1 The name of the applicant is amended to "BE & D Mawby Pty Ltd".

2 The respondent pay the applicant damages in a sum to be assessed pursuant to s 16(1) of the Water Act 1989 (No 80/1989).

3 Adjourn further hearing of this application to a Directions Hearing at 10:00 am on 29 June 2007.

4 Reserve costs.

Mr Noonan SC with Mr Littlejohn instructed by Ligeti Partners

1 Mr Bingham (the respondent) was a student at RMIT University. On 10 June 1999, he was driving his vehicle north along Gore Street, Fitzroy, intending to travel to the University's city campus. When he came to the intersection of Johnston Street, he was facing a stop sign and in fact stopped with the intention of making a left-hand turn, that is, turning west into Johnston Street. While approaching the intersection, he noticed another vehicle, blue in colour, in Gore Street on the other side of the intersection, facing south with its right-hand indicator operating (obviously intending to turn west into Johnston Street). There was also a stop sign facing that vehicle. Both vehicles stopped at the intersection of Johnston Street.

2 At or around the intersection, Johnston Street had four lanes of traffic, two in either direction and was 14.1 metres wide. The southern side of Gore Street (that is where the respondent was stationary) is a single lane road of 3.95 metres in width. The north side of the intersection (where the blue car was stationary) in Gore Street was 14.6 metres wide.

3 When the traffic travelling west in Johnston Street cleared, the respondent commenced to make a left-hand turn, into Johnston Street. He said that he continued to notice the blue vehicle until he was approximately 1 metre into Johnston Street and at that time the blue vehicle was still stationary. When the respondent had travelled approximately 6.83 metres into Johnston Street, he was level with a pole. At that time he noticed the blue vehicle, which had commenced a right-hand turn into Johnston Street and the front of that blue vehicle, according to the respondent, was very close to the position where he was sitting in his vehicle. In fact the respondent said that it had encroached on the left-hand lane of Johnston Street (that is the southernmost lane for west-bound traffic) and he was fearful that the blue car would collide with his vehicle. As a result, the respondent turned his steering wheel to the left which caused his vehicle to collide with a fire hydrant (the collision) on the southern footpath of Johnston Street. The fire hydrant was 9.63 metres from the south-west corner of the intersection of Johnston Street and Gore Street on the southern footpath. Both the blue car and the driver are unidentified, as the blue car drove off.

4 As a result of the collision, the fire hydrant broke and began to gush water approximately 32 metres into the air. The water from the fire hydrant entered premises occupied by the applicant (the premises).

5 The premises are on the south-west corner of Johnston and Gore Street, Fitzroy. The applicant alleged that as a result of water flowing into the premises, it suffered damage totalling approximately $1.2M. The respondent for the purposes of this part of the application, admits that the applicant suffered damage from water from the fire hydrant. The applicant alleges that pursuant to s 16 of the Water Act 1989 (the Act), the respondent caused damage by causing a flow of water that was not reasonable. This is denied by the respondent. By a direction made by Young SM on 27 October 2006, the hearing of this proceeding was separated into a first hearing in regard to liability only and a second hearing as to quantum, if any.

6 The hearing before me was the first hearing and, as a consequence, was only on the question of liability.

7 The relevant legislation of the Water Act 1989 is as follows :

16. Liability arising out of flow of water etc.

(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.

(1) A person does not incur any civil liability in respect of any injury, damage or loss caused by water to which section 16 or 157 of this Act or section 74 of the Water Industry Act 1994 applies except to the extent provided by this Act.

(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.

(3) Nothing in this section takes away from the power of a court to make an order against a person under section 86 of the Sentencing Act 1991 with respect to an offence under the Environment Protection Act 1970.

(1) The Tribunal has jurisdiction in relation to all causes of action (other than any claim for damages for personal injury) arising under sections 15(1), 16, 17(1) and 157(1) of this Act or at common law in respect of the escape of water from a private dam.

