Sydney Water Corporation v Turano & Anor

[2009] HCATrans 135

[2009] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S104 of 2009

B e t w e e n -

SYDNEY WATER CORPORATION

Appellant

and

MARIA TURANO

First Respondent

COUNCIL OF THE CITY OF LIVERPOOL

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 JUNE 2009, AT 10.02 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   If it please the Court, I appear with my learned friend, MR N.J. OWENS, for the appellant.  (instructed by DLA Phillips Fox Lawyers)

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friends, MR M.J. McAULEY and MR E.G. ROMANIUK, for the first respondent.  (instructed by Paul A Curtis & Co)

FRENCH CJ:   Thank you.  There is a submitting appearance for the second respondent.  Yes, Mr Gleeson.

MR GLEESON:   Your Honours, would it be convenient to commence with how the duty of care was raised on the pleadings and to indicate that my client contested a duty of care at all stages in the trial and accordingly, that ground 1 of the notice of appeal, we submit, is available to us in this case.  The pleading is found at page 3.  The allegation in paragraph 14 is that each defendant was under a duty to exercise reasonable care for the safety of the deceased.  That allegation was denied by my client at page 27, paragraph 6.

We observe that in the pleading at page 3 there are no facts pleaded which could ground the existence of a duty of care against Sydney Water.  The only facts pleaded are:  in paragraph 4, that it constructed and maintained water mains in the area; paragraph 6, that it installed the water main on the western side of Edmondson Avenue, Austral; paragraph 7, there was a culvert; paragraph 8, there was a tree.  Paragraph 10 is a pleading of a matter after the event.  It is not a matter prior to the installation of the pipe, as is 11.  Paragraphs 12 and 13 plead the incident.

My client admitted relevantly paragraphs 4, 5 and 6 and 12 and 13.  The result was that this not falling into any accepted category of case, it was a bald assertion in paragraph 14 of a duty to take care which, we submit, suffers all the difficulties identified by this Court in a number of cases of overgeneralisation.  I also observe that there is no pleading of any relevant statutory power being exercised by Sydney Water, save perhaps for the implicit invocation in paragraph 4 that there was some power which permitted it to construct the water main.

So the case that was pleaded had a duty of care which in terms would fail in law, leaving only particulars of negligence on page 5 from which one might infer backwards some ad hoc duty of care being implicitly asserted.  One might infer from the particulars of negligence the case was the manner in which you happened to install this water pipe, in the particular context of this culvert, created a risk of harm to a tree.

Even if that is the implicit pleading of a duty of care, it immediately suffers a further difficulty that it does not identify any risk of foreseeable harm to any class of persons involving Mr Turano or Mrs Turano.  It is simply, “You implicitly should have foreseen that laying your main in this way might have an impact on a tree”.  Therefore the particulars of negligence do not establish an arguable duty of care in law. 

GUMMOW J:   Could you just explain that again, Mr Gleeson?

MR GLEESON:   The particulars of negligence, if they are treated as the implicit eliciting of a duty, speak only of a method of installation which it is said might harm a tree. 

HAYNE J:   You have to take account of particular A, do you not?

MR GLEESON:   Apart from the generality of that the case is the method of installation might harm a tree.

HAYNE J:   But it becomes, does it not, possible to deduce from the particulars, with the pleading, the duty alleged is a duty to road users.  The deceased was a road user.  I am not quite sure what then follows, perhaps to install water mains, perhaps to exercise statutory powers - though we see no reference to statutory powers - in a way that does not cause trees to become unsafe.  Now, that is perhaps being a little heroic with the pleading, perhaps not, but is that not the essence of the case that was made against you as apparent from the pleading?

MR GLEESON:   Assume that is where one can go from the pleading.  My first submission is that Sydney Water denied the allegation of duty and denied the negligence so that duty was an issue in the case.  Secondly, as we indicate in our reply submissions at paragraph 1, duty steadfastly remained in issue.  Indeed, Sydney Water won on duty before the trial judge.  Mrs Turano appealed against a finding of duty and in the Court of Appeal submissions were made by Sydney Water on the question of duty; that is paragraph 1.f.

Then can I come to meet the case substantively as to whether such a duty existed?  The first matter that we would go to is an examination of the functions and powers of Sydney Water relevant to the asserted risk and to contrast them with the functions and powers of the Council which had the direct control over the risk, being a tree that might be a hazard to road users.  For that purpose, we have identified the 1981 Metropolitan Water, Sewerage, and Drainage Act (NSW). The relevant functions are in section 31.

FRENCH CJ:   In the 1981 reprint of the 1924 Act?

MR GLEESON:   Yes.  The relevant functions are in section 31(a) and (e) through to (h).  Section 31(a) provides a general power to construct, inter alia, pipelines for water supply purposes and then in section 32 there are a series of specific powers in relation to works.  We identify as relevant paragraphs (a), (c) through to (e) and (h).  Under paragraph (a) there was power to enter the land, which was in the ownership and control of the Council, as thought necessary and to “dig, break and trench the soil” – indeed, to remove matters, including trees.  Paragraph (c) includes a power from time to time to make pipes and other works as it shall think proper.  Under (d) there is a power to divert the courses of streams.  We also rely upon (e), (f) and (h).

There is then in subsection (4) an exhortation that in the exercise of those powers the board is to inflict as little damage as may be, which we submit carries with it a conception that the board would exercise judgments as to methods of excavation and the like which seek to limit damage.  There is then a duty to pay compensation to parties interested for that damage and under subsection (5) there is a limitation mechanism whereby the claims must be made within three months and, if they are not agreed, they are to be treated as acquisition of property claims.

This Court in Elliot’s Case (1934) 52 CLR 134 discussed these provisions. It is apparent from page 135 in the summary of the facts that it was a case where the allegation was that negligent construction or maintenance of a water main led to it bursting causing water to flow onto the premises of a nearby landowner causing damage to property. Justice Starke, at pages 143 at the bottom over to 144, discussed the nature of the statutory remedy and compared it to a common law action whereby:

Statutory power must be exercised “with reasonable regard to the rights of other people,” and if an act is done in excess of the statutory power, or carelessly or negligently –

leading to injury could found an ordinary action in the courts.  The effect of Elliott’s Case was that these allegations were permitted to be tried as a common law action and not as a statutory compensation action.  Completing the act, section ‑ ‑ ‑

GUMMOW J:   That passage of Justice Starke at 143, I have a note was applied in Queensland in a case called Pegoraro v South Burdekin Water Board [1972] Qd R 306. It might be worth looking at that.

