Rhodes v Lake Macquarie City Council

[2010] NSWCA 235

New South Wales

Court of Appeal

CITATION:	Rhodes v Lake Macquarie City Council and another [2010] NSWCA 235
HEARING DATE(S):	24 August 2010
JUDGMENT DATE:	13 September 2010
JUDGMENT OF:	Hodgson JA at 1; Macfarlan JA at 60; Handley AJA at 61
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	TORT – Negligence – Plaintiff injured by branch falling from tree – Claim for damages against lessor, and against council which had refused consent to remove tree – Whether breach of duty by council in adopting tree preservation policy, or by council officer in refusing consent to removal of tree – Whether breach of duty by lessor in not informing council of history of property damage and injury from tree – Whether any such breach of duty causative of injury to plaintiff.
LEGISLATION CITED:	Civil Liability Act 2002 ss 5B, 5D, 5E, 43, 43A,
CATEGORY:	Principal judgment
CASES CITED:	Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
PARTIES:	Kerry RHODES (appellant) LAKE MACQUARIE CITY COUNCIL (first respondent) NSW LAND AND HOUSING CORPORATION (second respondent)
FILE NUMBER(S):	CA 2009/298374
COUNSEL:	C T BARRY QC/ P BEALE (appellant) J GUIHOT (first respondent) M L WILLIAMS SC (second respondent)
SOLICITORS:	CMC Lawyers (appellant) Moray & Agnew Solicitors (first respondent) McCabe Terrill Lawyers (second respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5265/2006
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	8 May 2009

- 22 -

CA 2009/298374
DC 5265/2006

HODGSON JA
MACFARLAN JA
HANDLEY AJA

13 SEPTEMBER 2010

Kerry RHODES v LAKE MACQUARIE CITY COUNCIL and Another

Judgment

1 HODGSON JA: On 8 May 2009, Puckeridge DCJ gave his decision in proceedings in which the appellant had sued the first respondent (the Council) and the second respondent (the Housing Corporation) for damages for personal injury suffered as a result of being struck by a branch falling from a tree which overhung the driveway of her home.

2 The primary judge gave a verdict for each of the respondents, dismissed cross-claims brought by each of the respondents against the other of them, and ordered the appellant to pay the respondents’ costs (in the case of the Council, on an indemnity basis from 8 December 2006; and in the case of the Housing Corporation, on an indemnity basis from 8 February 2008).

3 The appellant appeals from that decision.

Outline of facts

4 I will commence with an outline of facts that can be accepted as not being in dispute.

5 The appellant has lived since about 1997 in a house at Booragul, owned by the Housing Corporation. A large gum tree (a grey gum, eucalyptus punctata) has during this period been situated on a neighbouring property, also owned by the Housing Corporation, close to the boundary of the appellant’s property. This tree was about 18 metres high, and its canopy was about 14 metres wide. Its branches overhung the driveway used for the purposes of gaining entry to the appellant’s house.

6 Within a short time of occupying the premises, the appellant noticed that branches would fall from this tree onto the front area of her house.

7 In about 1999, the appellant’s daughter, who was walking with her to the car, was struck by a branch from the tree, and she sustained a minor scratch to her stomach. The appellant telephoned the Department of Housing and told them that the tree located near her driveway was dropping branches just about every day, especially in wind and rain, and that her daughter had been struck by a branch.

8 On a number of occasions (according to the appellant, about every three months) between 2000 and 24 December 2005, the appellant telephoned the Housing Corporation and informed them of problems from falling debris from the tree; and she asked that it remove the tree.

9 The occupiers of the adjoining property on which the tree was situated were a Mr and Mrs Mason. After the incident involving the appellant’s daughter, Mrs Mason spoke to a Ms Anne Bulla at the Toronto office of the Department of Housing. She said to her that the tree was dangerous, and she was advised that an application would be made to the Council to have the tree removed.

