Waldrip v CIACCIA & Ors (Civil Dispute)
[2015] ACAT 9
•3 February 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WALDRIP v CIACCIA & ORS (Civil Dispute) [2015] ACAT 9
XD 14/729
Catchwords: CIVIL DISPUTE – negligence - nuisance - damage to neighbour’s motor car from fallen overhanging tree branch - compensation for damage to motor car and ancillary and anticipated expenses- car repairs not carried out - mitigation – value of the car - applicant’s landlord moved applicant’s motor car from carport to being adjacent to overhanging tree branch - duty of care of applicant’s landlord - maintenance of tree - duty of care of owners and managing agent of neighbouring property - whether apportionable claim
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss. 20
Civil Law (Wrongs) Act 2002 ss.40, 41, 42, 43, 44, 45, 46, 107D and 107F
Cases cited:Donoghue v Stevenson (1931) AC 562
Levet and Levet & Dalla (Appeal) [2013] ACAT 52
Robson v Leischke [2008] NSWLEC 152
Smibert Group Transport Pty Ltd v Clifford [2005] SADC
Tobin v Commonwealth of Australia [2013] ACTSC 240
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 3 February 2015
Date of Reasons for Decision: 3 February 2015
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 14/729
BETWEEN: STEVEN WALDRIP
Applicant
AND: GIANNI CIACCIA
First Respondent
AND: DONNA CIACCIA
Second Respondent
AND: PHILIP KOUVELIS REAL ESTATE
Third RespondentAND: HUNG NGUYEN Fourth Respondent
TRIBUNAL: Ms. E Symons – Presidential Member
DATE:3 February 2015
ORDER
1.The Fourth Respondent’s name is amended to Hung Nguyen.
2.Judgment for the Applicant against the Fourth Respondent in the sum of $3,600.00 and costs of $130.00 for filing fee and $25.00 for title search fee, totalling $3,755.00.
3.The Fourth Respondent is to pay the judgment monies of $3,755.00 to the applicant on or before 3 March 2015.
4.The application against the First, Second and Third Respondents is dismissed.
………………………………..
Ms E. Symons
Presidential MemberREASONS FOR DECISION
On 20 May 2014 the applicant filed a Civil Dispute Application (application) with the Tribunal. The application sought monetary damages on the grounds of negligence, nuisance and trespass for the damage suffered when a branch from a tree (the tree) growing on the applicant’s neighbouring property at 6 Banner Street, O’Connor fell onto the applicant’s motor vehicle (the car) which was parked on 8 Banner Street, O’Connor on or about 23 September 2012. The applicant’s car was a 1991 BMW 318i E36 which he had purchased in 2006 for $7,500.
The applicant was then a tenant of the property at 8 Banner Street O’Connor. The landlord of this property was the fourth respondent, Hung Nguyen. On or about 23 September 2012 the fourth respondent had moved the applicant’s car from the carport in which it had been parked at 8 Banner Street, O’Connor to a position adjacent to or under the overhanging branches of the tree growing on 6 Banner Street, O’Connor. At this time the applicant was overseas.
The first and second respondents, Gianni and Donna Ciaccia, were the owners and landlords of the neighbouring property, 6 Banner Street, O’Connor. The third respondent, Philip Kouvelis Real Estate, managed the tenancy of the property at 6 Banner Street, O’Connor at all relevant times.
The application was opposed by each of the respondents.
The first and second respondents’ lawyers, Hicksons Lawyers, filed a Response on 25 June 2014 disputing the applicant’s claim, denying the condition of the tree committed a nuisance, denying that they were negligent and, if found to be liable, claiming contribution from each of the third respondent and the applicant’s landlord, who at that time was not a party to the proceedings. The first and second respondents also claimed in their Response that the applicant’s claim was excessive and that he should have mitigated his loss.
The third respondent’s lawyers, Minter Ellison Lawyers, filed a Response on 25 June 2014 disputing the applicant’s claim, denying it had a duty to maintain the property and denying each and every allegation of nuisance and negligence set out in the Application.
After a conference the applicant lodged an amended application on 25 July 2014 in which he added his landlord, Mr Nguyen, as the fourth respondent. The applicant claimed that the fourth respondent had been negligent, owed him a duty of care to take proper and reasonable care of the car whilst in his control and that he had breached this duty of care by parking the car under the overhanging branches of a tree he knew had dropped a branch previously.
The fourth respondent filed a Response on 18 August 2014 disputing the applicant’s claim. In the Response he stated:
1. The fourth respondent is not liable for damage to the applicant’s car which was caused by the neighbour’s tree.
2. The quantum claim is excessive and includes items which are double counted or not payable under the ACAT Act. The correct value of the claim is the write off value of the car and this amount should be paid by the first and second respondents.
