Written by Diane-Maree Rauch
When a water main bursts, or a blocked stormwater drain overflows, the resultant damage can be catastrophic – destroyed buildings, fixtures, fittings, furniture as well as ruined gardens and mud-filled pools. In addition to destroying property, blocked and overflowing sewer pipes can create serious health hazards.
Who is Responsible?
In Victoria, the Water Act 1989 (the Act) outlines the rules for recovering damages arising from burst pipes, sewage spills and stormwater drain overflows.
Under section 16 of the Act, the party responsible for creating an unreasonable flow of water is liable for any damage cause. This is an objective test based on whether the flow was not reasonable.
Generally, Councils manage the stormwater drainage network. Accordingly, a Council would be liable under section 16 where, for example, stormwater drains are not appropriately cleared which then overflow and lead to a flow of water through an insured’s property. It would be argued the flow of water was not reasonable.
Designated Water Authorities are usually responsible for water mains and sewer pipes. They are liable for damage caused by burst pipes or sewer overflows under section 157, unless they can prove they were not negligent. Normally the burden of proof lies with the plaintiff (i.e. the insured) seeking recovery of damages. However, this provision of the Act places the burden on the defendant (i.e. the Water Authority) to demonstrate that they acted reasonably. Key factors to be considered include whether there were failures in the design or construction of the water network, the adequacy of the maintenance history and budget allocations made by Water Authorities for maintenance or measures needed to prevent potential damage.
This is the first instalment in our series on water damage claims, focusing on the framework in Victoria. In part two, we will explore how similar claims are handled in other jurisdictions and in part three we will provide some more handy investigation tips.
How Can Ligeti Partners Help?
At Ligeti Partners, our Property Recovery Team has extensive experience handling these cases. We know where to make enquiries, what information to obtain and the usual defences raised by Councils and Water Authorities across jurisdictions.
Should you wish to discuss any of the above, please contact Diane-Maree Rauch on 03 9947 4529 or any member of the Ligeti Partners team on 03 9947 4500.
