The Requirements of a Successful Water Damage Claim Under the Water Act 1989

13 Nov 2024

When bringing a section 16 Water Act 1989 (Vic) (“the Act”) or section 157 of the Act claim to the Victorian Civil and Administrative Tribunal (VCAT) it is important to understand the steps involved in the litigation process and the relief available. However, what is equally as important is knowing what it is you are required to demonstrate in order to establish a successful claim. 

An ‘unreasonable’ flow of water is determined by the factors within section 20 of the Act. Whether this flow caused ‘injury, damage or loss’ is determined by the specific facts, and often not difficult to demonstrate. However, in a cause of action arising under sections 16 and 157(1) of the Act, the Tribunal must also apply the tests of negligence to the questions of causation and remoteness of damage the same tests as a court would apply to those questions in an action based on negligence.

Establishing Liability Under Section 16 – Water Flow from Private Land

Section 16 sets out the legal responsibilities and liabilities of a flow ‘from the land of a person onto any other land’ and is a provision of strict liability, which means that where the necessary facts are made out, it is not necessary to demonstrate negligence or intent to harm.

Section 16 of the Water Act 1989 – Liability Arising out of the Flow of Water

The relevant legislative section comes from the Act:

“(1) If: –

  1. there is a flow of water from the land of a person onto any other land; and
  2. that flow is not reasonable; and
  3. the water causes—
  4. injury to any other person; or
  5. damage to the property (whether real or personal) of any other person; or
  6. any other person to suffer economic loss—


the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.”

Understanding Section 157 – Liability of Water Authorities for Water Flow Damage

Section 157 of the Act governs cases where the flow of water arises from a water authority’s infrastructure, such as pipelines or drains, causing similar types of harm. This section applies a reverse onus of proof on authorities, where negligence or intent is presumed unless proven otherwise.

Relief Options Available Through VCAT Under Section 19 of the Act

Section 19 of the Act outlines the types of relief that VCAT may order for these two sections:

Section 19 of the Water Act 1989 – Jurisdiction of Tribunal

The relevant legislative section comes from the Act:

(1) The Tribunal has jurisdiction in relation to all causes of action (other than any claim for damages for personal injury) arising under sections 15(1), 16, 17(1) and 157(1) of this Act or at common law in respect of the escape of water from a private dam.

Subsection (3) of section 19 of the Act specifies the relevant orders available under sections 15(1), 16, 17(1) and 157(1):

(3) In exercising jurisdiction conferred by subsection (1), the Tribunal—
(a) may by order, whether interim or final, grant an injunction (including one to prevent an act that has not yet taken place) if it is just and convenient to do so; or
(ab) may make an order for payment of a sum of money awarding damages in the nature of interest; or
(b) may make an order that is merely declaratory.

(5) The Tribunal may in respect of any works that give rise to a cause of action of a kind referred to in subsection (1) make any order with respect to—
(a) compensation for damage to land; or
(b) the continuation, removal or modification of works; or
(c) payment of the costs of the removal or modification of works—
that it considers appropriate.

Section 19(9) of the Act establishes that, when VCAT assesses a case involving water flow liabilities, it must apply similar principles of causation and remoteness of damage as would be applied in standard negligence cases in court. This includes considerations of foreseeability, the resources and capacity of the responsible party to mitigate risks, and the likely outcomes of their actions or inactions. This section reinforces the importance of examining all relevant circumstances to determine if the responsible party, often a water authority, took reasonable precautions to prevent water-related damage:

Applying Principles of Causation and Remoteness in Water Damage Claims

In essence, the questions of causation and remoteness are the same tests the court would apply from section 51 of the Wrongs Act 1958 (Vic):

Section 51 of the Wrongs Act 1958 – General Principles

“A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”


In Cambridge Water Co. v Eastern Counties Leather plc, it was held that ‘In order to recover damages it is necessary to demonstrate that the person from whom the damages are sought has caused the flow complained of. It is not sufficient simply to establish that the flow of water came from the land of that person.’[1]

Causation can be established by proving some act or omission on the part of the Respondent that resulted in the unreasonable flow.[2] For an omission to be actionable in the law of negligence, it must be found that there was a duty to act, that is, a duty to do that which was not done.

