PLAZA INVESTMENTS LTD v QUEENSTOWN LAKES DISTRICT COUNCIL [2018] NZHC 1925

PLAZA INVESTMENTS LTD v QUEENSTOWN LAKES DISTRICT COUNCIL [2018] NZHC 1925 [31 July2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2017-425-65[2018] NZHC 1925BETWEEN PLAZA INVESTMENTS LTDAppellantAND QUEENSTOWN LAKES DISTRICTCOUNCILRespondentHearing: 4 October 2017Appearances: L MacDonald for the AppellantN M H Whittington and R J Gibson for the RespondentJudgment: 31 July 2018JUDGMENT OF CULL JTABLE OF CONTENTSFactual background [7]Pre Tree-fall in 2014 [13]Post Tree fall in 2014 [29]District Court judgment [31]Approach to appeal [39]Grounds of appeal [40]Did the Judge err in defining the scope of the duty of care owed by the Council? [42]Parties' positions [42]The law on duty of care [45]Discussion [57](a) The duty of care [59](b) Standard of care [74](c) Policy considerations [85]Conclusion [91]Was there insufficient evidence to find the Council had breached the duty of care owed? [95]The Judge's findings on breach [98]The parties' positions [99]The law on breach of the duty of care [104]The nature and foreseeability of the potential risk [112]The evidential basis for a breach finding [113]The inconsistent findings made by the Judge [121](a) Reliance on one expert's interpretation of another expert's work [124](b) The Council's visual assessments since 2007 [130](c) Internal testing may not have been helpful [132](d) The meaning of "dozy" [140](e) The relevance of the Lower Shotover Road tests [149]The subsequent risk assessment approach [154]The pleadings objection [160]Findings on breach [168]Conclusion [171]Was there a causal link between the Council's breach of duty and the damage caused to Plaza'sproperty? [173]The law on causation [176]Discussion [179]Conclusion [194]Result [196][1] During high winds in January 2014, an "over-mature veteran" poplar tree (theTree) in Queenstown's St Omer Park snapped from its root crown, falling across theroad into a motel property opposite, causing extensive damage. The Tree was underthe control of the Queenstown Lakes District Council and the motel owner, PlazaInvestments Limited, sued the Council in negligence for the breach of its duty of care.1[2] Plaza appeals the oral District Court judgment, determining that the Councilhad not breached its duty of care, and therefore was not liable to Plaza for any lossescaused by the falling Tree.2 Plaza seeks to recover its losses from the Council's breachof its duty of care, namely, its failure to take reasonable care to minimise or preventthe risk of the Tree causing damage.[3] The question in this appeal is whether the District Court Judge erred in hisarticulation of the duty and standard of care owed by the Council and his consequentialconclusions on the evidence of breach.[4] At the outset of this appeal, both parties submitted that as the evidence waslargely of an expert nature, uncontentious and based on documentary evidence, thelower Court's usual advantage in seeing and hearing witnesses is not significant in thiscase.1 The parties are referred to in this judgment as the Council and Plaza.2 Plaza Investment Ltd v Queenstown Lakes District Council [2017] NZDC 12589.[5] I find that the District Court Judge erred and that the Council is liable to Plazafor the damage caused. I base my finding on the following conclusions:(a) the Judge erred by restricting the scope of the duty of care owed by theCouncil to one of inspecting and maintaining its trees. The duty of careon the Council was to take reasonable steps to prevent or minimiseknown hazards on its land from causing damage to its proximateneighbours;(b) the Judge erred in failing to apply an objective test to the standard ofcare on the Council. The standard of care is to take such steps, as arereasonable for a local authority with similar hazards, powers andresources;(c) it was reasonably foreseeable that internal decay was a major risk forthe over-mature poplars in St Omer Park and that the probability of oneor more of these trees falling, including this Tree, from theircompromised structure, was more likely than not to occur within theforeseeable future, causing damage to the neighbouring property;(d) there is sufficient evidence, on the balance of probabilities, to find theCouncil had breached its duty of care as set out in (a) above; and(e) there was a causal link between the Council's breach of duty and thedamage caused to Plaza's property.[6] Plaza is therefore entitled to damage for its losses.Factual background[7] Plaza owns a lakeside motel on Lake Esplanade in Queenstown. During highwinds on 17 January 2014, the 30-metre-tall 120 year old Lombardy poplar treelocated on the Council's land in St Omer Park (the Park), snapped at its root crownand fell onto Plaza's property. Plaza's property suffered extensive damage,particularly to the eastern end motel units, its signage, a garden and some cars. Thereis no dispute that the total cost to repair that damage was $63,577.72.[8] Inspection of the Tree showed its base was severely afflicted with white rot.This was causative of its falling in the high winds. White rot results from a fungalattack on a tree and commonly enters through the roots of a tree. Older poplar treesare more prone to white rot.[9] This was not the first time a poplar tree had fallen in one of the Council'sreserves. In late 2004, a poplar tree in the Park fell on an abandoned car parked onLake Esplanade. In September and November 2009, two trees fell on Queenstown'sLower Shotover Road, one of which killed a person.[10] Following the previous three tree-fall incidents, the Council arrangedinspections and received expert reports in relation to the poplar trees in the Park,Speargrass Flat Road and Lower Shotover Road.[11] Three types of testing were undertaken on the Park trees in the relevant period.The type of tests carried out were:3(a) Visual tree assessment (VTA), which does not intrude into the treetrunk. It is a visual examination to determine whether changes in thetrees could be an indicator of the tree's health or condition. A mallet orhammer may be used to take soundings of the tree trunk to listen forchanges in density or signs of decay;(b) Picus Tomograph testing, which involves mechanical intrusionthrough the bark of a tree using a series of sonic sensors connected topins. The pins are tapped to test the relevant part of the heartwood. Thedevice measures the velocity of sound waves in wood to detect decay,damage and cavities in the wood;(c) Resistograph testing, which involves mechanical intrusion into a treeby driving fine needles into the heartwood. It measures drill resistance3 Plaza, above n 2, at [10].to locate areas of decay, hollows, cracks, ring structure and otherstructural integrity issues.[12] I refer to the latter two tests as "internal tests" in this judgment.Pre Tree-fall in 2014[13] In January 2005, City Care undertook Picus Tomograph testing of the trees inthe Park and on Lower Shotover Road. The report said that the trees appeared to beabout 100 years old, were coming to the end of their lives and had a low to mediumsafe useful life expectancy (five to 10 years). The report recommended that theCouncil:(a) regularly inspect the trees every six to nine months;(b) arrange for a qualified arborist to inspect every 12 to 18 months; and(c) institute a phased felling plan, in which certain trees are removed andreplaced as part of a rolling programme of maintenance.[14] In March 2005, the Council's Director of Parks advised the Council to adoptCity Care's recommendations and to prepare a 10 year tree management programme"for felling and replacement planting in" the Park with a related increase in the treemaintenance budget.[15] The Council obtained resource consent to remove four poplars and crownclearing of 12 others as the City Care report had recommended, but did not implementthe recommended phased felling programme.[16] In 2007, as a result of further tree-fall from strong winds in Speargrass FlatRoad, the Council's Parks Manager commissioned a detailed report on the health ofthe trees in Speargrass Flat Road.[17] The initial inspection was undertaken by Mr Glenn, the Council's consultantarborist, who was asked to inspect 120 Lombardy poplars on Speargrass Flat Road.He undertook a VTA and used a sounding hammer. The Glenn Report, dated 19January 2007, identified a number of trees in Speargrass Flat Road, which he describedas exhibiting "signs of decay". He recommended "these be probed with a resistographto establish the extent of decay pending a final decision on the removal of the trees."[18] In April 2007, the Council's Parks Manager engaged Horttraining NewZealand Limited (Hort) to resistograph test the poplar trees in Speargrass Flat Roadand reassess the trees in the Park, as it had been three years since City Care's testingand report. Hort observed in its report (as the Judge recorded) that:4 Lombardy Poplar trees are not noted for having solid heartwood or goodcompartmentalisation properties/barriers (that aid in the restriction of decayspreading throughout a tree's structure). Due to this propensity, it isreasonably common to observe hollows and decay in the structure of olderLombardy Poplar trees [19] The Hort report:(a) contained resistograph readings for each poplar tree in the Park andSpeargrass Flat Road variously depicting categories of sapwood/bark,soft/dozy wood, young wood/dozy, dozy wood, decay or "appearssound";(b) recommended that a total of 23 Lombardy poplars and one grey poplarat the Park be monitored by a suitably experienced and qualifiedarborist on an annual basis to detect further signs of decay and/ordecline;(c) described the subject Tree as having "dozy" timber. The resistographreading, for the Tree, contained this explanation:5Drilled in a south westerly direction, some soft/dozywood found between 4 cm and 8.5 cm otherwiseappears sound. Recommend yearly monitoring.(d) did not recommend that any of the trees in the Park be felled.4 Plaza, above n 2, at [17].5 The Tree's resistograph reading is in the Appendix.[20] There was no explanation of the term "dozy". The dictionary definition of"dozy", in respect of timber, is "in a state of incipient decay" or "so decayed as to besoft and useless" for trees and timber.6 The evidence on "dozy" is explored furtherunder breach of the duty of care.7[21] On 1 August 2007, the Council's Parks Manager8 briefed the Council on theHort report findings. He explained to the Council that he sought a reassessment of thePark's trees, by resistograph testing, because it had been over three years since the lastreport on them and that report recommended "regular inspections of the poplar treesto ensure they were safe and healthy." He noted that the recommendations for thetrees in the Park were:9quite straightforward and will be undertaken as part of our regular treemaintenance programme.[22] In 2009, following a tree-fall on Lower Shotover Road, Asplundh completedan inspection report of the Lombardy poplars on Lower Shotover Road. Asplundhinspected the remaining 66 trees by VTA, to assess their health and safety. It reportedthat the fallen tree: provides evidence in conjunction with other external signs to suggest themajority of these populus trees' inner cores are compromised and that thesetrees are in decline and have poor or failing health.[23] Asplundh recommended the removal of all of the trees to ground level orindefinite road closure because of "the hazard" posed by the line of poplar trees. TheCouncil did not follow that recommendation immediately but rather resolved to haveall remaining poplar trees in Lower Shotover Road tested by resistograph.[24] In November 2009, the Council commissioned Buddinghtree Consultancy Ltd(Buddinghtree) to undertake digital testing of the Lower Shotover Road trees.Buddinghtree did an initial VTA test on the trees, in the course of which it tapped all6 Lesley Brown (ed) The New Shorter Oxford English Dictionary on Historical Principles: Volume1 (Clarendon Press, Oxford 1993) at 740; and Isaac K Fund (ed) Funk and Wagnalls New StandardDictionary of the English Language: Volume 1 (Funk and Wagnalls Co, New York, 1924) at 754.7 At [143] of this judgment.8 Previously this role was the Director of Parks.9 Plaza, above n 2, at [20].trees with a sounding hammer. The Judge recorded that:10The results it reported on its initial VTA test were significantly different fromthose reported from its follow up digital test.