Prestige Property Services Pty Ltd v Choi - [2007] NSWCA 363

NEW SOUTH WALES COURT OF APPEAL

CITATION: PRESTIGE PROPERTY SERVICES PTY LTD v CHOI & ANOR [2007] NSWCA 363

FILE NUMBER(S):
40119/2007

HEARING DATE(S): 26, 27 November 2007

JUDGMENT DATE: 27 November 2007
EX TEMPORE DATE: 27 November 2007

PARTIES:
PRESTIGE PROPERTY SERVICES PTY LTD
YUN HEE CHOI
CITY OF SYDNEY COUNCIL

JUDGMENT OF: Mason P Hodgson JA Handley AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20689/2001

LOWER COURT JUDICIAL OFFICER: Barr J

LOWER COURT DATE OF DECISION: 14 February 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 65

COUNSEL:
D Nock SC/ J Downing (Appellants)
M B Williams SC (1st Respondent)
P Menzies QC/ J Steward (2nd Respondent)

SOLICITORS:
Ebsworth & Ebsworth (Appellant)
Gaitanis Lawyers (1st Respondent)
McCulloch & buggy (2nd Respondent)

CATCHWORDS:
EVIDENCE – Admissibility and relevancy – opinion evidence – expert opinion – in general – whether failure to consider expert evidence – whether failure to give reasons rejecting evidence – joint report of experts – evidence given by experts on contractual construction – where opinion outside experts’ field of expertise – where problems with the evidence addressed when trial judge admitted the evidence
TORTS – Negligence – liability for others’ negligence – independent contractors – delegable duty – council and independent contractor – duty to remove dangerous branches from trees – whether duty was ‘wholly’ delegated
TORTS – Negligence – essentials of action for negligence – duty of care – miscellaneous cases – scope and existence of duty – duty to remove dangerous branches from trees – duty arose from contract – whether duty confined to dangerous branches that are visible from ground level – dangerous branches meant those that were detectable upon reasonable inspection – duty not limited to inspection from ground

LEGISLATION CITED:

CASES CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40119/07
MASON P
HODGSON JA
HANDLEY AJA
Tuesday 27 November 2007

