For the First Respondent: Mr M. Roberts of Counsel instructed by Phillips Fox

For the Second Respondent: Mr Richard Attiwill of Counsel instructed by Gradens Lawyers (incorporating Purves Clarke Richards)

1. This proceeding is yet another illustration of the law's apparently limitless ability to throw up difficult questions from apparently straightforward fact situations involving relatively modest sums of money.

2. Mr Turner is the owner and occupier of Unit 2, 211 Dendy Street, Brighton. On the evening of 22nd of January 1998 Mr Turner returned home to find a washaway in a courtyard atrium area in his unit. He spoke to a Mr Michael Lang, who was the builder and developer from whom Mr Turner had bought his unit. Mr Lang says he attended the premises with the plumber who had worked for him in the construction of the house. The plumber told him that the flooding did not arise from any difficulty with the drains within the boundaries of the property. Mr Lang concluded that the problem lay with the "easement drain" which ran through an easement at the back of the property and ultimately discharged water into a Council barrel drain under Dendy Street. As a result of this conclusion both Mrs Turner and Mr Lang made contact with the Bayside City Council the following morning, 23 January. Mrs Turner said that she spoke to an unnamed male officer at the Council about 9.05. Shortly afterwards with the thought that she should receive confirmation of the identity of the person to whom she had made her report, she rang a second time and this time spoke to someone who identified herself as "Junelle". Mr Lang the builder/developer said that he spoke to someone called "Tania" at Bayside City Council. Mr Lang attended the offices of Bayside City Council at Bluff Road, Hampton and spoke to Tania sometime between 11.00 and 1.00. Following this conversation Council sent a facsimile transmission headed "urgent" and dated 23 January 1998 to Mr Lang over the signature "Tania" in the following terms:

I have asked Council's maintenance contractor, Citywide, to clear the rear easement drain at the above property. I have requested that they consider this request urgent and I suggest that should you have any queries regarding programming of the works, you contact Citywide directly on 9583-0877."

Mr Lang says he received the transmission only after a further query the following Tuesday 27 January 1998. It bears a notation "refaxed 27/1/98".

3. 23 January was the Friday before the Australia Day holiday weekend. Ordinary business did not recommence until Tuesday 27 January. No action was taken either by the Bayside City Council or the contractor referred to on 23 January. Over the weekend there was a serious downpour and according to Mr Turner, water emanated from the drain grate in the courtyard/atrium area in his property and flooded his house, doing damage which was assessed by Mr Paul Sims of Fox National Chartered Loss Adjusters in the sum of $23,521.70. Mr Lang was once again summoned and representatives of Council's contractors unblocked what is described as an "easement drain".

4. Mr Turner has brought this proceeding against Bayside City Council and its contractor Citywide Service Solutions Pty Ltd seeking to recover $23,521.70, the cost of the damage sustained to his house as a result of the flood. The claim was originally framed under the Common Law principles of negligence, Section 157 of the Water Act 1989 and Section 16(1) of the Water Act 1989. The first two grounds were abandoned because this Tribunal has jurisdiction to grant relief based on the Common Law of negligence only in the case of an escape of water from a private dam and because neither of the respondents is an "authority" for the purposes of Section 157 of the Water Act. The claim ultimately was pressed only on the basis of Section 16(1) of the Water Act.

5. The proceeding was startling for the evidence which was not called. No party called any engineering evidence. No documents of title were put into evidence. The applicant's case was that the damage was caused by "back flow" from a Council drain. The only depiction of that drain placed before me was a sketch map which was obtained by the applicant upon discovery from Bayside City Council. The correct interpretation of a number of lines on this sketch map was less than self-evident. Mr Lang who was present when contractors cleared the drain, the morning after the flood, called into question the location of one of the pits which was opened. A marking on the map appeared to suggest that it was to be found to the rear of No. 213 Dendy Street. Mr Lang said that in fact this pit was located on the other side of the title boundary and in the grounds of an adjacent school. None of the individuals involved in clearing the drain was called as a witness.