10 About six months later, Mrs Mason again made enquiry of the Department, and she also made enquiry of the Council. The Council told her that no application had been made to remove the tree. However, it appears that there was a Council inspection of the tree in 2000 and 2001; and on one occasion about this time, persons attended and trimmed the tree. According to Mrs Mason, on this occasion, the trimming ended when a person said he had to get out of the tree because he was being eaten alive by insects.

11 It appears that the tree was in fact trimmed on one or more other occasions between about 2002 and 2005, possibly as much as once every year or eighteen months.

12 On an occasion in about 2004, branches falling from the tree in a storm broke a window in the Masons’ house; and during the same storm, one of the appellant’s windows was also broken. On another occasion, a branch from the tree (said to have been about three inches round) resulted in broken tiles on the roof of the Mason house.

13 By an application dated 28 February 2005, the Housing Corporation made application to the Council for permission to remove the tree. The reason given in the application was that the tree was unstable.

14 On 18 April 2005, Mr Khemananta, an arborist who had delegated authority from the Council to authorise removal of trees in its area, attended the premises. In his report of 20 April 2005, Mr Khemananta checked a number of tree assessment criteria, including H/S (healthy/stable) for condition, 90 per cent for crown cover, no major deadwood, and P (prune) for recommendation. The notes to the report read:

This tree locates more than 5 metres from dwelling.
Tenant does not want this tree there; since 1998 she has been requesting DOH to remove this tree as it drops leaves and debris. There is no gap/movement in the surrounding soil and the tree root crown.
Removal is not warranted.

15 Mr Khemananta sent a notice of determination to the Housing Corporation, stating that the application was refused, and giving the following reasons:

1. The tree appears to be in a sound and stable condition.

2. The removal of tree would be inconsistent with the objectives of Council’s Development Control Plan No. 43 – Tree Management.

16 In an accompanying letter, Mr Khemananta advised there was no objection to pruning of deadwood and crown thinning of the tree by 15 per cent, but height reduction was not permitted.

17 On 22 June 2005, a qualified arborist Mr Miller attended the premises, on instructions to lop 15 per cent of the tree and to clear deadwood. He and two others were there for about one to two hours, and they removed three large branches and deadwood. While he was there, a lady came out from the house (probably Mrs Mason) and said she wanted the tree cut in half because she was concerned branches were going to fall on her house.

18 On 24 December 2005, the appellant went to open the door of her car, which was then parked in the driveway of her property, and as she did so she was struck on the top of her head and fell to the ground. She managed to get to her next-door neighbour’s house to seek help, and she was taken to hospital. She had a significant wound on her head, and a nurse at the hospital removed a piece of timber from the wound.

19 On the same day, Mr Miller received a call advising that a branch had fallen on a lady, and requiring him to go to the premises and “make it safe”. He went to the premises. It was windy. Mr Miller didn’t see any branches on the ground, but saw what he described as a large hanger in the tree which he said was “still live but had been broken in the wind”. He brought his truck underneath it, and brought it down. He inspected the tree, and there were no other hangers observed in it.

Statutory provisions and Council policy

20 The Civil Liability Act 2002 has the following provisions relevant to this case:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:


(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):


(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

…..

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:


(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( scope of liability ).


(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:


(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.


(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E Onus of proof

In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

…..

43 Proceedings against public or other authorities based on breach of statutory duty

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority.

(2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

(3) In the case of a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

43A Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A special statutory power is a power:


(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.


(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

21 The Lake Macquarie Local Environmental Plan 1984 (the LEP) allows the Council to adopt and enforce a Tree Preservation Order (TPO) to control the clearing of vegetation; and on 12 November 2001, the Council adopted a TPO prohibiting, except with the consent of Council, ringbarking, cutting down, topping, lopping, removing, pruning, injuring or wilful destruction of any tree of Australian native species exceeding three metres in height or having a trunk diameter of 75mm or more. The council adopted Development Control Plan No 43 (DCP 43) providing guidance on the administration of this TPO.