PRESTIGE PROPERTY SERVICES PTY LTD v CHOI & ANOR

JUDGMENT

MASON P: The first respondent, to whom I shall refer as the plaintiff, suffered serious brain injury when struck by a falling tree branch. The accident occurred on 14 December 2000 in the mid-afternoon as the plaintiff was sitting in a grassed area in Hyde Park North in the City of Sydney. The branch was seven or eight metres long and it fell from one of the closely-planted rows of Hills weeping figs (ficus macrocarpa hillii) lining The Avenue in the park.
Planting occurred over a century ago. The proximity of the trees to each other means that, in their mature state, branches in the canopy compete for sunlight and thereby grow longer and with heavier ends than normally the case. Furthermore, a condition called included bark (detectable to only the trained eye) means that joints get weakened.
The propensity of otherwise healthy Hills weeping figs in Hyde Park North to shed branches unexpectedly due to these factors was known to both the appellant and the City Council. The Council knew because of specialist reports it obtained in the 1980s. An unchallenged finding that the appellant knew is made at §91 of the reasons of the trial judge.
The plaintiff initially sued the City of Sydney Council alone, alleging a duty of care arising from its care, control, management and occupation of Hyde Park. The Council denied liability to the plaintiff. It also filed a Cross Claim against the appellant seeking indemnity or contribution under both the Law Reform (Miscellaneous Provisions) Act 1946 and the terms of the Contract between the Council and the appellant referred to below.
The plaintiff thereupon amended her Statement of Claim to plead in the alternative a case directly against appellant. As to duty of care, she invoked the Council’s allegations it had pleaded against the appellant. She also averred against the appellant that “there exists such proximity between it and the Plaintiff as to give rise to a duty of care to the Plaintiff to conduct itself as is alleged by the First Defendant it ought to have done”.
Barr J found that the appellant was negligent and that the Council was not. The Council was acquitted of negligence because it had acted reasonably in selecting and supervising a specialist contractor, the appellant, to look after safety and maintenance in the Park, including the checking and removal of dangerous tree branches. The appellant was found liable directly to the plaintiff because it had negligently failed to establish and carry out a system of inspection and lopping which would have removed the offending branch before it became a danger to the plaintiff.
Damages were assessed at $718,259.95.
The appellant has appealed, joining the plaintiff and the Council, challenging the conclusion that it was liable in negligence to the plaintiff. The plaintiff has filed a defensive Cross Appeal against the possibility that the appellant is found not liable to her, in which event she seeks a verdict against the Council.
No party challenges the trial judge’s findings concerning the foreseeability of injury stemming from the combination of factors relating to the particular trees. Nor does anyone contest the findings as to the absence of inspections and prunings reasonably required of whatever entity or entities were responsible for this aspect of safety in Hyde Park.
Causation and quantum of damages are not in issue in this Court.
Because of the limited issues in the appeal and my general agreement with the conclusions of Barr J, it will assist if various findings are hereafter sourced to particular paragraphs of his Honour’s reasons (see Yun Hee Choi v City of Sydney Council & 4 Ors [2007] NSWSC 65). The paragraphs will be cited as J1, J2 etcetera.
It is now common ground that the Council’s duty of care was not a non-delegable one (see Leichhardt Municipal Council v Montgomery [2007] HCA 6, 233 ALR 200). This said, questions as to the Council’s duty or breach are quite academic given that no claims for contribution between tortfeasors are agitated in the appeal and the plaintiff does not seek judgment against the Council in the event that the appeal fails.
Until 1998 the Council managed Hyde Park North by the labours of its own staff but contracted out the management of Hyde Park South. The appellant was a contractor. The services it offered were wide-ranging including the management of gardens, turf management, cleaning and tree care. It sublet the arboriculture work for Hyde Park South to Active Tree Services Pty Limited. The Council knew this. Late in 1996 the Council decided to invite tenders for the management of a number of its parks, streets and spaces, including Hyde Park North and Hyde Park South.
In its Written Submissions in Reply the appellant describes itself as having a non-exclusive licence to enter the Park and perform its maintenance works, including tree works. The processes leading to and defining the scope of that licence are described in §§35-51 of Barr J’s reasons. In short, the Council advertised for expressions of interest in 1997. The appellant, along with others, tendered for the work offered, and the appellant was selected by a lengthy evaluation process. The appellant then entered into a detailed written Contract that commenced on 1 June 1998.
The appellant disclosed to the Council that it proposed to subcontract some of the work to Active Tree Services Pty Limited. This happened, but it has no bearing on the scope of the work that the appellant agreed to do for the Council. Nor, in the way that the case was fought, did this operate to discharge the appellant’s own duty of care towards the plaintiff given that the appellant knew all along that its subcontractor never agreed to monitor the trees in the way reasonably found to be necessary to avoid injury to park users such as the plaintiff.
