TIMBS v SHOALHAVEN CITY COUNCIL

CATCHWORDS : Duty of care - public authority - deceased killed by falling tree- whether breach due to inadequate inspection of tree by Council officer - higher standard of care due to professed expertise - whether Council officer in fact attended property Compensation to Relatives Act 1897 LEGISLATION CITED : Environmental Planning & Assessment Act 1979 Environmental Planning & Assessment Act Model Provisions 1980 Local Government Act 1993 Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 Fox v Percy [2003] 77 ALJR 989 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 CASES CITED : Jones v Dunkel (1959) 101 CLR 298 Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 Pyrenees Shire Council v Day (1998) 192 CLR 330 Shaw Savill & Albion Co v The Commonwealth (1940) 66 CLR 244 Sutherland Shire Council v Heyman (1985) 157 CLR 42 PARTIES : Carlene Timbs - Appellant Shoalhaven City Council - Respondent FILE NUMBER(S) : CA 40706/03 COUNSEL : D F Jackson QC / R I Goodridge - Appellant D L Davies SC / P M Sibtain - Respondent SOLICITORS : Firths - The Compensation Lawyers - Appellant Phillips Fox - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 7547/01; 7549/01 FILE NUMBER(S) : LOWER COURT Nash ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40706/03 DC 7547/01; 7549/01

MASON P SHELLER JA HODGSON JA

TIMBS v SHOALHAVEN CITY COUNCIL The Timbs' residence was situated on a property at 135A BTU Road, South Nowra. During the night of 28 July or early in the morning of 29 July, a spotted gum was blown by the force of very strong winds onto the roof of the residence. The tree, which was about 25 metres high, caused the roof of the bedroom to collapse, killing Gordon Timbs, who was asleep in bed at the time.

The appellant, Carlene Timbs, who is the wife of the deceased, commenced proceedings against Shoalhaven City Council ("the Council") in the District Court. The first action brought was for damages to property and for rent payable during reconstruction of the residence. The second action was for damages under the Compensation to Relatives Act 1897. The appellant alleged that the death of her husband and the destruction of her home were caused by the Council's breach of its duty of care to her and her husband.

The proceedings were concerned with four identified trees on the western side of the Timbs' residence (including the tree that fell), which were the subject of a Tree Preservation Order. Pursuant to this Order, the trees could only be cut down lawfully with the consent of the Council. The appellant claimed that, at the request of her husband, a Council officer attended the Timbs' property in July 1996 and in January 1998 and advised that the four trees were safe and could not be removed. Further, on the second visit it was alleged that the Council officer stated that if the trees were removed the Timbs would be fined $2,000 per tree.

The trial Judge found that an officer of the Council had visited the Timbs' property on these two occasions and in both instances had stated that the trees were safe and could not be removed, although on the second visit, the officer gave permission for the trees on the western side to be lopped. Evidence was adduced that the trees were not lopped due to financial restraints.

The trial Judge was satisfied that there was imposed on the Council officer, and vicariously on the Council, a duty to take reasonable care in the information and advice which the officer gave to Mr and Mrs Timbs. However, this duty did not impose an obligation to dig around the trees to inspect any or all of the roots and the Council officer was entitled to the opinion he expressed upon a visual inspection of the trees, there being no evidence that the trees had anything but a healthy normal appearance. Accordingly, his Honour was satisfied that the advice that the trees could not be removed was not negligently given. Further, if contrary to his decision, the Council officer ought to have given permission to remove the trees, the trial Judge was satisfied that due to the same financial constraints, which prevented the Timbs from lopping the trees, they would not have been removed, and the tragic incident would still have occurred. For these reasons, the trial Judge gave judgment in favour of the Council in both actions and ordered the appellant to pay the respondent's costs.

The appellant challenged the findings of the trial Judge as to duty of care and submitted that in determining the health of the tree by only a visual inspection, the Council, or its officer, was imposing a restriction on the scope of the inspection. The question should be whether the Council officer had done all that was reasonable for him to do to determine, in the circumstances, whether consent should have been given. The appellant's submissions in relation to breach of duty of care centred on the failure to grant the deceased's request for permission to cut the trees down, the advice that the trees were sound, when in fact they were not safe at all, and the failure to advise that, if a tree had become dangerous, that was a defence to proceedings under the Tree Preservation Order relating to cutting it down. It was further contended that financial restraints would not have prevented Mr and Mrs Timbs from removing the said trees. A notice of contention was relied upon by the Council, to contend that the trial Judge's decision should be affirmed because his Honour wrongly failed to find that no Council officer attended the Timbs' property and gave advice in relation to trees on either of the occasions about which Mrs Timbs gave evidence. The notice of contention pointed to specifics of Mrs Timbs' evidence as incredible.

Held: per Sheller JA, Mason P and Hodgson JA agreeing:

1. The Council was not bound to express any opinion about whether the tree was dangerous. The Council, through its officer, took unto itself the responsibility of determining whether the tree was dangerous and, on the basis of its own finding that it was safe, refused to consent to the tree being cut down.
2. The trial Judge found that the Council officer did not know that the tree on the Timbs' property was dangerous when he made his inspections. But the question not sufficiently examined was whether the Council officer ought to have known the tree was dangerous.

3. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. In this case, the Council held a significant and special measure of control over the safety of homeowners who brought to the Council's attention their fears that overhanging trees were dangerous. This was particularly so, as the Council opted to advise the particular homeowner about whether the trees in question were dangerous.

Pyrenees Shire Council v Day (1998) 192 CLR 330 applied; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 distinguished; Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 considered. 4. Having accepted the responsibility of advising on the safety of the tree, what was described as a routine visual inspection, was not a sufficient inspection, where the risk, if the inspection was insufficient and the opinion was wrong, was not only to property but also to life, if the tree were to fall. 5. When the Council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his expertise and experience. In those circumstances, the requisite standard of care required of him was higher than that of a layman and, like a general practitioner, the sufficient level of expertise he professed to have, required him to make a reasonably informed diagnosis or to admit the need for referral to a specialist.

Mutual Life & Citizens' Assurance Company Ltd v Evatt (1968) 122 CLR 556; San Sebastian Pty Ltd v The Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 341. 6. The inference is open and should be drawn that a reasonably informed diagnosis would have revealed the decayed structural roots and the tree would have been pronounced dangerous. The Council would have consented to, if not insisted upon, the removal of the tree. 7. His Honour's conclusion that if permission had been given for the removal of the tree it would not have been acted upon, due to the then financial restraints on the deceased, was never put directly to Mrs Timbs. Further, this conclusion overlooks the fact that if the Council officer had not negligently performed the task of determining whether the tree was dangerous, then the true position as to the risk of the tree falling onto the house would have been revealed. If the true nature of the danger was revealed, the Timbs would not have risked the lives of themselves and their family and their property because of such financial constraints. 8. In considering the notice of contention, it should be noted that the Council never challenged or contradicted the evidence that one of its officers was present on the Timbs' property on the day of the accident and at least four trees on the property were cut down after the accident, apparently with the consent of this officer, Mr Hedger. Further, Mr Hedger was never called as a witness and Damien Timbs gave evidence as to a remark by Mr Hedger, which suggested some acquaintance with what had gone before between the Council and the Timbs. 9. Given these factors, the trial Judge could more confidently accept Mrs Timbs' evidence. The evidence given by Mrs Timbs was not on its face inherently improbable nor was it internally inconsistent. The want of Council records about the consent given to cut down the trees after the accident demonstrates that the absence of any written records of visits to the Timbs' property before the accident was not surprising and was not, apparently inconsistent with Council practice. The Council has not established a case for overruling the findings of fact challenged and, accordingly, the notice of contention should be dismissed. Per Hodgson JA: 10. This decision does not mean that a Council officer, who is asked informally for advice or consent in relation to a potentially dangerous tree, is obliged to give expert advice. In the present case, the Council officer could have stated that it was open to the deceased to obtain his own advice and to make a formal application to remove the tree and also that if the tree was dangerous, it could be removed without Council consent. There would then be no breach of duty.

Compensation to Relatives Act 1897 Environmental Planning & Assessment Act 1979 Environmental Planning & Assessment Act Model Provisions 1980 Local Government Act 1993 Cases cited:

Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 Fox v Percy [2003] 77 ALJR 989 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Jones v Dunkel (1959) 101 CLR 298 Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 Pyrenees Shire Council v Day (1998) 192 CLR 330 Shaw Savill & Albion Co v The Commonwealth (1940) 66 CLR 244 Sutherland Shire Council v Heyman (1985) 157 CLR 42

ORDERS 1. Appeals allowed; 2 Notice of contention dismissed; 3. Set aside the verdicts for the Council in actions 7547/01 and 7549/01; 4. In lieu thereof in action 7547/01 verdict for the plaintiff in the sum of $202,685 and in action 7547/01 verdict for the plaintiff in the sum of $541,091, each to date from 4 December 2002; 5. The Council to pay the plaintiff's costs of the proceedings before Judge Nash and of this appeal; 6. The Council to have a certificate under the Suitors' Fund Act 1951 if so qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40706/03 DC 7547/01; 7549/01

MASON P SHELLER JA HODGSON JA

Thursday, 1 April 2004 TIMBS v SHOALHAVEN CITY COUNCIL Judgment 1 MASON P: I agree with Sheller JA and the additional remarks of Hodgson JA. 2 SHELLER JA:

During the night of 28 or the morning of 29 July 1998, Gordon Timbs was killed when the force of very strong winds blew a spotted gum tree, which was about 25 metres high, down on to the roof of his residence causing the roof over the bedroom to collapse onto him. The residence was situated on a property at 135A BTU Road, South Nowra of 8.65 hectares, to which I shall refer as the Timbs' property. 3 Mr Timbs' widow, Carlene Timbs, brought these proceedings against the Shoalhaven City Council (the Council) in the District Court. The first action (7547/01) was for property damage and rent payable during re-construction. The second action (7549/01) was for damages pursuant to the Compensation to Relatives Act 1897. In those actions Mrs Timbs alleged that the destruction of her home and the death of her husband were caused by the Council's breach of its duty of care to her and to her deceased husband. She claimed that at the request of Mr Timbs or herself on two occasions, the first in July 1996 and the second on or about 19 January 1998, a Council officer came to the premises and advised that four identified trees, of which the one that fell was one, were safe and sound and could not be removed. At the time of these visits, the trees were subject to a Tree Preservation Order pursuant to which they could be cut down lawfully only with the consent of the Council usually on application on an approved form accompanied by a fee. On the second occasion, when Mr Timbs told the Council officer "we will just cut them down", the Council officer said that Mr and Mrs Timbs would be fined $2,000 per tree. 4 The Tree Preservation Order was made pursuant to the provisions of cl 8 of the Environmental Planning & Assessment Act Model Provisions 1980 as adopted by the City of Shoalhaven Local Environmental Plan 1986. Relevantly, the order prohibited in defined areas which included the Timbs' property, cutting down any tree which met defined standards, including three metres or more in height, which the tree which fell undoubtedly did, without the written consent of Council. Clause 8(5) provides that a person who contravenes or causes or permits to be contravened a Tree Preservation Order shall be guilty of an offence but cl 8(6) provides that it is a sufficient defence to proceedings under this clause relating to cutting a tree down to prove: "(a) that the tree … had become dangerous." 5 In Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 Lloyd J held that an application to remove trees constituted a development application for the purpose of an appeal under s97 of the Environmental Planning & Assessment Act 1979. Section 97 enables an applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application to appeal to the Land and Environment Court. This section was in force at the times of the attendances of the Council officer. Reference was also made by the Council, in further submissions, to s82A(1) of the Act, which is in Pt 4 "Development Assessment" Division 2 "The Procedures for Development that Needs Consent" and provides that if the consent authority is a Council an applicant may request the Council to review a determination of the applicant's application. However, this section did not take effect until 1 July 1998 and therefore was not in force, in July 1996 and January 1998 when it is alleged the discussions with the Council officer took place.

