Sydney Water Corporation v Turano & Anor [2009] HCATrans 135 (18 June 2009)

Last Updated: 18 June 2009

[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] HCA 57; (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 28th July, 2005 there is no evidence of the permanence of this ponding.

3.4 It 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?

MR TOOMEY: Yes, your Honour. What we say is that the duty has to be propounded in the light of the power being exercised, and the work being done.

FRENCH CJ: But the “might result in harm” could get us down to a duty to avoid a 0.5 per cent of the sort of event occurring.

MR TOOMEY: With respect, we would submit that would be enough, your Honour. One thing in this case that one can use, the harm which resulted from, is to prove that it was not insignificant. It killed a man in the presence of his wife and young children in circumstances which grossly injured them.

FRENCH CJ: This is the notion of expectation value, the combination of the probability and the damage.

MR TOOMEY: That is so, your Honour. It is trite law that if you act in a manner which might cause a scratch to a finger, the standard of care is very low indeed. But if you act in a way where the result of what you are doing may be a terrible result such as this, then the standard of care must be very high.

FRENCH CJ: But setting no lower limit on the probability of an adverse event really comes pretty close to an absolute duty, does it not?

MR TOOMEY: I do not really know how to answer that, your Honour. I am not sure I understand the thrust of the question. Could your Honour help me?

FRENCH CJ: It is just that there is no lower limit imported from the word “might”, that is what you say?

MR TOOMEY: I see what your Honour means.

FRENCH CJ: I am saying you can get down to vanishingly small probabilities of very bad things happening and it starts to look very much like an absolute duty.

MR TOOMEY: Indeed, your Honour.

FRENCH CJ: Because if something did happen, there must have been a probability that it was going to happen.

MR TOOMEY: There was never a probability here.

FRENCH CJ: I am just looking at the logic of the - - -

MR TOOMEY: Indeed, your Honour. But we start with the terrible nature of the possible result. I mean, you can propound them, and it is necessary to put the razor on them, but, for instance, there could have been a school bus going along when the tree fell. The act done by the water authority was a frank act and it was two acts. It is not just that there was a damming of the culvert, which itself would have been of no effect to anyone, it would not have done anything to do the tree anyway, it was that by laying the water main which carried the water to the tree across the culvert, the culvert pit was dammed.

The amount of water in the culvert pit was raised by something of the order of 150 millimetres, about 6 inches in the old currency. The amount of water held in the culvert which was dug out of clay so impermeable that Mr Lumsdaine, the geotechnical expert who was called in the case, said that the sand was of a degree of impermeability three orders to five orders greater than the clay, that is 1000 to 100,000 times more permeable than the clay and the clay, it was said, in which the culvert pit was constructed allowed a slight penetration of the surface and no more.

The suggestion that the water might have extended from the culvert to the four metres or so to the tree was dismissed out of hand by all the experts. What caused the water to get to the tree was that it came from a water source which had been created or partly created by the water authority and was then carried to a position right in the middle of the feeder roots of the tree. Had the damming not occurred, there would not have been the water in the trench of the water pipe and had the pipe not been laid over the roots, the water would not have got to the roots of the tree.

Now, this is being done by an authority which, I unashamedly espouse what was said by Justice Hodgson, their business was water and once they are given the power to deal with this in any way they like – and they are effectively by section 32, they can enter on any lands, they can place these things anywhere they like – there must be a duty of care imposed by that combination of circumstances and by their power to create a danger. Now, I know we are talking of duty rather than breach, but it cannot be said that in terms of the test of foreseeability here that it was far-fetched or fanciful that harm would result from the compromising of the roots of a very large tree two metres from a public road.

BELL J: What was the evidence concerning the foreseeability of water travelling to the roots of – well, I will go back a step. As I understand it, the evidence did not establish that the tree was in situ in 1981 when the main was established, is that right?

MR TOOMEY: Well, no, your Honour. My learned friend keeps on saying that. I can tell you – I was at the trial and he was not – it was never an issue at the trial and the evidence of Mr Bewsher, who was an expert, was that he had two aerial photographs which showed a mature gum tree of the nature of the tree that fell in 1978 and 1982, that is before and after the main was laid, in the position where the tree which fell was.

FRENCH CJ: This was a pretty big tree, was it not? It was two metres diameter?

MR TOOMEY: The trunk was two metres diameter and the height was 16 to 18 metres, your Honour. Can I say that it would be absurd to suggest, as I think my learned friend has at least waved a hand at, that perhaps it was pulled out and a sapling was put in and at the time it fell over it was 20 metres tall – 18 metres tall?

BELL J: In a sense, Mr Toomey, it is sufficient for your purpose, you would say, that there was in the near vicinity of the interruption caused by the main to the area of the culvert drain a large tree?

MR TOOMEY: Yes, your Honour. I ought to take your Honours to the evidence of Mr Castor, who was, as I said, called by the Council, not by - - -

GUMMOW J: Have you a note in your written submissions as to the place where we find reference to these photographs you were talking about in 1978 and thereafter?

MR TOOMEY: My learned junior tells me that it is not in our written submissions, for which I take responsibility, but it is – I am sorry, your Honour is talking about the aerial photographs?

GUMMOW J: Yes.

MR TOOMEY: It is referred to by us in our submissions on the application.

FRENCH CJ: There is something at 593, I think, is there not?

MR TOOMEY: Thank you, your Honour. Yes, I think her Honour said something it about paragraph 47 of her judgment.

FRENCH CJ: There is a photograph at 593, 1970. You cannot see much.

MR TOOMEY: Yes, that is not terribly helpful, your Honour. Mr Bewsher gave the evidence that he had seen them – that might be an annexure to his report, I think, your Honour.

FRENCH CJ: It is, yes.

MR TOOMEY: Yes. But Mr Bewsher said that he - - -

GUMMOW J: It is page 592, is it not, line 150?

MR TOOMEY: Yes, it is. Thank you, your Honour.

GUMMOW J: Where is he talking about trees, though?

MR TOOMEY: It is 597.

FRENCH CJ: Yes, paragraph 32 on page 597.

MR TOOMEY: Yes, your Honour. If your Honours go up 597 to 25:

Inspection of the 1978 and 1982 aerial photographs shows the presence of a tree with a significant canopy, in approximately the same position as that shown on the 1999 survey plan. However I cannot be certain that it was the same tree.

The tree on the 1999 survey plan is, of course, the tree that fell. I should say the water authority did not present evidence to the court, other than expert evidence. No one was called to say what they knew, what they thought they ought to have known, whether there was a protocol. Subpoenas produced no helpful material. Unfortunately, there was not discovery in the case, although one might think in retrospect there should have been.

We have to view the acts of the water authority in the light of the fact that they chose not to inform the court of any difficulties they may have had. We would call in aid what Sir Frederick Jordan said in Darling Island Stevedoring v De Gioia that when the knowledge is in one party which does not present any evidence that very slight evidence is sufficient to establish what they have failed to rebut.

FRENCH CJ: I am just looking at 620, paragraph 10 of the trial judge’s judgment. He says:

I am satisfied that the following matters have been established:

There are a number of dot points. About eight dot points down he says:

The water pipe was laid in a bed of sand.

He says about four metres away stood the grey box gum. It reads as though it is a finding it was there at the time.

MR TOOMEY: Yes.

FRENCH CJ: I do not think there was any setting aside of that finding, was there?

MR TOOMEY: No, your Honour. I know it is difficult when counsel say, “I was there and this is what happened”, but, your Honours, I was there and this is what happened. We ran the case on the basis that the tree that fell was there when the water pipe was laid. If it had not been conducted on that basis, it could have been determined by the judge saying yes or no, the tree was there, but it was not an issue in the case.

FRENCH CJ: Anyway, he appears to have made a finding to that effect which has not been interfered with.

MR TOOMEY: He did, indeed, and in fact the Court of Appeal looked at it – I think it is at 47 of Justice Beazley’s judgment, paragraph 47 which is at 739, blue 2, 739, paragraph 47, your Honour.

