a tree owes a duty to act as a reasonable and prudent landowner. (b) Such a duty must not amount to an unreasonable burden or force the landowner to act as the insurer of nature. But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes. (c) A reasonable and prudent landowner should carry out preliminary/informal inspections or observations on a regular basis. (d) In certain circumstances the landowner should arrange for fuller inspections by arboriculturalists. This will usually be because preliminary/informal inspections or observations have revealed a potential problem, although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections. (e) The resources available to the householder may have relevance to the way in which the duty is discharged." [Footnotes omitted]
Similar comments have been made regarding the obligation of occupiers of property in managing dangerous trees in Australian authorities.
In Vale v Whiddon [1949] NSWStRp 52; 50 SR (NSW) 90, the plaintiffs suffered injuries when a tree fell across a public road in a national park and struck their motor vehicle. Herron J stated at 104 to 105: "As I understand it, when premises adjoin a highway there is a duty on the occupier and, in certain cases, the owner, to maintain them in such a condition as not to be a nuisance, and apart from the nuisance there is a duty on the part of the occupier to take care to maintain the premises in a reasonably safe condition. Accordingly, if part of the premises falls down and injures a person in the highway, it is prima facie evidence of negligence on his part: Kearney v London & Brighton Railway Co [1871] LR 6 QB 759. This prima facie evidence of negligence may be displaced by showing that an inspection of the premises was made from time to time by competent persons. In my opinion, however, the duty to maintain the premises in a reasonably safe condition is not owed solely to persons on the highway. It is owed to anyone who is likely to suffer injury if the duty is neglected, whether he is on the highway or a private road or on the adjoining premises".
In Schiller v Mulgrave Shire Council (No 2) [1972] HCA 60; (1972) 129 CLR 116 the appellant was injured while walking along a track on a public reserve. Walsh J at [132] found that the respondent Council "did fail to exercise reasonable care to prevent damage from the danger that existed on the land under its control, by neglecting to make any inspection in the relevant part of the reserve and by taking no step to discover or deal with any dead tree standing near the lower part of the track."
What is consistent throughout the authorities is that a reasonable occupier of property has a responsibility to take active steps to ensure that regular inspections are carried out in relation to property to identify any potential dangers and then to respond to those dangers.
I am satisfied that the Girl Guides Association is in breach of its duty of care by failing to adopt any system of periodic inspection. The Girl Guides Association is in breach of its duty of care to Ms Kell, to others entering the premises as invitees, and to its neighbours. The reactive tree management approach adopted by the Girl Guides Association which responds to complaints raised is an inadequate precaution to the foreseeable risk of tree branches falling.
To my mind the Girl Guides Association has a duty to carry out periodic inspections and to maintain a record of those inspections. The regularity of inspections will depend on the particular characteristics and risks of each property, however, in respect to the property at Stockton which contains a number of large trees an inspection should, in my view, be conducted annually. This would ensure that any changes in tree structure or health are more monitored. Such inspections need not be carried out by a qualified arborist, however, it should be carried out by someone with at least a degree of competence in identifying apparent defects in trees although that competence may be obtained through experience rather than formal qualifications. Where a competent inspection identifies a possible risk then a further inspection by a qualified arborist may be appropriate.
I am mindful that the Girl Guides Association is an organisation that relies heavily on volunteer support and has limited funds to expend in property management. However, given that a component of the Girl Guides Association program is aimed at camping and environmental awareness it is an Association that should be capable of monitoring its immediate surroundings. Furthermore, given the Girl Guides Association programs' emphasis on its members being involved in outdoor activities, the potential exists that if a similar incident occurred in the future, the result may be death or serious injury rather than merely property damage.

