Melbourne Water Corporation v Vaughan Constructions Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0053

MELBOURNE WATER CORPORATION	Applicant
v
VAUGHAN CONSTRUCTIONS PTY LTD (ACN 004 334 543) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

---

JUDGES:	SIFRIS, KENNEDY and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2022
DATE OF JUDGMENT:	10 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 241
JUDGMENT APPEALED FROM:	[2022] VCAT 633 (Delany J)

---

STATUTORY CONSTRUCTION – Water Act 1989 (Vic) ss 157(1) and 157(4)(b) – Where Authority ‘responsible’ for injury, damage or loss – Proportionate liability of Authority – Whether ‘responsibility’ of others requires proof of legal liability – Leave to appeal granted – Appeal dismissed.

Water Act 1989 (Vic) s 157.

Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109, Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503, discussed.

---

Counsel
Applicant:		Mr P Solomon KC with Mr R Andrew SC and Mr J McComish
Respondents:		Mr T Margetts KC with Mr J Lipinski and Mr H McAvaney
Solicitors
Applicant:	Wotton + Kearney
Respondents:	Piper Alderman

SIFRIS JA:

I have had the advantage of reading, in draft, the reasons for judgment of Kennedy JA and Walker JA. I agree with Kennedy JA that leave to appeal should be granted but the appeal dismissed, substantially for the reasons which her Honour gives. I gratefully adopt her Honour’s summary of the relevant facts, the legislation, the submissions of the parties and the relevant findings of the primary judge. However, I wish to add a few comments of my own.
In my opinion, a consideration of the text and purpose (so far as such purpose is properly ascertainable) of s 157 of the Water Act 1989 (the ‘Act’), so far as it relates to the proportionate liability of Melbourne Water Corporation (the ‘Authority’), provides support for the reasoning and conclusion reached by the primary judge and Kennedy JA.
The essential aim of s 157 of the Act is to provide compensation to affected parties by those responsible. Those responsible, including the Authority, are liable to compensate the affected party for their share of the responsibility for the loss. No more, no less. Responsibility in this context means legal liability for the loss. All parties legally liable for the loss are subject to a proportionate contribution to compensate the affected party. This necessarily excludes any factual causation (without any legal liability), whether as a result of a natural disaster or otherwise. There is no entity able to provide compensation, the primary object of the section. If the section was intended to capture natural disasters as a means of limiting the liability of the Authority and others, it does not, despite what may be considered a laudable public policy objective, find sufficient support in the text or purpose of the section, despite substantive amendments in the 1950s and a rewrite of the Act in 1989. Although what was intended, in so far as this is able to be discerned, is relevant, the primary consideration must be the text itself, to which I now turn.
The starting point is s 157(1). The Authority is liable to pay damages if a flow of water occurs from its works onto any land and causes injury or damage to person or property (including economic loss). It is important to emphasise and have regard to the following matters:
(a)The flow of water (from its works and causing injury or damage) must be caused by the ‘intentional or negligent conduct’ of the Authority, although this is presumed ‘unless the Authority proves on the balance of probabilities that it did not so occur’ (s 157(2)).
(b)The reverse onus in s 157(2) is further strengthened by s 157(3)(a) in relation to intentional conduct and is qualified by s 157(3)(b) in relation to negligent conduct.
(c)If the onus is rebutted, the Authority is not liable. If, however, the onus is not rebutted, the Authority is liable for damages ‘in respect of that injury, damage or loss’. This is compensatory and enables the ‘other person’ to recover any loss in full.
(d)Sections 157(4)(c) and (d) deal with the assessment of damages.
The proportion of the responsibility of the Authority is not necessarily a later enquiry, but a matter determined as at the time of the assessment of its liability under s 157(1). This follows from the chapeau to s 157(4). It is only liable under s 157(1) (the section uses the words ‘liable to pay damages’) for the proportion of its responsibility. What responsibility? Its responsibility to pay damages because of its liability. The critical question is how the proportion for such responsibility is assessed, in relation to others that are responsible.
There is seemingly no explicit guidance from the section itself (s 157(4)(b)). It does not directly or specifically refer to the responsibility or liability of others and the basis of any such liability. Rather, the focus is exclusively on the proportionate responsibility of the Authority. Therein, however, lies the basis for the determination of the liability of others, that is the use of the word responsibility (in the context of proportionality) as found and repeatedly emphasised by the primary judge. The section is about the comparative responsibility for the compensation of the injured party. It is about responsibility and compensation, and not the inchoate concept of factual responsibility or cause alone.
There is no difficulty in assessing and determining the legal liability, that is the responsibility of the Authority under s 157(1), notwithstanding the reverse onus and other matters referred to in s 157(3). Courts are regularly called on to determine matters of alleged intentional or negligent conduct in numerous different contexts. Determining the proportion of such responsibility is, of course, another matter. However, it must inevitably and logically involve comparative responsibility. To determine the extent to which A is liable, such extent must invite a consideration of the extent of the responsibility of others, such as B, C and D, in order to determine the extent or proportion of A’s liability for the loss.
An assessment of this comparative responsibility must be directed to the liability or compensation payable to the injured party. It assumes and is predicated on the establishment of legal liability, the basis of an order for compensation by A, and depending on procedural matters, B, C and D.[1] This is inherent in the proper operation of the section. To establish A’s proportion, as a percentage of responsibility or liability to make good the loss of the injured party, a like analysis is required. The proportion must be assessed in the same way, and is directed to compensation. This must necessarily exclude a factual causation that does not translate into any legal liability (or responsibility) to compensate the injured party.
[1]In the usual situation, it may be expected that B, C and D will be parties to the proceeding, whether at the instance of plaintiff or defendant or perhaps both.
Reading the text of s 157(4)(b) in the context of the section as a whole, to include factual causation is, for the reasons given, unwarranted, unnecessary and a step too far, whatever the intended purpose of the section (as originally introduced or later amended), which is not entirely apparent from the extrinsic material.
The fact that there is no reference to concurrent wrongdoers or joint tortfeasors (the usual basis of concurrent legal liability), and detailed provisions dealing with practical, procedural and related substantive matters, concepts largely introduced at a later stage,[2] does not in any relevant way undermine the analysis. The analysis arises out of the words used within the framework of the section as I have sought to identify.
[2]Wrongs Act 1958, pt IVAA.
Further, I do not consider that the analysis is undermined by the largely consistent wording of the section from time to time. Both s 277(c) of the Water Act 1958 and s 157(4)(b) of the Act use the words ‘the proportion (if any) of the responsibility of the Authority’. Section 277(c) links responsibility to ‘the cause’ (by use of the word therefor) and s 157(4)(b) links responsibility to ‘the injury, damage or loss’. This is a distinction without a relevant legal difference. The word ‘responsibility’ remains, and indeed appeared in the Water Act 1954 and the Water (Compensation) Act 1956. If the decision to omit the word ‘cause’ has the supportive effect referred to by the primary judge and Kennedy JA, there is, in any event, no basis to conclude that ‘cause’ in s 277(c) included, by mere reference to the word, factual causation without any legal liability.
In my opinion, the primary judge was correct to regard responsibility as critical and properly a concept that extended beyond factual cause but, of course, embracing it. It is legal responsibility for the reasons explained by Kennedy JA.
There is no authority directly on point. Cases under the Wrongs Act 1958 and cognate legislation must be regarded with considerable caution. The question that this appeal raises, although important, is ultimately able to be dealt with by recourse to the well-known rules of statutory construction. As set out above, it is not that the text is unclear, but rather that it does not specifically deal with the position of the other parties responsible for the loss. However, for the reasons given by Kennedy JA, a natural and proper construction of the section compels a conclusion that factual causation is not enough, and although required, must be assessed on the basis of the scope of liability, the critical matter that transforms such factual causation into legal liability to provide compensation to the injured party, or to limit the compensation, relating to the very same loss, the liability of the Authority.
Legislation limiting the liability of concurrent wrongdoers to the proportion of their responsibility for the loss is a fairly recent development in the law. It was considered unduly harsh in imposing the full extent of the plaintiff’s loss on one defendant — usually solvent and insured — who might have only played a very minor role in causing the loss. Instead of relying on the defendant to recover from the other concurrent wrongdoers by way of contribution, which very much depended on the financial position of those parties, the new policy limited the defendant’s liability to the plaintiff to the extent of that defendant’s responsibility for the whole of the loss. The risk of recovery was transferred to the plaintiff. However, as the proportionate liability provisions developed in other areas, there is no indication in the text or purpose of such legislation (including, of course, the Act) to suggest that not only did the plaintiff bear the risk of recovery of the whole of the loss from those proportionately responsible, but would bear the further risk of no recovery at all from those that may have (factually) caused the loss but are not legally liable. The extent of any such (non-legal) responsibility, in my view an oxymoronic notion, would create a gap, and perhaps a substantial gap, in the compensation payable to the plaintiff. A move from no gap and no risk, to the possibility of a huge gap and the risks identified above, requires clear and unambiguous legislation. Section 157 does not achieve this.