(3) In exercising jurisdiction conferred by sub-section (1), the Tribunal -

(a) may by order, whether interim or final, grant an injunction (including one to prevent an act that has not yet taken place) if it is just and convenient to do so; or

(ab) may make an order for payment of a sum of money awarding damages in the nature of interest; or

(3A) Nothing in sub-section (3) takes away from or affects the Tribunal's powers under section 123 or 124 of the Victorian Civil and Administrative Tribunal Act 1998.

(4) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate that it considers appropriate.

(5) The Tribunal may in respect of any works that give rise to a cause of action of a kind referred to in sub-section (1) make any order with respect to -

(b) the continuation, removal or modification of works; or

(c) payment of the costs of the removal or modification of works -

(8) Nothing in this section prevents a person from bringing before a court a claim for damages for personal injury based on a cause of action of a kind referred to in sub-section (1).

(9) In determining a cause of action arising under section 15(1), 16, 17(1) or 157(1) of this Act the Tribunal must apply to the questions of causation and remoteness of damage the same tests as a court would apply to those questions in an action based on negligence.

(10) Subject to sub-section (8), a proceeding based on a cause of action of a kind referred to in sub-section (1) must not be brought otherwise than before the Tribunal.

20. Matters to be taken into account in determining whether flow is reasonable or not reasonable

(1) In determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including the following matters -

(a) whether or not the flow, or the act or works that caused the flow, was or were authorised;

(b) the extent to which any conditions or requirements imposed under this Act in relation to an authorisation were complied with;

(c) whether or not the flow conforms with any guidelines or principles published by the Minister with respect to the drainage of the area;

(d) 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 the information then reasonably available about the cumulative effects on drainage of works and activities in the area;

(e) the uses to which the lands concerned and any other lands in the vicinity are put;

(ii) collected, stored or concentrated on that land; or

and if so, for what purpose and with what degree of care this was done;

(h) whether or not the flow was affected by any works restricting the flow of water along a waterway;

(i) whether or not the flow is likely to damage any waterway, wetland or aquifer.

(2) In taking account of the matters specified in sub-section (1), greater weight must be attached to the matters specified in paragraphs (a), (b), (c) and (d) than to the other specified matters.

(3) An Authority that has a waterway management function in the area to which a proceeding before the Tribunal relates may make a submission to the Tribunal on the matters specified in paragraphs (c), (d) and (i) of sub-section (1).

8 It should be noted that the applicant relies on s 20(1)(a) and (e) of the Act for its submissions as to the unreasonableness of the flow of water.

9 Mr Noonan SC with Mr Littlejohn, counsel for the respondent, submitted that I should accept the respondent's evidence with respect to the circumstances relating to the manner in which his vehicle came into contact with the fire hydrant. As a consequence they submitted that I should find the respondent was not at fault in relation to the collision and as such did not "cause the collision" or the "flow of water" from the fire hydrant.

10 At the commencement of the respondent's evidence a detailed statement was identified by him and tendered as being true and correct. The statement was obviously prepared on instructions by his legal advisers. The respondent was then cross-examined for some considerable time by Dr Sadler, who appeared for the applicant. It was at this point that I asked the respondent whether he heard any screech of tyres prior to seeing the front of the blue vehicle next to him when he was approximately level with the pole in Johnston Street. It will be remembered that the pole was 6.38 metres from the intersection. At that point the respondent stated that he did hear a screech of tyres a few seconds prior to seeing the vehicle next to him. When asked why that information was not contained in his statement or he had not mentioned it during the previous cross-examination, the respondent was not able to satisfactorily respond. Further, Dr Sadler, who appeared for the applicant, makes the point that for the first time in cross-examination, the respondent suggested that the blue vehicle was travelling at a high speed. It is noted that after the transport accident, the applicant had a telephone conversation with a police officer which obviously found its way into the description of the accident by the police officer. In that description, the police officer who was the maker of the report, stated :

Veh 1 travelling north in Gore St & intending to turn left. Veh(2) unknown, travelling Sth & intending to turn right into Johnston. Veh(1) began to turn as did veh(2). Veh(1) had to swerve to avoid collision with Veh(2) & in doing so hit fire Hydrant. No collision between Veh(1) & (2).

