Sydney Water Corporation v Turano & Ors; Turano v Council of the City of Liverpool & Ors

Sydney Water Corporation and the Council of the City of Liverpool were respondents in proceedings brought by Mr and Mrs Turano. The Turanos sought damages for loss and damage to their property, alleging that the respondents had caused or contributed to the damage through their respective roles in the construction and maintenance of a stormwater drainage system. The High Court of Australia was required to determine the extent of the respondents' liability for the damage suffered by the Turanos.

The central legal issues before the High Court concerned the application of the rule in *Rylands v Fletcher* and the tort of nuisance. Specifically, the court had to consider whether the defendants had brought something onto their land which was likely to do mischief if it escaped, and whether the escape caused damage. Furthermore, the court was required to assess whether the defendants had created or permitted a nuisance by allowing water to flow onto the plaintiffs' land, and whether any defences, such as statutory authority, were available to the respondents.

The High Court, in its joint judgment, clarified the principles governing liability for the escape of water under *Rylands v Fletcher* and nuisance. The court held that for *Rylands v Fletcher* to apply, the defendant must have brought onto their land something which was not naturally there and which was likely to do mischief if it escaped. The court found that the stormwater drainage system, while artificial, was a necessary and common feature of urban development and did not, in itself, constitute a non-natural use of land. The court also considered the defence of statutory authority, noting that while Sydney Water and the Council had powers to construct and maintain drainage systems, these powers did not extend to authorising the creation of a nuisance or the escape of water causing damage. The court ultimately found that the respondents were not liable under *Rylands v Fletcher* as the conditions for its application were not met. However, the court allowed the appeal in relation to the nuisance claim, finding that the respondents had created or permitted a nuisance by the operation of the drainage system, which caused water to escape and damage the Turanos' property.

The High Court allowed the appeal in part, setting aside the judgment of the Full Federal Court and remitting the matter to the Federal Court for determination of the quantum of damages in relation to the nuisance claim.