6. There was even some uncertainty as to the night on which the flood took place. In their viva voce evidence Mr and Mrs Turner both said that the flood occurred as a result of a downpour of rain occurring late on Saturday night and in the early hours of Sunday morning, that is, on the 24th and the 25th of January and that Council's contractors cleared the drain on the morning of the 25th. In his written statement which Mr Turner swore was true and correct, he referred to the flooding incident which occurred on Thursday and stated:

"Following the initial flooding there was heavy rain again within the subsequent 24 hours."

This suggests that the flood took place as a result of a downpour late Friday night and early Saturday morning. The invoice from the contractors who attended, namely Metropolitan Drain Cleaning Pty Ltd, suggested that the drain was cleared on Saturday morning. Likewise, records from Citywide Service Solutions Pty Ltd suggest that one of its employees, known only as "Merv", attended and unblocked the drain with the assistance of Metropolitan on 24 January. I conclude that the flood took place in the early hours of Saturday morning and that the drain was unblocked on Saturday morning.

7. Section 16(1) of the Water Act 1989 provides as follows:

(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."

8. Both respondents say that the applicant has not demonstrated that there has been a flow of water from the land of one person to any other land, nor has it been demonstrated that either of them caused the flow.

9. The respondents conceded that to make out the statutory cause of action, it was not necessary to show that the flow of water had been from the land of the person sought to be held liable. This concession was correctly made. See Coles Myer Limited v City West Water Limited [1998] VSC 63; (1998) 14 VAR 37, 41 per Gillard J.

10. Nothing was said by any member of Counsel upon the issue of the reasonableness or otherwise of any flow or alleged flow of water. The failure by the respondents to make any submission on this point might be regarded as a concession that if there was in truth a flow of water from the land of one person onto the land of another that flow was unreasonable. In the circumstances however, I feel it necessary to say something as to this issue. The Water Act does not lay down an exclusive set of criteria for determining whether a flow of water is reasonable or unreasonable. Section 20(1) refers to some nine matters numbered (a) to (i). It states that "account must be taken of all the circumstances" including those matters. It is fair to say that the matters referred to in Section 20(1) seem to be directed more to the issue of broadacres, inundation, overflowing irrigation channels and the like than to a situation such as the present. In my view, assuming that there was a flow of water from the land of one person to another, in this instance, the flow was unreasonable. First, if as alleged by the applicant, it came as a result of a blocked drain, it was not "authorised" by any party (cf Section 20(1)(a)). Dendy Street Brighton is a closely settled suburban area and any flow of water outside pipes or designated gutters or floodways is likely to cause substantial property damage (see Section 20(1)(e)). Finally, the flow of water was one which the evidence demonstrates Council employed contractors including an emergency service to prevent.

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.

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).

13. In my view this element of the cause of action has been made out.

14. The evidence of the loss adjuster Mr Simms as to the damage done by the flood has not been called into question and so it is demonstrated that this applicant has suffered damage to real and personal property as a result of the flow of water.

15. The only element of the cause of action which remains in doubt then, is whether it can be said that one or other or both of these respondents caused this "flow of water".

16. In a general sense one might say that this flow was "an act of God" caused by the weather, not by any individual or institution; but causation in law requires only that one matter be a cause of the other. It is not necessary to demonstrate legal causation that the first matter was either the sole or the predominant cause of the second. See Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. Generally it cannot be said that one event is the cause of the other unless the second event would not have occurred but for the first. Nevertheless, not every event but for which a second event would not have occurred is regarded in law as being a cause of that second event. The ultimate criterion of causation in law is common sense. March v E. & M.H. Stranmare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. Reference in Section 16(1) to "the person who caused the flow" is presumably to be read as meaning the person whose acts or omissions caused the flow.

17. Mr Roberts on behalf of the Council and Mr Attiwill on behalf of Citywide submitted that their clients or either of them had not "caused" the flow of water. The only means whereby it could be suggested that the respondents or either of them "caused" the flow of water is either that the Turners accepted assurances of action and abstained from taking other available action to clear the drain or that there is a duty on the part of one or other or both of the respondents to clear the drain and it was their omission to clear it in time that caused the water to flow or to put it another way, but for the omission of Bayside and Citywide to take prompt action, the back flow in the early hours of Saturday morning would not have occurred.