22 The aims of DCP 43 included:

c To minimise unnecessary injury to or destruction of native trees and vegetation.

d To retain healthy individual native trees of local amenity and aesthetic value.

e To facilitate the removal of undesirable exotics, noxious weeds, dangerous trees and any other inappropriate plantings, and to replace these with suitable local indigenous species which will positively contribute to visual and environmental amenity and ecological sustainability.

23 Among considerations to be taken into account in considering an application were the following:

e the potential hazards to persons or property in the context of -


i the structural soundness of the particular tree; and/or

ii the characteristics and history of the particular species; and/or

iii siting issues such as ground conditions, building proximity, etc. which may give rise to a hazardous situation; and/or

iv ill health, such as allergies, where specific evidence is provided by an expert in the relevant medical field and a link between the ailment and the species is reasonably established; and/or

v existing (or potential for) traffic hazard in proximity to a roadway, intersection or driveway, where pruning would be an insufficient remedy.

Proceedings at first instance

24 The primary judge noted the appellant’s particulars of negligence against the Council as being that it failed:

a. "To conduct a sufficient inspection of the tree in circumstances where if the inspection was insufficient and the opinion wrong the plaintiff was at risk of suffering a significant injury.

b. Make a reasonably informed diagnosis that the tree was dangerous.

c. Fail to adequately inspect the subject tree.

d. Failed to satisfactorily assess the subject tree for the broader social implications of its influence on the people in its shared growing environment, being the occupants of 12 Merriwa Street, and the plaintiff and her family, residing at 10 Merriwa Street.

e. To properly assess the subject tree, noting the history of complaints regarding the subject tree, in circumstances where the first defendant was aware of the continuing problem of dead wood and/or any wood falling from the tree.

f. To appreciate the location of the subject tree and remove the subject tree, or provide permission for the removal of the subject tree, in circumstances where the tree was located in a position where it was likely that falling deadwood branches or debris would strike persons and cause them serious bodily injury."

25 The primary judge noted the appellant’s particulars of negligence against the Housing Corporation as follows:

(a) it failed to take reasonable steps to protect the plaintiff who he knew was in danger of receiving injury as a result of being struck from falling branches from the tree situated on the property owned by it at 12 Merriwa St, Booragul, in the state of NSW;

(b) failed to remove the tree on 12 Merriwa St, Booragul, in the state of NSW;

(c) failed to take any or any adequate steps to protect the [plaintiff] by constructing a covered walkway to provide safe access to her front door form [sic] her front gate which would protect her from falling branches;

(d) failed to properly lop the branches of the said tree hanging over the Plaintiff's tenancy;

(e) failed to properly inform the first Defendant of the nature of the complaint made by the Plaintiff and/or that the Plaintiff's daughter had been struck in the head and knocked down in 1999 and that large branches with diameters in excess of 12 centimetres were falling from the tree and causing injury to people and property;

(f) failed to take any or adequate steps to inform the first Defendant that the perceived reason for the removal of the tree was the shredding of large branches which constituted a danger;

(g) failed to retain an appropriately qualified arborist. To report on and identify the said tree is one which was of its nature not compatible with a heavily populated urban residential environment irrespective of its health.

26 At the hearing, the appellant relied on an expert report of an arborist Mr Draper, who inspected the tree on 10 August 2006. Relevant parts of his report are as follows:

Tree Assessment Report by Lake Macquarie City Council

2.8 The assessment of the tree by the Council generally in tabular form appears to be technically satisfactory and covered the crucial points of dimensions, distance from dwellings, condition/ health (vigour) stability, structural integrity such as included bark in the fork of major branch unions which is often a point of major weakness, cracks in the trunk, deadwood, borers, epicormic shoots, examination of the root plate and root crown by inspection of the surrounding soil for movement evident as gaps and movement. From my assessment of these criteria alone and the conclusion that the tree was stable and must be retained cannot be disputed and the Councils Tree Assessment Report is generally consistent with my Urban Tree Management Tree Assessment undertaken on 10/8/2006. However it does not consider the intrinsic nature of Eucalypts to unpredictably shed dead branches or live branches that have been damaged and does not recognise potential targets if the tree was to fail in full or part and subsequently collapse or shed branches.

