Sydney Water Corporation v Turano

Sydney Water Corporation v Turano - [2009] HCA 42 - HCA 2009 case summary — Zoe

[13]

On 18 November 2001 Mr Napoleone Turano sustained fatal injuries when a eucalyptus tree fell onto the car that he was driving. His wife, Mrs Turano (the first respondent), and their two children were travelling in the car at the time and each sustained injury in the incident. Mrs Turano brought proceedings in negligence in the District Court of New South Wales on her own behalf and on behalf of the two children against the second respondent, the Council of the City of Liverpool ("the Council"), and the appellant, Sydney Water Corporation ("Sydney Water"), claiming damages for physical and psychological injury and for loss of dependency.
The liability of the defendants was determined as a separate issue by the primary judge (Delaney DCJ). His Honour found that the Council was liable in negligence, directing a verdict for Mrs Turano, and that Sydney Water was not liable, directing a verdict for Sydney Water. He considered that in the circumstances Sydney Water did not owe a duty of care for the benefit of Mrs Turano. Cross-claims brought by the Council and Sydney Water against each other were dismissed.
The Council appealed to the New South Wales Court of Appeal against the primary judge's order and Mrs Turano cross-appealed against the dismissal of her claim against Sydney Water. It was not clear whether the trial of the separate issue had been confined to the determination of the defendants' liability to Mrs Turano only, or to Mrs Turano and the two children. The Council and Sydney Water each stated that it considered itself bound in all three cases by the determination of the separate issue[1]. In these reasons, a reference to a duty owed to Mrs Turano is to be understood as including a duty owed to the two children.
The Court of Appeal (Beazley, Hodgson and McColl JJA) upheld the Council's appeal, set aside the orders made by the primary judge and substituted a verdict for the Council. By majority (Beazley and Hodgson JJA) the Court of Appeal upheld Mrs Turano's cross-appeal. The verdict in favour of Sydney Water was set aside and a verdict for Mrs Turano against Sydney Water on the issue of liability was directed. The proceedings against Sydney Water were remitted to the District Court for the assessment of damages.

[21]

Sydney Water did not plead reliance on s 43A in its notice of grounds of defence. No reference was made to the operation of the provision before the primary judge or in the Court of Appeal. At the conclusion of the hearing in this Court, senior counsel for Sydney Water drew attention to the provision and informed the Court that it had not been argued below and that Sydney Water did not invoke it on the appeal.
Following the hearing, the Court raised with the parties whether the existence of a duty of care at common law owed by Sydney Water to Mrs Turano is a hypothetical question in light of s 43A, or not one that can properly be decided without regard to the operation of the provision. The parties were invited, in the event that the answer to either question was "yes", to address the further question of whether special leave should be revoked. They were asked to indicate whether it was desired to have the Court hear further oral argument. Neither party sought to take up the latter invitation.
On the hearing of the appeal Sydney Water submitted that in an action in tort in New South Wales a plaintiff is required to establish a legal obligation owed to him or her requiring the defendant to exercise reasonable care and skill before Pt 1A of the CLA is engaged. It followed that the existence and extent of any duty of care owed by Sydney Water to Mrs Turano is to be determined by the application of the common law. In the event that a duty is found to exist, Pt 1A is said to govern the determination of whether the defendant is held to have failed to exercise reasonable care and skill. On this analysis the heading of Div 2 of Pt 1A (ss 5B, 5C), "Duty of care", is a misnomer. In Sydney Water's submission, the provisions of Div 2 are a statutory modification of the principles stated by Mason J in Wyong Shire Council v Shirt[22] for the determination of the issue of breach. Senior counsel for Mrs Turano adopted this analysis of the relationship between the common law and the CLA on the hearing of the appeal.
In its supplementary submissions, in answer to the questions asked by the Court, Sydney Water maintained (consistently with the stance that it had taken on the hearing of the appeal) that s 43A does not speak to whether a legal obligation is imposed on a public authority to exercise reasonable care and skill for the benefit of another. It also submitted that it is unclear that the installation of a water main under statutory power involves the exercise of a "special statutory power" within the meaning of s 43A(2).
Mrs Turano submitted that the provisions of s 43A operate to confer immunity on a public authority in relation to the exercise of, or failure to exercise, a special statutory power subject only to the proviso in sub-s (3). In her submission, it is plain that the installation of a water main under statutory power engages the immunity. It followed on this view that the proceedings are singular and do not raise a question of general importance concerning the liability of public authorities in tort in New South Wales. She submitted that the grant of special leave should be revoked.
Following the final report of the Ipp Committee[23], a number of jurisdictions, including New South Wales, enacted legislation modifying the liability of public authorities in tort[24]. The approach has not been uniform. In New South Wales, Pt 5, dealing with the liability of public and other authorities, was introduced into the CLA[25]. Section 43A was introduced into Pt 5 at a later date, apparently as a reaction to a decision at first instance of the New South Wales Supreme Court[26]. The history of s 43A is referred to in Precision Products (NSW) Pty Ltd v Hawkesbury City Council[27]. In that case the Court's consideration of the operation of s 43A was undertaken in the context of the analysis of breach of duty in circumstances in which the parties had not addressed full argument on the terms of the section.
This Court does not have the benefit of the consideration by the New South Wales Court of Appeal of the correctness of the assumption on which the appeal was argued: that the legal obligation on a defendant to exercise care and skill for the benefit of a plaintiff is to be found outside the framework of the CLA.
This appeal does not provide the occasion to consider the operation of s 43A. Mrs Turano's submission that laying a water main pursuant to the power conferred under the MWS&D Act plainly involves the exercise of a "special statutory power" is not one that can be accepted in the absence of full argument.
Professor Aronson has written of s 43A[28] that it is important to understand its scope, adding[29]:

