Tom Patsuris v Gippsland & Southern Rural Water Corporation (2014) H&FLR 2015-34

Supreme Court of Victoria

15 December 2014

Coram: McDonald J

Appearing for the Appellant: P. Cawthorn QC and B. Miller (instructed by Morrison & Sawers)
Appearing for the Respondent: R. Sadler (instructed by DLA Piper)

Catchwords: Australia – Victoria – water law – administrative law – food production – irrigation – infrastructure – rainfall – flooding – compensation

Facts: The Appellant operated a market garden at Werribee South.  His land was irrigated by a system of channels managed by the Respondent.  The channels funnelled water into a network of drains which directed the water away from the land.  In 2010 a new culvert was installed in one of the drains (and off the appellant’s land) to allow access to the property of a third party.  The respondent mandated the design parameters of the new culvert such that it would cater for a 1 in 50 year rainfall event.

In February 2011 rainfall occurred which was in excess of a 1 in 100 year event.  The appellant’s land was flooded causing significant loss and damage.  The appellant brought proceedings against the respondent under the Water Act 1989 (Vic), §157.  That section relevantly provides that –

(1)     If —

(a)     as a result of intentional or negligent conduct on the part of [a water] Authority in the exercise of a [statutory] function …, a flow of water occurs from its works onto any land; and

(b)     the water causes —

(i)     injury to any other person; or
(ii)     damage to the property (whether real or personal) of any other person; or
(iii)     any other person to suffer economic loss—

the Authority is liable to pay damages to that other person in respect of that injury, damage or loss.

(2)     If it is proved in a proceeding brought under subsection (1) that water has flowed from the works of an Authority onto any land, it must be presumed that the flow occurred as a result of intentional or negligent conduct on the part of the Authority unless the Authority proves on the balance of probabilities that it did not so occur.

(3)     For the purposes of a proceeding brought under subsection (1)—

(a)     a flow of water is to be taken to have occurred as a result of intentional conduct on the part of an Authority if the flow—

(i)     was designed or intended by the Authority; or
(ii)     inevitably and without intervening cause resulted from the exercise of a power by the Authority; and

(b)     in determining whether or not a flow of water occurred as a result of negligent conduct on the part of an Authority, account must be taken of all the circumstances including any omission or failure, in the planning, design, construction, maintenance or operation of the works, to provide reasonable standards of capacity or efficiency or exercise reasonable care or skill having regard to the following matters—

(i)     the state of scientific knowledge and knowledge of local conditions at any relevant time;
(ii)     the nature and situation of the works;
(iii)     the service to be provided by the works;
(iv)     the circumstances and cost of—

(A)     the works; and
(B)     the maintenance and operation of the works; and
(C)     works which it would have been necessary to construct to avoid the occurrence of any relevant injury, damage or loss.

The appellant’s claim was rejected at first instance: Patsuris v Gippsland & Southern Rural Water Corporation (Victorian Civil & Administrative Tribunal, S.M. Riegler, 14 October 2013, unreported).  The Tribunal found that –

(a) It was not reasonable to require the respondent to have designed its drainage and irrigation systems to cater for a rainfall event of greater than 1 in 100 years.
(b) The appellants land had been flooded because the water runoff could not discharge rapidly enough through two culverts (other than the new culvert, which did not cause the flooding).
(c) The severity of the storm meant that such reverse flow of water as occurred would have taken place regardless of the new culvert.

The appellant appealed to the Supreme Court of Victoria seeking judicial review of the decision.

Held: Dismissing the appeal, that –

1. For the purposes of an application for judicial review, to establish that a finding of fact was not open to a decision maker it must be established that there was no evidence to support the disputed finding.

Myers v Medical Practitioners’ Board of Victoria, 18 VR 48 (Vic., 2007), considered.

2. Under §157 a flow of water is deemed to have occurred as a result of a water corporation’s intentional conduct if the corporation designed or intended the flow or it inevitably and without intervening cause resulted from the corporation’s exercise of power.  However, the fact that a corporation’s conduct in approving the design of a culvert was intentional does not in itself support a conclusion that a flow of water was caused by that conduct: there must still be evidence that the design caused the relevant flooding.

State Rivers & Water Supply Commission v Crea [1980] VR 513 (Vic., 1979), considered.

3. A claim under §157 is a freestanding cause of action.  There is no independent duty of care in accordance with common law principles arising under the tort of negligence*.

South East Water Ltd v Transpacific Cleanaway Pty Ltd, 27 VR 387 (Sup. Ct. Vic., 2010), followed

Judgment

The Court’s judgment is available here.

Note

* Quaere whether it is still possible to claim in negligence for harm arising from the flow of water caused by the act of a water authority.