Was the tree dangerous?

…..

2.12 Technically the tree is not dangerous but when considered in a greater context to include its surrounds and the people that share its growing environment, hazards it has already posed to the people residing at Nos 10 and 12 Merriwa Street, the risk of damage to dwellings one less than 6m away and the intrinsic nature of an exposed Eucalypt to shed more branches, the hazard potential posed by this tree cannot be dismissed. While it is in itself not structurally dangerous it will provide an ongoing source of potential hazard in its location proximate to the cars and dwellings as targets and this should have been recognised by the Council.

2.13 The needs and concerns of people cannot be dismissed out of hand for the sake of one tree that can be readily replaced by planting with more appropriate tree/s in a suitable location that can reduce the ongoing risk of hazard and distress to the tenants. While the tree is structurally not dangerous the narrow field of consideration should have been expanded to consider the tree in totality to include its social context cognizant of the concerns of those sharing its growing environment since 1998. Therefore the fact that the Council recognised the length of time that the tree had been a concern to the tenants of Nos 10 and 12 Merriwa Street indicates that they should have included those concerns beyond those of just the technical aspects of the tree as their duty of care in fully undertaking such assessments as the consent authority responsible and the assessment was not appropriate in the circumstances.

Should the tree be removed?

2.14 As the tree has demonstrated it is expected to continue to shed material close to and onto the dwellings, especially material driven at speed in storm events in its expose position, and will continue to drop dead or damaged branches onto the cars parked in the driveway at No. 10. Therefore this tree should be removed as despite any further remedial pruning it will continue to pose an unacceptable and ongoing risk of hazard to the safety of people and damage to property.

3.0 CONCLUSION

3.1 The tree was satisfactorily assessed for structural weaknesses, condition and vigour but unsatisfactorily for the broader social implications of its influence on the people in its shared growing environment being the occupants at No. 12 Merriwa Street where the tree is located and with Kerry Rhodes and her family residing at No.10.

3.2 It is my view that the Council was lacking in its assessment as it was mindful of the history of complaints at the two properties regarding the tree and demonstrated such in its notes on the Tree Assessment Report and was aware of the continual problem with deadwood by advising the applicant in its correspondence for notice of determination that the tree could be pruned to remove deadwood and crown thinning by 15%, save for height reduction.

27 Mr Draper was not cross-examined.

28 In oral evidence Mr Khemananta said that, when he inspected the tree in April 2005, Mrs Mason mentioned to him that she had contacted the Department of Housing since 1998 about this messy tree, which dropped leaves and twigs and she did not like to clean it up anymore; she also mentioned that the tree moved in the wind and it could have been unstable. However, Mr Khemananta did not recall any evidence of the tree having dropped limbs or significant branches (meaning branches above about 35mm in diameter) prior to the event that injured the appellant.

29 Mr Khemananta said that he had regard to DCP 43 in considering the application to remove the tree; and that he took into account the health of the tree, the climatic conditions, the soil type, location of the tree, the proximity to buildings and structures, and whether it was a hazard to persons or property. He said there was no sign that the tree had been dropping significant limbs, as there would be damage to other portions of the tree below and there was no such damage.

30 Mr Khemananta said that anything above 15mm in diameter could be considered dangerous, depending from where it fell: if such a limb fell from 15 metres, it may cause some damage but that from ground level it was difficult to detect deadwood that was 15 metres above with normal eyesight. He said that the particular species of tree produced deadwood, and sooner or later deadwood falls to the ground.

31 The Housing Corporation led evidence from Mr Miller, but not from any of its own officers or employees.

Decision of primary judge

32 The primary judge found that the appellant had been struck on the head by a branch or piece of bark from the tree; but was unable to find whether the branch was live timber or deadwood.

