Sydney Water Corporation v Turano [2009] HCA 42

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, CRENNAN AND BELL JJ

SYDNEY WATER CORPORATION APPELLANT

AND

MARIA TURANO & ANOR RESPONDENTS

Sydney Water Corporation v Turano [2009] HCA 42

13 October 2009

S104/2009

ORDER

1. Leave to file the amended notice of appeal dated 9 July 2009 granted.

2. Appeal allowed.

3. Set aside the following orders of the Court of Appeal of the Supreme Court of New South Wales:

(a) orders 4, 6, and 8 of the orders made on 31 October 2008;

(b) that part of order 5 of the orders made on 31 October 2008 which set aside orders and declarations stated at [155] of the judgment of Delaney DCJ numbered 2 and 3; and

(c) order 1 of the orders made on 2 July 2009.

In lieu thereof, order that the cross-appeal to the Court of Appeal be dismissed with costs.

4. First respondent to pay the costs of the appellant in this Court.

On appeal from the Supreme Court of New South Wales

Representation

J T Gleeson SC with N J Owens for the appellant (instructed by DLA Phillips Fox Lawyers)

B M Toomey QC with M J McAuley and E G Romaniuk for the first respondent (instructed by Paul A Curtis & Co)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Sydney Water Corporation v Turano

Negligence – Duty of care – Liability of statutory authority – Water main installed under statutory power – Altered subsoil drainage leading to compromise of root system of roadside tree – Approximately 20 years later tree fell on passing vehicle during storm resulting in death to an occupant and personal injury to other occupants of vehicle – Whether death and injury a reasonably foreseeable consequence of installation of water main – Significance of temporal relation between allegedly negligent conduct and injury occurring – Significance of statutory authority's lack of control over the tree in interval between installation of water main and injury – Section 43A of Civil Liability Act 2002 (NSW) addressing civil liability in tort of public or other authorities exercising a "special statutory power" not relied upon.