BELL J: That is not as strong on the point, is it not? It is just accepting Mr Bewsher that – yes.

MR TOOMEY: It is, it is. But it makes it plain, your Honour, that it was in the mind of the Court of Appeal and there is also a reference by Justice McColl in which I think she finds that it probably was the tree. Justice McColl at paragraph 290 of her judgment which is at 805, and again her Honour simply refers to the material from Mr Bewsher, but as your Honours pointed out to me I may be pushing against an open door because his Honour found that the tree was the tree. Your Honours, I am sorry, I was going to take you to Mr Castor’s evidence. If your Honours could go to blue 1, page 117. After a certain amount of unresponsiveness from Mr Castor, at line 23 I ask him:

Q. But what do you say caused the tree to fall over?

A. A combination of fungal degradation of the root system and the wind at the time.

Did not know what it was. Mentioned gale force winds. A storm event down the eastern sea board and at line 39:

Q. Yes, but a healthy tree would not be expected to fall down without some compromise in its constitution, would it?

A. That’s right, yes.

Q. So we may assume that in this case there was some compromise in the constitution of the tree?

A. Yes.

Q. Am I correct in thinking that you are of an opinion that that compromise was an unsatisfactory root system by reason of fungal infection?

Then on page 119, your Honours, there – I am sorry, the bottom of 118, line 47:

Q. The tree roots were described as having, “The tree roots bore a small black surface feeding roots that have died from a result of permanent waterlogging of the nature water table, no large anchorage roots are present”. What would that suggest?

A. It would suggest that some fungus has degraded the root system of the tree.

Q. There was also notation of “a black smelly rotten waste of organic and inorganic matter around the tree roots”, would that indicate an advanced state of fungal infection?

A. That would suggest anaerobic soil conditions.

That is lack of oxygen. Then at 19:

Q. If it appeared that within approximately 2 metres of the base of the tree there was a trench, a sand bed with access to a pit which was frequently full of water, would that indicate to you that the probable source of the fungal infection was from the water logging and the roots going into that source?

A. Yes.

Q. If there was an outlet into a culvert 4 metres away which culvert was frequently full or partly full of water would that indicate to you a possibility that that had been the source of the fungal infection as opposed to the trench?

A. Those conditions of intermittent water logging would have predisposed the root system of the tree to the infection.

Q. Is that a well known arborist fact that if you water log a root it becomes vulnerable to fungal infection?

A. Yes, it’s not a desirable condition to be inducing on a plant or a tree.

FRENCH CJ: There was no evidence, was there, of any alternative mechanisms for transmission of phytophthora?

MR TOOMEY: No, there was a suggestion from Mr Jackson Clarke, whose report is referred to on that page that, that it was because there had been a lot of rain and that the roots were rotten because there had been a lot of rain. That was not accepted and, as Justice Beazley said in the Court of Appeal, no one sought to - - -

FRENCH CJ: That did not have to do with an alternative -I am sorry, I was just asking about an alternative mechanism for the transmission of the fungus.

MR TOOMEY: I understand, your Honour, but the only one was Mr Jackson Clarke saying, well, it could have been a lot of rain and it could have become waterlogged from the rain, but if that were the case, I mean, you would have trees falling over all over the countryside and, as Justice Beazley said, no one sought to resurrect that on the appeal. Mr Bewsher, whose report your Honours have glanced at, said in his report that it was probable that the – I think your Honours might already have seen this – water had come from the -at page 134, your Honours, at line 21:

Q. We know from what Mr Lumsdaine says –

and Mr Lumsdaine, your Honours, was the only geotechnician, the only soil expert called in the case –

that the culvert pit was impermeable clay and so direct water from the culvert pit to the tree roots is either unlikely or small?

1. Small, yes.
   

Q. So if the tree fell over by reason of a pathogen which arises from the roots of the tree being continually soaked, one would as a matter of deduction, would one not, say that it was likely that it came from the water main trench?

A. That’s correct. As I say in the last sentence of paragraph 31 if water did reach the tree roots in any quantity it’s probable that it occurred via the water main trench.

Your Honours, that water did reach the roots of the tree in any quantity is established by all the arborists’ evidence which says this is a waterlogged tree and the reason it got a pathogen was because it was waterlogged and it was the pathogen which killed the roots.

FRENCH CJ: All this goes back to the proposition that this is within the scope of “might cause harm”?

MR TOOMEY: Absolutely, your Honour, because we are dealing with an expert. It might not be foreseeable to a farm labourer having a dig around the roots of a tree by the fence of his property when, if the tree fell, it might go over on the road and do harm, but this is a water authority. They deal with water, they pond it, they divert streams, they create flows and in this case, although Mr Gleeson continually in his submissions refers to diversion of the water, it is not diversion at all, in our respectful submission, it is the creation of a flow because there was no flow to the tree until the water main trench with its sand was built in such a position that it carried the water to the tree.

BELL J: Mr Toomey, the trial judge did consider on the issue of foreseeability as it relates to duty that it was far-fetched and fanciful to consider that the Board would have foreseen this risk.

MR TOOMEY: Yes.

BELL J: Your last submission picks up the reasoning of Justice Hodgson. What evidence of an expert kind was there to provide the basis for that conclusion?

MR TOOMEY: Your Honour, it was derivative to an extent that the arborists all said that a tree standing in water, semi-permanent or intermittent, is likely to be infected by a pathogen which can have the result that happened here. What we say is that the water authority should have had the knowledge of an arborist, should have attributed to it the knowledge of an arborist.

GUMMOW J: So what should they have done? I know we have not got that far yet but if you would just look ahead for a minute.

MR TOOMEY: Yes. I have not got to that yet, your Honour. There were a number of things they could have done. They have the power to enter upon land. On the survey plan the canopy of the tree extended just about to the fence. They could have, in our submission, simply laid the water main trench on the other side of the fence. They could have, in other words, carried it around the roots. But there was a more direct way they could have avoided it.

As I have said to your Honours, causation is two-pronged: one, the damming of the water; and, two, the carrying of the water. They could have prevented the water being in the water main trench had they laid the water main trench below the culvert. Instead of laying across it, which they did, they could have laid it below it. Several of the engineers said that could readily be done, and indeed there was a Water Board diagram in evidence which showed permissible methods of laying pipes. I am told it is at page 201, your Honours. That demonstrates means of – sectional diagrams of the laying of pipes. Mr Burn, I think, who was one of the engineers - - -

GUMMOW J: What is the date of this drawing?

MR TOOMEY: It is 16 July 1981 – down the bottom right-hand corner.

GUMMOW J: Yes. It seems to be so.

MR TOOMEY: We do not know exactly when in 1981 the pipe was laid because, as I say, no one was called from the water authority to testify and the Council claimed to know nothing about it. According to the Council they did not believe that anyone had ever told them that a water main was being laid along their road.

Mr Burn, who was a civil engineer, at page 87, line 25, was asked these questions in cross-examination by Mr Watson, who on this point had a – he and I ran in lock step on this question:

I’ll just remind you that you agreed that one potential effect of the installation of the water main in the sand bed was to create effectively a north-south drain, do you remember that?

A. Yes.

Q. . . . That kind of effect, the creation of the north-south drain here at Edmonson Avenue wouldn’t have just been foreseeable. To anybody who looked at this it would have been evidently a probable consequence of laying the water main in that place in sand, do you agree?

A. Yes.

Q. That probable consequence of creating this north-south drain could be ameliorated by other actions by the authority laying the water main, don’t you agree?

A. Yes.

Q. For example, creating a drain so as to permit further westward movement of the water drained through the culvert?

What he meant by that, your Honours, was that the old tailout drain had become silted up over the years but if the water authority had paid proper attention, they would have known they were damming the culvert and they could have prevented the effect of the damming by simply getting the trencher that they had there to dig out the lip of the culvert so the water could flow under there and it would not have - - -

FRENCH CJ: It was at least partially damming, was it not?