33 As regards the claim against the Council, the primary judge accepted the evidence of Mr Khemananta that through him the Council considered the application made to it by the Housing Corporation in accordance with Council policy and in particular DCP 43; held that Mr Khemananta’s decision involved policy considerations and discretionary judgment; and was not satisfied that any alleged failure by Mr Khemananta to consider broader social implications was unreasonable.

34 As regards the claim against the Housing Corporation, the primary judge was not satisfied that the tree was not properly pruned in June 2005. As regards particulars of negligence (e), (f), (g) and (c) the primary judge said this:

70. Particulars (e) and (f) on the particulars of negligence as against the second Defendant relate to a failure to inform the Council of the nature of complaints made by the Plaintiff and/or the Plaintiff's daughter had been struck by a branch in 1999 and the failure to inform the Council that the reason for the removal of the tree was the falling of branches from the tree and complaints by tenants of damage to property as a result of such falling branches.

71. There is no evidence that had Mr Khemananta been informed of complaints as to damage to property and of persons being struck by falling branches he would have come to a different determination as to removal of the tree. No questions were put to Mr Khemananta that he would have come to a different conclusion had he been so informed. The submission by the Plaintiff that Mr Khemananta did not assess whether the tree was dangerous is contrary to the evidence Mr Khemananta stated that he assessed whether or not the tree was to be removed in accordance with Council policy and exhibit 3 as previously been stated such policy required him to take into account the potential hazard to person or property. The evidence does not show that he did not take that matter into account.

72. It was submitted that the absence in the application form of any provision as to prior damage or injury to persons would make it incumbent on the second Defendant to inform the Council of prior complaints of tenants in relation to the tree. The second Defendant did advise the first Defendant that the tree was unstable. An experienced arborist who had delegated authority to determine whether or not the tree be removed was aware that trees of the type in question did drop deadwood and limbs and branches and that this could occur particularly in windy conditions. With such knowledge I do not consider that the second Defendant acted unreasonably in not informing the first Defendant of the specific complaints of the tenants at number 10 and 12 Merriwa St.

73. Particular (g) of the negligence alleged against the second Defendant is that it failed to retain an appropriate qualified arborist to report on and identify the tree as one which was of its nature not compatible with a heavily populated urban residential environment irrespective of its health. The second Defendant was aware that the Council had an appropriately qualified arborist to inspect the tree. I do not consider that it was unreasonable on the part of the second Defendant to search for and retain another qualified arborist who was or might be of the opinion that trees of the nature in question are not compatible with a heavily populated urban residential environment. It was for the Council to determine the policy in relation to trees within its boundaries.

74. Particular (c) referred to the failure of the second Defendant to construct a covered walkway to provide safe access for her. No evidence is before me as to the type of covered walkway which could reasonably be erected and no evidence is before me as to the cost of such walkway. There is therefore no evidence as to a reasonable practical alternative (once the determination was made by the Council that the tree not be removed) to prevent injury to persons lawfully on the property at 10 Merriwa St. There is also no evidence before me that had any walkway been installed it would have prevented injury to the Plaintiff.

75. The Plaintiff has not shown that the second Defendant in not erecting a covered walkway failed to act reasonably to protect the Plaintiff of unnecessary risk of injury.

Issues on appeal

35 In her amended notice of appeal, the appellant relies on the following grounds:

1 The learned trial judge erred in failing to apply the statutory criteria contained in Section 5B of the Civil Liability Act 2002.

2 The learned trial judge should have found that there was a foreseeable and not insignificant risk of injury to the plaintiff and that a lessor exercising reasonable care for its tenants should have informed the Council of the probability that injury from falling limbs would occur if the tree were not removed, that such injury could be serious and that the only precaution to avoid the risk of that harm was the removal of the tree.

3 The learned trial judge erred in failing to find that it was negligent for the second respondent to apply for the removal of the tree on a ground which had no validity.

4 The learned trial judge erred in concluding that the Court was unable to find whether what fell from the tree and struck the plaintiff was deadwood or a branch or a limb of the tree.

