A volunteer tree-trimmer has held a $250,000 damages verdict after the homeowner he offered to help failed to convince an appellate court that no duty of care was owed because the assistance given was unpaid.
In February 2008, 44 yr old Troy Brooks agreed over dinner to help his friend Trevor Burton to chainsaw tree limbs the following day at Burton’s home. While cutting branches overhanging from a neighbour’s mulberry tree, they attempted to lop a bough just out of reach. Burton asked Brooks to pull the partly-cut limb so he could reach it better with the saw.
As Brooks pulled, the branch broke free and he fell back down into the empty swimming pool below suffering serious injuries that restricted his income-earning opportunities. The primary judge – against the arguments advanced by the homeowner’s insurer – found that Burton did owe a duty to Brooks, namely “that which a householder will owe to a relative or a friend who has come over to give them a hand with some gardening type work”.
This was affirmed on appeal. That Brooks’ participation was unpaid did not lessen the duty: Burton as owner and occupier of the property and supplier of the ladder and chainsaw undertook the primary role in the clearance “as the work was of a benefit to him”. As the organizer of the activity, he had a measure of control – “derived out of his ownership and occupation of the property” – over what had occurred.
The other argument advanced by the insurer on appeal – that the primary judge failed to reconcile the facts to specific provisions of the NSW Civil Liability Act
relating to duty and foreseeability, namely s 5B (s 9 in Qld CLA) and 5C (s 10 in Qld CLA) and “obvious risk”: 5F (s 13 in Qld CLA); & 5G (s 14 in Qld CLA) – also failed. The appeal judges agreed that it was sufficient that the matters required to be addressed were in fact canvassed, if not in the context of the specific CLA sections.The insurer also failed to convince the court that the finding of 25% contributory negligence apportioned to Brooks for his own failure to take reasonable care as required under s 5R CLA (s 23 in Qld CLA) was “too low”. Finally, the argument that “there is simply no basis for an award” of $70,000 for future loss of earning capacity in circumstances where Brooks continued in work, was also dismissed. The court justified the award as a “buffer” to “compensate Mr Brooks for the possibility, which his Honour saw as a real one, of Mr Brooks’ future employment being adversely affected by his injuries”.
“A buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise, secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future”.
It is impossible to tell from the judge who was the antagonist – and luckless – insurer.
Burton v Brooks  NSWCA 175 – view decision
, Litigation & Law Practice