Bryant v The Australian Capital Territory (Represented BY the Act Transport Canberra & City Services Directorate) (Civil Dispute)

Case •

[2022] ACAT 5

•

21 January 2022

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BRYANT v THE AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY THE ACT TRANSPORT CANBERRA & CITY SERVICES DIRECTORATE) (Civil Dispute) [2022] ACAT 5

XD 3/2021

Catchwords:               CIVIL DISPUTE – negligence – contract – damaged caused from falling tree branch to vehicle parked in an ACT Government carpark – whether the Territory was negligent in its management of urban trees – whether the Territory breached a contract -  applicant bears the burden of proof – balance of probabilities – standard of care – statutory authority – statutory interpretation – liability of public and other authorities under the Civil Law (Wrongs) Act 2002 – alleged liability for failure to exercise statutory functions with care and skill – whether harm was reasonably foreseeable in the circumstances – issues of causation – application of the ‘but for’ test – whether negligence was a necessary condition for the harm to occur – application fails on the balance of probabilities and foreseeability – application dismissed

Legislation cited:        Civil Law (Wrongs) Act 2002 ss 40, 41, 42, 43, 44, 45, 46, 47, 108, 109, 110, 111, 112, 168

Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)

Subordinate

Legislation cited:        ACT Parking and Landscaping Code

Civil Law (Wrongs) Amendment Bill 2003 (No 2)
Parking and Vehicular Access General Code

Cases cited:Meyers v Commissioner for Social Housing [2019] ACTCA 19

Meyers v Commissioner for Social Housing [2018] ACTSC 193
Patel v Conservator of Flora and Fauna [2020] ACAT 105

List of

Texts/Papers cited:     Harold Luntz et al, Torts: Cases and Commentary (LexisNexis, 8th ed, 2017)

Tribunal:Senior Member L Beacroft

Date of Orders:  21 January 2022

Date of Reasons for Decision:      21 January 2022

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 3/2021

BETWEEN:

JAYNE-LOUISE BRYANT
Applicant

AND:

THE AUSTRALIAN CAPITAL TERRITORY
(REPRESENTED BY THE
ACT TRANSPORT CANBERRA
 & CITY SERVICES DIRECTORATE)
Respondent

TRIBUNAL:Senior Member L Beacroft

DATE:21 January 2022

ORDER

The Tribunal orders that:

  1. The application is dismissed.

………………………………..
Senior Member L Beacroft

REASONS FOR DECISION

Background

  1. The applicant, Jayne-Louise Bryant (the applicant), claimed compensation for damage to her car caused by a tree branch that fell from a tree (the subject tree) when parked in an ACT carpark on 23 November 2020. She submitted an application to the ACT Civil and Administrative Tribunal (Tribunal or ACAT) dated 29 December 2020 and then filed subsequent material dated 25 March and 20 April 2021. The Australian Capital Territory (the Territory or the respondent) filed a response to the applicant’s claims dated 10 February 2020 and then filed subsequent material including a substantial submission dated 18 May 2021.[1] The respondent relied in part on a decision it had made prior to the proceedings where it had formally considered the applicant’s claim, denied it and provided reasons, dated 24 December 2020.[2]

    [1] Respondent’s submissions dated 18 May 2021

    [2] Respondent’s submissions dated 18 May 2021 at [2] and Annexure A

  2. A tribunal hearing was held on 4 June 2021. At the hearing three witnesses for the respondent, who had provided written statements prior to the hearing, gave oral evidence as follows: Mr Brent Schwartzkoff who held certifications as an arborist, horticulturist and other certifications and was employed by the respondent as a tree protection officer;[3] Mr Gavin Stewart who was employed by the respondent as a tree operations officer;[4] and Ms Lisa Wrona who was employed by the respondent as a contract and program manager.[5]

    [3] Transcript of proceedings 4 June 2020, page 15; Respondent’s submissions dated 18 May 2021, Annexure H

    [4] Respondent’s submissions dated 18 May 2021, Annexure K

    [5] Respondent’s submissions dated 18 May 2021, Annexure J

  3. In compliance with an order dated 4 June 2021 made at the conclusion of the hearing, the applicant filed paper copies of various material after the hearing. Due to a dispute about the nature of what the applicant filed under the latter mentioned order, a further directions hearing was held on 13 September 2021. At the latter directions hearing the material filed by the applicant post-hearing dated 16 June 2021 was accepted by the Tribunal as evidence, and in addition the parties were given liberty to file further and final submissions and evidence particularly concerning statutory provisions and related case law that may be relevant to the liability of the respondent. The respondent filed a further submission dated 5 October 2021 and the applicant filed a further submission received 20 October 2021.