Evidence 6 The proceedings were heard by Acting Judge Nash in November and December 2002. Mrs Timbs gave evidence and called Lewis Edwards, Damien Clyde Timbs, the son of Mr and Mrs Timbs, and an expert, John Ford. The Council called its Environmental Services Officer in Charge of Records, Warwick Andrew Papworth, its Road Supervisor and Overseer, Trevor Joseph Maloney, its Environmental Building Surveyor, Troy Brad Bryce and Martin Aldous Upitis, a Council Civil Engineer. The Council tendered an expert report by Peter Castor, who was not required for cross-examination. 7 On 8 April 2003 his Honour gave judgment in favour of the Council in both actions and ordered Mrs Timbs to pay the Council's costs of each action. In case of a successful appeal and assuming the relevant date to be 4 December 2002, his Honour assessed damages in 7547/01 at $202,685 and in 7549/01 at $541,091. Both parties accept these assessments. Mrs Timbs appealed to this Court against the decision in each action.

Reasons for judgment 8 Judge Nash set out the background of the matter and summarised the plaintiff's evidence as follows: " BACKGROUND : The plaintiff and her husband bought the property about fourteen years prior to his death. The house was on it then. The trees were indigenous to the area. It is obvious that the trees were growing well before the house was built. I infer that the then owners of the property chose the position for the house because it was close to a Crown road, which was strictly a gravel access track, down the long western side of the property, the trees were attractive and gave some shade to the house. The house, although having a number in B.T.U. Road is quite a long way from that road which is the northern boundary of the property. I infer that, when they agreed to buy the property, the plaintiff and her husband knew the positions of the trees and the house. For some reason Mr Timbs became concerned about the westerly winds, the height of the trees and their close proximity to the house. The only evidence directly relating to what occurred is from the plaintiff. THE ALLEGED FIRST COMMUNICATION WITH THE DEFENDANT, VISIT AND INSPECTION OF THE TREES BY THE OFFICER: The Plaintiff's evidence. In chief: Prior to July 1996 the plaintiff and her husband had discussions about the trees. Mr Timbs telephoned the defendant and he was put through to someone. He gave his name, address and telephone number. He told the person he spoke to when he was at work and when he was not, Mr Timbs being a shift worker. The officer came to the property about 9.30 am as expected 'on that day'. He drove a white utility with a cover on the tray and the defendant's emblem was on the utility. She had not seen this officer prior to that day. Mr Timbs shook his hand. She was not introduced to him and does not know his name. He wore a council uniform of a bone coloured shirt which had 'Shoalhaven City Council' written on the left side. He was aged about forty years, about five feet ten inches tall, of fair complexion and fair to reddish hair. He had an Australian accent. She gave evidence inter alia as follows… 'We came out through the gate. The council man was coming down towards us. Gordon spoke to him. I didn't hear exactly what the council man had said to Gordon. Gordon asked him about the trees. The council man said that he would have a look at them. He actually asked him was he here to inspect the trees and the council man said 'Yes'. My husband said to him that he would like to cut the trees down. Gordon said to him 'The trees on the westerly side and the eastern side of the house'. Gordon said to the council man that he had more concern for the trees on the western side of the house should they fall. That was what was said like at the car park area and then Gordon asked the council man could he please come and have a look at them. They went over what is a barbed wire fence. I did not go with them. I just waited in the car park area. They went near the tree that ultimately fell and near other trees on that side (the western side of the house). They were in that general area inspecting trees for about ten minutes. Then they went around what is the front side of the house to where the other trees are on the eastern side. They stayed there for not a long length of time. I could not see them then because of the house and then they came back around what is through the gate to where the car park area is. My husband said 'Can we cut them down?' and the council officer said 'No' that he thought they were safe and sound. Her husband said if one of the trees fell it would fall on the house. Again the council officer said the trees were safe.' In cross examination: Neither her husband to her knowledge, nor she, made inquiries from anyone other than the defendant as to the safety, or otherwise, of the trees. She was not familiar with the term 'tree preservation order' before the officer came but was aware of it after that when her husband and she spoke about it. Her husband said to her that the defendant had a TPO that will determine whether we can cut them down and we cannot. She did not have a discussion with her husband about any fee in relation to trees being assessed by the council. She became aware of this after his death when she obtained a pamphlet, exhibit 3. Christmas Day 1997 : Mr and Mrs Timbs had a number of guests at their home on this day. One of them, Mr Edwards, parked his van in a position about where the officer had parked his vehicle on the first visit. During the afternoon, for no apparent reason, a fairly large branch fell from a spotted gum (not the one that was blown on to the house) on to his van. A photograph of this branch is in exhibit D and a photograph of the tree from which it fell is exhibit H. It was one of the four trees close to and on the western side of the house. The branch was about fifteen metres or so from the ground and was one of the lower branches of that tree. THE ALLEGED SECOND COMMUNICATION WITH THE DEFENDANT, VISIT AND INSPECTION OF THE TREES BY THE SAME COUNCIL OFFICER: The Plaintiff's evidence: In chief: On or about 19 January 1998 the officer again came to the property. Mr and Mrs Timbs went out to meet him. Her evidence, inter alia, was as follows: There was no introduction by name. … 'Gordon said that he was concerned with the trees because they had more slope on them now because of the westerly winds and he would like to cut them down. Gordon told the council man that on Christmas Day a large branch had fallen off a tree and he had concern about their safety. He showed the officer the tree from which the branch had fallen. The council officer said that we could actually lop the tops of the trees but we could not cut them down. To her observation the council officer looked at the tree from which the branch had fallen. This time the officer did not go over the fence to inspect the trees. Her husband said that he was not as concerned with the eastern side and he would concede those to be not cut down because they would fall into the paddock. The council man, Gordon, and I walked through the gateway and he went and had a look at them, not right down to them, but looked at them. When we were facing the trees on the eastern side the council officer said he thought they were safe. He told us that we could lop the top out of the trees on the western side. Gordon said that was ridiculous because they were too tall, if they were going to fall they would fall anyway and they had such a slope on them because of the westerly winds. He told us that the trees were safe and we could not cut them down. Her husband told the council officer 'well, we will just cut them down'. He told us if we did that then we would have a $2,000 fine per tree. Her husband then said 'That is ridiculous because you have more concern about the trees than my family'. The council officer said they were safe, we could not cut them down. He repeated that. This was the end of the conversation as she remembered it.' The plaintiff said she would most certainly recognise the officer if she saw him again. She has not seen him since the second visit. In cross examination: This visit was as a result of a phone call from her husband to the council. She was with him when this happened. He asked could he speak to somebody in 'Health and Building'. He said that he was Gordon Timbs, again of 135A B.T.U. Road, South Nowra and that a large tree branch had come down on Christmas Day and he would like somebody to inspect the trees, that he would like to cut them down. He also said that somebody had already been out. He did not use any names. He did not describe the officer who had made the first visit or that he had said then that the trees were safe. She fixed the date of this visit as 19 January 1998 because she looked at her husband's shift roster. By lopping the trees she understood some branches could be removed. The officer did not limit the extent to which branches could be lopped from the trees. Neither she nor her husband was given a card by the officer. She was not sure about the first visit, but on the second visit the officer definitely had a folder that opened up. It looked harder than a manila folder. She did not see what was in it other than papers when he opened it. She did not see him appear to be writing on any of the papers. WHAT WAS DONE AFTER THE DEFENDANT'S OFFICER'S SECOND VISIT: No evidence was adduced in chief from the plaintiff. In cross examination: Mr and Mrs Timbs got prices from A. D. Tree Lopping to have the seven trees lopped. This was eight hundred dollars. When first asked the plaintiff said they obtained quotes to have the trees removed completely. Later she explained this by saying that they (A. D. Tree Lopping) did not give a figure for this because they were told they would be fined if they removed any of the trees. The first person approached was Andrew Barrum who would not give a quote because it was too big a job for him and advised them to go to A.D. Tree Lopping. On this aspect questions and answers were as follows, ... 