5 The learned trial judge should have found that the appellant was struck by a dead branch of the tree which was a metre in length and three to four centimetres in diameter which had fallen a distance of between 10 and 18 metres prior to striking the appellant on the head in her driveway.

6 The learned trial judge erred in finding that it was not unreasonable following the Council's rejection of the application to remove the tree on a ground that did not exist for the second respondent not to have sought a review or appeal against that decision in all the circumstances.

7 The learned trial judge should have found that following the rejection of the application on the ground that the tree was unstable when it was not unstable, the second respondent should have sought a review or appealed against the decision not to permit removal of the tree on the ground that the tree presented a known and present and continuing danger to its tenants and their property.

8 The learned trial judge erred in finding that it was not unreasonable for the first respondent to refuse the application to remove the tree given its dimensions, locations and potential to cause injury to residents at Nos. 10 and 12 Merriwa Street, Booragul.

9 The learned trial judge should have found that the protection of residents from injury from the known hazard of falling branches from a tree which was 18 metres high, 14 metres wide and located above a driveway was unreasonable and constituted a breach of the duty of care owed by the Council to the plaintiff.

10 The learned trial judge erred in finding that if the Council's agent, Mr Khemananta, had been provided with an accurate history in relation to the hazard created by the tree he would have come to the same decision not to permit its removal.

11 The learned trial judge erred in finding that the Council did not act unreasonably in the circumstances in refusing the application for removal of the tree on the information available to it.

12 The learned trial judge erred in his understanding of the expert report of Mr Draper.

13 The learned trial judge erred in failing to find that given the size, nature, propensity and location of the tree that no reasonable Council would have exercised its power to refuse removal of the tree.

14 The learned trial judge failed to exercise his judicial power to determine the reasonableness of the conduct of the Council in that he fettered the exercise of that judgment by treating the decision of Mr Khemananta as a policy decision when in fact it was a decision made within the exercise of policy criteria but made negligently.

15 The learned trial judge erred in failing to give any or any adequate reasons for preferring the evidence of Mr Miller to the evidence of Mrs Mason in relation to the events that occurred when the tree was pruned.

16 The learned trial judge should have accepted the unchallenged evidence of Mrs Mason as to the events that occurred when the tree was pruned.

17 The learned trial judge erred in finding that the tree was properly pruned by Mr Miller and his fellow worker.

18 The learned trial judge should have found that the wood that struck the plaintiff on the head six months later was deadwood that had not been and should have been removed from the tree by Mr Miller.

19 The learned trial judge erred in failing to find that the second respondent was in breach of its duty of care owed to the plaintiff in not providing overhead protection given its knowledge of the propensity of the tree to cause injury by limbs and branches falling from it.

36 I will consider in turn the following issues:

(1) Alleged errors of fact finding (grounds 4, 5, 15, 16, 17, 18).

(2) Negligence of the Council (grounds 8, 9, 11, 12, 13, 14).

(3) Negligence of the Housing Corporation (grounds 2, 3, 6, 7, 19).

(4) Causation (ground 10).

Fact finding

37 I accept the submission of Mr Barry SC for the appellant that the reference by the primary judge to a possibility the appellant was struck by a piece of bark has no support in the evidence; and that, having regard to the nature of the appellant’s injury, the evidence did justify a conclusion that the appellant was struck by a substantial branch from the tree.

38 The appellant described this branch as three to four centimetres in diameter, and she saw no leaves around it. The piece removed from her head was described as dark, with no bark and breaking up when the nurse removed it. However, according to the appellant, her son picked up the branch and placed it on the front patio; and her son was not called to give any evidence. Having regard to the failure to call the son, who could have given the most reliable description of the branch that struck the appellant, I am unable to conclude that the primary judge erred in not being satisfied that the branch was deadwood.

39 As regards the pruning of the tree by Mr Miller in 2005, in my opinion there is no basis for questioning the primary judge’s finding that he was not satisfied that it had not been properly pruned. The evidence of Mrs Mason about pruning ceasing because of biting insects did not identify the occasion as being the pruning in 2005; but it rather suggested that it referred to an earlier pruning in about 2001.

