*Please note that this article provides general information only and will not be applicable in all circumstances, nor should it be relied upon as legal advice. Should you wish to obtain legal advice, we recommend that you get in touch with us.

A water ingress at your property is capable of causing structural damage as well as triggering lingering issues like mould and rising damp. In such circumstances, rectification works may be both costly and time consuming. Primarily, this article considers the circumstances in which Owners Corporations are liable to contribute to rectification costs incurred by you.

Liability under the Water Act

To satisfy an action under Section 16(1) of the Water Act 1989 (VIC) (Water Act), one must demonstrate that:

a. there is a flow of water from the land of a person onto the land of another affected person; and

b. that flow is not reasonable; and

c. the flow has caused the affected person or property to suffer injury, loss or damage.

Where a person causes the unreasonable flow of water from their land onto the land or property of another affected person in the circumstances described above, they may be liable to pay damages to the affected person in respect of their injury, loss or damage suffered.

A cause of action pursuant to s 16 of the Water Act may also be considered against parties who interfere with a reasonable flow of water or who negligently interfere with an unreasonable flow of water (s16(2)), or a current occupier of the source land who fails to take mitigatory steps with respect to an unreasonable flow of water caused by building works, actions or omissions by or on behalf of a previous occupier of the source land (s16(5)).

Establishing the Elements

Source of the Flow

On strata plans, the common property is under the control and ownership of the Owners Corporation. Accordingly, in order to establish a cause of action against the Owners Corporation pursuant to s 16(1) of the Water Act, it is necessary to demonstrate that the unreasonable flow of water has emanated from common property.

Identifying the source of the flow of water ultimately turns on the evidence. For this reason, it is advisable to brief an expert to produce a report or opinion identifying the source of the flow. When briefing an expert, it is important to provide an accurate factual background and relevant list of questions to be answered. If, in the expert’s professional opinion, the source of the flow of water emanates from common property, then you may have grounds to consider a claim against the Owners Corporation in accordance with s 16(1) of the Water Act.

Reasonableness

S 20 of the Water Act sets out a number of considerations to be taken into account when determining whether the flow of water is reasonable. Non-exhaustively, such matters include:-

whether or not the flow, or the act or omission that caused the flow, has been authorised;
the extent of compliance (or non-compliance) with the Water Act;
whether or not the flow adheres to Ministerial guidelines with respect to drainage of the area;
whether or not account was taken at the relevant time of the likely impact of the flow on drainage in the area having regard to information reasonable available at the time; and
the contours of the lands concerned.

If the flow of water onto the land or property of the affected person is not reasonable, then this will satisfy the requirement of s 16(1)(b) of the Water Act.

Injury, loss, and damage

To satisfy the requirements of s 16(1)(c) of the Water Act, it must be demonstrated that the flow of water has caused injury, damage or loss to the affected person or the affected person’s property. The question of whether damage or loss has been caused will again turn on the evidence, however the sum of resulting reasonable rectification works is generally considered to be recoverable. In ascertaining the estimated quantum of damage to your property, our office recommends obtaining a report from an independent builder.

Causation

The person whose acts or omissions caused the flow of water may be held liable in a civil claim pursuant to s 16(1) of the Water Act. In this respect, an Owners Corporation may be liable if it is found they either acted in a manner which has contributed to the flow or failed to take necessary action preventing the flow.

For instance, if it is established that the source of the unreasonable flow of water is located within the common property, then it may be argued that the Owners Corporation has failed to meet their obligation to repair and maintain the common property.

Alternatively, if the source of the unreasonable flow of water is located within another lot of the building, it may be argued that, by failing to exercise their power to serve notice on lot owners compelling them to carry out maintenance works, the Owners Corporation have failed to take necessary steps to prevent the flow from occurring. The issue of causation will ultimately turn on the facts of each matter.

Subsequent Occupiers

Where it is determined that the flow of water resulted from works, or an act, done before the Owners Corporation became the occupier of the common property, the Owners Corporation is still liable to pay damages if they are deemed to have failed to take any steps reasonably available to prevent the flow. The phrase ‘reasonably available’ encompasses the requirement for the Owners Corporation to take such mitigatory steps within a reasonable time frame.

Strict Liability

If the above elements are satisfied, it is not necessary to demonstrate that the Owners Corporation failed to provide reasonable care in the discharge of their duties. Rather, it is sufficient that their failure to act in accordance with their obligations under the Owners Corporation Act 2006 (Vic) caused the unreasonable flow.

Remedies

If successful in making out a claim pursuant to the Water Act, then in addition to seeking ordinary remedies against the breaching Owners Corporation (such as damages), one may also seek a positive injunction requiring the Owners Corporation to take all necessary steps to both prevent the flow of water from continuing (that is, by fixing the defect which has allowed the water ingress).

How we can help

Merton Lawyers can assist and advise on all aspects of the Water Act including:

Considering or defending claims pursuant to the Water Act;
Advising on and assisting with the preparation of briefs to experts;
Advising on the liability of an Owners Corporations in respect of a claim pursuant to the Water Act.

Author, Oliver Keogh.

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