By Timothy Bates and Sabina Boyd, Legal Vision
In the High Court decision of Plaza Investments Ltd (“Plaza”) v Queenstown Lakes District Council (“the council”), the court was asked to determine whether the Queenstown Lakes District Council had breached their duty of care by allowing a tree to fall onto a neighbouring hotel property.
Plaza owns a lakeside motel in Queenstown, with Queenstown’s St Omer Park (containing an “over-mature” poplar tree), across the road.
During high winds, the 120-year-old tree fell into Plaza’s property, causing extensive damage. The cost to repair the damage was $63,577.72.
After inspection of the tree, it was discovered that it was infected with white rot, which had caused it to fall. The council had previously experienced poplar tress falling because of rot, and had arranged for a number of inspections and expert reports to be undertaken to avoid further damage.
The majority of the reports recommended regular testing for further decay of all poplar trees, and to put in place a tree felling plan to remove and replace the trees.
District Court judgment
The District Court held that the council owed a duty of care to behave to the standard of a reasonable local authority, with the information available to them.
It held that the council did not have a duty to undertake internal testing, based on what a reasonable authority would have done in the circumstances, and that it was reasonable of the council to rely solely on visual inspections. The District Court found that the council was not negligent.
The issues for the High Court to consider included whether the District Court erred in:
• Restricting the scope of the duty of care owed by the council,
• Determining there was insufficient evidence to find the council had breached the duty of care owed, and
• Determining that even if the council did breach its duty of care, there was no causal link between the breach and the damage caused to Plaza’s property.
Did the Judge err in defining the scope of the duty of care owed by the council?
The High Court found that the council had a duty of care not only to inspect and maintain the trees, but also to prevent or minimise the known hazards of the park.
The majority of the inspections and reports focused on regular monitoring and detection to prevent further decay, not just inspection and maintenance.
The High Court also found that rather than comparing the standard of care to a reasonable authority in the council’s position, it should have been compared to a reasonable authority who were aware of the risks of the hazards of the tree.
It ruled the District Court wrongly construed the duty of care.
Was there sufficient evidence to find the council had breached the duty of care owed?
The High Court considered that the council’s knowledge and foreseeability of the harm should be assessed at the time when the tree fell, being in 2014.
Several recommendations were made by various tree-testing companies to continually maintain and inspect the trees, which the council failed to do.
Although the council had knowledge that all poplar trees posed a risk, they did not take any steps to mitigate those risks, apart from visual inspections, which did not suffice.
Was there a causal link between the council’s breach of duty and the damage caused to Plaza’s property?
The High Court considered that the council’s omission to minimise risk or harm caused the damage to Plaza’s property. In knowing that the trees were of poor health, there was a foreseeable risk they would fall and cause damage.
It was not necessary to prove that the council would reasonably foresee that that particular tree would fall onto Plaza’s property.
It concluded that it was more likely than not, that if the council had conducted regular testing, like it was advised to, decay would have been discovered in the tree, and the tree could therefore be removed.
The High Court therefore overruled the District Court’s judgment. The council was found to be negligent, and was ordered to meet the cost of repairs.
Note: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by Legal Vision or Building Today to anyone who relies on the information contained in this article.