Applicant’s claims

  1. The applicant claimed that the ACT is liable for her damages. In summary her contentions were as follows:[6]

    (a)The ACT is responsible for the maintenance and upkeep of the tree in question and was negligent in this regard.

    (b)The ACT is liable in contract for the damage because it breached its contract to the applicant who was a fee-paying customer of the carpark.

    [6] Applicant’s submissions dated 29 December 2020 and 20 April 2021

  2. The applicant claimed damages of $4,946, being an insurance excess of $695, travel costs of $453 while the car was unavailable to her calculated by applying Australian Tax Office guidelines, the cost of the increase in insurance premiums plus the cost of the loss of the ‘no claims’ bonus of $535, the cost of the loss in the resale value of her car of $3,100, and re-imbursement of her filing fee of $162.50.[7]

    [7] Applicant’s submissions dated 20 April 2021, Annexure E

  3. She claimed that the respondent was required to comply with and had breached the ACT Parking and Landscaping Code (Parking Code) by allowing the subject tree to hang over the carpark.[8]

Respondent’s claims

[8] Applicant’s submissions dated 20 April 2021 at [33]

  1. The respondent agreed that it is responsible for the “management and maintenance of Canberra’s 760,000 urban trees” and that this role “includes ensuring that trees do not present a safety risk to the community or interfere with public infrastructure and vehicle movements”.[9] The  respondent’s contentions focussed on whether any duty it owed had been breached and the nature of the standard of care applicable in this case, taking into account the common law and the Civil Law (Wrongs) Act 2002 (CLW Act) particularly sections 40-46, 110 and 168.[10]

    [9] Respondent’s submissions dated 18 May 2021 at [6]

    [10] Respondent’s submissions dated 18 May 2021 at [13]-[18]

  2. The respondent stated that the standard of care for negligence, occupiers’ liability and under contract is similar.[11] The standard of care is “that of a reasonable person in the respondent’s position who was in possession of all the information that the respondent had, or ought reasonably to have had, at the time of the incident”, and that the “respondent is not negligent in failing to take precautions …unless the risk was foreseeable and not insignificant”.[12] It also relied on section 110 of the CLW Act that sets out special principles that must be considered in the case of the respondent, being the Territory, which relevantly include: firstly that the “general allocation of resources …is not open to challenge”, and secondly that the respondent “may rely on evidence of its compliance with the general procedures and appliable standards for the exercise of its functions as evidence of the proper exercise of its functions”. It also referred to the case of Patel v Conservator of Flora and Fauna [2020] ACAT 105 (the Patel case) as authority for its contention that the “the test to assess risk from falling branches was whether the particular tree posed an unacceptable risk to private or public safety”.[13]

    [11] Respondent’s submissions dated 18 May 2021 at [19]

    [12] Respondent’s submissions dated 18 May 2021 at [13]-[18]

    [13] Respondent’s submissions dated 18 May 2021 at [9]

  3. The respondent contended that it could not have reasonably known the branch would fall and that it was not foreseeable. In this regard it relied on evidence of its technical witness, Mr Schwartzkoff. It relied on section 110 of the CLW Act which is summarised above.[14] It contended that it had complied with the relevant procedures and standards, in particular “Guidance Notes: Assessment of Public Trees, approved 28 April 2021” (the Guidelines), and that these do not “require or involve systematic inspection of any of the 760,000 urban tress, nor the inspection of the subject tree prior to the incident”.[15] The respondent claimed that its role in managing urban trees is necessarily “reactive” given the number of urban trees and its resources, and further that there were no records held by the respondent to indicate that it had prior knowledge of a risk that the tree posed.[16] In regard to the applicant’s claim that it had not complied with the Parking Code, the respondent contended that this code only applied to new developments, and in any case it had not been breached.[17] On this basis the respondent contended that the applicant had not proved that the respondent was negligent or proved that it had breached its occupier duties or a contract.