MR TOOMEY: Yes, it was, your Honour. It was a matter of controversy, and it is not entirely clear what the findings were, but there was a finding there had been a tailout drain and it was suggested that it was probably at least partially blocked at the time of the laying of the water main. That is what Mr Burn, the engineer, was referring to when he said - - -

BELL J: Was there any evidence from the civil engineer to give colour to your contention that in 1981 a water authority should have sought to obtain the opinion of an arborist or, as you put it, had the knowledge of an arborist?

MR TOOMEY: Your Honour, Mr Freeman, who was himself an arborist and horticulturalist, who was the man who went to the tree the next day and took those photos, he said that the effect would have been known to any civil engineer or arborist. He said that without objection and he was not cross-examined on it.

GUMMOW J: Where do we find that nugget?

MR TOOMEY: I will just get it to your Honour. I think it was in his report.

FRENCH CJ: This was not connected with his inadmissible statement about water tables and water levels?

MR TOOMEY: No, the water table ultimately was teased out, your Honour, was he was talking about water level. He did not really mean water table at all, he meant water level. At page 607, Mr Freeman’s report of September 2006 at line 35, he said:

Based upon my inspection and observations of the site, it is my opinion that the lack of a tail out drain and level of permanent water surrounding this tree trunk and root zone resulted in the failure of this tree. This would have been foreseeable to any professional Civil Engineering, Horticulturalist or Arborist.

Now, as I say, that is left unchallenged, and he was an horticulturalist and aborist.

FRENCH CJ: Was that reflected in a finding, by the way?

MR TOOMEY: Well, his Honour the trial judge cited - - -

FRENCH CJ: He refers in several passages, does he not, to “there was evidence”?

MR TOOMEY: He does, but he cited that specific one, your Honour, and said that he accepted Mr Freeman – your Honour, I have the disadvantage of having the trial judgment I marked up was the one from the special leave application and I have not remarked it, but it is on 624, your Honour.

GUMMOW J: The paragraph numbers will do, Mr Toomey.

MR TOOMEY: Yes, it is page 624, paragraph 26, your Honour.

FRENCH CJ: “I accept his opinions.” I see, yes.

MR TOOMEY: Yes.

FRENCH CJ: It is at 27.

MR TOOMEY: Yes. I am sorry, your Honour, but can I just point out that he is not just saying I accept his opinions generally. That passage in his Honour’s judgment immediately follows the sentence in which he reproduces what he said.

FRENCH CJ: Yes, in 26.

MR TOOMEY: It is plainly not just a general acceptance.

BELL J: This is an opinion, this is at 607 in the report of Mr Freeman, that in light of his inspection of the site in the immediate aftermath of the incident the lack of the tailout drain and what he described as the level of permanent water surrounding the tree trunk would have created a foreseeable risk to a professional civil engineer. That is somewhat different to a consideration of whether establishing a north/south drain in the sand would have created a risk.

MR TOOMEY: Your Honour, that is the material from Mr Burn at 87.

BELL J: But Mr Burn simply said it is foreseeable, as a civil engineer, that water will drain through sand. So if you have sand as the bed for your main in a north-south direction, as I understand Mr Burn, he is saying it is not difficult to work out you would have water draining in that direction.

MR TOOMEY: Yes.

BELL J: That seems to me to fall somewhat short of an expression of opinion by Mr Burn that in creating a north-south drain a civil engineer in 1981 should have been mindful of the risk to waterlogging of surrounding vegetation.

MR TOOMEY: Your Honour, I do not think I took you to the next page of Mr Burn, and I should have, because he said – I did read some of this to your Honours. At line 23:

I want to go back to the thing which I called the second potential effect and I’ll just remind you what it was. You agreed that –

GUMMOW J: What page is this?

MR TOOMEY: I am sorry, your Honour; appeal book 1, 88.

BELL J: Yes.

MR TOOMEY: There is a difficulty about asking questions about foreseeability because it is a legal question ultimately, but it is frequently done and it was done in this case. Mr Watson put to him it was not only foreseeable – and Mr Watson was clearly using it in the legal sense, but he said that was a probable consequence of laying the water main. Burn said:

At the level they laid it, yes.

That is when he went on to say that it could have been ameliorated.

HAYNE J: The material to which you have been taking us, as I understand it, you would say demonstrates that it was foreseeable to the board that the work it was doing could in future harm the property of another – namely, the tree?

MR TOOMEY: Yes.

HAYNE J: Is it necessary that you take the next step of saying that it was then also foreseeable to the board that if the harm to the property of another occurred and was neither observed nor remedied by that other a road user might be hurt?

MR TOOMEY: Yes, your Honour, I think it is probably, but the class of those who might be injured, if the insidious effects of the acts of the water authority were not detected – a class was anyone who might be within the physical ambit of the tree if it fell. Clearly, the main class was the users of the public road because it was 10 metres from the public road. If the tree had been in a different position it would be a very different case, but the tree was 18 metres tall and two metres from a public road.

Can I say this, your Honours. The point your Honour raised with me is, with respect, one that everyone has had in mind, I think, although at the trial no one actually said, “Well, it happened 20 years down the track, therefore, you don’t recover”. But there must be a category of tort in which the effect of the tortious act is extended over a lengthy period of time. Asbestos I mentioned to your Honour but that, as I conceded, is a special case.

Supposing someone poisoned a tree and it was going to take years and years and years for the poison to work, would it be said that because it was not going to fall over for 10 years that there was no duty of care? I do not need to remind your Honours that the indeterminacy of class, time and amount that Chief Judge Cardozo referred to was in respect of pure economic loss. It has, in our respectful submission, been a matter pretty well accepted in the law that when you have the case of direct injury to person or property, at the time – unless you are talking about a century – of course that is your difficulty – there may be, we would also submit, a special dimension of the question of the length of time when you are referring with a perpetual authority, because this is a statutory authority which, one assumes – so long as there are 4 or 5 million people in Sydney who need water and drainage – that it is going to continue to exist, and so the - - -

HAYNE J: We will not go into the realms of privatisation, Mr Toomey, that is a new terror. But the two points which I suspect you may need to grapple with in the formulae I have put to you are, the length of time itself presents an issue about what the alleged tortfeasor can do to ameliorate consequences so far in advance when there is such opportunity for intervention by others, which in turn is related to the second point, that the property we are concerned with is the property of the Council and the duty upon which your side depends is a duty to act in respect of the property of another to avoid a risk that will come to pass a long time into the future.

MR TOOMEY: Indeed, your Honour.

HAYNE J: They are the difficulties I have at the moment.

MR TOOMEY: Thank you, your Honour. Your Honour, taking out the temporal aspect for the moment, we would say it is simply a Chapman v Hearse situation. We would say it is a tortious act in respect of the Council because the Council owns the tree, but we would say the natural consequence of that tortious act is that there may be – it is not far fetched or fanciful to recognise that the result of that tortious act may be injury to a class of people who have no relationship with the Council, except that they are in the same area. The temporal one is a problem, but, your Honours, can we say that, as a matter of principle, it ought not to be the law that if a tortious act is going to take a long time to mature into a tort, that is, until the occurrence of damage, it ought not to be the law that that excuses a tortfeasor.

If it is the result of the Act and if it flows from the Act, as we say this does, then it would be unjust that a tortfeasor could escape because by chance, perhaps, the tortious act takes a long time to have effect. Twenty years might be getting towards the limit, but it is 20 years because that is the length of time it took for the tortious act to mature into an actionable tort. That is essentially our argument on the temporal aspect, your Honour.

We have been unable to find any authority which says in terms you cannot recover after 40 years or you cannot recover if it is a very long time.