MR GLEESON:   Thank you, your Honour.  Could we come back to that?  Section 33 requires the board to prepare maps, which are to be available, of its works and section 38 gives an inspection power in relation to land or pipes for the purpose of carrying out the act and section 41 requires notice to be given of the works to, relevantly, the Council.  Our submission, based upon those provisions, is that the relevant area of control of activity entrusted to Sydney Water concerns the task of, relevantly, laying pipes in a manner which will achieve the function of bringing water to the community and for that purpose the area of the statutory powers that might be coterminous with a common law duty would include matters such as acting with care to ensure that the nature of the pipe does not carry into your water, harming consumers of water.  That would be one example. 

Another might be taking care to ensure that the nature of the pipe is able to withstand the pressure of the water, in other words, to take care to avoid bursting of pipes causing harm to persons or property nearby.  That is Elliott’s Case.  Our submission is that the powers do not extend to and do not readily invoke a further duty to ensure that the method of laying the pipe, although perfectly proper in terms of creating a functioning good pipe, makes no alteration to any surrounding subsoil condition, let alone extending to questions such as whether vegetation might be injured, let alone whether vegetation may or may not remain in situ such as to be a hazard to anyone.

FRENCH CJ:   So would there be a duty of care breached if, in the course of the laying of a pipeline, a tree adjoining a public road was weakened in some way or another, whether by disturbance of the soil or otherwise, and subsequently fell and caused injury?

MR GLEESON:   Our primary submission would be no for this reason, that the essential judgment entrusted to the board is one of ensuring that the laying of a pipe which is well functioning and making judgments as, as little damage as possible to the surrounding land and soil.  In making those decisions a judgment by Sydney Water might be, “Do I simply remove every tree in the near vicinity of the pipe because that way I can be sure that no effect that I have had on the tree could ever have any downstream effect on any person”. 

Now, if it exercised its power under section 32(1)(a) to simply remove every tree in Edmonson Avenue because they were near the pipe, that would be one way of proceeding.  Another way of proceeding is to make a judgment that as minimal damage as possible means “I lay my pipe carefully and the body with responsibility for what trees are there from time to time”, namely the Council, “will deal with the question of tree hazards”.  Whether that is a satisfactory answer to your Honour’s question that the present case raises a much more attenuated problem ‑ ‑ ‑

FRENCH CJ:   I appreciate that you have a sequence of events and a long timeframe.  I was just concerned that the limited scope of a duty that you were positing would, for example, exclude the creation of an immediate danger by direct mechanical weakening, for example, of the roots of a tree in the course of laying a pipe. 

MR GLEESON:   Yes.  Your Honour, if there was a creation of a direct immediate danger, something self‑evidently identifiable to a person who thought of it as a danger, then of course that would readily sit with a number of authorities.  The essential feature of this case is that laying the pipe in sand is done for a reason, which is that the sand provides a protective cover for the pipe and it is a positive thing one does in order to ensure that the pipe does not burst.  Laying it in sand also has the effect on the causation evidence that if water reaches the sand it may travel along the sand which is more permeable than some surrounding conditions like clay. 

CRENNAN J:   Does sand allow for some expansion and contraction, something of that sort – in the pipeline?

MR GLEESON:   In the pipe itself?

CRENNAN J:   Yes.

MR GLEESON:   The evidence did not go to that extent.  What was said at page 83, line 55 was that it was to provide a level base for the trench to iron out the undulations created by the bobcat and then to ensure that a uniform load was applied to the pipe from the surrounding sub‑surface conditions.  The method of sand has a valuable purpose in order to assist in achieving the objective of Sydney Water and let it be assumed that this evidence after the event shows that if water reaches the sand and the sand is more permeable than other subsoil material, water might travel along it and water therefore might reach a tree.  So far we have not identified any condition of an immediate danger, one might ordinarily think water is a good thing for trees.  One can understand that within limits, trees can be over‑watered or under‑watered. 

The essential issue in terms of the duty was the assumption that as soon as you have made any change to a sub‑surface water flow from that which previously existed, and if it is a change which could be beneficial or detrimental to vegetation, you come under a duty, says the Court of Appeal, not to make the change.  That formulation of the duty your Honours will see from paragraphs 203, 204 and 210 of the judgment commencing at page 779.

What occurred in Justice Beazley’s judgment was that, when her Honour commenced the case against Sydney Water at paragraph 193, she held that the case was governed by sections 5B through to 5E of the Civil Liability Act and this Court’s decisions in Montgomery and Brodie.

We respectfully submit that the question of duty is not governed by sections 5B or 5E of the Civil Liability Act.  If your Honours have the Civil Liability Act, section 5B is in a division headed “Duty of care”, but what it in fact does is to reflect a statutory codification and slight modification of Wyong v Shirt.  It assumes there is a duty which has been identified, and then says that there will not be negligence in failing to take precautions against a risk of harm unless the risk meets three criteria.  Then under subsection (2) it specifically requires the Court to consider certain matters in answering the third question.

GUMMOW J:   I am not following this, Mr Gleeson.  We do not read the Civil Liability Act (NSW) every day of the week. Just take us through the statute.

MR GLEESON:   I will take your Honours through the statute, yes.  The Act came into force in 2002 and by reason of the transitional provisions governed this case.

GUMMOW J:   Where are the transitional provisions?

MR GLEESON:   We have provided that with our submissions - schedule 1, savings and transitional provisions, part 3, clause 6.

GUMMOW J:   This is attached to your submissions, is it?

MR GLEESON:   Yes.

HAYNE J:   It is the third page of annexure A to your submissions, is it?

MR GLEESON:   Yes.

HAYNE J:   Unnumbered page 3.