[25] The digital test identified significant decay and noted the trees werecompromised in stability by soft wood and minor cavities. It found that only three ofthe trees were sound and the remaining trees tested were "unsafe". As the safety ofthe three sound trees would have been compromised by the removal of the others, itrecommended the removal of all the trees. It also recommended that a succession planfor the trees be implemented.[26] In January and March 2010, Asplundh completed a visual assessment of thePark trees and recommended the removal of one of them. The tree had not beenremoved at the time the Tree fell into Plaza's motel.[27] Apart from the use of resistograph testing by Hort in 2007, the Council'sconsultants conducted visual tree assessments only as part of the Council's generaltree maintenance. The Council did no internal testing of the trees in the Park from2007 until this Tree fell in 2014.[28] The last inspection of the Tree before it fell was conducted by Asplundh NewZealand in October 2013. This was a visual assessment only. The Council's arboristsubsequently explained that there was no record of any arborist recommending thatthe particular Tree be removed and it appeared to Asplundh to be one of the betterspecimens in the Park.Post Tree fall in 2014[29] Following the Tree-fall in 2014, the Council contracted Greenscene to do aninspection. Greenscene did a visual assessment and resistograph testing and reported:(a) the main areas of decay caused by white rot were within the base of thefallen Tree. The decay caused the Tree to snap at the base;10 Plaza, above n 2, at [26] (emphasis added).(b) the visual tree assessments showed the trees to be in good health. Theresistograph tests showed the presence of decay to varying degrees invirtually all the Lombardy poplars. The grey and black poplar trees hada greatly reduced level of decay compared to the Lombardy poplars;(c) the Lombardy poplars were "over-mature" and problems associatedwith old age were showing up in the form of cavities and heartwooddecay;(d) the Park is relatively exposed. It experiences strong winds, snow, iceand rain and has high foot traffic; and(e) the potential risk to persons and/or property from part or whole of aLombardy poplar tree falling is of concern. This is due to the frequentuse of the Park and the adjoining buildings.[30] In summary, three important facts about the Tree emerged from the trialevidence:(a) The Tree is a Lombardy poplar. These are relatively fast growing andhave a short typical lifespan of 50–70 years.11(b) The "heart" of the Tree was significantly compromised by white rotwhich, together with a strong wind, was a material cause of the Tree'sfall.12(c) White rot is a consequence of a fungal attack on a tree. White rot entersthrough the roots and older poplars such as the Tree are more prone toit.1311 Plaza, above n 2, at [6].12 At [7].13 At [7].District Court judgment[31] At the District Court hearing, the following experts were called by the parties:14(a) Dr Wakeling, a biodeteriatian consultant and wood protection scientistwith over 25 years' study, work and expertise in wood decay.(b) Mr Roberts, an arborist with over 25 years' experience, a formerpresident of the New Zealand Arboriculture Association and formerindustry leader and trainer of arborists.(c) Mr Webb, an arborist with 17 years' experience.(d) Mr Earp, an ex-arborist with 10 years' experience.(e) Mr Mackinnon, an arborist with over 40 years' experience and theauthor of the City Care report.[32] The Judge focussed initially on Plaza's pleading. Plaza pleaded that:(a) The Council owed it a duty of care to exercise reasonable skill andcare in inspecting and maintaining the poplar trees on the reserve landto ensure they pose no risk to safety or neighbouring property.(b) In breach of that duty, the Council failed to:(i) identify the existence of white rot in the poplar tree that fellon the property;(ii) take all reasonable necessary precautions to minimise the riskof the tree falling.[33] The Judge rejected the Council's suggestion that Plaza's claim was framed asa strict liability duty but confirmed that the claim was in negligence. The Judgeobserved that in the absence of any decided New Zealand case exactly on the point,the case should be determined on settled negligence principles.[34] The Judge confirmed the New Zealand approach to a duty of care encompassed14 Plaza, above n 2, at [42].three dimensions: proximity, foreseeability and consideration of policy.15[35] The Judge was "overwhelmingly" satisfied that the Council owed a duty ofcare to undertake inspection and maintenance of the trees, including the Tree, in thePark.16 He held that the standard of care was the standard that a reasonable localauthority would have applied in January 2014, in view of all the information thenavailable.[36] However, the Judge concluded, that based on the evidence before him, hewas:17not in a position to draw any definitive conclusions on whether or not theCouncil's approach to monitoring inspection as at January 2014 fell short of atypical local authority practice. The evidence, for what it is, suggests thecontrary.[37] The Judge held Plaza failed to meet the onus on it and did not establish thepleaded duty of care on the Council to undertake internal or resistograph testing of thetrees after 2007. He said that even if resistograph testing had been carried out, therewas no assurance that the decay issues would have been detected.[38] The Judge found the Council had acted on appropriate expert advice. Therewas no reason, he said, to find that it did not act as a reasonable local authority wouldhave in the circumstances. He held there was insufficient evidence for a finding thatthe Council was in breach of its duty of care. Because of this finding, the Judge didnot go on to determine the issue of causation.Approach to appeal[39] This is a general appeal from a District Court decision.18 The established15 Plaza, above n 2, at [53] and [56], citing Body Corporate 207624 v North Shore City Council[2012] NZSC 83, [2013] 2 NZLR 297 [Spencer on Byron]; and North Shore City Council vAttorney-General [2012] NZSC 49, [2012] 3 NZLR 341 [The Grange].16 Plaza, above n 2, at [62].17 At [91].18 This is an appeal under s 72 of the District Courts Act 1947, which provided a general right ofappeal to the High Court from District Court decisions. This provision has subsequently beenrepealed and replaced by s 124 of the District Court Act 2016, which provides for a similar generalright of appeal. The 2016 Act came into force on 1 March 2017, however, because Plaza filedtheir amended statement of claim in the District Court in December 2015, the 1947 Act still appliesprinciples for general appeals apply.19 The appellant bears the onus of satisfying theappellate court that its decision should differ from that under appeal,20 the appellateCourt is entitled to its own assessment of the merits of the case.21Grounds of appeal[40] The issues for determination on appeal, as amended, are whether the Judgeerred by:(a) restricting the scope of the duty of care owed by the Council;22(b) determining there was insufficient evidence to find the Council hadbreached the duty of care owed; and(c) determining that even if the Council did breach its duty of care, therewas no causal link between the breach and the damage (both physicaland economic) caused to Plaza's property.[41] I will deal with each of the issues in turn, with the respective parties'submissions addressed in relation to each.Did the Judge err in defining the scope of the duty of care owed by the Council?Parties' positions[42] First, Plaza submits the Judge incorrectly defined the scope of the duty of careas being that of a reasonable local authority, rather than a reasonable landowner. Plazacontends that the Judge limited the scope of the duty of care and then decided that hecould not decide in favour of Plaza, because he did not have evidence of what otherlocal authorities might be doing with similar trees. Plaza says this was a legal errorwhich then led inevitably to a series of errors of evidential sufficiency, evidentialto this proceeding; see District Court Act 2016, sch 3, cl 5(1). I note that the wording of the twoprovisions is almost identical.19 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].20 At [4].21 At [16].22 This ground of appeal is reframed. Plaza had pleaded that the error was defining the duty of careowed by the Council as being that of a reasonable local authority and not a reasonable landowner.weight and simple errors of fact.[43] Second, Plaza submits the correct duty of care is that of a reasonable landownerwith access to the resources, knowledge and expertise about safe tree maintenance thatthe Council had available to it, compared to the resources available to an ordinarylandowner.23 The standard of care of an occupier is what is reasonably expected in theoccupier's individual circumstances.24 Plaza submits that the individualcircumstances of the Council give it far greater resources than the ordinary person.[44] On the other hand, the Council submits the Judge did not err in assessing theduty of care, sourced from the Council's position as administrator of the Park orlandowner. The Council agrees with the Judge's characterisation of the scope of theduty: to undertake inspection and maintenance of the trees in the Park. The Councilwas aware that the trees were coming to the end of their useful lives, but it had noknowledge that any of the trees – let alone the Tree that fell – were suffering from rotor decay. The risk was not an obvious one,25 but was latent and required ongoingmonitoring, inspection and maintenance. A reasonable landowner without its ownexpert arboreal knowledge cannot be expected to do more than to instruct and rely onexpert advice.26 The Council argues it did this.The law on duty of care[45] The claim in this case is one of negligent omission. It involves the applicationof negligence principles to the duty of care on a landowner/occupier local authoritywith a known hazard on the lands it controls.[46] The Supreme Court reviewed the application of negligence principles in the23 Plaza cites a number of cases in support of its position: J L Tindall v Far North District CouncilHC Auckland CIV-2003-488-135, 20 October 2006 at [226]; Easton Agriculture Ltd v Manawatu-Wanganui Regional Council [2012] 1 NZLR 120 (HC) at [141]; Goldman v Hargrave [1967] 1AC 645 (PC) at [23]; and Double J Smallwoods Ltd v Gisborne District Council [2017] NZHC1284 at [111]–[116].24 Goldman, above n 23, at [23].25 As compared with the situation in Goldman, above n 23, and in Smallwoods, above n 23, whereshrubbery was on fire and immediate action was required by the landowners.26 Relying on Caminer v Northern and London Investment Trust Ltd [1951] AC 88 (HL) where thelandowner failed to have an elm tree inspected, but was not found liable because the evidenceshowed that even if the tree was inspected the issue that caused the tree to fail would not havebeen found.context of local authorities in North Shore City Council v Attorney-General (TheGrange). It endorsed the following two-stage approach to the finding of a duty ofcare:27(a) the loss must be a reasonably foreseeable consequence of the plaintiff'sact or omission and occur within a relationship that was sufficientlyproximate (assessing the closeness of the connection between theparties); and(b) it is fair, just and reasonable to impose the claimed duty of care in thecircumstances (weighing up broader policy considerations orimplications for the community in recognising or denying a duty).[47] The Judge specifically referred to the New Zealand courts' approach to the dutyof care by reference to The Grange and Body Corporate 207624 v North Shore CityCouncil (Spencer on Byron)28 and the established principles of proximity,foreseeability and policy considerations. He accepted that Plaza's claim is one ofnegligent omission and considered the duty on an occupier of land, with a hazard liableto threaten neighbouring property. The following cases were referred to, in part, bythe Judge, and are relevant.