(a) Provide a summary account of the original proceedings brought by Kerry Rhode

s together with the decision of the primary judge and the case’s progression to th
e New South Wales Court of Appeal.
Kerry Rhodes sued the Lake Macquarie City Council and NSW Land and Housing Corpo
ration for negligence and breach of statutory duty. The original proceedings wer
e noted against the Housing Corporation - for failure to conduct sufficient insp
ection of the tree and against the Housing Corporation - for failure to protect
the plaintiff, failure to remove the tree and failure to retain a qualified arbo
rist.
The initial proceeding was based on breach of statutory duty and it is applied i
n addition to the sect 44 – the Civil Liability Act 2002.
The findings of the primary judge -
• The council failed to conduct sufficient inspection of the tree and the judge fo
und the Housing Corporation failed to protect the plaintiff who was in danger of
getting injured from the falling branches of the tree located at 12 Merriwa St,
Booragul in NSW.
• The primary judge found the Housing Corporation failed to remove the tree which
was located in the position where it had falling deadwood and debris, and deadwo
od branches were causing serious injuries to people.
Decision of the primary judge
• Primary judge agreed that the appellant was injured by something but could not f
ind if it was timber or deadwood.
• Against the Council, primary judge accepted the oral evidence of Mr Kemananta wh
o inspected the tree in April 2005 and found the tree was dropping leaves.
• The primary judge agreed to the claims against the Housing Corporation and was s
atisfied that the tree was not pruned properly in June 2005.
The appellant issued amended notice for appeal, in which, it was mentioned the t
rial judge failed to apply section 5 B and Civil Liability Act 2002.

(b)
Outline the relevant incidents and material facts underlying the proceedings and
how the Housing Corporation and Council managed the tree issue, with reference
to the Council’s Development Control
Plan No. 43 (DCP 43)
The relevant incidents and facts in the underlying proceedings are -
The appellant was living since 1997 in the house which was owned by Housing Corp
oration and the gum tree was located on the neighbouring property.
In 1997, the appellant’s daughter was stuck by branch from the tree while walking
with her into the car and the appellant telephoned the Department of Housing abo
ut the incident.
The appellant telephoned several times between 2000 and 24 December 2005 about t
he tree and the falling debris, and the tree was trimmed many times between 2002
and 2005.
In 2004, the appellant’s window was broken by the falling branch and on 28 Februar
y 2005, the Housing Corporation wrote an application to the Council to get permi
ssion to remove the tree.
On 18 April 2005, Mr. Khemananta inspected the tree and found the removal of tre
e would be inconsistent with Council’s Development Control Plan No. 43 – Tree Manage
ment.
• Control Plan No. 43 – Tree Management is about minimizing injury and destruction o
f trees. For removal of tree the structural soundness of tree, history of tree,
ground condition and related hazards are examined.
• The Council favours tree retention – including the trees which drop deadwood and d
ead branches.
• In the proceedings, oral evidence of Mr Khemananta was taken as evidence and it
was observed Mr Khemananta’s assessment on the condition of the tree was correct.
• Mr. Drapers report supported Mr Khemananta’s assessment, although, the report does
not include the broader social implication which is outside his area of experti
se.
The Housing Corporation was negligent but it did not find the tree was causing a
ny substantial injury to the appellant. It is observed the tree did not pose any
substantial risks to people but in the above case the Housing Council did a bre
ach by not informing the Council about the history of the tree provided by the a
ppellant and Mrs. Mason.

Part C What is the ratio decidendi of this case? That is, the proposition of law
or legal principle for which this case - Rhodes v Lake Macquarie City Council &
Another [2010] NSWCA 235 - is authoritative, underpinning the concluding Order(
s) of the NSW Court of Appeal.
The ratio decidendi of this case is s 43 of Civil Liability Act and it is used t
o avoid liability claimed by the plaintiff, who was injured by a branch falling
from the tree.
The primary judge accepted the arguments of the plaintiff that the tree posed da
ngers from twigs or branches falling from it but it is not considered to be sign
ificant danger and the tree is found it be a healthy tree which did not pose so
much risk that it would have been removed. The two important findings of primary
judge are-
• The Council adopted DCP 43
• Mr. Khemananta did not authorize for the removal of tree
The proposition of law - 43 and 43 A of Civil Liability Act was used to defend t
he Council in the Court of Appeal and the case is authoritative for the followin
g–
• The judge found the Housing Corporation acted negligently but the negligence was
not the reason for plaintiff’s injuries.
• The judge found within ss 43 and 43 A, the Council had not acted in the way whic
h could be considered to be unreasonable exercise of power or function.
In the concluding orders of the NSW Court of Appeal, the judge agreed the Housin
g Corporation could not be held for negligence and the council did not make any
mistake in taking the decision of not removing the tree, hence the appeal was di
smissed.
The concluding orders are based on the following -
• The decision is based on facts.
• It provides an example showing how difficult it is to succeed in the claim for n
egligence against public authority.
• The decision shows the plaintiff should establish causation to succeed in the cl
aim of negligence.