The Hearing
The application was heard on 12 January 2015. The applicant represented himself. Mr William Pardy, solicitor from Hicksons Lawyers represented the first and second respondents. Mr Mark Treffers, solicitor from Minter Ellison Lawyers represented the third respondent. Mr Hung Nguyen represented himself. The applicant, the third respondent’s managing agent, Ms Suzanne Luchetti, and the fourth respondent gave evidence and were cross examined.
The Tribunal received the following documents into evidence:
From the applicant:
(a)Exhibit A1 - four photographs annexed to the Original Application,
(b)Exhibit A2 - four pages of photographs tendered at the hearing,
(c)Exhibit A3 - Repair Quotations from David Hand Smash Repairs dated 5 February 2013, from Autodentist Smash Repairs dated 26 February 2013 and Gilmore Smash Repairs dated 7 January 2013,
(d)Exhibit A4 - Tree Assessment Report ACT Government 4 December 2012, Application to undertake a tree damaging activity lodged by Dowling Tree Services and Conservator’s Decision dated 12 December 2012 - all of which were annexed to the Amended Application,
(e)Exhibit A5 - Bundle of documents lodged on 29 August 2014 and including Submissions on Tort, Quotation Waves Carwash 24 July 2014, travel confirmation receipts V Line and Tiger Airways, receipt for purchase of 1999 Honda for $714.00, various receipts for expenses and parts in relation to the Honda and motor bike clothing, ACT Road Transport Authority registration fees and information management, webpage printout for APlus Towing fees, online Lube Mobile yearly service quotation dated 21 August 2014, registration certificates, unregistered vehicle permit and registration renewal reminder for Honda motorbike, two tax invoices from Bruce’s Motorcycle Repairs dated 8 and 19 August 2014, online car valuation details 1991 BMW 318i - 29 June 2014 - Glass’s Information Services, and private seller advertisement for 1992 BMW 318i E36, and
(f)Exhibit A6 - Glass’s Valuation results 1991 BMW 318i - 29 June 2014
From the third respondent:
(a)Exhibit R1 - ACT Tree Felling Tax Invoice 21 March 2011 to Philip Kouvelis Real Estate,
(b)Exhibit R2 private price guide 1991 BMW 318i E36 22 July 2014; private sales 1993 BMW 318i E36 and 1991 BMW 318i E36 dated 22 July 2014.
At the conclusion of the parties’ submissions the Tribunal reserved the decision.
Relevant Law
The applicant’s claim at the hearing was three pronged - relying on nuisance against the first, second and third respondents, negligence against each of the four respondents and Chapter 4 of the the Civil Law (Wrongs) Act 2002 (CLW Act).
Section 41 of the CLW Act states that Chapter 4 applies to all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise.
Harm is defined in section 40 of the CLW Act as “harm of any kind” and includes “damage to property and economic loss”. “Negligence” is defined as “failure to exercise reasonable care and skill.”
The standard of care is defined in section 42 of the CLW Act as follows:
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
The general principles and other principles in relation to precautions against risk are set out in sections 43 and 44 of the CLW Act:
43Precautions against risk—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 deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions 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 creating the risk of harm.
Section 44 states:
44Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
Section 45 sets out the general principles and elements for a decision that negligence caused particular harm. It states:
45General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to any 1 or more of them—
(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
Pursuant to section 46 of the CLW Act, the plaintiff (applicant) always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The law relating to proportionate liability is found in Chapter 7A of the CLW Act. Subsections (1) and (2) of section 107B state:
Application of ch 7A—apportionable claims
(1) This chapter applies to apportionable claims.
(2) An "apportionable claim" is—
(a) a claim for economic loss or damage to property in an action for damages (whether in tort, under contract or otherwise) arising from a failure to take reasonable care; ….
Concurrent wrongdoers are defined in section 107D of the CLW Act as:
(1) For this chapter, a "concurrent wrongdoer", for a claim, is 1 of 2 or more people whose acts or omissions (or act or omission) caused, independently of each other or jointly, the loss or damage the subject of the claim. …
Proportionate liability for apportionable claims is set out in section 107F of the CLW Act:
(1) In a proceeding involving an apportionable claim—
(a) the liability of a defendant who is a concurrent wrongdoer for the claim is limited to an amount reflecting the proportion of the loss or damage claimed that the court considers just, having regard to the extent of the defendant's responsibility for the loss or damage; and
(b) the court must not give judgment against the defendant for more than that amount.
(2) In apportioning responsibility between defendants in the proceeding—
(a) the court must exclude the proportion of the loss or damage in relation to which the claimant is contributorily negligent under any relevant law; and
(b) the court may consider the comparative responsibility of any concurrent wrongdoer who is not a party to the proceeding.
(3) If the proceeding involves an apportionable claim and a claim that is not an apportionable claim—
(a) liability for the apportionable claim must be decided in accordance with this chapter; and
(b) liability for the other claim must be decided in accordance with the legal rules (if any) that, apart from this chapter, are relevant.
(4) This chapter applies in a proceeding involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceeding.
