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

No judgment structure available for this case.

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

DECISION: 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;
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

LEGISLATION CITED: Civil Liability Act 2002, ss 5B, 5C, 5D, 5E, 42, 45
Supreme Court Act 1970, ss 75A, 101(2)(e)

CATEGORY: Principal judgment

CASES CITED: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Angel v Hawkesbury City Council [2008] NSWCA 130
Beale v Government Insurance Office (1997) 48 NSWLR 430
Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637
Blacktown City Council v Hocking [2008] NSWCA 144
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hull v Thompson [2001] NSWCA 359
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Leichhardt Council v Serratore [2005] NSWCA 406
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Markson v Cutler [2007] NSWSC 1515
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Moylan v Nutrasweet Company [2000] NSWCA 337
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Najdovski v Crnojlovic [2008] NSWCA 175
Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423
New South Wales v Fahy [2007] HCA 20; (2007) 236 ALR 406; (2007) 81 ALJR 1021
North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240
Payne v Parker [1976] 1 NSWLR 191
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362
Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 238 ALR 761
Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Brown [2006] NSWCCA 220; 66 NSWLR 540
Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818
Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

PARTIES: Council of the City of Liverpool (Appellant)
Maria Turano (First Respondent)
Sydney Water Corporation (Second Respondent)

FILE NUMBER(S): CA 40330/07

COUNSEL:
G M Watson SC; N J Polin (Appellant)
R B M J Toomey QC; M J McAuley (First Respondent)
S Torrington (Second Respondent)

SOLICITORS: Tresscox (Appellant)
Paul A Curtis & Co (First Respondent)
DLA Phillips Fox (Second Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 322/04

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

LOWER COURT DATE OF DECISION: 2 May 2007

- 5 -

CA 40330/07

BEAZLEY JA
HODGSON JA
McCOLL JA
31 October 2008

Council of the City of Liverpool v Maria Turano & Anor

Headnote

Mr Turano was critically injured when a tree fell onto his car during a wind storm. He died the following day. His wife, Mrs Turano, and their two children were also in the car at the time. Mrs Turano brought proceedings against the Council and Sydney Water, claiming damages for loss of dependency and injury.

A central issue at trial was what caused the tree to fall. The immediate cause of tree falling was the strong wind. However, the root system showed signs of having been affected by a pathogen. A culvert drain was installed near the accident site. Water drained from east to west into a pit cut out of the surrounding impermeable clay, then drained out over pastureland by means of a tail-out drain. In 1981, Sydney Water installed a water main running north to south, traversing the culvert pit. The water main was laid in a bed of sand, which itself was laid in the impermeable clay that formed the wall of the culvert pit.

At the time of the accident, the tail-out drain had ceased to function and probably had not functioned for a long period of time. Mrs Turano and the Council both contended that water from the culvert had been diverted away from the pit via the sand bed in which the water main was laid and affected the roots of the tree.

Delaney DCJ found the Council was liable in negligence, but that Sydney Water was not. His Honour held that the Council had a duty of care to maintain the culvert, but excluded Sydney Water from liability, who he found had installed the water main in accordance with accepted engineering practice. The cross-claims brought by the Council and Sydney Water against each other were dismissed.

The Council appealed, and Mrs Turano cross-appealed.

I) Case against the Council of the City of Liverpool: the Council was not liable in negligence: Held per Beazley JA (Hodgson JA agreeing and McColl JA agreeing with the orders of Beazley JA but for slightly different reasons)

The Council did not owe a duty of care: Held by Beazley JA (Hodgson JA agreeing, McColl JA contra)

1. A duty of care is not owed in the abstract and it is necessary to consider the content of a duty of care: [112]-[118], [236].

2. The particularity with which that content needs to be identified will be depend upon the particular case: [112]-[118], [236].

Vairy v Wyong Shire Council

Graham Barclay Oysters Pty Limited v Ryan

Romeo v Conservation Commission of the Northern Territory

Modbury Triangle Shopping Centre Pty Ltd v Anzil

Nagle v Rottnest Island Authority

Roads and Traffic Authority of NSW v Dederer

Mulligan v Coffs Harbour City Council

3. The Council had no duty of care to maintain the culvert drainage system. As the culvert discharged into a pit of impermeable clay, it would not have been foreseeable that the culvert would saturate the surrounding soil, or that the drainage system would become clogged or obstructed and adversely affect the surrounding trees. Further, there was no evidence that the Council knew that either the water main or the Telstra line had been installed: [126]-[129], [236], [244], (McColl JA contra at [412]-[417]).

4. The Council had no ad hoc duty of care to investigate the culvert, arising from the Council’s three-yearly road inspections and road widening plans that identified the culvert and its lack of a tail-out drain. There was no evidence that the Council workers who performed these tasks were engineers, nor was there sufficient evidence of culvert failure to put them on enquiry: [140]-[143], [158], [236].

Application of s 42 of the Civil Liability Act

Held per Beazley JA (Hodgson and McColl JJA agreeing)

5. Section 42 of the Civil Liability Act 2002 states the principles against which the liability of a public authority must be determined. Those principles relate to the functions and resources of the authority. The section applies both at the stage of duty and breach: [147], [236], [257], [417].

6. The Council adduced evidence of its budget allocations, state of assets and the predicted cost of bringing its drainage assets to a proper condition. It was therefore necessary for the trial judge to engage in some analysis of this evidence that related to s 42, who had failed to adequately do so: [152]-[155], [159]-[160], [236], [257], [417].

Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited

Breach of Duty

Held per Beazley JA (Hodgson and McColl JJA agreeing)

7. In determining the question of breach, an analysis of the magnitude of risk as compared to the costs of protecting against such a risk, is required by s 5B of the Civil Liability Act and the principles stated in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. The trial judge did not do so: [167]-[171], [236], [257].

8. The judicial obligation to give reasons extends to inferential findings. The omission to identify the facts upon which an inference is based amounts to error: [170], [236], [257].

Waterways Authority of New South Wales v Coal & Allied Operations Pty Limited

Causation

Held per Beazley JA (Hodgson JA agreeing and McColl JA agreeing with the orders of Beazley JA but for slightly different reasons)

9. The expert evidence did not establish that the injury sustained by the tree falling was caused by any breach of the Council: [178], [236], (McColl JA agreeing at [417]).

Application of s 45 of the Civil Liability Act

Held per Beazley JA (Hodgson and McColl JJA agreeing)

11. A consideration of the Civil Liability Act, s 45, is fundamental to the determination of the Council’s liability. The trial judge erred in failing to consider this section: [181], [236], [417].

12. In order for the Council to fall outside the protection afforded by s 45, it had to have actual knowledge of the particular risks of the failure of the culvert drain, caused by the installation of the water main: [182], [236], [417].

13. There was no evidence that the Council had the requisite knowledge for the purposes of s 45: [190]-[192], [236], [417].

II) On the cross-appeal against Sydney Water: Sydney Water was liable in negligence

Held per Beazley JA (Hodgson JA agreeing, McColl JA dissenting)

Foreseeability

14. The question of foreseeability is determined by asking whether a reasonable person in the defendant’s position would have foreseen that his or her conduct involved a risk of injury to the plaintiff, or a class of persons including the plaintiff: [199], [236].

Wyong Shire Council v Shirt

15. Foreseeability is not determined by asking whether the particular risk of injury that eventuated ought to be foreseen: [202], [236].

Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
(applied)

16. It was foreseeable that, by laying the water main in sand which acted as a conduit for water, in circumstances where the water main was installed in a position that both breached the existing draining system and obstructed the drainage of water from the culvert, that there could be an effect on the surrounding area such as might cause harm: [203]-[204], [236], [242], [243], [254].

Duty and breach

17. Sydney Water had a duty to install the water main in such a way that the integrity of the culvert drainage system was not compromised: [210], [236], [243], [252], [254].

18. This duty was breached in two respects, first by laying the drain at a higher level than the discharge drain from the culvert, which caused periodic damming of the drain. Secondly, by laying the drain in sand, which permitted the water to drain northwards, so as to undermine the roots of the tree: [211], [236], [241]-[243], [254].

Causation

19. The harm suffered was causally related to Sydney Water’s breach of duty: [214], [236], [254].

Judicial obligation to give reasons

20. The judicial obligation to give reasons extends to engaging with the expert evidence to explain why such evidence is accepted or rejected: [218], [236].

Flannery v Halifax Estate Agencies Ltd

Moylan v Nutrasweet Company

Wiki v Atlantis Relocations

21. The trial judge’s omission to clearly state which evidence he accepted, resolve the differences in the expert opinions and inconsistent fact finding, amounted to appealable error: [220], [221], [236].

Per McColl JA (dissenting)

22. The question whether it was foreseeable that laying the water main would exposed the plaintiff to a risk of injury had to be determined by looking at the position at the time the water main was laid: [361] ff.

Vairy v Wyong Shire Council

New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (referred to).

23. Mrs Turano and the Council’s contentions as to foreseeability depended on the proposition that laying the water main exposed the tree’s roots to water-logging from the water main trench and, consequently, to the risk of such damage as would destabilise them. The evidence did not establish this was a possible consequence of laying the water main.

24. There was no evidence of the objective facts from which it could be inferred that water from the water main trench reached the tree’s roots, or that it did so in a manner which caused the intermittent water logging identified as the probable cause of the diseased root system. The evidence did not rise above the level of conjecture or speculation: [360], [361], [401]-[411].

Bradshaw v McEwans Pty Ltd

Jones v Dunkel

Luxton v Vines

CA 40330/07

BEAZLEY JA
HODGSON JA
McCOLL JA

31 October 2008

Council of the City of Liverpool City v Maria Turano & Anor

Judgment

1 BEAZLEY JA: On 18 November 2001, Napoleone Turano was critically injured when a Grey Box eucalyptus tree (the tree) fell onto his car while he was driving along Edmondson Avenue, Austral. He died on 19 November 2001. Mr Turano’s wife Maria (Mrs Turano) and his two children were passengers in the car at the time and were injured. Mrs Turano brought proceedings on her own behalf and on behalf of the two children against Liverpool City Council (the Council) and the Sydney Water Corporation (Sydney Water), claiming damages for physical and psychological injury and loss of dependency arising out of the accident.

2 The liability aspect of the proceedings was heard and determined by Delaney DCJ, who held that the Council was liable in negligence, but that Sydney Water was not. Accordingly, there was a verdict for Mrs Turano against the Council. A verdict was entered for Sydney Water on the claim against it. The cross-claims brought by the Council and Sydney Water against each other were dismissed. His Honour held that had Sydney Water been found negligent, he would have attributed responsibility for the accident as to 25 per cent to Sydney Water and 75 per cent to the Council.

3 The Council appeals against the verdict against it. Mrs Turano has cross-appealed against the dismissal of her claim against Sydney Water.