MR GLEESON:   The Act then in section 3B excludes certain forms of civil liability from the Act but not the present case. Then section 5 contains definitions of “harm”, “negligence” and “personal injury”. The linking provision is perhaps section 5A, that the “Part applies to any claim for damages for harm resulting from negligence, being a “failure to exercise reasonable care and skill” however the claim is framed. So within that context, section 5B contains what are called general principles which, we submit, are a statutory codification with some modification of the ‑ ‑ ‑

GUMMOW J:   How does 5A(1) work, “for harm resulting from negligence”, what does that mean, “regardless of whether the claim is brought in tort, in contract, under statute or otherwise”?

MR GLEESON:   Well, there would be constitutional problems in certain cases.

GUMMOW J:   No, in what sense is the word “negligence” being used there?

MR GLEESON:   In the sense defined in section 5 as a “failure to exercise reasonable care and skill”.

FRENCH CJ:   So there would have to be – if it were in contract, you would be suing for breach of some contractual obligation to exercise reasonable care and skill?

MR GLEESON:   Yes.  The intention was that in cases where there was a concurrent liability this would govern both.

FRENCH CJ:   Precisely in those terms, “failure to exercise reasonable care and skill,” not to be winkled out of something else?

MR GLEESON:   Yes, either as an express term in the contract or as an obligation implied by law in those terms in a particular class of contracts.

FRENCH CJ:   What about the statute, is that breach of statutory duty or a tort arising ‑ ‑ ‑

MR GLEESON:   It could be either.  It could be a breach of statutory duty or it would be intended to – perhaps I will leave the answer there.

FRENCH CJ:   So the word “negligence” there and the terminology by which it is defined is not necessarily embedded in tort concepts?

MR GLEESON:   No.

FRENCH CJ:   One looks to the words of the statute.

MR GLEESON: Yes. So if one does have a tort case, as we do, our primary submission is that you have to have found a duty of care within the law of tort. If you found a duty of care, then, if you are proceeding to what would be stage two of the analysis, was there a breach of the duty of care, you must apply the steps in section 5B.

CRENNAN J:   You are suggesting then that 5B’s general principles relate to breach, not to the existence of the duty of care?

MR GLEESON:   Yes.  The alternative argument put in the submissions is that although 5B is primarily about breach, it tells you something about what would be regarded as foreseeable to the extent foreseeability was an issue under duty.

GUMMOW J:   The phrase “is not negligent” in 5B(1) has to read back to the definition of “negligence”, does it not?

MR GLEESON:   Yes, we agree, your Honour.

GUMMOW J:   So it has to be read in a contract case, for example?

MR GLEESON: Yes, that is so. In a contract case it means, unless the elements in section 5B(1) are met, I am not guilty of a failure to exercise reasonable care and skill and if that is the pleaded breach of the term, the contract claim fails.

FRENCH CJ:   So the anterior requirement of a duty of care exists externally to the statute.  The anterior requirement of some contractual obligation is also external to the statute and, similarly, with a statutory obligation arising in some other way.

MR GLEESON:   Yes.

FRENCH CJ:   That is all in an outside universe.  Then you get into this question of what is necessary to establish negligence.

MR GLEESON:   Yes.  That is our submission on the statute.  Then when one takes that together with this Court’s statements that the prospective question involved at the stage of duty is a different question to the question of what is prospectively foreseeable at the stage of breach – they are not to be amalgamated into the same creature – it means that this section does not operate until you have already found a duty.  So our first submission about the error in her Honour’s approach is that at paragraph ‑ ‑ ‑

GUMMOW J:   It does not apply unless you have found, as the Chief Justice is putting to you, dehors the statute, an obligation to exercise reasonable care and skill.  What the statute is all about is failure.

MR GLEESON:   Yes.  In the context of failure, it is attempting to tighten up a little in Wyong v Shirt.  So our first submission concerning error is that paragraph 193 indicates that the court has assumed that the question of duty would be determined by reference to a section that only governs breach.

BELL J:   Mr Gleeson, her Honour had earlier, in considering the case against the Council, analysed the issues, including duty, beginning at appeal book 753 and continuing.  Do you take any issue with her Honour’s statement of the principles in that part of the judgment?

MR GLEESON:   The answer is no in relation to paragraphs 109 through to 118.

FRENCH CJ:   That is just dealing with the Council though, is it not?

MR GLEESON:   Yes.  We accept certainly at that part of the judgment her Honour has correctly identified the principles and has then proceeded to apply them in relation to the Council.

BELL J:   Yes, it is just that it is possible that having embarked on that analysis, her Honour did not repeat the process when she came to consider the duty imposed on your client, a statutory authority, but it might be that one would read the judgment bearing in mind the statement of those principles.

MR GLEESON:   That is certainly a possible reading of it.  What I want to submit, as I come to the paragraphs, is that that is not the favourable reading because her Honour has not in fact gone on to pose the duty question consistent with those principles.  So can I move to the second stage then.  Between paragraphs 194 and 198 her Honour summarises what the trial judge found and critical to the trial judge’s finding of no duty is paragraph 197.  At 197 her Honour summarises what the trial judge found:

there was no evidence that the water main had been laid other than in accordance with a well‑recognised and appropriate system . . . there was no evidence that anyone from Sydney Water needed to take into consideration the health of any of the trees ‑

or go to aborists –

whatever water came from the culvert via the water main to the tree, it was not foreseeable by Sydney Water that such water would undermine the tree to such an extent as to critically affect its stability –

therefore no duty of care.  His Honour then found, as we see in 198, if there was a duty, its content was limited to responding to complaints.

FRENCH CJ:   Just before you move off, her Honour says that the trial judge said:

there was no evidence that the water main had been laid other than in accordance with a well‑recognised and appropriate system –

I think his finding was stronger than that, was it not, at 639, paragraph 98:

The water main was installed in accordance with accepted practice at the time of installation.

I do not know if it makes any different, but it is just a slight weakening.

MR GLEESON:   Yes, and that is a reference to the two findings that, firstly, the use of sand and, secondly, the depth below the ground were both the appropriate ways to proceed.  The critical challenge to that finding of the trial judge is summarised at paragraph 199:

Mrs Turano contends that his Honour, in finding that it was not foreseeable that such water would undermine the tree, applied the wrong test of foreseeability.  The argument focussed on the principles as stated in Wyong Shire Council v Shirt, rather than on the provisions of s 5B, although this will make no relevant difference to the decision.