Issues
In relation to liability the issues for the Tribunal to determine are:
(a)Was the risk of harm to the applicant’s property reasonably foreseeable?
(b)Was the risk not insignificant?
(c)Would a reasonable person in the position of the first, second, third and/or fourth respondent have taken reasonable precautions against the risk of harm?
(d)Did any of the first, second, third or fourth respondents fail to take those precautions?
(e)Whether one or more of the respondents’ acts or omissions (or act or omission) caused, independently of each other or jointly, the loss or damage the subject of the claim, and if so the extent of each respondent’s responsibility for the loss or damage?
In relation to the damages claimed by the applicant:
(a)Whether it would be reasonable to incur the expenditure in repairing the car or whether the reasonable option is to determine the value of the car?
(b)In relation to the other damages claimed by the applicant whether the monies expended or claimed were a direct consequence of the tortuous conduct and that it was reasonable to expend such monies.
THE EVIDENCE
The Applicant
The applicant informed the Tribunal that he was no longer proceeding with his claim of trespass and that he was pursuing his claims of nuisance and negligence against the first, second and third respondents and his claim of negligence against the fourth respondent.
The applicant said that he was overseas in New Zealand when the tree’s branch fell onto the roof of his car. He said that since he had lived at 8 Banner Street, O’Connor he had had an implied arrangement with the fourth respondent that if he needed to do maintenance at 8 Banner Street, O’Connor which required the car to be moved the fourth respondent knew where the car key was and he moved the car.
However, he also told the Tribunal that he was not aware that the fourth respondent was going to pave the carport or move the car for this purpose while he was overseas in September 2012. The applicant had been overseas for three months around this time. After the tree branch fell onto his car he received a message from the fourth respondent. At this time, the applicant said, he was in an area in New Zealand which had poor mobile phone reception and he did not get any real details until he returned to Australia.
On his return to Australia he talked to the fourth respondent about the incident, was aware that the fourth respondent was talking to the third respondent about the tree, its removal and the damage to the car and left the matters in the fourth respondent’s hands.
In December 2012 the applicant started getting quotes to repair the damage to the car. He said he only had Third Party Property Insurance for the car and he wanted to repair the car and to have the money for the repairs in his hands before he had the repairs done.
He had claimed for the following items in his application because he had already incurred some of the expenses and said he would incur the other expenses:
(a)motor vehicle repair damages - $4,906.94 to $7,312.70 (David Hand Smash Repairs and AutoDentist Smash Repairs quotes respectively);
(b)cleaning cost for removing sap and glass from car - $325.00;
(c)ancillary damages associated with motor vehicle repairs consisting of:
(i) towing fees - $100.00;
(ii) unregistered vehicle permit Registration fees - $144.30;
(iii) roadworthy Certificate fees - $142.90 ($61.30 roadworthy certificate and $81.60 reestablishment fees);
(d)other costs related to not using the car for a long period:
(i) replacement battery - $200.00 (which he did not pursue at the hearing);
(ii) vehicle servicing- $210.00.
(e)damages for alternative transportation costs and loss of use and enjoyment of motor vehicle - $3,970.86
(i) purchase of motorcycle as temporary transport - $714.00;
(ii) rectification of issues and motorcycle clothing - $779.59;
(iii) christmas travel - $339.90;
(iv) temporary motorcycle registration fees - $637.60;
(v) loss of use and enjoyment of motor vehicle - $1,499.77.
The applicant told the Tribunal that the $1,499.77 claimed in paragraph 31(e)(v) above for loss of use and enjoyment of the motor car was calculated as the amount remaining after deducting his other claims from the $10,000.00 jurisdictional limit of the Tribunal. He said that, as a result of the damage to his car, he now had to ride on his motorcycle in the rain; he was limited to what groceries he could fit into his backpack when shopping and he no longer had the ability to take friends out in his car.
In cross examination by Mr Pardy the applicant said that there had not been any discussion between himself and the fourth respondent in relation to the location of the car if the fourth respondent moved it.
In cross examination by Mr Treffers the applicant said that he had occupied the 8 Banner Street O’Connor property since around December 2010 and at that time he knew the tree was on his neighbour’s property and he saw the tree’s limbs overhanging their boundary. He described his tree knowledge at that time as “nil” and said that he did not concern himself very much with the tree. He had not spoken to the owners of the neighbouring property (the first and second respondents) or the third respondent about the tree’s overhanging limbs.
The applicant said that the fourth respondent had told him that while he, the applicant, was interstate in January 2012 a small branch from the tree had fallen onto the carport roof. The applicant had not seen this branch.
He also told the Tribunal that between January/February 2012 and September 2012, when the branch fell onto the car, he did nothing about the tree’s overhanging limbs.
In relation to the car the applicant said that he had bought the car in 2006 for $7,500.00. Its odometer reading at that time was approximately 170,000 km. He did not know what the odometer reading was in September 2012 or at present but said he expected he would have driven around 200,000 km since purchasing the car. It had not been driven since September 2012.
