Seeking Recovery of Water Damage Claims in Victoria

Section 16 of the Water Act 1989 allows a claimant insured to recover loss or damage caused by the flow of water onto their land which is “not reasonable”. A Section 16 claim can be pursued against a person or entity other than a water authority meaning that neighbours, contractors and Councils can all be liable under this section. The advantage of relying on Section 16 to pursue your recovery is that a strict liability exists against the party who “caused” the flow of water. This means you do not need to establish negligence and the party is liable merely by having “caused” the flow which is “not reasonable”. Section 16 can be helpful to an insurer seeking recovery in claims involving water flowing from a neighboring property, Council assets and works being carried out by a third party.

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If the flow of water came from a water authority’s assets, then you can rely on Section 157 which allows a claimant insured to recover damages where the flow has occurred due to the authority’s intentional or negligent conduct. Importantly, the provision states that the flow is presumed to have occurred as a result of the authority’s intentional or negligent conduct, unless the authority can prove otherwise. Therefore, the liability is prima facie made out once the water “flow” has caused damage and the onus shifts to the third party authority to establish they are not liable.

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In states other than Victoria, water claims are pursued at common law, in negligence and nuisance. In Victoria, you cannot bring a claim in negligence or nuisance where a cause of action is available under the Water Act.

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Please contact Drina Govic and her team at Ligeti Partners if you would like to know more about this topic.

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