Council liable for damage from fallen tree
THE Court of Appeal has found the Queenstown Lakes District Council breached its duty of care in respect of rotting poplar trees on St Omer Park after one fell in 2014 and damaged a motel and vehicles.
Plaza Investments Ltd sued the council after the 120yearold, 30m Lombardy poplar on St Omer Park fell during high winds.
It fell across Lake Esplanade, crushed seven cars parked beside the Lakeside Motel, owned by the company, and damaged its eastern end motel units, signage and garden on January 17, 2014.
The total cost of repair was $63,577.72.
The tree, under control of the council, snapped from its root crown and inspection showed its base was severely affected with white rot.
The company alleged the council was negligent by not conducting invasive tests on a row of the trees at St Omer Park and not identifying the fallen tree was riddled with white rot.
Following a threeday hearing in Queenstown last June, Judge John Hassan dismissed the claim.
He found while the council
did owe a duty of care to Plaza, it had not breached that duty because it had acted reasonably by taking the appropriate expert advice and following that appro priate expert advice.
Subsequently, Plaza appealed that decision.
In her decision, dated July 31, Justice Helen Cull found Judge Hassan erred and the council was liable to Plaza for the damage caused.
Justice Cull said errors included the judge restricting the duty of care on the council to ‘‘inspect and maintain’’ the trees in St Omer Park, rather than a duty to undertake reasonable steps to prevent known risk of damage from its trees.
Further, Judge Hassan’s characterisation of expert reports as recommending regular inspection and maintenance only was ‘‘incomplete’’.
She found the council knew the aged Lombardy poplar trees were a risk and posed a hazard.
Before 2014, three had fallen — one at St Omer Park in late 2004 and two in Lower Shotover Road in 2009, one of which killed 57yearold farmer Russell Liggett that September.
Justice Cull said before 2014 the council had received several expert reports on the trees at St Omer Park and Lower Shotover Road.
One report, in 2005, recommended the trees in the park be inspected by the council every six to nine months and by a qualified arborist every 12 to 18 months.
It also recommended a phased felling plan be implemented.
Justice Cull said the council did resistograph testing in 2007 on the St Omer Park trees, but despite subsequent reports, with recommendations, it ‘‘took no further steps’’ between then and 2014.
‘‘The council has failed to undertake internal testing, when it had the knowledge that such testing would identify the tree’s extent of decay.
‘‘It did not undertake a phased felling programme as recommended.
‘‘Overall, the council failed to take a risk assessment approach to managing its hazardous trees.
‘‘By its negligent omission, the council has breached its duty of care to Plaza by failing to take reasonable steps to prevent damage or mitigate risk of a known hazard on its land.’’
She also found there was a causal link between the council’s breach of duty and the damage caused to Plaza’s property and the council was liable in negligence for the amount required to repair Plaza’s property.
Costs, with disbursements as approved, were also awarded to Plaza.