Judgment date: 13 September 2010. Rhodes v Lake Macquarie City Council & Anor  NSWCA 2351. NSW Court of Appeal
A public authority successfully relied on s 43 of the Civil Liability Act to avoid liability after a plaintiff was injured by a falling branch. Despite being found to have acted negligently, the Housing Corporation also succeeded because it was held that their negligence was not causative of the plaintiff's injuries.
The plaintiff had resided since about 1997 in a house at Booragul, owned by the Housing Corporation. During this period a large grey gum eucalyptus punctata tree had been situated on a neighbouring property, also owned by the Housing Corporation. This tree was about 18 metres high, and its canopy was about 14 metres wide. Its branches overhung at the driveway used for the purposes of gaining entry to the plaintiff's house.
Within a short time of occupying the premises the plaintiff noticed that branches would fall from the tree onto the front area of her house. In about 1999 the plaintiff's daughter was struck by a branch from the tree sustaining a minor scratch to her stomach. After this occurred, and on a number of subsequent occasions, the plaintiff complained to the Housing Corporation about falling debris from the tree and asked that it remove the tree. The tree was trimmed, possibly as much as once every year or 18 months, between about 2002 and 2005.
By an application dated 28 February 2005, the Housing Corporation applied to the Council for permission to remove the tree on the basis that it was unstable. 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. Mr Khemananta prepared a report dated 20 April 2005, concluding that the removal of the tree was not warranted. Mr Khemananta refused the application on the basis that the tree appeared to be in a sound and stable condition and because the removal of the tree would be inconsistent with the objectives of the Council's Development Control Plan (DCP) No. 43 -Tree Management.
The Housing Corporation was, however, authorised to prune deadwood and thin the crown by 15% but height reduction was not permitted. This work was undertaken in June 2005 by another arborist, Mr Miller.
On 24 December 2005 the plaintiff was struck on the top of her head by a piece of timber from the tree. Mr Miller assessed the tree shortly afterwards on the same day. He did not see any branches on the ground, but saw what he described as a large hanger in the tree which he said was "still alive but had broken in the wind". No other hangers were observed.
The plaintiff sued both the Housing Corporation and the Council.
As part of its defence the Council relied upon the following provisions of the Civil Liability Act:
(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 function.
43A Proceedings against public or other authorities for the exercise of special statutory powers
(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.
District Court Decision
The primary judge, Puckeridge DJC, found that the plaintiff 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.
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, and 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.
As regards the claim against the Housing Corporation, the primary judge was not satisfied that the tree was not properly pruned in June 2005 and was not otherwise satisfied that the Housing Corporation had been negligent to the plaintiff in any way.
Both the defendants accordingly succeeded and the plaintiff appealed to the Court of Appeal.
Court of Appeal Decision
In relation to the factual findings made by the primary judge, Hodgson JA, who wrote the leading judgment for the unanimous court, was satisfied that the primary judge erred in concluding that the plaintiff may have been struck by a piece of bark, finding that "this conclusion had no support in the evidence", and found that the evidence did justify a conclusion that the plaintiff was struck by a substantial branch from the tree. However, Hodgson JA was unable to conclude that the primary judge erred in not being satisfied that the branch was deadwood (noting the plaintiff's failure to call her son who could have given evidence in this regard). Hodgson JA also agreed with the primary judge that there was no basis for a finding that the tree was improperly pruned in June 2005.
In relation to the negligence of the Council, Hodgson JA accepted the plaintiff's argument that, pursuant to s 5B of the Civil Liability Act, the tree posed a risk of damage to persons from twigs and branches dropping from it, which could be considered a not insignificant risk. However, Hodgson JA also found that in relation to a healthy tree of this kind, the risk was not shown to be such that a reasonable person would have authorised removal of the tree. Hodgson JA specifically noted:
Hodgson JA also found that 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.
In relation to the claim against the Housing Corporation, Hodgson JA noted that the Housing Corporation owed to the plaintiff a duty of care as explained by the High Court in Jones v Bartlett2. Hodgson JA held that 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 for the removal of the tree. In Hodgson JA's opinion it was appropriate for the Court to conclude that a reasonable lessor would have provided that information to the Council and that in failing to do so the Housing Corporation breached its duty of care by failing to properly set out the history of the issues with the tree as provided by the plaintiff and his neighbour.
Hodgson JA noted that in order to succeed the plaintiff must also demonstrate causation, and that in order to do so the plaintiff had to demonstrate 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 to removing the tree. In dismissing this argument, Hodgson JA noted that the evidence showed that the tree was, of its type, a sound and healthy tree, and that 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. 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 that in fact "the general tenor of his evidence strongly indicates that it would not have been". Hodgson JA found that had Mr Khemananta been properly advised of all the history of the issues with the tree, then he still would have likely only recommended the crown thinning of the tree by 15%.
In the circumstances, although the Housing Corporation was found to be negligent, it could not be held that their negligence was causative of the plaintiff's injuries as it was not shown that the Council would have come to any different decision with a complete history of the issues with the tree, and without Council consent the tree could not lawfully be removed.
For the above reasons the plaintiff's appeal was dismissed.
Whilst this decision turned primarily on its facts, it does provide a good example that it is difficult to succeed in a claim in negligence against public authorities such as Councils unless it can be shown that 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 function.
The decision also provides a reminder that plaintiffs must always establish causation in order to succeed in a claim in negligence. Demonstrating breach is only one step in the process. A plaintiff must always prove that any breach is causative of the loss claimed, which is often difficult as shown in this decision.
1. Hodgson JA, Macfarlan JA and Handley AJA
2.  HCA 56
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