'Q. Having obtained the quote to have them lopped did you take any further steps with anybody in order to have any of the trees lopped? A. No, they were too expensive for us to do that. Q. Was one of the reasons you did not obtain a quote from A.D. Tree Lopping for removal was because you took the view that you could not afford the lopping, therefore you could not have afforded the removal? A. No, because we were told we were not allowed to remove by the council and we would be fined if we did. Q. Now how much were you prepared to spend on the trees lopped? A. It was not a discussion of how much we were prepared to spend. Q. You were simply told eight hundred dollars and the issue stopped there did it? A. Well we - yes, with them it did. Q. And with anybody else? A. As in another tree lopping person? A. Yes. A. No we never got another quote from another tree lopping person only the two. His Honour: Q. Well, did you get a quote from the first person for lopping? A. No, they said it was too big a job and they would not quote it. They advised us to go to A.D. Tree Lopping so they never actually - Q. So you only got one quote? A. As in two people came out, but only one as in a quote, yes. Q. And that was eight hundred dollars for the lopping? A. For the lopping.' THE STORM ON THE AFTERNOON AND NIGHT OF 28 JULY 1998 AND THE MORNING OF 29 JULY 1998 This storm, with exceptionally strong winds, principally from the west, raged throughout the above period. Because of circumstances neither the plaintiff nor her two sons occupied the home during that night, but Mr Timbs did. On the afternoon of 29 July 1998 one of the many spotted gum trees within the boundaries of the lane used for access to the home and property was blown down across the access road onto another tree. Mr Schutz, a brother of the plaintiff, was contacted by Mr Timbs and, with the help of Mr Timbs and his son Andrew, the tree was removed, cut up and the laneway cleared. During the morning of 29 July another son Damian, his brother Andrew, their uncle Colin Timbs and their friend Lewis Edwards all arrived separately at the property. Also present were police and ambulance officers and an officer of the defendant later identified as Mr Hedger. In evidence Mr Edwards said there was a lot of swearing and sort of abuse towards the council officer. He walked away because it was a family matter. Damian Timbs said that, when the council officer came to the home, he identified himself as being from the council and asked if they were related to Mr Timbs. He and uncle Colin both said they were. The officer (Mr Hedger) then said 'You can now chop down the trees, they should not have been twenty metres to the house'. Damian became very angry, grabbed the officer's shirt and said 'It is a bit late for that now'. There was no cross examination of Damian Timbs. At this stage I add that Mr Hedger was identified by witness Mr Papworth who stated that he telephoned Mr Hedger at Sussex Inlet a couple of months before Mr Papworth gave his evidence. As Mr Hedger did not give evidence, I ignore what Mr Papworth said was the content of that conversation." 9 Included in the material in evidence was a letter of 30 July 1998 from the Council's Health and Community Services Manager to the police service stating, inter alia" "A search of Council's records has not revealed any applications within the last 12 months for removal of a tree at 135A B.T.U. Road, South Nowra. Further it is understood that the tree in question was more than 30 metres from the road boundary and therefore under the Tree Preservation Order approval would not have been required for this property as it is in a rural 19(a) zone." 10 The second quoted sentence misstated the position. The Council accepts that the tree in question was the subject of a Tree Preservation Order. Judge Nash observed that the media generally gave publicity to the occurrence in question and that at least the Sydney Daily Telegraph newspaper included in its report of the incident that the Council had been approached for permission to remove the trees and that this had been refused. His Honour said: "This information could have come only from one or more members of the Timbs family." 11 At some time shortly after the death of Mr Timbs, A D Tree Lopping cut down the remaining three trees on the western side of the house by arrangement with Mr Colin Timbs and Mr Wayne Schutz. No written Council approval was obtained for this to be done. There was no evidence as to the cost involved or how that was paid. His Honour said: "There is evidence that the plaintiff received the proceeds of a superannuation insurance policy and I infer the cost probably came from that." Mrs Timbs gave evidence of telephoning and also attending the Council's offices after her husband's death. She was told by Mr Bryce that there was not a Council file "at all on B.T.U. Road for Timbs". 12 The trial Judge carefully reviewed the evidence. His Honour said that Mrs Timbs appeared to give her evidence honestly, to the best of her ability, and that there was nothing in her demeanour to suggest she was not truthful. The Council advanced arguments directed to significant parts of her evidence as unlikely to be true for various reasons. On behalf of Mrs Timbs it was said that for various reasons her evidence had a "ring of truth" about it. Having set out these arguments on both sides, the trial Judge said that his prima facie view was that Mrs Timbs' evidence came from a genuinely loving and caring wife, devastated by the premature loss of her husband, an unsophisticated, hardworking woman who could not readily invent false evidence and, if she did, there would be tell-tale signs of this. That did not occur. His Honour said: "I realise and appreciate the force of Ms Sibtain's submissions [Ms Sibtain appeared for the Council] principally relating to the lack of any records of either of the visits by the defendant's officer, the co-incidence in the circumstances of the same uniformed officer attending the property on both occasions, the inability to identify the officer and the fact that TPO assessing officers did not wear uniforms but, bearing in mind my own observations and the pertinent arguments of Mr Conomos [who appeared at the trial for Mrs Timbs], I have come to the firm conclusion that my prima facie view of the plaintiff's evidence is correct." 13 The trial Judge found that the two visits by the unknown Council officer did in fact occur and the effect of the conversations which Mrs Timbs heard between that officer and Mr Timbs was as she had stated. 14 The trial Judge's findings were as follows: · On the Council officer's first visit, at Mr Timbs' request, in July 1996 Mr Timbs said he would like to cut the trees down. He had more concern for the trees on the western side should they fall. The officer inspected the trees. Mr Timbs said "can we cut them down?" The officer said "no", he thought they were safe and sound. Mr Timbs said "if one of them falls it would fall on the house". The officer said that the trees were safe. · On the second visit in January 1998, again on Mr Timbs' request, Mr Timbs said he was concerned with the trees because they had more slope on them because of the westerly winds and he would like to cut them down. He said that on Christmas Day a large branch had fallen off a tree and he had concern about the safety of himself and his family who occupied the house. The officer looked at that and other trees and said they could lop the tops of the trees on the western side but could not cut them down. He said the trees were safe. Mr Timbs said that lopping was ridiculous because the trees were too tall and if they were going to fall they would fall anyway because they had such a slope on them as a result of the westerly winds. Mr Timbs said "we will just cut them down" and the officer said if they did they would have a $2,000 fine per tree. Mr Timbs said that was ridiculous because the officer had more concern about the trees than his family. The officer repeated that the trees were safe and they could not cut them down. · After this conversation, either Mr or Mrs Timbs approached a friend for a quote to lop the trees. He could not do that particular work and suggested they approached A D Tree Lopping which quoted $800 to lop the trees. A D Tree Lopping did not quote for the removal of the trees. Lopping did not occur because it was too expensive for Mr and Mrs Timbs to pay for it. 15 Turning to the question of what the Council officer saw on his two visits, the trial Judge said there was no evidence that on either of these visits there was any sign of water-logging near any of the trees. There was no evidence that the trees had anything but a healthy normal appearance. The fact that one of them had dropped a fairly large branch on 25 December 1997, although of obvious concern, by itself was not such an event as to cause anyone to conclude other than that they had a healthy normal appearance. There was no evidence that Mr or Mrs Timbs felt concern that any of the trees were other than healthy trees. Their concern, which was not surprising, was that if any of the four trees on the western side of the house were blown over it was almost certain they would fall on to the house. No one had any idea that there was the slightest problem with the roots of any of the trees. There was no evidence that anyone who might be regarded as an expert on trees, considered, before the event, that any of the subject trees were likely to be blown over. 16 The trial Judge observed that if Mr or Mrs Timbs felt there was anything unhealthy about any of the trees they could have obtained an expert opinion even from someone such as their friend, whom they approached to lop the trees, to allay their fears or in support of their application to remove the trees. 17 The trial Judge found that the statement by the Council officer on the first visit that he thought the trees were safe and sound and on the second that they were safe meant that, based on the appearance of the trees, they were healthy and would not be blown over. His Honour was convinced that the statements were the honest opinion of the officer based on his inspections of the trees. He gave permission to lop the trees which, if it had happened, would have reduced the impact of the wind on the subject tree and may have resulted in it still being standing today. "It is not the defendant's fault that the lopping did not take place". 18 The trial Judge had no doubt that the Council officer realised that Mr and Mrs Timbs intended to act on his advice "in respect of their property (the house) and themselves (including their family) in connection with the matter of serious consequence (their fear that one or more of the trees may fall on to their house)". In the circumstances it was reasonable for them to seek, to accept and to rely on what the Council officer said. 19 The trial Judge was satisfied that there was imposed on the Council officer, and vicariously on the Council, a duty to take reasonable care in the information and advice which the officer gave to Mr and Mrs Timbs. His Honour said: "On the facts as I have found them, the officer had to decide the matters of the health of the trees, whether any or all of them were likely to fall or be blown over on to the house in a storm and/or strong wind and as to whether permission to remove the trees should be granted on his visual inspection of them. For this purpose, I do not consider he should have dug around the trees to inspect any or all of their roots. In the circumstances I am not satisfied that the opinion then expressed, that is the trees were safe and sound - this being to the effect that they were healthy and would not fall or be blown over - was wrong and therefore negligently stated. It follows that I am not satisfied in respect of the ultimate advice, namely that the trees could not be removed, was negligently given. I consider it reasonable for the officer to have informed Mr and Mrs Timbs that the trees could be lopped. In particular they relied on this advice by obtaining a quotation for this to be done but, because of financial constraints, did not have them lopped." 20 His Honour went on to say that if, contrary to his decision, the Council officer ought to have given permission to remove the trees in the circumstance he was satisfied that because of the same financial constraints they would not have been removed and this tragic incident would still have happened.