[26]

The evidence at trial largely comprised expert opinion. The Court of Appeal was critical of the primary judge's failure to analyse aspects of the evidence and to record findings in these respects[32]. Each of the Justices reviewed the evidence. Justices Beazley and Hodgson were in agreement as to the factual findings and the legal conclusions that flowed from them. Justice McColl came to a different conclusion on critical questions of fact. It is sufficient to refer to the primary judge's unchallenged findings of fact and to the further findings of the majority in the Court of Appeal in order to demonstrate that Sydney Water did not owe a duty of care to Mrs Turano and accordingly that the appeal should be allowed.
Edmondson Avenue, Austral, runs in a generally north/south direction. It is located in a semi-rural area. On either side of the sealed road surface is a grassed shoulder forming part of the road reserve. The tree was standing on the western grassed shoulder, about 4 metres from the western outlet of a culvert. The culvert had been installed under Edmondson Avenue in the 1960s and was designed to drain water from east to west. Water flowing from the culvert pipe on the western side drained into an outlet pit and from there it had been designed to drain by means of a scalloped area of excavation (a "tail-out drain") to pasture land lying to the west.
In about 1981 Sydney Water laid the water main, a cast iron pipe, 900mm below ground in a trench which ran parallel to Edmondson Avenue, under the western grassed shoulder. The water main transversed the outlet pit of the culvert. It was laid at a higher level than the invert of the culvert pipe and this caused it to obstruct the free flow of water from the culvert pipe. The earth of the outlet pit was impermeable clay. The water main was laid on a bed of sand 300mm deep.
The sand that was laid in the trench was much more permeable than the clay of the outlet pit. One consequence of this difference was that the trench acted as a drain for the water that periodically collected in the outlet pit. It was probable that excess water reached the roots of the tree by travelling north along the sand-filled trench[33].
On the day of the accident there was a strong windstorm, which was the immediate cause of the tree's fall. An underlying cause of the fall was that the tree's root system had been compromised by the presence of phytophthera, a root pathogen. The intermittent water-logging of the root system had facilitated the introduction of the pathogen[34].
The water main had been laid in accordance with standard engineering practice.
A consultant engineer, Mr Burn, gave uncontradicted evidence that a person installing a water main in a bed of sand in this location would have appreciated that the sand-filled trench would probably create a north/south drain. He considered that this result could have been avoided by installing a drain to the west, although this would have required Sydney Water to work on private land. Alternatively, Mr Burn pointed out that the water main could have been laid under the bed of the culvert.
At the time of the accident there were about 64,000 trees planted along roads under the Council's control. The Council's risk management co-ordinator gave evidence that the Council did not carry out routine inspections of trees and culverts located on its land; it would only do so in response to a complaint or report in respect of the condition of a particular asset.
The Council was not notified of the installation of the water main and it had no knowledge that the water main was laid in a sand-filled trench. In November 1999 the Council surveyed the area in the course of undertaking preparatory work for a road-widening proposal of Edmondson Avenue. The survey identified the water main and recorded its height relative to the invert of the culvert pipe.
The tree had white marks which were on the trunk located about one metre above the ground. These were indicative of the presence of phytophthera, within the trunk or lower root system. The crown of the tree did not show signs of distress. It was not clear that the white marks on the tree would have been visible from a passing car.

