Australia: Determining duty of care: High Court finds that Sydney Water did not owe a duty in respect of an accident arising from works it performed 20 years earlier

Determining duty of care: High Court finds that Sydney Water did not owe a duty in respect of an accident arising from works it performed 20 years earlier.

Judgment date: 13 October 2009

Sydney Water Corporation v Turano [2009] HCA 42

High Court of Australia1

In Brief

• More than 80 years after its pronouncement, Lord Atkin's "neighbour" principle in Donoghue v Stevenson2 continues to provide a yardstick as to the imposition of a duty of care.
• An inquiry into breach must be made by asking, prospectively, what the exercise of reasonable care required in response to a foreseeable risk of injury, not by retrospectively reasoning what a defendant could have done to prevent the injury.

Background

Mr Napoleone Turano was killed when a eucalyptus tree fell onto the car that he was driving on 18 November 2001. The deceased's wife and their two children, were travelling in the car at the time and each sustained injury in the accident.

The plaintiffs brought proceedings against the Council of the City of Liverpool (Council) and the Sydney Water Corporation (Sydney Water), claiming damages for physical and psychological injury and for loss of dependency.

District Court

The principal factual issue at trial was what caused the tree to fall. The plaintiff and the Council submitted that the tree fell because its roots had been compromised by a pathogen which had entered the root system due to the soil being waterlogged, at least intermittently, over an extended period of time. The plaintiff and the Council argued that water had reached the roots because a water main which had been installed by Sydney Water 20 years earlier had diverted drainage from a nearby culvert.

The plaintiff and the Council submitted that Sydney Water was negligent in failing to take into account the impact of the installation of the water main on drainage in the area.

Delaney DCJ found that the Council was liable in negligence, but that Sydney Water was not as it did not owe a duty of care to the plaintiff as it was not foreseeable by Sydney Water that water travelling along the sand filled trench would undermine the tree roots to such an extent that it would eventually cause the tree to become unstable and fall. Cross Claims brought by the Council and Sydney Water against each other were dismissed.

Court of Appeal

The Council Appealed against this verdict and Mrs Turano cross-appealed against the dismissal of her claim against Sydney Water. The appeal was brought by Mrs Turano only but the defendants considered themselves bound by the determination of the liability issue in all three cases.

The Court of Appeal held that the Council was not liable to Mrs Turano in negligence. On Mrs Turano's cross-appeal against Sydney Water, Beazley JA (Hodgson JA agreeing, McColl JA dissenting) held that the accident was causally related to Sydney Water's breach of duty. The Court held that Sydney Water had a duty to install the water main in a manner that did not compromise the integrity of the culvert drainage system. The proceedings against Sydney Water were remitted to the District Court for the assessment of damages.

High Court

Sydney Water appealed submitting that the majority in the Court of Appeal erred in imposing on it a duty of care to the plaintiff because the class to whom the duty was owed was not confined within reasonable limits. Sydney Water submitted that the Court of Appeal fell into the type of error described in Roads & Traffic Authority (NSW) v Dederer3 as it imposed a duty of strict liability after reasoning backwards from the events that led to the injury.

The High Court held that for there to be a finding of negligence against Sydney Water it was necessary to show that in 1981 it was foreseeable by Sydney Water that laying the water main in the location where it was laid posed a risk to road users. The High Court held that there was no evidence that it was foreseeable by Sydney Water that altering sub-surface drainage was likely to undermine the integrity of the roots of nearby trees.

The High Court held that the duty articulated by the Court of Appeal was "not to compromise the integrity of the culvert draining system". It was held that the formulation of the duty in these absolute terms did not address the question of whether the risk of injury to the plaintiff or a class of persons of which the plaintiff was a member was foreseeable. Given that the scope of the duty was cast in such strict terms by the Court of Appeal, it was inevitable that breach of duty would be found.

Furthermore, the High Court noted that there was no consideration of the general principles enunciated by ss 5B and 5C of the Civil Liability Act 2002. The High Court pointed out that a consideration of these principles would have directed attention to the question of whether in 1981 a reasonable water authority ought to have obtained the advice of an arborist in relation to the impact of its proposed works on vegetation growing in an unpopulated, semi-rural area.

The High Court further held that in determining the liability of Sydney Water it was relevant that between the installation of the water main and Mrs Turano's injury, the risk of the tree's collapse was one over which the Council had control over and not Sydney Water.

Although the Council was not aware that the water main had been laid the High Court held that it would not be right to characterise Sydney Water as having created a hidden danger by the installation of the water main in the location where it was situated. Its presence transversing the outlet pit was observable and the adverse impact on the vegetation brought about by altered drainage might be expected to be apparent to the owner of the land. The fact that the presence of the pathogen in the tree was not readily observable did not provide a justification for holding Sydney Water liable for the tree's failure 20 years later.

The High Court concluded that no duty of care was owed by Sydney Water to the plaintiff for acts that it performed in 1981 because the injury to road users as a result of the tree's eventual collapse was not a reasonably foreseeable consequence of the installation of the water main.

Alternatively, in the absence of control over any risk posed by the tree in the years after the installation of the water main there was not a sufficiently close and direct connection between Sydney Water and Mrs Turano for her to fall within the "neighbour principle" enunciated by Lord Aitkin in Donohue v Stevenson.

Implications

• Confirming its earlier decision in Roads & Traffic Authority (NSW) v Dederer, the High Court held that in determining the scope of a duty of care the test to be applied is by asking, prospectively, what the exercise of reasonable care required in response to a foreseeable risk of injury, not be retrospectively focussing on how the injury could have been avoided after the injury occurred.
• The High Court has provided a timely reminder that legislation is the first port of call when it comes to considering breach of duty and causation. The High Court's comments in respect of ss 5B and 5C of the Civil Liability Act 2002 are consistent with the NSW Court of Appeal's approach in recent decisions such as Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited4 and Penrith Rugby League Club Limited t/as Cardiff Panthers v Elliot5 to the effect that in considering claims in negligence the court must make specific findings in relation to the precautions which a reasonable person in the defendant's position would have taken, having regard to the matters specified in s 5B(2) of the Civil Liability Act 2002.

1 French CJ, Gummow, Hayne, Crennan and Bell JJ

2 1932] AC 562

3 [2007] HCA 42

4 [2009] NSWCA 263

5 [2009] NSWCA 247

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