Background
In September 2017, a water main operated by Hunter Water Corporation ruptured and flooded a downhill townhouse complex. Hunter Water had excavated around the main while investigating an apparent leak and left the pipe uncovered overnight. Removing the surrounding soil deprived the pipe of support that ordinarily counteracted its internal water pressure, and the pipe had some form of structural weakness. It ruptured as pressure rose while reservoirs refilled in the early morning.
The owners corporation and lot owners sued in private nuisance, negligence and under the Hunter Water Act 1991 (NSW). The primary judge upheld the nuisance claim but rejected the negligence and statutory-compensation claims. Hunter Water appealed the nuisance ruling and costs order; the owners cross-appealed concerning their unsuccessful claims.
The Court’s Holding
The Court of Appeal dismissed Hunter Water’s appeal. Applying Hunt Leather Pty Ltd v Transport for NSW, it held that carrying water and maintaining or repairing water mains were common and ordinary purposes. Hunter Water nevertheless failed to prove that its uses of the relevant land were “conveniently done,” because it did not show that the means it adopted reasonably minimised the real risk of catastrophic interference with the owners’ land. It also failed to establish that a latent manufacturing defect caused the rupture.
Section 43A of the Civil Liability Act 2002 (NSW) did not apply. Although excavation of the reserve involved a special statutory power, Hunter Water’s nuisance liability was based on leaving the excavated pipe exposed while water pressure increased, not on exercising or failing to exercise that power. Running water through its own main was an incident of ownership and did not require a special statutory power. The Court also upheld the primary judge’s costs discretion, dismissed the owners’ cross-appeal as unnecessary, and ordered Hunter Water to pay the appeal costs.
Key Takeaways
- Once a plaintiff proves substantial interference with ordinary use of land, a defendant relying on a common and ordinary purpose bears the burden of showing that its use was conveniently done and reasonably minimised the interference.
- A defendant cannot avoid nuisance liability merely by alleging a latent defect; Hunter Water bore, and failed to discharge, the burden of proving that such a defect caused the rupture.
- Section 43A applies only when the asserted tort liability is based on exercising or failing to exercise a special statutory power, not merely when the events involve such a power.
Why It Matters
The decision applies the High Court’s recent reformulation of private nuisance in Hunt Leather and clarifies the burdens borne by defendants whose common and ordinary land use substantially interferes with neighboring property. Infrastructure operators must be able to demonstrate that their chosen methods reasonably reduced foreseeable risks, even when their broader activity serves an ordinary or public purpose.
The judgment also draws an important boundary around statutory-authority protections: a public corporation does not obtain the heightened protection of Civil Liability Act s 43A simply because statutory powers appear somewhere in the factual background.