[48] In Goldman v Hargrave, the Privy Council held that a landowner has a generalduty of care to a neighbouring occupier, in relation to hazards occurring on that land(regardless of their cause).29 In that case, the hazard was a fire on the appellant's land.The duty is to take such steps as are reasonable for a person in the shoes of thelandowner to prevent or minimise the risk once the landowner is, or should have been,aware of it. The Privy Council said:30in general terms that the existence of a duty must be based upon knowledgeof the hazard, ability to foresee the consequences of not checking or removingit, and the ability to abate it.27 The Grange, above n 15, at [157]–[161].28 Spencer on Byron, above n 15.29 Goldman, above n 23, at 662.30 At 663.The standard to be required of landowners31 was what was reasonable to expect ofthem in their individual circumstances. In Goldman, the Court upheld that thelandowner was negligent by omission as he had failed to respond adequately to a firecaused by a third party.[49] I now consider the three relevant New Zealand cases, which examined theimposition of a duty on local authorities, in occupation or control of property withinherent or potential risk.[50] In J L Tindall v Far North District Council, the plaintiffs were oyster farmers,whose farms had been contaminated with norovirus causing an outbreak of gastro-enteritis.32 The plaintiffs alleged that in times of moderate or heavy rainfall, rawsewage was discharged downstream to the farms from the nearby seweragereticulation and treatment plant. The treatment plant was operated by the Far NorthDistrict Council.[51] Winkelmann J considered the application of negligence principles to localauthorities in circumstances where the common law duty imposes a duty to take stepsthat a reasonable authority would have taken in similar circumstances. Her Honournoted that financial resources of the local authority are relevant to assessing the natureof the duty:[226] When the defendant is a local authority given the practical reality forsuch bodies of limited funding and often competing priorities for those funds.In Crimmins v Stevedoring Industry Finance Committee Gaudron J consideredthe special considerations that applied when considering the nature of any dutyon a public body:A public body or statutory authority only has those powers that areconferred upon it. And it only has the resources with which it isprovided. If the common law imposes a duty of care on a statutoryauthority in relation to the exercise or non-exercise of its powers orfunctions, it only imposes a duty to take those steps that a reasonableauthority with the same powers and resources would have taken in thecircumstances in question.[227] The issue of limitation of resources effecting local authorities, andcompeting priorities are often taken into account when determining the31 The use of "landowners" in this judgment refers to landowners, occupiers and controllers of land.32 Tindall, above n 23.existence and scope of the duty, as opposed to whether a duty held to exist hasbeen breached[52] There, Winkelmann J held the evidence established that the Far North DistrictCouncil had limited funding, and had applied all available resources to identify defectsin the sewerage reticulation system after consulting with experts to identify prioritiesand address those priorities as funds became available. The Council had proceededproperly in allocating the limited resources it had to the most pressing priorities.[53] In Easton Agriculture Ltd v Manawatu-Wanganui Regional Council, theplaintiffs' land was inundated following the breach of a stopbank of the Moutoafloodway, which was managed and maintained by the Regional Council.33 Kós J heldthe Council owed the plaintiffs a duty of care in monitoring and maintaining thestopbank. That duty was supported by the statutory scheme. There was sufficientproximity between the Council (as the owner of the stopbanks) and the adjoininglandowners and occupiers (whose rates substantially funded stopbank maintenance),to find that it was just and reasonable that a duty existed. The Judge said that:34landowners in New Zealand may be held to owe a duty to maintain their landand to take positive steps to prevent harm to adjacent landowners resultingfrom the operation or use of their land.[54] More recently, Goldman has been applied in Double J Smallwoods Ltd vGisborne District Council.35 In Smallwoods, Thomas J found that the GisborneDistrict Council owed a duty of care as a landowner in relation to a fire that started inpampas grass on the Council's land and then spread to the plaintiff's land, causingwidespread damage. The Judge noted there is no authority that the status of thelandowner as a territorial authority is somehow relevant to the existence of that duty.36Rather, the determining factor in the existence of the duty is control over the landwhere the hazard arises. The Judge held that a duty of care was owed by the Council.It was aware of the fire hazard posed by the pampas grass on Council land, such thatit had previously taken action to clear the vegetation. In addition, it was aware thatfor some years, fires had been illegally lit in the rail corridor adjoining the plaintiff's33 Easton Agriculture, above n 23.34 At [139].35 Smallwoods, above n 23, at [111].36 At [114].property and the Council land.[55] From those authorities on negligent omission by landowners, the followingprinciples emerge:(a) landowners have a general duty of care to a neighbouring occupier inrelation to hazards on their land;(b) the duty is to take such steps as are reasonable for a person in the shoesof the landowner to prevent or minimise the risk, once the landowner isaware of it;(c) the standard required of landowners is what is reasonable to expect ofthem in their individual circumstances;(d) the identity of the landowner is irrelevant. The common law imposesthe same duty of care on a statutory authority landowner. Thedetermining factor in establishing the existence of the duty is thecontrol over the land where the hazard arises; and(e) the duty on a statutory authority is to take the steps that a reasonableauthority with similar hazards, powers and resources would have takenin the circumstances.[56] The two-stage approach in The Grange is reflected in the above principles, asforeseeability of damage is inherent in the landowner's knowledge of risk, andproximity is assessed by the threat to neighbouring land.37 The broader policy issuewhich is relevant is whether it is just and reasonable to impose a duty of care on a localauthority in considering the steps a reasonable authority with similar powers andresources would have taken in the circumstances.37 The Grange, above n 15, at [157]–[161].Discussion[57] Both parties accepted that the Judge correctly identified that Plaza's claim wasone of negligent omission and that the Council was "as the administrator of the reserve,effectively in the position of landowner".38 The first issue is whether the Judgeincorrectly narrowed the duty of care.[58] I turn then to analyse the Judge's findings, applying the principles from theauthorities as summarised at above. There are three aspects to the Judge's finding onthe duty of care, which are the focus of my analysis:(a) the articulation of the duty of care;(b) the applicable standard of care; and(c) the policy considerations.(a) The duty of care[59] The Judge held that there was no general duty to act for the benefit of others.However, he accepted it was well established that there can be a positive duty to actin "various circumstances".39 Such a circumstance is where a landowner has a hazardon its land which is liable to threaten neighbouring property. The Judge referred toWinfield and Jolowicz on Tort, which states:40An occupier is under a duty not only to [its] visitors but to take steps to removea hazard on [its] land which threatens neighbouring property even though ithas arisen from the act of nature or of a third party – property is a source ofobligation as well of rights.[60] The Judge confirmed the evidence "overwhelmingly establishes" that the Treeposed a threat to Plaza's motel.41 Importantly, he found that the evidence demonstratedthat:4238 Plaza, above n 2, at [55].39 At [54].40 Edwin Peel and James Goudkamp Winfield and Jolowicz on Tort (19th ed, Thomson Reuters,London, 2014) at [5–045], cited in Plaza, above n 2, at [54].41 Plaza, above n 2, at [56].42 At [56].(a) "an apparently healthy young tree of this height and species is capableof unexpectedly failing even on a sunny day";(b) the Tree, "estimated at more than 30 metres in height, is clearly capableof spanning the road to hit the motel";(c) aggravating that inherent risk was the fact that this Tree was "a veteranof its species";(d) at its age the Tree is "prone to disease (including in the vicinity of itsroot crown)"; and(e) "the Tree was in an exposed environment capable of compromising itand in a strong wind event exposing the motel to an increased risk ofbeing hit."[61] The Judge found that a reasonable local authority at that time would haveconsidered the unanticipated fall of a similar poplar tree. The Council was informedof the characteristics of the poplar species; the incidents associated with similar agedpoplars in the Park and elsewhere in Queenstown; and the felling of the trees in thePark, due to the issues identified. By January 2014, the Council had received variousreports and recommendations from qualified arborists, many of which recommended"regular inspection and maintenance."43[62] The Judge went on to find there was a duty of care on the Council that areasonable local authority would be expected to apply, with the knowledge the Councilhad available to it at the time. He said he was "overwhelmingly satisfied on theevidence that the Council owed a duty of care to undertake inspection andmaintenance of the trees on the reserve." This included the Tree in issue.44[63] The authorities establish that the duty on a landowner is to take reasonablesteps to prevent or minimise the hazard or risk on their land from harming43 Plaza, above n 2, at [63].44 At [62] (emphasis added).neighbouring land or occupiers, once the landowner is aware of the risk.[64] I consider that the Judge erred by defining the Council's duty of care as a dutyto inspect and maintain its trees, rather than a duty to undertake such steps as werereasonable to minimise or prevent known risk of damage from its trees, including theTree.[65] The Judge erred in defining the duty in three ways:(a) he formulated a duty of care, which fell short of the Goldmanformulation and the positive duty, to which he had already referred;45(b) he formulated the duty in the context of the 2010 District Tree Policy,on which the Council's tree maintenance programme is based. Heoverlooked the fact that the Policy does not focus on the managementof the known and inherent risks associated with the Council's agedpoplar trees; and(c) he misstated the advice from the arborists' experts to the Council toundertake inspection and maintenance of its trees, and overlooked theirrecommendations.[66] First, in finding the duty of care on the Council is limited to one of inspectionand maintenance, without the additional duty to prevent or minimise the knownhazards in the Park from causing damage, the Judge inappropriately restricted the dutyon the Council. I consider he overlooked the Goldman duty on the Council to manageits risk, i.e. to prevent and minimise the known risks. The Judge did refer to "thepositive duty to act in such circumstances" earlier in his judgment (a standard whichthe New Zealand authorities have not yet adopted)46 but gave neither it nor theprinciples affecting landowners further consideration in reaching his findings.4745 Plaza, above n 2, at [54].46 In Easton Agriculture Ltd (above n 23 at [46]) Kós J posited whether landowners in New Zealandmay be held to owe a duty to maintain their land and to take positive steps to prevent harm toadjacent landowners. The positive duty has not yet been adopted in New Zealand.47 Plaza, above n 2, at [54] and [56].[67] Second, when defining the Council's duty of care, the Judge observed that theDistrict Tree Policy (the Tree Policy), together with the District Plan, was part of thecontext within which a reasonable local authority could have been expected to act atthe relevant time and is one of various potentially relevant considerations.48 The Judgerecognised that the Tree Policy (or the District Plan) does not single out specialtreatment for the Park trees. As he observed, the Tree Policy gives emphasis toheritage protection on the basis that consent can be obtained on a discretionary basisto take "proper account of health and safety issues."49[68] The question is, however, whether adherence to the Tree Policy by the Councilwas reasonable, in the management of its high risk trees. The Tree Policy may wellhave been reasonable for a Council with the care and control of trees generally. Here,however, the Council had a known hazard with its veteran or aged poplars. The TreePolicy does not focus on how to prevent or minimise damage or danger, in theCouncil's retention of the mature Lombardy poplar trees on its land. In particular:(a) the Tree Policy does not address health and safety issues for the publicor property, unless a tree is identified for removal;50(b) public safety is only mentioned twice in this policy;(c) it is the fourth criteria in the prioritisation of tree maintenance;51 and(d) the Tree Policy primarily concerns maintenance work to be carried outon trees generally and, as the Judge observed, gives emphasis toheritage protection.