4 Leave to appeal is required on both the appeal and the cross-appeal, as the determinations on liability are interlocutory orders only: see Supreme Court Act 1970 s 101(2)(e). There is also a question as to whether the proceedings before his Honour related to the proceedings of Mrs Turano only, or whether he was also hearing the liability issue in the children’s proceedings. Whatever be the position, Mr Watson SC, senior counsel for the Council, informed the Court that the Council considers itself bound in all three cases by his Honour’s determination. Sydney Water took the same position.

Issues on the appeal

Liverpool Council’s appeal

5 The Council challenges the trial judge’s finding that it was negligent in the following five respects:

(a) Duty and breach: The Council contends that the trial judge erred in finding that it owed a relevant duty of care. It also challenges his Honour’s formulation of the content of duty of care and his finding of breach of duty.

(b) Section 42 of the Civil Liability Act 2002: the Council contends that his Honour misapplied this section.

(c) Section 45 of the Civil Liability Act : the Council contends that his Honour failed to apply this section.

(d) Causation: the Council contends that his Honour erred in making a factual finding which was not open on the evidence. In particular, in concluding that water could move from the culvert pit to the tree roots, as there was no evidence to support this.

(e) Liability of Sydney Water: the Council also contends that his Honour erred in finding that Sydney Water was not liable to the plaintiff.

There was also a complaint that his Honour failed to give proper reasons.

Mrs Turano’s cross-appeal

6 Mrs Turano cross-appeals against his Honour’s finding in favour of Sydney Water. She contends that:

(a) His Honour erred in finding that it was not foreseeable that water reaching the tree root would undermine the tree;

(b) His Honour applied a wrong test when determining the question of foreseeability;

(c) His Honour made a wrong factual finding that the water main had been laid in accordance with proper practice;

(d) His Honour failed to give sufficient reasons for his findings.

Mrs Turano’s Notice of Contention

7 Mrs Turano also contends that the trial ought to have found that the tree roots were compromised by the carriage of water along the sand and that she was entitled to a verdict against the Council on the ground that it was negligent in allowing water to collect in the pit which in turn permitted the sand to become wet.

Background

8 The accident occurred when Mr Turano was driving his vehicle in a southerly direction along Edmondson Avenue. The road lies entirely within the precincts of the Council and the surrounding area is semi-rural. Sometime in the 1960s, a culvert was constructed by the Council under Edmondson Avenue, draining water underneath the road from the east side of the road to the west.

9 At the pipe end on the western side, there was a concrete surround or “head wall” and the water drained into a clay pit or trough. The pit was an excavated section of the natural ground at the end of the pipe. The ground at this point was a “very impermeable clay”. The water was intended to drain out from the pit over pasture land to the west by means of a tail-out drain. The tail-out drain was described as a “scalloped area” of excavation over which the water from the drain would disperse.

10 The evidence established that there was no tail-out drain at the time of the accident. There was an issue at trial as to whether a tail-out drain was ever constructed. That factual issue was resolved by his Honour, at [135], where his Honour found a tail-out drain had initially been constructed.

11 Work was carried out on the culvert in 2002 as part of a road widening project. That work was unrelated to the accident.

12 In about 1981, Sydney Water installed a water main running north/south adjacent to the western exit of the culvert, in effect traversing the culvert pit. The water main was laid in a bed of sand, which itself was laid in the impermeable clay that formed the wall of the pit at the western end of the culvert. Sydney Water had never checked the condition of the water main after its installation, nor had any complaint been made as to difficulties that its installation might have caused.

13 There was also a Telstra line running parallel to the water main which was probably installed some time after the water main was installed.

14 The tree which fell onto the Turano’s vehicle was located about 4 m away from the western exit of the culvert. Its canopy had a diameter of about 10 m.

15 On the day of the accident, there was a strong wind storm which was the immediate cause of the tree falling. An examination of the root system of the tree revealed that it had been affected by a fungal disease or pathogen. A scar was also observed on the trunk of the tree. There was evidence that this may have indicated that the tree was affected by a pathogen, but could also have been caused by other factors.

16 Approximately 2 million trees grow within the Council’s area of control, with approximately 64,000 being located along or near to roadways. The Council had no system of inspection of trees under its control, other than to react to any complaint that might be made. At trial, Mrs Turano had contended that the Council had a duty to inspect the roadside trees within its area. His Honour rejected Mrs Turano’s case based on a duty to inspect trees. This case is no longer pressed.

Case at trial

17 The principal factual issue at trial was what caused the tree to fall.

18 Both Mrs Turano and the Council’s case was that the tree’s root system was affected by a pathogen due to the soil being waterlogged, at least intermittently, over an extended period of time. They contended that water had reached the roots of the tree via the sand in which the Sydney Water main had been laid.

19 Mrs Turano’s case was that as the Council had been undertaking work, or other operations, in the area on at least three occasions prior to the accident, namely, in 1997, 1999 and June 2001, it would, or should, have observed: that the culvert drain was clogged with sediment and debris; that there was water ponding in the culvert pit and that the area around it was waterlogged; the tail-out drain had ceased to function; and that the tree was distressed.

20 She also claimed that the Council should have observed the state of the culvert in the course of the triennial road inspections it was required to undertake as part of its accounting compliance programme. On either basis, the Council should have been aware of the condition of the culvert and that it posed a danger to the health of the surrounding trees, and taken steps to eliminate the ponding.

21 The Council contended that, as the culvert pit was built into impermeable clay, it was not responsible for the water reaching the tree root. Rather, Sydney Water had installed its main in such a way as to breach the impermeability of the pit and the water which introduced the pathogen came via the sand in which the Sydney Water main was laid. The Council also said that as it had no actual knowledge of the weakened condition of the tree, or of the condition of the culvert, it was entitled to the qualified non-feasance protection afforded by s 45 of the Civil Liability Act.

22 Sydney Water resisted the claim against, it on the basis that its water main was laid in accordance with accepted engineering practice; that it was merely speculative that the water had reached the roots via the sand in which the water main was laid; and that as the roots of the tree would have extended beyond the culvert, the water could have reached the roots directly from the culvert. In this regard, it contended that although the clay had a high degree or impermeability, water would still move through it, albeit at a significantly slower rate than sand.

The horticultural evidence

23 The horticultural experts were Messrs Meys, Freeman, Polsen and Castor. All experts except Mr Meys were in agreement that the tree’s root system had been weakened due to the introduction of a pathogen.

24 Mr Meys inspected the tree about three weeks after the accident, but could not find any fungal pathogens. He concluded that the tree was in poor health and it was that, together with recent flooding in the area, that caused the tree to fall. None of the parties sought to resurrect Mr Meys’ opinion in this regard.

25 Although the experts were substantially in agreement that the tree roots were affected by a pathogen, they were not in agreement as to the cause of the introduction of the pathogen.

26 In the report of CPE Tree Services, dated 20 November 2001 (which, as I explain below, was written by Mr Freeman), the opinion was expressed that:

“The tree failed due to a combination of root damage from a root pathogen (Phytophthera), which can be attributed to the permanent rise in the water table from the roadside drain’s poor performance to drain away and being located around the tree’s root system, and the rotting root system of the remaining root ball from the permanent water logging, (Anaerobic Soil), has resulted in the tree’s remaining root system being unable to withstand the large amount of wind movement, which has resulted in this tree’s failure.”

27 The trial judge, at [27], accepted the evidence of Mr Freeman. This meant that he accepted that the root damage was due to a permanent rise in the water table, which he attributed to the culvert having no tail-out drain. However, the reference to “water table” in the CPE Tree Services report was not relied on at trial. Rather, the phrase “water level” was substituted. Accordingly, his Honour’s acceptance, at [26]-[27], of Mr Freeman’s evidence that there was a “permanent rise of the water table … located around the tree’s root system” was misconceived.

28 Mr Freeman accepted in cross-examination that he had no expertise in soil analysis, which falls within the area of expertise of a geotechnical engineer. Accordingly, his evidence given in cross-examination, that the permanent rise in the water level was due to the poor performance of the roadside drains, ought not to have been accepted by the trial judge. Mr Freeman had no expertise either in soil analysis or drainage.

29 There was a question whether the effect on the tree’s health would have been observable, other than by an inspection of the root system. Mr Freeman gave evidence that he had observed “white marks” on the tree, about a metre from the ground. He said that the “white marks” indicated the presence of a secondary infection, known as “phytophthera”, within the trunk or lower root system, which would have warranted further inspection and possibly a decision to remove the tree. He also expressed the opinion that the crown of the tree did not show signs of distress. As already indicated, his Honour accepted Mr Freeman’s evidence and none of the parties directed any criticism to those aspects of his evidence.

30 His Honour next referred to the report of Mr Polsen of CPE Tree Services, dated 20 November 2001. In that report, the opinion was expressed that a permanent rise in the water table had permitted the introduction of the pathogen and that the root system was dying due to a lack of soil air, which in turn was due to the permanent wetness of the soil. The trial judge accepted Mr Polsen’s evidence, where it was not contradicted by “accepted” oral evidence: [39].

31 Although the trial judge dealt separately with the evidence of Mr Freeman and Mr Polsen, and stated he accepted Mr Polsen’s evidence in the terms to which I have referred, Mr Freeman was in fact the author of the report to which Mr Polsen put his name, as the principal of CPE Tree Services. This is apparent from a letter dated 27 September 2006, from Mr Freeman to Mrs Turano’s solicitors, where he stated he was the “author” of the CPE report, although he inspected the site with Mr Polsen. Accordingly, Mr Polsen’s opinion/evidence is properly to be understood as that of Mr Freeman’s. It follows that the reference in the CPE report to the permanent rise in the water table should be disregarded.

32 Mr Castor, arborist, was of the opinion that the tree was subject to intermittent waterlogging, which predisposed the root system to infection. He considered that it was unlikely that the installation of the water main had any impact on the tree failure: [40]-[47]. His Honour made no finding as to whether he accepted these aspects of Mr Castor’s evidence, although it is possible that he did, as he accepted Mr Freeman’s evidence that the increase in the water level around the tree root was caused by the “poor performance of the roadside drain”.

33 Mr Castor was of the opinion that it was unlikely that the problem with the tree would have been detected by a “drive by” type inspection. He also said it was not clear whether the scar on the tree would have been visible from a passing car. His Honour made no finding as to whether this evidence should be accepted, although there was no evidence to the contrary.

34 Mr Castor was also of the opinion that the tree’s crown did not show signs of distress: [37]-[39]. He considered that the tree failure would have been very difficult to predict, unless considerable funding was available for a detailed assessment of all roadside trees. He was of the opinion that there was no reasonable evidence that would have required the Council to undertake such work, which would have been well outside the Council’s budget and would have been difficult to justify: [43]-[46].

