Australia: The High Court On Negligence : Absolute Liability Is Out - Reasonableness Is King

Last Updated: 19 October 2009
Article by Grant Hooper

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 [2009] 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 blown over.

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.

The Facts

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 the accident.

Mrs Turano brought proceedings against Liverpool Council and Sydney Water.

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 the Council.

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 main.


The High Court has sent a clear message that courts must undertake a complete and thorough analysis in negligence cases including:

  • 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 liability.
  • Being careful not to formulate the duty of care owed by the defendant such that they are in effect imposing a strict liability.
  • 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

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 particular circumstances.

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