11 It will be noticed that the report suggests that vehicle 1 and vehicle 2 moved from the intersection together which is different to the way the story was told by the respondent to the Tribunal.

12 In a report to the respondent's insurers declared by the respondent on 15 June 1999, the respondent stated :

Travelling North in Gore Street. I stopped at Johnston Street to turn left. A car opposite me (facing south on Gore) was waiting to turn right. I waited for gap in traffic & turned. As I straightened up the car opposite me made his turn, encroaching on my lane & forcing me to swerve to avoid him. Front left corner of my car hit hydrant as I stopped breaking headlight and fire hydrant.

13 It will be noticed that the respondent in all his prior statements makes no mention of screeching tyres from the blue vehicle nor does he make any mention of the speed of the blue vehicle.

14 It would appear that for the blue vehicle to be in the position described by the respondent immediately prior to the respondent taking evasive action, it would have had to have travelled approximately 20 metres. The respondent stated in his evidence that he last saw the vehicle stationary when he was approximately 1 metre into his turn. Therefore, in the same distance as the respondent would have travelled, 5.83 metres, the other vehicle would have travelled 20 metres. Bearing in mind that the other vehicle would have had to have moved from a standing start while the respondent's vehicle was moving, in my view the respondent's version of the story seems highly improbable. I make this conclusion on the basis that I have been driving a motor car in excess of 40 years. I pointed this fact out to Mr Noonan when he was making his final address in the hearing before me. I informed him that pursuant to s 98 of the Victorian Civil and Administrative Tribunal Act 1998 I may inform myself of any matter I see fit.

15 In my view, evidence about screeching of tyres and speed of the other vehicle are extremely important and it would be highly unlikely for any person in the position of the respondent to leave such matters out in making statements. Thus, I gained the impression from observing the respondent in the witness box that he was less than truthful and I should be circumspect as to the matters contained in his evidence.

16 Mr Noonan submitted that even if I were to discount the matter of the screeching of tyres from the respondent's evidence, I should still accept the balance of his evidence and find that, on that basis, there was no fault in his action in trying to avoid the blue vehicle and thereby hitting the fire hydrant. Mr Noonan also said that the events surrounding the accident all happened very quickly and I should take this into account when examining its circumstance. I do not accept this submission because if the respondent was prepared to embellish his evidence in relation to the matter of the screeching of tyres and the speed of the other vehicle, I certainly could not be satisfied that the rest of his evidence was truthful. I am fortified in this view by the fact that it is highly improbable that the blue vehicle could have travelled the distance of 20 metres in the time suggested by the respondent.

17 In my view, it is likely that the applicant would and did see the blue vehicle starting to make its turn at the time or before the respondent started to make his turn. Further, the respondent stated in his evidence that he saw vehicles travelling east along Johnston Street. This should have put the respondent on alert that it was likely that the blue vehicle would be travelling at a higher speed than the respondent in order to avoid those other vehicles. Under those circumstances, the respondent should have kept a careful watch on the movements of the blue vehicle and, in my view, it was reasonable to expect that he would have kept such a careful watch as to ensure that that vehicle would not at any time while makings its turn encroach on the path to be taken by the respondent. The respondent was in a good position to take evasive action because he did not have to avoid any vehicles travelling in a westerly direction because those vehicles were stopped at the lights of Smith Street which was east of the intersection of Gore Street.

18 Mr Noonan also relied on Regulation 603(3)(a) and (b) of the Road Safety (Traffic) Regulations 1998 SRN 30/1998 for the proposition that the blue vehicle, in failing to give way to the respondent's vehicle, when the blue vehicle was making a right hand turn and the respondent's vehicle was making a left hand turn was in the wrong. That Regulation reads as follows:

603(3) At an intersection, the driver of a vehicle who intends to turn, is turning, or has turned -

(a)

to the right - must give way to

(i)

any other vehicle which has entered or is approaching the intersection from the opposite direction ....

(b) to the left - must give way to any other vehicle except a vehicle, the driver of which intends to turn to the right ...