Causation

The finding of a breach of duty on the part of the Girl Guides Association does not resolve the claim by Ms Kell. It is necessary that the breach be causative of the damage suffered.
Section 5D(1) of the Act provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so cause (scope of liability)."
In the present case I am satisfied that the breach of duty by the Girl Guides Association was not factually causative of the damage suffered by Ms Kell. The presence of White Rot fungus which contributed to the failure of the branch was not a patent defect readily identified by a lay observer. I accept the evidence of Ms Bleiker that the defects would not have been obvious to the untrained eye. While the poor structure of the tree was also a contributing factor to the failure of the branch the structure was not so obviously poor as to give rise to a recommendation by the Council to take more substantial remedial steps in 2011. Even if the Girl Guides Association had in place a proper system of regular inspections by a competent person, the defects in the present case would not have been detected.
The present case is similar to the circumstances arising in Micklewright v Surrey County Council [2011] EWCA Civ 922. In that case a father was killed by a falling branch from an oak tree while standing in a car park of Windsor Great Park, being a public park. The trial Judge found the defendant failed to have in place a proper system of inspection. A proper system of inspection was held to require a visual inspection by a person with a working knowledge of trees. Notwithstanding the breach the plaintiff's claim failed because even if the defendants had carried out a proper inspection, it would not have revealed anything warranting a more expert inspection. The decision of the trial Judge was upheld by the Court of Appeal. Justice Hedley noted that the trial Judge correctly directed himself on the law and concluded at [20]: "It is always discomforting where a family without any culpability, having suffered a catastrophic loss are forced to do so without compensation but this is the inevitable result of a law which ties compensation to proof of negligence."
It should be added to this that compensation is dependent upon the negligence proved being causally related to the damage suffered.

Obvious Risk

Ms Kell further alleges that the Girl Guides Association was in breach of its duty by failing to erect signs to warn of the danger of falling branches. In response, the Girl Guides Association submits that it should not be required to give warnings against "obvious risks".
The Girl Guides Association relies on provisions contained in Div 4 of Pt 1A of the Act and, in particular, ss 5F and 5H, which is set out as follows: "Section 5F Meaning of 'obvious risk' (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. ... "Section 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."
The "obvious risk" that is considered is the risk that eventuated and is the subject of the claim for damages (see CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 (Bryson JA) at [173] - [174]). The question is whether a reasonable person standing in the shoes of the plaintiff would have been aware that the risk was clearly apparent. In the present case it is for the defendant to establish that a reasonable person in Ms Kell's position would have been aware that a branch falling from the tree under which she parked her motor vehicle during high winds was an "obvious risk".
Weather forecasts for 13 October 2013 predicted severe winds around 50 km/hr with peak gusts of 90 km/hr for the Hunter area. State Emergency Services issued a warning for people to move motor vehicles under cover and away from trees. Weather observations from Nobbys Head at Newcastle record a wind speed of 56 km/hr at 3 pm on 13 October 2013.
While Ms Kell was unaware of any such warnings she states that it was her intention not to leave her motor vehicle parked in the position it was for any lengthy period of time due to presence of strong winds. Ms Kell's own evidence acknowledges her awareness of the risk.
I am satisfied that it was an "obvious risk" to park a motor vehicle underneath the tree in high winds. It is a matter of common understanding that high winds will test the frailties of any tree or branch. Ms Kell was aware of the risk and it is unlikely that any signage would have made a difference to her actions on that day. The operation of s 5H of the Act means that the defendant was not under a duty to provide signage to warn of this obvious risk.
The loss suffered by Ms Kell was, to some extent, an unfortunate case of being in the wrong place at the wrong time. The Girl Guides Association owed Ms Kell, and other entrants onto their land, a duty of care. Even if the Association had taken proper precautions, the tree was apparently healthy and the danger would not have been averted. The loss in this instance falls where it fell, that is, upon the plaintiff.
The Court enters a verdict in favour of the defendant. The Court allows costs of $55, being disbursement costs for an expert witness, to be paid by the plaintiff within 28 days. Assessor Olischlager Newcastle Local Court 4 December 2014 ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2015

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