I now turn to purpose. There is nothing in the extrinsic material to indicate that mere factual causation, without more, is relevant in determining the proportion of the Authority’s responsibility. The Authority did not point to anything supporting such a contention. Despite concern about flooding, as a concurrent cause or a cause far greater than the conduct (intentional or negligent) of the Authority, there is nothing in the extrinsic material to suggest that the solution was to restrict the proportion of the responsibility in the manner contended, a step or proposition largely at odds with the attribution of responsibility and compensation for the loss of another. Such a notion, which may create a gap in the compensation payable to the injured party, would, as pointed out, need to be specifically referred to and debated and, more importantly, find its way into the text in clear and unequivocal language, operating as it does to effect a substantial and fundamental change to the common law. Although s 157(4)(b) does not directly refer to the liability of others, it is limiting the liability of the Authority, in circumstances where, because of its conduct (intentional or negligent), it would ordinarily be liable for the full extent of the loss. Its liability can only be reduced to the appropriate proportion because another or others are liable to make good such loss. These other parties are concurrent wrongdoers, a notion entirely consistent with the nature, scope and compensatory aim of the section. As a consequence, any pleading invoking s 157(4)(b) must plead facts sufficient to limit such liability by reference to the legal liability of the other concurrent wrongdoers.
I do not consider that any of the applicant’s submissions have any effect on the analysis set out above for these reasons and the reasons given by Kennedy JA.
I would grant leave to appeal but dismiss the appeal.

KENNEDY JA:

On 10 September 2021, Vaughan Constructions Pty Ltd, KV Cooper Pty Ltd and Drakon Investments Pty Ltd (the ‘respondents’) initiated a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’) against Melbourne Water Corporation (the ‘applicant’). The respondents alleged that if, which was denied, they were liable to another party in a related Supreme Court proceeding for damage to a warehouse (the ‘Building’), then the applicant was liable for that same loss or damage by reason of the statutory cause of action contained in s 157(1) of the Water Act 1989 (the ‘Act’).
By Amended Points of Defence dated 5 May 2022 (‘APD’), the applicant alleged at paragraphs 20–52 (the ‘relevant paragraphs’) that if it was liable to pay damages pursuant to s 157(1) of the Act, then by reason of s 157(4)(b), the proportion (if any) of its responsibility must be assessed and the damages must be awarded against it on the basis that six other parties were responsible for the loss or damage.

