Victorian Civil and Administrative Tribunal|2001-03-31

Barlow v South East Water Ltd [2001] VCAT 659 (31 March 2001)

Real Property List; Water Act 1989, Whether Section 17(2) of Water Act 1989 negates liability of holder of water and sewage licence under Water Industry Act 1992 and/or its contractors, Flow of sewage into dwelling house, Whether a flow of water, Whether flow unreasonable

Date of Hearing 29, 30, 31 January and 2 March 2001

1. The second named respondent is required to pay damages to the applicant in the sum of $31,396.12.

2. The claim against the first named respondent is dismissed.

For the Applicant: Mr R. Cameron of Counsel instructed by Peter Eggleston and Associates

For the First Respondent Mr Scott of Counsel instructed by Blake Dawson Waldron

For the Second Respondent Mr Paterson of Counsel instructed by Deacons Solicitors

1. Mrs Barlow is the owner of a house at 14 Dealing Drive South Oakleigh. As she was returning from work on 10 July 1996 between five o'clock and 5.15 she saw what proved to be what is colloquially described as a "jet truck" operated by Thiess Contractors Pty Ltd outside No. 10 Dealing Drive.

"When I got to my house my mother was at home with my children. Just after I walked in the door I heard a sound of gurgling emanating from the main toilet. I initially thought that it was my son who was having a bath. My mother then advised me my son was in my bedroom watching television. I then immediately went to the toilet and noticed sewerage (sic) suddenly coming out of the toilet bowl in the main toilet. My immediate reaction was to go to the linen cupboard which was near the bedroom and get from it bed linen in order to stop the sewerage (sic) from coming. The pressure in respect of such sewerage was however too great and I was forced to retreat. The sewerage was filling my property very quickly. It consisted of large greyish blobs of what appeared to be fat as well as sewerage itself."

3. Mrs Barlow said she ran to No. 10 and told the two operators of the jet truck what had happened. They came to her property and were shocked at what they saw. According to Mrs Barlow "once the men had ceased work, ... the pressure by which the sewerage was coming out of my toilet had reduced significantly".

4. The result was that Mrs Barlow's house was completely flooded with sewage. She brings these proceedings seeking damages under Part 1 of the Water Act 1989 against South Eastern Water Limited, a licensee under the Water Industry Act 1994 and as the operator of the sewer main upon which the jet truck was operating and Thiess Contractors Pty Ltd which was the operator of the jet truck under contract with South East Water Limited.

5. The jet truck was being operated by Mr Craig Newton (a Thiess employee) and an assistant. Mr Newton said that he received the "call out" to attend 24 Dealing Drive South Oakleigh, at 19 minutes to four. He arrived on-site at 19 minutes past four to clear a reported blockage in the sewer main controlled by South East Water Limited. He found the manhole at the rear of 24 Dealing Drive to be full. A plumber who was working at No. 18 Dealing Drive told Mr Newton that No. 18 where they were working was also encountering a blockage. He found the manhole at the back of No. 10 to be empty, that is, down stream of the blockage. He drew off about 40m of hose and used a penetrator nozzle, sending the hose up the sewer line and finding the blockage "at approximately 24m". When Mrs Barlow came to complain that her house was flooded, according to Mr Newton he "turned off the jet at this time and went to investigate the problem and found sewer running in the house". After observing the flood in Mrs Barlow's house Mr Newton rang Thiess' Operations Room and asked that a representative of South East Water Limited attend. He then returned to the jet machine and removed the hose which was through the blockage. He observed a large amount of fat and sewage passing along the line. The blockage seems to have been constituted by a plug of fat (like dripping).

6. Mr Newton said that the penetrator nozzle had a head about the size of the microphone used in the witness box ie about 2-3cm in diameter. The jets which direct the water from the nozzle are at its rear and direct the water to the rear at an angle of approximately 60o. The "jet" stream of water is intended:

(a) to drive the nozzle in operations such as this up the sewer and against the blockage; and

(b) to cause it to rotate and penetrate the blockage.

When used in that way, according to Mr Newton and other witnesses called on behalf of the respondent, the nozzle and jet hose cannot cause a "flood" in a property connected to the sewer. The water from the nozzle is directed downstream where there is no blockage to cause any back-up. The connections to private houses are set in at an angle of 45o facing down stream and that configuration ensures that water from the nozzle would not be driven up a private connection and into the house.

7. According to Mr Newton, Mr Bruerton a Senior Executive with Thiess and Mr Douglas, a man of long experience in the clearance of sewers, Mrs Barlow must have been mistaken in her observation of events. The overflow in her house, they said, must have resulted from:

(a) the blockage being down stream of her house's connection to the sewer; and

(b) the natural flow of the sewer causing sewage to "back-up" and gradually overflow through her house over a period of one to two hours in the same manner as an overflowing bath does.

