Turner v Bayside City Council [2000] VCAT 399

Turner v Bayside City Council [2000] VCAT 399 - VCAT 2000 case summary — Zoe

[24]

11. The next question is whether there was a flow of water from the land of one person to the land of another person. Mr Turner said that the water came out of the drain in his atrium/courtyard "like a fountain". This evidence was not disputed. Clearly there was a flow of water. The only locale plan placed before me was the sketch plan of the drain already referred to. It seems that Mr Lang's company erected two units on No. 211 and 213. The sketch plan shows what appears to be an easement drain running along the back of properties at 201 to 213 Dendy Street. Those properties seem to abut the rear of properties situated in Sarah Avenue. Whilst there was no evidence of this, it is reasonable to infer and I do infer that the drain received water from a number of properties in Sarah Avenue and Dendy Street. A number of pits are depicted including pits in Dendy Street. The drain is described on the sketch map as "6" pcp". Mr Lang says that he attended with Council's contractors the morning after the flood and saw them open a drainage pit which appears to be at the back of No. 213 Dendy Street according to the plan but was in fact according to Mr Lang located on the other side of the boundary in a school property fronting Dendy Street and another pit actually in Dendy Street itself. Both those pits were according to Mr Lang, chocked with vegetable matter. Photographs were produced which showed this to be the case. Mr Dennis, a Council officer and Mr Gordon an officer of Citywide conceded that the pits appeared to be filled with "mulch". The report prepared by "Merv" on behalf of Citywide said that he "called in experts" and "unblocked drain 60 - 70%". The "experts" seem to be Metropolitan Drain Cleaning Pty Ltd who were contractors to Citywide, though not their usual contractors. Metropolitan's invoice described their work on the Saturday morning as "supply water jet and crew to unblock 225 COMCSWD at rear of 211 Dendy Street Brighton ...". "Merv's" report states "sucker required". A "sucker truck" furnished by Citywide's usual contractor attended on 28 January and completed the clearance. A notation on a request for works faxed by "Tania" to Citywide on 23 January has a notation at the foot "28/1/98 jetting and root cutting of easements (Flexible)", "Flexible" is the name of the company which is one of Citywide's usual eductor truck contractors. Mr Lang on the morning of the flood took a number of photographs of a large tree stump in the back of No. 213 Dendy Street. Mr Gordon of Citywide said that it is possible that the blockage of the drain was caused by a combination of circumstances including root invasion and a collection of vegetable material. The roots would tend to hold any vegetable material which might seek to flow through the pipes and intensify the blockage. He said that "Eductor" trucks have hoses which are passed down the drain pipe and then dragged back by the use of water pressure to extract the blockage. Some units have cutters attached which can cut invading tree roots. Some trucks have a vacuum system which by the use of suction can extract the material creating a blockage in a drain. Mr Gordon inferred that the Metropolitan unit which attended on Saturday morning did not have a suction unit and hence the "Flexible" unit was required to attend the following week to complete the job.

[25]

12. Mr Lang said that in addition to the drain intake in the courtyard/atrium area from which the back flow occurred, all of the down pipes on Mr Turner's property entered into the easement drain. Mr Roberts on behalf of Bayside submitted that it was not sufficient to demonstrate this element of the cause of action to show that water emanated from a pipe on the applicant's property. It had to be shown that the water had come from some other land. It is perhaps one of the curiosities of this proceeding and another surprising omission that there has been no evidence as to whether any other back flows occurred from the relevant drain. It seems likely that if any other property had been affected I would have heard about it but it would be wrong to be too downright in that conclusion. Is it possible that all of the water constituting the "fountain" which occurred at Unit 2 No. 211 came from that property's own down pipes. If that were the case, this vital element of the cause of action under Section 16(1) would not be made out. The evidence to which I have already referred, including the scrappy sketch map and the taking of measures at the two pits described by Mr Pit which seems to have alleviated the flood, demonstrates on the balance of probabilities that the flood was caused by a blockage of the "easement drain" as the notations on Council and Citywide documents suggest. It is reasonable to infer, as I have already indicated I do, on the balance of probabilities that this drain received stormwater from a number of different properties in Dendy Street and Sarah Avenue. In the absence of any engineering evidence it must remain a mystery why, if it is the case that the back flow occurred in Mr Turner's property and Mr Turner's property alone, other properties attached to this easement drain did not suffer back flows or at least back flows so serious as to create property damage. Nevertheless, in the circumstances I think it reasonable to conclude that at least some or perhaps most of the water which back flowed in Mr Turner's property came from the other properties attached to the drain. If this is correct then this back flowing water flowed from those other properties and through the median of the drain pipe caused a surface inundation in Mr Turner's property (cf Murray Goulburn Co-operative Co Limited v Leongatha Water Board (1996) 11 VAR 205, 210).