So at that point I submit that her Honour has clearly moved to apply the breach principles to the question of duty, whether they come from the common law or section 5B rather than the principles she had stated earlier. So our first complaint then is that the standard being applied is a breach standard not a duty standard. Then her Honour at 200 comes back to the critical paragraph which Mrs Turano was challenging and sets it out in terms. The judge was not:

satisfied that whatever water came from the culvert via the water main to the roots of the tree, it was not foreseeable by Sydney Water that such water would undermine the tree to such an extent that it would eventually become unstable and fall.

The challenge to that, as set out in paragraph 201 is, that is looking at foreseeability too narrowly and, in particular, your Honours see at the end of paragraph 201 the submission was that the question should have been, was it:

foreseeable that the installation of the water main in a bed of sand involved a risk of injury.

At that point the legal proposition being advanced is, if you can foresee that laying your water main in a bed of sand could involve a risk of injury, without identification of to whom, to what class of persons, what ‑ ‑ ‑

HAYNE J:   Or more importantly, when.  The temporal dimension of this case, I would have thought, was central and the absolute proposition put by the primary judge where one moves from “eventually become unstable” to “not satisfied any duty”, is perhaps to speak in terms that are too absolute, because the relevant question – at least on one approach to this matter – is whether there was a duty to road users not to shorten the life span of trees in the vicinity where we are talking in terms of decades, not days.  The temporal element, it seems to me, to loom very large.

MR GLEESON:   Yes.  One then leads from that to the two paragraphs that we critically make submissions against, 203 to 204, where the Court accepts Mrs Turano’s challenge.  The way the question is posed is is it:

foreseeable that, by laying the water main in sand which acts as a conduit –

in two circumstances, the first is where it is described as breaching the “existing drainage system” and secondly, obstructing the drainage of water “there could be an effect on a surrounding area such as might cause harm”.

GUMMOW J:   Might when?

MR GLEESON:   Might when?  The when is irrelevant to the way that question is posed, and ‑ ‑ ‑

HAYNE J:   And might cause harm assuming no one else does anything about it and the tree is on someone else’s land. 

MR GLEESON:   Yes, we submit, and might cause harm to whatever tree happens to be near the pipe at any future date, or whatever be the state of growth or other condition of the tree.  Her Honour repeats the matter at 204 and says it is foreseeable because:

It would be well known to a water authority responsible for drainage systems throughout the state that the continuous presence of water is likely to have an effect on the surrounding area . . . an unnatural source of water would have an effect on the surrounding area and that the soil and/or the surrounding vegetation could be adversely affected.

So at that point the harm that is being conceived of is a direct harm to one of three things:  the area – that is left undefined, the soil and/or the surrounding vegetation.

FRENCH CJ:   This is her Honour’s finding in lieu of that of the trial judge?

MR GLEESON:   Yes.  So effectively the trial judge’s finding at 200 has been replaced with 203 to 204.  So the elements that have been excluded from that are firstly a temporal element.  Secondly, any examination of the foreseeability of the extent of the harm.  Her Honour speaks of adverse effect in paragraph 204.  One does not need under that test to foresee that you are going to critically shorten the life of the tree.

HAYNE J:   Well, what is buried in the word “adverse” effect or adverse affectation is all trees have a lifespan.  The tree will eventually die or be destroyed.  What is the adversity that is spoken of, abbreviation temporarily. 

MR GLEESON:   Yes.  One then adds to that the evidence that the ability to predict whether there would be a shortening of life in any particular circumstance was not a matter shown to be the subject of a body of received opinion.  The arborist who dealt with that question, if I could just give your Honours the reference, Mr Castor, he dealt with it at three pages, 541, 549 and 550.  At 541 he said at paragraph 3.3 that a:

potential for waterlogging adjacent the tree has been present for some time as indicated by the –

GUMMOW J:   Where are you reading from?

MR GLEESON:   Paragraph 3.3 on 541:

as indicated by the relative levels on the Survey [from 1999] . . . The potential . . . has existed for some time.  Although there was water ponding at the time of the inspection of 28^th July, 2005 there is no evidence of the permanence of this ponding.

3.4It is possible the subject tree was accustomed to the intermittent waterlogging having to cope with this situation since the original road formation –

So on one view the intermittent waterlogging was something which the tree had coped with in some fashion.  Then at 3.6 he says:

There are numerous situations similar to the subject site (verge trees growing in table drains or with intermittent waterlogging) within the Liverpool Local Government Area. 

At 3.8 he expresses an opinion about the primary cause, that is after the event.  At 3.9:

A detailed tree hazard assessment . . . would have been required to quantify the potential for tree failure.

CRENNAN J:   What does he mean in 3.5, “given the time period for root generation”?

MR GLEESON:   All he is saying there is that if the roots of the tree were physically cut by the installation, perhaps closer to your Honour the Chief Justice’s question, that was not a relevant factor here because the roots had regrown.

CRENNAN J:   I see. 

MR GLEESON:   He then explains over the page that these:

Detailed tree hazard assessments generally are concentrated in high use urban areas.

At 3.11, many trees blew over in the storm.  Then at 549, he set out the passage at 4.5.1 that the dissenting judge found of assistance in the case, Justice McColl picked this up at page 808 of the book.  Essentially, part of the reason the Council is not liable in this case is an acceptance of 4.5.3.  It is really very difficult to predict what is going to happen in advance without the most detailed of assessments, perhaps bearing in mind there were 64,000 roadside trees in the Council area.  That is page 731.

FRENCH CJ:   This tree had, I think, phytophthora fungus, did it not, but there was no evidence of dieback?

MR GLEESON:   No, that is correct.  He then explains over the page what is involved in the very detailed tree hazard assessment and he concludes at 4.5.8 that:

There were numerous road side trees within a short drive from the accident ‑

which would have required this assessment if one was determining failure.  The conditions seem to be, unsurprisingly with many trees in the areas, many exposed to varying water conditions, the Council having the authority to decide what trees should stand or fall, there being no ready means to know in advance what the effect of any alteration to water flows would be, it requiring a detailed assessment by an arborist, even then difficult to predict when a tree will fall or not fall.  Returning to the reasons ‑ ‑ ‑

FRENCH CJ:   Before you do that, I could not quickly discover a clear plan of the layout of the relationship between the culvert and the pipe.  You do not have to do it right now, but if there is – the best possible drawing would be good.

