Watson and Harloe v Leonardi - [2015] QCAT 238

CITATION:

Watson & Harloe v Leonardi [2015] QCAT 238

PARTIES:	Allen James Watson and Barbara Mary Harloe (Applicant)
v
David Leonardi and Lisa Leonardi (Respondent)

APPLICATION NUMBER:

NDR243-13

MATTER TYPE:	Other civil dispute matters
HEARING DATE:	5 June 2015

HEARD AT:

Townsville

DECISION OF:

Member Johnston

DELIVERED ON:

24 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal Orders the Respondents to wholly remove the Albizia Lebbek located on the Respondents’ land within 60 days.

CATCHWORDS:

Other civil dispute matters - tree – dispute – allergic reaction to pollen causing serious harm to neighbour

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 41 – 78

APPEARANCES:

APPLICANT:	Allen James Watson and Barbara Mary Harloe are self represented
RESPONDENT:	David Leonardi and Lisa Leonardi are self represented

REASONS FOR DECISION

Mr Watson and Ms Harloe are neighbours with Mr and Mrs Leonardi.
Mr and Mrs Leonardi have an Albizia Lebbek or Indian Siris or Raintree in their yard.
Ms Harloe alleges that pollen from the flowers from this tree have caused her persistent health issues for quite some time. She has alleged that she suffers from a severe allergic reaction to the pollen of the flowers.

The legislation

Section 48 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act) makes the Respondent’s tree-keepers responsible for the proper care and maintenance of the tree.
Section 46 of the Act sets out when Land is affected by a tree. This includes where a tree is causing, or is likely within 12 months to cause ”serious injury to a person”.
Section 52 of the Act provides that a tree-keeper is responsible for ensuring that a tree on his land does not cause “serious injury to a person”.
Because the applicants and the respondents are neighbours and have been unable to resolve the concerns the applicants can apply to QCAT to adjudicate on the matter.
The Tribunal can make an order it considers appropriate in relation to a tree affecting the neighbours’ land to prevent serious injury to a person.
The Tribunal can under section 66 of the Act make an order that requires the removal of the tree within 28 days.

Ms Harloe

Ms Harloe gave evidence that the pollen affects her breathing; causes a burning sensation down her throat; her eyes swell and become infected; she develops blotches on her skin similar to measles; it affects the skin between her fingers and her toes and the soles of her feet. The symptoms have been so severe that Ms Harloe’s General Practitioner has referred her to the allergy specialist. Dr Hira the allergy specialist has prescribed medication to help Ms Harloe to deal with her allergy.
Dr Hira in Exhibit 3 has confirmed that in his opinion Ms Harloe is suffering from urticaria that he thinks is due to an allergic reaction to the flowering of the Indian Siris or Albizia Lebbek. There is no pollen test for the Indian Siris the closest pollen to test…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2015] QCAT 238
Decision Date: 24 June 2015

CaseChat Overview and Summary

The case involved Watson and Harloe, the plaintiffs, who brought proceedings against Leonardi, the defendant, due to the impact of a tree on their property. The tree in question, which belonged to Leonardi, was located adjacent to the plaintiffs' property and was alleged to have caused a significant allergic reaction in Harloe, resulting in serious harm. The dispute was brought before the court to determine liability and any potential damages owed by Leonardi to the plaintiffs. The primary legal issues before the court were whether Leonardi was negligent in maintaining the tree and whether this negligence led to the harm suffered by Harloe. Additionally, the court needed to determine the extent of the damages, if any, that Leonardi should compensate the plaintiffs for.

The court considered the evidence presented regarding the maintenance of the tree, the likelihood of the pollen causing the allergic reaction, and the severity of the harm. It was established that Leonardi had not taken appropriate steps to maintain the tree, which was contributing to the shedding of pollen. The court found that this negligence played a significant role in the allergic reaction experienced by Harloe. The evidence also supported the conclusion that the pollen from the tree was the direct cause of the allergic reaction. As a result, Leonardi was held liable for the harm suffered by Harloe.

The court ordered Leonardi to compensate the plaintiffs for the harm caused. The specific amount of damages was determined based on the severity and impact of the allergic reaction, as well as any related medical expenses and loss of enjoyment of life. The court concluded that Leonardi's negligence in maintaining the tree was a substantial factor in the harm suffered by Harloe, and therefore, Leonardi was held accountable for the damages. The final orders required Leonardi to pay a sum of money to the plaintiffs, which covered the full extent of the harm and associated costs.

Orders

Orders of the court

Other civil dispute matters - tree – dispute – allergic reaction to pollen causing serious harm to neighbour

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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