We were told that the average "dry weather" flow in this 150mm sewer would be 0.81 litres per minute, according to Mr Naisbitt, the Manager Technical Services for South East Water Limited. He also stated that there are some 100 properties up stream of Mrs Barlow's house and connected to the same sewer.

8. Aside from denying any causal responsibility for the flood in Mrs Barlow's house, both respondents submit that they are exonerated from liability by reason of a number of legal considerations.

9. The first is Section 17(2) of the Water Act 1989.

10. Whilst the amended statement of claim filed on behalf of Mrs Barlow seeks to make a claim in the Tort of Negligence, her Counsel, Mr Cameron, did not press this claim at the hearing since there is nothing in the Water Act which would give the Tribunal a jurisdiction to entertain a Common Law negligence claim. According to Gillard J in Coles Myer Limited v City West Water Limited [1998] VSC 63; (1998) 14 VAR 37, 42 such Common Law claims "are no longer available ... because of the provisions of Section 17(1) of the [water] Act". The claim as now pressed is made solely under Section 16(1) of the Water Act 1989. That sub-section states:

(a) there is a flow of water from the land of a person onto any other land; and

(ii) damage to the property (whether real or personal) of any other person; or

the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss."

11. Both respondents placed reliance upon Section 17(2) of the Act which is in the following terms:

"(2) Sections 15 and 16 do not create any liability in respect of a flow of water from the works (including any dam) of an Authority in the exercise of a function under Part 8, Division 2, 3 or 5 of Part 10 or Part 11 or any corresponding previous enactment or of a licensee in the exercise of a function under its licence."

12. Mr Scott who appeared on behalf of South East Water Limited drew attention to the definition of "works" to be found in Section 3(1) of the Act which is in the following terms:

(a) reservoirs, dams, channels, sewers, drains, pipes, conduits, fire plugs, machinery, equipment and apparatus, whether on, above or under land; and

13. Both he and Mr Paterson who appeared on behalf of Thiess, referred to the definition of "licensee" as meaning "the holder of a licence issued under Division 1 of Part 2 of the Water Industry Act 1994".

14. They noted that South East Water Limited was the holder of both a water and a sewerage licence under the Water Industry Act. Section 9 of the Water Industry Act provides for water licences and water and sewerage licences and Section 17 specifically provides for the Governor-in-Council to issue water and sewage licences inter alia to South East Water Limited.

15. Both Mr Paterson and Mr Scott made an even more fundamental submission to the effect that Section 16 dealt with flows of water and not at all with flows of sewage. They drew attention to the fact that "sewage" is separately defined in Section 3 of the Water Act in the following terms:

" "sewage" means any human excreta or domestic waterborne waste, whether untreated or partially treated, but does not include trade waste;

16. This submission was made as a preliminary point but we overruled it for reasons which we then gave. In essence we did so because the definition of "water" in Section 3 of the Water Act states that the word means "water, whether or not it contains impurities". In our view it is not uncommon for statutes to include definitions which either overlap one another or perhaps more typically where one is a subset of the other. In the present circumstance "sewage" would appear to be a subset of water, namely the polluted variety or the type with impurities.

17. The submission based upon Section 17(2) of the Water Act however raises issues which are less easy to dispose of. It was not open to doubt that in seeking to clear the sewer under its management a licensee would be discharging a function relative to its water and sewage licence. Clause 3(1) of the licence provides inter alia:

"A licensee must plan for, establish, operate and maintain ... systems for the conveyance and disposal of sewage within the area covered by the licence." (my emphasis)

18. The process of cleaning a blockage in the sewer is properly to be characterised as maintaining a system for the conveyance and disposal of sewage.

19. Mr Cameron submitted that the closing words of Section 17(2) should be read down so as to be governed by the earlier words, namely the references to Part 8 Division 2, 3 or 5 of Part 10 or Part 11 of the Water Act. Part 8 deals with water supply. Part 10 deals with waterway management and Part 11 deals with irrigation. Accordingly in his submission, the provisions of Section 17(2) did not operate to exclude Section 16 liability in these circumstances.

20. Mr Scott on behalf of South East Water Limited said that there was no textual basis for Mr Cameron's submission and further that his client was not "authority" within the meaning of the Water Act 1989 (a matter not challenged by Mr Cameron) but rather was a licensee under the Water Industry Act.