35 As I have indicated, there was a challenge to the expertise of the horticulturalists to give evidence as to the quality and functioning of the surrounding soil. The purpose of this challenge was to demonstrate that the horticulturalists’ evidence as to how the water got to the tree roots and in particular, whether it came from the culvert and why that was so, should not have been accepted by his Honour.

36 I have already indicated that his Honour’s acceptance of Mr Freeman’s evidence in relation to the water level was flawed, given Mr Freeman’s concession that he did not have any expertise in soil analysis. Likewise, he had no engineering expertise and his evidence in relation to the drains needed to be assessed in that context. His Honour failed to make his assessment of Mr Freeman’s evidence in that context. It is necessary, therefore, to turn to the geotechnical evidence in the matter, which was given by Mr Lumsdaine, and the engineering evidence.

Geotechnical evidence

37 Mr Lumsdaine is a geotechnical engineer of many years’ standing. He inspected the site and undertook fieldwork involving subsurface investigation around the culvert on about 10 occasions in 2006. His Honour noted that Mr Lumsdaine had done investigative work involving test pits; that there was no water when he dug the pits; and that the culvert and discharge pit were dry. He inspected the pit on another occasion after heavy rain. His Honour also recorded Mr Lumsdaine’s opinion that the sand under the Sydney Water pipe would act as a drain and that was the likely route of water to the tree root ball.

38 The trial judge, at [85], stated that

“Mr Lumsdaine was of the opinion that the water going to the tree root ball almost certainly went through the sand, the backfill of the water main.”

39 In fact, extensive investigative work undertaken by Mr Lumsdaine at the site revealed that the outlet pit of the culvert was excavated into very stiff residual clay, which he described as very impermeable material compared, relevantly, to clean sand. He described the difference in the permeability of clean sand to be “at least three orders of magnitude [that is, 1,000 times] greater than the clay”. He reiterated that it was “quite possible” that sand’s permeability could be five orders of magnitude greater than clay. Importantly, for the purposes of understanding the effect of water on “very impermeable” clay, he explained:

“Water ponded intermittently against a face of very stiff residual clay might saturate and soften the outer ‘skin’ of the exposed clay, but it would not flow (seep) through the body of the clay.”

40 Mr Lumsdaine said that there was evidence there had been a tail-out drain at the western end of the culvert. Mr Lumsdaine also observed and commented upon the construction of the water main in a report dated 3 April 2006, in the following terms:

“… the water main was probably installed in the following general manner. A trench was dug through the surface filling and the underlying natural clay. The base of the trench would have comprised natural clay. The lower part of the trench was filled with clean sand backfill up to the design level of the pipe base. The pipe was then laid on the sand bedding, and then further sand filling placed around the sides and top of the pipe. The top of the trench was sealed by placing and compacting clay filling. At the location indicated, there was about 300 mm depth of clean sand filling below the base of the pipe. The lower 230 mm of this stratum of sand was observed to be fully saturated with free groundwater, presumably perched on the underlying clay base of the trench.”

41 His investigations revealed that in periods after heavy rain, water would be retained at a level that would maintain the sand near the roots of the tree in a saturated state for 23 days.

42 Mr Lumsdaine concluded from his investigations that:

“(a) The outlet pit was originally excavated into impermeable clay.

(b) There appears to have been an original tail-out drain, which is now backfilled.

(c) Water that ponded, for whatever reason, in the outlet pit would not have flowed laterally through the surrounding low permeability clay.

(d) The clean sand backfilling around the Water Board main would have acted (and continues to act) as an outlet drain to the outlet pit.

Engineering evidence

43 The other expert evidence in the case was that of the expert engineers Mr Bewsher, Mr Burn, Mr Kiernan and Mr Clark.

44 Mr Bewsher is an engineer with 26 years experience in investigation and design of water resources and water-related projects. He was of the opinion that the culvert was constructed between the period 1961-1970. He considered it unlikely that this was a “drowned” or “blind” culvert, as he had never, in his experience, seen such a culvert in a position such as at the accident site. He said that the construction of the culvert with what he described as a “flared wing wall” type headwall, meant that the culvert was to be free-draining and that as originally constructed, there was a tail-out drain. He said that the installation of the utility services (that is, the water main and Telstra line) at a higher level than the invert of the culvert made it impossible for the culvert to be free-draining.

45 In his report dated 6 April 2006, Mr Bewsher said that the sand in which the water main was laid was “highly permeable allowing water to drain easily along the trench, potentially for a very long distance”. He said that the sand backfill in the water main trench provided an efficient hydraulic conduit for the passage of water along the trench. By contrast, the clay material was not an efficient medium for the passage of water.

46 He concluded that, given the impermeable nature of the subsurface, it was unlikely that water ponding at the culvert outlet could easily travel to the tree through the clay. However, if water did reach the tree roots, it was more likely that this had occurred via the sand backfill laid in the water main trench. He also commented that water may have originated from sources other than the culvert. He acknowledged that the water in the sand backfill could travel in either a northerly or southerly direction, depending on the grade of the base of the water main trench, and he did not know in which direction the grade fell.

47 Mr Bewsher reviewed a survey that had been carried out by the Council in November 1999 for the purposes of the preparation of drawings for a road widening proposal in relation to Edmondson Avenue. He also reviewed aerial photographs of the area dated 1978 and 1982, which show the presence of a tree with a significant canopy in approximately the same position as that shown on the 1999 survey. Mr Bewsher stated that excavation of a trench for the water main and to a lesser extent, the Telstra cables, would have conflicted with the tree roots, if the tree was the same one present when the Council’s survey was carried out in 1999. The 1999 survey and road widening drawings are discussed further below.

48 His Honour, at [52], accepted Mr Bewsher as “a reliable witness and accurate, not being prepared to speculate”. This appears to be a finding that his Honour accepted Mr Bewsher’s evidence.

49 Mr Burn, consultant engineer, had over 20 years’ experience advising council authorities in relation to development projects and planning and had formerly been employed by the Parramatta City and Tumut Shire Council as an engineer.

50 Mr Burn stated, in his report of 1 August 2005, that culverts are installed where a road passes over a clearly recognisable low point, that is, low-lying land, so as to convey surface water beneath the road’s surface. He said this served two purposes. First, it prevents water build-up flooding over the road pavement, thereby minimising the risk of motor vehicles aquaplaning during wet weather. Secondly, it ensures surface flows are drained away and do not lie adjacent to the road, resulting in a saturated/weakened road pavement, which would have the effect of shortening the life of the roadway. The trial judge, at [59], stated that he accepted Mr Burn’s evidence that the design and construction technique for the culvert was typical of culverts in New South Wales.

51 Mr Burn was of the opinion that the culvert was designed to drain into the ground “downstream”, that is, in a westerly direction. His Honour, at [54], accepted this evidence. Mr Burn considered that as originally constructed, the culvert had a tail-out drain. During the course of cross examination by senior counsel for the Council, Mr Burn was shown photographs taken by Mr Bewsher in 2006 which it was suggested showed the tail-out drain. He responded that there appeared to be a “stream path, a dry stream bed or whatever, yes”. In later cross-examination by counsel for Sydney Water, he said that from his inspection of the site after the accident, due to the degree of vegetation he observed on site, there was nothing to indicate its existence.

52 Mr Burn agreed that the walls and base of the outlet pit on the western side were of very impermeable clay, which would operate a “little like concrete lining of the culvert outlet pit”. He agreed that water will only pass very slowly through very impermeable clay. In this regard, he accepted the expertise of Mr Lumsdaine.

53 His Honour, at [54], accepted Mr Burn’s evidence that the utility mains had been laid at a higher level than the invert of the culvert. At [58], his Honour stated that the effect of Mr Burn’s evidence was that the ponding of the water was relevant to the ultimate undermining of the tree’s root system. This would appear to be a reference to the opinion expressed in his report dated 21 February 2006, where he said:

“The outlet from the under road drainage culvert was blocked downstream preventing water from leaving the vicinity of the pipe outlet. The prolonged presence of water saturated the ground weakening soil strength.

The flat grades in the area meant the outlet from the pipe culvert would need to be kept obstruction free to minimise water build-up leading to soil saturation. The growth of vegetation in the pipe outlet area served to block water outflow.

54 However, Mr Burn’s opinion that growth of vegetation in the pipe outlet blocked the water outflow did not, in my opinion, survive his oral evidence. In cross-examination, he stated that he considered that the outlet pit was not part of the original construction of the drain, but that it had been dug out at a later time or times. He said:

“… the fact that … there was no tail out area means that any time a work crew goes to clear the outlet culvert, they’re going to be digging down and leaving a – effectively a hole similar in shape to a pit”.

55 He continued that any silt flying into the culvert would eventually cause the culvert to fill, or clog, so that during times of flood water would cross the road rather than flow through the culvert, and the Council would then go out and clean the culvert. He conceded, however, that he had no evidence that this culvert had ever clogged.

56 In his examination in chief, Mr Burn stated that both the Telstra main and the water main crossed the outflow area (that is, the outflow from the culvert), and prevented free discharge from the culvert. He said the main obstruction would be by the water main. He agreed with the same proposition put to him in cross-examination, namely, that the installation of the water main would block the tail-out drain and impede the dissipation of the water going through the culvert.

57 His Honour recorded Mr Burn’s evidence, given in cross-examination, that water had ponded in the culvert because it could not drain freely. He considered that the obstruction was caused by the water main and the Telstra pit. He said that the water main would aggravate the drainage conditions through the culvert and this would have the effect of keeping the sand surrounding the water main wet: see [59], [60], [62] and [63]. At [69], his Honour noted that Mr Burn said that the same method of installation would be used, no matter at which level the water main was laid.

58 At [69], his Honour accepted Mr Burn’s evidence that it would be difficult to know precisely the water levels in the clay beside the road without a detailed scientific analysis. This is another reason why Mr Freeman’s evidence in relation to the water levels is problematic, as Mr Freeman did not carry out any tests, or rely on any tests that had been carried out, to support his opinion.

59 At this point of his judgment, his Honour made no reference to Mr Burn’s evidence that the water main, being laid at a level higher than the invert to the drain, obstructed the discharge of water downstream from the culvert. However, at [144], his Honour appears to accept that the water discharged from the culvert was partly dammed by the water main and water ran along the sand base allowing water to more readily reach the tree. I will return to this later.

60 Mr Burn expressed the opinion that Sydney Water should have foreseen that the position of the water main would have obstructed the drainage from the culvert and that this could have been avoided by creating a further drain, to direct the culvert discharge westwards. He also considered that the installation of the Telstra pit had contributed to the ponding. He said because of that obstruction, any clearing of the culvert would require digging at the point of the outlet, leaving a pit: [60]. Mr Burn considered that the water main and the Telstra pit might have needed to be adjusted to allow the culvert water to run away and not build up, or pond.