The discourse about pure economic loss of course takes that into account, but in every case I have ever read on pure economic loss – and indeed it was expressly said in consideration of pure economic torts in Perre v Apand that this case is to be distinguished from damage to personal property. There is always a line making it clear that the difficulties of pure economic loss are not to be engrafted onto the consideration of - - -

FRENCH CJ: It may be that lapse of time is relevantly a factor to be taken into account in assessing foreseeability because it takes a long time for an improbable conjunction of events to occur.

MR TOOMEY: Indeed.

FRENCH CJ: On the other hand, if you are constructing a house in an earthquake zone and you do not comply with the codes and 30 years later the house falls down and everybody in it is killed, then that is - - -

MR TOOMEY: Of course, your Honour. Bryan v Maloney came into that area, really. But we do not want to rely on Bryan v Maloney because we would be going where we just said we were not going. That is essentially our argument on duty, your Honours.

FRENCH CJ: Mr Toomey, perhaps we will hear from Mr Gleeson in reply on duty at this stage.

MR TOOMEY: Thank you, your Honour.

FRENCH CJ: Yes, Mr Gleeson.

MR GLEESON: Your Honour, the main matter I consider we need to reply to is a factual submission that the chance of the harm occurring can be regarded as more than remote. In our written submissions at paragraph 49 on page 10 we identified all of the factors that have to come together in order to produce the ultimate risk of harm. We do submit that the lapse of time is relevant in indicating how unlikely it was that all of these matters would come together.

As to the first matter, Justice McColl correctly pointed out that there was no evidence on that question of grade or composition of the water main. What followed from that, taking up a question from your Honour Justice Bell, was that there was no evidence given that as of 1981 there was a body of knowledge readily available to predict what would be the volume and frequency of water flows. The third matter relates to a question Justice Hayne raised a moment ago about it being an essential element in the series of events coming together that the responsible authority would not respond to the situation, in two senses. The first is whether there was excessive ponding. That is the damming effect that is referred to.

In relation to that matter, on page 767, paragraph 158, in dealing with the case against the Council, her Honour referred to evidence of ponding on “half a dozen occasions” which came to the evidence of the Council and that “was not necessarily evidence that the culvert was not draining properly”. Again, at page 770, paragraph 172, her Honour repeated the acceptance of this submission that there was no problem with there being “ponding during wet periods” because “that was precisely how the drain was intended to operate”.

So if it be said that over the 20-year period the pipe is having some effect in terms of ponding, that is a matter which is patent, it is known to the Council, the Council can exercise the powers if it wishes to alter the nature of the outlet drain. The other matter in that vein is the question of the north-south drain, as it was called. I indicated to your Honours from the 1999 survey this morning that the Council has all the information as to the levels of the water main relative to the outlet pipe and can make such decisions on that as it wishes.

Could I then move down to letter (e), and I do need to respond to something that was said about the arborists. Your Honours were taken to page 607, to Mr Freeman, and your Honours were told this was the evidence that the knowledge of an arborist was available to Sydney Water acting prudently in 1981. There are two problems with this material. The first is this is the very material which was rejected by the Court of Appeal.

Although the trial judge accepted it, Justice Beazley rejected Mr Freeman’s evidence, and that is found at page 735, paragraphs 35 and 36. Her Honour said:

there was a challenge to the expertise of horticulturalists to give evidence –

about these matters. As I have already indicated, his Honour’s acceptance of Mr Freeman’s evidence was flawed and that appears back on the previous page 733 at paragraph 27.

What Mr Freeman was saying at this page was that he was expressing a view – if we go back to 607 – that two things caused the failure of the tree. The first is the lack of a tailout drain and the second is what he described as a level of permanent water surrounding the tree trunk. That was the theory, that water from the culvert had generally led to waterlogging all around the tree. That was the theory which was critical to his Honour finding the Council liable. The Court of Appeal rejected it.

CRENNAN J: Was not the evidence that the Court of Appeal rejected Mr Freeman’s evidence about the raising of the water table? In other words, not this particular issue on 607?

MR GLEESON: With respect, your Honour, it went to the more fundamental point. If we go back to 733, the evidence is set out in paragraph 26 and it is evidence to similar effect what we are looking at. So the first change was he meant water level, not water table. That was accepted as what he was trying to say. So he was not criticised for that. The critical rejection is in paragraph 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.

The same happens at paragraphs 30 to 31 when Mr Freeman gives his further evidence. With respect, that is why, when Justice Beazley reviews the arborists in summary at page 747, the only evidence that is actually accepted of the arborists is paragraph 82, namely, that it was:

affected by a pathogen . . . the white mark on the tree indicated the presence of the pathogen which would have warranted further inspection.

Then in 83, his evidence that there was a permanent rise in the water table due to the poor drainage from the culvert is rejected, as is his opinion about the rise in the water level. So in its original form and its revised form, her Honour has said, correctly, he had no expertise in soil sites so his view as to what occurred must be rejected. For that reason, her Honour went next to Mr Lumsdaine.

So our submission is that in 1981, firstly, the evidence did not prove that there was a body of knowledge amongst arborists which would have allowed them to say this is the likely effect on the tree and, secondly, as was raised by your Honour Justice Bell in a question, the finding was that there was no evidence of a practice of water authorities to consult arborists on these matters at all. That is the finding of the trial judge at page 652, paragraph 149, and that finding was not disturbed.

So in order for one of the essential links in the chain to become even foreseeable to any degree of probability, the law must hold that, notwithstanding the absence of evidence of any such practice, it was the duty in 1981 to inform yourself via an arborist of everything which an arborist might know about the event. Finally on the arborists, Mr Castor’s evidence-in-chief at page 114, between lines 25 to 45, established that the pathogen:

would have entered via the feeder roots initially . . . The length of time is unknown, the actual pathogen is unknown. Trees can be affected by fungal pathogens from soil for some length of time –

some recover, some die quickly –

depending on the circumstances of the species of tree and species of the fungus.

So coming back to the issue of length of time, it is not even known or apparently knowable when the water from whatever source was likely to introduce a pathogen. The asbestos cases are, of course, distinguishable because there is the body of knowledge as to very clear risk, as Mr Toomey recognised. There is usually an existing relationship of employer/employee, supplier and customer, or the like, but critically something has happened at the time of breach of duty, ie, the ingestion of the harmful fibre which may take a long time to do its very harmful work. But the negligence has exposed the worker, for instance, to the actual ingestion of that fibre in the workplace. Very different to the present situation.

The Court was then taken to the evidence at page 119 where Mr Castor agreed with two somewhat inconsistent propositions as to what the source of the water might be that carried the pathogen. The first was that on the assumption that the trench drained a pit which was frequently full of water, did he believe that was the source of the fungal infection? The second was a different assumption, was it possible that it came from the culvert itself? His answer was at line 31:

Those conditions of intermittent water logging would have predisposed the root system of the tree to the infection.

So the only proposition he could in fact give within his expertise was if there is intermittent waterlogging, that predisposes it to infection. He did not have expertise as a soil scientist or a geotechnical engineer or an engineer to indicate where the water came from.

Your Honours, the other matter that was raised was the engineer’s evidence and what was established from that. The critical point was that none of the engineers gave evidence that there was a body of knowledge in 1981 which would enable one to predict this effect. The first witness which the majority placed great reliance upon was Mr Lumsdaine. If your Honours consider the way Mr Lumsdaine answered the question put to him - this is at pages 571 to 572. At 571 at paragraphs 36 to 38, he contemplated possible mechanisms:

If there was no original tail-out drain –

at the time Sydney Water laid its main. Then he says at paragraph 39:

On the contrary, the construction of the Water Board main probably inadvertently provided an outlet drain to the pit.

There is no evidence there that it would be known in 1981 that that was the effect, indeed he describes it as an “inadvertent effect”. Critically though at page 572, paragraph 44(e), he said he did:

not know if part of the explanation for the tree’s falling over was saturation of the soil around the tree’s root ball by water originating from the outlet pit. But if this is part of the explanation, then it is almost certain that the route taken by the water from the outlet pit to the tree root ball -

I emphasise that -

was through the sand backfill -

FRENCH CJ: I think the trial judge converted that into an unconditional statement.