The car’s registration expired on 7 February 2013. The applicant said although he could have renewed the registration up to 12 months after it expired, he had not renewed the registration. To now obtain registration he needed to obtain a road worthy certificate and included this cost in his damages.
The applicant said the car’s battery did not operate in September 2012. He has jumper leads in the car and it starts using them. He did not drive the car to obtain the quotes for the repairs. Apart from the battery, he said the brakes need repairing as they have deteriorated due to moisture ingress during the last two years.
In relation to the other expenses claimed, he said that he had not incurred the towing fees or the costs for removing the sap and glass from the car. He agreed that the quote from David Hand Smash Repairs included “Glass Clean Up - $90.00” but probably did not include sap clean up.
In relation to the expenses claimed for Christmas travel of $339.90, the applicant said that he and his girlfriend, who usually travelled with him, travelled by train to Melbourne and then flew back to Sydney on Tiger Airways. They had then travelled onto Newcastle however he not included this portion of travel in his claim. Usually he would have driven to and from Melbourne, a total distance of approximately 1,400 km and used 120 litres of fuel. He had not allowed for the costs he would normally incur when driving to and from Melbourne when seeking $339.90 for these travel expenses.
When cross examined in relation to the valuation of the car the applicant said that none of the 22 July 2014 Red Book valuation of $1,600 - $3,600 for a manual 1991 BMW318i E36; the 22 July 2014 advertisements for a manual 1991 BMW318i E36 with 320,000 km and a cracked head gasket of $1,200.00; and the $3,800.00 for a 1993 Queensland automatic BMW 318i E36 with 176,000 km provided by the third respondent accurately set the value of his motor vehicle. He added that these were 2014 valuations, which was two years after the car was damaged. He relied on the private sale valuations in Glass’s Guide for a manual 1991 BMW 318i of $5,500 - $6,250, trade in of $4,100 - $5,000 and the dealer price of $6,480 - $7,700.
The applicant said, under cross examination by the fourth respondent, that he was seeking the repair costs in his application for the damage to the car, adding if he had replaced the car at the time it was damaged he would have struggled to get a car below the repair costs he had claimed. He also said that he would probably use the smash repairer who provided the cheapest repair quotation.
Suzanne Luchetti
Ms Luchetti said she is the third respondent’s property manager and has been a property manager for 9 years. She was not the property manager for the first and second respondent’s property at 6 Banner Street, O’Connor in September 2012. She said the third respondent has an action diary (log) in which everything to do with each particular property is recorded.
Ms Luchetti said she had looked at the third respondent’s records and ascertained that inspections of 6 Banner Street, O’Connor were carried out six monthly and reports of the inspections were prepared. As part of the inspection the property manager would look inside and outside the property, including the trees around the perimeters and the gutters of the house. If work was needed it would be noted; the owners’ approval to do the work would be sought and, on approval, the third respondent would send out a work order to the relevant business.
The third respondent had placed a work order with ACT Tree Felling on 21 March 2011 to “clear the power lines to ActewAGL standards & clear tree near kitchen window to 1 mt under gutter”[1] at 6 Banner Street, O’Connor. The invoice for this work was Exhibit R1.
[1] Exhibit R1
From her inspection of the records between 21 March 2011 and September 2012, no inspection or report had identified that any other trees at 6 Banner Street, O’Connor needed attention.
Under cross examination by Mr Pardy, Ms Luchetti said that, while she did not have the inspection reports at the hearing, the tree had potentially been inspected twice between March 2011 and September 2012 and that, to her knowledge, the first and second respondents had not refused to have any work carried out which the third respondent had requested.
Hung Nguyen
Mr Nguyen told the Tribunal that he had informed the applicant that he had to do some work to the carport and asked him to leave a car key so he could move the car. On or about 23 September 2012, he thought he would move the applicant’s car out of the carport for a few hours and put the car back after he finished the paving. He decided to move the car backwards as there was some obstacle, a pile of dirt, probably preventing him from moving it forward. He was working inside the house when the branch fell on the car.
He also told the Tribunal that a small branch from the tree had fallen on the carport roof earlier in 2012 and he told the occupant of 6 Banner Street, O’Connor of this. The tree had not caused him any problems before this.
In response to questions from the applicant, Mr Nguyen said he could not have moved the car to the centre of the back lawn where there were no trees because the battery was flat and he had to push the car two to three metres backwards. He said he could not turn the wheel. When the applicant said he could have turned the wheel as the key was in the ignition and pushed the car further back into the yard as the back yard is very flat, Mr Nguyen said there was a little bit of a slope backward and if he had done that it would have been much harder for him to put the car back in its previous position. This was why he minimized moving the car backwards. He did not ask any of the other tenants of his property to help him move the car.
Mr Nguyen conceded in cross examination that he would turn up at the property unscheduled when he had free time and that he did not let the applicant know before he did the paving work on this occasion.