[69] The Council's adherence to the Tree Policy, without more, did not meet its dutyto control its risk associated with veteran poplar trees.48 Plaza, above n 2, at [58].49 At [72].50 The Policy also provides that work on trees be carried out according to recognised and acceptedcontemporary arboricultural standards, industry practices and guidelines from the New ZealandArboricultural Association and/or International Society of Arboriculture.51 Plaza, above n 2, at [30].[70] Third, the Judge's characterisation of the expert reports as recommendingregular inspection and maintenance only, was incomplete. As with the restricted dutyof care, this inappropriately constrained the Judge's finding on the applicable standardof care.[71] As set out above,52 the reports recommended among other things, regularinspection of these trees every six to nine months; inspection and monitoring of the 23Lombardy poplars by a qualified arborist every 12 to 18 months to detect further decayand/or decline; and that the Council should institute a phased felling programme ofremoval and replanting of the trees.53 The focus of those reports was on regularmonitoring and detection to prevent further risk or damage, not just inspection andmaintenance.[72] Importantly, the Council's Parks Manager followed the City Carerecommendation to reassess the Park trees "to ensure they were safe and healthy", bycommissioning the resistograph testing in 2007, because it had been "over three yearssince the last report." However, no further internal tests of the Park trees wereundertaken by the Council from 2007 until the tree-fall in 2014.[73] I consider the error in the Judge's formulation of the restricted duty of care onthe Council has led to further error in the Judge's consideration of the applicablestandard of care.54(b) Standard of care[74] The Judge found that the standard of care on the Council was "the standardthat a reasonable local authority would have applied in January 2014 in view of all theinformation then available."55 The Judge found that "a reasonable local authority atthe time would have considered the unanticipated fall of a similar poplar in the reserve,which prompted the City Care report in 2005." He accepted the Council would have"been informed of the nature of this Poplar species common to this District and the52 At [13]–[14] of this judgment.53 At [14] of this judgment.54 At [86] onwards of this judgment.55 Plaza, above n 2, at [62].incidents associated with similar aged poplars in Lower Shotover Road and the factsof the trees that have fallen in the reserve or were felled (due to identified issues)."56[75] The Judge then embarked on a consideration of the "nature of the duty of care"with his assessment of whether the duty had been breached.57 This led the Judge tofocus on what a reasonable authority would have done in terms of maintenance andinspection in January 2014, in view of the information then available.[76] The Judge accepted the evidence of Mr Webb (one of the Council's expertarborist witnesses) that this Council's practice in tree maintenance and inspection wasconsistent with what he saw other local authorities do.58 Mr Webb had conceded incross-examination that he based his opinion on his limited knowledge of localauthorities. The Judge acknowledged Mr Webb's limitation but relied on it as the onlyevidence before him, albeit that it was limited.59[77] The Judge found that he had "no sound basis for determining what a reasonablelocal authority would have considered as full inspection, including how far it wouldconsider it ought to go to identify the presence or otherwise of white rot or to minimisethe risk of the tree falling."60[78] I consider there are two problems with the Judge's reasoning and finding onthe applicable standard of care.[79] First, the standard of care must be that of a reasonable council with a knownhazard or risk. Although the Judge was correct to define the standard of care as thatof a reasonable local authority in the Council's position in January 2014, he hasfocussed on whether the Council's approach to monitoring and inspection fell short of"typical local authority practice" and what a reasonable authority would consider as"full inspection."6156 Plaza, above n 2, at [63].57 At [64] onwards.58 At [69].59 At [90].60 At [67].61 At [67] and [91].[80] The standard of "a typical local authority" or a "reasonable Council" will onlybe relevant if those councils have the same or similar risks. The Judge failed to applythe standard of care required by a reasonable Council with these known risks, whichhe had identified at the outset. The Council's duty was to minimise or prevent damagefrom them.62[81] Second, the standard of care must be viewed objectively. In assessing theevidence on other authorities' practice, the Judge accepted the evidence of Mr Webb,who "attested in essence that what he experienced the Council was doing wasconsistent with what he saw other local authorities do."63 Mr Webb said that in hisexperience, visual assessments are most commonly relied on by councils for assessingthe large tree populations under their care, but acknowledged that he did not have afull understanding of the practices of all councils, only the ones he has worked with,in Auckland in particular.[82] There was no evidence that the other Councils referred to by Mr Webb had tomanage over-mature poplars, with known potential defects and risk. Although MrWebb said he was aware of poplar trees and their susceptibilities, he did not haveexperience of working with a Council with a known hazard or risk of decay in over-aged Lombardy poplars, as the Council was facing in this case.[83] The standard of care of reasonableness is an objective test. The test does notdepend on whether other local authorities are following an appropriate treemaintenance policy, which can be compared with this Council's, unless those localauthorities have similar known risks. Other local authorities may have treemaintenance programmes, which are not necessarily appropriate for managing hazardsor risks such as those associated with aged Lombardy poplars. Therefore, theirstandard is not the applicable standard of a reasonable local authority in this Council'sposition.[84] Having correctly defined the standard of care, the Judge failed to apply anobjective standard of reasonableness on this Council.62 At [56]. Also see [48] of this judgment.63 At [69].(c) Policy considerations[85] As part of the Judge's consideration of the broader policy issues in hisassessment of the standard of care required of the Council, he took into account theCouncil's financial constraints. The Judge did so, in the absence of any evidence thatthe Council had financial constraints in relation to the choices it made over themaintenance of the poplars in the Park.[86] The Judge specifically noted that the financial constraints within which "theCouncil would have to exercise its responsibilities" were another "unknown, buthighly relevant, dimension".64 He observed also, that the arborists' briefs were notinappropriately constrained.65[87] The Judge found that the evidence did not enable him to draw any conclusionson whether a reasonable local authority in the Council's position would apply a greaterproportion of financial resources to the care of the poplars in the Park. He said that he"could safely infer that a reasonable local authority in the Council's position, and withits knowledge, would have to factor in financial implications of the budgeting choicesit made."66[88] However, Mr Webb gave no evidence about budget or financial constraints.Nor was there sufficient evidence that the Council was constrained by financialconsiderations. In assessing policy considerations, I consider the Judge overstated thebudget considerations, when they had not been put in issue.[89] In the context of budget choices, the Judge again referred to the Tree Policy,which is one of the various "potentially relevant considerations" (together with theDistrict Plan).67 As noted at [68], the policy does not include or address any factorsrelating to the risk of Lombardy poplar trees in this district. Rather, it gives emphasisto heritage protection of trees generally.64 Plaza, above n 2, at [70].65 At [69].66 At [72].67 At [72].[90] The Judge has taken into account matters that were not put in issue by theCouncil, such as the financial implications of the budgeting choices the Council maymake. Nor was there evidence to support his inferences on financial constraints.Although resource constraints may be relevant to the nature of the duty of care,68 noissue was raised nor was there evidence presented for the Judge to take this intoaccount. The Judge has failed to take into account the more relevant policyconsideration as to whether it was fair, just and reasonable to impose a duty of care onthe Council, to prevent risk or damage, and manage the known risks of poplars on itsland.Conclusion[91] The Judge restricted the duty of care on the Council to a duty of care to inspectand maintain the trees in the Park. The Council is a landowner, with known hazards inthe Park, over which it has ownership and control. The duty of care on the Council isto take reasonable steps to prevent or minimise damage to proximate neighbours fromknown hazards on its land.[92] The Judge was correct to define the standard of care as that of a reasonablelocal authority in the Council's position in January 2014. However, the Judge failedto apply an objective standard of reasonableness, in finding that there was nocomparative evidence from other councils on tree inspection and maintenance, whichenabled him to make a finding on the reasonable steps this Council should have takenin these circumstances. Objectively, the standard of care on the Council is to take suchsteps, that a reasonable authority, with similar hazards, powers and resources, shouldhave taken in the circumstances.[93] Further, the Judge's policy focus was misplaced on budget constraints, whenthere was no issue raised or evidence to support such inferences. However, I considerthat it was fair, just and reasonable to impose a duty of care on the Council to preventrisk or damage from the hazard on its land.[94] Thus, the Judge erred in defining the duty, and he failed to apply an objective68 Tindall, above n 23, at [225]–[227].standard of care on the Council.Was there insufficient evidence to find the Council had breached the duty of careowed?[95] The Judge's conclusions on the applicable duty and standard of care led tofurther error in his analysis of the evidence on breach.[96] I considered referring this matter back to the District Court for rehearing.However, at the outset of this appeal, both parties were agreed that the factual issuesin this case were such that the lower Court's usual advantage in seeing and hearingwitnesses, to which deference should be paid, is not significant in this case. Theevidence was largely of an expert nature, not contentious and based on documentaryevidence.