MR GLEESON: Yes, and what he said is he does not know if the relevant water came from the outlet pit. If it came from there to the root of the tree ball, then it is more likely it came through the sand than the clay. There cannot be any objection to that as a logical deduction. What he has not done is to say, “I can tell you that it came from the outlet pit”, that is the first thing. Secondly, he is only talking about water going from the outlet pit, travelling to the tree root ball. He is not talking about all the ways in which water within the 10 diameter circle might bring a pathogen to the tree roots. When he was cross-examined on that he made very clear how limited was his opinion. Your Honours see that on page 111.

He said on page 111 he had chosen his words very carefully just to address a very specific point about what path the water would take if it came from the pit to the tree. That is as far as he went and that is a hindsight assessment based upon the whole of his investigations. It does not give evidence that this is something that, with foresight, competent geotechnical engineers could predict in 1981.

The next person your Honours were taken to was Mr Bewsher. He also expressed his opinion in the same qualified manner. His opinion was given at page 597, paragraph 31. This is in the context of the culvert and he says:

The presence of the sand backfill in the water main trench provides an efficient hydraulic conduit for the passage of water along the trench. The clay material observed around the existing culvert outlet is not an efficient medium for the passage of water. If water did reach the tree roots in any quantity, it is probable that this occurred via the water main trench.

Again, he is speaking about water coming from the culvert by sand and not by clay. He has not gone any further than that in terms of (a) giving evidence in 1981 that these things were known to expert engineers or (b) opining on the actual mechanism. Could I inquire what time your Honours were sitting until?

FRENCH CJ: How much longer do you think you will be on this?

MR GLEESON: About five minutes on this topic.

FRENCH CJ: Yes, please complete.

MR GLEESON: Thank you, your Honour. That was made clear by his cross-examination at page 131 which needs to be read together with what Mr Toomey took you to. He explained that the “if” meant just that.

GUMMOW J: Which line?

MR GLEESON: It is between lines 1 through to 20. So thus far neither of the arborists, the geotechnical engineer or Mr Bewsher either singly or together were able to pose to a body of opinion in 1981 which would have predicted this sequence of events, let alone to say that after the event that is actually what happened. The final person is Mr Burn. Your Honours were taken to the leading cross-examination of Mr Burn where he said this is all not only foreseeable, it is indeed probable.

As we point out in our submissions, Mr Burn filed six reports in the matter and in none of his reports did he even mention the north-south drain. The north-south drain did not occur to him until it was put to him by counsel in the witness box. If I can just give your Honours an example from his reports to show that this was something not known to him prior to that. For example, at page 312, between lines 30 to 40, his theory is essentially the discredited theory of Mr Freeman. His theory was that the ponding of water could:

only dissipate via evaporation or seeping into the ground serves to maintain high moisture content in the surrounding ground . . .

replicates the situation at the time of the alleged incident –

So his theory is the outlet pit is seeping into the area causing a general waterlogged surround; no mention of the north-south drain. So that is the most clearest evidence of this being hindsight reconstruction rather than matters known to competent experts in the field at the time.

Could I simply give your Honours, without going to them, three other page references where Mr Burn’s opinion is the same: pages 296, 334 and 345. That is what we wish to say in reply on duty, your Honours.

FRENCH CJ: Thank you. The Court will adjourn briefly to consider what course it takes in this matter.

AT 12.52 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.59 PM:

FRENCH CJ: The Court will adjourn until 2.00 pm, at which time we will hear argument on the balance of the issues.

AT 12.59 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

FRENCH CJ: Yes, Mr Gleeson.

MR GLEESON: Your Honours, in relation to breach, assuming a duty, there are two formulations of it I wish to respond to. The first formulation is that given by the Court of Appeal at paragraph 210, page 781, which we submit on any view cannot be an acceptable formulation of a duty. If your Honours compare that formulation with section 5 and 5B of the Act, a fatal conundrum emerges. Under section 5A the claim is “for damages for harm resulting from negligence”.

In the present case the harm claimed – going back to section 5 – is the first type of harm, personal injury. We submit that when one comes to section 5B, the risk of harm there dealt with is the harm claimed in the proceedings in the present case “personal injury or death”. Therefore, the formulation of duty must be in a form which allows the risk of that harm to be considered under section 5B. That cannot occur with paragraph 210 because the harm contemplated there is harm to the culvert.

Can I then secondly deal with a further formulation of the duty – perhaps more consistent with this morning’s argument – which is a duty to take care in the exercise of the power of installation so as not to cause harm to vegetation or shorten the life of vegetation in a way which might, if left unremedied, cause injury to a road user. That, we submit, would at least be something which one could apply the section 5B test to. Assuming that is the relevant risk of harm – going to section 5B – our first proposition is that that risk of harm is not foreseeable; it is not a risk which Sydney Water knew of or ought to have known of. In relation to the “ought to have known”, one of the critical elements of the chain of events is said to be what an arborist might deduce as to risk. I have made submissions this morning that it was not practice to consult arborists and, in any event, none of the arborists said this could be foreseen in 1981.

The next submission on that paragraph (a) is that, for it to be foreseeable, it is highly relevant that the incident in question or anything like it has never been known to occur before or after. That makes this case very different to virtually every other case where the type of incident, not the precise incident but the type of incident, is something which is known to have occurred.

As one example in that line, in, for example, Caledonian Collieries v Speirs [1957] HCA 14; 97 CLR 202, at the foot of page 222, the relevant risk of harm was that “trucks on private lines” might “get out of control” and run across railway crossings injuring road users. The Court said that that risk “if not sufficiently attested by common knowledge, the clear inference to be drawn from such evidence” was as there set out, and various evidence is then set out. The Court then concluded on page 223:

That an escape of trucks from the loop was, in the circumstances, a contingency reasonably likely at some time to occur, and reasonably to be foreseen by the appellant as likely to occur, was a view –

open on the facts. In the case of a kind of harm, as contemplated here, which on the evidence has never been known to occur before and is not a matter of common knowledge, that would tend against it being regarded as foreseeable.

BELL J: When you say, never been known to occur before, are you speaking of a tree being compromised by waterlogging, falling and occasioning injury of this character?

MR GLEESON: There is certainly that which - - -

BELL J: I mean, it is not uncommon for trees to fall, causing fatal injuries to motorists.

MR GLEESON: No, not uncommon at all, but certainly the element of an authority laying a pipe, a diversion of water, damage to a tree, the tree falling tragically killing someone, that sequence of events, never known to occur, and the subset of that, no evidence that any authority has ever had its pipe cause a tree to fall. Now, it is possible to conceive of with the benefit of hindsight and full imagination, but even as that subset of facts had never occurred, therefore unlike a diving case, unlike Speirs, unlike cases where the kind of harm even viewed conceptually as one which either experience or evidence shows has occurred. The third matter we put on foreseeability is that - - -

HAYNE J: Just remaining with the second matter, at some point does there have to be built into that analysis consideration of what seems to have been the fact that there was not much apparent evidence of damage to this tree before it fell? There was a mark but there was no dieback in the canopy, et cetera. So that the circumstance to be considered is one where Sydney Water has, it is put against you, caused damage to the tree of another in circumstances where that other has not intervened perhaps in circumstances where that other has not had occasion to intervene. I am not quite sure.

MR GLEESON: In terms of occasion, I have submitted this morning that to the extent that ponding or damming is an element in the alleged foreseeable chain, that is a matter that is clearly patent and known and was known to the Council on at least six occasions. As to whether the north-south drain has the risk to cause a problem, we put two submissions. The first is that at paragraph 82 on page 747 part of Mr Freeman’s evidence which was accepted and not challenged on appeal was that the white mark on the tree indicated the presence of the pathogen which would have warranted further inspection.

