Council of the City of Liverpool v Turano

The Court of Appeal of New South Wales considered a claim brought by Maria Turano against the Council of the City of Liverpool and Sydney Water Corporation following the death of her husband. A tree, affected by waterlogged soil due to a defective drainage system, fell onto the deceased's car during a storm. The dispute concerned whether the Council owed a duty of care to inspect and maintain its drainage assets, and whether Sydney Water Corporation owed a duty of care in the installation of a water main that allegedly compromised the drainage system.

The primary legal issues before the Court of Appeal were whether the Council was negligent in its inspection and maintenance of the drainage system, and whether Sydney Water Corporation was negligent in its installation of the water main. In relation to the Council, the Court was required to consider the application of sections 42 and 45 of the *Civil Liability Act 2002* (NSW), including the assessment of the magnitude of the risk compared to the cost of preventative measures, and whether the Council had actual knowledge of the drainage failure. For Sydney Water Corporation, the Court had to determine if a duty of care was owed to prevent harm to surrounding areas and trees from a compromised drainage system, and if so, whether this duty was breached and caused the death.

The Court of Appeal found that while the Council had no actual knowledge of the drainage failure, it was required to engage with expert evidence and make findings regarding the reasonableness of its actions in light of the foreseeable risks and the cost of mitigation, as per *Wyong Shire Council v Shirt*. The Court determined that Sydney Water Corporation had breached its duty of care in installing the water main in a manner that compromised the existing drainage system, and that this breach caused the subsequent failure and the death of the motorist.

Consequently, the Court of Appeal allowed both the Council's and Mrs Turano's appeals. It set aside the original orders and declared a verdict for Mrs Turano against Sydney Water Corporation on the question of liability, while entering a verdict for Liverpool City Council on the statement of claim. The matter was remitted to the District Court for the determination of damages against Sydney Water Corporation.