[35]

The proposition that at common law a public authority may be subject to a general duty of care arising out of its conduct of works pursuant to a statutory power is not in issue[46]. Sydney Water acknowledged that it may be liable in damages to a person who suffers injury as the result of the rupture of a carelessly installed, defective, water main[47]. Mrs Turano's claim may be understood as arising from her status as a road user. It is a claim for damages for personal injury. While the class to whom the duty is owed is potentially very large, only those members of it suffering injury as the result of the tree's fall would have a cause of action against Sydney Water. Sydney Water's challenge does not turn on the indeterminacy of the class, defined as road users, so much as on the reasonableness of the conclusion that in 1981 Sydney Water should have had in its contemplation, as persons closely and directly affected by its conduct in laying the water main, persons on or near Edmondson Avenue in 2001[48].
Reasonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another[49]. The concept is relevant at each of the three, related, stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage. At the first stage, the inquiry has been said to involve the assessment of foreseeability conducted at "a higher level of abstraction"[50] than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content[51]. It remains, as Gleeson CJ observed in Tame v New South Wales[52], that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.
It was not necessary that the precise sequence of events leading to Mrs Turano's injury be foreseen[53]. However, it was necessary to show that in 1981 it was foreseeable by Sydney Water that laying a water main in a bed of sand in this location involved a risk of injury to road users. The evidence was that in 1981 it was foreseeable that laying a water main in a sand-filled trench transversing the culvert outlet pit would create a drain carrying water that collected in the pit north/south along its length. There was no evidence that it was foreseeable by Sydney Water that altering sub-surface drainage in this way was likely to undermine the integrity of the roots of nearby trees. The primary judge found that it was not foreseeable by Sydney Water that the water travelling along the trench would undermine the tree to such an extent that it would eventually become unstable and fall[54]. His reasons do not suggest that he misapprehended the nature of the inquiry. The conclusion of the majority in the Court of Appeal, that harm to the tree was a foreseeable consequence of laying the water main in this location, was an inference drawn from the fact that Sydney Water was an authority involved in the management of water. In the absence of any evidence, the basis for this conclusion may be doubted. However, accepting that the conclusion was open, there remain difficulties with the majority's reasons leading to the finding of liability.
In considering the liability of the Council, Beazley JA referred to the observations of Gummow J (with whose reasons in this respect Callinan and Heydon JJ agreed) in Roads and Traffic Authority (NSW) v Dederer[55]:

[37]

However, when it came to considering the liability of Sydney Water, Beazley JA stated the duty in absolute terms: not to compromise the integrity of the culvert drainage system. It was a duty called into existence because it was foreseeable that laying a water main in a trench that acted as a conduit for water could have "an effect on the surrounding area such as might cause harm"[56]. Neither the formulation of the duty nor the anterior inquiry as to foreseeability addressed the risk of injury to Mrs Turano or a class of persons of which she was a member. In terms, it was a strict duty requiring that Sydney Water preserve the existing drainage in the vicinity of its installation in order to prevent a foreseeable risk of shortening the life of surrounding vegetation. Stated in this way the force of Sydney Water's complaint, that the scope of the duty was derived by reasoning backwards from the events that occurred, can be seen. It was not a duty requiring Sydney Water to take reasonable care to avoid injury to road users in carrying out its works. The majority's conclusion of breach was inevitable having regard to the formulation of the scope of the duty. Thus, there was no consideration of the general and other principles stated in ss 5B and 5C of the CLA. Consideration of these principles would have directed attention to the question of whether in 1981 a water authority acting reasonably ought to have obtained the advice of an arborist on the impact of its proposed works on vegetation growing in an unpopulated, semi-rural area.
The impact of the altered drainage from the outlet pit was such that over a lengthy period the tree's stability was compromised. The conditions that produced its fall in the windstorm took effect after 20 years. It is reasonable to consider that those conditions might have caused the tree to fall in a windstorm after a lesser or greater number of years. The point to be made is that the laying of the water main in this location did not create an immediate risk of harm to road users. The temporal relation between Sydney Water's conduct and Mrs Turano's injury was relevant to the determination of whether the relationship between them gave rise to a duty. A related factor relevant to this inquiry was the circumstance that in the interval between the conduct and the injury the tree was growing on land that was owned by the Council.
Sydney Water was empowered to remove trees in the course of carrying out works[57]. Since the tree was not an obstacle to the installation of the water main and the water main did not create an immediate danger of compromise to the tree, its removal may not have been justified pursuant to the power. (It will be recalled that Sydney Water was required in installing the water main to inflict as little damage as may be[58].) Sydney Water had the power to enter upon land in order to carry out an inspection of works[59]. However, no occasion arose for it to exercise this power in the absence of any report concerning the operation of the water main.
On the hearing in the Court of Appeal Mrs Turano did not maintain her case that the Council was negligent by its failure to carry out periodic inspections of roadside trees. This was realistic in light of the evidence to which Beazley JA referred, that Edmondson Avenue is located in a semi-rural area, with no houses or buildings in the immediate vicinity, and that the tree population was sparse[60]. The evidence of an arborist, Mr Castor, which McColl JA extracted in her reasons, may also be noted[61]:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (100 paragraphs)

Parties

Legislation Cited (15)

Cases Cited (25)