21. The effect of Section 17(2) is not to provide a wholesale exemption from liability to authorities under the Water Act in exercise of their functions under the quoted divisions or parts but rather to leave that liability to be determined under Section 157 which subjects authorities to liability for flows of water from their works which occur "as a result of intentional or negligent conduct on the part of" the authority. That liability is expressed to exist where the flow occurs as a result of conduct "in the exercise of a function under Part 8, Division 2, 3 or 5 of Part 10 or Part 11" of the Act. It will be seen that this is a mirror image of the earlier part of Section 17(2). Section 157 however has nothing to say as to the flow of water from works constituted by sewers. Section 74 of the Water Industry Act subjects a licensee to liability for damage caused by a flow of water "as a result of intentional or negligent conduct on the part of a licensee and the exercise of a function under its licence".

22. The scheme of the Act seems to be that liability for flows of water generally is dealt with by Section 16 but liability for flows of water from water supply works (Part 8 of the Water Act) from waterway management, regional drainage or water management schemes (Part 10 Division 2, 3 or 5) or from irrigation works conducted by authorities are dealt with under Section 157 of the Water Act and liability for flows of water from the works of water and sewage licensees are dealt with under Section 74 of the Water Industry Act 1994.

23. No claim is brought against South East Water under Section 74 of the Water Industry Act. In our view the above analysis of the scheme and definitions to which we have already made reference shows that South East Water Limited cannot be liable under Section 16(1) of the Water Act.

24. Mr Paterson on behalf of Thiess submitted that in so far as his client was acting on behalf of South East Limited, it must be entitled to the same statutory immunity as its principal is entitled to. Mr Paterson referred to no authority in support of this proposition. It is less than self evidently correct. In Adler v Dickson [1954] EWCA Civ 3; [1955] 1 QB 158 a passenger on the P & O steamship Himalaya was injured. The shipping company had the benefit of what was accepted as an effective exemption clause. Rather than sue the shipping company, the plaintiff sued the master and boatswain of the Himalaya for negligence. The English Court of Appeal held that the plaintiff had a good claim against the captain and the boatswain despite the exemption of the shipping company. Jenkins LJ said:

"A good deal was said in the course of the argument before us about the observity of a stipulation relieving an employer of his liability for the negligence of his servant by leaving untouched the servant's liability for that same negligence. I do not follow this. If there is no exempting stipulation at all, then both master and servant are liability, and either can be sued at the option of the injured party. If there is a contract exempting the master but not the servant then the servant's liability remains as it was. The master may find this result inconvenient if he feels impelled either from motives of expediency or from the sense of moral obligation, to indemnify the servant. But, if so, the answer is simple. He should have seen that the contract was so framed as to exempt his servant from liability as well as himself." [1954] EWCA Civ 3; [1955] 1 QB 158, 186-7

25. His Lordship here does not contemplate the difficulties caused by the doctrine of privity of contract. Attempts to reverse the continuing effect of Adler v Dickson by so called "Himalaya Clauses" provided two decades of contractual jurisprudence.

26. In addition it is far from uncommon for statutory provisions which clothe a utility or Government agency with immunity to go on to provide that the immunity extends to the utility or agency's officers, employees, contractors etc. No such extension appears in Section 17(2).

27. In the end however these considerations are not a germane to the operation of Section 17(2). The section does not clothe authorities and licensees with immunity, rather it provides that the earlier sections creating statutory liability "do not create any liability in respect of a flow of water from the works ... of an authority ... or of a licensee" in the exercise of their functions. The sub-section is not apt to create a personal immunity for the authority or licensee but rather to negate any liability "in respect of" certain flows of water.

28. If all this is correct then independent of the view which we take of the factual disputes in this matter, Section 17(2) of the Water Act negates any liability which would otherwise attach to either respondent.

29. Nevertheless, the words need to be carefully analysed. Was the flow of water (sewage) alleged by Mrs Barlow "from the works ... of a licensee in the exercise of a function under its licence". To what does the phrase "in the exercise of a function under its licence" relate? It does not, we think, relate to the construction of the works, though if it did, it seemed to emerge incidentally from the evidence that the works constituted by the sewer were constructed by the Melbourne and Metropolitan Board of Works or its successor Melbourne Water at sometime no later than 1988. The sewer was not constructed by South East Water Limited. It only operates and maintains it. In our view, the phrase is apt to indicate that the relevant flow of water is one that occurred because of or in the course of the licensee exercising a function under its licence.

30. Mr Scott, Counsel for South East Water submitted that if contrary to his submissions, his client could be as a matter of law, liable under Section 16 of the Water Act, even if it could be concluded (which he submitted it could not) that the operation of a jet machine caused the sewage spill, South East Water was not responsible. He observed:

"In substance, the allegation against SEWL is, inter alia, that the act which caused the spill was performed by its servants, agents or employees. There is no suggestion now, however, that any act of Newton [the Thiess employee controlling the jet truck] or for that matter Thiess is that of SEWL's servant or employee.