The respondents applied under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’) to strike out the relevant paragraphs.[3] On 7 June 2022, the judge[4] ordered that the relevant paragraphs be struck out on the basis that the applicant did not specify the basis upon which the other parties were alleged to be legally liable for the loss or damage.
[3]The applicant accepted that the VCAT had power to determine the construction issues relating to s 157(4)(b) in relation to the strike out application: see Vaughan Constructions Pty Ltd v Melbourne Water Corporation (Building and Property) [2022] VCAT 633, [42] (‘Reasons’); Transcript of Proceedings (24 May 2022) 83.20–83.23; Transcript of Proceedings (30 September 2022) 4.06–4.07.
[4]By order made on 20 September 2021, Quigley J determined that the Supreme Court was a more appropriate forum for the determination of the VCAT proceeding and the matter was thereby transferred to the Supreme Court.
On 4 July 2022, the applicant applied to this Court for leave to appeal on a question of law.[5] The question of law is:
Whether a water authority in its defence to a claim that relies upon s 157(4)(b) of the Act is required to identify and to plead facts which show the basis upon which it contends that other parties bear a legal liability for the injury, damage or loss as claimed.
[5]By s 29(5)(b)(i) of the VCAT Act, Delany J is treated as a President for the purposes of s 148, which provides for appeals from the VCAT to the Court of Appeal on questions of law from an order of the VCAT where the VCAT was constituted for the purpose of making the order by the President.
For reasons expressed below, I agree with the judge who answered the question raised in the affirmative. Accordingly, although I would grant leave to appeal, I would dismiss the appeal.

Background

In the Supreme Court proceeding, the plaintiff, Biodiversity Sub TC Pty Ltd (as trustee) (‘Biodiversity’), is the owner of the land on which the Building was located (the ‘Site’). The defendants are a building company, Vaughan Constructions Pty Ltd (the ‘builder’), and two other companies, KV Cooper Pty Ltd and Drakon Investments Pty Ltd (the ‘vendors’). The vendors were joint registered proprietors of the Site from around 2015 until September 2019. AS James Pty Ltd (‘AS James’), a firm of engineers, is a third party.
On 19 October 2018, Biodiversity entered into a contract with the vendors for the purchase of the Site and the performance of certain engineering works, as well as a design and construction contract with the builder for the construction of the Building. Biodiversity has been the registered proprietor of the Site since 5 September 2019. Biodiversity alleged that there are significant problems with the Building, including that building works are subject to sinkholes and subsidence. It claimed damages against the builder and the vendors in respect of its loss or damage, which liability was denied by the defendants.
In the VCAT proceeding, the builder and the vendors claimed that the applicant was the owner, manager and operator of a drain located at Epping (the ‘Drain’) which was built between February 2012 and August 2013. They alleged that, since the construction of the Drain, there has been a flow of water from the Drain into the Site which has occurred as a result of the negligent conduct by the applicant. Accordingly if, which is denied, they are found liable to Biodiversity in the Supreme Court proceeding, then they should obtain relief against the applicant.
As indicated already, by the relevant paragraphs contained in its APD, the applicant alleged that its liability under s 157(1) of the Act should be reduced by reason of s 157(4)(b). In particular, at paragraph 20 it alleged:
Responsibility of other parties – s 157(4)(b)
It says further that if it is liable to pay damages pursuant to s. 157(1) of the Act (which it denies):
(a)by reason of s.157(4)(b) of the Act, the proportion (if any) of its responsibility for the injury, damage or loss must be assessed and only that proportion of the assessed damages must be awarded against it;
(b)Melbourne Water says that other parties were responsible for the loss and damage, for the reasons set out below.
Paragraphs 21–52[6] which follow then named six other parties said to be ‘responsible’ for the loss or damage claimed by the respondents. Those six parties fell into two groups. The first group comprised persons who were involved in the construction of the Drain from which it is alleged the flow of water occurred[7] (collectively, the ‘Drain parties’). The second group comprised persons who were involved in the construction of the Building[8] (collectively, the ‘Building parties’). These persons were said to be responsible for the same loss by reason of their involvement in the design and/or construction of the Building.
[6]Paragraphs 53–54 rely on contributory negligence, though this was not pursued at the hearing; see Reasons, [137(c)].
[7]These were Reeds Consulting Pty Ltd (‘Reeds’) (an engineering consultancy who designed and certified aspects of the Drain construction works); Tonkin & Taylor Holdings Pty Ltd (‘Tonkin & Taylor’) (engineering consultants engaged to provide geotechnical engineering advice and supervision of the works, including construction of the Clay Liner forming part of the Drain); and Cornfoot Bros Earthmoving Pty Ltd (‘Cornfoot’) (the specialist civil works contractor engaged to compact the soil).
[8]These were Vaughan Constructions Pty Ltd (who designed and constructed the building), AS James (who provided advice in the course of the design and construction) and Spencer Group Engineering Pty Ltd (‘Spencer’) (who provided engineering advice).