    [14] Respondent’s submissions dated 18 May 2021 at [10]

    [15] Respondent’s response dated 10 February 2020 at [8]; “Guidance Notes: Assessment of Public Tress, 31 March 2021”, Respondent’s submissions 18 May 2021, Annexure F

    [16] Respondent’s submissions dated 18 May 2021 at [7]

    [17] Respondent’s submissions dated 18 May 2021 at [20]-[24], Annexure I, ACT Planning and Land Authority ‘Parking and Vehicular Access General Code’

  4. In regard to the applicant’s claim for a breach of contract, the respondent agreed that there was a contractual relationship between the parties due to the applicant being a fee-paying carpark customer.[18] There were no signs at the carpark or terms on the parking ticket, however the respondent acknowledged that one of the implied terms was that “the premises are as safe for the purpose of the contract as reasonable care and skill on the part of anyone can make them”.[19] The respondent contended that the criteria for determining ‘reasonableness’ is the same as that set out in the CLW Act[20] and that the respondent had not breached this standard for the same reasons set out above. The respondent denied that the standard of care that applied “guaranteed that [the applicant’s] vehicle would not be damaged”.[21] The respondent cited the case of Meyers v Commissioner for Social Housing [2019] ACTCA 19 (the Meyers case at [214]) to support its contention that the contractual duty was limited and did not extend to “a mandatory obligation to prevent the occurrence of an event”.[22] The respondent also relied on section 110 of the CLW Act to support its contention that it is not liable under contract to the applicant, similar to its contentions in this regard for denying the negligence claim as set out above.[23]

    [18] Respondent’s submissions dated 18 May 2021 at [19]

    [19] Respondent’s submissions dated 5 October 2021 at [11]

    [20] Respondent’s submissions dated 5 October 2021 at [13]; CLW Act sections 42, 44

    [21] Respondent’s submissions dated 18 May 2021 at [19]

    [22] Respondent’s submissions dated 5 October 2021 at [14]

    [23] Respondent’s submissions dated 5 October 2021 at [17]-[18]

  5. In regard to causation, the respondent admitted in its statement of reasons for denying the applicant’s claim that the failure of the tree branch caused the damage,[24] however this was not admitted during the tribunal proceedings. The respondent’s evidence was that the tree had some rot and a structure that were not “ideal”.[25] However, the evidence of its witness Mr Schwartzkoff was that the probable immediate cause of the branch falling was the “strong winds that day” associated with the “severe thunderstorm”, “although there may be other factors”.[26] He also stated that there were healthy trees that failed that day due to the weather.[27]

    [24] Respondent’s submissions dated 18 May 2021, Annexure A

    [25] Transcript of proceedings 4 June 2021, page 20

    [26] Statement of Mr Schwartzkoff, dated 17 May 2021 at [21]; Statement of Ms Wrona, dated 6 May 2021, Attachment B

    [27] Transcript of proceedings 4 June 2021, pages 21, 27-28

  6. In regard to damages, the respondent agreed that the applicant paid an excess of $695 and a filing fee of $162.50. It claimed that the other damages as claimed by the applicant are either not a “direct result” of the incident or “speculative”, and so denied these claims.[28]

    [28] Respondent’s submissions dated 18 May 2021 at [25]-[30]

  7. The respondent’s key witness, Mr Schwartzkoff, was a qualified arborist and horticulturist. He stated that he attended the incident and that at that time “my priority was to safely remove the fallen branch without further damaging the car”; that he “did not assess the tree extensively but I do not remember seeing extensive rot…what was left of the …tree was a lot of good timber…from an arborist point of view to not require immediate removal”.[29] He stated that he was busy after the incident due to the “microburst” that occurred at the time of incident and subsequent weather events.[30] He confirmed that the tree is now “assessed as likely to remain intact before its scheduled removal in 6 months”, although he was not the officer that placed that tree on a schedule to be removed.[31]

    [29] Statement of Mr Schwartzkoff, dated 17 May 2021 at [10], [14]

    [30] Statement of Mr Schwartzkoff, dated 17 May 2021 at [15]