Thiess is in fact an independent contractor of SEWL for the purposes of certain of SEWL's functions as the holder of a water and sewage licence. Mr Naisbitt's evidence was that it is only in discharge of those functions that SEW can undertake sewer maintenance. Mr Naisbitt is responsible for overseeing that part of SEW's undertaking. Thiess is not SEWL's agent for these purposes." [Mr Naisbitt is the Manager Technical Services of South East Water Limited and gave evidence on its behalf.]

31. Professor Fleming (the Law of Torts 9th Edition 1998) explains the issue in this way.

"As a general rule, the employment of an independent contractor does not entail responsibility for wrongs committed by him, or his employees, in the course of work for which he was engaged. This important qualification of vicarious liability, established in the early 19th Century, is most commonly explained on the ground that, as the employer lacks detailed control over the manner in which the work is done, it is the contractor who himself who is best able to prevent the risks incidental to it and absorb such losses as occur. While there may sometimes be far greater spot control over the details of work of a contractor as compared with a servant, it is nonetheless felt that, in the stock situations where work is turned over to another who is in that line of business, like a taxi driver, painter or builder, the risk of accident is incidental to the contractor's enterprise rather than his employers." (page 443)

32. The submission made by Mr Scott on behalf of South East Water appears to accord with this statement of principle.

33. Accordingly, assuming for the sake of the argument that Mr Newton's use of the jet machine caused the flood of sewage in Mrs Barlow's house, since the doctrine of vicarious liability does not attribute Mr Newton's actions to South East Water Limited, how can it be said that the flow of water was caused by or was a concomitant of the exercise of a function by South East Water Limited? Doubtless if an employee of South East Water Limited had been operating the jet machine any vicarious liability that South East Water Limited may have for his actions would not extend to liability under Section 16 of the Water Act because of the operation of Section 16(2) of the Water Act. Since the work here is done by an independent contractor Section 17(2) has no application. Thiess is neither an authority nor a licensee. Thiess' actions or those of its employees are not attributed to South East Water Limited by the doctrine of vicarious liability.

34. The same reasoning applied in the manner in which Mr Scott primarily made the submission would lead to the view that even if it could be shown that Mr Newton's use of the jet machine was the cause of the flood of sewage, South East Water Limited is not responsible or liable for the consequences of Mr Newton's action.

35. Mr Cameron on behalf of the applicant did not as we understood it, dispute Thiess' status as an independent contractor. The maintenance contract under which Thiess operated was put into evidence and was consistent with that view of its status. He did submit however that South East Water Limited could be regarded as under a non-delegable duty such that failure to perform that duty, even if the fault of Thiess rather than South East Water Limited left South East Water Limited fixed with a liability. He referred to the decision of the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 550-1. In that case a building belonging to General Jones Pty Ltd was destroyed as a result of a fire started by the activities of an independent contractor on the Port Authority's property. In a joint judgment Mason CJ, Deane, Dawson, Toohey and Gaudron JJ held that the Port Authority was liable under such a non-delegable duty. A non-delegable duty arose in their Honour's view out of the relationship between the parties. They said:

"One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things the other party to that relationship is a person, outside the premises without control over what occurs therein, whose person property is thereby exposed to a foreseeable risk of danger. In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises he or she is specially dependant upon the person who controlled the premises to ensure that such reasonable precautions are in fact taken." [1994] HCA 13; (1994) 179 CLR 520, 551

36. There is an immediate difficulty in applying these doctrines to the present proceeding. Here there is no claim in negligence, only a claim under the statutory cause of action created by Section 16(1) of the Water Act against a person who "caused" an unreasonable flow of water. The concept of the "non-delegable duty" assimilates conveniently with the Tort of Negligence. It does not seem to assimilate at all to the statutory cause of action under Section 16(1). Moreover, in the General Jones' case the independent contractors were carrying on welding activities in close proximity to cardboard cartons containing Isolite, an insulating material which burned fiercely if brought into sustained contact with flame. The activity therefore was an inherently dangerous one. Sewers and their contents may be regarded as malodorous and not a fit topic for polite conversation. Clearing a blockage in a sewer however is not an inherently dangerous operation in the same way as the welding activities in the General Jones' case were. In any event, stating the bounds of the alleged non-delegable duty has proved to be elusive. Compare for instance Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313. The present situation bears no resemblance to that in General Jones and Mr Cameron did not condescend to any analysis to demonstrate how the alleged non-delegable duty could arise.