In cross examination by Mr Pardy, Mr Nguyen said he did not have to do the paving maintenance that day; the reason he had done it that day was because he had free time.
He conceded that he was aware that a small branch from the tree had fallen on the carport roof before and that he had not seen any work performed on the tree since then. When asked if he had turned his mind to the safety of the car when moving the applicant’s car he said he had looked at the tree and the shade provided by the tree and that is the reason why he put the car there. He repeated he could not move the car further backwards. He said he could not put the car anywhere else.
In cross examination by Mr Treffers, Mr Nguyen said, as the owner of the property for about 8 years before the incident, he had attended the property very often as he did work there himself. He conceded that when he looked at the tree nothing about it concerned him when deciding to move the applicant’s car adjacent to it that day. He reiterated the day was perfect and apart from the one small branch that had previously fallen on to the roof of his carport, he did not see any problem parking the car there.
Consideration
Nuisance
For the applicant to succeed in nuisance in this case it is necessary for the applicant to show that the parties sued are the owners or occupiers of the neighbouring land. The Tribunal is satisfied and finds that the first and second respondents are the owners of 6 Banner Street, O’Connor. The third respondent is neither an owner nor occupier of 6 Banner Street, O’Connor so the claim against the third respondent must fail.
For the applicant to establish that the owners, the first and second respondents, were liable in nuisance he must establish both fault and foreseeability. That is, on the balance of probabilities that they knew or should have known that the tree or branch was a nuisance; that it was reasonably foreseeable it might fall and cause damage to the applicant’s property and that one or both of them failed to take reasonable and appropriate precautions to prevent the applicant’s damage.
The applicant contended that the first and second respondents knew or ought to have known of the possibility of the tree causing damage to property at, or on, 8 Banner Street O’Connor because of the height of the tree and its proximity to the boundary fence and the fact that overhanging limbs were in that condition for some time and were visible from the street view. He also contended that the tree was overgrown with ivy which had a detrimental effect on the tree.
In support of his contentions, the applicant tendered the Application to undertake a tree damaging activity, the Tree Assessment Report and the Conservator’s Decision (Exhibit A4) as evidence of the condition of the tree being “unsuitable or hazardous”[2] in December 2012.
[2] Conservator’s Decision 12 December 2012 Basis for Decision
However, the Tribunal noted in the Territory and Municipal Service’s Tree Assessment Report the tree was variously described as “stable”, “mature” with “good general health” having “minor foliage insects”, “minor deadwood”, “minor previous pruning” and stated “evidence of stress fractures - not evident.”
The Tribunal finds this evidence compelling. Three months after the incident in September 2012 the tree is described as in good health with minor deadwood and no evidence of stress fractures.
While the Report recommended the approval of the tree’s removal, this was in response to an application having been lodged to fell the tree. The Report also stated in the Recommendation “See comments.” The assessor listed three choices in the Comments - “Management - remove or poison ivy or do nothing and ivy will take over whole tree in a couple of years” or “remove tree.” The approval was subject to the condition that the lessee plant a replacement tree to achieve a similar canopy cover to that of the tree being removed. This report made no mention of the overhanging branches.
Ms Luchetti’s evidence was that the third respondent, as managing agent for the first and second respondents, conducted six monthly inspections of the property inside and out and that these inspections included the agent looking at the trees on the property. In March 2011, the third respondent had issued a work order to ACT Tree Felling to clear powerlines and clear the tree near the kitchen window to 1 metre under the gutter. Ms Luchetti said between March 2011 and September 2012 no inspection identified the tree the subject of this claim as needing attention. This evidence was not challenged.
The fourth respondent said that in January or February 2012 a small branch from the tree had fallen onto the roof of the carport and he had informed the female occupant, assumed to be a tenant, of 6 Banner Street, O’Connor of this. There was no evidence that the fourth respondent had passed this information onto the third respondent or the first and second respondents at that time. The fourth respondent said that “he thought this (incident) was nothing.”
Having considered all of the evidence and submissions, noting particularly the evidence in the Tree Assessment Report in paragraph 60 above and of Ms Luchetti, the Tribunal is not satisfied that the first and second respondents knew or could have known that the tree was a nuisance and likely to cause damage to the applicant in September 2012 or that the branch might fall and cause damage at that time.
The Tribunal is satisfied and finds that the first and second respondents had properly engaged the third respondent to manage their property at 6 Banner Street, O’Connor, that the third respondent had carried out six monthly inspections of that property, including the trees, and that these inspections constituted prudent and reasonable actions in the circumstances. In this regard the Tribunal noted that in March 2011 the third respondent initiated pruning of trees at the property and the first and second respondents paid for that expense.
The applicant and the fourth respondent gave evidence that they were each aware of the tree and the overhanging limbs. The applicant said he did not concern himself very much with them and the fourth respondent said while he let the neighbour know of the small branch that had fallen onto the carport roof in January or February 2012, he thought it was nothing.