Recent Case Law on Evidentiary Standards of Remoteness – Bhati v Pannu [2021] VCAT 946

The decision in Bhati v Pannu [2021] VCAT 946 represented the standard of evidence required to take successful action under this section. In the case, the applicant argued that poor landscaping works on the respondent’s land caused severe water damage. The Tribunal evaluated whether the damage was a direct consequence of the water flow and whether the respondent’s actions were the proximate cause of the damage.

The Tribunal found that the evidence was insufficient to prove that the respondents’ actions were the direct cause of the water flow and resulting damage, leading to the dismissal of the claim.

Section 157 Claims – Liability of Water Authorities and the Reverse Onus

As mentioned above a claim under section 157 involves loss or damage resulting from water flow linked to works by a water authority, such as issues stemming from public sewers or stormwater drainage systems.

Under Section 157 of the Act, authorities may be held liable for damages if water flows from their works onto another person’s land, causing injury, property damage, or economic loss. Relevant Authorities may include the waterway management district of Melbourne Water Corporation, Melbourne Water Corporation, as well as any other Authority that has a waterway management district.

This liability arises when the flow of water results from intentional or negligent conduct in the execution of functions under certain parts of the Act. If water is shown to have flowed from an authority’s works, it is presumed that the authority acted negligently or intentionally unless they can prove otherwise.

Section 157 Key Decision: Quigley v Lower Murray Urban and Rural Water Corporation

A key decision in establishing the liability for Authorities under section 157 of the act was Quigley v Lower Murray Urban and Rural Water Corporation [2014] VCAT 1325, in which the Tribunal held that the Lower Murray Urban and Rural Water Corporation’s (LMW) failure to act on prior incidents and to replace an ageing water main amounted to negligent conduct.

A key consideration in this case was the statutory free-standing cause of action, which deemed LMW’s conduct in the management of this water main negligent unless LMW proved, on the balance of probabilities, otherwise (“the reverse onus”).

Moreover, it was found that: “the Authority has not discharged the onus of proving that this flow of water from the burst of its water main did not occur as a result of negligent conduct on its part”.[3]

Conclusion – Essential Steps for a Successful Water Damage Claim in VCAT

In conclusion, bringing a claim under section 16 and 157 of the Act requires a thorough understanding of both the statutory framework and the evidentiary standards upheld by VCAT. 

Successfully proving a claim under section 16 demands that the claimant establish a direct causal link between the water flow and the harm experienced, meeting the strict liability criteria where negligence need not be proven. 

For claims under section 157, particularly against water authorities, the bar for liability includes proving intentional or negligent conduct, with a focus on the authority’s duty of care in managing public infrastructure.

Ultimately, achieving a successful outcome in VCAT requires relevant documentation, clear demonstration of factual causation, and an understanding of the legal framework. These claims underscore the necessity for meticulous preparation and a nuanced approach, given the complexities involved in attributing liability in respect of water flow disputes.

Disclaimer

The information provided in this article is for general informational purposes only. It does not constitute legal advice. For specific legal advice related to building regulations and compliance, please consult a construction lawyer.

Lovegrove & Cotton Construction and Planning Lawyers

Lovegrove & Cotton Construction and Planning Lawyers have 30 years experience in representing building practitioners across various regulatory matters, the firm brings to bear decades of experience in this very specific hybrid jurisdiction.

[1] Kong v Rajaratnam [2018] VCAT 204.

[2] Cambridge Water Co. v Eastern Counties Leather plc [1994] 2 AC 264.

[3] Quigley v Lower Murray Urban and Rural Water Corporation [2014] VCAT 1325, [70].