    [31] Statement of Mr Schwartzkoff, dated 17 May 2021 at [19]

  8. It was not contested by the parties that there was a weather event at the time the branch fell from the subject tree. Ms Wrona’s statement dated 6 May 2021 attached a record of a warning issued for the date of the incident, 23 November 2020, by the ACT State Emergency Service, which stated as follows:

    [There is a] Severe Thunderstorm Warning…over the next several hours particularly for the Canberra CBD, Winds are likely to reach 60-70 km/h gusting to 100 km/h. The ACT State Emergency Services…advises that people should:

    ·        Move your car under cover or away from trees…[32]

Law

[32] Statement of Ms Wrona dated 6 May 2021, Attachment B

  1. Given the nature of the applicant’s claims the relevant law is that concerning the respondent’s liability under contract and under tort i.e. negligence and/or occupiers’ liability. Determining liability requires considering the ordinary elements of negligence and contract law, and also legislative requirements set out in the CLW Act particularly sections 42, 43, 110 and 168. In summary, the applicant bears the burden of proof and must establish on the balance of probabilities that she is owed a duty of care by the respondent, that the respondent breached it, and that the act or omission by the respondent caused the damage, taking into account the law and considerations set out in the CLW Act.

  2. The CLW Act has a chapter titled “Negligence”, which defines negligence to mean “failure to exercise reasonable care and skill” and states that the chapter applies to all such claims even if brought in contract.[33] It sets out the standard of care which is quoted by the respondent as set out above at [8]. It then states that a respondent is not negligent unless they meet three criteria: the risk was foreseeable, it was not insignificant, and that “in the circumstances, a reasonable person in the person’s position would have taken precautions”.[34] There follows sections that set out considerations for deciding whether a reasonable person would have taken precautions, including “the probability” of the harm and “the burden of taking precautions”.[35]

    [33] CLW Act, sections 40, 41

    [34] CLW Act, section 43(1)(a), (b) and (c)

    [35] CLW Act, section 43, 44

  3. Chapter 8 of the CLW Act sets out laws and considerations that apply in deciding whether a public authority has a duty of care or has breached it, and the chapter applies to actions against the Territory, being the respondent in this case.[36] Section 110, chapter 8, of the CLW Act is titled “Principles about resources, responsibilities etc of public or other authorities” and it sets out four principles that apply when deciding cases such as this one: exercising functions are limited by the “financial and other resources reasonably available” to a statutory authority; “the general allocation of the resources by the authority is not open to challenge”, the “broad range of its activities are to be considered”; and its compliance with applicable procedures and standards can be relied on to prove that it properly exercised its functions.[37]

    [36] CLW Act, section 109, chapter 8

    [37] CLW Act, section 110

  4. In regard to occupier’s liability, the CLW Act states that occupiers have a “duty to take all care that is reasonable in the circumstances” to ensure that “anyone” on the premises (which includes land) does not suffer “damage” due to “the state of the premises” or “things done or omitted to be done about the state of the premises”. The CLW Act also sets out specific considerations about whether the duty is discharged.[38] The CLW Act has other provisions about occupier’s liability that are relevant to consideration of whether there was a breach, including section 110 set out above.[39]

    [38] CLW Act, section 168

    [39] CLW Act, sections 40-47, 110

  5. The CLW Act includes a provision that defines ‘causation’ as follows: “the negligence was a necessary condition of the happening of the harm” and “it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused”.[40] The latter section reflects the ‘but for’ test of causation under the common law which requires a finding that the applicant would not have suffered harm ‘but for’ the respondent’s breach, and it also recognises the principle in common law that there is a limit to a negligent person’s liability for consequences that flow from a negligent act and damage cannot be too remote from the negligent act.[41] Section 46 states that the applicant has the burden of proving on the balance of probabilities “any fact relevant to the issue of causation”.