18. There is no evidence that any other means of clearance of the drain was available to the Turners and they did not suggest that any was. The only basis upon which the respondents can be said to be the "cause" of the flow of water is the second view, namely that they were under a duty to keep the drain clear or at any rate, act promptly once a blockage was reported to them.

19. 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 Section 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.

20. Mr Attiwill referred me to an unreported decision of the Court of Appeal in the matter of Lilley v Alpine Resorts Commission (3 April 1998). In Lilley's case the plaintiff was skiing on the "summit run" at Mt Buller Ski Resort when she collided with a snowboarder, suffering physical and psychological injury. She sued the Alpine Resorts Commission and Buller Ski Lifts Limited (the ski tow operator on the summit run) but not the snowboarder. After a lengthy trial the Judge gave a verdict for the defendant. The Judge found that the defendants had breached their duty to the plaintiff in failing to inspect the run and failing to erect a sign or signs. The trial judge concluded that no causal link had been demonstrated. His conclusion was upheld by the Court of Appeal, specifically by reference to a passage from the judgment of Mason J. (as he then was) in Sutherland Shire Council v Hayman [1985] HCA 41; (1985) 157 CLR 424, 467, where His Honour said:

"When there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, a breach of the duty may be regarded as materially causal or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm."

The trial judge concluded and the Court of Appeal agreed that it was not demonstrated that any of the measures suggested would have protected the plaintiff from her injury.

21. To ascertain whether in terms 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.

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.

23. Nevertheless the Council's duties with respect to the drain must be seen in the context of the whole of the evidence. In accordance with the requirement for compulsory competitive tendering of certain services, Bayside City Council entered into contract No. 969710 with Citywide Service Solutions Pty Ltd whereby Citywide contracted to provide certain services including:

* Reconstruction and maintenance of underground drainage system

In Section (f) of the contract dealing with drainage, Citywide undertook the following obligations under Clause 4.2.1:

"All stormwater pipes must be kept free of all debris, silt and other foreign matter to ensure that no blockages or a reduction in the capacity of the pipe to carry water occurs."

"The Contractor shall ensure that all stormwater pipes are inspected and cleaned at least once every three (3) calendar years."

24. In a section of the contract described as "Foreword", under the heading "Complaints Management" Citywide undertook "to provide a complaints management service associated with the performance of the required civil assets". Clause 22 included a table setting out various types of complaint and a "reaction timeframe". Where there is a hazard to public safety, response was required "within 30 minutes". Where there is a "degradation of vehicular or pedestrian traffic" reaction was required within one hour. Where there is a "threat to third part [presumably party] property", response was required "within four hours". There is some dispute as to what operation if any this table ever had. Evidence from both Bayside City Council and Citywide suggested that a somewhat different set of priority times was arranged and acted upon in the course of the operation of the contract. For present purposes it was sufficient however to note that these are the times which Bayside stipulated its contractor should meet as they appear in the written contract. The provisions that I have quoted from the contract suggest a perception by the Council that it should keep its drains clear by way of regular proactive maintenance and where a threat to third party property has been identified it should provide a same day service to deal with the threat. According to the Foreword (Clause 27) normal working hours were 6.00 a.m. to 6.00 p.m.

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:

"Owners had damage to some flooring during last nights (sic) rain as yard flooded. Warned they would seek compensation if flooded again. Please clear and consider this request urgent. They have asked that I fax them letter stating that cleaning drain has been requested."

The priority accorded to the request is "high" on the basis "potential damage to property". It is clear that Council perceived the danger of the situation and acquainted Citywide with its assessment. In the circumstances I believe that Council came under a duty first, to ensure that blockages did not occur in the first place and secondly, when one did occur, to take immediate action once the matter was brought to its attention and a credible risk to property was demonstrated. Council failed to keep the drain clear in the first place and also failed to take prompt action when the threat was made known to it. Of course Council is a legal and not an actual person, it can only act through servants or agents. As it turned out, neither by its servants nor its agents did Council take the necessary action. There was ample opportunity to act. The problem was raised with Council first early on 23 January. "Normal hours" extended to 6 p.m. In January in Melbourne it is light till at least 8 p.m. (summer time).