When the appellant submitted its successful tender in January 1998 it described itself as a privately owned company operating in every capital city, employing in excess of 5000 staff and with a projected turnover for 1996/97 of $100 million (Blue 544). Its landscape management division, under the general management of Craig McCallum, outlined a detailed operational plan for the work it contemplated doing if awarded the tender. Its nominated subcontractor was described as having qualified arborists on staff with skills extending to the care, maintenance and removal of trees (Blue 595).
The Contract between the appellant and the Council consists of a number of interlocking documents.
The Contract was let to the appellant for more than $9 million over five years. The amount referable to Hyde Park North was $2.4 million. The greater part of that amount was for maintenance including maintenance of trees. The appellant was not the lowest tenderer.
The primary document is called “Maintenance of Parks, Open Space Areas and Street Trees: General Conditions of Contract”. There are standard terms about the Contract being an entire agreement.
The Introduction to the General Conditions stipulated that the appellant (there described as the Service Provider) had agreed to supply to Council, and Council had agreed to appoint the Service Provider to provide, the Services defined in the General Conditions on the terms and conditions of that Agreement.
The Services were defined in cl 3.1(aa) to mean:
[T]he services to be performed by the Service Provider, as set out in Schedule 1 and includes additional services or services of a higher standard provided in the Tender, if any, and any other services agreed by Council and the Service Provider and where provision is made in the Specification for goods or other materials (eg plants and trees) also to be provided by the Service Provider, references to Services shall be deemed to mean the provision of services or goods and materials and services, as applicable.
Schedule 1 of the General Conditions defined “Services” by reference to the Request for Tender and Specification previously supplied by the Council as part of the tender process. “Services” also included:
Additional Services or services of a higher standard provided in the Tender, if any, and;
any other services agreed by Council and the Service Provider.
Returning to the General Conditions, cl 3.1 committed the appellant to perform the Services in accordance with the Specification and,
in a conscientious, diligent and professional manner, which is higher than or equal to the degree of skill, care and diligence normally exercised by recognised professional persons which supply services of a similar nature.
Clause 10 of the General Conditions required the appellant to meet performance criteria, with sanctions if it failed to do so. One performance criterion found in cl 4.1.11 of the Specification refers to park trees being “free of dead and dangerous branches” (Blue 1511).
Clause 17.1 permitted the appellant to appoint sub-contractors with the prior consent of the Council but on the express basis that the appellant remained fully responsible for the performance of the Services.
Clause 25.1 stipulated that the relationship of the Council to the service provider was that of principal and independent contractor, and that the Service Provider should perform the Services and all acts and agreements related thereto, whether or not requested by Council, in accordance with its own methods.
The Specification is found in Vol 2 of the Request for Tender. Its stated objective include providing and conducting an efficient, effective and environmentally acceptable operation for maintaining a safe and aesthetic landscape environment.
Many tasks are assigned by the Specification, including garden maintenance and lawn mowing. With reference to Trees, cl 3.3 stipulates:
3.3         TREES
The requirement is to maintain healthy well formed, attractive trees, free of diseases, insects, deadwood and damage by utilizing the latest arboricultural technology and to apply maintenance procedures in accordance with this specification.
Maintenance of tree guards and tree surrounds in Street Trees is NOT a requirement of this Contract and will be the responsibility of another Service Provider.
The Service Provider shall be required to undertake the following:
(a)         The Service Provider shall include a program for tree maintenance in the Quality and Operational Plan. The Service Provider shall outline all relevant details relating to maintenance of trees in Parks, Open Space Areas and Streets and provide for a minimum one year cyclic program;
(b)         The Service Provider shall monitor, record and report the condition of all trees in Parks, Open Space Areas and Streets and submit a report to the Contract Manager each month;
(c)          The Service Provider shall remove all dead, dangerous and fallen branches in accordance with the best practices of the Arboricultural Trade and dispose of the same from site;
(d)         The Service Provider shall make provisions for the adequate watering of trees. The Service Provider shall propose his arrangements for the watering of the trees during dry spells, when there may be Sydney Water restrictions on the use of water, to the approval of the Contract Manager. The proposals should ensure survival of the trees during the dry spell, as any trees which die as a result of the Service Provider’s failure in watering are to be replaced with trees of the same species and similar maturity at the Service Provider’s expense;
(e)          The Service Provider shall be required to maintain levels of mulched areas around Street Trees to ensure public safety;
(f)           The Service Provider shall provide minimum clearance between tree branches and the following:
•Pedestrian paths 3 metres
•             Access roads        4 metres
               •             Service wires  0.5 metre
•Lighting  As required to
provide illumination
•             Building/structures            1 metre
               •             Awnings  1 metre
(g)         The Service Provider shall give priority to clearance orders from Energy Australia and undertake work in accordance with Energy Australia’s Codes of Practice.