    [40] CLW Act, section 45

    [41] See, e.g. cases referenced in Harold Luntz et al, Torts: Cases and Commentary (LexisNexis, 8th ed, 2017) [4.3.1]-[4.3.2], [4.3.26]-[4.3.31]

  6. While the respondent did not press the issue, the Tribunal notes that a threshold legal issue was whether section 112 of the CLW Act applies to wholly defeat the applicant’s claims. Chapter 8 of the CLW Act is titled “Liability of public and other authorities”. Section 108 states that the chapter applies in relation to civil liability in tort and to “any such liability even if the damages are sought in an action for breach of contract or any other action”. On this basis the chapter also applies to the applicant’s claim in contract in this case. A public authority is defined in section 109 and includes the Territory and therefore the respondent in this case. Section 112 was included in the CLW Act in 2003. The Explanatory Statement for the amendments stated that they were aligned with the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) and that the basis of the amendments was to clarify the liability of public authorities.[42]

    [42] Explanatory Statement, Civil Law (Wrongs) Amendment Bill 2003 (No 2) Ch 4A: which was eventually renumbered to Ch 8, section 112.

  7. The Meyers case considered the application of section 112 of the CLW Act. In that case the ACT Court of Appeal reviewed a decision of Mossop J of the ACT Supreme Court and confirmed that there was not negligence by the Commissioner for Housing or the Territory when a tenant had been mauled by dogs that were on the premises of one of the Commissioner’s properties. Mossop J stated that given the latter finding of no negligence then it was unnecessary for him to make a finding about whether section 112 of the CLW Act applied to defeat the applicant’s claims. However Mossop J observed that it probably did apply to the Territory, noting that it was unlikely that the applicant in the Meyers case could have required the exercise of statutory functions relevant to that case given the discretionary nature of these (and therefore section 112 would apply).[43] Mossop J commented that the underlying policy to section 112:

    …is not apparent from the words of the section or the available extrinsic materials…if its purpose remains a mystery that may well be difficult…[and] the terms and utility of the section may be a subject worthy of consideration by the legislature.[44]

    [43] Meyers v Commissioner for Social Housing [2018] ACTSC 193 at [292]-[298] (Mossop J)

    [44] Meyersv Commissioner for Social Housing [2018] ACTSC 193 at [298]; Meyers at [117]-[119] (Charlesworth J)

  1. Justice Charlesworth’s judgment in the Meyers case sets out the reasons of the majority in that case. She stated that:

    …s 112 erects a test for the exclusion of liability in all cases to which it applies, regardless of whether or not liability in negligence could otherwise be established at common law …[and] the most appropriate course of action is to first determine if any dispute about whether the case is one to which s 112 applies.[45]

    [45] Meyers at [126] (Charlesworth J)

  2. She found that section 112 applied to exclude liability by the Territory (but it did not exclude liability of the first respondent in that case being the Commissioner for Social Housing),[46] because the claim against the Territory was based on a failure to exercise a power to regulate or prohibit an activity concerning dog control and there was not grounds given the facts and the relevant legislation to compel the exercise of the power.[47] The relevant Territory functions in the Meyers case involved discretion, and in regard to such functions Charlesworth J found that if a decision not to exercise a statutory power, while discretionary is a rational decision, then there can be no duty imposed by common law to exercise the power.[48] She summarised by stating:

    [Section 112] is intended to prevent the imposition of a common law duty to take positive action in circumstances where the imposition of the duty would restrict the area of decisional freedom otherwise reposed in the decision-maker under the statute in question. It precludes a right to compensation in respect of a refusal to act that is an otherwise lawful and valid decision.[49]

    [46] Meyers at [177] (Charlesworth J)

    [47] Meyers at [140], [123]-[178] (Charlesworth J)

    [48] Meyers at [22] (Charlesworth J)

    [49] Meyers at [139] (Charlesworth J)

  3. In the case of a claim for a “breach of a statutory duty by a[n]…authority…in relation to the exercise of, or a failure to exercise, a function”, section 111 sets out the test for a breach as follows:

    only if the act or omission was in the circumstances so unreasonable that no authority having the functions of the [authority] could properly consider the act or omission to be a reasonable exercise of its functions.

Issue

1)Does section 112 apply to wholly defeat the applicant’s claims?

2)Has the respondent been negligent or breached a contract – did it owe a duty of care, did it breach any duty, did it cause the damage, and if so, what damages are payable?

Findings and conclusions

1) Does section 112 apply to wholly defeat the applicant’s claims?