[37]

22. Mr Roberts on behalf of Bayside, conceded that his client had a responsibility to maintain the drain. He made this concession in a general sense without explaining what the basis might be for the duty. As previously noted there is no evidence as to the origins and history of this drain. The sketch map refers to "Plan No. 2322". It may be that research in the archives inherited by Bayside from its predecessor municipality or a cellar search at the Office of Titles may have disclosed more about the circumstances in which this drain was constructed. Unfortunately none of this was done. Section 651 of the repealed Local Government Act 1958 (a provision apparently dating from the Local Government Act 1921) empowered councils to construct drains amongst other places in drainage easements where "in the opinion of the Council it [was] necessary that a drain ... be made or constructed ... for the proper drainage of any land or premises". Sub-section (5) provided that on completion of the drain "the council shall be thenceforth be liable for any cost of maintenance, repair, alteration or reconstruction thereof". The Local Government Act 1989 contains no equivalent provision. Section 198 of that Act vests "public sewers and drains" in the Council within whose municipal area they are situated, except for sewers and drains vested in another Council, a Minister or a Crown or a public body. Drainage is one of the functions given to Local Government councils pursuant to Section 8 in Schedule 1 of the Act. In accordance with general principle it might be that the liability to meet the cost of maintenance of drains constructed pursuant to Section 651 of the 1958 Act and its predecessor is an accrued liability which survived the repeal of the 1958 Act. On the other hand the historical material which would enable me to conclude with some confidence that this drain was subject to Section 651 is simply lacking. In the end I am left with the general concession made by Mr Roberts and the evidence and cross-examination given by Mr Dennis, an officer of the Council, that this drain was a Council drain.

[44]

25. Mr Gordon who gave evidence on behalf of Citywide, said that there had been constraints on the proactive cleaning of pipes dictated by budgetary considerations of Bayside Council. Mr Lang said that the two pits which he saw opened were chocked with vegetable matter and the photographs seem to bear that out. The blockage must have been a serious one because it was cleared only after the attendance of two specialist units, the first on Saturday and the second on Wednesday. Had the pits been kept clear and had the pipes been cleaned as required in the agreement with Citywide, no flood would have occurred. The photographic evidence and the extent of work required to clean the rain suggests this drain had not been maintained for many years. I draw that inference with the greater confidence in light of the respondent's unexplained failure to call any evidence as to the drain's maintenance history. Perhaps more pertinent, had Council acted on 23 January, the flood would not have occurred. Mr Dennis said that the Council had a policy of seeking to avoid placing people in queues. Persons calling with complaints about drainage matters might speak directly to a Council officer; they might be referred to an employee of Fisher Stewart Pty Ltd, a firm of engineers which was conducting certain assessments for Council and also providing a "shop front" facility for Council with its own employees on site; or a caller might be put through directly to the contractor Citywide. By lunchtime on 23 January Mr Lang had made both telephone and personal contact with Ms Tania Ipavec. Ms Ipavec was at that time an employee of Fisher Stewart but was providing the "shop front" facility at the Council's premises. No point has been taken as to the fact that Ms Ipavec was an employee of Fisher Stewart. It was she who despatched a works request to Citywide. Moreover, Mrs Turner had spoken first to an unidentified man at the Council and secondly to "Junelle". There was it seems at that time an administrative assistant with the given name "Junelle" at the Citywide offices. The number of contacts mentioned indicate that the Turners and Mr Lang perceived that there was a threat to property. Certainly Council seems to have seen it that way. On the request for works which was despatched it seems about 2.48 on the afternoon of the 23rd, Ms Ipavec stated, amongst other things:

[47]