Accordingly the applicant’s nuisance claim against the first and second respondents is not successful.
Negligence
Essentially, negligence is the failure to take reasonable care to avoid causing injury or loss to another person. For the applicant to succeed in this case he must prove, on the balance of probabilities, that one or more of the respondents had a duty of care to him and his property which required them to adhere to a certain standard of conduct; the behavior of one or more of the respondents did not meet the standard of care which a reasonable person would meet in such circumstances; that he suffered loss which a reasonable person, in these circumstances, would be expected to foresee and the loss or damage was caused by one or more of the respondents breaching their duty of care to him and his property.
Duty of Care
The law has established the requirement that people should conduct their affairs to the standard of the reasonable person. Lord Atkin stated this general principle in 1932 in the House of Lords case of Donoghue v Stevenson[3] when he said:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
[3] (1931) AC 562,
A duty of care arises between a respondent to an applicant when there is a sufficient relationship of proximity such that a reasonable man in the respondent’s position would foresee that carelessness or inaction on his part may cause damage to the applicant.
The Tribunal is satisfied and finds that each of the four respondents had a duty of care to the applicant to take reasonable care to avoid acts or omissions which could be reasonably foreseen to cause harm to the applicant.
Breach of Duty of Care
Mr Treffers referred the Tribunal the statement of principle by Mason J in Wyong Shire Council v Shirt[4]-
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
[4] (1980) 146 CLR 40 at [47] - [48]
The statutory provisions in relation to the standard of care and precautions against risk are set out in sections 42, 43 and 44 of the CLW Act, which sections are set out earlier in the decision.
In essence, the question for the Tribunal in this case is whether one or more of the respondents failed to do what a reasonable person would have done in the circumstances. In relation to the first, second and third respondents the question is did one or more of the first, second or third respondents fail to take reasonable care of the tree or fail to fix what an ordinary reasonable landowner would have recognized as a significant problem?
Mr Treffers referred the Tribunal to the helpful decision of the Land and Environment Court in Robson v Leischke[5] which concerned damage caused by a tree. Preston CJ differentiated between cases where (i) the tree was apparently in a state of decay and the risk of the tree causing damage by parts of it falling was obvious and the defendants had failed to take steps to mitigate the risk of damage and where negligence was found and (ii) at [100] stated -
“In contrast, no negligence was found where the tree was apparently sound and healthy and inspection would not have revealed it was dangerous: Noble v Harrison (at 336,339); Caminer v Northern & London Investment Trust Ltd (at 96,99,103,104) and Dungog Shire Councile v Babbage (2004) 134 LGERA 349 at 377.”
[5] [2008] NSWLEC 152
At [102] Preston CJ referred to the case of Bruce and Caulfield[6]and stated:
“….where a defendant has no knowledge that a tree that subsequently failed was decayed, and there was no evidence of any decay, the defendant was held not liable in negligence.”
[6] At (205)
The Tribunal has already found that the first, second and third respondents had taken prudent and reasonable steps to inspect the tree at six monthly intervals and were satisfied that it was reasonably healthy and sound. In this regard the Tribunal has also noted that the inspection conducted some three months after the incident by the Territory and Municipal Services stated that the tree was in good health.
While the tree has since been removed, pursuant to section 44 of the CLW Act, the Tribunal is not satisfied that that action gives rise to, or affects, liability in relation to the risk or that that action is an admission of liability in relation to the risk.
Having considered all of the information before it the Tribunal is satisfied and finds that the first, second and third respondents had no knowledge about the tree which would have called for them to take steps to mitigate potential damage to the applicant. The claim against these respondents fails.
The claim against the fourth respondent
It was not in dispute that the fourth respondent moved the applicant’s car from the carport to the position under the overhanging branch of the tree and, while the car was parked in that position, the branch from the tree fell on to the car. The fourth respondent’s evidence was that he pushed the car there because it would be in the shade provided by the tree and because there was nowhere else he could park it.
The fourth respondent contended that the applicant had agreed to him moving the car if he needed to do maintenance on the property. The applicant said that there was an implied agreement to this effect; however the fourth respondent had not notified him that he would be doing work in the carport and would be moving the car out of the carport while the applicant was overseas. The fourth respondent conceded in cross examination that he had not informed the applicant on this occasion that he would be working on the carport and moving the applicant’s car.
It is clear that the fourth respondent had a duty of care to the applicant when moving the car to do so safely.
The applicant said that there was plenty of room in the backyard away from the tree where the fourth respondent could have safely parked the car. The photographs tendered by the applicant corroborate this evidence.
The applicant also said that the fourth respondent could have asked the other tenants in the house to help him move the car and that the fourth respondent could have moved the steering wheel once he had placed the key in the car’s ignition and steered the car away from the tree. The fourth respondent’s evidence was that the car would be in the shade under the tree.