  1. The Tribunal concludes that section 112 of the CLW Act does not apply in this case. As set out above, where the relevant function is “to prohibit or regulate an activity” section 112 applies. Section 112 states, “[the] authority is not liable in a proceeding so far as the claim in the proceeding is based on the failure of the authority to exercise, or to consider exercising, a function of the authority”, and that section provides examples of a function to which section 112 applies being to issue a licence, to permit an activity, or to authorise a person. In this case, the respondent did not explicitly address the issue of the application of section 112. The Tribunal finds that in this case it is not proven that all of the circumstances that are required for section 112 to apply were present in this case, noting that there was limited submissions and evidence before it on this issue. The Tribunal agrees with Mossop J’s remarks in the Meyers case and referred to above at [21] that the section is difficult to interpret, but nonetheless makes the findings below.

  2. In regard to the three circumstances required for section 112 to apply as set out in Meyers,[50] the Tribunal finds as follows. First, the respondent’s functions are not proven to be powers to ‘prohibit or regulate an activity’ analogous to the functions of the Registrar under the Domestic Animals Act 2000 in the Meyers case. Second, it is not proven that the applicant would have standing to have the subject tree pruned or removed. Considering the third circumstance, the Tribunal accepts that the evidence of the arborist Mr Schwartzkoff establishes that the respondent’s failure to prune or remove the tree was rational and therefore the respondent would not have been compelled to do so. Given that not all three circumstances required for section 112 to apply have been proved, the Tribunal finds that section 112 does not apply to defeat the applicant’s claim.

    2) Has the respondent been negligent or breached a contract - did it owe a duty of care, breach any duty, and cause the damage, and if so, what damages are payable?

    [50] Meyers at [160]-[176] (Charlesworth J)

  3. The Tribunal finds that the respondent has not been negligent in that while the respondent owed a duty it did not breach its duty in negligence, under occupier’s liability, or under contract.

  4. The Tribunal finds that the respondent owed a duty to the applicant under contract, and that it also owed a duty of care under general torts law and as the occupier. The respondent agreed that it owed a duty under contract as set out above at [10], but it disputed that it owed a duty under negligence or occupier’s liability, referring to section 110 to support this claim.[51] However, the Tribunal finds that relationship between the parties was of sufficient closeness to establish that a duty existed and that section 110 does not provide a basis to make a contrary finding. The respondent was the owner of the land, it managed the land and the carpark, and it had entered into a contractual relationship with the applicant for her to park her car. In any case, the respondent’s submissions focused on the issue of whether any duty owed was breached, and the Tribunal considers this issue in detail below.

    Breach of duty

    [51] Respondent’s submissions dated 18 May 2021 at [18]

  5. The Tribunal accepts the respondent’s contentions about the nature of the duty, the standard of care, that applies in this case which takes into account sections 42, 43, 110 and 168 of the CLW Act. In short, the Tribunal accepts that standard of care is the same under contract, occupier’s liability and negligence, and that the standard of care is “that of a reasonable person in the respondent’s position who was in possession of all the information that the respondent had, or ought reasonably to have had, at the time of the incident”, and that the “respondent is not negligent in failing to take precautions …unless the risk was foreseeable and not insignificant”.[52] The respondent is the ‘Territory’, so section 110 of the CLW Act applies. In the light of this section, the Tribunal accepts that the resources allocated by the respondent to the management of urban trees is not open to challenge.

    [52] Respondent’s submissions dated 18 May 2021 at [13]-[18]

  6. The Tribunal accepts the respondent’s contentions that the Parking Code did not apply and applies to new developments, and in any in any case has been complied with in regard to the subject tree and carpark.

  7. The Tribunal accepts the respondent’s contention that the key procedure in this case is the Guidelines and that if these were complied with then this is evidence of the proper exercise of the respondent’s functions.[53] The Tribunal notes that the Guidelines submitted in evidence post-dated the incident, however there was no evidence that these were substantively different to what was operationally being applied at the time of the incident.[54] The Guidelines state that “Transport Canberra and City Services” is the agency “responsible for managing Canberra’s urban trees” in the ACT, that “ensuring public safety is not compromised by the presence of trees within the urban areas is a high priority”, that trees “in high use areas such as district parks and shopping centres are regularly inspected to identify …risk factors and address them in a timely manner”; that trees are assessed when a “member of the public expresses concerns regarding public safety or the health of a tree on public land”, and that “a conservative policy towards the removal of tree on public land” applies.[55]