Expert Evidence 21 The plaintiff relied upon the evidence of John Ford, who described himself as a Root Identification & Tree Root Behaviour Consultant. His report of 17 October 2001 was in evidence. Mr Ford inspected the site on 28 September 2001. The roots of the tree that fell down were no longer available for him to inspect. He said that newspaper articles described the tree as being variously 25 metres and 30 metres in height and 60 cms in diameter. In his report Mr Ford said: "4.2 There are however many factors involved which may influence or increase the risk of a tree falling at any given time and any person employed by a public authority to make a judgement on the safety of a tree should be aware of and able to address the following factors: (i) age of the tree (ii) health of the tree (iii) history of the tree (iv) type of tree (v) location of the tree (vi) nature of the soil in which the tree is growing (vii) rainfall conditions (viii) wind conditions … 4.10 As the conditions of strong westerly winds and high rainfall at the same time are common in the Nowra region, the risk of the Timbs' trees being toppled at such times was high and the most likely direction for the trees to fall was to the east - towards the house. The fact that the tree in question was some 30 metres tall and only 10 metres from the house left little doubt of the potential for disaster." 22 Mr Ford was of opinion that much information as to the risks of when and where trees will fall was available about the tree either by direct observation, general local knowledge or data available from government organisations or in published form. Mr Ford believed that it should have been possible to assess the risk of the tree that killed Mr Timbs and conclude that the risk was unacceptable. In para 5.0 "Conclusion" he set out five risk factors: "(i) The tree was in such a location that if it did fall it could cause at the very least serious damage to property. (ii) A tree growing in a known shallow topsoil with a hard clay sub soil is more susceptible to toppling than a tree able to send its roots deep into the soil. (iii) The trees on the Timbs' block are growing as relatively isolated individuals and exposed to very strong westerly winds. (iv) As the most dangerous winds come from the west, if the tree did fall the most likely direction for it to fall was east and on to the house. (v) In the Nowra region rainfall commonly occurs prior to and in combination with strong winds in June, July and August and wet soils are less able to hold tree roots in strong winds than dry soils." 23 Mr Ford gave oral evidence and was cross-examined. In the course of cross-examination he said: "Q. So is it your evidence that any tree might fall when exposed to high enough winds? A. It's my opinion, given the sufficient strength of a wind any tree will fall. Q. You do not suggest do you that all trees near property should be removed? A. No. Q. You do not suggest do you that all trees in the kind of soil that was on the Timbs property should be removed? A. No. Q. You do not suggest do you that all trees which are exposed to strong westerly winds should be removed? A. No. Q. Those factors on their own are not something which would indicate a higher than acceptable risk? A. Which factors, sorry? Q. The wind on its own, the westerly wind on its own. The high winds on their own. The clay soil on its own. I am asking you to focus on those factors on their own? A. As individual factors you are asking me? Q. Yes? A. The wind is the problematic one though because given sufficiently high winds, you know 180 or 200 kilometres for instance, no tree really can in a situation like that survive those sorts of winds. Q. The subject tree that fell on the Timbs' house had withstood somewhere in the order of 147 kilometres in 1995 had it not? A. It must have yes. Q. So high wind would not necessarily be a factor to remove that tree, would it? A. High wind alone, I guess not. No it's not. Q. It was a tree that was probably growing in the soil with the high clay subsoil? A. Yes. Q. Notwithstanding that fact it withstood winds of 147 kilometres an hour or thereabouts? A. Yes. Q. So in relation to this tree those two factors in combination would not necessarily be something that made this tree an unacceptable risk? A. The tree hadn't come down until the obvious fact that it came down. I would say that putting those two factors together it does obviously increase the risk of the tree coming down. Q. But it does not increase it to a risk that one would wholesalely (as said) remove those trees, does it? A. Let me say that if I was living in that house -- Q. That is not my question. … Q. The soil factor together with the high winds with the knowledge that a tree growing in that soil with wind condition in the past, that it had withstood 147 kilometres per hour, those two things in combination would not necessarily make this tree of an unacceptable risk so as to take it down? A. No I don't agree with that. Although the tree had not come down yet it still increases the risk of it coming down relative to a tree in a low wind area and a different soil type. Q. You are suggesting by that there are safer trees out there? A. Yes. Q. You made the comment that one knows it is going to fall down when it does fall down. Of course your evidence is given in hindsight is it not? A. Yes. Q. You would appreciate that these decisions need to be made before the event, in respect of this case? A. Yes indeed. Q. This tree has a shallow root system? A. Yes. Q. By that do you mean that the roots spread out in a fan? A. Yes. Q. To some extent they grow beneath the surface, do they not? A. Always below the surface. Q. How far below the surface. Are you able to say or does it vary? A. Where the root comes off the main stem you can visibly see them and then they go down into the soil. Most of the roots would be within, those large roots, within the top 30 centimetres. So within 50 centimetres of the tree they might be perhaps say 20 centimetres below the soil and further away, a little lower but not much. Q. The extent to which a tree with a shallow root system is stable in that it will not fall over is determined, is it not, by how big that root system is? A. Yes. Q. How far it spreads out? A. Yes. Q. The soil to which it spreads into? A. Yes. Q. How many roots are within an area? A. Yes. Q. How healthy those roots are? A. Yes. Q. A visual inspection of a tree like that would not reveal anything about how far the roots had spread, would it? A. No. Q. It would not reveal anything about the health of the roots under the surface? A. There are some things that might indicate the health of the roots." 24 A little later on he gave the following answers: "Q. One of the things that you might see in a spotted gum which is coming towards the end of its life will be some obvious holes in the crown? A. By holes you mean lack of foliage? Q. Yes? A. I guess so because the large branches will fall out so they'll leave a hole in the crown. Q. That is something that a visual inspection will tell anyone experienced in the field of trees? A. To give an indication yes of the health of the tree and if it is .. (not transcribable).. Q. That might be a matter to consider in assessing whether or not a tree should be cut down? A. The health of the tree? Q. Yes? A. Yes indeed. Q. Because when assessing whether a tree should be cut down a process of balancing, is it not, is the amenity and environmental values of a tree compared with, for example, threat to life and property, correct? A. I don't make those decisions but I would agree. Q. Assuming you had to make that decision that would be the balancing exercise? A. The balancing - yes, yes. Q. You have listed at paragraph 4.2 a number of things that might influence or increase the risk of a tree falling? A. Yes. Q. They would be the things you would say would be appropriate to consider? A. Yes. Q. When deciding whether or not a tree was an unacceptable danger? A. Yes. Q. The first one is the age of the tree? A. Yes."

Mr Ford conceded he had no idea of the history of the tree. 25 The cross-examination continued: "Q. Then there is the type of tree? A. Type of tree yes. Q. And its location, both of which were known. The nature of the soil which we have already discussed and the rainfall and the wind? A. Yes. Q. So, in assessing factors which determine the risk of a tree falling, all those things play a role? A. They would yes. Q. Are any of them more important than the others, or does it depend on the history, for example? A. Yes, you see a wild card would be the history of the tree. You don't know what's happened to a particular tree, but the things that I would be looking at most there would be the wind and the rain. Q. Would you agree that in assessing that risk it is very much what you would term as an art form? A. Risk perception - well I'd say it's perhaps a combination of the two. I mean you do have some criteria you can relate it to but it's difficult to put a number on it. Q. Because many of those criteria are unknown? A. Some are unknown, I wouldn't say many. The history is unknown and the age of the tree is not completely unknown. Q. Of all the things that are known that is not going to give you a particular day or date for a tree to fall, is it? A. Absolutely not." 26 The report of the Council's expert Mr Castor was dated 9 October 2002. Mr Castor visited the site on 5 October 2002. The subject tree and root plate had been removed from the site. The location of the crater formed by the up-rooting (windthrow) of the subject tree was identified from the supplied photographs. Mr Castor described the tree as approximately 25 metres tall with a likely canopy spread of 10-20 metres. The tree was located approximately 10 metres west of the residence and had an estimated age of 60-80 years. It appeared in good vigour judging by the colour of the foliage, as shown in a photograph, the colour of the bark, the soundness of the trunk wood, viewed in cross section from a photo, and the lack of major dead limbs. The structural roots which would have been orientated to the north-west and south-west appeared to have no feeder root development suggesting they were dying or decayed. Approximately 350mm below the ground line appeared to be a line of dead or decayed trunk wood with a possible small cavity. The fractured section of structural root was examined on site on 5 October 2002 as it remained in the root crater. It was highly likely that the root was decayed at the time of the tree failure. 27 Mr Castor described the tree failure as a "whole tree" failure or windthrow. In his opinion it resulted from the rotation and uplifting of the root plate. The trunk did not split or collapse. Sections of the canopy or individual branches did not fall or collapse. The trunk and/or canopy of the tree caused the damage to the residence and the death of Mr Timbs. The tree fell in the direction of the winds which at the time were from the north-west. The ground was likely to have been wet if not water-logged at the time of the failure. He referred to Mr Ford's observation at his inspection on 28 September 2001 that the soil was quite water-logged just below the house to the north although it was not obvious where the water was coming from. The maximum wind speed recorded from 6 pm on 28 July to 9 am on 29 July 1998 was 57 km/h at 6 am on 29 July. 3.8mm of rain was recorded at 3 am immediately preceding the maximum wind speed. Mr Castor was of opinion that it was likely the root zone of the subject tree was water-logged at the time of the failure. 28 Speaking of the surrounding landscape, Mr Castor said the subject tree was not in the front line of the prevailing wind. Other spotted gums of similar size and age directly up-wind of the subject tree would have been providing a degree of shelter. There were factors which meant that other trees would have been more prone to windthrow but were still standing. There was a septic tank, adjacent to the western side of the residence, up-slope of the subject tree. It was possible there were absorption trenches down-slope of the septic tank within the root zone of the subject tree. There was a shallow plastic pipe running from the direction of the septic tank passing within three metres of the tree. It was likely this pipe was transporting "grey water" or roof water away from the residence. The pipe was broken five to six metres north of the root crater. In Mr Castor's opinion, the plastic pipe and septic system were likely to have contributed to intermittent water-logging and the alteration of nutrient characteristics of the root zone of the subject tree. Mr Castor said that other forms of root zone disturbances associated with the use of the land (eg soil compaction from vehicles or animals and fertiliser applications) were likely. "In my opinion these factors have pre-disposed the tree to root decay which was a primary cause of the windthrow." 29 Mr Castor went on by way of review to respond to matters stated in Mr Ford's report. In particular he did not concur with the opinion of Mr Ford in relation to the five risk factors that: "Any one of the above factors should have been sufficient to indicate a higher than acceptable risk." He said: "It is not generally accepted that trees should be cut down if they could cause damage to homes if they fall. The same principle applies to trees adjacent to roads, highways or other assets. The risk of windthrow across a highway is not generally considered high enough to warrant wholesale tree removal." 30 He agreed in general that a tree growing in a known shallow topsoil with a hard clay sub soil is more susceptible to toppling than a tree able to send its roots into the soil but commented that the subject tree was indigenous to the site and had evolved over the millennia to cope with the soil type and other environmental growth factors. Further, it was necessary to question why the more exposed trees to the west of the subject tree did not fall on the night of the accident. 31 Based on the expert evidence the trial Judge found that the most obvious principal cause for the tree being blown over was the severe storm and strong winds on the afternoon and night of 28/29 July 1998. The trial Judge observed that as the trees had previously withstood other storms, including even stronger winds, the question must be asked as to why the tree which fell did not withstand the storm on this occasion. In the trial Judge's view the answer lay in the report of Mr Castor when, from photographs, he observed that approximately 350mm below the ground line of the tree there was a line of dead or decayed trunk wood with a possible small cavity. Mr Castor examined on site a fractured section of structural root and concluded that it was highly likely that the root was decayed at the time of the tree failure. He also said that the failure was a "whole tree" failure or windthrow which resulted from the rotation and uplifting of the root plate. The ground was likely to have been wet, if not water-logged at the time of the failure. 32 The trial Judge said: "Notwithstanding his wrong queries as to why none of the similar trees in the laneway had not been blown over (as I have stated at least one had), on balance I consider Mr Castor's conclusions ought to be accepted. These are those contained in paragraphs 53 to 56 of his report. … Those paragraphs were as follows: '53 The failure (windthrow) of the subject tree was due to wind gusts to 57km per hour coinciding with water-logged soils and a decayed root system. 54 The decayed root system is likely to have been caused by disturbances relating to the use of the land surrounding the tree but primarily the septic and stormwater outlets. 55 The decayed roots are not likely to have been visible at ground level. The above-ground appearance of the tree would have been that of a healthy, normal specimen despite the degraded root system. 56 Minor hand excavation around the base of the tree (root crown) would have been required to identify the decayed structural roots. Such root crown inspections are not generally undertaken by Council tree officers during routine Tree Preservation Order inspections. Further information is often requested which may take the form of an independent arborist report if root disturbance is suspected."