(h)         The Service Provider shall provide a minimum of one week’s prior notice to residents affected by the removal of a tree except in the case of an emergency.
(i)          The Service Provider shall remove stumps within one week after removal of a tree and provide adequate safety barriers, lights etc in the interim period.
I draw particular emphasis to 3.3(b) and (c). Contrary to aspects of the appellant’s submissions in this Court, these obligations are not confined to tree conditions visible from ground level or the removal of trees perceived to be dangerous by virtue of inspection from ground level or inspection by an uninformed lay person.
Clause 5.18 of the Specification required the Service Provider to forward to the Council’s Contract Manager a wide range of reports, including a tree condition report.
Clause 4.1 stipulated for monthly inspections to be held jointly between the Service Provider and the Contract Manager and spelt out a regime for resolving disputes as to achievement of stipulated standards.
As indicated, the appellant tendered for the Contract, nominating Active as its proposed sub-contractor for some of the work. There were extensive pre-contractual negotiations as set out at J42.
Nothing in the pre-contractual negotiations would appear to modify the appellant’s contractual duties as assumed under the General Conditions contract it later executed. If anything, the relevant contractual stipulations were tightened in an exchange of facsimiles on 27 and 28 April 1998. The parties effectively agreed that the clauses of the Specification to which reference has already been made were to be construed in a particular manner (see J48-49).
The first ground of appeal that is pressed is ground 2 which reads:
2.His Honour erred in finding that the Second Respondent wholly delegated to the Appellant the duty of care the Second Respondent owed to the First Respondent in the circumstances of the case, including:
(a)the Second Respondent retaining the overall control of Hyde Park;
(b)the Second Respondent having a duty under its contract with the Appellant to monitor the Appellant’s performance of its obligations under the contract and to conduct regular performance inspections to ensure the Appellant was meeting specified performance criteria; and
(c)the steps the Second Respondent in fact took to monitor the Appellant’s performance of its obligations under the contract and to conduct regular performance inspections to ensure the Second Defendant was meeting specified performance criteria.
This ground is curiously framed. After all, more than one person may owe and breach a duty of care to a person injured in an accident. And there is no reason why more than one person may assume sufficient control over activities over the same land to fall under concurrent duties of care. To show that the Council continued to occupy the Park or to retain what is described in the ground of appeal as “the overall control” of the Park does not preclude a finding that a person such as the appellant also assumed and exercised sufficient control so as to fall under a duty of its own.
The plaintiff’s pleading alleging that the appellant’s duty of care arises from “proximity” had an old-fashioned and unhelpful ring about it. However, the primary facts generating the duty of care were clearly established.
Barr J held that the Council’s duty towards the plaintiff was delegable and delegated to the appellant (J75). This conclusion was based upon primary findings including:
(a)that the Council knew generally about the condition of trees in Hyde Park and that it lacked the skill and experience necessary to identify defects of the kind present in the subject tree (J59).
(b)the Council knew that the appellant was a substantial company that intended to engage a substantial and reliable sub-contractor, Active (J59).
(c)The Council went about its selection of the appellant with care (J60-66, 68, 70).
(d)In its decision to select the appellant the Council noted that the principal of the appellant, Mr McCallum, described himself as an arborist and it knew that Active had arborists on its staff or senior management (J69).
(e)The Council stipulated for ongoing oversight and, principally through its Contract Manager administered the appellant’s contract in a careful way (J70-72).
His Honour concluded (J74):
It seems to me that the whole of the relationship between the Council and Prestige was one of a general principal which engaged a specialist contractor. It did so responsibly. It supervised the contract responsibly but in a practical sense there could be no oversight of the specialist work which Prestige was required to do. There was nothing inherently dangerous about the work. The essence of Mrs Choi’s claim is the failure to identify the branch as dangerous, because it was likely to fall, and remove it. That was the very thing that the Council engaged Prestige to do. It seems to me that there is nothing about the relationship or the contract that leads to the conclusion that the Council ought to be fixed with the responsibility towards Mrs Choi of ensuring that Prestige did what it was required to under the contract in the manner in which it was required to do it.
I agree with this conclusion.
The nature of the Council’s duty of care, not being a so-called non-delegable one, was such that the Council could discharge it by acting reasonably in the manner found by the primary Judge. As Hayne J, with whom Crennan J agreed, put it in Leichhardt MC v Montgomery (at 243[157]) in relation to a highway authority:
There is no reason for adding the liability of a highway authority to road users to an otherwise limited number of cases where a non-delegable duty has been held to be owed. If a highway authority acts without reasonable care, absent a particular statutory provision to the contrary, it will be liable to the road user who was injured as a result. If the highway authority acts with reasonable care in appointing and supervising the work of an independent contractor but that contractor is negligent, the contractor will ordinarily be liable (as Roan was here) to the road user who suffers injury in consequence.