It was the fourth respondent’s decision not to ask the other tenants for assistance and to leave the car under the tree’s branches. The fourth respondent knew that a small branch had fallen from the tree some months earlier. A reasonable person in the fourth respondent’s position would have looked at the probability of the car sustaining damage where he had parked it and the likely seriousness of the harm.
Having considered all of the evidence, the Tribunal does not accept the fourth respondent’s evidence that he could not put the car anywhere else. He chose to park the car there. A reasonable person in his position would have foreseen that in parking the car where he did there was a risk of it being damaged. While the fourth respondent said when he looked at the tree nothing about it concerned him and he didn’t see any problem parking the car there, the Tribunal is not satisfied that a reasonable person would have parked the car there.
It would not have been difficult for the fourth respondent to take reasonable precautions against the risk of harm by parking the car away from the tree. He could have asked the other tenants to assist him to physically move the car; he could also have moved the steering wheel after he had placed the key in the ignition and steered the car to a safer parking place. The Tribunal is not satisfied that the limited evidence in relation to the slight rise in the backyard was a sufficient inconvenience to outweigh the responsibility the fourth respondent had to take care of the applicant’s property.
The Tribunal is satisfied and finds that the fourth respondent failed to exercise reasonable care and skill. He breached the standard of care defined in section 42 of the CLW Act and breached his duty of care to the applicant. The fourth respondent was negligent in breaching his duty of care and, as a result of that negligence, the car had been damaged by the falling branch.
Damages
The applicant contended that he was entitled to recover any cost incurred as a result of the damage caused by all or any of the respondents’ negligence. He referred the Tribunal to the decision of Refshauge J in Tobin v Commonwealth of Australia[7] who stated at [165] –
Damages payable for the loss occasioned by a tort are, as Taylor and Owen JJ said in Butler v Egg & Egg Pulp Marketing Board [1966] HCA 38; (1966) 114 CLR 185 at 191, assessed by reference to the general principle upon which compensatory damages are assessed, whether in actions of contract or of tort. That principle is that the injured party should receive compensation in a sum which, so far as money can do so, will put him in the same position as he would have been in if the contract had been performed or the tort had not been committed: Livingstone v Rawyards Coal Co [(1880) 5 App Cas 25 at 39].
[7] [2013] ACTSC 240, [165]
However, the applicant must also show that the damage caused was reasonably foreseeable by the fourth respondent and not too remote.[8]
[8] Overseas Tankship (UK) Ltd v Morts Dock Engineering Co Ltd [1961] AC 388
The applicant has claimed damages to the value of $10,000 being the limit of civil dispute applications in the tribunal[9].
[9] Subsection 18(2) of the ACT Civil and Administrative Tribunal Act 2008
The evidence in relation to the damage claimed by the applicant was less than satisfactory. To some extent the applicant appeared to contend that it was the first, second and third respondent’s delay in resolving the matter that caused him to incur all of damage he was now claiming. While this may explain why the applicant delayed bringing this application until May 2014, the Tribunal is not aware of any action taken by any of the respondents that precluded the applicant from exercising his right to bring the application before the Tribunal at an earlier date.
The applicant has not had the damage to the car repaired. He claims the cost of the repairs and relies on three quotations ranging from $4,906.94 to $7,312.70. He claims cleaning costs, which he has not yet incurred, for removing the glass and sap. He allowed the car’s registration to expire and now claims towing, unregistered vehicle permit registration fees, roadworthy certificate fees and servicing costs. These fees and costs are solely caused by the applicant’s decision to allow the registration to expire.
The applicant has also claimed the cost of the motor cycle he purchased for transport, which needed money spent on it and the motor cycle registration fees and clothing and Christmas travel. The applicant conceded that the claim for loss of enjoyment was simply the amount left after he deducted the other expenses from the $10,000 civil disputes limit. It is a made up amount and not supported by the evidence.
All of the respondents contended that the quantum claimed by the applicant was excessive. The first, second and third respondents contended that the applicant was only entitled to recover the value of the car immediately prior to it sustaining the damage as the value was substantially less than the repair costs. The fourth respondent contended that “the correct value of the claim is the write off value of the car…”[10]
[10] Fourth Respondent’s Response filed 18 August 2014.
Before considering the issue of the repair costs versus the value of the car, the Tribunal is satisfied and finds, that in relation to all of the other heads of damage claimed by the applicant, these expenses were not reasonably foreseeable and were too remote. The applicant’s claim in relation to these expenses is not successful.
Repair v Value.
In Murphy v Brown [11] Mahoney JA said:
Where a plaintiff claims the cost of the work necessary to put him or his property in the pre-injury condition, the work must not merely be necessary for that purpose but "it must be a reasonable course to adopt" to do that work: Bellgrove v Eldridge[1954] HCA 36; (1954) 90 CLR 613 at 618. And, as the defendant's argument here suggested, it will not normally be reasonable to spend, for example, $4,000 to restore a vehicle which, undamaged, was worth, say, $1,000.