It was not suggested that the APD set out the legal basis of liability of the six named parties. Rather, the judge recorded that the decision by the applicant not to set out the legal basis of liability of the six parties was a deliberate pleading choice, since the applicant contends that s 157(4)(b) is not concerned with the legal liability of others.[9]
[9]Reasons, [33].
On 11 May 2022 solicitors for the builder and the vendors wrote to the solicitors for the applicant. The letter noted that, while the APD alleged that other parties were ‘responsible’ for ‘the loss and damage’, it did not plead the material facts necessary to establish that each of the other parties were ‘legally responsible — that is to say, legally liable’ in respect of the loss and damage claimed. In their view, s 157(4)(b) required the applicant to allege how those six parties were legally liable for the loss and damage.
In the result, the judge agreed with this approach, and struck out the relevant paragraphs of the APD, but made provision for the respondent to serve a further draft of any proposed Further Amended Points of Defence.
Subsequent to this decision, the applicant served a proposed form of Further Amended Points of Defence which was challenged. In particular, challenge was made to those parts which included an allegation that natural causes were also responsible for the loss and damage under s 157(4)(b).
In a further ruling made on 2 September 2022, the judge determined to refuse leave in respect of the majority of the contested paragraphs, including those dealing with natural causes. In so doing he stated:
Proposed paragraph 20(c) of the FAPD seeks to contend for an apportionment of responsibility based on a cause, natural causes, to which s 157(4)(b) is not directed. Natural causes are irrelevant to the s 157(4)(b) enquiry. Natural causes are to be considered and are dealt with in the anterior step called for by s 157(1).[10]
[10]Vaughan Constructions Pty Ltd v Melbourne Water Corporation (Building and Property) [No 3] [2022] VCAT 1030, [19(c)] (emphasis in original).
Although the further ruling is not directly challenged in this application, both parties referred to it, and made submissions as to the role of natural causes under s 157, including under s 157(4)(b). The relevance of natural causes will thereby be addressed in the course of addressing the proper construction of the statute, below.

Relevant statutory provisions

Water Act 1989

Section 1(a) of the Act states that one of the purposes of the Act is ‘to re-state, with amendments, the law relating to water in Victoria’.
Section 15 provides for a civil liability for the unauthorised taking, use, or pollution of water, or in respect of certain unauthorised works.
Sections 16(1) and 16(2) of the Act make provision for two statutory causes of action relating to the flow of water, as follows:
16 Liability arising out of flow of water etc.
(1)If—
(a)there is a flow of water from the land of a person onto any other land; and
(b)that flow is not reasonable; and
(c)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 person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.
(2)If—
(a)a person interferes with a reasonable flow of water onto any land or by negligent conduct interferes with a flow of water onto any land which is not reasonable; and
(b)as a result of that interference 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 person who interfered with the flow is liable to pay damages to that other person in respect of that injury, damage or loss.
A third cause of action arising out of the flow of water is provided for in s 157 in respect of ‘Authorities’:[11]
[11]It is common ground that the applicant is an Authority for the purposes of the Act (as defined in s 3 of the Act).
157 Liability of Authorities arising out of flow of water
(1)If—
(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)—
(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;
(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.
Section 17 confines the remedies arising from a flow of water. It provides:
17 Protection from liability
(1)A person does not incur any civil liability in respect of any injury, damage or loss caused by water to which section 16 or 157 of this Act applies except to the extent provided by this Act.
(2)Sections 15 and 16 do not create any liability in respect of a flow of water from the works (including any dam) 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.
(3)Nothing in this section takes away from the power of a court to make an order against a person under section 86 of the Sentencing Act 1991 with respect to an offence under the Environment Protection Act 1970.
Section 17(1), then, confines liability in respect of any injury, damage or loss caused by the flow of water to statutory causes of action.[12] Section 17(2) does not wholly exclude an Authority from exposure to an action under s 16 in respect of a flow of water. However, it will be excluded when the Authority is liable for the exercise of a function specified in s 17(2) (which functions correspond to the functions of an Authority to which s 157 applies). In such a case, s 157(1) provides for an exhaustive remedy.
[12]Coles Myer Ltd v City West Water [1998] VSC 63, [54] (Gillard J), as cited at Reasons, [79].
The Tribunal also has exclusive jurisdiction in relation to all statutory causes of action (other than any claim for damages for personal injury) arising under ss 15(1), 16, 17(1) and 157(1) of the Act or at common law in respect of the escape of water from a private dam (ss 19(1) and (10)).
The Act therefore makes provision for various causes of action defined by the statute. Despite this, common law concepts are not wholly excluded. In particular, s 19(9) provides that, in determining a cause of action arising under ss 15(1), 16, 17(1) or 157(1), 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’. Section 51 of the Wrongs Act 1958 (‘Wrongs Act’), in turn, provides that a determination that negligence caused harm comprises two elements, namely, that the negligence was a necessary condition of the occurrence of the harm (factual causation); and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