33 As I have said none of Mr Castor's evidence was challenged in cross-examination.

Appeal and notice of contention 34 In each action Mrs Timbs appealed from the trial Judge's decision against her on liability. The Council filed a notice of contention. Mr Jackson QC, who appeared for her on the appeal, pointed to the essential part of the trial Judge's reasons rejecting the plaintiff's claim on liability. That claim had been propounded in negligence as one based on negligent advice given to Mr and Mrs Timbs on each of the two visits by the Council officer. His Honour had said there was no doubt that that officer realised that Mr and Mrs Timbs intended to act on his advice in relation to a matter of serious consequence to them and their property. Moreover, there was no doubt that the circumstances were such that it was reasonable for Mr and Mrs Timbs to seek, or to accept and to rely on the utterances of the Council officer. These parts of the reasoning were not challenged by the Council. Nor was the trial Judge's conclusion that there was imposed on the Council officer, and vicariously on the Council, a duty to take reasonable care in the information and advice which the officer gave to Mr and Mrs Timbs.

35 Mr Jackson submitted that in determining the health of the trees by only a visual inspection the Council or its officer was imposing a restriction on the scope of the inspection. The trial Judge said that he did not consider the officer should have dug around the trees to inspect any or all of their roots. But the question was whether the Council officer had done all that was reasonable for him to do to determine, in the circumstances, whether consent should have been given. 36 In the statements of claim, as amended, the plaintiff said that in the belief that the property was governed by the Tree Preservation Order the deceased made application to the Council for permission to cut down the trees. It was further pleaded that in reliance upon the Council officer informing the deceased that if he were to cut the trees down he would be liable to a fine of $2,000 per tree under the Tree Preservation Order, the deceased took no action to have the trees felled. The particulars of breach of duty of care centred on the failure to grant the deceased's request for permission to cut the trees down, the advice that the trees were sound, when in fact they were not safe at all, and the failure to advise that, if a tree had become dangerous, that was a defence to proceedings under the Tree Preservation Order relating to cutting it down.

Discussion 37 To my mind, put shortly, the appellant's claim should be approached in this way. For present purposes if, at the times Mr Timbs spoke to the Council officer, the tree was not dangerous, the deceased was forbidden to cut it down without the written consent of the Council. To do so would be contravening the Tree Preservation Order and Mr Timbs would have been guilty of an offence. Unless the tree, relevantly, was dangerous or the Council consented in writing, the cutting down of the tree was prohibited. The Council effectively refused consent and further said that the tree was safe. In reliance upon that the deceased took no steps to cut the tree down. Bearing in mind its location and the prevailing westerly winds, the obvious risk was that if this particular tree had become dangerous and if, as a result, there was a whole tree failure or windthrow, the tree would fall to the east and on to the house. About that both experts agreed. 38 The Council was not bound to express any opinion about whether the tree was dangerous. As was conceded in argument, the Council officer could have refused to make any decision, required Mr Timbs to file an application for consent and advised Mr Timbs that that application should be supported by evidence that the tree or trees had become dangerous. But the Council, through its officer took unto itself the responsibility of determining whether the tree was dangerous and, on the basis of its own finding that it was safe, refused to consent to the tree being cut down. 39 This demonstrates the importance of some of Mr Ford's evidence. Obviously all tall trees can cause harm if they are blown down. The risk of causing harm might be regarded as slight if the tree is one of a group in the middle of a paddock away from any place in which people live or work. The risk is increased, however, if the tree is 25 metres tall and located 10 metres from a house in which people are living and may, as in the case of Mr Timbs, sleep at night. Lives may depend on the accuracy of a determination about whether the tree is dangerous. In the present case it was fortuitous that on the night of the incident only one person was asleep in the residence. Mrs Timbs and her two sons were away. 40 The Council decided in 1988 to make a Tree Preservation Order in respect of all trees on land which included the Timbs' property. By so doing the Council prohibited the cutting down of trees on that land which met certain standards of height and girth and span. The tree which fell in this case met these standards. The Council assumed control of cutting down or lopping or topping, amongst other things, such trees. That could only be done with written Council consent. If a landowner cut down a tree without written consent it ran the risk of being successfully prosecuted unless it could show that the tree had become dangerous. Whatever may have been the extent of the responsibility which a Council thereby undertakes, it must, at least, involve taking reasonable steps to determine, when a landowner seeks consent to cut a tree down on the grounds that it is dangerous, whether the tree is dangerous, for example, whether it could fall down in winds of a strength likely to occur, and if it fell down was likely to fall onto an occupied residence. 41 Mr Jackson referred us to Pyrenees Shire Council v Day (1998) 192 CLR 330, a case in which a council had failed to exercise powers under s694(1) and s695(1A) of the Victorian Local Government Act 1958 to take measures for the prevention of fires or give directions to alter a fireplace to make it safe for use as such, in the knowledge that the fireplace was unsafe for use. A fire escaped from the fireplace and destroyed premises occupied by tenants and by an adjoining shop. The tenants succeeded at trial but the shop owners failed. The High Court, by a majority, dismissed the council's appeal against the decision in favour of the tenants and unanimously upheld the shop owners' appeal. At 388-390 Gummow J, who was a member of the majority which dismissed the council's appeal and who held in each case that the council was in breach of a duty of care owed to the respective plaintiffs, discussed the existence and extent of the duty of care by referring first to the judgment of Dixon J in Shaw Savill & Albion Co v The Commonwealth (1940) 66 CLR 344 which contained what his Honour said were three general propositions of importance for the present litigation. The first, at 189, was: "[t]he obligation of due care to avoid harm to others, though a general duty, arises out of the situation occupied by the person incurring it or the circumstances in which he is placed."

The second was: "where what is alleged against [the defendant] is failure to fulfil an obligation of care, the character in which he acted, together, no doubt, with the nature of the duties he was in the course of performing, may determine the extent of the duty of care."

The third proposition was: "in the application of the other propositions, regard is to be had both 'to reason and to policy'." 42 Mr Jackson submitted that the situation occupied by the Council and the circumstances in which it was placed were similar to those described by Gummow J at 389 in the following way: "In May 1990, the situation occupied in relation to this litigation by the Shire as the arm of local government gave it a significant and special measure of control over the safety from fire of persons and property in Neill Street. Such a situation of control is indicative of a duty of care [footnote omitted]. The Shire had statutory powers, exercisable from time to time, to pursue the prevention of fire at No 70. This statutory enablement of the Shire 'facilitate[d] the existence of a common law duty of care' [footnote omitted], but the touchstone of what I would hold to be its duty was the Shire's measure of control of the situation including its knowledge, not shared by Mr and Mrs Stamatopoulos or by the Days, that, if the situation were not remedied, the possibility of fire was great and damage to the whole row of shops might ensue [footnote omitted]. The Shire had a duty of care 'to safeguard others from a grave danger of serious harm', in circumstances where it was 'responsible for its continued existence and [was] aware of the likelihood of others coming into proximity of the danger and [had] the means of preventing it or of averting the danger or of bringing it to their knowledge' [footnote omitted]." 43 Of course Judge Nash found that the Council officer did not know that the tree on the Timbs' property which fell down was dangerous when he made his inspections. But the question not sufficiently examined was whether the Council officer ought to have known that the tree was dangerous. 44 In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 the High Court unanimously held that a shire council owed no duty of care to the plaintiff consumers of contaminated oysters grown on a lake within the shire. In that case (see 562-3) a different form of control was said to be relevant namely "powers of control over the activities that constituted potential sources of pollution of" the lake. "From those powers, conferred in the main by the Local Government Act 1993 (NSW), coupled with foreseeability of harm, it was argued that there was a duty on the part of the Council to eliminate or reduce the risk of viral contamination of" the lake." At 564 Gleeson CJ observed that the powers conferred upon the council, relevant to the case, were conferred for the benefit of the public generally not for the protection of a specific class of persons. In Pyrenees Shire Council v Day "there was a clearly identified cause of harm, specific action or inaction on the part of the Council, and, as Kiefel J pointed out, 'coincidence between the action which was necessary to prevent the fire, the powers given to the Council and the purpose for which they were given'." 45 At 576-8 McHugh J said: "82 The likelihood of the common law imposing an affirmative duty of care whose content may require the exercise of a statutory power increases where the power is invested to protect the community from a particular risk and the authority is aware of a specific risk to a specific individual. If the legislature has invested the power for the purpose of protecting the community, it obviously intends that the power should be exercised in appropriate circumstances. If the authority is aware of a situation that calls for the protection of an individual from a particular risk, the common law may impose a duty of care. In that situation, failure to exercise the power may constitute negligence. This seems the best explanation of Pyrenees Shire Council v Day where the majority of the Court held that a Council which knew of a fire risk owed a duty of care and breached it by not exercising its powers. Kirby J said: 'The statutory power in question is not simply another of the multitude of powers conferred upon local authorities such as the Shire. It is a power addressed to the special risk of fire which, of its nature, can imperil identifiable life and property. Therefore, the nature of the power enlivens particular attention to its exercise and to the proper performance of a decision whether to give effect to it or not'. 83 Similarly, in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 559 [102], Gaudron, Gummow JJ and I said that: 'on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance.' 84 Where a plaintiff claims that a public authority owed him or her an affirmative duty of care in a situation that has not yet been recognised by the common law, the court must examine a number of matters to determine whether the duty existed. I pointed to these matters in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 39 [93]: · Would a reasonable public authority reasonably foresee that its act or omission, including a failure to exercise its statutory powers, might result in injury to the plaintiff or his or her interests? · Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person? · Was the injured person or his or her interests vulnerable in the sense that the injured person could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? · Did the public authority know, or ought it to have known, of an existing risk of harm to the plaintiff or, in some cases, to a specific class of persons who included the plaintiff (rather than a risk to the general public)? · Would the imposition of the duty of care impose liability with respect to the defendant's exercise of 'core policy-making' or 'quasi-legislative' functions? · Is there any supervening policy reason that denies the existence of a duty of care? 85 If the first four of these questions are answered in the affirmative and the fifth and sixth questions in the negative, the court will ordinarily hold that the authority owed a duty of care to the plaintiff. Conversely, if any of the first four questions are answered in the negative, or either of the fifth and sixth questions are answered in the affirmative, ordinarily no duty of care will arise." 46 The first three of these questions in the present case should be answered in the affirmative. The central question is whether the Council ought to have known of an existing risk of harm to the Timbs and their property. The fifth and sixth questions should be answered in the negative. 47 At 597-9 Gummow and Hayne JJ, with whose reasons Gaudron J agreed, said: "149 An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial . It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance. For example, in cases of negligent misstatement, such as Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at 16-17 [47], 23-24 [76], reasonable reliance by the plaintiff on the defendant authority ordinarily will be a significant factor in ascertaining any relevant duty of care. 150 The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. It assumes particular significance in this appeal. This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde (2000) 201 CLR 552 at 562, is remote, in a legal and practical sense, does not suffice to found a duty of care. 151 In Brodie , the council exercised physical control over the condition of the roads which it was empowered by statute to maintain and which themselves constituted the direct source of harm to road users. The council's measure of control over the safety of the person or property of citizens was 'significant and exclusive'. So, too, the fact of control over, and knowledge of, land or premises has been significant in identifying the duty of care owed to users of land or premises by a statutory authority which controls and manages that land or premises. Again, in Pyrenees Shire Council v Day , the Shire held a significant and special measure of control over the safety from fire of persons and property at the relevant premises. That degree of control was the touchstone of the Shire's duty to safeguard others from the risk of fire in circumstances where the Shire had entered upon the exercise of its statutory powers of fire prevention and it alone among the relevant parties knew of, and was responsible for, the continued existence of the risk of fire. It will be recalled that, in Pyrenees, the only other party with that knowledge was the former tenants. They had not communicated it to the subsequent tenants or adjoining occupiers, who were the relevant parties in this Court. 152 The Council in the present appeal, by contrast, exercised a much less significant degree of control over the risk of the harm that eventuated. At no stage did the Council exercise control, let alone significant or exclusive control, over the direct source of harm to consumers, that is, the oysters themselves."