So for that reason, we would submit, it is not a case of a totally hidden risk of harm. It is something which is regarded as worthy of inspection and something which the Council has been held not liable for the manner in which it responded to it. That is the first matter and related to that, on the plans the surveys done in 2000 prior to the event the question of whether to remove trees was clearly one under consideration by the Council.

Could I show your Honours on page 207. That is an earlier version of the large document I have handed up from 205. The handwritten note at the top, close to our tree is “replant/replace trees”. The next document at page 209, the note is “replace trees to be removed; location to be confirmed on site by the superintendent”. I have already indicated those notes refer to work needing to be done on the tailout drain itself. So in that sense the matters are available for the Council to consider.

The final matter I mentioned this morning was that the level of the water main is known to the Council by reason of the levels on the survey. So if the north-south drain, contrary to my submission, is something which it is proven in 1981 competent authorities ought to be paying heed of, the relevant facts concerning its operation are available on that survey. The next submission we make on foreseeability is simply to note - - -

FRENCH CJ: Just going back for a moment, you have made reference to this never having happened before. Is that simply a reflection of the absence of any evidence of any prior similar occurrence?

MR GLEESON: Yes, but there was no evidence either of someone having observed it or a report of it or a document recording it or some discussion of the topic. No journals tendered showing - - -

FRENCH CJ: You just made it as a positive statement that is all, he was just saying it was an absence of evidence.

MR GLEESON: Absence of evidence, yes. The third matter is that the foreseeability of the risk is of course to be determined, as the Court has said, prospectively with regard to what is known in 1981 and we submit that the entirety – or close to the entirety of the expert evidence was all infected by the retrospective causation exercise. Could I simply refer to Dederer, Vairy and Fahy on that question - Dederer 234 CLR 330 at paragraphs 59 through to 72; Vairy 223 CLR at 422, particularly at 58 and following and 122 and following; Fahy [2007] HCA 20; 232 CLR 486, particularly at 56 and following.

Your Honours, the next criteria under section 5B is the risk was not insignificant. We could send a copy of this to the Court later if that be permitted but in the Ipp Committee report which led to section 5B, it was stated that the words “not insignificant” were inserted deliberately to more narrowly define the risk of harm. They were deliberately chosen to move away from risks which were not far-fetched and fanciful, the common law test, and narrow the class of risks down to those which met the language of not insignificant.

They are words which go to the probability of the risk occurring and they raise the hurdle beyond merely saying the risk is not far-fetched and fanciful, and we submit that that hurdle is not met here. Can I then come to paragraph (c) which is what would the reasonable person have done by way of the taking of precautions. That is further explained by subsection (2), which has four elements to it.

Our submission is that in these circumstances, the reasonable person would respond by simply complying with the ordinary method of laying the pipe using the ordinary material of sand and the ordinary depth. Factors which support that as the reasonable response include the following, if I can itemise them. The first is that the risk we are speaking of is a risk to property of another, namely the Council, with the Council having both power and responsibility to decide whether the tree should ever be there.

Secondly, the probability that we attribute to the risk is so very low when one has regard to the many events that have to come together that a reasonable person would say, “I will simply leave it to the Council to report to me if there is any problem which they wish me to consider”. The third matter we would point to is if your Honours look at section 5C(a), that takes up in statutory form a comment of Justice Hayne in Vairy that one must look at the burden involved in dealing with not just this risk of harm, but similar risks of harm.

The proposition here if this remedial action is required, has the consequence that every time a pipe is near any source of water the ordinary method of laying it has to be eschewed in order to attempt to avoid risks to vegetation. That is the significance here. If I could ask your Honours to go page 595, Mr Bewsher’s evidence, paragraph 15, near the end he explained that it was:

possible that the water main trench may be acting as a large ‘subsoil drain’ and directing seepage flows from areas many tens or hundreds of metres away towards the problem tree.

He developed that at page 132. At the foot of the page he said:

I don’t know if you’re familiar with what a subsoil drain is, often if you’ve got a boggy area in your backyard you buy one of those black ag pipes that has lots of holes in it and you bury it –

and it operates as a drain. Then he goes on to confirm that it could be carrying water large distances. The effect of that is, even if you lower the pipe below this culvert, which involves some fairly major alterations in behaviour, the sand mechanism is always going to be collecting water from various sources, perhaps long distances, and taking it towards whatever trees – not just this tree – but whatever trees are down the side of the road.

Your Honours have seen from the survey there were a number of trees down the side of the road. So the burden of precautions effectively becomes whenever there are sources of water nearby, which you cannot dismiss as being trivial, which could include ponding and the like, you must, it seems, either place your pipe so low that it is impossible that any water gets to the sand or, it seems more likely, abandon your normal method of sand and perhaps move to concreting in all your pipes. So the burden of the precautions that appears to be contemplated is very major and it leads to our next proposition that there could be no confidence that these altered measures are actually going to avoid the problem.

In our written submissions at paragraph 61 we have attempted to identify some of the difficulties arising from the suggestions of lowering the water main, paragraph 61(a). In relation to paragraph 61(b), we do make the submission that there was no evidentiary exploration by the plaintiff of the consequences of saying you have to give up using sand and use concrete. The highest it arose was the document your Honours were taken to at page 201 and it has a number 240 on it. That came into the case by way of a tender, at page 162, just before final submissions. No experts were called by the plaintiff to give any evidence to say that this was a method which was suitable for the present situation or which carried any likelihood of eliminating the risk. So the highest one gets from it is what one might deduce from the face of it, which is not very much, save that it appears to be a case where there is a fairly major culvert. It seems to be a concrete three-tiered structure. Indeed, the note says:

WHERE THE CULVERT IS EXISTING THIS SPACE TO BE BACKFILLED WITH “O” CLASS CONCRETE

So it seems to contemplate either an existing culvert or one that is being built and then a major attempt to build a concrete kinked pipe underneath it. It is a typical plan and the notes at the side say that actual plans would need to be drawn up, having regard to all the variables on the site. So our short point was in the case there was no evidentiary tender from the plaintiff to enable the court to come to any confident assessment as to whether this method would have been used, should have been used, or what might have flown from it in terms of minimising risk. For the court to conclude that Sydney Water had to abandon its ordinary method and use concrete with a kinked pipe is a very major conclusion without an evidentiary support.

Mr Toomey says the knowledge was with us. Sydney Water should have called witnesses. We would simply observe that the force of that observation is diminished when one is charged with the task of defending conduct 20 years earlier – in this case 25 years earlier – and where our submission was the plaintiff simply did not prove the case it needed to prove.

So to complete the 5B and the 5C matters, we draw attention also to 5C(b), the mere fact that the risk of harm might have been avoided by doing something different does not of itself generate liability. Can I finally say this about the alternative measures. Of the experts called in the case, Mr Lumsdaine and Mr Bewsher gave no evidence of an alternative method which would eliminate the risk. Mr Burn gave it, in the most casual of manner without any detailed evidence, that it would eliminate or substantially reduce the risk and his evidence, as I showed earlier, was infected by the fact that the north-south drain was something he only heard of in the witness box.

Your Honours, could I go finally on breach to Justice Hodgson at paragraph 253 as a breach into causation. The dispute between Justice Hodgson and Justice McColl was whether lowering the culvert “would have greatly reduced the risk”, says Justice Hodgson, or Justice McColl at 399, would not substantially reduce the risk.

The reason her Honour came to that view at 399 was based on, as she says, a further piece of evidence of Mr Burn. What Mr Burn said at pages 102 to 103, at the foot of the page, was that lowering the pipe would still have the same drain effect if sand was used and would still have the same effect in clay. So in other words, if you lower the pipe and you still use sand, the sand is ultimately going to be a source into which water will collect and will travel, unless one creates over the life of a pipe, say 50 years, a completely impermeable layer between the sand and the surrounds. In other words, in effect, it is not just lowering it but it is lowering it and concreting the entire structure, and her Honour said the evidence just did not establish that that measure of lowering it was going to significantly reduce the risk.