Negligence of the Council

40 Mr Barry pointed particularly to the report of Mr Draper; and also to Mr Khemananta’s admission that a branch of 15mm diameter falling from about 15 metres would be dangerous, and that grey gums produce deadwood which sooner or later would fall to the ground. Accordingly, he submitted, there was a clear risk of injuries to persons; and Mr Khemananta acted unreasonably in not acceding to the application to remove the tree.

41 In my opinion, the terms of DCP 43 make it clear that the policy adopted by the Council favours retention of native trees, including trees such as grey gums which produce deadwood and drop branches; and that substantial justification is required for consent to be given for removal of such trees. Mr Draper’s report confirms that no error was made by Mr Khemananta in assessing the tree as healthy and stable, with no major deadwood. His comments on broader social implications were outside his area of expertise.

42 I accept, in terms of s 5B of the Civil Liability Act, that the tree posed a risk of damage to property or injury to persons from twigs and branches dropping from it, which can be considered a not insignificant risk. However, in relation to a healthy tree of this kind, in my opinion the risk was not shown to be such a risk that a reasonable person would have authorised removal of the tree. The risk of substantial damage to property or significant injury to a person was not shown to have more than a relatively small probability, or to be any different from the risk posed by other trees of a similar type in positions in the vicinity of property and/or frequented by persons. In circumstances where the maintenance of such trees is considered to have social utility, in my opinion it was not shown to be unreasonable for the Council to have adopted DCP 43; and it was not shown that the decision by Mr Khemananta in application of DCP 43 not to authorise removal of the tree was unreasonable.

, in my opinion, the Council was not shown to have done anything that no Council could consider to be a reasonable exercise of its functions or powers, within the meaning of ss 43 and 43A of the Civil Liability Act.

Negligence of the Housing Corporation

44 Although the primary judge did not explicitly find that the Housing Corporation was informed of the incidents when the appellant’s daughter was injured, when windows were broken in both the adjoining houses, and when tiles were broken on the roof of the Mason house, in my opinion that finding is implicit. In any event, it is a finding which in my opinion should plainly have been made, in circumstances where the Housing Corporation did not call evidence from its own officers or employees.

45 The Housing Corporation owed to the appellant (and also to the Masons) a duty of care as explained by the High Court in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166. The Housing Corporation had notice that the tree on its land posed some risk to its lessees; and so far as the evidence goes, it did not itself have expertise to assess the degree of that risk. It may be inferred that the Housing Corporation had engaged Mr Miller, or some other arborist, on some occasions between 2000 and 2005 to prune the tree; but there was no evidence that it sought and obtained advice from Mr Miller or any other qualified arborist as to the degree of risk posed by the tree. In my opinion, this would not in itself amount to negligence; but it does mean that, so far as the evidence goes, when the Housing Corporation applied to the Council for consent to remove the tree, it was relying on the Council to make an appropriate determination as to whether the tree should be removed.

46 In all those circumstances, in my opinion a reasonable lessor in the position of the Housing Corporation would have used reasonable care to ensure that the Council had all the information it had that was relevant to the Council’s assessment of whether consent should be given. There was no evidence from any officer or employee of the Housing Corporation that the Housing Corporation had reasonable grounds to believe that information concerning damage caused by the tree to nearby houses and the injury caused to the appellant’s daughter would not be relevant to the Council’s decision; and in my opinion, the Court should take it that the Housing Corporation did not have such reasonable grounds. In my opinion, in the particular circumstances of this case, including the absence of evidence from the Housing Corporation, the Court should conclude that a reasonable lessor would have provided that information to the Council.

47 Mr Barry went further, and submitted that a reasonable person in the position of the Housing Corporation would have written a strong letter to the Council with the application, giving extensive detail of the history, and pointing out that, if the Council refused consent and the tree did cause damage or injury in the future, the Council would be sued for damages. I do not think the lessor’s obligation to exercise reasonable care went that far; but in my opinion, for the reasons I have given, the Housing Corporation did breach its duty of care in not conveying to the Council the substance of the history provided to it by the appellant and by Mrs Mason.

