Local Authority Liability for Damage due to Leaky Pipes

Water leaks are becoming commonplace in Wellington. The question is to what extent are local authorities liable when such leaks cause damage to private property? The Privy Council, which oversees Trinidadian appeal cases, recently ordered the Trinidad & Tobago Water and Sewerage Authority (WASA) to pay $2.2 million in compensation to a couple whose home was destroyed by a leaking pipeline causing a landslide. The decision, Water and Sewerage Authority of Trinidad and Tobago v Sahadath [2022] UKPC 56 is instructive for New Zealand. 

Facts

The plaintiffs brought a claim against WASA for negligence, claiming that its failure to repair a leaking pipe between 2012 and 2014 caused a landslip and led to their four-storey home slipping down a 20-foot slope and sinking 12 feet.

They first noticed cracks and sink holes appearing in front of their house in 2012 and saw water rising and collecting in the sink holes. These began to worsen overtime, resulting in cracks and damage to the claimant’s property.

Between 2013 and 2014, the claimants made numerous complaints to WASA. The only potential water under the road was the main water pipeline for the area.

WASA carried out several repairs to the water connection however the problem continued, resulting in WASA replacing the pipeline on the opposite side of the road. However, the house continued to sink and slip down the slope and by 2015 the claimants’ house had moved approximately 20 feet down the slope and sunk by approximately 12 feet and was no longer fit to live in. 

Negligence

The tort of negligence operates where a defendant has been careless in some legally relevant way. A key difficulty plaintiffs have in negligence claims of this nature is proving that the defendant’s breach of its duty caused the damage (a good example being Easton Agriculture Ltd v Manawatu-Wanganui Regional Council, a 2012 decision of the New Zealand Court of Appeal which upheld the Judge’s findings there was no causation – the loss would have occurred anyway).

This case

Here the trial judge held liability was appropriate because it was a direct result of the leaking pipeline. That was supported by the plaintiffs’ evidence, including reports from geotechnical and engineering experts, and there was no evidence from WASA to suggest that the slippage and damage to the house were caused only by another source or heavy rainfall.

Further, in the judge’s view, WASA was either unresponsive or unreasonably slow in responding to the claimants’ complaints, and it was reasonably foreseeable that the leak from the pipeline, if not repaired in a reasonable time would damage the road and make the subsoil vulnerable. It therefore breached its duty of care.

The Court awarded $2.2 million plus interest in damages based on the cost of rebuilding the claimants’ house and consequential losses. That decision was upheld on appeal, and again on a second appeal to the Privy Council.

In the Privy Council, Lord Leggatt noted that “The Court of Appeal concluded that there was no sufficient basis for interfering with the trial judge’s finding that, as a matter of fact, the leaking pipeline caused the damage”. The Privy Council declined to interfere, noting WASA had advanced no positive case or adduced any evidence to suggest the landslip was due to a different cause.  

Comment

With 40% of Wellington’s water seeping away through leaks, according to Wellington Water, we’re seeing more and more cases of serious damage to private property as a direct result of burst water mains and leaky pipes. We’re also seeing homeowners and business increasingly frustrated at a lack of communication and/or delays to planned repairs as crews are pulled away to deal with “more urgent leaks”. This decision suggests councils should be liable if they are negligent in the construction or maintenance of common utilities such as water and sewerage.

Thank you to Isabella Krebs, Solicitor for writing this Insight.