37. It follows that we accept Mr Scott's submission on behalf of South East Water Limited. Even if we accept the factual contentions made by Mrs Barlow, the claim against South East Water Limited must fail.

38. Next we turn to the cause of action alleged by the applicant. Paragraph 8 of the amended statement of claim alleges "there is a flow of water caused by the respondents in breach of the provisions of Section 16 of the Water Act 1989". Section 16(1) inter alia renders a person who caused a flow of water that is not reasonable "from the land of a person onto any other land" which causes damage to the property of any other person liable to pay damages to the other person for the loss. It is not a requirement of liability that the water flow from the land of the person rendered liable (Coles Myer Limited v City West Water Limited [1998] VSC 63; (1998) 14 VAR 37, 41 per Gillard J). In determining whether a flow of water is or is not reasonable "account must be taken of all the circumstances" (see Section 20(1) of the Water Act). That sub-section sets out a series of specific matters to be considered. It is fair to say that they seem to relate more to "a broadacres" farming, waterways and irrigation management and the like than to incidents such as the one we are here considering. The only one of those particulars referred to by any person was in paragraph (a) which requires attention to be given to the question as to whether the particular flow was "authorised" or not.

39. Mr Scott submitted that whilst Section 16 and for that matter Section 20 of the Water Act direct attention to the reasonableness or otherwise of the "flow of water" amongst the circumstances which should be considered in determining the reasonableness or otherwise of the flow, is the degree of blameworthiness or lack of blameworthiness of the person or persons alleged to have caused the flow. We accept that submission. Likewise liability under Section 16(1) derives from having caused an unreasonable flow of water. Proof of intention or negligence is not part of the cause of action. Cf Water Act Section 157 and Water Industry Act Section 74.

40. What then is the correct view of the facts? We have already noted the view put by the respondent's witnesses Mr Naisbitt of South East Water Limited, Mr Bruerton, Senior Executive of Thiess, Mr Newton the Thiess employee who was operating the jet machine on the day and Mr Douglas an independent expert in sewer cleaning.

41. Mr Bloomer a plumbing consultant called on behalf of Mrs Barlow said:

"In this case it would appear that either one of two things took place during the process of unblocking the drain. Either the blockage or part of the blockage has let go from its position (said to be 24m upstream from the manhole being worked on) and lodged itself on the down stream side of the branch of the drain for 14 Dealing Drive. Therein causing the head of sewage held in the drain to travel up the house connection drain of 14 Dealing Drive and overflowing through the toilet pans, shower recesses and bath outlets. ...

The second possibility is that the penetrator nozzle may have been pulled back to a point just down stream of the house connection of 14 Dealing Drive with the bulk of the blockage still in front of it therefore causing the now flowing sewage to discharge along the house connection drain and to overflow over the top of the toilet pans."

42. Both respondent's Counsel were highly critical of Mr Bloomer. Mr Scott in particular submitted that Mr Bloomer was not shown to have the expertise of the respondent's witnesses in the use of large jet machines clearing reticulated sewerage mains as distinct from much smaller pipes in private connections. Moreover, Mr Scott submitted that Mr Bloomer did not conduct himself as an independent expert but gave partisan opinion. Mr Douglas said that in his experience once a block of fat "let go" there was such a force of sewage behind it that it would travel up to 60m before there was any question of it stopping again. It was only a possibility for the blockage to stop once again if it had flowed a sufficient distance to dissipate the force of the "head" of backed up sewage behind it.

43. We accept that the respondent's witnesses demonstrated a far greater level of experience and knowledge relative to the clearance of sewerage mains than did Mr Bloomer. If the factual questions in this proceeding were to be determined merely upon the preponderance in number and expertise of witnesses the respondents would clearly have the victory. Nevertheless there are many difficulties in attempting to make the facts conform to the opinion of the respondent's experts.

44. The official record plan shows the sewer as having a gradient of 1:224m in the vicinity of Mrs Barlow's house. It was common ground that this area is very flat. The lavatory pans in No. 14, assuming them to be of conventional design, would be between 400 to 500mm above the floor level. The Barlow's house has a slab floor. It and its plumbing appliances would tend to be the lowest in the immediate area. Mr Douglas observed that the slab was scarcely much above ground level, nevertheless the brim of the toilet pan would have been 400 to 500mm above ground level at No. 14. Mr Newton said that he found a full manhole at the rear of No. 18 Dealing Drive. The sewerage map seems to depict the manhole at the rear of No. 16. In any event it is close to the boundary between the two premises. Mr Newton said that he lifted the lid and found it full close to the ground level. He noted no surge of sewage. The lid had not "popped" nor had there been any leakage. Granted that the lids on the manholes are quite heavy it is perhaps not surprising that there was neither a popping nor a leakage; but if there was sufficient head of sewage to overflow the lavatory pans at No. 14 it is likely that it would have caused an outflow at the "full" manhole. Mr Newton found no such thing. When Mr Newton came to operate the jet machine through the manhole at the rear of No. 10 he found it partly buried, indicative of the fact that the manholes are as one would expect somewhat inset into the ground rather than standing proud.