    [53] CLW Act section 110

    [54] Respondent’s submissions dated 18 May 2021, Annexure F

    [55] Respondent’s submissions dated 18 May 2021, Annexure F pages 1, 4

  8. The Tribunal finds that the respondent did not prove that the Guidelines were complied with in regard to the subject tree. The respondent contended that the Guidelines did not “require or involve systematic inspection of any of the 760,000 urban trees, nor the inspection of the subject tree prior to the incident”,[56] and that its role in managing urban trees is necessarily only “reactive” given the number of urban trees and its resources. However, the Guidelines set out a proactive approach for trees as set out above at [31], being that in ‘high use’ locations trees are “regularly inspected” to identify and address risks.[57] The arborist, Mr Brent Schwartzkoff, confirmed that the program to inspect trees in the ACT is both reactive and proactive – reactive in that interventions depend on an issue being raised by a member of the public, and proactive in that visual assessments are done as he and other arborists drive around an area.[58] When doing an assessment he stated that the location of the tree and the level of pedestrian activity in the vicinity are considered.

    [56] Respondent’s response dated 10 February 2020 at [8]; ‘Guidance Notes: Assessment of Public Tress, 31 March 2021’, respondent’s submissions 18 May 2021, Annexure F

    [57] Respondent’s submissions dated 18 May 2021, Annexure F, pages 1, 4

    [58] Transcript of proceedings 4 June 2021, page 23

  9. The applicant emphasised that the subject tree was in a “high use risk area” under the Guidelines given its location, which should have led to it being regularly inspected as set out in the Guidelines, and that the respondent should have provided evidence that it has received this level of management.[59] The Tribunal agrees with the applicant in this respect. The Tribunal accepts that it is common knowledge that the subject tree was located in a carpark in Canberra’s central business district, and near shopping and recreational areas. Given its location the Tribunal finds that it was in an area that should have attracted the proactive approach set out under the Guidelines similar to the other examples, being district playing fields and shopping malls. The fact that the subject tree, similar to many in its location, was recognised to be an “an older planting” further supports the Tribunal’s finding that the subject tree should have received proactive management.[60] However, there was not adequate evidence that this proactive approach had occurred. The arborist, Mr Schwartzkoff, stated that there was mathematics applied to determine if an area was high use, but he did not have the maths for how ‘use’ for the subject tree’s location was calculated and he did not know if the tree was in a location that had been managed proactively.[61] At best, he stated that it “it’s quite possible” that it had received a “quick eyeball”.[62] The Tribunal finds that there is inadequate evidence to prove that the Guidelines were complied with. Given this finding, the respondent cannot rely on compliance with these to prove that the standard of care has been met.

    [59] Applicant’s further submissions received 20 October 2021 at [6]

    [60] Transcript of proceedings 4 June 2021, page 22

    [61] Transcript of proceedings 4 June 2021, page 26

    [62] Transcript of proceedings 4 June 2021, pages 25-26

  10. The Tribunal therefore needs to consider and make findings about whether the respondent has breached its standard of care, considering in particular section 43 of the CLW Act summarised above at [16]. The respondent relied on the Patel case; it is a case involving administrative review of a statutory office holder’s decision to refuse to approve removal of a tree from private land where express statutory criteria apply, it involves a different law and context, and the Tribunal regards it as of limited relevance here. The Tribunal accepts that the principles set out in section 110 of the CLW Act apply. The evidence of Mr Schwartzkoff was the best, indeed only, technical evidence available to the Tribunal. The Tribunal accepts that he was well qualified to give evidence on relevant technical issues and the Tribunal found his evidence to be considered, coherent and reliable. The applicant contended that Mr Schwartzkoff was not an independent witness and that an independent arborist should have given evidence.[63] The Tribunal notes that the applicant had the onus of proof and did not provide any technical evidence from an arborist. On this basis and relying on Mr Schwartzkoff’s evidence the Tribunal finds that the risk of the branch falling was not foreseeable and therefore was not a breach of any duty.

