Case Note: Prestige Property Services Pty Limited v Choi & Anor [2007] NSWCA 363

• The Court of Appeal held that a specialist contractor engaged by City of Sydney Council to maintain trees in Hyde Park, including removal of dangerous tree branches, was liable for injuries sustained by the plaintiff when she was struck by a large falling tree branch whilst sitting in Hyde Park.

• The specialist contractor's appeal was dismissed as it was found by the Court of Appeal to have breached its duty of care to the plaintiff and its contractual obligations to the Council.

Background Circumstances

• The propensity of otherwise healthy weeping fig trees in Hyde Park to shed branches unexpectedly due to absence of sunlight causing branches to grow longer and heavier than usual and a condition called "included bark" which weakened branches was known to the Council and to the appellant contractor.

• The plaintiff initially sued the Council only, alleging a duty of care arising from its care, control, management and occupation of Hyde Park.

• The Council denied liability to the plaintiff and cross claimed against the appellant which was a specialist sub-contractor engaged by the Council to look after safety and maintenance in the park, including checking and removal of dangerous tree branches.

• The plaintiff subsequently joined the appellant as a defendant and relied on the Council's allegations in the cross claim.

• Barr J found that the appellant was negligent and that the Council was not. The Council was acquitted of negligence because it had acted reasonably in selecting and supervising a specialist contractor, the appellant, to look after safety and maintenance in the park, including the checking and removal of dangerous tree branches.

• The appellant was found directly liable to the plaintiff because it had negligently failed to establish and carry out a system of inspection and lopping which would have removed the offending branch before it became a danger to the plaintiff.

• Barr J held that the Council's duty towards the plaintiff was delegable and had been delegated to the appellant. His Honour's opinion was based upon primary findings including:

1. that the Council knew generally about the condition of trees in Hyde Park and that it lacked the skill and experience necessary to identify defects of the kind present in the subject tree;
2. the Council knew that the appellant was a substantial company that intended to engage a substantial and reliable sub-contractor;
3. the Council went about its selection of the appellant with care;
4. the principal of the appellant was an arborist and its sub-contractor had arborists on its staff or senior management;
5. the Council administered the appellant's contract in a careful manner.

• His Honour held the relationship between the Council and the appellant was one of a general principal which engaged a specialist contractor and did so responsibly.

• The appellant had been engaged by the Council to identify dangerous branches which were likely to fall and there was no basis to find the Council had breached its duty of care to the plaintiff.

• His Honour rejected the appellant's argument that it was not its job to protect and remove dangerous branches. The appellant claimed this would only have been its job if the Council had agreed to pay it extra under the contract and stipulated expressly that the necessary additional work had to be done under the contract. His Honour found the branch which fell was "dangerous" within the meaning of the contract Specification to remove all dead, dangerous and fallen branches in accordance with the best practices of the arboricultural trade.

• Barr J accepted the evidence of two expert arborists to the effect that the branch that fell was dangerous in the sense that it was detectable and such that a reasonable arborist would have removed the danger by removing or at least shortening the branch.

• His Honour also rejected the appellant's argument that the Council was required to monitor its performance of the contract.

• The appellant appealed, joining the plaintiff and the Council, challenging the conclusion that it was liable in negligence to the plaintiff.

Court Of Appeal Decision

• The appellant claimed Barr J had erred in finding that the Council had wholly delegated its duty of care. The appellant argued the Council had retained overall control of Hyde Park. It was further argued the Council had a duty under the contract to monitor the appellant's performance of its obligations and that it failed to do so.

• Mason P agreed with the trial judge's conclusions and held the Council's duty of care was discharged by acting reasonably in the manner found by the primary judge.

• Mason P held the appellant's submission that the Council failed to adequately supervise it was misconceived. His Honour held:

• The court held that, as the contract required the appellant to attend to safety issues, it was irrelevant that the Council also owed the plaintiff a duty of care.

• Mason P found unhelpful the appellant's submission that the extent of the obligations that the appellant assumed under its contract with the Council were governed by the arrangements that it did or did not procure with its sub-contractor. His Honour considered that, if the appellant bound itself under contract to monitor and remove dangerous trees and branches, then it was the appellant's problem that it elected to take no steps to perform this obligation or to arrange for its sub-contractor to do so.

• It was further submitted on behalf of the appellant that the trial judge failed to take into consideration expert evidence. This argument was also rejected by Mason P as the trial judge referred to portions of the expert evidence and it was not incumbent on his Honour to spell out those portions that he ultimately found not to be probative or of assistance.

Implications

• In circumstances where an occupier has engaged a specialist contractor, this decision may be relied upon by an occupier as a complete defence to argue that there was no breach of its duty. Provided the occupier is able to establish they were completely reliant upon the expertise of the contractor, and acted with reasonable care in appointing and supervising the contractor there is a good argument that the occupier has discharged its duty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.