Judge’s reasons

After setting out the background, summary of relevant statutory provisions, principles of construction, and parties’ submissions, the judge considered the legislative history of the relevant provisions. The judge noted that the applicant placed heavy emphasis upon the legislative history of earlier provisions creating statutory causes of action relating to the flow of water against an Authority. In particular, it submitted that proof of legal liability on the part of another party was not required before an Authority was entitled to reduce its liability.[13]
[13]Reasons, [90]–[95].
The judge noted that (at that time) no plea was made that the applicant’s responsibility should be reduced on account of natural causes.[14] He also identified that the key point of difference between the parties was directed to whether the proportionate liability of an Authority was to be determined based upon cause or based upon legal liability.[15] In considering this question he proceeded to consider the text, context and purpose of the statute.
[14]Ibid [111].
[15]Ibid [112].
Regarding the text of the statute, the judge noted:
I accept that the word ‘responsibility’ connotes accountability. The dictionary definitions, including those referred to at [66] above, make that plain. In context, ‘responsibility’ connotes legal liability. As identified by Bell and Gageler JJ in Hunt & Hunt in another context, it is important to consider the legal framework, in this case the legal framework in which the construction question arises. It is a legal framework that creates a statutory cause of action; s 157 makes an Authority liable in specified circumstances.
Section 157(4)(b) presupposes that the Authority is liable pursuant to s 157(1) and that it has not discharged the reverse onus in s 157(2). The subject matter of s 157(4)(b) is the Authority’s proportion of responsibility for injury, loss or damage to the other person referred to in s 157(1)(b). There is no occasion to embark upon the s 157(4)(b) task unless the liability of the Authority in negligence or for intentional conduct has been established. The task required by s 157(4)(b) is a weighing up between the liability of the Authority to the ‘other person’ and the liability, if any, of other parties to the ‘other person’ for when the Authority has been found liable for the same loss injury, damage or loss referred to in s 157(1)(b).
While s 157(4)(b) does not in terms refer to the liability of another person to the person entitled to recover damages against the Authority, by using the word ‘responsibility’, s 157(4)(b) connotes liability. When the sub-section requires the proportion of the Authority’s responsibility to be assessed, it is referring back to responsibility determined under s 157(1). It is the responsibility for ‘the injury, damage or loss’ in s 157(1) for which the Authority is liable to pay damages which is being referred to.[16]
[16]Ibid [113]–[115] (emphasis in original).
The judge found that to apportion responsibility requires a ‘consistency in the task to be undertaken’ and that s 157(4)(b) requires a like with like analysis. That is, to determine the degree of liability of the Authority by comparing the degree of liability of any other party to the same person for the same loss or damage as that for which the Authority is liable.[17]
[17]Ibid [116].
In considering the legislative history , the judge noted that the key concept in s 157(4)(b) is ‘responsibility’, by contrast to s 277(c) of the predecessor legislation (the Water Act 1958 (the ‘1958 Act’)) where the key concept was ‘cause’. Thus, while the provision in the current Act is concerned with the proportion of responsibility for the injury, loss or damage, the task posed by the 1958 Act required the Court to determine the cause of the flooding. The judge noted that ss 16(1) and (3) of the Act both refer to the person who ‘caused’ the flow, and considered that the legislature could have used similar wording in s 157(4)(b), but chose not to do so.[18]
[18]Ibid [117]–[118].
The judge found therefore that there was no warrant for reading the word ‘cause’ into s 157(4)(b) where that does not form part of the text, particularly when it would fundamentally alter the meaning of the text in fact used. Furthermore, although the applicant identified eight textual matters which it submitted undermined the construction for which the respondents contended, none of the eight matters addressed the meaning to be given to the word ‘responsibility’, nor why ‘cause’ should be read into the sub-section.[19]
[19]Ibid [119]–[120].
The judge concluded:
The words ‘if any’ in the first line of s 157(4)(b) signify that it may not be necessary to undertake the task to which s 157(4)(b) is directed. Contrary to MW’s submissions, the words ‘if any’ do not undermine the construction for which Vaughan contends. If the claimant fails to prove the four fundamental matters in s 157(1), there is no reason to consider the reverse onus as the circumstances that operate to trigger the reverse onus will not have arisen. If those four matters are established but the Authority discharges the reverse onus in s 157(2), then no occasion arises for the task to which s 157(4)(b) is directed.
The eight textual matters referred to by MW and the four examples identified by it discussed at paragraph [104] above are all directed to the negative; why the Vaughan construction should not be accepted. MW did not identify a textual basis that either provided or was capable of providing support for the construction for which it contended; a proportionate reduction based on cause alone.[20]
[20]Ibid [121]–[122] (citation omitted).
Regarding the context of the statutory provision, the judge noted that the balance of s 157 of the Act supports a liability based construction of sub-s (4).
First, the opening words of sub-s (4) refer back to a proceeding brought under sub-s (1). Such a proceeding requires a finding of liability on the part of an Authority. Thus, the step to which sub-s (4)(b) refers is the apportioning of liability (for which the Authority is responsible) between the Authority and other parties (if any) who are also responsible to the other person for the same loss.[21]
[21]Ibid [123].
Next, the judge found that it is consistent with s 19(9) of the Act, and s 51(1) of the Wrongs Act, to approach the determination of the proportion of the responsibility of an Authority taking into account legal liability. The judge noted that s 51(1) of the Wrongs Act is to be applied to the statutory cause of action in s 157 of the Act, and s 51(1) requires that both factual causation and scope of liability be considered.[22]
[22]Ibid [124].
The judge again noted that s 277(c) of the 1958 Act required the arbitrator or court to undertake quite a different task to s 157(4)(b). First, it had to determine the cause of the flooding (in order to determine compensation). Having determined the cause, the next step required was to determine the proportion of the Authority’s responsibility ‘for the cause of the flooding’. By contrast, s 157(4)(b) does not speak of and is not concerned with competing ‘causes’, but rather requires an assessment of the proportionate responsibility of the Authority for injury, loss or damage for which it is liable under s 157(1). The judge found that, to construe s 157(4)(b) in the manner contended for by the applicant would require a finding that, although the legislature changed the wording from the 1958 Act so as to remove any reference to ‘cause’, there was no intention to change the substantive meaning of the provision. The judge referred to the case of Patsuris v Gippsland and Southern Rural Water Corporation,[23] and noted that the Court of Appeal had identified in that case that the present form of s 157 is different from that previously operative in Victoria, and that there were substantive revisions to the statutory cause of action elsewhere in s 157 which were consistent with an intention to also bring about substantive change in s 157(4)(b).[24]
[23][2016] VSCA 109 (‘Patsuris’).
[24]Reasons, [126]–[128].
Regarding the purpose of the statutory provision, the judge found that to construe s 157(4)(b) in the manner suggested had the effect that other wrongdoers who caused the same damage as the Authority are required to bear proportionate responsibility for such loss or damage, and that to approach the provision on the basis of proportionate responsibility (liability) achieves a fair balance and provides and preserves the integrity of the cause of action embodied in s 157.[25]
[25]Ibid [129].
The judge found that the approach for which the respondents contended did not produce ‘absurd and unjust results’, but was rather an orthodox approach to apportionment, which is consistent with the general approach referred to by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd.[26] The judge also found that this construction had the advantage that it would be less likely there would be a recovery ‘gap’ in circumstances where there was the provision of a bespoke statutory cause of action against Authorities. It would require clear words to strike at the heart of the cause of action created by allowing recovery to be undermined by a proportionality regime that benefitted authorities and left claimants without any, or with significantly reduced, compensation.[27]
[26](1985) 59 ALJR 492; [1985] HCA 34 (‘Podrebersek’).
[27]Reasons, [130]–[131].
The judge considered that his construction was consistent with s 24(2) of the Wrongs Act (which from 1985 had application to claims relying upon s 23B of the Act) and Part IVAA of the Wrongs Act and other similar legislation. Whilst such consistency of approach to apportionment is desirable, it could only exist if the text of the section in question supported such a construction, which the judge found that it did.[28]
[28]Ibid [136].