    [63] Applicant’s further submissions received 20 October 2021

  11. Mr Schwartzkoff’s evidence was that he re-inspected the tree on 11 May 2021. He stated that while the subject tree was likely to be about 50-60 years old with an estimated life span of 80 years,[64] it was nonetheless “vigorous” and a “relatively full-crowned tree”.[65] His evidence about the basis for the current risk assessment of the tree for removal within six months, the foreseeability of the branch failing and the cause of the branch falling, relevantly included the following:

    [The current risk assessment is based on] a trunk separation identified on the southern side of the tree after the incident. Based on the colouring of the exposed timber, I believe the trunk separation existed prior to the incident. However, I am unable to say whether the trunk separation caused the branch to break off. The trunk separation and the branch breaking off due to the storm may or may not be interrelated.

    I believe that the failure of the upper/central leader of the subject tree resulting in the incident was caused by strong winds that day, although there may be other factors such as dry rot.

    The specific characteristic that led to the failure of the upper/central leader would have been challenging to identify based on a visual assessment. Even though the trunk separation can be seen by visual inspection, … [it] is on the southern side of the tree…[66]

    [64] Transcript of proceeding 4 June 2021, page 22

    [65] Transcript of proceeding 4 June 2021, pages 22-23

    [66] Statement of Mr Schwartzkoff, dated 17 May 2021 at [20]-[22]

  12. In his oral evidence he further stated as follows:

    there can be multiple facets to a tree failure. …the limb had signs of dry rot…but…it was probably also a burst or wind gust that dislodged the limb itself…[and the trunk separation on the southern side was] not ideal …but this calcification…was still all intact…there was quality timber in there.[67]

    [67] Transcript of proceedings 4 June 2021, pages 15, 19-20

  13. While the applicant contended that if Mr Schwartzkoff had inspected the subject tree prior to the branch falling then the outcome from the storm would have been different, this is not Mr Schwartzkoff’s evidence.[68] Mr Schwartzkoff did not inspect the tree prior to its branch falling however he summarised his opinion about the risk posed by the tree as follows: “If I had seen the back side of the tree, by doing a 360, … in hindsight, I would still treat that tree the same, remove it when we got to it…[b]ut it would be medium to long-term”.[69]

    [68] Applicant’s further submissions received 20 October 2021 at [7]-[8]

    [69] Transcript of proceedings 4 June 2021, page 20

  14. Given the above finding that the branch falling from the subject tree was not foreseeable, the Tribunal does not need to make findings about the other three criteria under section 43 of the CLW Act. However, it observes that the second criteria is likely to be met, contrary to the respondent’s contention,[70] in that the risk was not insignificant – severe damage to a car is a significant risk especially when one considers that a person may be near or in the car when it is impacted by a falling branch, so the risk extends to a risk of personal injury. Photos of the fallen branch and its impact on the car submitted by the applicant support this observation.[71] In regard to the third criteria under section 43, the Tribunal observes that it is likely that a reasonable person would have taken precautions given the locality of the subject tree, its age, and that the Guidelines set out a proactive approach for the subject tree as found above, which is contrary to the respondent’s contentions.[72]

    [70] Respondent’s submissions dated 18 May 2021 at [16(c)]

    [71] Applicant’s submissions dated 20 April 2021, Timeline, Attachment C

    [72] Respondent’s submissions dated 18 May 2021 at [16(d)-(f)]

  15. Given the above finding about the lack of foreseeability of the branch falling, the Tribunal does not need to make findings about whether the respondent caused the damage. However, the Tribunal observes that the applicant had the burden of proving causation and any related fact, and that the best technical evidence about cause was that provided by Mr Schwartzkoff who did not support the applicant’s contentions about causation. His evidence was that the cause of the branch falling was the “strong winds that day” albeit the tree had some rot and structural characteristics that were “not ideal”, and that even healthy trees fail in such weather, as summarised above.[73] The applicable test for causation is the ‘but for’ test as set out above. The Tribunal observes that in this case the applicant has not provided adequate proof that the respondent’s omission in management of the subject tree is a necessary condition of the damage.

Order

[73] Transcript of hearing dated 4 June 2021, pages 19-20

  1. The application is dismissed.

………………………………..

Senior Member L Beacroft

Date(s) of hearing: 4 June 2021
Applicant: In person
Solicitors for the Respondent: Ms S Ng, ACT Government Solicitor

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