19 Numerous authorities were cited by Dr Sadler in support of the undoubtedly correct proposition that just because a driver has the right of way does not mean he can ignore the other driver and the fact that the regulations favour one driver over the other is only a factor to be taken into account in determining the negligence of the drivers. The High Court in Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424 at 427 stated :

These regulations in nominating the vehicle which has another vehicle on its right as to the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves : nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duties under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.

20 Similar sentiments were mentioned by the High Court in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 68.

21 In Scholten v Bithell (1988) 8MVR 295 ff Bollen J with whom King CJ and Matheson of the Supreme Court of South Australia agree, stated at 297 ff :

The appellant did not see the respondent's vehicle before the collision. She could not say that she had looked into or towards the bus lane. She was plainly negligent. She should have been vigilant against the possibility of a car's coming, albeit contrary to law, in that lane. As Dixon J said 40 years ago of the need for general vigilance even against the possibility of someone approaching in defiance of the law, 'for laws may speak in vain'; SA Ambulance Transport Incorp v Wahlhiem [1948] HCA 32; (1948) 77 CLR 215 at 229 ...

I certainly applaud the recognition of the need to judge conduct by the standard of the ordinary prudent motorist. I fear we may perhaps sometimes forget this. It is well for it to be often said. But, again with all respect, I think that the learned trial judge has failed to give effect to the idea of defensive driving. There was, if I may so say, nothing new about the idea when Wells J first enunciated it as something usefully to be called 'defensive driving' in 1972: Stoeckel v Harpas [1971] 1 SASR 172n. The thing is that Wells J said it so well and brought the idea of reasonable care in driving into sharp and practical relief by his exposition of defensive driving. Perhaps his remarks could equally have attracted the catch words of 'thinking ahead'. If you see a child on the footpath it is not just a child. It is a child who may run into your path. Defend the child and yourself. Drive with even more care against that risk. Thus Wells J And this Court has approved and adopted his Honour's remarks on numerous occasions.

22 In my view, a prudent driver in the position that the respondent found himself in at the intersection of Gore and Johnston Streets, Fitzroy, would and should have anticipated the fact that the blue vehicle would have moved quickly across Johnston Street and could possibly have impeded his path after he (the respondent) had made his turn into Johnston Street. Given the circumstances which I have found, the respondent should have been aware of the movements of the blue car at all times while making his turn. In not being aware of those movements, in my view, the respondent was negligent in failing to keep a proper lookout. That is not to say, of course, that the driver of the blue car was not negligent as well. What I am saying is that the respondent was at least, in some degree, responsible for the position he found himself in, when he alleges that he was forced to diverge to the left, which resulted in the collision with the fire hydrant which in turn resulted in the flow of water from the fire hydrant to the applicant's premises. Mr Noonan conceded on behalf of his client that should I find the respondent at least in part was at fault for the circumstances in which he found himself in while driving, then the requirements of s16 of the Water Act 1989 would be satisfied and, as such, his client would be liable for causing an unreasonable flow of water on to the applicant's premises.

23 Having made this finding, I am not required to examine this matter further, but because the question of whether in circumstances where there was no negligence on the part of the respondent was argued before me at length by both parties, in my view, it is desirable that I consider that question

24 Mr Noonan after referring to s 16(1) referred to s 19(9) and said that I must apply "to the questions of causation and remoteness of damage the same test as a Court would apply to those questions in an action based on negligence". Mr Noonan then submitted that in determining the issue of causation, the Tribunal is statutorily charged with the function of assessing the issue of causation by the application of the relevant common law test which would be applicable in an action based on negligence. Mr Noonan supported this argument by reference to the High Court case of March v E & MH Stramare Pty Limited And Another [1991] HCA 12; (1991) 171 CLR 506. At 515-517 of that decision, Mason CJ said as follows :

The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sens to the facts of each particular case', in the words of Lord Reid: Stapley (42). That proposition is supported by a long line of authority in the United Kingdom: .... It is supported also by this Court's decision in Fitzgerald v Penn (48).

It is beyond question that in may situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the 'effective cause' of the relevant damage reinforced the notion that a question of causation was one of fact and, as such, to be resolved by the application of common sense.

Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the 'but for' test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: ... It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: ... However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (49) 'it is all ultimately a matter of common sense' and '[i]n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula' (50),

The 'but for' test gives rise to a well know difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test 'gives the result, contrary to common sense, that neither is a cause'. .... In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury. .... The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the result which it yields must be tempered by the making of value judgments and the infusion of policy considerations. That in itself is something of an irony because the proponents of the 'but for' test have seen it as a criterion which would exclude the making of value judgments and evaluative considerations from causation analysis.

25 The view of the Chief Justice was supported in March's case by the other judges.

26 After referring to numerous other authorities, Mr Noonan concluded in relation to the question of causation by saying :

The common law test of causation which the Tribunal is required to apply involves the notion of identifying whether any act or omission on the part of the Defendant [sic] applying concepts of common sense and experience, affected by considerations of policy and value judgment relevantly 'caused' the unreasonable flow of water.

27 In answer to this submission, Dr Sadler submitted :

This is not a negligence case. The claim is not available to the Applicant - negligence claims have been abrogated if a claim can be brought under s 16 (see s 17(1) and Coles Myer v City West Water (1998) 14 VAR at 42 per Gillard J). Section 16(1) does not require the applicant to establish fault, blame or breach of a duty of care. Section 16(1) attributes liability based on causation independently of fault.

28 In the Coles Myer case referred to by Dr Sadler Gillard J at p 42 said :

If each constituent element in the proof of the statutory cause of action is established, then the victim of the water caused injury, damage or loss, is confined to the statutory cause of action and any common law cause of action based on the same set of facts is no longer available to the victim. Plainly the exclusion of the common law would cover all tortious causes of action.

29 From an examination of the Water Act as a whole, it appears clear that where the legislation intended the Tribunal to apply the law of negligence, it well knew how to frame such a requirement. Section 20(1)(g) refers to "a degree of care". Section 157 dealing with liability of authorities, makes it clear by sub-section (2) that the flow of water must be caused by "intentional or negligent conduct" (see also Water Industry Act s 74). Section 16(1) of the Act makes no such requirement.

30 Also in support of his submission that s 16 related to a question of negligence, Mr Noonan referred to the decision of Macnamara DP in Turner v Bayside City Council (1999) VAR 130 at 136. There the learned Deputy President stated :

It is important at this stage to keep steadily in mind precisely the question that is being addressed. The applicant relies upon a statutory cause of action in the Water Act. Where the necessary facts are made out, the cause of action under s 16(1) appears to be one of strict liability, that is, it is not necessary to demonstrate any want of reasonable care. The mere proof of causation seems to be enough. Nor are we seeking to answer the question whether the respondents owed a duty of care in accordance with the Common Law tort of negligence to Mr Turner. The issue of 'duty' arises only in so far as the establishment of its existence and breach is the only means whereby it can be said that the respondents 'caused' the flow of water. ...

To ascertain whether a term of this formulation any causal link can be made between the omissions of the respondents and the flow of water, one must ask what duties if any did the respondents come under in the circumstance.

31 In my view, in making the statements to which I have referred in Turner's case, the Deputy President was not importing standard of care or duty of care to be found for a respondent to be liable pursuant to s 16(1) of the Water Act. In that case, the Deputy President was dealing with a question of omission. That is, in what sense can it be said that a person who has done nothing can be liable? He answered this question by finding that there can be liability if a person who has done nothing, if that person had a duty to act and failed to act. This differs considerably from the situation in this case, where the respondent in fact did a specific act which caused him to crash into the fire hydrant, that is, turned the steering wheel to the left. Therefore, rather than giving support to the respondent's case, in my view, Turner's case supports the submission made by Dr Sadler, that s 16(1) of the Act does not require the applicant to establish fault, blame or breach of duty of care.

32 I agree with the submissions made by Dr Sadler and agree that a defence by the respondent that he has acted reasonably and that he is not at fault is no defence pursuant to a claim made under s 16(1). The question that s 16 requires me to answer is whether the respondent caused the flow of water? In this particular instance, I have no doubt in my mind that the flow of water was caused by the respondent turning his steering wheel to the left which caused his vehicle to hit the hydrant. In my view, it matters little whether the respondent acted reasonably in so turning his steering wheel. Had he done nothing but steered the vehicle straight or simply braked, he would not have hit the hydrant. Whether such a course would have meant that the respondent was involved in a motor vehicle accident with the blue car, in my view, is an irrelevant consideration. The section requires there be a nexus between the respondent's driving and the cause of the flow - there was such nexus in this case.