The judge also did not accept that the applicant’s examples suggested that a liability based construction would lead to unsatisfactory results.[29]
[29]Ibid [137].
He therefore concluded that s 157(4)(b) required the applicant to plead out the basis of liability of any other person in order that the basis upon which the proportion of responsibility was to be determined was clearly articulated and understood.[30]
[30]Ibid [139].

Application for leave to appeal

The applicant advanced a single ground of appeal that the judge erred in law in finding that it was required to identify and to plead facts which showed the basis upon which it contended that other parties bear a legal liability for the loss or damage claimed by the applicant, and that it was not sufficient to allege that other parties’ acts or omissions had caused the loss for which it was responsible.

Applicant’s submissions

The applicant provided a detailed exposition of the legislative history. In particular, it submitted that no substantial change arose in the transition from the 1958 Act to the (current) Act. Both provide for the same statutory cause of action unique to water authorities; provide for a reverse onus of proof and statutory deeming; require proof and assessment of causation; and provide for proportionate liability.
The applicant submitted that the judge’s construction treats the statutory phrase ‘responsibility of the Authority for the injury, damage or loss’ as meaning (despite the lack of express words) ‘responsibility of the water authority, limited by, and to be assessed in comparison with, the legal liability of some other person who is a concurrent wrongdoer also liable to the claimant in respect of the same loss or damage’. The applicant submitted that that is a wholly non-statutory imposition, which is alien to the text, context and purpose and history of the Act, and should therefore be rejected for seven reasons:
(a)First, the judge’s conclusion that ‘responsibility’ in s 157(4)(b) ‘connotes legal liability’ was inapt. By definition, if s 157(4)(b) is engaged the Authority will already be legally liable. In addition, the term ‘liability’ is already used in the section, and on ordinary principles ‘responsibility’ must thus connote something else as the legislature would not ordinarily be taken to use two distinct expressions to refer to the same concept. Furthermore, both in its ordinary meaning and its statutory use, ‘responsibility’ does not connote ‘liability’. As a matter of ordinary language ‘responsibility’ means causal responsibility or blameworthiness, not legal liability. Where the legislature means ‘liability’ in the Act, it says so. Even in the Wrongs Act responsibility does not mean legal liability.
(b)Secondly, even if ‘responsibility’ connoted ‘legal liability’ in the case of an Authority, that provides no foundation to read the word as also referring to liability of other persons who are not water authorities. Section 157 is not a general statute for the apportionment of legal liability, and the legal liability of other parties is not referred to in s 157 at all.
(c)Thirdly, there was no textual foundation for the judge’s conclusion at paragraph 114 that ‘[t]he task required by s 147(4)(b) is a weighing up between the liability of the Authority to the “other person” and the liability, if any, of other parties’. Again, s 157 is not a general statute for the apportionment of civil liabilities.
(d)Fourth, it was inapt for the judge to say (at paragraph 116) that ‘[t]o apportion responsibility requires a consistency in the task to be undertaken’, and that s 157(4)(b) ‘requires a like with like analysis’, when there was no textual foundation for that conclusion and it did not flow from any other contextual, purposive or historical consideration relevant to the Act. In particular, the unstated premise must be that ‘responsibility’ for a flow of water can only arise from acts of persons who are also legally liable to the claimant. However, this lacks a proper basis. Of specific relevance, the flow of water may be caused in part by natural flooding for which no person is legally responsible.
(e)Fifth, it was inapt for the judge to draw a distinction between s 157 of the Act and s 277(c) of the 1958 Act, and thus to conclude that ‘responsibility’ was the key concept in one and ‘causation’ in the other.
(f)Sixth, neither sub-s (4)(b) nor s 157 read as a whole make any reference to any term such as ‘apportionable claim’ or ‘concurrent wrongdoer’ or ‘joint’ or ‘several’ liability, nor to the existence of ‘defendants’ (plural). Therefore, there was no textual, contextual or purposive feature that would justify treating the section as if it were equivalent to the scheme for proportionate liability under Part IVAA of the Wrongs Act.
(g)Seventh, the very reason for enacting proportionate responsibility was to create a ‘recovery gap’. The whole point of s 157(4)(b) is that, notwithstanding the Authority was liable under s 157(1), the damages to be awarded against it can go no higher than its proportionate responsibility.
The applicant relied on the second, third and fourth examples it had referred to before the judge which allegedly highlighted difficulties with the judge’s construction. They all arose in a context where farmland was bordered on one side by drainage works for which an Authority was responsible, and on the other side by a creek.
(a)The second example involved a flow of water from the drainage work which was partly caused by its faulty construction, and in part by the malicious interference of a third party wrongdoer. On the judge’s construction the applicability of s 157(4)(b) would turn on whether the third party conducted themselves in a manner that gave rise to a legal liability to the respondents. However, some third parties may be immune from liability. The judge did not grapple with the point that the legal liability of third parties may hence depend on norms lying outside the Act, which are independent of the proportionate responsibility of an Authority for damage caused by a flow of water.
(b)The third example involved flooding caused equally by the flow of water from the defective drain, and by the natural consequences of an overflowing creek. The Authority should be only partly responsible for the damage given that the explicit purpose for enacting s 157(4)(b) and its predecessors was to entitle an Authority to reduce its proportionate responsibility where natural flooding was a contributing cause of a flow of water.
(c)The fourth example was directed to acts of a landowner akin to contributory negligence. Even though a landowner’s contributing fault does not give rise to a liability under s 26 of the Wrongs Act,[31] the legislative history makes clear that the landowner’s own acts may reduce the responsibility of the Authority.
[31]Because the statutory liability of an Authority is not a ‘wrong’ within the meaning of s 25.
In oral submissions, Senior Counsel sought to emphasise that the issue before the Court was a narrow one as to whether the applicant was required to identify the basis on which other parties bore some legal liability for the loss or damage. However, he also accepted that the case depended on whether the concept of ‘responsibility’ in s 157(4)(b) was limited to a comparison based on factual causation (as the applicant contended).
Counsel also emphasised that the regime reflected in s 157 was different to, and predated, the general regime of proportionate responsibility which exists in Part IVAA of the Wrongs Act. He highlighted that an Authority had a particular position insofar as there was an intersection between its activities and natural flooding.
Counsel also submitted that s 157(4)(b) was concerned with an assessment of damages which was to be contrasted with, and differed from, the creation of the liability under s 157(1).