MR GLEESON:   Yes, can I give your Honours two ways of viewing that?  The first is at page 525, which is an extract from the 1999 survey to which Mr Castor referred.  It is a Council prepared survey.  What it demonstrates is that the tree is the middle tree with its canopy shown.  The canopy is about 10 metres in diameter.  The evidence of Mr Castor was that the roots of the tree, the feeder roots, would spread at least through the 10 metre diameter and some would spread beyond.

FRENCH CJ:   This is because they get fed by a drip off the top of the tree, is that right?

MR GLEESON:   Any water that can come to them off the top of the tree, surface water flowing off the road, water that comes underground.  Your Honours see the road marked with the edge of bitumen on both sides, and one can immediately see that the canopy and therefore the feeder roots extend to various places, part of them go under the road, part of them go under the grassy verge, part of them go into the pit.  The pit, if your Honours see the green line, that is the culvert under the road.  This is explained at page 516.  The green is the culvert, and the yellow is described as the “outlet open pit and open drain”.

So water which came through the green flowed into the yellow outlet pit.  Then if a tailout drain existed and depending whether it was clogged or not the water was then taken off up towards the right‑hand corner of the diagram.  What that demonstrates is that the feeder roots which took in the pathogen had access to the whole of that 10 diameter area.  Some of the roots were in the culvert pit itself.  Some were in the grassy verge, some were under the road, and some had access to the Sydney Water pipe which your Honours see with the letter “W”.  Some had access to the Telstra pipe which one sees above it.

The other useful diagram is – we have handed your Honours a large version of page 205 of the book, which is a survey prepared by the Council essentially in 2001.  The relevant information for our case was on this document prior to the event.  The culvert is shown.  The tree is the second tree from the right.  One again sees the canopy and the feeder roots reaching out to a variety of places.  One sees a note which the Council has made, “CLEAN AND CLEAR” out the “ESISTING TAILOUT OF THE VEGETATION AND DEBRIS”.  In other words, that is the Council considering its responsibilities as to whether to do something with the condition of the tailout drain.

One sees up the top note consideration being given by the Council to what trees will be planted at various places on the site.  So as one would expect the authority responsible for making decisions whether trees should come down or not was carrying out its task, that task has been found to be carried out without negligence.

FRENCH CJ:   Again, “W” is the water main.

MR GLEESON:   “W” is the water, “T” is the Telstra.  Perhaps I should go back to 525 for this point, but the levels are all indicated on the survey.  The Council has full knowledge of the level of the Sydney Water pipe.  It is around 75.20.  It has knowledge of the levels of the outlet pit; it has knowledge of the levels of the tailout drain.  Even if one assumes that the mechanism of water travelling along a sand covering for a pipe is one that is known to responsible authorities, each piece of relevant information is in the hands of the authority which has the decision‑making power.

BELL J:   Mr Gleeson, you mentioned on more than one occasion that the roots of the tree extended into the area of the tailout drain around the head wall of the culvert.

MR GLEESON:   Yes.

BELL J:   The trial judge’s findings were inconsistent concerning the question of the probable mechanism of the waterlogging of the tree.  At least the majority in the Court of Appeal considered the evidence was that of – was it Mr Bewsher and another who concluded that the probability was that the water that caused the waterlogging of the roots was that conveyed by the sand from the surrounds of the main.  Is that the subject of challenge?  Is that why you keep pointing out to us that the tree roots extended to the head wall of the culvert?

MR GLEESON:   It is when I come to the question of causation.  If I could briefly explain the reason now.

BELL J:   Yes.

MR GLEESON:   If your Honours were to go to page 808, at paragraphs 305 to 306, Justice McColl referred to the evidence of Mr Castor about the 10 metre diameter point.  Then he concluded that that meant that - we know that the pathogen entered at some point five metres from the tree trunk; we do not know where, but that could be various places.  When Justice Hodgson, in the vigorous riposte that occurred in this case, came to that paragraph at page 794, paragraph 250, his Honour accepted the conclusion that the probable radius was five metres – so agreed with that as a fact – and then said, critically:

and while those feeder roots would have extended to the original pit ‑

So he made a finding that they did reach the pit.  He then went on to say:

they would have had much greater contact with the water main trench.

Then Pythagoras emerged.  When we come to causation the short point is the evidence only went so far as to say the feeder roots reached all over the circle we see on the page.  They reached the water main and his Honour is no doubt correct that they had access to the water main for eight metres.  What his Honour has failed to put in the diagram is the pit, is every other place where water came to the tree.  It is obvious water came down through the leaves.  If it did not, the tree would have been dead a long time ago.

The error at the stage of causation is there was actually no material in the case from which one could say, putting it simply, which bit of water carried the pathogen.  So that the most that the conduct of Sydney Water did, in fact, was to increase the chance that a pathogen might come to the feeder roots of the tree.  As we say in our submissions, that has never been enough to prove causation.

Your Honours, could I then just return to complete the paragraphs of the main reasons.  I will come back to the stage of breach to look at 205 to 209 because they deal with evidence after the event.  Our criticism of those paragraphs relevant to duty is that none of this is evidence of what was an accepted practice or knowledge in 1981.  It is people trying to solve a puzzle of causation after the event.  But, ultimately, her Honour’s duties at paragraph 210, and the duty becomes an absolute duty:

to install the water main in such a way that the integrity of the culvert drainage system was not compromised. 

Then in 211, because that is the duty, you prove breach by proving you made an alteration to the operation of the drainage system.  As we say in our submissions, paragraph 210 has stated a duty which does not involve any element of reasonable care and it is a duty which you breach the moment you make some alteration to sub‑surface water flows, whether that alteration be beneficial or harmful, when it does not shorten the life of a tree and what else be involved in the mechanism in between. 

On one common sense approach, if this is in fact what happened, it looks like the pipe was a rather helpful creature for a very long period of time. It apparently brought water to the tree, on this theory. We do not know if it is the same tree that was there at the earlier point in time, but it was a mature tree. It lasted a long time. At some point in its life, by some means, some water brought a pathogen and the tree moved to a compromised condition. To state the duty, as paragraph 210 does, we submit, is contrary to the authorities and then it collapses the breach question, because breach becomes 211. If we return for one moment to section 5B, her Honour has not, we submit, gone through the process of asking those various questions because the duty has been formulated in a way that avoids need to have a reference to them.