[97] I propose, therefore, to deal with the evidence on whether the Council hadbreached its duty of care to take reasonable steps to prevent or minimise risk, byconsidering the following factors:(a) the Judge's findings;(b) the parties' positions;(c) the law on breach of the duty of care;(d) the nature and foreseeability of the potential risk;(e) the evidential basis available for a breach finding on the corrected dutyof care;(f) the inconsistent findings made by the Judge;(g) the subsequent risk assessment approach;(h) the pleadings objection; and(i) findings on breach.The Judge's findings on breach[98] The Judge found that:(a) he had no sound basis for determining what a reasonable local authoritywould have considered was full inspection;(b) a reasonable local authority would have taken advice from appropriatearborists as the Council did here;(c) there was no evidence that the Council inappropriately constrained thebriefs of the arborist experts or the budgets they were to apply;(d) the evidence was insufficient and indeterminate as to whether the dutyobliged the Council to undertake internal or resistograph testing of thetrees after 2007. Nevertheless, the Judge confirmed that competentlyapplying these methods of testing, alongside a visual assessment intandem, is likely to reduce the risk of missing internal decay issues;(e) the evidence fell short of demonstrating that a reasonable localauthority in the Council's position would have gone further than theregular visual assessment testing and undertaken resistograph or similartesting;(f) although inspection of the Tree after it fell in 2014 revealed significantdecay in the basal area, the duty of care on the Council "is not to bedefined by what is learned in hindsight";69 and(g) the information provided to the Council, up until when the Tree fell in2014, was not such that a reasonable local authority should haveassumed that the Tree was afflicted or even likely afflicted with basal69 Plaza, above n 2, at [83].decay such that it needed to undertake more drastic measures.The parties' positions[99] Plaza submits it was a negligent omission on the part of the Council not toundertake internal inspections on the trees in the Park between 2007 and 2014. Theexperts had agreed that a visual assessment alone could not have located the rot andthe trees were known to be at high risk of basal decay because of the species' qualitiesand age.[100] Plaza submits that there was no dispute at trial that if a duty of care was foundto exist, and was breached, then the resulting harm from the Tree falling wasreasonably foreseeable.[101] The Council submits that since 2004, when a poplar tree fell in the Park, itregularly monitored these trees, engaged qualified arborists to carry out numerousinvestigations and report to the Council on the condition of the trees. On the adviceof arborists and in light of the poor state of some trees and the potential safety hazardthey posed, the Council has felled trees in the Park.[102] The Council points to the evidence at trial as demonstrating that it undertookreasonable monitoring, inspection and maintenance to reduce the risk that one of thetrees might fall. There was no evidence that a reasonable person, whether a localauthority or landowner, would have done anything more than the Council had done,which was to rely on its expert arborists to advise it on the state of the trees.[103] The Council submits negligence cannot be found on the evidence of Plaza'sexpert, Mr Roberts, who believed that internal testing ought to have been completedbetween 2007 and 2014. Even if more rigorous invasive testing was completed, therewas insufficient evidence to conclude that white rot would be found. The Tree thatfell presented outwardly as one of the healthier specimens.The law on breach of the duty of care[104] Once the duty of care is defined, there must be a breach of the duty to takereasonable care.[105] In Tindall, Winkelmann J held it was necessary to consider:70(a) the nature and foreseeability of the potential risk, danger or harm inquestion;(b) the probability of that harm eventuating; and(c) the expense and difficulty for a defendant in alleviating that harm.[106] In Tindall, the plaintiffs failed to prove that discharge from a treatment plantcaused contamination to their oyster farm and that the damage was reasonablyforeseeable.71 The Council had not breached its duty of care as the operator of thetreatment plant, as it had taken staged repairs to remedy defects in the sewagereticulation. Winkelmann J had regard to the limited resources available to the Counciland found that the Council proceeded properly, in light of those resources, to addressthe most pressing priorities as identified by consultants engaged.[107] In Easton Agriculture, Kós J also held that in determining whether a breachhas occurred, the standard of reasonable care and performance should "generallyreflect constraints the community itself has imposed on the Council in terms offunding".72[108] In Smallwoods, Thomas J held that in order to find a breach, the key questionto answer was whether the Council, as a landowner, acted reasonably in all thecircumstances by not taking active steps to remove or minimise the hazard on theCouncil land.73 The Judge said further:74[117] The plaintiffs must establish that a reasonable person in the Council'sposition could have foreseen this involved a risk of injury to the plaintiffs. Ifso, they must establish what a reasonable landowner would do by way of70 Tindall, above n 23, at [225], citing Wagon Mound Overseas Tankship (UK) Ltd v The MillerSteamship Co Pty Ltd (No 2) [1967] 1 AC 617 (HL).71 Tindall, above n 23.72 Easton Agriculture, above n 23, at [145].73 Smallwoods, above n 23, at [116].74 Footnote omitted.response to the risk. Relevant considerations include the magnitude of the risk,the probability of its occurrence, as well as the expense, difficulty andinconvenience of taking alleviating action.[109] In Smallwoods, Thomas J found the Gisborne District Council breached itsduty of care as a landowner because it was aware of its duty, knew that the hazard onits land was dangerous and damage was foreseeable due to the close proximity of thepublic, residential and commercial properties which bordered its land.[110] In Caminer v Northern & London Investment Trust Ltd, the House of Lordsheld that the duty of care of a reasonable landowner was not breached when thedefendants failed to call in an expert to advise as to the possible existence of anunsuspected and undiscoverable disease in an elm tree on their land that had fallen andinjured the plaintiffs.75 Even though an expert might have recommended topping andlopping the tree, which could have prevented it from falling, the evidence did notestablish that elm trees are "so plainly a danger" as to require pruning because to allexternal appearance the tree was sound and no expert inspection would haveconsidered it dangerous.76[111] Caminer was applied in New Zealand in Helson v Dear.77 In that case, Ellis Jfound that the duty of care of a reasonable landowner was not breached when two pinetrees on the defendant's property fell during high winds and damaged the plaintiffs'property. The Judge found it "would have been quite unreasonable" to require thedefendant to inspect her trees other than by observing their continued healthy state,unless something occurred to put her on guard.78 To expect the defendant to call inexperts would go far beyond what was required of an ordinary reasonable prudentlandowner, where the trees did not appear to be an immediate danger and had notcaused any problems.The nature and foreseeability of the potential risk[112] The Judge found it was foreseeable that the Tree in the Park was of a height75 Caminer, above n 26.76 At 99, 104 and 105–106.77 Helson v Dear HC Wellington CP536/86, 25 October 1988 at 11–12 and 16.78 At [6].and species that was at risk of disease and was capable of unexpectedly falling. Dueto the proximity of the Park to a populated area and the neighbouring properties onLake Esplanade, he found that the tree posed a threat to the motel.79The evidential basis for a breach finding[113] In reviewing the evidence on internal or resistograph testing, the Judge had nohesitation in finding that:80(a) there are limitations on the veracity of VTA testing in the absence ofassociated resistograph testing;(b) competently applying these methods in tandem is likely to reduce therisk of missing internal decay issues;(c) white rot is a result of fungal attack on those parts of the tree relied onfor structural strength and there is a high risk that such fungal attackswould occur through the roots of a poplar, particularly an aged one, asconfirmed by Dr Wakeling (the bioscience expert called by Plaza); and(d) an infection entering the tree from the roots of a poplar will travel up tothe basal area, as Mr Roberts said.[114] The Judge was satisfied on the evidence that the Tree was at the relevant timeat a greater risk of fungal attack of the type that it suffered. Nevertheless, he found itwas not sufficient for him to reach a "safe finding" that the Council breached its dutyof care to undertake internal or resistograph testing of trees after 2007.81 The Judgefound the expert evidence fell "well short" of supporting Plaza's submission that therewas evident or probable decay in the Tree that had been reported to the Council in2005 and 2007.82[115] The Judge then listed what was most strongly in favour of Plaza's case. He79 Plaza, above n 2, at [56].80 At [75].81 At [76].82 At [83].described the "consensus in the expert evidence" that the Tree, at the time it fell, wasof an age and in a locality that ought to have been considered to warrant close andregular scrutiny.83 The Judge then listed the various concessions which were made incross-examination by the Council's expert arborist, Mr Webb. These included thefollowing:84(a) The average target risk rating for the 2005 City Care report was 10 outof 12 (12 being the highest risk class available) prescribed to the treesin the Park (against the recognised ISA85 rating system) "and that oughtto raise alarm bells in the general sense, and was obviously high, andwas higher than what would normally be dealt with in a high[ly] usedpublic area".(b) There was a relevant pattern in the fact that of the four trees felled,following the recommendations in the City Care report, three were in agroup or a cluster. This was not coincidental and indicated somethingin the area could be making the trees more prone to deterioration.(c) Mr Webb acknowledged he would be concerned if, during the periodfrom 2007 to 2014, the Council did not follow the recommendations inthe City Care report and the 2007 Hort report to undertake stagedremoval and replacement of trees.[116] The evidence about the high hazard risk of the trees, the weaknesses in thepoplar species and the need for intensive monitoring was made known to the Councilafter 2005 in the reports of City Care (2005), Hort (2007), Asplundh in relation to treeson Lower Shotover Road (2009), and Buddinghtree also in relation to Lower ShotoverRoad (2009). A summary of those reports is set out at [13] to [28] above.[117] The Council was aware from as early as 2005 that the trees in the Park had alow to medium safe useful life expectancy and were susceptible to hollows and decaybecause of their age. Prior to the tree falling in 2014, the Council knew three previous83 Plaza, above n 2, at [77].84 At [77].85 International Society of Arboriculture.poplar trees had fallen in Queenstown, one in the Park and two on Lower ShotoverRoad. One of these incidents had caused damage to a car and one had killed a person.[118] Mr Mackinnon, the author of the City Care report, who had undertaken a PicusTomograph in 2005 on the Park trees after a tree-fall, gave evidence for the Council atthe hearing. He explained that when he recommended a full inspection by a qualifiedarborist, as well as more regular inspections by Park staff, he meant a visual inspection.However, he was unaware that his other recommendation, the phased felling, removaland replanting plan, had never been implemented.[119] Plaza adduced evidence at the trial from two experts, Mark Roberts, an arboristwith more than 25 years' experience and a former industry leader and trainer, and DrRobin Wakeling, also with more than 25 years' experience in the field and an expertin wood decay. Both experts gave evidence that it was not enough to monitor the treesbetween 2007 and 2014 by using visual assessment only, which was what the Councilinstructed its contracted arborists to do. Regular internal assessment was necessary tomonitor the possibility and progress of decay in old trees, known to be highlysusceptible to the type of decay that afflicted the Tree in question.[120] Although the Judge preferred the evidence of the Council's expert, Mr Webb,which is explored further below, the evidence of Plaza's experts was supported by theCity Care and Hort reports. Further, the Council was advised to institute a replantingprogramme in 2005, by City Care. This expert advice and recommendation by theCouncil's own Parks Manager was not followed.The inconsistent findings made by the Judge[121] In reviewing the Judge's findings in his decision and the evidence adduced atthe hearing, I consider the Judge erred by making inconsistent findings and findingsagainst the weight of evidence.