Can I then move to causation? Assume Justice Hodgson is correct at paragraph 253. The highest the evidence went in this case was that the alternative measure would greatly reduce the risk. It would not eliminate

the risk. No witness was able to say that the alternative measures would on the balance of probabilities have prevented a pathogen reaching the tree. Nor, as I have indicated, was any witness able to say on the balance of probabilities that the particular pathogen which came to the tree came via the water main as opposed to somewhere else in the 10 diameter area. For those two reasons we submit causation was simply not proved.

Your Honours, the final matters on causation, they are all in our written submissions, but can I go to paragraph 80 which refers to section 5D. Section 5D was an attempt to codify a statutory double causation test involving factual causation and scope of liability. The judgment of the Court of Appeal has not, in terms at least, addressed the second question, is it appropriate to extend the scope of liability to the harm so caused?

We would submit that this is one of those cases like perhaps Modbury where for the very reasons we have put under duty one would equally reach a conclusion that it would not be appropriate to extend the scope of liability to the harm so caused. Unless your Honours had questions, they are our submissions.

FRENCH CJ: Thank you, Mr Gleeson. Yes, Mr Toomey.

MR TOOMEY: Your Honours, I am afraid I will have to cherry pick these a bit. My learned friend says that there was no evidence that the pathogen came from the pit. I think the evidence I took you to this morning of Mr Castor in fact went fairly close to that, and that is at, I think, page 119 of blue 1. At 119, line 19 and the passage before that he agreed that a tree would not survive in permanent water logging, anaerobic conditions, not being a river red gum. Then:

Q. If it appeared that within approximately 2 metres of the base of the tree there was a trench –

and my learned friend suggested that this was inconsistent from the next question. I think he may be misled by the two different distances. The trench was two metres from the centre of the tree was what was said. The culvert was four metres away from the tree. So there is no inconsistency there:

a sand bed with access to a pit which was frequently full of water, would that indicate to you that the probable source of the fungal infection was from the water logging and the roots going into that source?

A. Yes.

Q. If there was an outlet into a culvert 4 metres away which culvert was frequently full or partly full of water would that indicate to you a possibility that that had been the source of the fungal infection as opposed to the trench?

A. Those conditions . . . would have predisposed the root system of the tree to the infection.

This is a case where it was impossible, in circumstances where the tree was down, dead, cut up and dragged away before anyone started to going to look at it from a legal point of view, to establish with precision the answers to many of these questions. The evidence of this witness and of Mr Bewsher, we say, was enough and Mr Lumsdaine said if water from the pit caused the tree to fall, then it certainly got there by way of the trench. Now, in circumstances where there was no alternative water access proved, in our respectful submission, that was very powerful evidence that it had in fact come from the pit.

Can I turn to the question of the knowledge in 1981. We are not talking here about two centuries ago. We are talking about 20 years before this tree fell. My learned friend is the font of knowledge, or at least his client is the font of knowledge about what they knew. It would, in our respectful submission, be something that this Court would not accept, that engineering knowledge about the effect on trees of the roots being intermittently waterlogged was not held by people who worked with trees and worked with water in 1981.

If indeed it were the case that there was no such evidence, why did Sydney Water not put someone in the witness box to say “We cannot be blamed for it because we did not know”. Furthermore, why did not Sydney Water at any time during the hearing of the case put to any one of the experts who said this is the science on the matter, why did Sydney Water not say to them “But you are giving this evidence in 2006 and we are talking about what happened in 1981. Was it not different?”. No such question was asked.

The experts were cross-examined on the basis that this was the state of knowledge that Sydney Water had to meet. They did not suggest it was the state of knowledge, they did not attack it in any way at all. What they attacked was that that was enough to make them liable. In those circumstances and in the matter of running that case, in our submission, they fixed themselves with that scientific evidence.

The suggestion by my learned friend that it was not the practice of Sydney Water to consult arborists comes from him and from nowhere else. It is an ipse dixit. No one gave such evidence. There was no document. That is Mr Gleeson telling you, “You will take an account in my case that they did not consult arborists”. How do we know? Of course we get back to our submission that a water authority which controls the reticulation of water and the drainage from the Blue Mountains to the ocean and in a catchment area containing five million people, that they would not have anyone in their service who could tell them how to handle drainage so it did not affect trees. Such a proposition, in our respectful submission, would be absurd.

Then my learned friend said what would they do in any event? What they would do, one would assume, or what they should have done – we do not know whether they did or not – was create a protocol which said you must take account of the fact that when you are laying water pipes or, I suppose for that matter, drainage pipes in sand you must be sure that so far as you can you avoid that sand bed being used as a drain to the roots of trees. We are not talking about a backyard and we are not talking about a single tree. We are talking about this being done right up the side of a road which is about four kilometres long, and all along that road there are trees. The reason this went bad is because of the way they placed the water main across the mouth of the culvert so as to ensure a source of water for the trench to carry it to the roots of the tree.

My learned friend’s submissions to your Honours are all general. You must not do this because it will – it is a floodgates argument because of all these thousands of trees any one of them might fall. Any one of them might fall if you take the water directly from the culvert and put it to the roots of a tree. It cannot be supposed that this would be a frequent occurrence, although we have no idea whether it had happened before or not, again because Sydney Water did not tell us. This is a very singular case, but it is a case in which, in our respectful submission, it being clear on the possibilities of taking the water to the roots of the tree it was a breach of the duty of Sydney Water to do so.

My learned friend’s argument that all that Justice Beazley was concerned about in paragraph 210 was damage to the culvert is, in our respectful submission, disingenuous. The court was considering a case in which one person had been killed and others injured by reason of a tree falling after the compromise of a culvert drainage system. For my learned friend to found an argument on the fact there that her Honour did not say in such a way that the integrity of the culvert drainage system was not compromised, so leading to the not far-fetched or fanciful risk that the tree when compromised might fall across the road, is just nonsense. That is not a judicial duty to keep on repeating yourself with every trite formula. What her Honour was directing herself was plain. This was not an action by the council for the cost of repairing the culvert. It was an action for personal injury.

My learned friend based that – I think he directed that to the preliminary words of section 5B which refer to “risk of harm” which he equates to “injury or death” appearing earlier in the section. My learned friend’s argument that in effect the water authority was entitled to rely upon the Council to make their alley good, to use the vernacular; in other words, well, so what if we do put the tree in danger, it is all right, it is the Council’s tree and it is on the Council’s land and they will find out about it.

Well, Council did not and there was a deal of argument about whether or not the mark on the side of the tree, which was not very large, would have necessarily put it with anyone on notice that the tree was at risk. As a matter of principle, in any event, there is no reason why it would not be negligence to create a danger and then leave it to another, that other not being informed by you that the danger has been created, to fix it up. After all, what we need in this case, all we had to prove was that the negligence of the water authority materially contributed to the injury to the plaintiff. If the Council was also negligent, a matter which was found against us but found on section 45 of the Act, lack of knowledge, but if the Council was also negligent how does that help the defendant?

You can have a case where there are two defendants, one uninsured and indigent, you sue another who is insured and rich, is found to be five per cent to blame, and you get your verdict. So the suggestion that the water authority was allowed to rely on the Council properly, in our respectful submission, is not an answer to the charge of negligence.

HAYNE J: I think a way in which that aspect of the point was put against you was that it could not be said to be a foreseeable risk that the tree would become diseased and fall on the road at a time and in circumstances (a) where the owner of the tree was not negligent for not intervening, and, perhaps it is or, (b) no one was on notice that the risk was imminent.

MR TOOMEY: Well, with respect, your Honour, we say that the evidence establishes that the water authority should have been on notice because it was their direct acts. This is not an omission case in which, with respect, that argument would be very powerful. This is a case where the danger is created by the positive acts of the water authority.

