On 21 August 2009 a Swan Hill property was inundated with water from a burst main in the street. The main was operated by the local water authority Lower Murray Water (LMW) and had been constructed from asbestos cement pipes in 1956.

There were no records relating to the main’s performance between 1956 and 1996.   A number of incidents between 1997 and 2008, some of which were 'major', had resulted in repairs.  However after the incident, the pipe which had burst was replaced and the entire main was replaced with PVC pipe about 12 months later.

The owners’ insurer sued LMW under Section 157 of the Water Act 1989 (Vic), which provides that a flow of water onto land which damages property is presumed to have occurred as a result of the authority’s negligent conduct.

LMW tried to rebut the presumption on the basis that the main had not exceeded its estimated 60 year life and had a very good performance history.  It also argued that it had a comprehensive maintenance and replacement system based on recommendations from engineering company GHD.

The authority also relied on the ‘public authority’ provisions contained in the Wrongs Act (Vic), particularly Sections 83 and 84.  Section 83 provides that a court must have regard to the financial and other resources available to a public authority when considering whether it owes, or has breached, a duty of care.  Section 84 provides that a higher threshold of unreasonableness applies when determining whether an authority has acted negligently in the exercise of powers which have been conferred on it specifically in that capacity.

However, the Victorian Civil and Administrative Tribunal found that Section 157 of the Water Act provides a ‘freestanding’ statutory cause of action and that any additional requirements or considerations concerning the existence of a duty of care at common law or under the Wrongs Act are irrelevant.

In determining that the damage resulted from LMW’s negligence, the Tribunal noted that the authority had put off replacing ageing sections of the water main for as long as possible, without giving proper weight to the consequences of resulting incidents.  Furthermore, failures occurring between 1997 and 2008 ought to have indicated that there was a real risk of another incident.

Quigley v Lower Murray Water [2014] VCAT 1325

In Victoria, statutory authorities cannot rely on the special provisions afforded by the Wrongs Act to defeat an action under Section 157 of the Water Act.

Section 84 of the Wrongs Act is specifically restricted to claims for breach of statutory duty.  It is different to the New South Wales public authority provisions contained in Section 43A of the Civil Liability Act (NSW), which apply more broadly to damages claims.