Respondents’ submissions

The respondents submitted that the application for leave to appeal ought to be refused for the following reasons:
(a)the applicant’s construction wholly relies on extrinsic material for historical provisions which are substantively different to s 157(4)(b) in its current form;
(b)the applicant does not otherwise identify how its construction of s 157(4)(b) is supported on established principles of statutory construction. Indeed, the judge observed that the applicant’s textual submissions were all directed to why the respondents’ construction should not be accepted, but did not provide a textual basis for the construction which they posited. That continues to be so; and
(c)on the applicant’s construction, liability is visited upon the applicant if it is found under s 157(1) to be legally liable to Biodiversity or the respondents for injury, loss or damage. By contrast, the applicant’s ‘responsibility’ under s 157(4)(b) — which is predicated upon legal liability being established under s 157(1) — is determined by reference to whether the six parties caused, merely as a matter of fact, that same injury, loss or damage, irrespective of whether they are legally liable. It is unlikely that Parliament would have countenanced such an internally inconsistent approach to determining the concept of responsibility under s 157.
The respondents otherwise submitted that the judge arrived at the correct construction of s 157(4)(b), having regard to established principles of statutory construction, that is, a consideration of the statutory text, its context and statutory purpose.
Given the respondents’ submissions are otherwise generally reflected in the analysis, below, there is no need to set them out in further detail.

