Written by Diane-Maree Rauch
In Part One of this series we examined the Victorian legal framework under the Water Act 1989, which place the onus on Councils and Water Authorities to show they did not act unreasonably. In contrast, in other Australian jurisdictions – such as New South Wales (NSW), Queensland (QLD), and Western Australia (WA) – Councils and Water Authorities enjoy broader protections, and the onus is on the plaintiff to prove unreasonable conduct.
The Civil Liability Act 2002 (NSW), Civil Liability Act 2002 (QLD) and Civil Liability Act 2002 (WA) place the burden on the plaintiff to show that the Authority’s failure to manage the relevant infrastructure was so unreasonable that no authority, managing similar infrastructure, would have acted in a similar manner. These Acts all contain similar provisions stating that financial and other resource allocations are factors to consider when determining where an Authority acted unreasonably.
What this means in practice is that, while Councils and Water Authorities owe a duty to maintain infrastructure, the plaintiff must establish that, when all factors, including, financial and other resource constraints are considered, no reasonable Authority would have acted in the manner they did.
Although claims arising from burst water mains, sewage spills and stormwater flooding in jurisdictions like NSW, QLD and WA are more challenging then in Victoria, it is still possible to succeed if you can identify the right evidence. For example, showing a history of similar failures in the vicinity of the burst pipe may demonstrate that the Authority had advance notice of a potential risk and failed to act where a reasonable Authority would have.
In Part Three, we will examine the type of evidence to look for to support these types of claims.
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.
