A recent High Court case addressed the extent of the duty of care owed by public authorities.

Background

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 (SWC).

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.

Judgment

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 foreseeable risk.

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 collapse.

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 [1931] UKHL 3.

Implications

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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