Last week the High Court of Australia handed down a decision in
a negligence case that holds major implications for defendants,
public authorities and their insurers. The decision stressed that
in negligence cases the concept of reasonable forseeability at each
stage of the liability analysis needs to be considered by a court.
The judgment also has wider ramifications as it acts as a timely
reminder to lower courts that just because an accident occurred, no
matter how tragic, it may not be someone's fault.
Sydney Water Corporation v Maria Turano & Anor
 HCA 42 concerned a claim against Sydney Water for the death
of a driver whose car was hit in 2001 by a tree during a violent
storm. It was alleged the positioning of a Sydney Water main (laid
in 1981) had caused damage to the tree's roots causing it to be
The concern had been that if Sydney Water had been found liable,
it would place on it (and other authorities) such onerous
conditions when installing infrastructure that it would almost
always be held liable for adverse consequences. In finding in
favour of Sydney Water, the High Court has made it clear that this
is not the case.
On 18 November 2001, Mr Napoleone Turano was killed when a tree
fell on his car as he was driving along Edmondson Road, Austral,
New South Wales. It was alleged that:
The tree was vulnerable to being blown over due to its roots
being diseased as a result of water logging.
The water logging occurred because a water culvert beneath the
road was blocked.
A Sydney Water water main laid in 1981 partially blocked the
culvert and transported water to the base of the tree.
Sydney Water had not been put on notice of any problem with the
tree in the 20 year period between the water mains installation and
Mrs Turano brought proceedings against Liverpool Council and
The trial judge found against the Council but in favour of
Sydney Water. The New South Wales Court of Appeal reversed this
decision, finding in favour of the Council but against Sydney
Water. The High Court granted leave to Sydney Water to appeal but
refused leave for Mrs Turano to appeal the decision in favour of
In essence, the High Court found that there was no legal duty of
care imposed on Sydney Water as:
The collapse of the tree in 2001 was not a reasonably
foreseeable consequence of laying the water main in 1981.
Sydney Water did not have any control over the risk posed by
the tree in the years after the installation of the water
The High Court has sent a clear message that courts must
undertake a complete and thorough analysis in negligence cases
Considering a defendant's conduct at the time it took place
(in this instance 1981) and not at the time of the accident (in
this instance 2001). This is clearly significant as over time
conduct that was viewed as reasonable may become unreasonable, for
example due to improvements in technology and research.
Taking into account the reasonableness of a defendant's
conduct at all stages of the court's analysis of
Being careful not to formulate the duty of care owed by the
defendant such that they are in effect imposing a strict
Considering the degree of control (or lack of control) the
defendant had over the actual risk that eventuated.
DLA Phillips Fox acted for Sydney Water in this case.
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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