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WATER ACT 1989 - SECT 157

Liability of Authorities arising out of flow of water[31]

    (1)     If—

S. 157(1)(a) amended by No. 17/2012 s. 27.

        (a)     as a result of intentional or negligent conduct on the part of an Authority in the exercise of a function under Part 8, Part 9, Division 2, 3 or 5 of Part 10, or Part 11 or any corresponding previous enactment, a flow of water occurs from its works onto any land; and

        (b)     the water causes—

              (i)     injury to any other person; or

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

              (iii)     any other person to suffer economic loss—

the Authority is liable to pay damages to that other person in respect of that injury, damage or loss.

    (2)     If it is proved in a proceeding brought under subsection (1) that water has flowed from the works of an Authority onto any land, it must be presumed that the flow occurred as a result of intentional or negligent conduct on the part of the Authority unless the Authority proves on the balance of probabilities that it did not so occur.

    (3)     For the purposes of a proceeding brought under subsection (1)—

        (a)     a flow of water is to be taken to have occurred as a result of intentional conduct on the part of an Authority if the flow

              (i)     was designed or intended by the Authority; or

              (ii)     inevitably and without intervening cause resulted from the exercise of a power by the Authority; and

        (b)     in determining whether or not a flow of water occurred as a result of negligent conduct on the part of an Authority, account must be taken of all the circumstances including any omission or failure, in the planning, design, construction, maintenance or operation of the works, to provide reasonable standards of capacity or efficiency or exercise reasonable care or skill having regard to the following matters—

              (i)     the state of scientific knowledge and knowledge of local conditions at any relevant time;

              (ii)     the nature and situation of the works;

              (iii)     the service to be provided by the works;

              (iv)     the circumstances and cost of—

    (A)     the works; and

    (B)     the maintenance and operation of the works; and

    (C)     works which it would have been necessary to construct to avoid the occurrence of any relevant injury, damage or loss.

    (4)     The following provisions apply with respect to a proceeding brought under subsection (1)—

S. 157(4)(a) repealed by No. 52/1998
s. 311(Sch. 1 item 105.22).

    *     *     *     *     *

        (b)     the proportion (if any) of the responsibility of the Authority for the injury, damage or loss must be assessed and only that proportion of the assessed damages must be awarded against the Authority;

        (c)     in assessing damages in respect of damage to property or economic loss the measure of damages is the direct pecuniary injury to the person bringing the proceeding by the loss of something of substantial benefit accrued or accruing and does not include remote, indirect or speculative damage;

        (d)     if damages are assessed in the proceeding in respect of any continuing cause of action, they may, in addition to being assessed down to the time of assessment, be assessed in respect of all future injury, damage or loss and, if so, the Authority is not liable to pay any further damages in respect of that injury, damage or loss;

S. 157(4)
(e)–(g)
repealed by No. 52/1998
s. 311(Sch. 1 item 105.22).

    *     *     *     *     *

        (h)     a person, not being a party, in whose favour a determination is made may enforce the determination by the same means as if the person were a party.



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