[122] In the course of his review of the evidence on breach, the Judge considered"the nub of this matter" was whether a reasonable local authority in the Council'sposition, with the knowledge that the Tree at the relevant time was at a greater risk offungal attachment and white rot, would have gone further than regular VTA testing toundertake resistograph testing or something like it.86[123] In concluding that the evidence fell well short of establishing breach, the Judgemade findings which have a bearing on the evidence of breach of the reframed duty ofcare. There are five evidential findings which I will consider as follows:(a) reliance on one expert's interpretation of another expert's work;(b) the Council's visual assessments since 2007;(c) internal testing may not have been helpful;(d) the meaning of "dozy"; and(e) the relevance of the Lower Shotover Road tests.(a) Reliance on one expert's interpretation of another expert's work[124] Although the Judge specifically warned against an expert interpreting anotherexpert's work,87 he relied on the evidence of one expert doing just that. The author ofthe Hort report, Mr Wanhill, was not called by either party. Both Mr Roberts and MrWebb gave evidence on the report's findings. During the re-examination of Mr Webbby Mr Whittington, the Judge interpolated:I think the point is very clear to me at the moment that it is important theperson that did the work to understand and interpret it because there are pointsof interpretation that relate to context [125] In his judgment, the Judge reconfirmed the dangers of one expert interpretinganother expert's work:88 there are clear dangers in relying on even an expert's interpretation of suchinformation and reports prepared by other experts so many years ago.[126] The Judge preferred Mr Webb's interpretation of the Hort report over MrRoberts', despite the fact that neither had written the report and were both interpretinganother expert's work. Mr Webb also candidly accepted he was not certain about the86 Plaza, above n 2, at [80].87 At [82].88 At [82].depiction of the data in the resistograph readings in the report. These are examples ofMr Webb's uncertainty: I looking at that, again wouldn't be certain that it was in fact decay, as thegraph line is increasing fairly consistently from the point that it encountersthe young wood.I'm not entirely sure what the different colours are I think that it's theinterpretation of the data and it's been used to highlight the zones [127] Mr Roberts gave evidence about the 2005 City Care report, which "talks abouta purple hue which could be a flute".89 He said this was an acknowledgement in hisview there was some form of decay in the Tree. This was picked up by the resistographused two years later for the Hort report, which recorded that the Tree had soft/dozywood.[128] The Judge discounted Mr Roberts' evidence on the purple flute "and dozywood", because Mr Roberts was interpreting another expert's work. He said Plazawas not in a position to assert "flute" meant decay, not having cross-examined on thepoint.90 Instead, he preferred Mr Webb's explanation of the Hort report to show thatMr Robert's interpretation could not be relied on.91[129] The Judge's preference for Mr Webb's evidence and the weight given to it isproblematic and in conflict with the Judge's finding, that "there are clear dangers inrelying on even an expert's interpretation" of another's work, prepared "so many yearsago."92(b) The Council's visual assessments since 2007[130] The Judge found that there was evidence that the Council did have a reasonableprogramme of assessments in place, consisting of visual tree assessments. However,the Judge did not canvass the number of inspections and what they covered.89 The City Care report described the Tree as having a "small area of purple shown on the tomograph"which was "most likely due to the presence of a deep flute". "Flute" is not defined.90 Mr Mackinnon was the author of the City Care report and was called by the Council.91 Plaza, above n 2, at [82].92 At [82].[131] The evidence in relation to the Council inspections consisted of amemorandum from the Park's Technical Officer dated 27 January 2014. Thememorandum briefly described the maintenance and inspections undertaken between2008 and 2013.93 There was no evidence recording the nature of the visual inspectionsand the findings, except for the inspection record in 2010. Although the memorandumlisted maintenance inspections, there is no record of what was done or any evidencethat assessments of the individual trees were recorded in a way that could be providedto the Council or checked by arborists conducting subsequent assessments.(c) Internal testing may not have been helpful[132] The Judge found that resistograph testing "could well have not shown anythingof material worth."94 This finding is at odds with the evidence.[133] The Judge accepted Dr Wakeling's evidence that a tree structurally at risk fromdecay does not necessarily exhibit clear signs of a lack of health, that would be pickedup using a visual assessment method.95 The Judge accepted it to be the case and thatno expert disagreed with that view.[134] However, having made that finding, the Judge then accepted the opinions ofthe Council arborist witnesses, Mr Webb and Mr Earp, who said that external treehealth is an important indicator of internal health. He preferred those opinions becausethey were practising arborists, over the evidence of Dr Wakeling, who was an expertin the bio-science of fungal infections in wood.[135] The Judge's preference for the Council's arborists' evidence on the lack ofvisibility of internal decay conflicts with his adoption of Dr Wakeling's evidence andMr Earp's findings on his inspection of the fallen Tree. The Judge had alreadyaccepted that older poplars are prone to fungal infections like white rot, as aconsequence of a fungal attack on a tree.93 These inspections of the Park's trees were undertaken after the 2005 City Care report and 2007Hort report.94 Plaza, above n 2, at [86].95 At [87].[136] Early in his judgment, the Judge had referred to the findings of Mr Earp's report– the Greenscene report – on the inspection of the fallen Tree. The Judge there notedthat the Tree had no obvious outward signs to suggest the presence of decay.96 Therelevant paragraphs of the Greenscene report were:975.8 An inspection of the trunk flares of the subject tree revealed internaldecay present within the specimen. However, at the time of thepost-failure inspection, of the area immediately accessible for visualinspection, there were little or no obvious outward signs to suggest thepresence of significant internal decay or a compromised base. No signof fungal fruiting bodies on the external portions of the trunk wereimmediately visible at the time of post-failure visual inspection.5.9 Lombardy poplars are fast growing, short lived trees and it is notuncommon for decay to be present within the base of a trunk. Giventhere were no significant outwardly visible signs of ill health, in orderto ascertain the presence of extensive internal decay, it would havebeen necessary to undertake an internal decay detecting assessment(i.e. through resistograph tests).[137] Those comments are consistent with Dr Wakeling's and Mr Roberts' evidencethat internal decay in these poplars is not identifiable from an external inspection orVTA.[138] Despite the VTA inspections by the Council, no outward appearance of ill-health of the Tree was detected. The VTA inspections, without more, were inadequateto detect decay, as the Judge had accepted from Dr Wakeling. Dr Wakeling gaveevidence that given the extensive nature of the white rot decay found in the fracture ofthe Tree, it would have been detected by competent resistograph testing. Logically,the omission to undertake further tests on the trees in the Park from 2007 to 2014 suchas the sounding hammer tests, resistograph tests or the picus tomograph test, meantthe risk of decay would be undetected.[139] By 2007, resistograph testing by Hort had already identified decayed and dozywood in the Park's trees, including "soft/dozy wood" and/or "young wood/dozy" inthe Tree.98 However, this proved to be another contentious issue in the hearing, withthe Judge finding that the reference to "soft/dozy wood" in the Tree, in the Hort report96 At [35]. See also [28] of this judgment.97 Emphasis added.98 A copy of the Tree's resistograph reading from the Hort report is annexed as an Appendix.was a reference to young wood, not soft or incipient decay.(d) The meaning of "dozy"[140] Resistograph findings in the Hort report identified "soft/dozy wood" between4.0 cm and 7.5 cm99 into the Tree, and "young wood/dozy" from 4.0 cm to 7.5 cm.From 7.5 cm to 28.5 cm, the Tree appeared sound.[141] The Hort report summarised the condition of the 23 trees in the Park. The Treeis reported as in "good condition, monitor tree annually". The same comment wasmade on 15 other trees in the Park. The report concluded that out of a total of 23 treesin the Park, "the presence of decay was such that no trees were recommended forremoval." He further recommended:100At the St Omer Park site, a total of 23 Lombardy Poplar[s] and one GreyPoplar be monitored by a suitably experienced and qualified arborist on anannual basis to detect further signs of decay and/or decline.[142] In that report, the author, Mr Wanhill, described the resistograph as:an excellent tool used to gain an internal view of tree trunks and roots. It wasdesigned to accurately detect decay and defects in trees and wood structures. The resistograph measures the varying resistance of the wood as the drillbit passes [through] it. The resulting graph provides a visual record of theinternal condition of the tree.[143] Mr Roberts and Dr Wakeling for Plaza, both gave evidence that the referenceto "dozy" wood in the Hort report indicated decay. Both witnesses were familiar withthe term "dozy wood". Dr Wakeling described "dozy" as soft decayed wood andpointed to the pockets of decay that were present at several locations inside the Tree.Mr Roberts gave evidence that decay was confirmed or highlighted in 2005 and thenagain in 2007. This is consistent with the definition of "dozy" in dictionaries, referredto above.101[144] "Dozy wood" was not a term that Mr Webb had come across before and nor99 Although the "comment" records soft/dozy wood being found between 4.00 centimetres and 8.5centimetres, the assessment graph records young wood/dozy from 4.00 centimetres to 7.5centimetres.100 Emphasis added.101 At [20] of this judgment.was it a term that is commonly used. Nevertheless, he gave evidence that heunderstood that it meant the early stages of decay. However, as it was used in theTree's resistograph reading he said it described "the amplitude" of the wood, ratherthan decay. Mr Webb did not explain what he meant by "amplitude of the wood"."Amplitude" was not defined.[145] Although the Judge had the benefit of hearing and seeing the witnesses, heaccepted Mr Webb's evidence on his interpretation of "dozy". This is despite MrWebb's ignorance of the term and his uncertainty of the graph depictions in the Hortreport, and the evidence of Mr Roberts and Dr Wakeling.[146] If the Judge was in doubt about whether "dozy" meant young, or decayedwood, or young decayed wood, the Hort report identified the purpose of resistographtesting, namely, to detect decay and defects in trees. It identified "dozy" wood in theresistograph readings, where it was detected and its location in each of the trees. Thedescriptions of wood and their conditions were "sapwood/bark"; "soft/dozy wood";"young wood/dozy"; "decay"; "dozy"; and "appears sound". The different colours onthe graphs illustrated the different states of the wood as they were identified in 2007.[147] Importantly, the Hort report recommended that the trees in the Park bemonitored to detect further signs of decay. This clearly signalled that decay wasalready evident and monitoring should be focussed on detection of increased decayand risk assessment, not maintenance and inspection only.[148] I consider that the reference to "dozy" is likely to indicate, as the Plaza expertssaid, that "dozy" in the context of the resistographs means the early stages of decay.