61 Mr Burn concluded that the water main and Telstra line should have been laid below the level of the culvert outlet pipe. He considered that had this been done, the only obstruction to the drainage of water away from the culvert was the “less than ideal downstream conditions, not the ‘dam’ caused by the utility mains”. In an earlier report, dated 29 June 2005, Mr Burn had concluded that Sydney Water had not appeared to make provision to ensure the water main, when laid, did not impact on culvert water discharge flows.

62 Mr Burn said the water main had been laid in accordance with standard practice, that is, by placing the water main on a bed of sand, which itself was laid on the base of the excavated trench into which the water main was to be laid. However, he said that in this case, the effect of the installation of the water main in the bed of sand was to create, in effect, a north/south drain. Mr Burn was of the opinion that anybody who might have considered the effect of installing the drain in this manner at the culvert would have realised that the creation of a north/south drain was a probable consequence of laying the water main in the sand at that place.

63 One solution that would have ameliorated this consequence was for Sydney Water to create a drain so as to provide for further westward movement of the water through the culvert. Mr Burn said this could have been done “quite easily”, although it would have required Sydney Water to work on private land. Another ‘solution’ was that the water main could have been installed in the same manner as in the culvert further down Edmondson Avenue, where the water main was installed under the bed of the culvert. Mr Burn said that would have been a better method of installation.

64 In the report of 29 June 2005, Mr Burn also referred to the survey and other investigations carried out by Council in 1999 as part of preliminary work in respect of a road widening proposal. In June 1999, bore hole investigations had indicated that the ground was moist at all depths below the road pavement and the moisture was in the tree roots. However, the bore hole investigations that showed ground moisture were not at the site of the culvert, but were conducted between approximately 100 m and 500 m away. Drawings prepared from survey data dated November 1999, identified the culvert, the water main and the Telstra service. Mr Burn also said that design details prepared between the date of the survey and the completion of the final design for new work on the culvert, in May 2001, also indicated knowledge of the existence of the drain.

65 Mr Burn provided a further report, dated 28 June 2006, in which he addressed the processes that should have been undertaken by the Council as part of its assets identification programme. The assets identification programme was required to be undertaken for the purposes of the preparation of Council’s budget. Mr Burn was of the opinion that an inspection of this culvert should have been undertaken by June 1997, so as to comply with Australian Accounting Standard 27 (AAS 27).

66 Compliance with AAS 27 required local councils to physically identify, inspect and rate all of their assets according to their condition. Mr Burn stated that this required councils, inter alia, to adopt formal asset management procedures to initiate maintenance/rehabilitation programmes. Drainage assets were included in the budget for the financial period ending June 1997. He said that as part of this process, every road and drain, including culverts was inspected.

67 Mr Burn said that in the first scenario, the clearing works “would have identified the public utility infrastructure so approaches to the public utilities to remedy the situation could be instigated”.

68 He said that in that circumstance, the person inspecting the culvert in Edmondson Road should have recognised that the discharge area required clearing to facilitate stormwater discharge and arranged for the issue of a works instruction to clear the culvert discharge area. Alternatively, the presence of the water main and Telstra pit blocking the discharge to the culvert should have been observed and steps taken to initiate approaches to the public utilities responsible for that infrastructure, to remedy the situation.

69 Mr Burn also gave evidence that the Council had experts on storm water drains and the effect of drainage on trees and tree roots: [65]. He agreed in cross-examination that it would be his reasonable expectation that one of the things those experts might look at was the question of the culvert’s free drainage.

70 His Honour stated, at [68], that the effect of Mr Burn’s evidence was that the question whether the tree was suffering distress and whether there was ponding in the storm water outlet were matters that the Council’s storm water engineers would take into account. Presumably, his Honour meant that the engineers would have regard to these matters during the course of any inspection carried out in about 1997, when the drainage assets were first included in the Council’s budget, or during the course of other inspections, such as whilst carrying out survey work, and take action to deal with any problems that would thereby arise.

71 Except for the evidence to which I have specifically referred as being accepted by the trial judge, his Honour referred to Mr Burn’s evidence without comment. However, at [66], his Honour accepted that the Council had the relevant expertise, when the culvert was created and up to the date of the accident. Presumably, the “relevant expertise” was expertise relating to storm water drains and their effect on trees and roots as stated by Mr Burn.

72 Mr Kiernan, consultant engineer, inspected the site on 19 February 2002 and prepared a report dated 5 June 2002. Mr Kiernan reported that at the time of his inspection the culvert was blocked with sediment and the surrounding area was saturated with stormwater from the culvert, which had not drained away, because the culvert was blocked and there was no tail-out drain.

73 Mr Kiernan concluded that the fact that the culvert was blocked with sediment and debris had caused the ground to become saturated.

74 Mr Kiernan concluded that the blockage to the outlet of the culvert was due to the lack of a defined drain and lack of any regular maintenance to remove sediment and debris, which in his opinion had not been serviced for some time.

75 He also considered that the water main and Telstra cables were close to the tree, and there was a possibility of root disturbance at some time by the authorities responsible for laying these utilities, if they were laid when the trees were mature. It is convenient to note at this point that there was no evidence to support this premise. Mr Kiernan concluded that the Council was responsible for not maintaining the culvert properly and allowing water to pond near the tree.

76 Mr Kiernan was not cross-examined and his Honour made no finding as to whether he accepted his evidence. None of the parties made reference to Mr Kiernan’s evidence in their oral submissions to the Court on the appeal.

77 Mr Clark is also a consultant engineer. He inspected the site on 19 January 2005 and provided a number of reports to Sydney Water which focussed on the construction of the outlet drain from the culvert. In his opinion, the installation of the water main and the Telstra pit at a higher level than the culvert did not block the discharge from the culvert pipe. Rather, the blockage was due to the fact that there was no outlet channel from the culvert and that the blockage to the water discharged from the culvert was caused by the natural ground in which the services were laid.

78 Mr Clark expressed the opinion that the major cause of the tree falling was a combination of strong winds and the tree’s poor root system. He also considered that the soil around the tree had been softened by water and that the water had come from rainfall, rather than from any flooding from the culvert.

79 Mr Clark examined a number of the other expert reports. He was unconvinced by Mr Lumsdaine’s view that there had been a tail-out drain at the time the culvert was originally constructed. Mr Clark also expressed the view that the Council would have known the state of the culvert outlet from their inspections of the road from time to time and considered that they had taken no action to establish any free draining outlet.

80 At [84], the trial judge summarised Mr Clark’s opinion as being that the area near the tree was wet. His Honour did not make any express finding at that point of his judgment as to whether he accepted Mr Clark’s report or not.

Summary of trial judge’s findings on the expert evidence

81 It is convenient, at this point, to summarise the express findings his Honour made in respect of the expert evidence.

82 As I have indicated, at [27], his Honour accepted the evidence of the arborist, Mr Freeman. Mr Freeman expressed the opinion that the tree roots were affected by a pathogen. Mr Freeman was also of the opinion that the white mark on the tree indicated the presence of the pathogen which would have warranted further inspection. He was also of the opinion that the crown of the tree did not show signs of distress. None of these findings are challenged by any of the parties on the appeal.

83 His Honour also found that Mr Freeman considered that there had been a permanent rise in the water table due to the poor drainage from the culvert. For the reasons explained above, this finding cannot stand. Nor, in my opinion, can Mr Freeman’s opinion as to the rise in the water level, for the reasons I have given.

84 His Honour made no finding as to whether the scar on the tree was visible from the roadway. However, it is apparent from his finding, at [131], that he accepted Mr Castor’s evidence as to the type of inspection of the tree that would have been warranted had the Council responded to information that the area surrounding the culvert was wet.

85 His Honour recorded Mr Lumsdaine’s opinion, at [85], that the sand underneath the Sydney Water pipe would act as a drain, both north and south, and that the water going to the tree root ball almost certainly went through the sand, although he did not make any express finding as to whether he accepted or rejected Mr Lumsdaine’s evidence. However, at [144], his Honour stated that there was evidence that the water from the culvert was probably dammed by the water main and that water ran along the sand base of the water main, allowing water to more readily reach the root system of the tree that fell, than it would have had the water main not been installed. On the assumption that this is a finding of fact, his Honour must be taken as accepting Mr Lumsdaine’s evidence on this point. In any event, there was no evidence to challenge Mr Lumsdaine’s evidence. Mr Bewsher, whose evidence was accepted, was of the same opinion.

86 If it is not correct to read his Honour’s statement at [144] as a finding of fact on this point, such a finding ought to have been made, given Mr Lumsdaine’s expertise, the absence of challenge to the evidence and its support in Mr Bewsher’s evidence. Mr Lumsdaine’s evidence in this regard was also supported by most of the engineering evidence. Likewise, his Honour’s statement at [144] in relation to the water being dammed due to the installation of the water main, if a finding of fact, involves an acceptance of Mr Lumsdaine’s evidence that the clay acted as an efficient barrier, or wall, to water discharged through the culvert. Otherwise, the water would not have dammed, but rather would have soaked into the surrounding soil.

87 As to the engineering evidence, I understand his Honour’s finding, at [52], that he accepted Mr Bewsher as a reliable and accurate witness, to be an acceptance of the totality of his evidence. Mr Bewsher said that: the culvert was originally constructed with a tail-out drain; the water main and the Telstra pit were installed at a higher level than the invert of the culvert (this seemed to be accepted by all engineers), making it impossible for the culvert to be free draining; that the water main was laid in sand which was highly permeable, allowing water to drain along the trench in which it was laid; and that if water did reach the roots of the tree, it was likely that it did so via this mechanism.

88 It was open to his Honour to accept Mr Bewsher’s evidence which was the subject of cross-examination and was supported by other expert evidence.

89 His Honour, at [135], specifically made a finding that, as originally constructed, the culvert drainage system included a tail-out drain. It is convenient to note, at this point, that it seemed to be common ground amongst the engineering experts that the culvert was blocked by sediment and that the tail-out drain had ceased to function.

90 His Honour accepted Mr Burn’s evidence that the culvert had been laid in accordance with design and construction techniques applying at the time and that it was designed to drain downstream: see at [59] and [54] respectively.

91 Critically for his finding in respect of Sydney Water’s liability, his Honour found, at [146], that the water main was laid in accordance with good practice. It would appear that this finding was based on Mr Burn’s evidence that the water main would be laid by the same method, that is, on a bed of sand, regardless of the level at which the pipe was laid. It should be noted, however, that in making this finding, his Honour overlooked Mr Burn’s evidence that the water main should have been laid at a lower level.

92 His Honour, at [66], also accepted Mr Burn’s evidence that the Council had “relevant expertise” in relation to the culvert both at the time of construction and thereafter.