33 This type of case should be distinguished from the situation where by a passive act a person may have caused a flow of water. For example, in the situation in the present case, if the respondent's vehicle had been parked in a stationary position next to a fire hydrant and the blue vehicle had pushed the respondent's vehicle on to the fire hydrant thus causing a flow of water, it could not be said that the respondent caused the flow of water. Such flow was clearly caused by the driver of the blue vehicle. However, that is not the situation here.

34 Thus, to sum up at this point, I find within the meaning of s 16(1) that the respondent caused the flow of water from the fire hydrant, even if there was no negligence on the part of the respondent, and the respondent had acted reasonably at all times.

35 Section 16(1) requires that the flow of water must be "not reasonable". Section 20(1) sets out matters that must be taken into account in all the circumstances to determine whether or not the flow of water is reasonable or not reasonable.

36 The applicant relies on s 20(1)(a) and (e). Section 20(1)(a) deals with whether the actual works that caused the flow was authorised. Section 3 defines "authorised" as follows :

In relation to any act, means authorised (whether generally or specifically) by this or any other Act or by a licence, permit or other authority granted under this or any other Act ....

37 Using that definition of "authorised" clearly the act of the respondent in colliding with the fire hydrant was not authorised.

38 Section 20(1)(e) deals with whether "the uses to which the lands concerned and any other lands in the vicinity are put". In this particular instance, the corner of Johnston and Gore Street and all the surrounding area in Fitzroy is a closely settled built-up metropolitan area and any flow of water outside of designated gutters, or floodways, is likely to cause substantial damage.

39 The respondent submitted that in determining whether the flow of water caused by the respondent was not reasonable, I had to be satisfied that there was a degree of blameworthiness on the part of the respondent. In support of this proposition, Mr Noonan relied on the decision of McNamara DP and Gould SM in Barlow v South East Water Ltd (No 2) [2001] 17 VLR 382. At paragraph 39 of that decision, the Tribunal stated :

Mr Scott submitted that while s 16 and for that matter s 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 s 16(1) derives from having caused an unreasonable flow of water. Proof of intention or negligence is not part of the cause of action. Compare Water Act s157 and the Water Industry Act s 74.

40 In my view, what the Tribunal was getting at in paragraph 39 of Barlow's case is that there may be some circumstances where there can be a flow of water but it cannot be said that the flow was not reasonable in the circumstances. Such circumstances may be an emergency situation, where somebody is drowning and a flow of water needs to be caused in order to save that person's life. In those circumstances, it cannot be said that the flow of water is not reasonable. In the circumstances of this proceeding, it cannot be said that the flow was caused in order to save somebody's life or other emergency type situation. The fact that the respondent shows a course of driving to avoid a motor vehicle accident does not, in my view, make what would otherwise be a flow of water that was "not reasonable" "reasonable". I am not satisfied that the respondent was required to diverge left to save himself from injury or death or even to avoid a collision with the blue car. The view that I have taken is supported by the quotation to which I have referred to in Barlow's case by the words "proof of intention or negligence is not part of the cause of action".

41 Further, in submitting that fault was relevant when deciding whether a flow was not reasonable, Mr Noonan referred to paragraph 15 of a decision of Deputy President Macnamara in Trycala Importers & Wholesalers Pty Ltd v Gromac Imports Pty Ltd & Anors [2001] VCAT 1445. At paragraph 15 the Deputy President stated :

What then of the argument that Section 16 of the Water Act creates some different regime? Mr Kappadath said that the basis for this was that Section 16 creates an absolute liability, unlike the Law of Negligence whose liability is fault based. Certain it is that in making out liability under Section 16 proof of negligence or deliberate wrongdoing is not essential. The liability however is not absolute in one sense because a person who causes a flow of water from the land of one person onto another person, leading thereby to loss and damage is not liable unless the flow of water is unreasonable. The very concept of unreasonableness does introduce some degree a fault based theory of liability under the section. However, in my view, that is neither here nor there. (Emphasis supplied)

42 The Deputy President makes it clear in the quotation from the Trycala case that for the purposes of s 16, proof of negligence or deliberate wrongdoing is not essential. He then goes on to make some qualification to that principle. It would appear to me that that qualification relates to the situation with an independent contractor. That is not relevant to the situation that was before me.