(e) The relevance of the Lower Shotover Road tests[149] The Judge made a specific finding that the resistograph testing undertaken onthe trees in Lower Shotover Road in 2009 did not demonstrate that the Council fellshort of its duty of care in relation to its inspection and maintenance of trees at thePark. His reasons were that the Lower Shotover Road trees were subject to"potentially very different environmental conditions", for instance in regard to cattlegrazing and other factors.102 In cross-examination by Plaza, Mr Webb agreed it was adifferent set of circumstances. The Judge found there was no safe basis for drawingany conclusions based on comparisons with that site or any other sites.[150] At the commencement of his judgment, the Judge provided a summary of thereports into the trees on Lower Shotover Road. He detailed the events in 2009,following the fall of the first mature Lombardy poplar on Lower Shotover Road. BothAsplundh and Buddinghtree completed VTA inspections of the trees on LowerShotover Road.103[151] Buddinghtree then undertook digital probing tests of the Lower Shotover Roadtrees. The Judge described these results as "significantly different" from the initialVTA test.104 The digital test revealed that all trees initially "presumed hollow" werehollow; all the trees that were presumed "suspect" were affected by decay and theirstability was compromised due to soft wood and minor cavities.105 Most of the treesthat were initially "presumed okay" were found to contain soft wood, "potentiallysignalling fungal infection and actually being in the suspect" category.106 Only threeof the trees were sound. The remaining were deemed unsafe and required removal.[152] The inspections and reports on the Lower Shotover Road trees provided theCouncil in 2009 with a further source of information on the risk associated with thehealth and age of Lombardy poplar trees. The Judge noted the Asplundh observationthat the "poplar trees' health and longevity is generally short and at this grand age theyare generally in decline",107 but overlooked the relevance of the difference in testingmethods.[153] The internal testing of these Lombardy poplar trees had accurately informedthe Council of the state of the structural health of the trees in Lower Shotover Road,whereas VTA, even with a sounding hammer, fell short of apprising the Council oftheir real risk. This demonstrated the value and accuracy of internal testing, which102 Plaza, above n 2, at [88].103 The summary of the Asplundh and Buddinghtree reports is at [21]–[25] of this judgment.104 Plaza, above n 2, at [26].105 At [26(b)].106 At [26(b)].107 At [22].was directly relevant to the Council's consideration of the risks posed by the Park'strees. They too were aged, showing signs of decay and/or decline, and were the samespecies. The Judge overlooked the relevance of the different results from VTA andinternal testing and the probative value of the latter.The subsequent risk assessment approach[154] The Council's knowledge and the foreseeability of proximate harm must beassessed at the time of the Tree-fall in 2014. Nevertheless, the appropriate approachto the management of the risk was demonstrated by the Council after the Tree-fall andprovides support for my findings, that the Council had to manage its risk.[155] In 2016, the Council instructed Arborlab Consultancy Services Limited(Arborlab) to undertake an arboricultural risk assessment of the Park's poplars. As aresult of the Tree-fall in 2014, the remaining trees in the Park were inspected byArborlab leading to further removals of the poplars. Further, Arborlab recommendedthe remaining poplars be assessed on an annual basis with visual observations beingrecorded during the site visit.[156] Sixteen of the remaining trees were heavily reduced, as branches were removedand the height of the trees were lowered. Because two trees had uncertain internalwood quality, further investigative techniques, such as sonic tomography orresistograph measurements, were recommended. In addition to the VTA method ofassessment, the risk posed by each tree in the Park was assessed using the quantifiedtree risk assessment method, in which the trees annual risk of harm was rated.[157] The specific recommendation and management options proffered to theCouncil was that the remaining trees in the Park should be re-inspected on an annualbasis by a suitably trained and qualified arborist. Such inspection should includedetails of any change to the group dynamics of the trees, including any signs of failure,and a risk analysis should be undertaken.[158] As a result of the 2016 risk assessment, the removal and reduction of severaltrees occurred, because the arborists were advised to look for signs of failure. Thiswas a different focus to one of maintenance and inspection previously adopted. In thethree VTA inspections undertaken by the Council from 2007 to 2014, there is noevidence to show that risk assessment or proactive risk management of the trees wasundertaken.[159] When the Council undertook a risk assessment in 2016, the resulting work onits trees demonstrates the difference in approach from inspection and maintenance tomanaging the known risks of those aged poplars.The pleadings objection[160] There is one further matter, which was raised in argument at trial and on appeal,which I address for completeness. That is the pleadings objection and discovery issueon the recommended phased felling maintenance programme.[161] There was no disclosure of documents or evidence as to why the Council didnot implement a phased-felling programme of the poplars. This led to a pleading'sobjection during the trial.[162] In response to Plaza's allegations that the Council failed to implement aphased-felling regime and failed to properly instruct its expert arborists, the Councilsays that these allegations were not pleaded and nor were they the subject of discoveryor evidence. For those reasons, the Council submits, the Judge rightly ruled that Plazacould not rely on them.[163] Because Plaza did not plead that the Council was in breach by failing toimplement phased tree felling, the Council did not disclose its reasons for notaccepting the Parks Manager's recommendations or adopting an alternative plan. TheJudge was critical of Plaza's pleadings. He found that in the absence of a pleadingthat a phased felling programme should have been undertaken, Plaza could not rely onthe Council's omission to implement such a plan.[164] Plaza had pleaded however, that the Council had failed to "take all reasonablenecessary precautions to minimise the risk of the tree falling".108108 Plaza, above n 2, at [42].[165] At the hearing before me, I asked why the Council had not disclosed itsresponse to the recommendation from Council staff and contracted arborists toimplement a phased felling programme. Counsel responded that there was noreference in the pleadings to the Council failing to institute a phased felling plan overa reasonable period of time and tailored discovery did not require further disclosure ofdocuments. If that had been pleaded, then the Council would have obtained documentsabout decisions it had made about the phased-felling plan.[166] On that basis, the Council was asked to identify all the relevant documents inlight of the pleadings as they were.[167] Tailored discovery does not mean that relevant documents are not disclosed,because the specific detail of what the Council might have done to manage its risk isnot pleaded as a particular. The Council's response to their experts over the previousyears is highly relevant to what steps the Council took to prevent or minimise the riskof its trees causing harm. Those documents could have assisted the Court, both at firstinstance and on appeal. In a negligence case such as this, the actions of the Councilin response to expert advice is highly relevant to the Court's assessment, as a meansof assessing the Council's reasonableness in responding to its known risk.Findings on breach[168] I find that annual monitoring of the trees to detect decay, including internaltesting from time to time, was required to satisfy the Council's duty of care as alandowner with a known hazard on its land. The Council had an example of thesignificant difference between VTA testing and digital testing on poplars of the sameage and species. Although the trees were in a different location, the reliability of suchtesting was demonstrated.[169] There is sufficient evidence to conclude the Council breached its duty of careby failing to prevent or mitigate damage occurring to Plaza from the known hazardsof its veteran Lombardy poplar trees.[170] The evidence included the following:(a) Lombardy poplars have a lifespan of 50-70 years and those over 80years are prone to disease and rot.(b) The Council knew the Park's Lombardy poplars, being over 100 yearsold, are prone to basal decay, which weakens their structure and makesthem vulnerable to tree-fall in stormy and windy conditions.(c) Some of the Park poplars were subject to various states of decay.(d) Three aged Lombardy poplars, one of them in the Park, had fallenpreviously, causing damage and a fatality respectively.(e) Decay in Lombardy poplars is often hidden and is not detected by visualexaminations only.(f) The Council received expert reports after internal testing methods wereused:(i) in 2005 – recommending a phased-felling and replanting of thepoplar trees in the Park and Speargrass Flat Road. Regularinspections ever six to nine weeks and arborist inspection every12 to 18 months;(ii) in 2007 – recommending the Park trees be monitored on anannual basis to detect further signs of decay and/or decline andidentified trees with signs of incipient decay or actual decay;and(iii) in 2009 – recommending removal and a succession plan for theLower Shotover Road trees, because of the extent of decay.(g) The Council did not undertake further internal testing on, or phasedfelling of, the trees in the Park after 2007.(h) The Council knew there was a substantial difference in the results fromVTA tests compared to internal testing, from the results of tests on theCouncil's poplar trees in Lower Shotover Road.(i) It was a reasonably foreseeable risk that:(i) an aged Lombardy poplar in the Park could fall if afflicted withdecay, in adverse weather conditions; and(ii) if the Tree fell, it would likely cause substantial damage toproximate neighbouring properties, including Plaza.(j) There was insufficient evidence of a financial impediment to theCouncil undertaking internal tests on the Park's trees and the Tree atregular intervals from 2007 to 2014.Conclusion[171] In summary, the Council knew that the aged Lombardy poplar trees were a riskand posed a hazard. Prior to 2014, three trees had fallen, causing extensive damageand a fatality. The Council received expert reports, all recommending steps which theCouncil could take to mitigate the risks of retaining the aged Lombardy poplar trees,including in the Park. The Council took the step of resistograph testing in 2007,following the recommendation of the City Care Report in 2005. The Council took nofurther steps in relation to the Lombardy poplars in the Park from 2007 to 2014, apartfrom visual inspection and maintenance.[172] The Council has failed to undertake internal testing, when it had the knowledgethat such testing would identify the Tree's extent of decay. It did not undertake aphased felling programme as recommended. Overall, the Council failed to take a riskassessment approach to managing its hazardous trees. By its negligent omission, theCouncil has breached its duty of care to Plaza, by failing to take reasonable steps toprevent damage or mitigate risk of a known hazard on its land.Was there a causal link between the Council's breach of duty and the damagecaused to Plaza's property?