In this case the Council held a significant and special measure of control over the safety of homeowners who brought to the Council's attention their fears that overhanging trees were dangerous. This was particularly so if the Council opted to advise the particular homeowner about whether the trees in question were dangerous. 48 At 628 [243], Kirby J remarked that it was to be noted "how the concept of 'control' on the part of a statutory authority is now re-emerging as crucial in this area of legal discourse." At 631 [250], his Honour said that Pyrenees was readily distinguishable. "There, the powers were specific to the prevention of the spread of fire. They were enlivened by express notice to the local authority, with applicable powers to act, of the risk that eventuated." 49 At 652 [288], Callinan J said: … It is not necessary to determine whether the council owed a duty of care to the oyster growers. It was certainly not obliged to undertake general quality control of the oysters harvested from the lake. However, if the content of the supposed duty of care is defined merely as being an obligation to exercise the Council's statutory powers in such a manner as to minimise pollution of the lake, I see no reason for rejecting such a duty; like Mr and Mrs Day in Pyrenees , the growers were entitled to expect the council to exercise its powers in such a manner as to avoid a nuisance that would damage their property (the oysters) and cause them consequential loss." 50 At 659 [310], Callinan J observed that Pyrenees sounded the demise of the test propounded by Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 461-464 on its express disapproval by three of the Justices, Brennan CJ, and Gummow and Kirby JJ. 51 In Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173, Spigelman CJ, with whose judgment the President and I agreed, in upholding the council's appeal on the ground that s114(1) of the Local Government Act 1993 (NSW) since repealed, in the context of the legislative scheme of which it was part and its legislative history, excluded any common law duty of care with respect to the formation of an opinion under the subsection, because of the subjective nature of the statutory test and the subject matter about which the opinion was formed, said at 187 that he had found particular assistance in the passage in the judgment of Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan at [146] - [150], part of which I have quoted, and quoted [146] which was as follows: "146 The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence." 52 In this case the Council had undertaken the responsibility of determining whether trees in areas which included the Timbs' property could be cut down and through its officer had undertaken the role of determining whether this particular tree or group of four trees was dangerous. The Council officer did not tell Mr Timbs to put in an application supported by evidence that the tree was dangerous nor did he advise Mr and Mrs Timbs that, if it were, they could cut it down without penalty. The Council officer pronounced the trees safe and on the second occasion, when Mr Timbs mentioned that the trees had more slope on them because of the westerly winds, advised Mr and Mrs Timbs that if they cut them down they could be liable to a penalty. This the officer did in the circumstance where if the tree was dangerous it might fall down and, if it fell in a strong wind from the west, such winds being prevalent in the area, it would almost certainly fall on the Timbs' residence and kill or injure any occupants of the residence, all or some of whom might be sleeping. Having accepted the responsibility of advising on the safety of the tree, it does not seem to me that what was described as a routine visual inspection was a sufficient inspection where the risk, if the inspection was insufficient and the opinion was wrong, was not only to property but to life, if the tree were to fall. The facts of this case demonstrate that a visual inspection of the sort undertaken did not reveal water-logged or rotten roots. According to Mr Castor, these rotten roots would have been revealed by only minor excavation around the base of the tree. In Mr Ford's opinion, properly understood, a tree of this size in the soil in which it was growing, of the type that it was and in the likely climatic conditions was dangerous. The Council was the arbiter of whether or not to consent to the tree being cut down. 53 Mr Ford set out five factors, any one of which he said should have been sufficient to indicate a higher than acceptable risk. In the present case, more than one, probably all, could be said to combine. Mr Castor dealt with them one by one making the point that with the possible exception of (ii), which he did not directly address, any one alone of these factors should not have been decisive. But the point is that in combination, particularly having regard to (i), a council called upon to determine whether it should give its consent and accepting the responsibility of itself determining that the tree was safe was required to do more than conduct a routine inspection. Mr Castor said that minor hand excavation around the base of the tree (root crown) would have been required to identify the decayed structural roots. He said "further information is often requested which may take the form of an independent arborist report if root disturbance is suspected." In addition, there was the presence of the septic tank up-slope and the leaking pipe. 54 In the Mutual Life & Citizens' Assurance Company Ltd v Evatt (1968) 122 CLR 556 at 571 Barwick CJ described three conditions as essential to the relationship out of which a duty of care arises on the making of a representation. First: "… the circumstances must be such as to have caused the speaker or be calculated to cause a reasonable person in the position of the speaker to realise that he is being trusted by the recipient of the information or advice to give information which the recipient believes the speaker to possess or to which the recipient believes the speaker to have access or to give advice, about a matter upon or in respect of which the recipient believes the speaker to possess a capacity or opportunity for judgment, in either case the subject matter of the information or advice being of a serious or business nature."

The second condition is that: "… the speaker must realise or the circumstances be such that he ought to have realised that the recipient intends to act upon the information or advice in respect of his property or of himself in connection with some matter of business or serious consequence."

The third is that: "… the circumstances must be such that it is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker."

See per Brennan J in San Sebastian Pty Ltd v The Minister Administering the Environmental Planning & Assessment Act 1979 (1986) 162 CLR 341. In the present case all these conditions are satisfied. 55 When the Council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his expertise and experience. In those circumstances, the requisite standard of care required of him was higher than that of a layman. The inspector was not warranting the safety of the tree, but it was reasonable in the circumstances to expect of him that he would have made more than a cursory visual inspection. Like a general practitioner he professed a sufficient level of expertise to require him to make a reasonably informed diagnosis or to admit the need for referral to a specialist (arborist) before pronouncing and repeating his firm and positive opinion as to the safety of the tree. 56 In the language of Brennan J, speaking of economic loss, in San Sebastian Pty Ltd v The Minister at 366: "A causal relationship between a representation (a term which I shall use to embrace any verbal statement made by one person to another) and economic loss does not exist because of the operation of the laws of nature. It exists because the representation induces the representee to do something which causes the loss or to refrain from doing something which would have avoided the loss. It is the operation of the representation on the representee's mind - the inducement - which links the representation with the conduct which more immediately causes the loss. A representation induces a representee to act or to refrain from acting in a particular manner when he acts or refrains from acting in that manner because he believes that the representation is probably true; in other words he acts or refrains from acting in that manner in reliance on the truth of the representation." 57 Clearly in this case, Mr and Mrs Timbs refrained from cutting down the tree in reliance on the Council officer's verbal statement that the tree was safe and sound.

58 The inference is open and I think should be drawn that a reasonably informed diagnosis would have revealed the decayed structural roots and the tree would have been pronounced dangerous. The Council would have consented to, if not insisted upon, the tree being cut down. 59 Although Mr Davies SC, who appeared for the Council, suggested that there was no evidence that the roots were rotten at the time of the second inspection six months before the tree fell, the trial Judge made no mention of this. If such a submission was put at trial his Honour must have rejected it. It was not explored in evidence with Mr Ford. 60 The second basis upon which the trial Judge dismissed the claim was that the then financial constraints on the deceased would have meant that if permission to remove the trees had been given it would not have been acted on in the sense that the tree would not have been cut down. This conclusion was based upon Mrs Timbs' evidence that she and her husband had not had the trees lopped in the manner permitted by the Council because they could not afford it. The quoted price for lopping all the trees was, perhaps, as little as $800. It was assumed that the cost of cutting down or removing this particular tree would have been as much or perhaps more although there was evidence that the trees could have been removed without cost by members of the family. With respect, this conclusion overlooks the fact that if the Council officer had not negligently performed the task of determining whether or not the tree was dangerous, he certainly would have discovered that it was and accordingly, as I have already said, was likely to fall and, if it fell, to destroy Mr and Mrs Timbs' home and possibly kill or injure anyone inside at the time. His Honour's conclusion was never put directly to Mrs Timbs, I am quite unable to accept that if the true position had been revealed Mr and Mrs Timbs' would have risked the lives of themselves and their family and their property because of such financial constraints.