Evidence of Council’s budgetary allocations

93 The next factual consideration in the matter relates to the state of the Council's knowledge in respect of both the drain and the tree, as well as Council’s budgetary priorities and allocation of funds. These factors relate to the operation of ss 42 and 45 of the Civil Liability Act.

94 The Council’s risk management co-ordinator, Mark Brookfield, gave evidence that there were 779 km of roads in the Council area and 1,400 ha of ground under its control. In 2001, at the time of the accident, the Council had 562 employees. There were about 64,000 trees planted along roads in the city and about another 2 million trees on Council property: [72].

95 As at the date of the accident, the Council did not have a systematised practice in respect of the inspection of trees and culverts, but would react to a complaint or report in respect of the condition of a particular asset. If a complaint was made, the Council would carry out an inspection and take such action as was considered necessary: [73]. Mr Brookfield said that, so far as he was aware, no one within the Council was qualified to inspect a tree and determine if something was wrong with it, although Council employees would have the qualifications or experience to determine if something was wrong with the culvert itself: [74].

96 Mr Brookfield said that there was no record in Council of any report being made in respect of the tree that fell upon Mr Turano’s car. He said that there was no protocol for external authorities notifying the Council of an intention to carry out work or to install utilities and his searches of the Council’s records did not reveal any evidence that it knew about the existence of the water main.

97 Mr Brookfield also gave evidence as to allocations in the Council’s budget. The annual report for 2001/2002 was in evidence and revealed that demands on the infrastructure budget were substantial. Drainage assets were specifically dealt with in the report and were stated to have an “average overall condition assessed as fair”. Expenditure on “preserving or rectifying” drainage assets in the 2001/2002 year was approximately $413,000 and it was predicted that approximately $35 million was required to restore all drainage assets to a satisfactory standard.

Evidence of Council activity in the area

98 It is possible that the Council inspected the culvert sometime prior to June 1997 as part of the identification of its drainage assets. However, there was no evidence whether it had in fact done so, and if so, what the nature and extent of any such inspection was. There was evidence, however, that the Council had engaged in activities in the area on a number of occasions from 1999 up until the accident.

99 As previously mentioned, the Council undertook borehole investigations in June 1999, which showed the ground to be moist at all depths below the road pavement. However, these investigations were some distance from the culvert.

100 In November 1999, the Council surveyed the area in the course of undertaking preparatory work for a road-widening proposal of Edmondson Avenue. Mr Bewsher stated that the 1999 survey identified a large tree approximately 4 m north of the culvert outlet, with a canopy width of 10 m, which appeared to be the problem tree. It also showed the alignment of the water main to be 2 m west of the tree’s centre and the Telstra service to be approximately 1 m further west.

101 The 1999 survey formed the basis of various road widening design drawings prepared by Liverpool City Council Design Service in March 2000. Both Mr Burn and Mr Bewsher stated in their expert reports that the drawings identified the 450 mm diameter culvert, the Telstra service and the water main in Edmondson Avenue.

102 The drawings underwent a number of revisions, including the insertion of notes for the proposed modifications to the culvert area. Relevantly, these notes included at 18 June 2001, “match new table drain works into existing low point” and a handwritten note, “replants/replace ? trees”. At 22 June 2001, a note stated: “numbers and locations of 45L grey box (Eucalyptus moluccana) trees to be planted shall [be] determined by superintendent on site” and handwritten note, “replace trees to be removed Location to be confirmed on site by the superintendent”.

103 On the drawing dated 18 (or possibly 10) July 2001, there were handwritten notes “no tailout presently possible tailout??” and “clean and desilt”.

104 The final drawing, dated 31 January 2002, which was specified to be the date of completion, release and acceptance by the client, bore the notes, “clean and clear existing tailout of vegetation and debris”, “match new table drain works into existing low point”, “clean and desilt existing pipe crossing”. The latter note was accompanied by an arrowed point to the “existing pipe crossing” marked on the drawing, which I understand to be the culvert.

105 There was no evidence as to when, or by whom, the handwritten notes were added to any of the drawings, and it should be observed that the final drawing post dated the accident.

106 Mr Brookfield stated that whilst surveyors involved in the plans for the widening of Edmondson Avenue gave consideration to the removal or replacement of trees, this would only have been made in the context of removing trees that were in close proximity to the road and a danger to road users, who might run off the road. Such surveyors would not have the requisite knowledge of a qualified arborist to assess the health of the tree.

107 Road widening works were carried out in August 2002, in which the culvert at the site was extended as part of Variation No 8 for a road reconstruction contract between Liverpool City Council and Power Demolitions. The pipe was extended and the head wall moved, both approximately 1 m west.

108 The Council had a system for regular three-yearly inspection of roads, but that system did not include the inspection of culverts adjoining the roads.

Council’s challenge on duty

109 At [100], his Honour stated that the Council conceded that it owed a duty to design and construct a culvert property, but disputed that it had a duty to inspect the trees or the culvert. At [113], his Honour again noted the Council had not disputed it owed a duty to take reasonable care. He said, however, that it was nonetheless necessary to consider the content or scope of that duty, before determining whether there had been breach. On appeal, the Council submitted that his Honour’s understanding was wrong and that at all times, it had contested it owed a relevant duty of care. It said this was an essential issue in the proceedings and one to which specific submissions were directed.

110 His Honour expressly recognised the importance of determining the content or scope of that duty. In this regard his Honour held, at [130], that:

“… the content of the duty of the Council was to take steps to keep the culvert clear of obstructions affecting the flow of water from east to west. This could have been done by regular inspections of the culvert.”

111 Accordingly, it is convenient to consider the Council’s challenge to his Honour’s finding that it owed a duty of care as raising the question whether it owed a relevant duty. In this regard, the Council contended that his Honour made no clear finding as to the content of the duty and that in any event, the content of the duty of care that his Honour appeared to have found was not open on the evidence. The first of these complaints can be put to one side. His Honour made a specific finding, at [130] (reproduced above), as to the content of the duty owed by the Council. The real question in issue, therefore, is whether the Council owed a relevant duty of care in this case, either in the terms stated by his Honour or at all.

112 The Council submitted it is now settled law that it is not sufficient to merely articulate the duty of care owed by a local council in a broad or generalised way. Rather, what must be identified is a relevant duty, sufficiently specific to be applied to the circumstances of the case: see Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486.

113 The need to identify the content of a duty of care has been given emphasis in the last decade. Gleeson CJ observed in Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 555, that if it is not possible to identify the content of an asserted duty of care with reasonable clarity, that may cast doubt upon the existence of such duty. In Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431, Kirby J said at 478:

“It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion.”

114 In Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, Hayne J stated at 289-290:

“[103] Because the extent of a duty falls for decision in relation to ‘concrete facts arising from real life activities’: Perre v Apand Pty Ltd [1999] HCA; 198 CLR 180 at 211, it will not always be useful to begin by examining the extent of a defendant's duty of care separately from the facts which give rise to a claim. That may be possible, and useful, in a simple case (like motorist and injured road user) where the duty of care and its content are well established. In other cases, however, it may lead to an insufficiently precise formulation of the duty which obscures the issues that require consideration. That lack of precision may lie in formulating the duty too narrowly: for example, by asking did the defendant owe a duty of care to fence the part of the cliffs in its reserve from which the plaintiff fell?: Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431. It may also, as in this case, lie in formulating the duty too broadly: for example, by asking did the defendant owe any duty of care to the plaintiff?

…

115 See also the discussion of Gummow J in Vairy at [58] ff; and Hayne J at [116] ff, although there is some difference in their Honours’ approaches. Gummow J considered, at 442, that the question at issue in that case was whether the Council’s duty of care included a duty to warn against the dangers of diving. In answering this question, Gummow J referred to the starting point suggested by Brennan J in his dissenting judgment in Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 at 440, namely, looking to the nature of the danger, assessed prior to the accident, with reference to such matters as the functions of the public authority, the obviousness of the danger, and the care ordinarily exercised by members of the public.

116 Hayne J, at [117]-[118], considered that in that case it was not useful to state the duty of care owed by a statutory authority that had the care, control and management of public land to those who entered too precisely. However, he added, at [118], in what appears to be a statement of general application, depending upon the facts of a particular case:

reasonable

In each case, the content of the duty will turn critically upon the particular facts and circumstances

117 The question of the content of the duty of care arose again recently in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 238 ALR 761. Gummow J, with whose reasons Callinan and Heydon JJ agreed, stated at [43]:

“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.”

118 It is apparent from the various statements emanating from the High Court that there is no single test or principle as to how the content of a duty of care is to be determined. However, what does emerge, is that the particular circumstances of the case are relevant to that question.

119 In this case, the Council contends that his Honour’s formulation of the content of the duty of care was not open on the evidence. Reference was made to the judgment at [65], [113], [126]-[127] and [134]-[136] as being the paragraphs in which his Honour’s finding on duty appears to have been based. The challenge to his Honour’s judgment in this respect was that the findings and/or conclusions contained therein were either erroneous or not based in the evidence.

120 What follows is an analysis of these paragraphs to determine whether the Council has made out its contention.

121 His Honour accepted, at [66], that the Council had the “relevant expertise” when it created the culvert and up until the date of the accident. I understand this to be a reference to expertise in respect of the installation and maintenance of stormwater drains and the effect of those drains on trees and tree roots, being the evidence of Mr Burn to which his Honour referred at [65]. It also appears from the finding at [66] that his Honour accepted Mr Burn’s evidence that one of the things the Council’s stormwater drainage experts might look at if inspecting this culvert was “the question of the free drainage of [the] culvert” (also at [65]).

122 The evidence disclosed that there had been no regular or systematised maintenance of the culvert and its drainage system. Indeed, it was unlikely that there had been any maintenance at all. If there was a duty to keep the culvert clear of obstructions as found by his Honour, then, subject to the operation of ss 42 and 45, the finding at [66], combined with the lack of any regular inspection, may have been sufficient to find breach, especially if the evidence of Mr Burn was accepted.

123 However, the present question is whether the Council owed a duty of care, either in the terms found by his Honour, or at all. In this case, that requires a consideration of the purpose for which the culvert was installed and the physical conditions operating at the time of installation. It also requires a consideration of whether an ad hoc duty of care arose, as a result of the inspections that the Council carried out of the culvert on a number of occasions post-1997. I will deal with that question separately, as it raises the question relied upon by Mrs Turano in her Notice of Contention. Both aspects of duty also require regard to be had to the principles stated in s 42.

124 The culvert was intended to drain water under and away from the road surface. It was designed to be free draining across the pasture land to the west by means of the tail-out drain. The road was in a semi-rural area, with no houses or buildings in the immediate vicinity. The immediately surrounding soil conditions were clay. The tree population was sparse. There was no evidence as to when the tree was planted, or whether it was the product of a planting program, although it was likely that it was not, but was naturally occurring.

