Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270

Reported Decision: 164 LGERA 16 Appeal Outcome: Special leave granted by the High Court 1 May 2009 (S496/2008) Sydney Water Corporation v TuranoSpecial leave dismissed with costs by the High Court 1 May 2009 (S507/2008) Turano v Council of Liverpool

New South Wales Court of Appeal

CITATION: Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 March 2008

JUDGMENT DATE: 31 October 2008

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 236; McColl JA at 255

1. Grant leave to the Council of the City of Liverpool to appeal from the orders and declarations of Delaney DCJ made 2 May 2007; 2. Grant leave to Maria Turano to appeal from the orders and declarations of Delaney DCJ made 2 May 2007; 3. Appeal by the Council of the City of Liverpool allowed; 4. Appeal by Maria Turano allowed; DECISION: 5. Set aside the following orders and declarations stated at [155] of the judgment of Delaney DCJ: (1), (2), (3), and (4); 6. Order that there be a verdict for Mrs Turano against Sydney Water Corporation on the question of liability; 7. Order that there be a verdict for Liverpool City Council on the Statement of Claim; 8. Order that the claim against Sydney Water Corporation be remitted to the District Court for determination of damages; 9. Direct the parties to file written submissions within 7 days as to the costs orders that should be made on the appeal and in respect of the liability hearing at first instance.

CATCHWORDS: NEGLIGENCE – roads and drainage assets – tree with defective root system caused by waterlogged soil fell onto a car during a storm and killed motorist – liability of Council – whether duty of care owed by Council to inspect and maintain drainage assets - NEGLIGENCE – s 42 Civil Liability Act 2002 – analysis of evidence in relation to s 42 required – Wyong Shire Council v Shirt – analysis of magnitude of risk as compared to cost of protecting against risk required – s 45 Civil Liability Act 2002 – Council had no actual knowledge of drainage failure - NEGLIGENCE – liability of Sydney Water Authority – duty of care owed to install water main in such a way that did not compromise existing drainage system – foreseeable that a failure to do so could cause harm to surrounding area and trees – breach and causation found - JUDGMENTS – judicial obligation to give reasons extends to engagement with expert evidence – obligation to make findings – inconsistent findings of fact