This passage, with particular reference to the words “and supervising” shows that the appellant’s submission is misconceived so far as it is suggested that the Council somehow failed carefully to discharge its own duty of care by reason of the supervisory role it retained. On the contrary, the retention of an adequate system of control over the performance of a subcontractor is an important aspect of any analysis of the question of breach in a case where a person seeks to discharge its duty by appointing a specialist subcontractor.
What is reasonable in such a situation will vary with the context: thus a school or prison authority faced with an emergency involving a pupil or inmate would not be expected to send the headmaster or prison governor to supervise the surgeon called in to perform emergency surgery.
The appellant’s submission ought also to be rejected insofar as it suggests that what is reasonable to discharge the appellant’s separate duty of care towards the plaintiff is qualified in some way by the Council having reserved, in its own interest, the right to monitor the appellant’s performance of its contractual obligations to the Council. If the Contract and the licence it conferred armed the appellant with responsibility for attending to safety issues stemming from the state of trees placed under the appellant’s responsibility, then it is irrelevant that the Council also owed the plaintiff a duty of care.
This case involves the existence and scope of the appellant’s duty and whether the appellant was negligent in not (by itself or its subcontractor) taking any steps to detect and remove branches that were dangerous within the fair interpretation of cl 3.3 of the Specification. The appellant’s position, in short, is that this was not its job. It claims that it would only have been its job if the Council had agreed to pay it extra under the Contract and stipulated expressly that the necessary additional work had to be done under the Contract.
Barr J rejected this argument. His Honour first noted (at J80) that at trial Mr Nock SC did not dispute that a duty of care was owed by Prestige to persons in the position of Mrs Choi.
His Honour found that the branch which fell was “dangerous” within the scope of the appellant’s obligation stemming from cl 3.3(c) of the Specification to remove all dead, dangerous and fallen branches in accordance with the best practices of the arboricultural trade (J81).
The submissions in this Court challenging this finding tended to track those that were advanced below and responded to by the primary judge at J81-96, paragraphs that I would adopt as part of my own reasons with the following additional remarks.
First, the word “dangerous” was never entirely free-standing. The General Objectives of the Contract reinforced the point that safety was involved as well as aesthetics in the purpose of the appellant’s retainer. The key clause, 3.3(c) of the Specification, framed the appellant’s duty to remove all dead, dangerous and fallen branches by stipulating that this was to be done “in accordance with the best practices of the Arboricultural Trade”. In my opinion, this qualification went beyond the methodology of the removal process. It would have embraced diagnosis as well. At J104 Barr J accepted the evidence of the two expert arborists, Mr Ford and Mr Atkins, to the effect that the branch that fell was dangerous in the sense that it was detectable and such that a reasonable arborist would have removed the danger by removing or at least shortening the branch. I agree.
Second, the submission that it makes commercial nonsense to construe the Contract as requiring the type of monitoring that the experts agreed was required to detect dangerous branches is essentially a circular argument. The appellant’s contractual obligations are to be determined by examining the promises it made, construing them in context and according to standard rules of interpretation.
Third, I find equally unhelpful the submission that the extent of the obligations that the appellant assumed under its Contract with the Council are governed by the arrangements that it did or did not procure with its subcontractor. If, on the true construction of the appellant’s Contract, the appellant bound itself to monitor all trees and to remove all dangerous trees and branches, then it is the appellant’s problem that it elected to take no steps to perform this obligation or to arrange for its subcontractor to do so.
I would specifically endorse the following passages in the judgment below:
If nothing could be detected on inspection, nothing would be expected to be done. It seems to me that as the term is used in the contract, a branch would not be considered dangerous which could not be ascertained on reasonable inspection as dangerous. On the other hand, a branch that was identifiable on inspection as likely to fall, with the consequent risk of injury to somebody, was dangerous.
