Cox Bros (Australia) Ltd v Commissioner of Waterworks

Cox Brothers (Australia) Ltd and another (the appellants) brought an action against the Commissioner of Waterworks (the respondent) in the Supreme Court of South Australia, claiming damages for nuisance and trespass caused by the escape of water from a burst water main. The appellants alleged that the respondent had failed to properly inspect and maintain the water pipes, and that there was no adequate system for detecting or remedying leaks, leading to significant damage to their premises.

The central legal issues before the High Court were whether the respondent was liable for the damage caused by the escape of water without proof of negligence, and if negligence was required, whether the evidence established that the respondent had been negligent in the management and maintenance of the waterworks undertaking. Specifically, the court had to determine if the respondent had omitted any reasonable precautions that could have averted the damage altogether, or if they were negligent in failing to reduce the water pressure or shut off the water supply sooner after the leak was discovered.

A majority of the High Court, comprising Rich, Starke, Dixon, and McTiernan JJ., held that the respondent was not liable for the damage unless negligence was proven. The court reasoned that the respondent, acting under statutory authority, was not an insurer against damage caused by the escape of water. The majority further found, with Starke and Evatt JJ. dissenting on some points, that the evidence did not establish negligence on the part of the respondent. They concluded that the respondent had taken reasonable precautions in the management and maintenance of the undertaking and that the evidence did not demonstrate a failure to act with reasonable care in reducing the water flow or pressure to avert the damage. The court affirmed the decision of the Supreme Court of South Australia.