125 According to Mr Burn, in his report of 21 February 2006, because of the flat grades in the area, the outlet from the culvert needed to be kept clear of obstructions, so as to minimise water build-up leading to soil saturation. If that evidence was accepted, it might be argued it was foreseeable at the time that the culvert and its drainage system was constructed, the drain could become obstructed, so as to prevent the free drainage of water discharged from the culvert.

126 However, there are two more factual circumstances that need to be considered. First, the area into which the culvert discharged was impermeable clay. It would not have been foreseeable in that circumstance that water from the culvert would saturate the surrounding soil, even if the culvert was obstructed for some reason. Further, subject to Mr Burn’s evidence as to the culvert silting up, the evidence was that the only relevant obstruction of the culvert was by the water main, possibly contributed to by the Telstra line. Both the water main and the Telstra line were installed long after the culvert was built and there was no evidence that the Council knew that either had been installed. As I have explained earlier, Mr Burn effectively conceded that any obstruction was due to the water main.

127 Accordingly, without needing to consider the other paragraphs to which the Council referred in its submissions, I am not satisfied that there was a duty on the Council in the terms defined by his Honour. Such a duty would only have arisen if the Council knew, or ought to have known, at the time of installation that the culvert and its discharge draining system was likely to become clogged or obstructed, so that water might not drain away but could seep into the surrounding soil, adversely affecting the surrounding vegetation, including trees in the vicinity.

128 None of those things was established: there was no evidence that the culvert was likely to clog, other than the evidence of Mr Burn prior to his concession that there was no evidence that the culvert had clogged; and there was no evidence that the tail-out drain was likely to cease to function. Rather, the evidence was that water would accumulate in the pit after times of heavy rain, but that the ponded water would not seep into the impermeable clay surface.

129 I have reached the conclusion that there was no duty in the terms defined by his Honour without considering the application of ss 42 and 45. As there are separate appeal grounds relating to those sections, their operation is considered below. It is convenient, at this point, to continue with a consideration of the paragraphs to which the Council referred in the submission with which I have been dealing.

130 His Honour stated, at [126], that he was satisfied that the Council’s failure to properly maintain the culvert outlet so as to drain water flowing to the west:

“… more likely than not resulted in the area around the western end becoming almost permanently damp and undermining the stability of the tree by causing root damage and soil degradation.”

131 This finding appears to have drawn on the finding, at [123], that over a period of about forty years, the culvert would become intermittently blocked by debris, causing the water to pond and the surrounding area to become saturated, “leading to a more or less consistent wet area in the vicinity of the tree that failed”. His Honour reiterated this at [125], when he referred to the ground being saturated through intermittent or consistent ponding. His Honour also found, at [124], that there was evidence that the rootball system of the tree was badly damaged by water, making it prone to failure.

352 Mr Clark inferred from a note which appeared on the plans referring to the “proposed invert of creek” that inquiries had been made about the future development of the watercourses and steps had been taken to provide for that development. He also inferred that the absence of any special measures for laying the water main indicated either the culvert did not exist at the time it was laid, or that there were no proposals to provide an outlet drain for it.

353 Mr Clark disagreed with Mr Meys’ conclusion that the blocked drain caused the apparent flooding around the tree, preferring the interpretation that the water seen was the result of surface flows of rainwater running down the shoulder and being trapped by the hole.

354 Mr Clark concluded that the culvert had been constructed as a drowned culvert, that is to say, one whose invert was below the proposed ground level and with no outlet channel. The use of such a culvert was, in his opinion, not unusual for culverts under shallow embankments in rural areas (the description he would have given to the area in 1961) which did not have to provide for a permanent drainage flow. Such a culvert operated first by accumulating water from the level of the pipe invert to the natural ground surface, allowing the water to seep into the surrounding ground with some additional dispersal by evaporation when wet periods ceased. He concluded that the ponding of water at the outlet was due to the absence of an outlet drain.

355 It appears Mr Clark and Mr Burn were at issue as to how the culvert was originally constructed, that is to say, with or without a tail-out drain. For reasons to which I will come, in my view, the disagreement is not of ultimate significance.

356 Mr Clark concluded that the major cause of the tree falling was the combination of strong winds and its poor root system. While he accepted that the ground around the tree may have been “softened” by water, on his view the water which led to that effect may have been from rainwater rather than culvert flooding.

357 Mr Clark was asked to comment on Mr Lumsdaine and Mr Bewsher’s reports. He emphasised that Mr Lumsdaine’s investigations had only led him to conclude that there was a “possible” tail-out drain. He also interpreted Mr Lumsdaine’s report as stating that any tail-out drain which may have been constructed did not extend to the outlet pit. He appears to have formed this opinion because Mr Lumsdaine did not identify the filling at the culvert outlet pit he had relied upon in identifying the possible tail-out drain further west. Mr Clark also noted that on the levels Mr Lumsdaine deduced for the presumed tail-out drain it only partially drained the culvert, causing it to be a partly drowned culvert. Mr Clark did not consider Mr Lumsdaine’s investigations showed that a tail-out drain to provide free draining of the culvert had ever been constructed. Rather, in his view, they demonstrated that the natural ground in which the water main was installed existed between the culvert outlet and the presumed tail-out drain and extended for the full length of the culvert pipe. This reinforced his view that the culvert was a “drowned culvert”.

358 Mr Clark disagreed with Mr Bewsher’s interpretation of the aerial photographs, relying, in part on Mr Lumsdaine’s observations that any tail-out drain only needed to extend about 10 metres into the adjacent land to provide free drainage. On that basis, he concluded that Mr Bewsher’s observation that the aerial photographs showed a watercourse, more likely a dug drain extending 40 metres west, to be unlikely. He thought it more likely the feature Mr Bewsher described was the bottom of a depression formed by the opposing slopes of the natural ground similar to a waterway on the eastern side of the road rather than a dug drain.

359 In my view Mr Clark’s opinion in this respect is to be preferred to Mr Bewsher’s. It accords with Mr Lumsdaine’s field investigations which appears to be a better interpretative technique in this respect than observations gleaned from an aerial photograph.

Consideration: breach of duty

360 In order for Mrs Turano to succeed against Sydney Water, she had to adduce evidence supporting a positive inference implying negligence on its part, an inference which arose as an affirmative conclusion from the evidence and one established to the reasonable satisfaction of a judicial mind. The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5); Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (at 359 – 360) per Dixon, Fullagar and Kitto JJ; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (at 304 – 305) per Dixon CJ.

361 Assuming Sydney Water owed Mrs Turano a duty of care, a proposition it did not dispute, in my view she did not establish that Sydney Water breached that duty of care or that, if it did, that breach was a cause of the tree falling.

362 The question of breach is to be determined in accordance with s 5B of the Civil Liability Act. Section 5B(1) reflects the common law requirement that a court identify what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [27]) per Ipp JA, Spigelman CJ and Tobias JA agreeing. Section 5B(2) in substance reiterates Mason J’s remarks in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Waverley Council (at [45]).

363 The question of breach determined in accordance with Shirt involves determining whether a reasonable person in the defendant's position would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. This involves a judgment about reasonableness: New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 (at [6]) per Gleeson CJ; (at [62]) per Gummow and Hayne JJ.

364 Further, the Shirt inquiry requires the Court to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury: Fahy (at [57]) per Gummow and Hayne JJ. As their Honours said, referring to Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [124]), and explaining why it is wrong to focus exclusively upon the way in which the particular injury of which a plaintiff complains came about:

"[T]he apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'."

365 The inquiry as to breach, accordingly depends first, on determining what Sydney Water’s perception would have been of the effect of installing the water main through the outlet pit in 1981. This involves determining the probable state of the outlet pit in 1981.

366 I agree with Beazley JA (at [134]) that the primary judge’s conclusion that the tail-out drain had in fact become dysfunctional due to poor maintenance systems was open to his Honour.

367 However neither the primary judge nor Beazley JA has considered whether or not the tail-out drain had become dysfunctional by the time the water main was laid. In my view the evidence establishes that that had, more probably than not, occurred by 1981. This conclusion emerges from the evidence to which I have referred, the critical parts of which I repeat.

368 Mr Bewsher’s evidence established that, assuming his analysis of the aerial photographs was correct, the feature which appeared to be a tail-out drain in 1970 was already less distinct by 1978. I have already said that Mr Clark’s conclusion that Mr Bewsher erred in this respect having regard to Mr Lumsdaine’s evidence is to be preferred. However, assuming for present purposes that Mr Bewsher’s analysis was correct, his observation of a less distinct feature in 1978 is consistent with the proposition that whatever had flown through the tail-out drain originally was doing so at a lesser rate. This is consistent with the tail-out drain either ceasing to function or its function being progressively diminished.

369 Even if a tail-out drain had been dug when the outlet pit was constructed it is probable, in my view, that it had ceased to function and was unobservable by 1981.

370 Mr Burn, Mr Bewsher, Mr Keirnan and Mr Clark’s evidence established that the culvert outlet pit was probably blocked by sediment and root growth within a few years of its construction. Having regard to the Council’s reactive policy in relation to culvert maintenance, which it can be inferred had been in operation throughout the relevant period, it is probable that neither the outlet pit or the tail-out drain had been cleared.

371 It will be recalled that the culvert was choked with sediment and vegetation at about the time of the accident and that no tail-out drain was apparent. Mr Burn opined that this was probably due to “a low level of maintenance having occurred that permitted the table drains to silt up and become overgrown”.

372 The relative speed with which the outlet pit and the tail-out drain could become clogged and obscured, is apparent from Mr Burn’s evidence that by 2005 after the outlet pit was cleared in about 2002, it had become clogged by overgrowth to the point of obscuring both the table drain and tail-out which had been constructed. There is no reason to suppose the rate of vegetation growth in 2002 – 2005 was any more rapid than it was in the period before the water main was laid.

373 Mr Lumsdaine’s evidence establishes that it is probable a tail-out drain was dug at the time the outlet pit was constructed, but disappeared because it had been back-filled by persons unknown at an unspecified time. In my view, it is an available inference that that had been done prior to the 1978 photographs being taken. That, too, would support the proposition that by 1981 when the water main was laid, any evidence of a tail-out drain may long since have disappeared.

374 Accordingly I would conclude that the tail-out drain had ceased to exist by 1981, either because of the Council’s reactive maintenance policy leading to vegetation clogging and obscuring it or because it had been deliberately back-filled.