26. Mr Roberts submitted by reference to extensive evidence that in the circumstances Council had done all that was required of it in placing the matter in the hands of competent contractors and making timely requests of those contractors to take action. It is well established in cases brought under the tort of negligence that a party who places a matter in the hands of competent independent contractor will not be liable for negligent acts of that contractor and will generally be regarded as having discharged his, her or its duty unless the duty in question is regarded as a non-delegable one. On further reflection however this is not the appropriate analysis. The question is not whether Council has acquitted itself of a duty to take reasonable care by delegating the performance of its duties to a competent contractor but whether in the circumstances Council is to be regarded as having "caused" the damage. Once it is accepted as it must be for reasons that I have given, that Council had a duty to keep the drain clear, there is no reason why that duty should be treated differently as an obligation under a contract, namely one which must be fulfilled and for which the principal having the duty is responsible. If the duty is not performed because of the failure of the contractor, recompense for the liability to which the principal is exposed is a matter between the principal and the contractor. If Council's liability depended upon taking "reasonable care" it did not do so. Ms Ipavec's fax shows she saw the threat and the urgency. She did not however secure any assurance that Citywide would deal with the matter within any particular time frame. She said she assumed the matter would be dealt with "in 24 hours". The evidence of Mr Dennis of the Council and Mr Gordon of Citywide shows that this might mean no action would be taken till the following Tuesday. Mr Gordon the contract co-ordinator developed a works request that included an emergency call out priority but did not ensure that all persons (such as Ms Ipavec) dealing with drainage complaints had a request allowing for this high level of priority. Mr Gordon of Citywide said he took "high priority" to mean next business day. Only a request styled "emergency call out" would require same day service.

[49]

28. To hold the Council responsible does not however exclude the possibility that Citywide may also be liable under Section 16(1) of the Water Act. Citywide may be liable if it can be said that it caused the flow of water and the damage since by the very nature of legal causation as explained in Medlin's case the finding that the Council "caused" the flow of water and the damage does not preclude a finding that it was also caused by Citywide. As between the Council and Citywide the responsibility for proactive maintenance and emergency service lay upon Citywide in accordance with the contract to which I have already made reference. I heard extensive evidence from Mr Dennis the contract co-ordinator with Bayside City Council and Mr Gordon one of the executives of Citywide involved in the administration of the contract. I also heard evidence from Ms Tania Ipavec who it will be recalled was an officer of Fisher Stewart Pty Ltd, providing a "shop front" service at the Council's premises. There was no unanimity amongst these witnesses as to precisely what time response standards Citywide had to meet for work other than routine programmed maintenance. Ms Ipavec said that she understood the works request which she filled out to have required the work to be carried out within 24 hours. She was not asked whether "24 hours" meant on the next business day or simply 24 hours from the date of the request. Mr Dennis was of opinion that the matter should have been responded to in two hours based upon the fact that there was a threat to property. Mr Gordon said that according to his understanding, since the matter was not designated an emergency call out, Citywide was acting properly in deferring action till the next business day, which was its initial decision, until after a further call was made following the flood. None of the witnesses suggested that the table of response times to be found in Clause 22 of the relevant part of the contract was to be regarded as applicable. Both Mr Dennis and Mr Gordon accepted to one degree or another that the parties had always treated those standards as impracticable. Whilst monthly contract meetings considered these issues on and off over a long period of time, a substitute set of time response standards was not "signed off" until March this year. As at January 1998 the situation seemed to be that the parties had abandoned the table found in the contract but had agreed upon no substitute. The matter was therefore at large and in the circumstances it seems to me Citywide's responsibility in any particular case depended upon the particular circumstances. The request for works which was despatched on the afternoon of the 23rd asserted that there was potential damage to property and that there had already been damage to property. Further, it stated that there was a threat of a compensation claim. Mrs Turner said that she did not threaten a compensation claim or say that her property was already damaged. Ms Ipavec has no independent memory of the matter. It may be that the information on the request for works completed by Ms Ipavec which did not come from Ms Turner, came from her interview with Mr Lang. Whether the threat of a compensation claim was made or not, if this compensation claim were only "dreamed up" by Ms Ipavec, she has proved strangely prophetic. Mr Gordon said that he had the request at about 3 p.m. on Friday the 23rd. The first consideration in his mind was that it had not been designated an "emergency call out" but he considered other factors namely:

At a glance

Court

Decision date

Source

Judgment (61 paragraphs)

Turner v Bayside City Council [2000] VCAT 399 (31 January 2000)

Parties

Legislation Cited (4)

Cases Cited (3)