Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270
In Brief
- In order for a Council to fall outside the protection afforded by s 45 of the Civil Liability Act, a plaintiff must prove the Council had actual knowledge of the particular risk, the materialisation of which resulted in the harm.
- In determining whether a public or other authority has a duty of care or has breached a duty of care regard must be had to the principles concerning resources, responsibilities etc of public or other authorities as outlined in s 42 of the Civil Liability Act.
Background
Section 42 of the Civil Liability Act provides as follows:-
"Principles concerning resources, responsibilities etc of public or other authorities. The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings to which this Part applies:-
- the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
- the general allocation of those resources by the authority is not open to challenge,
- the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
- the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate".
Section 45 of the Civil Liability Act provides in part as follows:
"Special non-feasance protection for road authorities:-
- A roads authority is not liable in proceedings to which this Part applies for harm arising from a failure of the authority to carry out roadwork, or to consider carrying out roadwork, unless at the time of the alleged failure the authority had actual knowledge of the particular risk, the materialisation of which resulted in the harm ..."
Mr Turano was critically injured when a grey box eucalyptus tree ("the tree") fell on to his car while he was driving in Austral on 18 November 2001. Following the accident Mr Turano was taken to hospital and passed away on 19 November 2001.
Mrs Turano brought proceedings on her own behalf and on behalf of her two children against Liverpool City Council ("the Council") and the Sydney Water Corporation ("Sydney Water") claiming damages for physical and psychological injury and loss of dependency arising out of the accident.
A central issue at trial was what caused the tree to fall. The immediate cause of the tree falling was the strong wind. However, the root system showed signs of having been effected by a pathogen. A culvert drain was installed near the accident site. Water drained from east to west into a pit cut out of the surrounding impermeable clay, then drained out over pastureland by means of a tail-out drain. In 1981, Sydney Water installed a water main running north to south, traversing the culvert pit. The water main was laid in a bed of sand, which itself was laid in the impermeable clay that formed the wall of the culvert pit.
At the time of the accident, the tail-out drain had ceased to function and probably had not functioned for a long period of time. Mrs Turano and the Council both contended that water from the culvert had been diverted away from the pit via the sand bed in which the water main was laid and affected the roots of the tree.
Mrs Turano also claimed that as the Council had been undertaking work, or other operations, in the area on at least three occasions prior to the accident, namely, in 1997, 1999 and June 2001, and also during triennial road inspections it was required to carry out as part of the Council's accounting compliance programme, the Council would, or should, have observed that the culvert drain located near the tree was clogged with sediment and debris; that there was water ponding in the culvert pit and that the area around it was water logged; the tail-out drain had ceased to function; and that the tree was distressed.
Notwithstanding this, no evidence was put before the Court by Mrs Turano of the Council's actual knowledge of same.
Delaney DCJ found the Council was liable in negligence, but that Sydney Water was not. His honour held that the Council had a duty of care to maintain the culvert, but excluded Sydney Water from liability, who he found had installed the water main in accordance with accepted engineering practice. The cross claims brought by the Council and Sydney Water against each other were dismissed.
The Council appealed and Mrs Turano cross appealed.
Court of Appeal Decision
The Court of Appeal found the Council was not liable in negligence. The court also held the Council had no duty of care to maintain the culvert drainage system. As the culvert discharged into a pit of impermeable clay, it would not have been foreseeable that the culvert would saturate the surrounding soil, or that the drainage system would have become clogged or obstructed and adversely affect the surrounding trees. Further, there was no evidence that the Council knew that either the water main or the Telstra line had been installed.
In order for the Council to fall outside the protection afforded by s 45, it had to have actual knowledge of the particular risks of the failure of the culvert drain, caused by the installation of the water main. The Council had no ad-hoc duty of care to investigate the culvert, arising from the Council's three yearly road inspections and road widening plans that identified the culvert and its lack of a tail-out drain. There was no evidence that the Council had the requisite knowledge for the purposes of s 45 as there was no evidence the council workers who performed these tasks were engineers, nor was there sufficient evidence of culvert failure to put to them on enquiry.
In relation to the application of s 42 of the Civil Liability Act, the Council adduced evidence of its budget allocations, state of assets and the predicted cost of bringing its drainage assets to a proper condition. The Court of Appeal therefore considered it was necessary for the trial judge to engage in some analysis of this evidence that related to s 42 and he failed to adequately do so.
The Court held in determining the questions of breach, an analysis of the magnitude of the risk as compared to the costs of protecting against such a risk, is required by s 5B of the Civil Liability Act and the principles stated in Wyong Shire Council v Shirt (1980) HCA12.
The expert evidence did not establish that the injuries sustained by the tree falling was caused by any breach of the Council. The evidence showed that water from the culvert travelled along the sand in which the water main was laid and that to the extent the culvert discharge area was blocked, it was due to the water main being laid at a higher level than the discharge area.
On the cross appeal against Sydney Water, Sydney Water was found liable by Beazley JA and Hodgson JA with McColl JA dissenting.
Citing the decision in Shirt, Beazley JA and Hodgson JA held it was foreseeable that, by laying the water main in sand which acted as a conduit for water, in circumstances where the water main was installed in a position that both breached the existing draining system and obstructed the drainage of water from the culvert, that there could be an effect on the surrounding area such as might cause harm. The majority of the Court further held Sydney Water had a duty to install the water main in such a way that the integrity of the culvert drainage system was not compromised. This duty was breached in two respects, first by laying the drain at a higher level than the discharge drain from the culvert, which caused periodic damming of the drain. Secondly, by laying the drain in sand, which permitted the water to drain northwards, so as to undermine the roots of the tree. The majority held the harm suffered was causally related to Sydney Waters breach of duty.
McColl JA dissenting noted Mrs Turano and the Council's contentions as to foreseeability depended on the proposition that laying the water main exposed the trees roots to water-logging from the water main trench, and consequently, to the risk of such damage as would destabilise them. Her honour did not consider the evidence established this was a possible consequence of laying the water main and that the evidence did not rise above the level of conjecture or speculation.
Implications
- The Court of Appeal cited with approval a number of recent authorities dealing with the application of s 45 of the Civil Liability Act 2002 including North Sydney Council v Roman (2007) NSW CA 27; Angel v Hawkesbury City Council (2008) NSW CA 130 and Blacktown City Council v Hocking (2008) NSW CA 144. The main principle arising out of the these decisions is that in order for a road authority to fall outside the protection afforded by s 45 it had to have actual knowledge of the particular risk the materialisation of which resulted in the harm. The decision will therefore be of further assistance to road authorities in defending claims where a plaintiff has difficulty proving that the road authority had knowledge of the risk.
- The Court must consider whether a public authority has properly performed its functions and allocated resources under s 42 of the Civil Liability Act, 2002 when determining whether there is a duty of care and again when determining if there has been a breach of that duty.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
