Suing for Water Damage Under Section 16 Water Act

If you suffer property damage in Victoria and that damage arises from an unreasonable flow of water you probably have rights to sue under the Water Act 1989 (Vic).

The water act in Victoria has many functions:

• governing water allocation,
• waterway management,

and many other things…

BUT as a property damage lawyer I am laser focused on RECOVERY and of course that means causes of action and one of the most ‘simple’ causes of action available is:

• under section 16 of the Water Act!

• section 16(1) provides that if an unreasonable flow of water from the land of one to the land of another occurs and the flow causes injury, damage or economic loss, the person who caused the flow is liable to pay up.

• remember this is not a negligence claim, section 157 of the Water Act is akin to same (for suing authorities) but section 16 (1) is not, but you still need to establish cause. Expert evidence is therefore key and getting it from a reliable expert who knows flow and cause in this area is key.

• however, given VCAT has jurisdiction for these type of matters be ready for potentially slow and laborious proceedings.

This can be controlled:

• Points of Claim are best filed immediately upon application to not delay steps. Get points of claim right the first time and avoid amended points of claim and requests for particulars.

• Keep claims simple, have the expert who prepares expert evidence just address the key elements necessary to prove the cause of action.

• Allow the neighbour and its expert to inspect your property, by pushing back on access you are just causing further delay.

• If you are in an apartment complex the issue of the flow being reasonable may be easier to deal with but Respondent selection is critical. Get it wrong at your peril.

If you think warer arose from a neighbour because say their bathroom is located where the leak arose…you need MORE than that!

If you allege a neighbour fault and turns out to be caused in the common property you will have sued the wrong party and may face cost consequences…

• Plus, plans of subdivision can be so poorly drafted and lacking in detail and require legal experience and knowledge just to interpret. It is therefore critical to get your expert witness to pinpoint the exact location of a cause.

• Water flow test testing, die testing offer some of the best evidence.

• When it comes to causes arising from tiles, waterproof membranes and balustrades and balconies it is critical to understand the exact location of cause.

• Relief in these matter can include injunctive relief and damages both for repairs, loss of rent and many other losses

Let me say this. These claims can be simple but they can also end up in sagas at VCAT. If you are an Applicant follow the KISS principle and only file once you have clear expert evidence.

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building disputes
• building law
• litigation
• property disputes
• regulatory compliance