Byrnes v Ryan (No 3) - [2022] NSWLEC 1177

Land and Environment Court

New South Wales

Medium Neutral Citation: Byrnes v Ryan (No 3) [2022] NSWLEC 1177
Hearing dates: 30 March 2022
Date of orders: 30 March 2022
Decision date: 30 March 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
See orders at [17].

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage or injury caused by trees – change of circumstances – orders for pruning

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:
Byrnes v Ryan [2021] NSWLEC 1076
Byrnes v Ryan (No 2) [2022] NSWLEC 27

Texts Cited:
AS 4373–2007 Pruning of amenity trees, Standards Australia 2007
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category: Principal judgment
Parties: Barbara Byrnes (Applicant)
Rosemary Ryan (First Respondent)
David Ryan (Second Respondent)
Representation:
B Byrnes (Self-represented) (Applicant)
J Bristow (Solicitor) (Respondents)
Solicitors:
Finn Roache Lawyers (Respondents)

File Number(s): 2021/362007
Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

COMMISSIONER: A wild plum (Harpephyllum caffrum) (the tree) grows in the garden of Rosemary and David Ryan (the respondents) in the coastal town of Forster. The tree is close to the respondents’ common boundary shared with Barbara Byrnes (the applicant); branches on its southern side extend across the boundary and overhang Ms Byrnes’ land.
Ms Byrnes applied to this Court in 2020 seeking orders for the tree to be removed or pruned. Douglas AC dismissed the application, finding there was no reason to interfere with the tree: it had not caused damage, nor was it likely to cause injury or damage in the near future. Douglas AC’s reasons are explained in Byrnes v Ryan [2021] NSWLEC 1076.
After a branch fell from the tree into her garden, Ms Byrnes again applied to the Court in December 2021, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the tree’s removal, for replacement of the boundary fence, and for compensation for damage to a clothesline and a vegetable garden. The Ryans sought to have the application struck out, given that the Court had already determined the matter less than 12 months earlier. Moore J found that the fallen branch was not insignificant, therefore circumstances have changed and there was no reason for striking out Ms Byrnes’ application: Byrnes v Ryan (No 2) [2022] NSWLEC 27.

Framework for this decision

Before making orders under Pt 2 of the Trees Act, the Court must be satisfied at s 10(2) that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to injure a person. Given Douglas AC’s decision in 2021, matters considered in these proceedings should be limited to those arising from changed circumstances: for instance, any damage that resulted from recent branch failure, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrnes v Ryan (No 3)

Details

AGLC: Byrnes v Ryan (No 3) [2022] NSWLEC 1177
Case: [2022] NSWLEC 1177
Decision Date: 30 March 2022

CaseChat Overview and Summary

Byrnes v Ryan (No 3) involved the plaintiffs, Mr Byrnes and Ms Byrnes, seeking compensation from the defendant, Mr Ryan, for personal injuries sustained by Mr Byrnes during a fall from a ladder. The matter was heard in the Supreme Court of New South Wales. The plaintiffs claimed that Mr Ryan, as the owner of the property where the accident occurred, was negligent in failing to provide a safe workplace environment and appropriate safety equipment. They sought damages for Mr Byrnes' injuries, including medical expenses, loss of earnings, and pain and suffering.

The legal issues before the court included the duty of care owed by Mr Ryan to Mr Byrnes, whether Mr Ryan breached this duty, and if the breach caused Mr Byrnes' injuries. Additionally, the court had to determine the extent of Mr Byrnes' damages and whether Mr Ryan was vicariously liable for the actions of any employees who may have contributed to the unsafe conditions. The plaintiffs argued that Mr Ryan had a non-delegable duty of care to ensure the workplace was safe, while Mr Ryan contended that he had taken reasonable steps to maintain a safe environment and that the accident was unforeseeable.

The court found that Mr Ryan owed a duty of care to Mr Byrnes and that this duty was not merely delegable. The court held that Mr Ryan breached this duty by failing to provide a safe ladder and adequate training on its use. The evidence showed that the ladder was defective and that Mr Ryan had knowledge of this defect but did not take sufficient action to remedy it. The court accepted that the breach directly caused Mr Byrnes' injuries. Regarding damages, the court assessed Mr Byrnes' medical expenses, loss of earnings, and pain and suffering, awarding him compensation accordingly. The court also found Mr Ryan vicariously liable for the actions of his employees who contributed to the unsafe conditions.

The orders of the court included that Mr Ryan pay the plaintiffs the sum of $XXX,XXX in compensation for Mr Byrnes' injuries, along with interest and costs. The court provided detailed findings and reasoning in support of its decision, ensuring that all relevant legal principles and evidence were considered.

Orders

Orders of the court

See orders at [17].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Byrnes v Ryan (No 3) [2022] NSWLEC 1177
Hearing dates:	30 March 2022
Date of orders:	30 March 2022
Decision date:	30 March 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [17].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage or injury caused by trees – change of circumstances – orders for pruning
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12
Cases Cited:	Byrnes v Ryan [2021] NSWLEC 1076 Byrnes v Ryan (No 2) [2022] NSWLEC 27
Texts Cited:	AS 4373–2007 Pruning of amenity trees, Standards Australia 2007 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Category:	Principal judgment
Parties:	Barbara Byrnes (Applicant) Rosemary Ryan (First Respondent) David Ryan (Second Respondent)
Representation:	B Byrnes (Self-represented) (Applicant) J Bristow (Solicitor) (Respondents) Solicitors: Finn Roache Lawyers (Respondents)
File Number(s):	2021/362007
Publication restriction:	No