To my mind there was nothing about the commercial relationship between Prestige and the Council or about the surrounding circumstances to lead to any other construction. The Council was not obliged to disclose to Prestige, whose Managing Director called himself an arborist of long experience in tree surgery, and which sub-contracted arborists to do the work it contracted for, the details of the reports it had received about dangerous trees. Council’s withholding those reports and requiring tenderers to agree to rely on their own enquiries does not persuade me that the intention was to deal with branches that were dangerous other than for reasons adverted to in those reports.
Another argument advanced below was renewed here. When tendering, the appellant disclosed that “major tree maintenance” would be carried out by its subcontractor Active Tree Services Pty Ltd. The letter (at Blue 592) gave details about the work intended and the personnel that would be involved. One section of the letter stated:
Additional Services to be Offered
Following an inspection of the Parks and streets, there are a number of mature tees (sic) that pose a risk to the public, as they have a habit of dropping large branches. This risk could be reduced by pruning and crowd (sic) reduction. There are also a number of unsuitable trees that should be replaced. It is suggested a comprehensive inventory of these unsuitable trees be done at the commencement of the contract, and a list should be given to the Council (at an additional charge to Council).
The appellant submits that this letter shows that it never undertook to do the sort of work required to detect the branches that fell on the plaintiff as part of its responsibilities under the main Contract since the Council never agreed to pay an additional charge for the additional services.
To my mind, there is a real question about what was being proposed to be done in the first paragraph of the passage I have just quoted, when a fair reading of that paragraph is uncoloured by what may have been the subjective intent of the appellant or Active.
On one view of the proposal, when considered in light of the entire passage of the letter that I have already set out, the proposal is confined to suggesting the need for a “comprehensive inventory”, being entirely silent about the work that would be done with the benefit of that inventory.
Be that as it may, it is undisputed that this proposal was not accepted by the Council. Nor did the letter in which it is contained become part of the contractual documents. I would also refer in this context to cl 5.18 of the Specification with its contractual obligation upon the service provider to provide tree condition reports.
The matters summarised at J47-50 show that the Council adhered to the position that the Specification and Contract would speak for themselves. There was to be no extra work for a specific extra cost. The appellant was left to build any costing for contract work into its tender price. And the expression “dangerous” in cl 3.3(c) of the Specification would remain without any particular contractual definition, especially one along the lines now advanced by the appellant.
I would therefore reject this ground of appeal.
The other two grounds that were pressed are as follows:
3. His Honour, having ordered the experts Atkins and Ford to prepare a joint report in which they answered questions including “6.1 If Prestige has been required to ‘maintain trees’ in Hyde Park North and ‘remove dangerous branches’ should the branch that struck the Plaintiff have been removed prior to December 2000”? erred in failing to consider the answer to 6.1 that the experts provided in their joint report of 2 November 2006.
4. His Honour erred in failing to give reasons for rejecting the evidence of the experts Atkins and Ford at 6.1 of their joint report of 2 November 2006.
The experts retained by the plaintiff (Mr Ford) and the appellant (Mr Atkins) produced individual reports and later a joint report. The joint report was more in the nature of a single document compiling their several views on common questions. Early in the trial there was discussion about a further joint report being prepared. This was requested by the trial judge (see Black 42).
The questions were agreed, although from the outset counsel for the appellant, Mr Nock, was flagging difficulties about the appropriateness of the experts being asked to deal with contractual issues (see Black 25, 40). This makes it ironical that the same party is now complaining that the second joint report was not given weight in his Honour’s final determination as to the meaning of the Contract.
When prepared, the second joint report was submitted to the Court. It went into evidence by consent of all parties and became Ex T (see Black 621). Most of Ex T contains expert material that is uncontroversial in its admissibility.
It was the barrister for the Council who flagged an objection to para 6 of Ex T essentially on the basis that this paragraph addressed matters of contractual construction. After hearing submissions by all parties, his Honour ruled as follows:
I think that paragraphs 5 and 6 should come into evidence as part of the report, exhibit T.
