David and Goliath are best of friends. In July 2015, they decide to visit the Armidale Jazz Festival, a well known event in the Northern Tablelands region of New South Wales in Australia. As David is driving towards Armidale, he comes across a car accident where a passenger is trapped in the car. It was obvious that the accident had occurred some time previous to David coming across it but, as David was the first on the scene, he decides to take steps to remove the passenger. Unfortunately, as David gets closer to the passenger he realises that the passenger has died and that there is nothing further he can do. As David will now be late, he calls Goliath to tell him about the terrible accident. From documents in the car David was able to work out that the deceased was Richard (whom he did not know). He finds a telephone number for Richard’s mother in the car and asks Goliath to contact her to tell her about the tragic occurrence. When Goliath advises Richard’s mother, Fiona, what has happened, she becomes distraught. As a result of these events, David suffers from post-traumatic stress disorder while Fiona is unable to sleep for months on end. It was later discovered that the accident was due to the negligence of Warwick.Three weeks later, in August 2015, David’s brother, Barry, was injured when driving along a country road near Armidale in New South Wales. The car he was driving was hit when an overhanging branch of a tree next to the road fell off. Responsibility for the road and tree is vested in the Armidale District Council (‘ADC’). ADC was aware that there was a problem with branches of trees falling off and hitting cars on the adjacent roads and had developed a procedure for determining the priority in which trees should be cut down or pruned to reduce this risk. Applying this procedure, the tree whose branch fell was rated as a low risk of falling and causing injury to those using the road and, accordingly, it had not been pruned by the date of the accident. However, the process by which the priorities were determined had been carelessly adopted and if a careful process had been in place the branch would have been removed by August 2015 so that the accident would have been avoided.
Warwick accepts that he is liable for Richard’s death. At the time of his death, Richard was 35 years old and a qualified solicitor working in private practice in Armidale. He left two children, Albert, aged 3, and Edward, aged 16, and his wife, Constance, who had worked in her own business before giving up work when Edward was born. Six months after the accident, Constance meets an old boyfriend, Hector, a wealthy stockbroker from Sydney, and shortly afterwards they begin living together. Hector is wonderful with the children and friends say he is better with the children than Richard ever was.
Advise the parties of their rights and liabilities in tort. In advising Barry, you may assume that ADC owes him a duty of care to take reasonable care that trees adjoining a road are not dangerous to users of the road.