43 Thus, I do not accept the respondent's submission that if the respondent was blameless, the flow of water should not be characterised as "not reasonable".

44 In considering whether the flow was not reasonable, I not only take into account the matters put by Dr Sadler on behalf of the respondent to which I have already referred but I also take into account the evidence of an expert, Mr Macleod, who made it clear that there was a substantial flow of water of at least 32 metres vertically for at least an hour and dropping 27 times greater than a 1:100 year flood event, which was outside normal drainage structures or floodways. In those circumstances, it cannot be said that the flow was reasonable.

45 Dr Sadler also submitted that the flow was unreasonable because it was uncontrolled and it took emergency services from the Fire Brigade and City West Water to abate the flow. Dr Sadler, correctly sums up the relationship, if any, between the flow being "not reasonable" and whether there needs to be some element of blameworthiness for the flow to be not reasonable. He submitted :

The question is - is the flow 'not reasonable'. The question is not - is the flow 'reasonable or not reasonable'. If blame is relevant to make the flow more likely to be 'not reasonable', the absence of blame cannot operate to make an otherwise 'not reasonable' flow into a 'reasonable' flow. It cannot do so because the question is not whether it is a 'reasonable flow' but whether it is a 'not reasonable flow'.

The logical inquiry is to look at all the factors that make the flow a 'not reasonable flow'. After having undertaken that inquiry the applicant has either established its case that the flow is 'not reasonable' or not. The Respondent cannot say - that an otherwise 'not reasonable' flow is a 'reasonable' flow because he is not to blame for it (because the Applicant need not prove blame to establish that the flow is 'not reasonable'). Only if the applicant relies upon blame to establish the fact that the flow was 'not reasonable' can the respondent challenge whether he was to blame or not, but he cannot rely on the absence of blame as other than countervailing the applicant's case that the flow was 'not reasonable' in part because he was not to blame for it.

The absence of blame therefore is not a factor which on its own can transform a flow which is 'not reasonable' into a 'reasonable' flow.

46 Mr Noonan in reply to the above submission by Dr Sadler stated that the proposition cannot be right because of what the Tribunal stated in Barlow's case. However, as I have previously stated, the Tribunal in Barlow's case was not suggesting that the applicant proved blameworthiness on behalf of the respondent. What it was doing was to create a defence that in an emergency situation, the respondent may not be to blame.

47 Under those circumstances, I accept the submission made by Dr Sadler and find that, in this particular instance, it is not incumbent upon the applicant to show blameworthiness on the part of the respondent for the flow of water in order to show that the flow of water was "not reasonable".

48 Thus I have come to the conclusion that even if there is no blameworthiness on the part of the respondent, that the respondent caused a flow of water that was not reasonable within the meaning of s 16. Under those circumstances, the applicant has made out its case in respect of liability.

49 At the outset of this proceeding, Dr Sadler made an application which was not opposed for the name of the applicant to be amended from "BE & D Mauby Pty Ltd" to BE & D Mawby Pty Ltd. I agreed to make such order, which I will now formalise.

50 In this proceeding I have formed the view that the respondent was negligent in colliding with the fire hydrant and, as his counsel conceded, that if I found some degree of negligence on the part of the respondent in colliding with the fire hydrant, liability would then be established on the basis that the respondent caused a flow of water that was not reasonable pursuant to s 16, liability attaches to the respondent. In any event, I also find that even if there was no negligence on the part of the respondent and his action was reasonable in the circumstances, he still caused a flow of water which was not reasonable within the meaning of s 16 of the Water Act 1989.