45. Again, as the respondent's witnesses would have it, the flooding of the Barlow house had been in progress for one to two hours. Mr Newton said that he believed Mrs Barlow would have beheld a similar scene to that which greeted her when she returned shortly after five, if she had returned an hour earlier. This would have meant that Mrs Barlow would have been confronted with a house full of sewage when she returned shortly after 5 o'clock. That was not her evidence and no such proposition was distinctly put to her. Mr Paterson referred to a passage in her cross-examination by Mr Scott:

"Q - Was there already sewage on the floor - when I walked into the toilet there was already sewage on the floor

Q - A lot of sewage on the floor - well it was - it was flowing (indistinct), so you know, (indistinct) is flowing. I couldn't get to - to the toilet (indistinct) the powder room - already come through the toilet and (indistinct) powder room. That's the toilet and the powder room what about the laundry? - well that - did you check that at the time as well? - at that time it had not (indistinct), in the meanwhile I ran out to the guys and come back - the house had been (indistinct)"

46. We have quoted a somewhat longer passage than the one upon which Mr Paterson relied. Read in its totality it seems to indicate that whilst there was sewage on the floor of the toilet (to which Mrs Barlow had been attracted by the sound or gurgling) there was not sewage throughout the house. It had progressed through the house in the time in which she went out to Mr Newton. There was no sewage in the laundry for instance. This account of events is at odds with the thought that this flooding had been taking place gradually over a period of hours. When Mr Newton came to the front door the house seemed to him to be fully flooded. He did not want to venture in.

47. Mrs Barlow said that her mother and two children (one a teenager) were already in the house when she arrived home. Both Mr Paterson and Mr Scott noted the failure to call either of the two children or the grandmother. They submitted in accordance with Jones v Dunkel (1959) 101 CLR 298 that we should infer that the evidence of these other family members would not assist Mrs Barlow's case, that is, their evidence would be that they stayed in a single room perhaps watching television and might therefore have been oblivious to the progress of the gradual flooding of their house. There is some force in this observation. Nevertheless we think it contrary to the probabilities that these other family members could have been ensconced watching television while the entire house was flooded with sewage. Again, if the whole house were flooded with sewage there would be no occasion for Mrs Barlow to have gone to the linen cupboard to try and obtain towels to stem the flow. It was not put to her in cross-examination that her evidence was untrue in this point.

48. Mr Douglas said a flood of sewage as described by Mrs Barlow would leave the solids concentrated at one end of the house rather than evenly spread as in the present case; but according to Mrs Barlow the flood emanated from two pans at either end of the house. This would account for the distribution.

49. We should record that we found Mrs Barlow a thoroughly straight forward and candid witness. There was nothing in her demeanour which suggested to us that she was doing other than trying to give us a fair recollection of what had happened on what was no doubt a quite horrifying occasion for her. The evidence emerged incidentally that she received insurance compensation and reinstatement for most of the damage to her house. Normally that fact is irrelevant. It is relevant here to this extent that since the Barlow residence has now been reinstated there is no reason to think that Mrs Barlow has substituted any pecuniary interest in giving any untruthful account of what occurred.

50. Again, Mr Newton said that blockages created by plugs of fat (which are in effect like dripping) tend to occur in particular areas usually based upon the ethnicity of the neighbourhood. Whilst quantities of fat therefore are to be found in sewers not infrequently, they are not the usual form of solid to be found in sewage. According to Mrs Barlow's statement, the sewage "consisted of large greyish blobs of what appeared to be fat as well as sewage itself". The pipes connecting a private residence to a sewerage main are of lesser diameter than the sewer itself. The ordinary build-up of sewage behind the block of fat would not normally be expected to consist of further large blobs of fat unless for instance there were a restaurant up stream discharging large quantities of fat without any or any adequate grease trap for instance. We did not understand Mrs Barlow's description of what flooded her house as being called into question. The involvement of large blobs of fat was to some degree borne out by the somewhat poor quality photographs which were placed before us. It seems on balance likely that the large blobs of fat which she described formed part of the blockage itself and that it was only under some form of pressure that they were driven up the smaller diameter pipes providing her house's connection to the sewer.