375 Mr Lumsdaine said that if there had been no tail-out drain then laying the water main would not have made the ponding in the outlet pit any deeper than it already was, “except possibly for a minor raising of the level of the lowest overflow point, if this was previously located along the western side of the pit” and, the construction of the water main probably provided an outlet drain to the pit. Although, as I shall explain, whether or not the water main trench actually operated in that manner was not proved, nevertheless it is reasonable to conclude that that possible consequence would have been apparent to a reasonable person in Sydney Water’s position in 1981. In other words, a reasonable person in Sydney Water’s position in 1981 would not have concluded that laying the water main in the outlet pit dammed any existing drainage outlet, or dammed the outlet pit to any relevant extent.

376 Mr Lumsdaine also said that the construction of the water main probably “inadvertently” provided an outlet drain to the pit. Thus even if there had been a tail-out drain present which laying the water main may have partly dammed, a reasonable person in Sydney Water’s position would have foreseen that the water main trench provided another exit route for water.

377 It is convenient at this stage to deal with Beazley JA’s conclusion (at [54]) that Mr Burn’s evidence that the growth of vegetation in the pipe outlet blocked the water outflow did not survive his cross-examination and with her conclusion (at [126]) that “any obstruction was due to the water main”. I disagree, with respect, with this conclusion. In my view, it does not take into account the evidence to which I have referred concerning vegetation clogging the outlet pit and tail-out drain. Further, with respect, it appears to be inconsistent with her Honour’s conclusion (at [134]) that the tail-out drain had become dysfunctional due to poor maintenance systems.

378 Mr Burn did give some confusing evidence about the culvert outlet pit. He expressed the view in cross-examination that the “excavated space down stream from the culvert head wall has the shape of a pit, but … that was only there because of the way the ground’s been blocked and the fact that water cannot really discharge”. He said it appeared someone had dug out the outlet area of the pit by digging a hole. Although he first opined this had been done after the installation of the Telstra pit and water main, he later said he did not know when that might have happened. However, his evidence was clarified, in my view, by his acceptance that the original culvert design would have had a tail-out area (which he called the “discharge area”), and compared with that, the fact that such an area no longer existed meant whenever the outlet culvert was cleared, whoever did so would leave a hole “similar in shape to a pit”.

379 Mr Burn assumed the culvert pit would be cleaned out because it would become clogged by silt flowing into the culvert under the road. He accepted he had not seen any document from the Council to the effect that the culvert clogged. The absence of such a document in my view does not support the proposition that the culvert did not clog. There was, as I have said, ample evidence of this.

380 The better explanation for the absence of any Council recording that the culvert was clogged, lies in its policy of reacting only to complaints or concerns raised about culverts. Mr Brookfield gave evidence of this policy and, too, of the fact that an examination of the Council’s records indicated that no complaint or concern had been recorded in respect of the culvert in question. That does not mean, in my view, that it was not clogged. Indeed the fact it was clogged by vegetation may well have meant that no-one in the rural environment in which it was constructed, was even aware a culvert existed there. Such an observer may well have concluded that any ponding observed in its vicinity was due to it being at a “general low point in the landscape” (Castor).

381 In my view, therefore, the primary judge’s finding (at [123]) that the culvert became blocked with debris over the forty years since it was constructed was correct.

382 The next point to consider on the question of breach is whether it would have been foreseeable to Sydney Water that laying the water main could pose a risk of injury to the class of persons who included Mrs Turano, against which it should take precautions. Both Mrs Turano and the Council’s contentions in this respect depended on the proposition that laying the water main exposed the tree’s roots to water-logging from the water main trench and, consequently, to the risk of such damage as would destabilise them.

383 In my view the evidence did not establish this was a possible consequence of laying the water main.

384 The first point is that, as I explain in more detail when I deal with causation, Mrs Turano did not establish that the water passing along the water main trench could accumulate in the vicinity of the tree’s roots in a manner which might cause them to become water-logged. It is sufficient to note at this point that, in my view, she did not establish that a foreseeable consequence of Sydney Water laying the water main as it did was to cause a risk of injury to the tree’s root system.

385 Next it is necessary to bear in mind some matters of measurement. The water main trench, including its sand surrounds, appears to have been 350mm in diameter. The tree’s roots, assuming it to have been approximately the height it was at the time it fell (there was no evidence about its likely dimensions in 1981), most probably spread at least 48 metres around it (three times the minimum height estimated by Mr Castor), with most of its feeder roots being within a ten metre range of the trunk. There was no suggestion the water main leaked, or that water from it travelled beyond the bed of sand in which it was presumed to have been laid. There was no evidence, in my view, which supported the proposition that Sydney Water ought reasonably to have foreseen that constructing a water main of those comparatively narrow dimensions in the vicinity of the tree (assuming for present purposes knowledge of the tree’s probable root structure could be attributed to Sydney Water) could expose the tree’s roots to the risk of water-logging at all, let alone in a manner which might compromise the whole tree.

386 In this respect it is relevant to recall Mr Castor’s evidence that not all trees are safe, not all tree failure is predictable, and not all tree failure can be explained after the event. That is the view of an arborist. It is not reasonable in my view to impute an arborist’s knowledge to an engineer, nor did I understand that to be a submission. This of itself is a significant concession and, in my view, is sufficient to conclude the issue of foreseeability adversely to Mrs Turano.

387 However even if an arborist’s knowledge was imputed to Sydney Water as at 1981, it demonstrates the difficulty of predicting even at the comparatively low threshold Shirt contemplates what might cause a tree to fall, let alone whether putting a narrow water main buried at standard depth along a nature strip might expose the tree to the risk to which I have referred.

Laying the water main

388 Both Mrs Turano and Sydney Water relied, on the issue of breach on the proposition that, assuming Sydney Water identified a risk in laying the water main through the outlet pit to the class of persons who included Mrs Turano’s family, it could have avoided that risk by laying the water main differently. Consideration of alternative conduct once relevant risk is identified turns on “what a reasonable man would do by way of response to the risk”: Fahy (at [58], emphasis in original) per Gummow and Hayne JJ. Further, assuming, contrary to the conclusion I have expressed, that Sydney Water had identified a possible risk to the tree’s roots which it could have avoided by installing the water main differently, that does not of itself give rise to or affect its liability for the way in which the water main was laid: s 5C(b), Civil Liability Act.

389 The first point to consider is the Council and Mrs Turano’s complaint about the primary judge’s conclusion that the water main was laid in a manner which was consistent with good practice at the time.

390 Both pointed to documents apparently produced on subpoena by Sydney Water, the first of which (exhibit G) entitled “Culvert Crossing Concrete Encased Pipe Water Main up to 600mm diameter” apparently dated to mid-1981. It depicts four diagrams. The first, “Sectional elevation A-A”, appears to indicate a water main being installed underneath a three pipe culvert. The second is a plan view entitled “Typical Culvert Crossing”. The third, “Section C-C” refers to another plan and is not self-explanatory. The fourth depicts an “Alternative End Treatment”.

391 Exhibit G was tendered on the fourth day of the trial after all parties’ cases had closed and Mrs Turano’s counsel had indicated, the previous day, that she had no case in reply. It was not shown to any witness during the trial. To the extent that it demonstrates that it was possible to construct a water main underneath a culvert, it might be noted that there was already evidence, given by Mr Burn, that Sydney Water had put the water main under the bed of a culvert next down from that implicated in the accident. There was no evidence as to why Sydney Water treated that culvert differently from the implicated culvert.

392 Mrs Turano also relied on exhibit H, a document entitled “Water Main Laying Practice Standard Depth” the original of which was said to have been dated 11 August 1994, 13 years after the water main was laid. The relevance of this document was not explained.

393 Next, Mrs Turano relied upon passages in Mr Burn’s reports. To the extent that they appeared to be relevant, I note that he referred to:

(a) the Sydney Water Board Works as Executed Plan for laying a 300mm diameter water main showing the use of vertical bends to “lay main at ‘Standard Depth’ below creek bed between Sixth and Seventh Avenues, but [which] note nothing in relation to [the] culvert between Eighth and Ninth Avenues”; as to this, Sydney Water’s expert, Mr Clark, apparently referring to the same documents, observed that the water main was laid at a standard depth according to the data sheets for the water main which Sydney Water had provided to Mrs Turano’s solicitors and, too, that the Works as Executed Plan dealt specifically with the construction of water mains where water courses were encountered, those being between Sixth and Seventh Avenues, but that no water course had been recorded at the accident site or at all between Eighth and Ninth Avenues;

(b) Mr Burn also observed that Sydney Water had taken measures to ensure the water main did not impact on the water flow of creeks to the south of the subject culvert, but did not appear to have made provision to ensure the water main when laid did not impact on culvert water discharge flows. This appears to be consistent with the Works as Executed Plan and, no doubt, the fact that there was no water flow at the outlet pit;

(c) Mr Burn also opined that the presence of the utility mains (the water main and the Telstra pit) laid at higher levels than the pipe invert on the culvert “further exacerbated the retention of water by raising the ‘dam wall’ across the pipe outlet discharge path”. As I earlier noted, in his view reasonable observations at the time of laying the utilities should have resulted in them being laid at a level below the pipe culvert outlet level “despite the less than favourable outlet discharge conditions” and that had this been done “the only obstruction to water discharge flows would have been the less than ideal downstream conditions not the ‘dam’ caused by the utility mains”. This depended, in my view, on the tail-out drain being evident at the time the water main was laid. I have concluded it was not.

394 Mrs Turano submitted that had Sydney Water adopted the method of laying the water main at a level which would have avoided it blocking water dissipating from the culvert, water from the culvert would not have flowed via the sand around the water main to the roots of the grey box tree. She argued that laying the water main immediately adjacent to the culvert so that it blocked its draining was not good practice, the whole point of having the culvert, she contended, being to enable water to be dispersed over a wide area.

395 Mrs Turano also relied on Mr Burn’s oral evidence as demonstrating it was foreseeable that if the culvert was dammed by the water main “something such as occurred would happen”. The passage of the transcript referred to supported the proposition that blocking the discharge path of the culvert would mean water would pond in the culvert after the next rain storm.

396 Mrs Turano submitted that the primary judge had ignored Mr Burn’s evidence, drawing attention to his Honour’s reference (at [69]) to Mr Burn’s evidence that whether or not the water pipe could have been laid deeper, the same method would have been used no matter at what level it was laid. I do not understand this to have ignored Mr Burn’s evidence. As I understand it, it relates to the proposition that the method of laying the water main in a trench with a sand backfill was standard main-laying practice and his evidence in cross-examination by counsel for Sydney Water that the water main would have been laid in the same manner even if laid deeper.

397 The Council also relied upon Mr Burn’s evidence that it was the probable consequence of laying the water main through the culvert pit that it would create a flow of water to the north or south of that pit, that this effect could have been ameliorated by taking other precautions, that Sydney Water could have put the main under the bed of the culvert as it had done at the next culvert, that it defied good practice to excavate close to the roots of an existing tree and that the introduction of an unnatural water source in the area of an Australian gum created a potential danger. The Council also submitted that Mr Burn had given evidence that the installation of the water main created the “specific danger of the introduction of pathogens to the tree”. It needs hardly be said that this was not an area within Mr Burn’s expertise.