Could I come back at this point to risk of harm to a person. An insult to a tree is a necessary step in the process of causing harm, but that of itself only causes harm if a tree becomes diseased, remains in place and then falls on personal property. So the risk that we submit needs to be built into the duty is a risk of ultimate harm to road users, they being the so‑called class. Therefore, if you are applying section 5B ‑ ‑ ‑

GUMMOW J:   Is not the problem at an earlier stage?  Her Honour at paragraph 210, at a stage at paragraph 210 when we are outside the statute - as we have discussed earlier – poses a duty that does not depend upon the exercise of reasonable care and skill.

MR GLEESON:   That is the first problem.  That is enough to say that it is wrong, but secondly no harm to any person has been ‑ ‑ ‑

GUMMOW J:   Therefore, that being so, on the other hand, when one gets to breach, 5B has no work to do.

MR GLEESON:   No work to do.  One does not ask ‑ ‑ ‑

GUMMOW J:   The Act is not engaged.  What is wrong with that?

MR GLEESON:   The premise.  Your Honours have stated on too many occasions that the duty is one to take reasonable care to prevent foreseeable risks of harm, for example, RTA v Dederer.  It is not a duty to ensure that certain harm does not occur.  This has become a duty to ensure that no harm occurs to the integrity of the culvert system and therefore we do not yet have any person into the frame who is facing a risk of harm.  The person is the road user and the only acceptable form of duty – it is one hard to fathom, but one which brings into the foreseeable risk of harm, harm to person arising through attack from tree, being tree which has been impacted by your earlier action.  We have given your Honours the statutory provisions which govern the Council’s responsibilities.

FRENCH CJ:   Before you go on, is there any decision of the Court of Appeal in New South Wales as going to that point we have been discussing about the need to identify an external duty before you get into the statute?

MR GLEESON:   We have looked and not found one to date.  We will try again.

FRENCH CJ:   The problem might be in part with the heading.

MR GLEESON:   The heading is, in effect, wrong.

FRENCH CJ:   It is a bit of a misleading label.

MR GLEESON:   We have given your Honours the provisions of the Local Government Act 1919 (NSW) as in force at 1980. They are relevantly similar to what the Court considered in Brodie.  I just draw reference to section 232 which is the vesting of the road in the Council.  Interestingly, 233(3) expressly makes the trees the property of the Council and gives the Council the ability at any time to remove the trees.  So that is the immediate source of the Council’s power to decide whether a tree should remain or not.

GUMMOW J:   Was this tree growing in the road?

MR GLEESON:   From the diagram I have shown your Honour, the roots are extending under the road.

CRENNAN J:   The canopy overhangs the road.  The trunk presumably, of course, is to the side.

MR GLEESON:   Yes.  I believe the evidence in the case did not extend to the relevant gazettes to prove the breadth of the road ‑ ‑ ‑

GUMMOW J:   That is what I was wondering.

MR GLEESON:   The parties ‑ ‑ ‑

FRENCH CJ:   There would have been a road reserve vested in the Council, would there?

MR GLEESON:   Yes.  I believe the parties proceeded on the basis that the road reserve extended to the fence at the west and therefore even the trunk was growing in the road for this purpose.

FRENCH CJ:   This is not a main road which vests in some larger authority.  This is a road which falls within the purview of the local authority.  That is not in dispute?

MR GLEESON:   Yes, it is in the Council precinct.  So that is the immediate power to make decisions about trees, and then under section 235(1)(e) the power to:

determine what proportion of the width of a public road shall be devoted to carriage‑way –

on the one hand, or tree‑planting on another.  Section 240, the general power to “construct improve maintain”, protect, repair, drain and cleanse the public road, and subsection (f) the power to:

plant trees in the road -

Section 241(1), the relevant power to cleanse and keep open the outlet pit, or indeed to lay pipes through any such land.  So the Council’s ample powers conclude with section 249, care, management and control of the public road, which was significant in Brodie.  So the Council has the control over really three things:  the condition of the road, whether the trees are there, and the state of the outlet pipe.  What is posited in paragraph 210 is a strict liability duty - if you make any interference to a drainage system which they have in place at any point in time, even if you have acted with care, you become strictly liable for any consequence thereafter at any time in any manner.

HAYNE J:   Just to revert to that formulation of duty that I have put to you for your consideration, the duty seems to be a duty to road users to take reasonable care not to shorten the life span of trees owned by the Council.  The injection of ownership by the Council is not unimportant, I would have thought.

MR GLEESON:   It is important to our argument because when, for instance, in Dederer your Honours were considering the diving case and your Honours said one must look at a correct identification of the risk, the correct risk in the diving case was identified as a person choosing to dive off a bridge and landing in shallow water which, because of movements of the estuary, could then pose a threat to life.  In that case it immediately brought into question the activities and control of other people. 

Here we have in the most critical sense the primary controller is not us, it is the Council, we rely upon that.  But, secondly, we do still wish to rely upon the fact that the intervening mechanism of harm essentially involves a question of whether an alteration to a condition of a natural environment might have some essentially unknowable and unpredictable effect. 

HAYNE J:   But buried in that is the notion that the party altering the natural environment has control over that environment, both as to the manner of alteration and the consequences that follow from it.

MR GLEESON:   Yes, and in the present case, if it be assumed we make an alteration, the material facts are before the knowledge of the person with the decision whether to leave a tree there.  Your Honours, we would suggest that if ‑ ‑ ‑

GUMMOW J:   But Sydney Water could not have pulled the tree down.

MR GLEESON:   Could not have pulled the tree down?

GUMMOW J:   No.

MR GLEESON:   Very difficult for it to pull the tree down ‑ ‑ ‑

HAYNE J:   Except at installation.  Once installation of the pipe, that was it, was it not?

GUMMOW J:   We have to mesh 233 of the Local Government Act with the other section you took us to in the Water Board Act.

MR GLEESON:   Yes.

GUMMOW J:   Both talking about trees.

