In Issue 16 of Insurable Interest we reported on a case about a tree which, blown over by strong winds, fell on a car and killed the driver and injured the other occupants.

Near the tree was a council drain which directed rainwater into a pit, from which the water drained out over paddocks. Sydney Water had installed a water-main across that pit in 1981. A bed of sand had been put down to support the water-main at that point. Because of the presence of the sand, rain water was diverted away from the pit and resulted in constant water-logging of the soil around the tree. That had resulted in fungal rot in the roots of the tree, which eventually led to the tree falling over in 2001.

The NSW Court of Appeal found no liability on the part of the local council, but did find Sydney Water liable. Essentially the Court decided it was reasonably foreseeable that the laying of the water main in sand across the drainage system could have an effect on the surrounding area 'such as might cause harm'. It did not matter that the precise harm which eventuated (the falling of the tree on the car 20 years later) was not foreseeable.

At the time, I commented that the decision was 'a bit of a stretch'. The High Court agreed, reversing the decision of the NSW Court of Appeal.

The High Court decided that Sydney Water did not owe a duty of care to the occupants of the vehicle. It reached that conclusion in two ways. Firstly, the Court said it was not a reasonably foreseeable consequence of laying the water-main that there would be injury to road-users as a result of the tree's eventual collapse. Secondly, the Court said that in the absence of control over any risk posed by the tree in the years after the installation of the water-main, there was not a sufficiently close and direct connection between Sydney Water and the occupants of the vehicle for them to fall within the category of the persons to whom Sydney Water owed a duty of care.

The decision appears to be a victory for common sense and vindicates the judge in the NSW Court of Appeal who had disagreed with the other two judges and who thought that the claim was based on speculation and conjecture. It was also pleasing to see that the High Court judgment was unanimous, relatively short, and expressed in plain language. Those are all things which lawyers have been asking the High Court to deliver for a number of years. Sydney Water Corporation v Turano.

In negligence cases, whether injury was reasonably foreseeable by a defendant is not to be judged with hindsight, but rather by looking at the defendant's state of knowledge at the time of the negligent act. In this context 'reasonably' means just that.