HCA – Reasonable Foreseeability not Strict Liability

Sydney Water Corporation v Turano [2009] HCA 42 (13 October 2009)

 

The Sydney Water Corporation (“SWC”) appealed the decision of the Court of Appeal  for physical and psychological injury and for loss of dependency caused to Mrs Turano following a eucalyptus tree falling onto the car that her husband was driving.

The case against SWC case was “that the tree fell because its root system had been compromised by the intermittent water-logging of the surrounding soil over an extended period (sic 20 years)”.

The High Court’s discussion in respect of reasonable foreseeability is of particular interest because it is a joint judgment of their Honours FRENCH CJ, GUMMOW, HAYNE, CRENNAN AND BELL JJ:

 

45.

Reasonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another[49]. The concept is relevant at each of the three, related, stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage. At the first stage, the inquiry has been said to involve the assessment of foreseeability conducted at “a higher level of abstraction”[50] than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content[51]. It remains, as Gleeson CJ observed in Tame v New South Wales[52], that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.

 

 

47.

In considering the liability of the Council, Beazley JA referred to the observations of Gummow J (with whose reasons in this respect Callinan and Heydon JJ agreed) in Roads and Traffic Authority (NSW) v Dederer[55]:

“First, duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.”

 

48.

However, when it came to considering the liability of Sydney Water, Beazley JA stated the duty in absolute terms: not to compromise the integrity of the culvert drainage system. It was a duty called into existence because it was foreseeable that laying a water main in a trench that acted as a conduit for water could have “an effect on the surrounding area such as might cause harm”[56]. Neither the formulation of the duty nor the anterior inquiry as to foreseeability addressed the risk of injury to Mrs Turano or a class of persons of which she was a member. In terms, it was a strict duty requiring that Sydney Water preserve the existing drainage in the vicinity of its installation in order to prevent a foreseeable risk of shortening the life of surrounding vegetation. Stated in this way the force of Sydney Water’s complaint, that the scope of the duty was derived by reasoning backwards from the events that occurred, can be seen. It was not a duty requiring Sydney Water to take reasonable care to avoid injury to road users in carrying out its works. The majority’s conclusion of breach was inevitable having regard to the formulation of the scope of the duty. Thus, there was no consideration of the general and other principles stated in ss 5B and 5C of the CLA. Consideration of these principles would have directed attention to the question of whether in 1981 a water authority acting reasonably ought to have obtained the advice of an arborist on the impact of its proposed works on vegetation growing in an unpopulated, semi-rural area.

 

49.

The impact of the altered drainage from the outlet pit was such that over a lengthy period the tree’s stability was compromised. The conditions that produced its fall in the windstorm took effect after 20 years. It is reasonable to consider that those conditions might have caused the tree to fall in a windstorm after a lesser or greater number of years. The point to be made is that the laying of the water main in this location did not create an immediate risk of harm to road users. The temporal relation between Sydney Water’s conduct and Mrs Turano’s injury was relevant to the determination of whether the relationship between them gave rise to a duty. A related factor relevant to this inquiry was the circumstance that in the interval between the conduct and the injury the tree was growing on land that was owned by the Council.

 

52.

Nonetheless, it was necessary in considering the liability of Sydney Water to take into account that, in the years between the installation of the water main and Mrs Turano’s injury, the risk of the tree’s collapse was one over which the Council and not Sydney Water had control. It is true that the Council was not on notice that the water main was laid in a sand-filled trench. However, it would not be right to characterise Sydney Water as having created a hidden danger by the installation of the water main in this location. Its presence transversing the outlet pit was observable. The adverse impact on vegetation brought about by altered drainage might be expected to be apparent to the owner of land. The circumstance that the presence of the pathogen in the tree was not readily observable does not provide a justification for holding Sydney Water liable after an interval of 20 years for the injury occasioned by the tree’s failure.

 

53.

Sydney Water’s conduct in laying the water main in this location in 1981 with the consequential alteration to drainage flows from the culvert and any foreseeable risk to the health of the tree did not impose on it a legal duty of care for Mrs Turano’s benefit. The reason for this may be expressed as a conclusion that injury to road users as the result of the tree’s eventual collapse was not a reasonably foreseeable consequence of laying the water main, as the primary judge held. Alternatively, it may be expressed as a conclusion that in the absence of control over any risk posed by the tree in the years after the installation of the water main there was not a sufficiently close and direct connection between Sydney Water and Mrs Turano, a person present on Edmondson Avenue in 2001, for her to be a “neighbour” within Lord Atkin’s statement of the principle.

 

Brisbane Barrister – David Cormack

 

 

 

 

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