Notice of contention 61 The Council contended that the trial Judge's decision should be affirmed because his Honour wrongly failed to find that no Council officer attended Mr and Mrs Timbs' property and gave advice in relation to trees on either of the occasions about which Mrs Timbs gave evidence. Mrs Timbs' evidence to the contrary was said to be glaringly improbable and should have been rejected. The notice of contention pointed to specifics of Mrs Timbs' evidence as incredible. 62 The Council contended: "1. There was no person, in the employ of the [Council] at the time, who might have made a tree assessment (including someone not employed in the appropriate department of the [Council] and including anyone no longer employed by the [Council]) who matched the physical description given by [Mrs Timbs]. 2. [Mrs Timbs'] evidence was incredible when she asserted that despite the fact that [Mrs Timbs'] husband, on the first occasion asked that the trees be inspected and, on the second occasion, said he wanted to cut trees down, he was twice put in contact on the telephone with the same person who did not normally deal with Tree Preservation Orders or trees on private land [and that] that person, rather than referring the matter to the appropriate officer, attended the property. 3. [Mrs Timbs'] evidence was incredible when she asserted that notwithstanding that the officer visited the [Timbs'] property twice and, at least on the second occasion, he brought with him some kind of file which he had open during the visit, no file was ever opened in the [Council's] records and no paper record was made of either of the visits. 4. The matters referred to in 1-3 above, together with the matters referred to by His Honour [such as the absence of any Council records and the fact that Council officers who dealt with trees and wore uniforms would not assess trees on private property], when taken as a whole, must necessarily result in a finding that [Mrs Timbs'] evidence was incredible." 63 Further, it was contended that the trial Judge ought not to have taken into account that it was likely that the Council officer, who attended the property, and who was no longer employed by the Council, destroyed the relevant file and when, after the accident, an officer of the Council stated "you can now cut down the trees", that must be a reference to the earlier visits. 64 The Council expanded on these grounds of contention in its submissions ably put by Mr Davies SC. It was said that his Honour's acceptance of Mrs Timbs' evidence about the description of the Council officer and how he came to her property on two occasions involved a rejection of the evidence of Mr Papworth and other Council witnesses. Their evidence was that there was no person of this description who could have attended the property at the times nominated by the appellant. This must be considered against the background of a failure on behalf of Mrs Timbs' to object to the evidence and the lack of cross-examination on the issue. The evidence was inherently probable. Further, it was said that the trial Judge had failed critically to analyse Mrs Timbs' evidence. The uncontradicted evidence could only be fitted into a pattern if a different view was taken of the credibility of Mrs Timbs. The Council submitted that in the circumstances, the primary findings by the trial Judge based on the credibility of the appellant should be displaced. 65 Mr Papworth, the Council's Environmental Services Manager, who at the relevant time was the Manager of Health and Community Services, had worked in the Nowra office of the Council since about 1994 or 1995. He gave evidence that between 1994 and 1998 the department responsible for assessing any Tree Preservation Order was called "Health and Community Services" and that there had never been a department known as "Health and Building" which had been nominated by Mrs Timbs as being the department which her husband telephoned. Mr Papworth's evidence, which was not controverted, was that if someone telephoned asking to speak to an officer in "Health and Building" about a tree it would ordinarily have been referred to his department. 66 Mr Papworth gave evidence about who worked in the department during that time and about the fact that those assessing trees did not wear a uniform at all as Mrs Timbs' asserted. The Council claimed that this evidence was never really challenged. 67 In any event, Mr Papworth gave unchallenged evidence that the only person working in his department during the relevant period "who even came close" to fitting the description Mrs Timbs gave was one, Ian Cockburn. Mrs Timbs stated she knew Mr Cockburn and he was not the officer who came to the property. Mrs Timbs was provided with a list of names of all those in the department during the relevant time. She never suggested that any of those people fitted the description. 68 Mr Papworth stated, in the unlikely event that someone outside his department attended the site, that the only person who could have attended in the uniform described by Mrs Timbs to assess the tree was someone from the Asset Construction and Maintenance department. This evidence was not challenged. Martin Upitis, the Acting Manager of the Asset Construction and Maintenance department, gave evidence. He was working in that department during the relevant period. His evidence was that the only people in his department who might be working with trees in any capacity would be those in the Roads and Maintenance section and that those officers wore the uniform as described by Mrs Timbs. However, he said that in the ordinary course of events, if an officer from his department received a telephone call wanting a tree assessed during the relevant period they would not assess it if the tree was located on private land (the present case) and that ordinarily they would refer the matter to the Health and Community Services department. If, for some reason, they were unable to ascertain that the tree was on private land they might attend the site. If, upon attending the site, they found the tree was on private land they would decline to deal with it and refer the matter to the Health and Community Services department. Mrs Timbs did not controvert this evidence. 69 In any event, Mr Upitis stated that the only person who had worked in his department during the relevant period who in any way fitted the description provided by Mrs Timbs was Trevor Maloney. It was suggested that Mr Maloney did not fit the description well but it was never suggested that anyone else in the department fitted the description at all. Mr Maloney gave evidence and stated that he had never been to Mrs Timbs' property and that in January 1998 he was on holidays. Mrs Timbs did not suggest that Mr Maloney had come to the property. 70 Mr Papworth gave evidence of the Council's computer records in relation to both requests for actions or complaints received by it and in relation to applications for Tree Preservation Orders in particular. He described three data bases as being the relevant ones which might have any information about complaints, requests for action by Council or tree requests and visits. He gave evidence that if Mr Timbs had telephoned the Council asking that any tree be looked at, it was consistent with its practice to enter this information into its computer data base as it was a request for action by the Council. There was no record of either of the two calls being made. 71 Mr Papworth conducted computer searches using all spellings of the name Timbs, BTU Road and any tree applications. He produced printouts from the records regarding other matters which arose out of complaint or a request for action by the Council including the slashing of grass and wandering cattle. Mrs Timbs conceded that those matters had in fact occurred. Mr Papworth was cross-examined to the effect that in certain circumstances entries were not made on to the computer system. However, he said that records might not be entered if someone came to the Council and sought general advice if there was no complaint or request for action. None of the examples put to him in cross-examination were examples of complaints or requests for action by the Council. 72 Further, Mr Papworth and later Mr Bryce gave credible explanations as to why those entries would not be recorded. Mrs Timbs led no evidence to the effect that the particular enquiry had been made such that anything would be recorded. 73 Mr Papworth said that, if a visit had been made to the property on either occasion to assess a tree, in the ordinary course of events a paper record would also be created. However, no such files had been able to be located in relation to either of the visits. He said that, if there had been a file, a file number would have been created from the data base and could have been retrieved. He said that no such file number was recorded. This evidence was not controverted. 74 The trial Judge's finding on the lack of any paper file was made without any evidence to support it. He found that the officer had made a paper file in respect of the application even though it was not entered into the computer, that the officer destroyed the file out of fear of blame for Mr Timbs' death and that by the time notice was given on 23 February 2001 of this intended action he was not employed by the Council. Not only was this finding not supported by any evidence and was not advanced by Mrs Timbs, it was inconsistent with all of the Council's largely unchallenged evidence in calling any officer who met the description Mrs Timbs gave. 75 The trial Judge also attempted to deal with the issue of there being no documentary evidence of the visits by speculating that the only record might have been a diary in the possession of the officer who attended. The Council submitted that this ignored the unchallenged evidence from Mr Papworth and others effectively accounting for anyone who in any way came close to matching the description Mrs Timbs provided and the uncontested evidence that it was none of the persons called to give evidence. The trial Judge, it was asserted, incorrectly, assumed that the officer did go to the property as described by Mrs Timbs and that he could not be identified. It was submitted that the evidence established that no such officer existed. 76 The trial Judge did not reject the Council's evidence. His reasons for accepting the appellant were that she appeared to be telling the truth and there were two matters which supported her. First, there was evidence that on the day of the accident a person from the Council stated "you can now chop down the trees, they should not have been 20 metres to the house". Mrs Timbs' son became very angry and stated "it is a bit late for that now". The Council submitted that this evidence did not assist in determining whether or not the Council had previously refused permission to have the trees removed. The second matter was the fact that shortly after the accident it was reported in the Sydney daily newspaper The Daily Telegraph that the Council had been approached for permission to remove the trees and that had been refused. His Honour found that this information could only have come from one or more members of the Timbs' family. The Council submitted that, first, there was no evidence from Mrs Timbs or any family member about having ever spoken to anyone from the newspapers and secondly, while it supported the contention in a general sense that permission had previously been refused, it did not assist Mrs Timbs in the assertion that visits were made in the particular way she asserted. 77 Most importantly, in order to accept Mrs Timbs it was said that the trial Judge must necessarily have come to the view that it was more probable than not that all (emphasis added) of the following events occurred: "(i) On two separate occasions, the appellant's husband telephoned the respondent, about a matter that would normally be logged into the computer system, provided name and address details and the telephone call was not logged on either occasion. (ii) Despite the fact that Mr Timbs, on the first occasion, asked that the trees be inspected and, on the second occasion, said he wanted to cut trees down, he was twice put in contact with the same person who did not normally deal with TPO's or trees on private land. (iii) Notwithstanding the fact that Gordon did not give the name of the person he had spoken to up to 2 years previously, when he telephoned on the second occasion and there was no written record of his previous call, he spoke to the same person (who was not a usual TPO assessor). (iv) Notwithstanding that what the appellant and Gordon were, in effect, seeking, was TPO ruling, for which there was a formal application process, which attracted a fee for the respondent's benefit, no written application or fee was sought by the respondent. (v) Notwithstanding that the officer visited the appellant's property twice and, at least on the second occasion, he brought with him some kind of file and which he had open during the visit, no file was opened in the respondent's records and no paper record was made of either of the visits. (vi) Notwithstanding the fact that it was never put to them in cross-examination, Mr Papworth and Mr Upitis were mistaken or lying when they gave evidence that there was no person at Council who might have made a tree assessment, other than Maloney and Cockburn, who could possibly have fitted the appellant's description." 78 The Council submitted that whilst each of those matters might be possible or even probable, the likelihood that more than one or all of the above accounts took place was extremely unlikely. It was said to be more telling of concoction by Mrs Timbs and supported the conclusion that no one from Council attended the site in the circumstances she gave. It was submitted that the factual matrix was such that they could only be fitted into a pattern if a different view of the credibility of Mrs Timbs was taken. The Council submitted that the trial Judge should have analysed the evidence on the basis that it was Mrs Timbs' case that a particular person as described by her attended the property in particular circumstances as described by her. 79 Further, in light of her evidence as to the circumstances of the calls and the visits, her evidence could not fit with the pattern of the rest of the unchallenged evidence. As there was suggestion by her that she could have been mistaken about whom her husband telephoned and what he said or the description of the uniform or the officer it was submitted that on the whole of the evidence it was established that the visits could not have happened in the way Mrs Timbs asserted. There was no other evidence. It was submitted that this lack of evidence pointed to concoction by Mrs Timbs. If this person existed in 1998 when the accident took place the person would have been relatively easy to identify and locate. He had been at the Council at least between July 1996 and January 1998. Mrs Timbs said that although she did not know his name she would know him if she saw him again. She was able to provide a clear and detailed description of the man and the fact that he wore a uniform. However, she made only one enquiry with Mr Bryce as to who the man might be and upon being told that the Council had no file on the matter made no further enquiries at all as to who the person was who had attended the property. She stated she did not think she gave the description of the officer to Mr Bryce. Mr Cockburn, who worked for the Council, had known Mrs Timbs for twenty years and yet despite the fact that she said her motivation for suing the Council was to find out who assessed the trees, she made no enquiries of him as to who the person might have been. Her reason for not doing so was not credible. She stated that it was because he was in some other department. First, he was not in another department at the relevant time and second, if Mrs Timbs were genuinely trying to find out who had come to the property, the fact that he was in a different department would not have deterred her. 80 The Council relied upon the decision of the High Court in Fox v Percy [2003] 77 ALJR 989. In that case a trial Judge had to determine whether the appellant, who had been seriously injured on a public road when the horse she was riding collided head on with a vehicle being driven in the opposite direction by the respondent, was on her correct side of the road and the respondent on his incorrect side. The attending police gave incontrovertible evidence that the respondent's car and skid marks were found on the correct side of the road at the accident site. Notwithstanding this the trial Judge entered a verdict for the appellant and found that the collision occurred because the respondent's vehicle was on the wrong side of the road. This Court upheld an appeal from that decision. On further appeal to the High Court at 997 [42] Gleeson, Gummow and Kirby JJ said: "Nevertheless, in our view, within the stated principles, the majority in the Court of Appeal did not err in giving effect to the conclusion that they reached. The skid marks on the respondent's correct side of the road were incontrovertibly established. Their position, length, direction and terminus are inconsistent with the appellant's version of events. Having come to that conclusion, the majority in the Court of Appeal were correct to give effect to their conclusion and to set aside the judgment in the appellant's favour." 81 At 1005 [90] McHugh J said: "It is a serious mistake to think that anything said in Abalos v Australian Postal Commission (1990) 171 CLR 167 or Devries v Australian National Railways Commission (1993) 177 CLR 472 necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306, for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it." 82 It should be observed that in Fox v Percy, as Callinan J mentioned at 1018 [154], one of the props of the trial judge's decision, the appellant's evidence, was itself suspect by reason of her inevitably reduced capacity to observe and recount what had happened by reason of her earlier intake of alcohol. 83 The Council's case is that Mrs Timbs' account of events was a concoction. This must have been deliberate. Moreover, the publication in The Daily Telegraph at the time suggests that at least the idea behind that concoction had been developed at about the time when Mr Timbs was killed. Furthermore, Mrs Timbs was, according to the argument, prepared to lie on oath in court. Unfortunately, experience teaches that there are people capable and willing to lie in the witness box and some, no doubt, are good at it. In the present case, there is no suggestion nor could there be any, if the Council's argument is right, that Mrs Timbs had forgotten something or misunderstood something or simply made a mistake in the evidence she gave. It all had to be deliberate and planned. 84 The trial Judge heard Mrs Timbs' evidence and remarked that she was a person "who could not readily invent false evidence and, if she did, there would be tell-tale signs of this. That did not occur." Moreover, it was open for his Honour to conclude that Mr Hedger's statement to Damien Timbs corroborated what Mrs Timbs said. This evidence calls for a little analysis. Mr and Mrs Timbs' son, Damien, arrived back at the property at about 6.15 am on the morning of the accident, 29 July 1998. He said that when he arrived he saw "the SCC personnel, police and the ambulance on the site." After he arrived, others, including members of the family, arrived as he described. He said that he was with his uncle Colin and Mr Edwards when a man came to them dressed in ordinary clothing with a tie. He spoke to people there as a group and identified himself. Damien gave the following evidence: "Q. Did he tell you, as a group, that he was from the council? A. Yes. Q. Was there some conversation? A. Yes. Q. Doing the best you can, as if we're listening to it happen, what did the gentleman say to the group? A. He come over to us and asked if we're related to the victim. Me and uncle Colin both replied yes we were. Q. Steady down, I know you're getting upset. Take your time. You and your Uncle Colin said yes, and did the gentleman say anything else to the group? A. Yes. Q. What did the gentleman say? A. He said 'You can now chop down the trees' that they shouldn't have been 20 metres to the house. Q. Would you repeat that slowly please? A. That we could now chop down the trees, that they should not have been 20 metres, like to the house. Q. How did you react when the gentleman said that to the group? A. Very angrily. I grabbed, like, yeah. Very angry. Q. Did you do something to the man? A. Yes I grabbed him. Q. With one hand or both hands? A. One hand. Q. How did you grab him sir? A. On the shirt, at the front. Q. With the right hand? A. Left hand. Q. Left hand? A. Yes. Q. On the front of his shirt? A. Yes. Q. Did you release him? A. Yes. Q. Did you say something to the man after he had uttered those words? A. Yes. Q. What did you say? A. It's a bit late for that now. Q. Then did your uncle Colin tell you to go away? A. Yes."