MR GLEESON:   I would submit that it could not simply pull the tree down.  I make reference to section 38 which seems to be the limit of the power that ‑ ‑ ‑

BELL J:   What about under 32(1)(a) of the Metropolitan Water, Sewerage, and Drainage Act?  At installation it could have removed the tree, could it not?

MR GLEESON:   It seems that at installation it could have removed the tree subject to the mandate under subsection (4) to inflict as little damage as possible and we would submit that if ‑ ‑ ‑

FRENCH CJ:   Not necessarily temporarily limited.  For the purposes and subject to the provisions of the Act, is it not?

MR GLEESON:   For the purposes and provision of the Act.  So I accept that could be relevant, and section 38, the inspection of consequential power.  But the proper scope and exercise of that power, we would submit, would be referable to the primary function of am I bringing water safely to the community?  If I found a tree which had its roots into the water pipe and was threatening the integrity of the water pipe, one would then see perhaps Sydney Water having a power and the Council having a power, so there might be some question of intersection of powers.  But in the present case where the pipe is functioning perfectly, we would submit that the person with the power to decide what to do with the tree is the Council.

Your Honours, if the duty did exist, we submit that the implications would be far reaching.  Some examples we have thought of are these.  First of all why would the duty be limited to pipes near roads?  If the duty is there to govern the possibility of pipes carrying sub‑surface water towards vegetation, why not also does that duty govern every area of the laying of pipes by Sydney Water including in our backyards, including in the Royal Botanic Gardens, including elsewhere.  It becomes a duty of the most extraordinary scope.

But the second implication is this, why is the duty to avoid over‑watering but not also to avoid under‑watering?  Your Honour Justice Hayne posed the question in terms of a duty to take care not to shorten life.  Under‑watering can shorten life as well.  If the duty existed, presumably each time you lay a pipe, which necessarily involves an alteration to sub‑surface flows, you may reduce water flowing to a tree.  That indicates a further invasive aspect of the duty.

The third implication would be, it is a duty not just with culverts but it is with any source of nearby water, natural ponding, bogs, run‑off from roads, run‑off from structures.  The fourth implication would be why is it a duty only limited to a tree that is there.  We are not sure in the present case whether this was the same tree but why is it limited only to a tree that is there?  Does it mean you have to anticipate any tree that could be there or could grow larger in the future?

The fifth implication we raise is why is the duty limited to water bodies.  Your Honours will see in Justice Hodgson’s reasons at paragraph 252 a conception that because Sydney Water is in the business of managing water, it has to become an expert on all forms of sub‑surface water flows.  Does the duty apply to Telstra, does it apply to AGL?  Does it apply to any public authority making an alteration to a sub‑surface condition?

Then we would ask, perhaps fifthly or sixthly, why is it limited to altering sub‑surface water.  Surely it would extend then to making any

change to sub‑surface conditions which could threaten the integrity of vegetation.  If the sand carries termites does that mean sand must not be used.  I have just about finished this list because it is becoming repetitive but why is it limited to shortening the life of trees.  In the respondent’s submissions when they seek to identify the duty they do it in various ways but when they finally come to paragraph 53 they build into it a duty:

to avoid damage to any natural or built structure in the work area in a way which might result in harm to users of the public road.”

It has now become a duty so general that any natural or built structure in the area, irrespective of control, irrespective of time, becomes the subject of the duty. 

Finally, we would ask, why in the end would the duty be limited only to public authorities?  It does become a duty on every citizen not to make alterations to the land which might result in any consequences on vegetation, built structures, et cetera.  Once one does the task of attempting to define the duty, in the end the problem of indeterminacy, we submit, is very, very stark.  If it is convenient, your Honours, I will move to breach.  I have dealt with our primary argument on breach.  There are then some subsidiary ‑ ‑ ‑

GUMMOW J:   Breach on what assumption as to the duty?

MR GLEESON:   I am sorry?

GUMMOW J:   Breach of what duty?  On what assumption as to breach of duty?

MR GLEESON:   Well, if we start with 210 as the duty, then I should take that as the first hypothesis and then the second as the more realistic perhaps hypothesis if one can conceive of some sort of risk.

GUMMOW J:   You really have to assume that you lose on duty, I think.

MR GLEESON:   Yes.  If we take 210 as the duty ‑ ‑ ‑

FRENCH CJ:   Just a minute, Mr Gleeson.  Mr Toomey, given the obvious significance of the question of duty of care to the rest of the argument it might be useful for us to hear from you on that now.

MR TOOMEY:   Your Honours, it would be assumed, in our respectful submission, that if extraordinary powers are given to a statutory authority, powers such as are contained in the sections of the old Metropolitan Water, Sewerage, and Drainage Act that your Honours have been taken to, that concomitant with those powers there would be duties.  The powers include, as your Honours have seen, the power to enter onto any land, any land, there is no limitation on it.  No one can resist the entry onto land.  The works that the water authority might do on the land are extensive and intrusive.  They may trench for drains, they may remove trees, they may build systems, they may divert watercourses.

Some readings of the relevant sections, from 30 to 32 particularly, seem to suggest that there is virtually no limit and that the purpose of the width of the statutory ambit of the work is intended to give the water authority the power to do almost anything it wants to do connected with the reticulation of water or the provision of drainage.

It may construct, under 31, “dams, weirs, tunnels, aqueducts, pipe lines, canals, reservoirs, filters” and the like.  It may construct “reticulating sewers, pumping stations, works for treatment and purification of sewage”, et cetera.  It may:

enter upon any lands and take levels . . . and dig, break and trench the soil of such lands and remove or use all earth, stone, mines, minerals, trees, or other things dug or obtained out of or from the same;

(b)enter upon, take and hold such land as it may from time to time deem necessary for the construction, maintenance, repair or improvement of any works -

Section 32(1)(c) is of importance.  It may:

from time to time sink such wells or shafts and make, maintain, alter or discontinue such reservoirs, waterworks, cisterns, tanks, aqueducts –

Those words are important:  “reservoirs, waterworks, cisterns, tanks, aqueducts, drains, cuts, sluices”.  All of them deal with the control of water and, in fact, the right to provide for the flow of water.  They may “divert and impound water”.  They may “alter the courses” of streams.  In this case the existence of a duty must depend on the assessment of the connection between the work which was being done and the constraint that the law of tort and the courts – particularly, I may say, this Court – are prepared to impose on those very very wide powers.

