“A reasonable driver would have appreciated the likelihood that the delivery truck might cause damage to the low tree overhanging the driveway and would have parked at the top of the driveway and used a trolley to deliver the groceries in order to ensure that did not happen,” she said.
The case – released with the parties’ names removed – raises interesting questions over consumers’ rights, as they increasingly gravitate towards convenience deliveries such as groceries, fast food and other items.
Many consumers now rely on convenience deliveries of items such as groceries. Photo / File
In her decision, Trevelyan said the Consumer Guarantees Act (CGA) implied a guarantee that a service would be carried out with due care.
Although the grocery company had contracted out its delivery service to a third party, the retailer was the supplier of the service as far as the homeowners were concerned.
“They say that when a representative of the delivery contractor, and a manager from the local X Ltd visited their property, they each expressed surprise that the driver had tried to drive down the drive given the height of the truck, the low hanging branches and the availability of a relatively easy option to take the groceries to the house on a trolley (a distance of only around 20m over a gentle slope),” reported Trevelyan.
“There were differences between the parties about the driver’s account of the collision (whether he backed into the driveway or out of it, whether he was aware of having hit the branch, and whether it was raining or not).
“Ultimately, these differences are not material because I am satisfied that it is most likely that a reasonable driver would have assessed the risk of hitting the branches and damaging the truck and/or tree as too high and would not have driven down the driveway to deliver the groceries. For this reason, I am satisfied that there has been a breach of the CGA by X Ltd in this case.”
She considered whether the couple was entitled to damages.
A refund of the delivery fee was not appropriate because the groceries had been safely delivered.
The couple had hired an arborist to advise them on the damage to tree and for its subsequent removal. This cost $502.65.
What value did the tree add?
Trevelyan said the arborist had advised the couple that their tree – estimated to be about 35 years old – would survive the loss of the branch.
But the arborist told them the branch had provided “notable visual appeal” of an archway at the entrance of their property.
Trevelyan said: “The arborist says that the low archway feature cannot be replicated in the short term, at least, and possibly not in the long term either, without intensive intervention from an arborist.”
The couple claimed the incident had led to their property losing value, providing evidence from two real estate agents, identified in the tribunal’s decision as “BE” and “CS”.
“BE says he can attest to the power of a first impression contributing to an emotional connection to a home,” said Trevelyan.
“BE does not say whether the loss of the branch has reduced the value of the property or place any value on that loss.
“CS, another agent, says that it is very difficult to put a dollar value on the ‘wow’ factor created by an impressive entrance to a home. He refers to the sale of two similar properties in [suburb], one with a view of the beach and one without a view. The house with a view sold for nearly $300,000 more than the house without the view.
“CS suggests on this basis that the value of a ‘wow’ factor, such as a view, or a tree in this case, may be between $20,000 and $300,000.
“On this basis, KT and LT seek an order for damages of $20,000, noting that apart from their suggestion that their property will have lost value as a result of the removal of the branch, they valued the arched entrance very highly and are devastated to have lost it.”
Do you know more, or have you been impacted in similar circumstances? Please email shayne.currie@nzme.co.nz
Trevelyan said she had asked CS at the tribunal hearing whether he could put a value on the loss of the tree branch; he said he could not.
The grocery supplier, meanwhile, had “engaged an arboriculture consultant who suggested that the canopy loss to the tree from the loss of the branch was around 1% of the total volume of the tree”.
According to the consultant, this was too low to result in any loss in property value using internationally accepted valuation principles.
The couple’s arborist disputed this.
Trevelyan said: “While I appreciate that KT and LT are devastated by the loss of the branch and accept that the low arch it created at the entrance to their property is now gone, I do not consider that there is enough evidence to support a finding that the value of their home has reduced as a result of this loss.
“The tree remains and will survive, and still provides a frame to the entrance of their property, albeit much higher without the damaged branch.
“The photos provided show that the home still has a leafy, attractive aspect. There was no evidence provided as to the value of KT and LT’s home with and without the branch.”
She did not consider that evidence from a real estate agent based on sales of unrelated homes could provide any basis for an order for damages.
“Ultimately, I am not satisfied that any loss in value of KT and LT’s property as a result of the branch has been established. For these reasons, the claim for damages for loss of value of the property cannot succeed.”
Trevelyan found the grocery supplier was liable to pay the couple the $502.65 for the arborist. The company had offered $1200, before the hearing, to resolve the claim, which was rejected.
At the end of the hearing, it had agreed to leave the offer on the table as a gesture of goodwill and in her decision, Trevelyan ordered that this be paid.
Editor-at-Large Shayne Currie is one of New Zealand’s most experienced senior journalists and media leaders. He has held executive and senior editorial roles at NZME including Managing Editor, NZ Herald Editor and Herald on Sunday Editor.