Counsel for the Council did not cross-examine Damien Timbs. 85 The plaintiff called Mr Edwards who gave this evidence. He drove past the Timbs' property on the morning of the accident and saw the tree across the house. He parked in the lane and went to the site. His evidence was as follows: "Q. The gentleman from the council, was he there when you arrived? A. No. Q. He came afterwards? A. He did. Q. Did you see how the gentleman arrived? A. No I didn't. Q. Did you notice any motor vehicle nearby? A. There was numerous amount of motor vehicles around at the time. Q. What made you think that this gentleman was from the council? A. Because he was introduced to me as - I can't remember his name, but he was introduced to me as he'd come from the council. Q. Was the gentleman dressed in any uniform or was he just dressed in ordinary clothing? A. Ordinary clothes. Q. Were you present when this gentleman was talking to the others after he had been introduced to you? A. No I - I - it's what I said before, he - he was - they were getting aggravated and I backed away because it was a family matter like I said."

Counsel for the Council did not cross-examine Mr Edwards. 86 In its case the Council called Mr Papworth. He gave the following evidence in cross-examination: "Q. In your searches that you say are up to very close to this date, did you find any evidence at all of permission or entry dealing with the trees that were chopped down after this incident? A. No sir I did not. Q. You know that quite a number of trees were cut down after this incident, within a week or so, do you not? A. I only know that from when I went to the boundary in recent months. Q. When did you go? A. I can't recall the exact date. It was in preparation for these proceedings. Q. This year or last year? A. This year. Q. Did you go alone? A. No, I travelled there in company with a barrister and solicitor acting for council. Q. You noticed that quite a number of trees had been cut down? A. I don't know. I saw two large stumps which appeared to have been cut down and I was led to understand that they were cut down subsequent to the accident. Q. I can lead you to understand that at least four trees were cut down after the incident. Do you know how many trees were cut down after this incident? A. No I don't. Q. There is nothing in council's records at all to indicate that the trees were cut down on this property after the incident, is there? A. No, it would appear they have been cut down without approval. Q. There was a gentleman from council on site on the day of the incident. You know that do you not? A. I'm not sure of that no. Q. Have you made any enquiries to ascertain who it was from council who attended the site on the day of the incident? A. My understanding is Mr Hedger may have gone to the property after the incident. I'm not sure of the details. Q. What is his full name? A. Colin Hedger. Q. Have you spoken to Mr Hedger lately? A. Yes. Q. When did you last speak to him? A. I spoke to him around the same day on which we conducted an inspection of the property. Q. Did Mr Hedger attend with you as well? A. No he did not. Q. What was the purpose of the discussion with Mr Hedger at the time of the view? A. It wasn't actually at the time of the view, it was in the office. Q. After the view or before it? A. I can't recall exactly, I believe it was after." 87 The first point to be made is that the Council never challenged or contradicted the evidence that one of its officers was present at the site on the day of the accident. 88 The second point to be made is that after the accident at least four trees were cut down, apparently with the consent of the Council officer present on the day of the accident, but without any written consent or any record of the consent given being made or kept by the Council. 89 The third point to be made is that it was agreed that at the time of the trial Mr Hedger had retired but was still living in the Nowra district. He was not called by the Council. He might have agreed that he was present. He might have agreed or denied that he made the statement that Damien Timbs ascribed to the Council officer and if he did make the statement, what he intended to convey. He might have known about the Council's previous refusal to consent to the trees being cut down. 90 Council could not and did not suggest that Damien Timbs had incorrectly recounted what its officer said. Unexplained it could be understood as an ironical, if tasteless, comment contrasting the current Council consent by its officer, although not made in writing as required by the Tree Preservation Order, with previous refusals of consent. Clearly Damien Timbs understood it in that way. At least on the face of it, the sentence suggests some acquaintance with what had gone before between the Council and Mr and Mrs Timbs in relation to the four trees. 91 In Jones v Dunkel (1959) 101 CLR 298 at 312 Menzies J said that a proper direction to a jury, where a defendant had not been called as a witness, would have made three things clear. "… (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference." 92 At 320-321 Windeyer J quoted with approval the following passage in Wigmore on Evidence, 3rd ed (1940) Vol 2, s285 p162: "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts will thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party." 93 In my opinion, the trial Judge could more confidently accept Mrs Timbs' evidence as a result of the absence of Mr Hedger from the witness box. The evidence given by Mrs Timbs is not on its face inherently improbable nor is it internally inconsistent. The fact that the Council has been unable to identify an officer who attended the Timbs' property on the two occasions Mrs Timbs described is surprising but is not incontrovertible evidence to show that Mrs Timbs concocted the story and deliberately lied on oath. The want of Council records about the consent given to cut the trees down after the accident demonstrates that the absence of any written record of visits to the Timbs' property or refusal of consent before the accident is not surprising and is not, apparently, inconsistent with Council practice. I am not persuaded that the Council has established a case for overruling the findings of fact challenged and accordingly I would dismiss the notice of contention.

Conclusion 94 I would propose the following orders: 1. Appeals allowed; 2 Notice of contention dismissed; 3. Set aside the verdicts for the Council in actions 7547/01 and 7549/01; 4. In lieu thereof in action 7547/01 verdict for the plaintiff in the sum of $202,685 and in action 7547/01 verdict for the plaintiff in the sum of $541,091, each to date from 4 December 2002; 5. The Council to pay the plaintiff's costs of the proceedings before Judge Nash and of this appeal; 6. The Council to have a certificate under the Suitors' Fund Act 1951 if so qualified. 95 HODGSON JA: : I agree with Sheller JA. 96 I would wish however to make it clear that this does not mean that a Council officer, who is asked informally for advice or consent in relation to a potentially dangerous tree, is obliged to give expert advice. In the present case, for example, the Council officer could have said words to the effect that, on the basis of his inspection, the tree appeared safe and he would not then give permission to remove it, but that it was open to the deceased to obtain his own advice and to make a formal application for permission to remove it; and also that, if the tree was dangerous, it could be removed without Council consent. In my opinion, there would then have been no breach of duty. 97 However, because the Council officer did undertake the responsibility of giving unequivocal advice in relation to the tree, in circumstances where it was plain that wrong advice could have disastrous consequences, he had a duty to exercise a high degree of skill and care, which was not discharged by a routine visual inspection.

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