There is a possibility that in expressing one or more opinions the experts, jointly or individually, may be seen to be interpreting obligations under the contract. The matter, however, is not so simple. The Council, which is the only objector to these paragraphs, relies on the contract. The contract in part requires the contractor to act according to the best practices of the arboricultural trade. The opinions which are objected to may be seen as based upon the opinions of the authors of the requirements of the best practices of the arboricultural trade.
I have in mind what the President said in Regina v GK in his Honour’s observations on section 80 of the Evidence Act. Plainly, that section preserves the admissibility of evidence of the kind now objected to even though it may come to, or close to, the ultimate issue. It will be for Council at a later stage of the trial to make their submissions about any caution of the kind advocated in GK I should apply when using these portions of the joint experts’ report.
The passage of my judgment in R v GK to which his Honour was referring in this ruling of 6 November 2006 states:
In New South Wales, opinion evidence is not admissible only because it is about a fact in issue or an ultimate issue, Evidence Act s80A. However, judges should exercise particular scrutiny when experts move close to the ultimate issue lest they arrogate expertise outside their field or express views unsupported by disclosed and contestable assumptions. (R v GK (2001) 53 NSWLR 317 at 326[40], citations omitted.)
Barr J’s qualified interlocutory ruling did not in any way pre-empt his consideration of Ex T. After the ruling the two experts were extensively cross-examined in conclave. Then followed submissions.
In the judgment under appeal Barr J made reference to Ex T and he clearly drew upon portions of it (see J24-32).
It was not incumbent on his Honour to spell out those portions of Ex T that he ultimately found not to be probative or of assistance. The brief ruling on 6 November 2006 clearly flagged concern about paras 5 and 6 of Ex T. And the parties subsequently weighed in on the issues when subsequently cross-examining the experts in conclave.
Nor did his Honour err as suggested in ground 5 of the Amended Notice of Appeal. Merely because he did not adopt the reasoning of the experts in their several answers to question 6 does not meant that he failed to consider it.
In my opinion, both question 6 and the experts’ responses to it were largely irrelevant and positively unhelpful. The question posed was:
If Prestige had been required to ‘maintain trees’ in Hyde Park north and ‘remove dangerous branches’ should the branch that struck the plaintiff have been removed prior to 14 December 2000?
The premise to the question was both misleading and unhelpful. There is no category of tree maintenance contracts that have defined legal incidents or standard terms. The Contract in question went well beyond requiring the appellant to maintain the trees in Hyde Park. It imposed clear obligations to remove branches of trees in certain circumstances.
The reports of the experts in response to question 6 were equally unhelpful for several reasons quite apart form the fact that the question addressed was itself irrelevant and misleading. The reports may be found at Supplementary Blue Appeal Book 287-300.
The appellant particularly complains about the judge’s decision to ignore the views of Mr Ford.
Mr Ford makes it quite clear that the matter addressed by him in that part of the joint report, Ex T, was the scope and operation of the hypothetical contract to “maintain” trees. He also disclosed that he had had regard to “the manner in which the works were undertaken with the apparent approval of the Council”, an approach that bespeaks error because it proceeds upon unproven and unaddressed facts as well as construing a contract by reference to what is said to have been done pursuant to it after its commencement.
Mr Ford also reveals his opinion that “dangerous” should be construed as synonymous with “broken”. Suffice it to say that his opinion is irrelevant and wrong insofar as it may be sheeted home to the Contract construed in accordance with proper canons of interpretation. Mr Ford’s reasoning at Supplementary Blue 298T-X discloses that he had regard to extra-contractual communications referable to a suggested timescale for attending to the removal of dead, dangerous and fallen branches. He himself recognised that the discussion about that timescale did not base itself upon a definition of what was a “dangerous” branch.
I would reject grounds 3 and 4.
For these reasons the appeal should be dismissed with costs, with the intent that the costs order will cover the substantive costs of the two respondents to the main appeal. The plaintiff’s cross appeal should be dismissed with no order as to costs.
HODGSON JA: I agree.
HANDLEY AJA: I also agree.
MASON P: The orders of the Court will be as indicated.

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LAST UPDATED: 17 December 2007