A recent High Court case addressed the extent of the
duty of care owed by public authorities.
In 2001, Mr Turano was killed when a tree fell onto his car. His
wife and their two children (the Plaintiffs), who were all
passengers, were injured, and commenced proceedings for damages
against Liverpool City Council (Council) (as owner of the land on
which the tree stood), and against Sydney Water Corporation
Expert evidence suggested that the tree had fallen because its
root system was infected by a pathogen caused by soil being
waterlogged over an extended period of time. A water main installed
by SWC 20 years earlier obstructed water drainage through a nearby
culvert and diverted water to a trench near the tree.
The Plaintiffs and the Council submitted that SWC was negligent
in failing to take into account the impact of the installation of
the water main on drainage in the area.
At first instance, the trial judge found the Council solely
liable (Turano v Liverpool City Council, unreported,
District Court of New South Wales). The Court of Appeal overturned
this decision in Liverpool City Council v Turano (2008)
164 LGERA 16 and found the accident was causally related to
SWC's failure to install the water main so that drainage was
not affected. SWC appealed to the High Court.
In Sydney Water Corp v Turano (2009) 239 CLR 51, the
High Court affirmed that, at common law, a public authority can be
subject to a general duty of care arising out of its conduct of
works pursuant to a statutory power.
The High Court held that the Court of Appeal had incorrectly
cast SWC's duty in absolute terms as a duty "not to
compromise the integrity of the culvert draining system". This
did not address whether the risk of injury to the Plaintiffs, or a
class of persons to which the Plaintiffs belonged, was a
The High Court found that the temporal relationship between
SWC's laying of the water main and the Plaintiffs' injuries
was relevant to whether there was a duty of care. The sequence of
events leading up to the accident did not have to be foreseen, but
it was necessary to show it was reasonably foreseeable that laying
a water main in that location with consequential alteration to
drainage flows involved a foreseeable risk to a tree's health,
which may result in injury to road users. The Court found no
evidence to support this contention.
Although SWC could inspect the main, there was no occasion for
it to do so in the absence of any reports about the water main in
that time. The risk of the tree's collapse was one the Council
had control over as land owner. The real cause of the accident (the
pathogen in the root system) was not readily observable and SWC was
therefore not liable for injury caused by the tree's
Further, there was a substantial period of time from the
installation of the water main and the accident, and in the absence
of control over any risk posed by the tree in those years there was
not a sufficiently close and direct connection between SWC and the
Plaintiffs for them to fall within the "neighbour"
principle enunciated by Lord Aitkin in Donoghue v
Stevenson  UKHL 3.
In determining the scope of public authorities' duty of
care, the test is whether the risk of injury to a class of persons
is reasonably foreseeable, rather than reasoning backwards from an
event that has lead to injury.
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guide to the subject matter. Specialist advice should be sought
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