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.

27. It follows that nothing in the dealings between the Council and Citywide can relieve the Council of its liability under Section 16(1) of the Water Act.

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:

"(a) The request made no reference to the premises being currently flooded;

(c) If the first respondent [that is the Council] wanted us to attend immediately or within a few hours then the usual protocol was that I would be contacted and informed of the situation. I never received such a phone call;

(d) The drainage crew had been busy all day fixing pit lids and cleaning drains;

(e) We had used the Eductor truck all day on clearing a drain at 67 South Road, Hampton. We used the Eductor truck as water had flooded the road and presented a danger to members of the public. I was aware that the first respondent [that is the Council] banned the use of the Eductor truck after hours;

(f) It was not raining and there was only light grey cloud."

Upon the basis of these considerations Mr Gordon decided that the matter could wait till Tuesday. Mr Dennis denied that the Council had "banned" use of the Eductor truck. What he did say was that if an Eductor truck was called for during ordinary business hours then the additional cost of an emergency call out was not allowed for. In addition to the faxed request there is a notation by Ms Ipavec on the works request that she rang "Junelle" on 23 January 1998 "and advised that this request is urgent". The actions of Citywide or rather its omissions must be judged in light of the fact that there was no clear protocol or contractual arrangement then in force between it and the Bayside City Council. In those circumstances it seems to me it was incumbent upon Citywide and Mr Gordon to make an assessment of all the circumstances and not to place undue emphasis upon an allegedly agreed protocol which I have found did not exist. First, it is difficult to attach too much significance to the fact that this works request was designated as a high priority rather than an emergency call out. The request form which was received had no box to tick for an emergency call out. The request was designated with the highest priority which the form allowed. Secondly the table in Clause 22 even if not directly applicable for reasons already given, stated that threats to third party property required a same day response, that is within four hours. Whilst no phone call had been made directly to Mr Gordon, Ms Ipavec had apparently spoken directly to "Junelle". Further, Ms Turner had already spoken directly to Junelle earlier in the day. The cost for the provision of the Eductor truck after the damage had been done was $580. Ultimately Mr Gordon "punted" on the weather. His decision was, in the circumstances, so unreasonable that it is proper in my view to regard Citywide as also having "caused" the flow of water and therefore the damage.

Section 19 of the Water Act

29. I was referred to Section 19(9) of the Water Act which provides that in a proceeding such as this "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". My reference to Lilley's case and Medlin's case and my reliance upon them indicates that I have sought to apply the same tests as to causation as are used in negligence proceeding. No party has sought to raise any issue based on remoteness of damage.

30. There is no claim for contribution made between the respondents in this proceeding. Whilst it would be wrong for me to express a final view on the subject, as at present advised I doubt that contribution proceedings as authorised by the Wrongs Act 1958 are available in proceedings under Part 1 of the Water Act in this Tribunal. If that is right, then two respondents who both have been found liable to an applicant would have to settle rights of contribution between them in separate court proceedings, assuming that Section 17(1) of the Water Act does not deprive the courts of jurisdiction to deal with such matters. An alternative course would be for a respondent seeking contribution from another respondent to bring a claim under Section 16(1)(iii) of the Water Act asserting that the actions of omissions of the other respondent have exposed the first respondent to "economic loss" arising out of an unreasonable flow of water from the land of one person onto other land. If in these hypothetical circumstances the first respondent could be regarded as having suffered economic loss so soon as the facts creating its liability under Section 16(1) occurred, before a final adjudication, the claim as between respondents could be brought concurrently with the principal claim and might perhaps be consolidated with the principal claim pursuant to Section 82 of the Victorian Civil and Administrative Tribunal Act 1998.

31. In the present proceeding there has been no attempt to obtain contribution or indemnity by these or any other means and so it is unnecessary to express any final conclusion on these matters.

32. Mr Simms evidence as to the quantum of damage was not challenged and so I will accept his evidence as to the assessment of the damages suffered by Mr Turner.

33. I have heard no submissions on the question of costs and therefore I will reserve it.