[11] (1985) 1 NSWLR 131. at 133
There was no reliable evidence in relation to the value of the car as at September 2012. The applicant said he had owned the car since 2006. Its purchase price was $7,500. Its odometer reading then was about 170,000 km. While he did not know the odometer reading in September 2012 or at present he estimated he had driven about 200,000 km since he has owned the car. Its battery was not working in September 2012 and he used jumper leads to start it. He had not had the car valued in 2012.
The third respondent provided online advertisements of cars for sale in July 2014 of the same or similar year, make and model as the applicant’s car. The sales prices in Redbook and Car Sales were substantially less than the cheapest repair quote. They ranged from $1,600.00 to $3,600.00 for a manual 1991 BMW318i E36 and $3,800.00 for an automatic 1993 BMW318i E36 with an odometer reading of 176,000 km.
The applicant provided the Tribunal with an online Private Seller Car advertisement for an automatic 1992 BMW 318i E36 for $9,999 with 265,000 km. He also tendered an online car valuation for a manual 1991 BMW 318i dated 29 June 2014 from which was provided by Glass’s Information Service (GIS), stating a range of valuations from $4,100.00 to $5,000.00 for a trade in to $5,500.00 to $6,250.00 for a private sale to $6,480.00 to $7,700.00 for a dealer price.
However, GIS’s valuation has the following important notation:
“This valuation data is provided by Glass’s Information Service.
It is intended to provide you with an indicative range to assist in the sale or purchase of a used vehicle. Motor vehicle values change frequently and are influenced by a range of factors including, condition, distance travelled, options, manufacturer marketing actions, economic and dealer stocking policies.
Values are based on a vehicle averaging up to 20,000 km per annum and being in a well maintained condition relevant to its age.”
Considering the matters in the previous paragraph, the Tribunal noted that the applicant said he had driven 200,000 km in the six years he had owned the car until the incident which is already some 80,000 km more than the Glass’s formula based on 20,000 km a year. Further the Tribunal noted the applicant’s evidence that the battery was flat in the car, presumably before he travelled overseas some months before the incident as he said he used jumper leads to start the car. This causes the Tribunal to question whether the car was in a well maintained condition relevant to its age at the date of the incident. Accordingly, the Tribunal is not satisfied that the evidence from Glass’s Guide is reliable evidence of the value of the car in this case. The Tribunal is also not satisfied that the applicant’s evidence of the sale price for the 1992 automatic BMW 318i E36 is of assistance as the applicant’s car is a 1991 manual car.
The Tribunal refers to and adopts the following statement of Gray J of the ACT Supreme Court in Kingsbury-Carr v Kiliman[12]
The appellant did not give evidence of any special characteristic of the vehicle which related to the use to which the vehicle was put that required the vehicle to be repaired rather than replaced. It may be assumed that the vehicle provided a mode of transport for the appellant and that the appellant was entitled to be placed in the position of having a substantially identical vehicle rather than the vehicle that he had had at the time of the accident in its pre-accident condition in order to satisfy the use to which the appellant puts his vehicle. A replacement vehicle would therefore place the appellant in the same position as he would have been had he not suffered the wrong.
[12] [2007] ACTSC 36 (8 June 2007) at [20]
The applicant did not give evidence of any special characteristic of the car which related to the use to which the car was put that required the vehicle to be repaired rather than replaced. The Tribunal has assumed, in the absence of such evidence, that the car provided a mode of transport for the applicant.
Having considered all of the available evidence the Tribunal is satisfied that the proper assessment of the applicant’s damages is the value of the car based on the asking sales prices for a manual 1991 BMW 318i E36 in paragraph 100 above, $1,600 - $3,600. All of these values are significantly less than $4,906.94, being the cheapest repair quotation.
In all of the circumstances the Tribunal is not satisfied that it would be reasonable for the applicant to incur the expenditure in repairing the car; the reasonable course of action is to award the applicant damages for the pre-incident value the car.
Judgment will be entered for $3,600.00 being the higher figure from the Redbook.com.au valuation for a manual 1991 BMW 318i E36.
………………………………..
Ms E. Symons
Presidential Member
HEARING DETAILS
FILE NUMBER: | XD 14/749 |
PARTIES, APPLICANT: | STEVEN WALDRIP |
| PARTIES, FIRST & SECOND RESPONDENTS: | GIANNI CIACCIA & DONNA CIACCIA |
THIRD PRESONDENT | PHILIP KOUVELIS REAL ESTATE |
FOURTH RESPONDENT | HUNG NGUYEN |
SOLICITORS FOR APPLICANT | |
| SOLICITORS FOR FIRST AND SECOND RESPONDENTS | Hicksons Lawyers |
SOLICITORS FOR THIRD RESPONDENTS | Minter Ellison Lawyers |
TRIBUNAL MEMBER DATES OF HEARING: | Ms E Symons 12 January 2015 |
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