Dungog Shire Council v Babbage

[2004] NSWCA 160

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Duty of care
4. › Highway authority
5. › Roadside trees
6. › Whether council breached duty by failing to remove tree that fell in windstorm
7. › Whether ad hoc observation by road workers should have identified tree as dangerous
8. › Whether failure to have proactive system of roadside tree inspection constituted breach
1. Tort
2. › Negligence
3. › Standard of care
4. › Public authority
5. › Calculus of negligence
6. › Magnitude of risk balanced against expense, difficulty and inconvenience of precautions
7. › Financial and practical constraints of rural shire council
8. › Whether reactive complaint-based system was reasonable
1. Tort
2. › Negligence
3. › Breach of duty
4. › Highway authority
5. › Falling trees
6. › Whether tree showed obvious signs of compromised stability
7. › Whether country-bred council employees could identify sick trees
8. › Sufficiency of expert evidence on tree health
1. Appeal
2. › Appellate review
3. › Findings of fact
4. › Whether trial judge's finding that tree was obviously sickly was supported by evidence

Quick Take

A rural shire council with limited financial resources is not required to implement a proactive system of roadside tree inspection where the cost and scale of such a system would be disproportionate to the risk, and a reactive complaint-based system may satisfy the duty of care. The Shirt calculus of negligence must be applied with proper regard to the expense, difficulty and inconvenience of precautions relative to the magnitude and probability of the risk. The duty of a highway authority under Brodie is distinct from the duty of an occupier of recreational land under Schiller, and the analogy between the two should not be pursued.