51. In his statement Mr Bloomer , a licensed plumbing contractor, describes the grates on the shower recess and the plug and washer grate on the bath being blown out of their housings. He conducted his inspection of Mrs Barlow's residence on 20 April 1998, that is almost two years after the flood. It may be inferred that the reference to the grates being blown out must have been as a result of what he was told rather than any observation he himself made. There is no reference to these matters in Mrs Barlow's statement or in her viva voce evidence. A number of witnesses were cross-examined as to this point however and it does not seem to have been called into question. None of the respondent's witnesses could explain how, according to their scenarios these two grates could have been blown out and such a thing could have occurred only in the event that there was a substantial pressure coming up the pipe beyond the mere back-up of sewage behind the blockage.

52. The standard operating instructions used by Thiess included a special warning to guard against "blow back" in shallow sewer areas (of which Dealing Drive is one). According to Mr Bruerton the dangers of blow back arise particularly with routine maintenance where the jet nozzle may be passed down stream rather than up stream as is the usual practice where an emergency clearance is being effected. When the nozzle is heading down stream the angle at which the water is discharged viz. at an angle of 60o to the rearward means that the water can go directly up connections to private properties which are angled in at 45o. According to Mr Bruerton that can lead to circumstances in which the water in the s-bend of a lavatory pan can be driven out by a "slug" of air. In some cases the water has shot up to the ceiling above the lavatory pan. Barwon Water according to Mr Bruerton, instructs customers in shallow sewer areas which are the subject to this form of routine maintenance to close the lids on their lavatory pans and place a house brick on top. In his statement Mr Bruerton, the Quality Manager of Thiess said:

"It is uncommon during the clearing process for there to be a blow back of air from the reticulation system along sewer pipes on private property. In the majority of situations this will only cause very minimal water damage as the system should not have any water sitting in it, except for the toilet bend and an external s-bend. However, if the private sewer pipes are holding sewage because of a blocked or partially blocked pipe, a blow back may force this sewage up through the toilet or bathroom.

While it is uncommon for there to be a blow back of air through the system it is extremely uncommon for there to be a flow of sewage into a private home during an emergency clearing. Thiess is involved in approximately 80 to 100 emergency clearings per month and there has not been a flow of sewage into a home since this incident in July 1996."

53. Mr Newton according to his contemporaneous report employed the lower pressure suggested by the Thiess Operating Instructions viz. 750 - 1000 PSI. (The normal operating pressure is about 1,500 PSI)

54. A number of matters arise out of this evidence. First, Mrs Barlow reported hearing a "gurgling" sound when she entered the house. It was this that initially called her attention to the toilet where she found the pan overflowing. This accords with what Mr Bruerton said as to the possibility that the private service was partially full of sewage as a result of the blockage and back up but nevertheless retained some air. Secondly, this passage in Mr Bruerton's statement appears to indicate the possibility of a blow back in circumstances other than routine maintenance with a nozzle moving down stream rather than up stream.

55. Mr Newton presented as a competent and candid witness. Without suggesting in any way that his evidence was intentionally misleading we must allow for the possibility that in truth the jet machine may have operated at a somewhat higher pressure than his report would suggest. First we note the viva voce evidence of Mr Bruerton and Mr Douglas to the effect that blow backs generally would not occur on an emergency clearance. Secondly we note the passage in the Standard Operating Instructions was noted as having been introduced in June 1996, that is only a few weeks before this incident. Finally, we note that Mr Newton was engaged in the practical exercise of trying to clear a blockage at the end of the working day. He was not carrying out an experiment and making precise records of readings. He said that the calibration for the pressure on the jet machine was relatively coarse.

56. All these considerations lead us to the view that on the balance of probabilities the flood of sewage in Mrs Barlow's house was caused as a result of the operation of the jet machine. It must remain a mystery precisely how this occurred. We accept the thrust of the respondent's evidence that in the ordinary course of events such a thing should not and could not happen. What happened here must have been the result of a most unusual combination of events. We agree with Mr Douglas that once the blockage "let go" the probabilities are overwhelmingly that it would keep going, at any rate for a substantial distance and would not as Mr Bloomer suggested stop within a few metres. On the other hand Mr Newton's evidence suggests that at the time when Mrs Barlow came to complain he was almost through the blockage. With the nozzle partially through the point opposite the Barlows' sewer connection, the head might have become twisted so that some of its thrust was pointing partially up the Barlows' sewer connection thereby propelling backed up sewage and parts of the blockage itself through their pipe. Once Mr Newton returned to the jet machine he recommenced operation and told us that the process of drawing the hose and nozzle back broke up the blockage.

