Can’t See the Wood for the Trees

Queenstown Lakes District Council was found to not be liable for damage to motel units caused by a falling tree, which was on council land. The District Court concluded that the council did owe a duty of care to undertake inspection and maintenance of the trees on the council’s reserve, but had not breached its duty as the steps it had taken were reasonable.

During high winds on 17 January 2014 one of the trees in the council’s reserve, a 30 metre tall 120 year old Lombardy poplar, snapped just above its root crown. The tree landed partly on the road and partly on the plaintiff’s motel, striking and damaging the eastern end of the motel units, its signage, a garden and some cars.It was accepted that the total cost to repair was $63,577.72.

The tree was one of a group of tall Lombardy poplars in the reserve, scheduled as heritage trees in the District Plan in view of their historic significance and contribution to the amenity values of the reserve.  In 2004, a similar tree fell in the reserve landing on an abandoned car.  Other trees had been felled by the council on advice of arborists, in view of their poor state and the potential safety hazard they posed.
After the 2014 incident, inspection of the tree showed that its heart was significantly compromised by white rot in the vicinity of the break.  It is accepted that this, in combination with a strong wind, was a material cause of the tree’s fall.  A central matter of dispute concerned whether the council employed an appropriate method of inspection and testing of the tree prior to its fall.

The different methods of testing relevant to the case were:

(a) Visual tree assessment, which does not involve intrusion into the tree trunk.It involves examination of a tree by a trained arborist for any relevant visually evident changes that could be an indicator of the tree’s health and condition; and
(b) Mechanical methods of testing that, if used, would be typically used in conjunction with visual testing such as “a picus tomograph” involving mechanical intrusion through the bark to test the relevant part of the heart wood or “resistograph” involving driving fine needles into the heart wood to locate and graph areas of decay, hollows, cracks, ring structure and other possible structural integrity issues.

The council undertook regular visual inspections of the trees, including the tree in issue, as well as mechanical testing in 2005 and 2007.  That testing concluded that no trees had any signs of decay.  The last arborist’s inspection was four months before the tree snapped and fell on the plaintiff’s motel.The council’s record of this last inspection recorded the tree as presenting to the council’s contractor as one of the better specimens in the reserve.

The claim

The duty of care

The Court accepted that no prior case in New Zealand could be found whereby a council was held to owe a duty of care to a property owner in respect of damage caused by a tree.  The Court determined the case on settled principles as applied in New Zealand (and assisted to some limited extent by overseas authorities) that the council owed a duty of care to undertake inspection and maintenance of the trees on the reserve to the standard that a reasonable council would have applied in January 2014 in view of all of the information then available.

Breach of duty

The council submitted that it fulfilled its duty, informed appropriately by competent experts.  The Court held that a reasonable local authority would have taken advice from appropriate arborists and the evidence demonstrated that that had occurred.  There was no question in the evidence that the arborists that the council engaged were lacking in any relevant competence, nor was there any evidence that the council in any way inappropriately constrained the briefs of those experts or the budgets that they were to apply.
The Court was not prepared to extend the duty to an obligation on the council to undertake internal or resistograph testing of the trees after 2007.  What was most strongly in favour of the plaintiff’s case was the consensus in the expert evidence that the tree was, at the time it fell, of an age and in a locality that ought to have been considered to warrant close and regular scrutiny.  The Court said that the nub of the matter was whether, with that knowledge, a reasonable local authority in the council’s position would have gone further than the regular visual testing it did.  The Court concluded that the evidence fell well short of demonstrating that the council ought to have undertaken resistograph testing or something like it.
The Court also found that the resistograph testing may well have proven helpful but it could well have not shown anything of material worth.  The Court also noted that there was a lack of evidence from the plaintiff on whether or not the council’s approach to monitoring and inspecting as at January 2014 fell short of a typical local authority practice.

The Learnings
At the heart of every negligence claim is an examination of whether the defendant acted reasonably.  In this case, the council was able to rely on records spanning 10 years that documented the monitoring and inspection of the trees in the council’s reserve, including the tree in question.  In contrast, the plaintiffs were not able to persuade the Court that the council had fallen short of the standard of a reasonable council.  Those robust records assisted the council in successfully defending the claim and this case serves as a good reminder of the importance of thorough record keeping and having good processes.
Watch this space as an appeal has been heard by the High Court.

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