48 Mr Barry also submitted that there was a breach of duty of care in giving a false reason for the application for removal, namely instability. However, the primary judge generally accepted the evidence of Mr Khemananta, and that evidence referred to a statement by Mrs Mason that the tree moved in the wind and could have been unstable; and I would not infer that no such allegation had previously been conveyed to the Housing Corporation.

49 Mr Barry submitted that the Housing Corporation was also negligent in not having sought a review of or appealed from the Council decision. Except to the extent that this ground of negligence overlaps the ground referable to failure to give the Council the history of the tree, I see no reason to overturn the primary judge’s decision that this was not a breach of the lessor’s duty. Aside from the question of whether the Council was given all relevant information, there was in my opinion no reasonable prospect of obtaining a different ruling, such that there was a breach of a duty of care in not challenging the Council’s decision.

50 The final allegation of negligence concerned failure to erect a protective walkway. I see no basis for overturning the primary judge’s decision on that question. It is true that the judge could possibly have drawn inferences concerning matters as to which he said there was no evidence; but in the absence of evidence directed to these matters, it is not shown that the judge was in error in not finding negligence in this respect.

51 However, for the reasons I have given, I would find breach of the Housing Corporation’s duty of care in not providing the Council with the information it had concerning damage and injury previously caused by the tree.

Causation

52 Mr Barry submitted that had Mr Khemananta been given the history of damage and injury caused by the tree, and had his attention appropriately drawn to safety issues, he would have given consent. Mr Barry submitted that in those circumstances, he would have recognised that issues of safety were more important than the retention of this tree. He submitted that the primary judge erred in not making this finding.

53 In my opinion, that submission should not be accepted.

54 The evidence showed that the tree was, of its type, a sound and healthy tree. Any risk that it posed was no different from that posed by any tree of a similar nature placed in situations in the vicinity of property and frequented by persons. In my opinion, on the evidence before the primary judge as to the proclivities of trees of this kind and as to the condition of this tree, the history of two broken windows, some broken tiles, and one very minor injury to a person, over a period of about six years, was not such as to suggest that this tree was any more dangerous than the general run of such trees. Consistently with the objectives appearing from DCP 43, that history would not be likely to have brought about a different decision.

55 Furthermore, it was never put to Mr Khemananta that, had he known of the history of the tree, his decision would have been different; and the general tenor of his evidence strongly indicates that it would not have been. Of course, there are difficulties with putting hypothetical questions of that kind; but Mr Khemananta could certainly have been asked what decision he would now make, on the basis of the history of the tree before the appellant’s accident (or indeed, on the basis of the history of the tree including the appellant’s accident); and again the tenor of his evidence was such that it is likely that he would have said that his decision would have been no different.

56 Mr Khemananta noted in his Tree Assessment Report that he recommended pruning of the tree. This view was reflected in the terms of his letter to the Housing Corporation (see [16] above) which also referred to crown-thinning of the tree by 15 per cent. Following this, a qualified arborist, Mr Miller pruned and crown-thinned the tree on 22 June 2005 (see [17] above). In the absence of evidence from Mr Khemananta indicating that the position would have been otherwise, the inference is readily available that he would have regarded these steps as sufficient to deal with the problems indicated by the history of the tree, if the Housing Corporation had informed him of that history.

57 Accordingly, although I find that the Housing Corporation was negligent in the respect I have identified, I do not find that this was causative of the injury to the appellant. It was not shown that the Council would have come to any different decision; and without Council consent, the tree could not lawfully be removed.

Conclusion

58 The appellant suffered a most unfortunate accident; but in my opinion grounds have not been established for overturning the primary judge’s decision that the appellant did not establish that the accident was caused by negligence of either of the respondents.

59 In my opinion, the appeal should be dismissed with costs.

60 MACFARLAN JA: I agree with Hodgson JA.

I agree with Hodgson JA.

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