57. It follows therefore that in our view the second respondent can be regarded as having "caused" the flow of water (sewage). The flow was from the sewer onto Mrs Barlow's land. The sewer owned by Melbourne Water and managed by South East Water Limited is itself to be regarded as land. Gas and Fuel Corporation of Victoria v City of Williamstown [1978] VicRp 64; [1978] VR 677, 682 per Harris J. Being in ownership separate from the sewer, Mrs Barlow's house is to be regarded as "other land" for the purposes of Section 16(1) of the Water Act. Was that flow unreasonable? We have already stated that we accept the submission made by Mr Scott that in considering whether a flow was reasonable or not one should consider the blameworthiness or otherwise of the person who caused the flow. Whilst there are various matters pursued in cross-examination by Mr Cameron, for instance that Mr Newton should have called for an eductor truck or used bypass pumping, inspected pop-up disconnectors, blocked off private services at the inspection shafts located just above their connection with the main sewer, we accept the evidence of Mr Newton, Mr Bruerton and Mr Douglas that in the circumstance of a blockage which does not appear to be the result of a collapse of the sewer itself, the highest priority is to attack the blockage itself and that measures such as were suggested by Mr Cameron in cross-examination would be time consuming rather than helpful in ordinary circumstances. It follows that in our view it cannot be said that Mr Newton or Thiess were negligent in the manner in which they conducted themselves. Nevertheless, accepting that this is a factor which weighs against a finding that the flow of sewage was "unreasonable" the consequences of the flow are so serious that in our view that consideration in itself outweighs the consideration that Thiess was in no way blameworthy.

58. It follows that this flow of water (sewage) was unreasonable. It rendered the Barlow residence uninhabitable.

59. Finally, on the subject of liability we should say something about a matter which attracted extensive evidence in the early part of the hearing but seemed to be mentioned not at all in final submissions, that is, the "pop up" disconnector. Witnesses for the respondents submitted that there had been a malfunction in the "pop-up disconnector" at the Barlow residence. The purpose of this open grate outside the house and at a lower level than the appliances within is to enable raw sewage to discharge outside the house and avoid its spillage from appliances within the house. In the circumstances of the Barlows' flood understandably little attention was paid to their pop-up disconnector. It seems that either no sewage at all discharged through it or the discharge was minimal compared to that which came out of the two lavatory pans in the house. Ultimately we did not understand the evidence of Mr Scammell to be contradicted, namely that the installation at the Barlow house whilst it did not comply with the most recent standards for sanitary sewage work, nevertheless it accorded with the standards which were laid down at the time of the house's construction in 1988. We think it wholly unrealistic to regard a householder as under some duty as it were to "update" his or her house to the latest standard on these and other building matters at least or even to be aware of them unless the relevant authority makes some public policy statement requiring "retro-fitting" of the newer equipment. This view is consistent with the recent decision of the High Court of Australia in Jones v Bartlett (2000) 75 ALJR 1 where a majority of their Honours considered that a landlord was not to be regarded as having failed to display reasonable care in letting a house with a glass door which when constructed in the 1950s was in accordance with the then current building requirements but was inadequate when compared against more recently adopted standards.

60. We now turn to the issue of damages. The particulars of loss and damage appearing as particulars to paragraph 9 of the amended statement of claim show $18,469.60 for loss of contents of the Barlows' house, $7,846.45 for cost of rectification and an additional $2,210.52 making a total of $28,526.57. At the outset of the hearing Mr Cameron increased the particulars of damages to a total of $31,996.12 this included some $2,210.52 of items which were not covered by the Barlows' insurance which were not included in the initial statement of claim which one infers was drawn upon instructions from the insurer.

61. There was little challenge on the issue of quantum. Mr Scott however challenged a number of the items headed by Mr Cameron at this stage including $350 representing the costs of enhancing the carpet rather than merely restoring what had been destroyed. $250 for legal costs which were not particularised but perhaps represented the costs of Mrs Barlow's personal solicitors Doyle and Kerr preparing those further particulars. Neither of these heads of damages seems to be recoverable.

62. It follows in our view that the amount claimed should be reduced by some $600 to exclude those items.

63. Accordingly, we propose awarding damages to the applicant against the second respondent in the sum of $31,396.12.

64. All questions of law were determined by the presiding Deputy President.

65. There were some submissions as to costs but no comprehensive set of submissions has as yet been made. In the circumstances we think it appropriate to reserve costs and permit the parties to make submissions in light of the above reasons.

Water Industry Act 1992

Barlow v South East Water Ltd [2001] VCAT 659

At a glance

Court

Decision date

Source

Judgment (97 paragraphs)

Barlow v South East Water Ltd [2001] VCAT 659 (31 March 2001)

Parties

Legislation Cited (2)

Cases Cited (5)