[173] The Judge recorded the Council's acceptance that, in the high winds thatoccurred at the time, white rot was a causative factor of the Tree falling.109[174] Because the Judge found that the Council did not owe Plaza a duty of care toundertake internal or resistograph testing of trees after 2007 and that the Council actedas a reasonable local authority, he did not determine the issue of causation. The Judgeaccepted that the resistograph testing may well have proven helpful between 2007 and2014, "but it could well have not shown anything of material worth."110 He concludedthat "even if Resistograph testing was done, there is no assurance that issues wouldhave been detected."111[175] The Council submits that, even if the Council were found to have breached aduty of care to Plaza, there is no basis upon which a Court could reach a finding ofcausation, even if more rigorous invasive testing was completed. The Council saysthere is a lack of evidence to conclude that white rot could have been found in thisparticular Tree, which ultimately caused the damage.The law on causation[176] A defendant will only be liable in negligence if their act or omission causesdamage to the plaintiff. In Easton Agriculture, while Kós J found the Council hadbreached its duty of care, the Council was not liable, as the plaintiffs could not provecausation.112[177] Thomas J observed in Smallwoods that the loss or damage caused must not betoo remote to bar recovery.113 The loss that occurred must have been foreseeable tothe defendant, although there is no requirement that the defendant foresees the fullamount or extent of that damage. There, the Council had previously recognised therisk of fire spreading from the pampas grass to land adjacent to that of the Council,109 Plaza, above n 2, at [40].110 At [86].111 At [92].112 Easton Agriculture, above n 23.113 Smallwoods, above n 23, at [127].even if the damage caused was greater than anticipated. Further, the Judge held theCouncil's negligence was a material cause leading to the plaintiffs' loss: it was morelikely than not that, had the pampas grass been removed, the plaintiffs' losses wouldhave been avoided.[178] As is evident from the two cases described above, the law of causation involvesa two-stage analysis.114 First, the plaintiff must show that the negligent act or omissionwas a factual cause of the loss or damage they suffered. The plaintiff has to prove, onthe balance of probabilities, that but for the negligent act or omissions, the plaintiffwould not have suffered the loss or damage (the "but for" test). Second, the plaintiffmust show that the type of loss or damage was reasonably foreseeable.Discussion[179] I consider that the Council's omission to minimise risk or harm, by undertakinginternal testing of the Park trees or a phased felling programme, was causative of thedamage to Plaza. There is no genuine question on the second stage of causation in thiscase. A tree falling onto a neighbouring property, causing property damage, wascertainly a reasonably foreseeable type of damage that could have resulted from failingto minimise the risk posed by the trees in a populated area. The Judge accepted theTree's height, age, susceptibility to disease, location in an exposed environment andproximity to Plaza's property "overwhelmingly" established that it posed a threat tothe motel.115[180] It is not necessary for the appellant to prove that the Council could reasonablyforesee that this particular Tree would fall onto Plaza's property. As McMullin J notedin Attorney-General v Geothermal Produce NZ Ltd, an "injury will be foreseeable ifthe possibility of that kind of injury was foreseeable; not necessarily the specific injuryitself."116[181] The more testing question is whether there was factual causation under the firststage of causation analysis. This assessment is concerned with the events as they114 Easton Agriculture, above n 23, at [195]; and Smallwoods, above n 23, at [125]–[128].115 Plaza, above n 2, at [56].116 Attorney-General v Geothermal Produce NZ Ltd [1987] 2 NZLR 348 (CA) at 359.actually occurred. The assessment takes place in the present, with all the knowledgeacquired during and after the event resulting in damage or loss. For that reason, Plazaneeds to show on the balance of probabilities that, if the Council had fulfilled its duty,then this Tree would not have fallen over and caused damage to Plaza's property.117[182] In the Australian case of Babbage v Dungog Shire Council, a roadside tree wasuprooted in a windstorm and lay across the road, resulting in a car crash.118 Theplaintiff claimed that the Council was under a duty of care to "institute and maintainan appropriate system to protect its roads from dangerous trees growing in theirverges".119 After the crash, the tree in question, a eucalyptus, was found to have beenin poor health, with a damaged root system, making it susceptible to falling over.120The poor condition of the tree was visible from the road. Burchett AJ in the NewSouth Wales Supreme Court found that the Council had breached its duty of care byfailing to take any steps in relation to a tree that showed obvious signs of danger, aswell as failing to institute a system of inspections.121 The Judge found causation wasproved, because the tree would likely have been removed prior to the accident, if theCouncil had carried out its duty of inspecting and responding to dangerous trees.122[183] Here, the Council was advised of internal testing methods of Picus Tomographand resistograph, both of which are specifically designed to locate signs of internaldecay. The Council knew of the risks of aged poplars from the reports in 2005, 2007and 2009. But the Council conducted only visual inspections of, and maintenance on,the Park trees from 2007 to 2014.123 The Council did not follow the advice of the Hortreport between 2007 and 2014, by monitoring the Park's trees, including the Tree, todetect further decay or decline.[184] The Council did not provide any explanation for its rejection of the 2005 CityCare recommendation that suggested felling and tree replacement, which its Parks117 Easton Agriculture, above n 23, at [195], citing Accident Compensation Corp v Ambros [2007NZCA 304, [2008] 1 NZLR 340 at [70].118 Babbage v Dungog Shire Council [2002] NSWSC 536.119 At [2].120 At [5].121 At [19].122 At [19].123 In Babbage, visual inspection would have been sufficient to reveal the poor condition of theeucalyptus.Manager recommended.[185] Although the Judge did not deal with causation, he made a finding that therewas nothing of concern about this Tree that was brought to the Council's attentionbefore 2014. The Judge focussed on the issue of VTA being sufficient for the Tree.He referred to "many variables" as to why such internal testing would not necessarilyhave detected the decay, including the choice of location and angle for testing in thetrees.124[186] The Judge accepted Mr Webb's evidence that a choice of location for testingwould have to be further up the trunk, even if the source of fungal infection was mostlikely through the roots. The Judge also accepted that a sensible range of testing wouldhave been in the basal area of the tree, but concluded there was still "a high chancethat any testing would not target any problem area."125[187] It is difficult to understand how the Judge reached that conclusion. Mr Robertsgave evidence explaining that the resistograph readings were taken at breast height inthe trees, because in poplar species fungus spreads on the vertical column. So if decaywas detected at breast height, then it would most likely extend both upwards anddownwards. Because the trees have issues with roots, Mr Roberts said his go-to pointfor testing would have been the roots and he "would have assumed that the infectioncame in through the roots and spread upwards."[188] In his cross-examination, Mr Webb opined that because the angle of the needlewas not recorded, it would be "hit and miss" whether decay would be encountered atthe angle the drill went in. The Judge accepted Mr Webb's evidence that there is achance that the presence of decay would be missed, even if resistograph testing orother methods of mechanical intrusive testing were undertaken. The followingevidence indicates that the angle of testing was not problematic because:(a) Mr Webb agreed that one drill test "seemingly randomly doesn't giveanywhere near enough information" and would recommend more than124 Plaza, above n 2, at [84].125 At [85].one. There was no evidence about more than one drill test site on theTree, but it was clearly an option.(b) The data provided from the Hort report does give the direction of thedrill, which is marked on the resistograph for the Tree as beingsouthwest at a level (height) of 50 cm and the drilling depth of28.61 cm.(c) The Picus Tomograph undertaken by City Care, described the workmethod, including the selected area for testing, being below 2 m in allcases, as this is the area considered most likely to fail. The resultantTomograph, using a series of sonic senses, provides a clear and preciseindication as to the extent of any damage within the stem at the testlocation.(d) Both the 2005 City Care report and the Hort Report specify where thetests were taken in respect of each tree, including the Tree.(e) The City Care report also specifies the height above the ground andhighlights the presence of a deep flute within the Tomograph recordingfor the Tree.(f) The angle of testing was not a concern in carrying out resistographtesting in Lower Shotover Road.[189] I consider it is more likely than not, that if the Council had carried out furtherinternal testing with a view to minimising the risk from its hazard, decay would likelyhave been discovered in the Tree. Internal testing is designed to locate areas of decay,hollows and other structural integrity issues. Although it is by no means an absolutecertainty that decay would have been found in this particular Tree prior to 2014, giventhat the decay in the Tree was there for some years, it is likely, on the balance ofprobabilities, that such monitoring by internal tests would have revealed that this Treewas in significant decline.[190] It is apparent from the two photographs of the Tree below, after it fell in 2014,that there was a significant amount of rotten wood in the base of the Tree trunk. Itbecame hollow and snapped off at its base.126 As Greenscene reported, given therewere no significant outwardly visible signs of ill health in the Tree, to ascertain thepresence of internal decay "it would have been necessary to undertake an internaldecay detecting assessment (i.e. through resistograph tests.)" Had the Tree beeninternally tested, I consider such significant rot would likely have been found and theTree would have been removed.St Omer Park Poplar TreeThe base of the Tree showing white rot126 The two photographs were taken of the Tree shortly after its fall, demonstrating the way the Treefell and the extent of white rot at its base.[191] I am satisfied on the balance of probabilities that, but for the Council'somission to take the recommended steps of monitoring its aged poplar trees for decayor decline since 2007, the Tree's fall could have been prevented.[192] The Judge accepted that a tree at risk structurally from decay does notnecessarily exhibit clear signs of lack of health as would be picked up by VTA and thetrees were known to be at high risk of internal decay. An initial VTA with hammertesting (as Buddinghtree undertook on Lower Shotover Road in 2009) could havedetected hollowness. Follow-up internal testing undertaken on the trees would likelyhave shown signs of further decay, as the 2009 internal tests on Lower Shotover Roadrevealed.[193] I find that if the Council had met its duty of care, to take reasonable steps toprevent or minimise risk from the known hazards of the Tree, the Tree's decay wouldmost likely have been detected and its fall prevented.Conclusion[194] In summary:(a) the Judge erred by restricting the scope of the duty of care owed by theCouncil to one of inspecting and maintaining its trees. The duty of careon the Council was to take reasonable steps to prevent or minimiseknown hazards on its land from causing damage to its proximateneighbours;(b) the Judge erred in failing to apply an objective test to the standard ofcare on the Council. The standard is to take such steps as are reasonablefor a local authority with similar hazards, powers and resources;(c) it was reasonably foreseeable that internal decay was a major risk forthe over-mature poplars in St Omer Park and that the probability of oneor more of these trees falling, including this Tree, from theircompromised structure, was more likely than not to occur within theforeseeable future, causing damage to the neighbouring property;(d) there is sufficient evidence, on the balance of probabilities, to find theCouncil had breached its duty of care as set out in (a) above; and(e) there was a causal link between the Council's breach of duty and thedamage caused to Plaza's property.[195] The Council is liable in negligence for the sum required to repair Plaza'sproperty.Result[196] The appeal is allowed.[197] 2B costs, together with disbursements as approved by the Registrar, areawarded to the appellant.Cull JSolicitors:Kennedys, AucklandMeredith Connell, WellingtonAPPENDIX