From: Neil Foster <>
CC: Katherine Lindsay <>
Date: 13/10/2009 04:33:34 UTC
Subject: ODG: Duty of care owed by water authority in HCA

Dear Colleagues;
The High Court of Australia in Sydney Water Corporation v Turano [2009] HCA 42 (13 October 2009) overturned a verdict of negligence against the Sydney Water Corporation in favour of Mrs Turano, whose husband had been killed when a tree fell on the family car during a storm. The action had been based on the fact that the drainage system installed by SWC had led to disease developing in the roots of the tree and weakening it. An action against the local Council (on whose land the tree stood) had been successful at first instance but overturned by the NSW Court of Appeal, and was not further appealed in the HC.
The HCA ruled in favour of the SWC on a fairly straightforward basis, eschewing a number of potentially tricky arguments arising under the NSW Civil Liability Act because they had not been properly raised by the parties on the previous hearings. The Court ruled that SWC did not owe future road users in that area of Sydney a duty of care, because in 1981 when the drain was established the alleged impact of disease-borne pathogens on trees, and the impact of trees on road users, was not "reasonably foreseeable", and hence did not get over the first hurdle from Donoghue v Stevenson. From [46]:
It was not necessary that the precise sequence of events leading to Mrs Turano's injury be foreseen[1].  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.  

[1]      Chapman v Hearse (1961) 106 CLR 112 at 120 per Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ; [1961] HCA 46; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390 per Barwick CJ.

Another way of putting was tantalising slipped in to the final paragraph:, at [53]:
Alternatively, it may be expressed as a conclusion that 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, a person present on Edmondson Avenue in 2001, for her to be a "neighbour" within Lord Atkin's statement of the principle.
Which sounds a bit like "proximity".....!
The result sounds reasonable, but I am not to be frank sure about the reasoning. This is a case where some of the complexities of duties owed by statutory authorities should have been considered. Surely in the sense that "foreseeable" bears under Australian law at the moment it is foreseeable that when you design a drainage system it may cause harm in the future to those who pass by the drain. I wonder whether it would have been preferable to say that there was a general duty of care, and to focus on the steps that were taken by SWC under the issue of "breach". It may have led to the same result, but I think would have been conceptually much better.
It is also a bit annoying that the Court comes to the brink of making some helpful comments on issues relating to the CLA (eg whether as they pose the question in [18] "the heading of Div 2 of Pt 1A (ss 5B, 5C), "Duty of care", is a misnomer"; the meaning of ss 42 and 43A) and then pulls back.
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931