398 In considering this submission it is necessary to return briefly to Mr Lumsdaine’s evidence. On my interpretation of his report, the water main trench, to the extent it contained saturated water, was below the base of the outlet pit. Thus, as I understand Sydney Water’s submission and the primary judge’s finding, even if the water main had been laid below the level of the outlet pit it could still have drained water from the surrounding soil which, depending upon the composition of the sand and the grade of the trench may have drained towards the tree, or, indeed any of the large number of trees growing alongside Edmonson Avenue in 1981.

399 Even if a risk to the tree had been identified, in my view, the evidence did not support the proposition that laying the water main below the culvert could, or would, have avoided the possibility of water travelling along the sand bed. Mr Burn agreed that would happen if the water main was laid deeper. In other words it was an inevitable consequence of the practice of laying water mains in sand beds, a practice no party criticised, that the sand trench would become the conduit for water absorbed from the surrounding strata.

400 Further for the reasons I have already developed, it was not in my view foreseeable to a reasonable person in Sydney Water’s position that its conduct in laying water mains in what was clearly its standard manner throughout, at least, rural or semi-rural areas such as Edmonson Avenue was in 1981, was such as to require it to take any different approach to that exercise.

Consideration: causation

401 If my conclusions on breach be incorrect, I would also conclude that Mrs Turano did not establish that a cause of the tree falling was compromise to its roots caused by water flowing along the water main trench.

402 Section 5E of the Civil Liability Act affirms that it is the plaintiff who always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

403 In Jones v Dunkel (at 305), after referring to Bradshaw, Dixon CJ added:

The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied

404 Accordingly, the issue of causation could not be established on the balance of probabilities by evidence which failed to do more than establish a possibility: see Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 (at [80] ff) per Spigelman CJ, (at [201]) per Stein JA.

405 In Seltsam (at [87]), Spigelman CJ referred with approval to Lord Wright’s “frequently cited” statement in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (at 169-170):

. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish

But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture

406 In my view the evidence that water from the water main trench reached the tree’s roots, let alone did so in a manner which would cause the intermittent water logging Mr Castor identified as the probable cause of the diseased root system did not, as the primary judge found (at [103]), albeit without explanation, rise above the level of the conjecture or speculation to which Lord Wright referred.

407 There were, in my view, no evidence of the objective facts from which that conclusion could be inferred. Conditional opinions were expressed as to whether water at the tree’s roots could have come from the water main trench but the factual assumptions on which those opinions were based were not established. In particular, there was no evidence to establish:

(a) that water from the culvert reached the tree’s roots via the water main trench; or

408 The highest point the evidence reached on this point was:

(a) Mr Burn, Mr Bewsher and Mr Lumsdaine, the three witnesses who opined on the matter, said that water could flow in the base of the water main trench, but that the direction of flow depended on the profile and grade of the base of the trench; and

(b) the extent to which the water main trench would act as a drain, i.e. whether water did flow in it, depended on whether the sand backfill observed in the pit was typical of the trench beyond the outlet pit (Mr Lumsdaine).

409 I disagree, with respect, with Beazley JA’s conclusion (at [85] – [86]) that Mr Lumsdaine and Mr Bewsher’s evidence supported the proposition that water ran along the base of the water main trench and, because the water main had dammed the culvert, allowed water more readily to reach the tree’s root system more readily than if the water main had not been installed. Mr Bewsher did not know from his investigations, which I take it included those of Mr Lumsdaine, the geotechnical expert he had commissioned to explore the geology of the area, whether or not water from the outlet pit reached the tree’s roots.

410 Further, as I read Mr Lumsdaine’s evidence while it was a theoretical possibility, that water could reach the roots of the tree, whether it did in fact depended on the relative permeability of the sand and the clay and the grade of the water main trench. Accordingly to convert this theory into a probability, it was necessary to establish the ability of the water main trench beyond the outlet pit both to act as a drain, and so act in a direction which could cause water logging around the tree’s roots. This was never done. In the absence of such investigations, there was no factual basis to support Mr Lumsdaine’s opinion that it was “almost certain” the route water took to the tree’s roots would be via the water main trench.

411 This deals both with the Council’s appeal against the findings in favour of Sydney Water, Mrs Turano’s appeal on that point and her Notice of Contention.

Case against the Council

412 While, as I have said, I agree with Beazley JA’s conclusion that the Council’s appeal should be allowed, I do so for different reasons.

413 First, I disagree, with respect, with her Honour’s conclusion (at [126]) that Mr Burn effectively conceded that any obstruction was caused by the water main, and not the general clogging of the outlet pit and the tail-out drain caused by the Council’s policy of not maintaining such areas. For the reasons I have given I do not accept he made such a concession. Further, there was abundant evidence that the Council’s non-maintenance policy more probably than not led to the tail-out drain having ceased to function by 1981.

414 I would also disagree, with respect, with her Honour’s conclusion (at [127]) that the Council did not know, nor ought to have known, that at the time of construction the culvert and its tail-out drain was likely to become clogged or obstructed. In my view the Council would, or ought to, have been aware when it constructed the outlet pit and the probable tail-out drain, that that was the inevitable consequence of that policy. In other words, failure to maintain the outlet pit and the tail-out drain would ensure the outlet pit ceased to be free draining most probably long before Sydney Water’s arrival.

415 It follows that I also disagree, with respect, with her Honour’s conclusion (at [128]) that there was no evidence that the culvert was likely to become clogged or that the tail-out drain was likely to cease to operate.

416 I do accept, however, her Honour’s conclusion (at [128]) that even when dammed because of clogging and/or the absence of a tail-out drain, the evidence established that water would probably pond in, and overflow, the outlet pit. The extent of overflow in the sense of causing relevant water-logging affecting the tree’s roots was not established, just as the passage of water along the water main trench was not established.

417 Accordingly, in my view the Council did owe Mrs Turano a duty of care, but the evidence did not establish it breached that duty. I also agree with Beazley JA’s conclusions in relation to ss 42 and 45 of the Civil Liability Act.

418 I have read the responses to my judgment written by Beazley and Hodgson JJA respectively. It is, regrettably, necessary to deal with some of the propositions upon which they rely. In so doing, it is important to bear in mind that the Council, and Mrs Turano’s, cases against Sydney Water were that the tree’s roots were adversely affected by water in the water main trench. Having said this I would, with respect, observe:

(a) As to Beazley JA’s conclusion (at [228]) agreeing with Hodgson JA that it was a reasonably available inference that Sydney Water compacted the tail-out drain, Mr Lumsdaine, the geotechnical engineer who identified the compacted drain, did not reach that conclusion nor did Mr Bewsher, the engineer who commissioned Mr Lumsdaine’s work. If that was an inference open from the nature of the work Sydney Water undertook, it might be expected either Mrs Turano or the Council would have proved it. Further, no party advanced the proposition that it was Sydney Water which compacted the tail-out drain.

(b) Beazley JA accepts (at [231]) that Mr Lumsdaine’s evidence was critical to establishing that water reached the root ball of the tree through the sand. Her Honour concludes that that conclusion was a matter of “clear inference drawn from established facts”. Mr Lumsdaine’s own report demonstrated that the question of the performance of water in the water main trench beyond the culvert depended upon the composition of the sand in that area, the fall of the trench and the profile of the base of the water main trench beyond the culvert. Mr Lumsdaine did not undertake any investigations of these matters. Beazley JA concludes that the grade of the water main trench could be inferred from the grade of the road. However, this was not an inference drawn by either Mr Lumsdaine or Mr Bewsher, again the experts one would expect to do so, if available. Indeed, the latter said, as I have earlier observed, that he did not know whether or not water moved along the sand bed to the tree roots.

(c) I would also observe, in this respect, that the failure of counsel for the Council or Mrs Turano to ask either Mr Lumsdaine or Mr Bewsher (or any other expert witness) whether an inference could be drawn about the grade of the water main trench means their contentions that water did reach the tree roots via that route may more readily be rejected: Payne v Parker [1976] 1 NSWLR 191 (at 201).

419 I agree with orders (1) – (3), (5) (in part), (7) and (9) of the orders Beazley JA proposes. Insofar as Sydney Water is concerned I would not set aside orders (2) and (3) of the primary judge’s orders. I would order:

(1) Mrs Turano’s cross-appeal be dismissed; and

**********

08/12/2009 - Amendment to citation - Paragraph(s) 364

Citations

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

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Cases Citing This Decision

22

Sydney Water Corporation v Turano [2009] HCA 42

Collins v Clarence Valley Council [2015] NSWCA 263

Cases Cited

42

Statutory Material Cited

2

Vairy v Wyong Shire Council [2005] HCA 62

New South Wales v Fahy [2007] HCA 20

Waverley Council v Ferreira [2005] NSWCA 418

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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

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
DECISION:	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; 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
LEGISLATION CITED:	Civil Liability Act 2002, ss 5B, 5C, 5D, 5E, 42, 45 Supreme Court Act 1970, ss 75A, 101(2)(e)
CATEGORY:	Principal judgment
CASES CITED:	Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Angel v Hawkesbury City Council [2008] NSWCA 130 Beale v Government Insurance Office (1997) 48 NSWLR 430 Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 Blacktown City Council v Hocking [2008] NSWCA 144 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540 Hull v Thompson [2001] NSWCA 359 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Leichhardt Council v Serratore [2005] NSWCA 406 Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Markson v Cutler [2007] NSWSC 1515 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 Moylan v Nutrasweet Company [2000] NSWCA 337 Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 Najdovski v Crnojlovic [2008] NSWCA 175 Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 New South Wales v Fahy [2007] HCA 20; (2007) 236 ALR 406; (2007) 81 ALJR 1021 North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240 Payne v Parker [1976] 1 NSWLR 191 Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 238 ALR 761 Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Rail Authority of New South Wales v Brown [2006] NSWCCA 220; 66 NSWLR 540 Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816 Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; (2004) 60 NSWLR 127 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	Council of the City of Liverpool (Appellant) Maria Turano (First Respondent) Sydney Water Corporation (Second Respondent)
FILE NUMBER(S):	CA 40330/07
COUNSEL:	G M Watson SC; N J Polin (Appellant) R B M J Toomey QC; M J McAuley (First Respondent) S Torrington (Second Respondent)
SOLICITORS:	Tresscox (Appellant) Paul A Curtis & Co (First Respondent) DLA Phillips Fox (Second Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 322/04
LOWER COURT JUDICIAL OFFICER:	Delaney DCJ
LOWER COURT DATE OF DECISION:	2 May 2007