My learned friend said that the lowering of the pipe would itself present difficulties. I am not aware of any evidence that that would be the case. There is no evidence of any large cost increase if you simply take the pipe under the culvert.

FRENCH CJ: If you lower the pipe, you do not get the partial damning of the culvert flow. You can still get the transport along the sand bed.

MR TOOMEY: You may not, your Honour, because the reason why the water got into the sand bed was that it had nowhere else to go. If you put the pipe below the culvert, and - - -

FRENCH CJ: Then you have a tailout drain.

HAYNE J: Mr Burn touched on that at 88, lines 1 to 20, which is, I think after some evidence, I think, your side took us to, at about line 10 they could have done what they did in the next culvert; put the main under the bed of the culvert.

MR TOOMEY: Exactly. Thank you, your Honour, I am grateful for that. Your Honours, Mr Lumsdaine was in one aspect of the case much, much more expert than anyone else. He was a geotechnical engineer, very highly qualified, and when he said, if the water from the pit got to the roots of the tree, and in cross-examination he said, “I am not qualified to say that, I am a geotechnician”, what I can tell you is that by reason of the nature of the pit, the clay which – and I told your Honours that he said the permeability of the sand compared with the clay was of the order of 3 to 5, 1,000 times or 100,000 times, so what he said was, “In the light of my geotechnical knowledge applied to the soil and the pit, if the water came from the pit, it had to come along the sand bed”.

He was in effect saying that it was a 1,000 to 1 to 100,000 to 1, that it did not come any other way because it could not have come through the clay. That could have been met, of course, by evidence that there was another source of water, but there was no such evidence. Your Honours, I do not want to try and teach my grandmother to suck eggs, but in this case we only had to prove it on the balance of probabilities, we did not have to prove that it was the water from the pit that carried the pathogen. All we had to prove was that it was more probable than not that that was the case, and in the absence of any contrary evidence, in our respectful submission, we did it.

Mr Lumsdaine and Mr Bewsher gave no evidence about alternatives, Mr Gleeson said, and he is quite right. Mr Lumsdaine did not for the reasons I have just given your Honours. He said, in effect, “I am a geotechnician. I do not know” and Mr Bewsher – I think he chose not to. He perhaps did not regard himself as qualified to do so, but I do not know quite what comes from that anyway. Supposing they had not given evidence, if there was no challenge to the truth of the evidence which had been given by Mr Burn, how would that help my learned friend?

Your Honour, my learned friend referred to the IPP report where it was said that “not insignificant” was intended – I am sorry – this is actually a note in Annotated Civil Liability by Dominic Villa which was published in 2004:

The phrase “not insignificant” is intended to indicate a risk that is of a higher probability than is indicated by the phrase “not far-fetched or fanciful”, but not so high as might be indicated by a phrase such as “a substantial risk”.

May I ask, impertinently, what your Honours make of that? Does that mean that it is a thousandth more probable, less probable, more probable?

FRENCH CJ: We are into that sort of evaluative territory, are we not, the same character as raised by questions of substantial and even likely when you are not talking about balance of probabilities which are something else.

MR TOOMEY: Yes, as the sort of Caterson, not unlikely, meaning not unlikely, whatever that means.

FRENCH CJ: Lots of it in the Trade Practices Act.

MR TOOMEY: Yes, well, your Honour knows more about that than I do. I am a simple common lawyer. Your Honours, we would in any event submit that, having regard to the very serious consequences which properly considered ought to have been foreseen, having regard to the fact that even 5B itself has regard to the seriousness of the harm which might result, that any duty must have extended to a foreseeability, a consideration and an examination which would have led to the foreseeability of an accident such as this, that is, not as going to happen but possibly within the foreseeability rules no matter what effect section 5B on it.

My learned friend said that no one could say that anything done by Sydney Water to ameliorate the risk would not have stopped the tree from falling well. Well, we would say about that that that is an irrelevant consideration. The consideration is whether, on the balance of probabilities, had proper consideration been given to the risk created by their acts that some ameliorating action could have been taken. The pipe could have been directed around the tree roots, which is not very far if your Honours look at the survey, or something could have been done to prevent water getting into the pipe from the pit.

The suggestion that after all trees fall over and they fall over with pathogens, therefore you cannot be satisfied that this fell over by reason of a pathogen, just does not go anywhere to meeting our case. This tree fell over because of a pathogen. Pathogens, the evidence is quite strong on, are liable to infect a tree, the roots of which have been affected by water logging or intermittent standing in water.

Mr Lumsdaine, just to give your Honours an idea of the possible length of exposure to water, went to the pit on a number of occasions before writing his report, which is accompanied by diagrams of the various levels and so on, and Mr Lumsdaine said that once he went to the pit and it was dry. He went there a month or two later after there had been some heavy rain, and this of course is the downhill pit at the end of the culvert, and he said that the culvert pit was pretty well full and he said that it took 27 days for it to get down, as I remember it, to the level where it drained over the top of the water main.

So we are not talking about an occasional dip for the tree. We are talking about a substantial immersion of the roots of the tree when it is, we would say, generally known that tree roots can be rotted by overexposure. So can your lettuces, so can your roses, so can anything else. Everyone knows that. It was not just a slight immersion, it was a substantial immersion and it was continual in the sense that this being a culvert which collected the water from the high side of the road and brought it down. Every time it rained there was water flowing into that pit. May it please your Honours.

FRENCH CJ: Thank you. Mr Gleeson.

MR GLEESON: Your Honours, only very briefly, if permitted. There is a legal question that has arisen out of that on causation. Can I ask your Honours to go back to section 5D(1)(a). The factual element is “that the negligence was a necessary condition of the occurrence of the harm”. The negligence, in section 5, is the failure to exercise reasonable care and skill. In the present case, we submit that requires one to identify what was constituted by your failure to exercise reasonable care and skill and was that failure a necessary condition of the occurrence. If the case here is your failure to lower the pipe and perhaps make - - -

GUMMOW J: The question is the evidentiary burden to establish that conclusion.

MR GLEESON: Section 5E is on the plaintiff.

GUMMOW J: At what level is the evidentiary burden pitched? It is more likely than not that it was a necessary condition. I do not think that the people who were responsible for this legislation were trying to recast the sorts of matters Mr Toomey was putting to us.

MR GLEESON: No, your Honour. All I sought to put – we had argued that causation here involves two inquiries. One is could one prove on the balance of probabilities, having regard to appropriate approaches to

inferences and the like, which I accept, that the water carrying the pathogen came from the waterline as opposed to somewhere else in the circle with the 10-metre diameter. The second question I submitted was raised was had we done the thing which we are said to be required to do, for reasonable care and skill, would in those circumstances the pathogen not have travelled to the tree. On that, the most that could be said was Justice Hodgson – that the risk was lowered but not that the risk was removed.

Your Honours, I should mention for completeness, but it was no invoked in the case, so I cannot invoke it, but just so that we have not let the Court down, section 43A in a case like the present might have been relevant. I just mention it is there, we referred to it in our reply submissions. It seems to be an attempt to say that where you are exercising statutory powers of a kind which ordinarily require statutory authority, the negligence question becomes a Wednesbury unreasonableness question. That was not invoked as a section in the case, and so I simply note it. We do submit it is relevant though in assessing the general reasonableness of response under section 5 itself to consider that this was a statutory power being exercised subject to a mandate to cause as little damage as possible and the Court would not readily interfere with the judgment made by the statutory authority as to the way in which it thought it would be doing as little damage as possible to the environment.

FRENCH CJ: This was never argued below?

MR GLEESON: I have not seen it argued below, so I cannot invoke 43A. All I can put is that where the duty of care is said to constrain an exercise of statutory power, if there be such a duty, in determining what is the reasonable response, where the argument is that the authority must alter its normal method of laying a pipe, and where the authority has made its own judgment as to what is “as little damage as possible”, that the law would be slow to find negligence in those circumstances. If your Honours please.

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