FRENCH CJ:   You accept that the duty has to be found outside the framework of the Civil Liability Act?

MR TOOMEY:   Yes, your Honour.  Of course, it is to be said that this Act long predates the Civil Liability Act and, as the Elliott Case establishes, it was passed in a context where the law of tort recognised, as it still does, that the exercise of a statutory authority must be done safely.  As this Court has said on many occasions and as your Honour Justice Gummow and Justice McHugh and, I think, Justice Gaudron said in Brodie, if a statutory duty is embarked upon it must be done with safety and, if it does not, it gives rise to a cause of action.

This work being done was a length of water main down the western side of a road which already had a water main on the eastern side, and the context of the building of this water main was that it was in a burgeoning outer suburban suburb which was becoming more and more residential.  It was semi‑rural and it was turning, as all semi‑rural suburbs are, into a dormitory suburb.  So this pipe was being laid to augment the supply of water to the area.

The pipe was laid straight up the road reserve on one side.  There were places where that pipe met watercourses where it was taken under the watercourse.  The whole of the roadside reserve was not dotted because that is not a sufficiently comprehensive description, but there were large trees right up the side of the road where the water pipe was being made.  We would say that because of the extensive powers of the water authority, because of their dealing with water in such a way as to necessitate harmony between the imposed works and the environment, because, for instance, in this very work they were laying a water main beside the pipes the whole way, there must have been imposed on the authority a duty to have such expertise as would prevent damage to any structures, artificial or natural, that they were dealing with.

HAYNE J:   Damage when?

MR TOOMEY:   Your Honour, may I come to that a little later?

HAYNE J:   Of course.

MR TOOMEY:   It is difficult.  We appreciate that that is a difficult question, but can I just wave a hand at it and say, the asbestos cases where death or compromise of lung function can follow, in the case of mesothelioma, 50 years after the first tiny exposure to asbestos.  I know that is a special case because of the supposed knowledge in the people who exposed the workers to asbestos.

We would say that the harm which may ensue from the sort of thing which happened in this case, that is, exposing the roots of natural foliage to water, ought to be known to an authority of the nature of the water authority which, we say, in the exercise of its public duties must inform itself in the proper way to deal with any dangers it creates.

FRENCH CJ:   The duty of care that you rely upon, I think, is that referred to in paragraph 34 of your submissions?

MR TOOMEY:   I think that is right, your Honour.  We say it is orthodox.  We, in fact, went so far as to or were so bold as to restate the main issue as set out by Mr ‑ ‑ ‑

HAYNE J:   Is that at paragraph 53?

MR TOOMEY:   Yes, your Honour, thank you:

Whether a public authority exercising statutory power to install water mains in the grassed area beside a public road owes a duty to perform its work so as to avoid damage to any natural or built structure in the work area in a way which might result in harm to users of the public road.

Now, it does not have to be a public road.  My learned friend put as if it were such an extreme case as to mandate your Honours saying it could not exist; that that would suggest that there might be a duty in respect of water mains laid under a backyard.  Well, I would have thought, with respect, that if a water authority was laying a main through a backyard in Canberra or one of the leafy suburbs of Melbourne or Sydney that it would have a duty to make sure that the main did not affect the foliage and not only for aesthetic reasons but for safety reasons. 

One of the difficulties which I will shortly try to meet is that we are dealing with this in a vacuum.  The evidence of the arborists and horticulturalists was that it is well‑known that to expose the roots of trees to intermittent or semi‑permanent waterlogging, which happened in this case, is likely to cause the entry of a pathogen into the roots of the tree and that is likely to result in what happened in this case.  The root ball of the tree, when it was blown over in the wind, was tiny.  The root ball should have been, according to the arborists, 10 metres. 

We have got some copies here, your Honour, which are much better than the appeal book ones.  These are the photos taken on the morning after the tree fell.  Now, the bottom photograph on the front page gives one of perspective because the tree stood of the order of two metres from the edge of the bitumen and that is the root ball of the tree when it fell over.  It should have been, on the evidence, at least the canopy; the size of that, I do not know, a metre, two metres.  The scientific evidence of the arborists as to what happened in respect of the weakening of a tree’s roots by the pathogen is borne out by the evidence of Mr Freeman and Mr Polsen, the two arborists who went there on the next morning.  They said that the tree ball was soaked, rotting, black and stinking.  I am saying this to an extent to deal with what your Honour Justice Hayne has put in respect of the duty not to shorten the life of the tree. 

What happened in this case was that you had a tree which stood 16 to 18 metres high which was at breast height of a diameter of 2 metres and yet showed no sign, apart from a problematic white mark on the side of the trunk, which would indicate that there was anything wrong with it.  So the water which the arborist said probably came from the culvert pit was introduced to the tree‑stump – it was said by the arborists - probably from the culvert because there was no other credible source of the sort of water which would be necessary to create this danger – was an artificial source of water to the tree roots because the trench was laid across the roots.

The trench was laid two metres from the centre of the tree which means about a metre from the trunk, perhaps a little more than a metre because the diameter I have given your Honours is at breast height.  The question of the source of the water which caused the tree to fall was dealt with with Mr Castor, who was not the plaintiff’s expert but was called by the Council ‑ ‑ ‑

FRENCH CJ:   Assume the possibility of these mechanisms had been known at the time, it tells us – because we are obviously not looking back to the finer duty of care by reference to what actually happened, we are looking at – and I understand you are not putting that, but you have a combination of events - Mr Gleeson gets into the dangerous territory of Bayes’ theorem, which I think is a lot more unsafe than Pythagoras, but in your formulation of your duty at 53, you talk about “which might result in harm”, but you set there by no lower limit on the probability of risk which the duty, properly discharged, has to avoid, do you?

FRENCH CJ:   Mr Toomey, is there anything arising out of that last observation?

MR TOOMEY:   I can only tell your Honours that it was not raised at trial and it was not raised in the Court of Appeal.

FRENCH CJ:   Thank you.  The Court will reserve its decision.  The Court adjourns to 9.30 am tomorrow in Sydney.

AT 3.02 PM THE MATTER WAS ADJOURNED