Analysis

Principles

The general principles of construction are not in doubt. The meaning of s 157(4)(b) is to be construed by reference to the text, context and purpose of the statute.[32]
[32]See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ); [2017] HCA 34.
The context will include legislative history and extrinsic materials, but these matters cannot displace the meaning of the text. As cited by the judge,[33] in Federal Commissioner of Taxation v Consolidated Media Holdings,[34] French CJ, Hayne, Crennan, Bell and Gageler JJ outlined the approach to be adopted:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[35]
[33]Reasons, [58].
[34](2012) 250 CLR 503; [2012] HCA 55.
[35]Ibid 519 [39] (citation omitted).
As the judge observed,[36] there is only limited discussion in earlier cases of s 157(4)(b). By way of example, in the case of Pumpa v Goulburn-Murray Rural Water Corporation,[37] Cavanaugh J simply observed that s 157(4)b) establishes a ‘special form of proportionate liability’.[38]
[36]Reasons, [57].
[37](2010) 27 VR 577; [2010] VSC 169 (‘Pumpa’).
[38]Ibid 592 [30].
In Patsuris,[39] however, this Court considered s 157 in circumstances where the VCAT had found that the flooding of some land was not caused by the intentional or negligent conduct of the Authority.
[39][2016] VSCA 109. An application for special leave to appeal was ultimately refused: Patsuris v Gippsland and Southern Water Corporation [2016] HCASL 261.
Insofar as the Court considered s 157, Garde AJA (with Tate and Kyrou JJA agreeing) found:
•that it provides a freestanding statutory cause of action which is very different from any cause of action available at common law;[40]
•that the Act gives the terms used in s 157 a wide compass;[41]
•that a pivotal feature of s 157 is the reverse onus of proof on the balance of probabilities imposed on an Authority, but only after the claimant proves four fundamental matters on the balance of probabilities, namely that a flow of water actually occurred; the flow of water emanated from the works of an Authority; the flow of water continued onto the land of the claimant; and the flow of water thereby caused damage to property or economic loss to the claimant;[42]
•that the present form of s 157 is different from that previously operative in Victoria;[43] and
•that the cause of action in s 157 is defined by the words of the section.[44]
[40]Patsuris [2016] VSCA 109, [55].
[41]Ibid [56].
[42]Ibid [57].
[43]Ibid [58].
[44]Ibid [60].
In relation to s 157(4), Garde AJA said:
Likewise, s 157(4) provides a framework for the assessment of damages. The assessment process is different from that at common law. The framework includes proportionate responsibility, limits damages for property or economic loss to that derived from direct pecuniary injury, and excludes remote, indirect or speculative damage. In respect of any continuing cause of action, the damages assessed may include an amount in respect of all future injury, damage or loss.[45]
[45]Ibid [62].
The observations made in Patsuris thereby focus particular attention on the language of s 157. Importantly, the Court highlighted that the present form of the provision is different from that previously operative in Victoria.
Consideration
A number of the applicant’s submissions can be readily rejected.
First, insofar as there was extensive reliance on legislative history, the High Court has made it clear that this cannot replace an examination of the text itself.
In this case, consistent with the observation in Patsuris, the 1958 Act provision was also framed in different terms to s 157(4)(b). Section 274 of that Act did provide for a statutory cause of action against the Authority in respect of any damage caused by intentional or negligent flooding, but it was not in identical terms.[46] Moreover, the key ‘proportionate liability’ provision, s 277(c), read as follows:
The court or arbitrator shall determine the cause of the flooding and the amount of damages assessable in respect thereof and the proportion (if any) of the responsibility of the Authority therefor and shall award against the Authority only such proportion of such amount.[47]
[46]For example, there was a widening of the definition of negligence from ‘omission or failure’ (in s 274(3) of the 1958 Act) to ‘all the circumstances including any omission or failure’ (in s 157(3)(b) of the Act); see Reasons, [128].
[47]Emphases added.
The focus of s 277(c) was therefore the cause of the flooding, with the court directed to determine the proportion of the responsibility ‘therefor’, ie for that cause. By contrast, s 157(4)(b) does not speak of competing causes, but rather, as explained below, invites an assessment of the proportionate ‘responsibility’ for the ‘injury, loss or damage’ for which the Authority is liable under s 157(1).
It is otherwise unhelpful to extensively examine the extrinsic materials which are somewhat unclear, particularly insofar as they relate to the current Act. Again, the focus should be on the language used in the provision, which must be given effect.
Nor did I find the examples raised by the applicant to be of any assistance. The fact that the legal liability of third parties may depend on norms outside the Act is uncontroversial in circumstances where the liability of the Authority itself depends on concepts of negligence (under s 19(9)). Many of the complaints were also based on an alleged historical analysis which, for reasons given already, is not helpful.
Returning then, to the text of the (current) Act, the proportion of responsibility is to be assessed in respect of the ‘injury, damage or loss’. This language repeats the language used in s 157(1), which provides that the Authority is ‘liable’ to pay damages in respect of the other person’s ‘injury, damage or loss’. The opening words of s 157(4)(b) also make it clear that the provision applies ‘with respect to a proceeding brought under subsection (1)’. As the judge correctly observed, the attribution of responsibility under s 157(4) is therefore to occur in a particular legal setting with respect to a proceeding brought under sub-s (1). Under s 157(1) that proceeding is concerned with the Authority’s liability for another’s ‘injury, damage or loss’ where it has engaged in relevant intentional or negligent conduct.
The language used in s 157(4)(b) therefore suggests that the Authority is only intended to be liable for the ‘proportion’ of its ‘responsibility’ for the loss or damage. Although (consistent with the observations by Garde AJA in Patsuris) s 157(4) does generally contain some framework for the assessment of damages (under s 157(4)(c) and s 157(4)(d)), I would qualify this with respect to s 157(4)(b). This is because s 157(4)(b) itself is not concerned with an assessment of damages, but, rather the assessment of the proportion of the (separately) ‘assessed’ damages. Contrary to the applicant’s submission, s 157(4)(b) is thereby concerned with, and is part of the process for, the determination of the liability of the Authority for the assessed damages (since it will only be liable for the ‘proportion’ of its ‘responsibility’).
The key concept of ‘proportion of responsibility’ then raises the critical question as to a ‘proportion’ of what? Thus, a proportion can only be measured and assessed in relation to, and with reference to, a ‘whole’. Read in context, the ‘whole’ is clearly referable to the entire ‘injury, damage, or loss’ for which the Authority is otherwise ‘liable’. The critical issue then, is whether that liability might only be adjusted by making a comparison with first, other persons, and secondly, other persons who are also liable in respect of that loss.
It is true, as the applicant identifies, that the provision does not expressly invite a comparison with other persons and includes no provision, for example, for joinder of other ‘wrongdoers’. However, the dispute before the judge arose in a context where the applicant itself sought to rely on the conduct of others. The absence of a detailed regime may be unfortunate, but it is of little assistance in circumstances where, on the applicant’s own construction, s 157(4)(b) can include some comparison with the actions of others (albeit limited to considering their ‘factual’ responsibility).
Rather, the key question between the parties on this application is whether the other persons to be considered should be those who have factually caused the loss or damage, rather than those who are also liable in respect of that loss or damage. As indicated already, a further issue which has arisen is whether the provision may be utilised to rely on natural causes.
For reasons which follow, I consider that the answer to the key question is ‘no’. In coming to this view, I am also of the view that an Authority cannot rely on natural causes under s 157(4)(b).
First, the word ‘responsibility’ is a broad word which includes the concept of ‘accountability’. Thus the Macquarie Dictionary relevantly defines ‘responsibility’ to include ‘the state or fact of being responsible’, ‘an instance of being responsible,’ and ‘a particular burden of obligation upon someone who is responsible’.[48] ‘Responsible’ is then defined to include ‘involving accountability or responsibility’, ‘having a capacity for moral decisions and therefore accountable’ and ‘able to discharge obligations or pay debts’.[49]
[48]Macquarie Dictionary (online at 24 October 2022) ‘responsibility’ meanings 1–3 (emphasis added).
[49]Macquarie Dictionary (online at 24 October 2022) ‘responsible’ meanings 1–3 (emphases added).

It is true that the Macquarie Dictionary also provides that the definition of the phrase ‘responsible for’ is defined as ‘having the responsibility of’, as well as being ‘chargeable with being the author, cause, or occasion of’,[50] such that the ordinary concept of ‘responsibility’ may well include notions of causation. However, there is nothing in the language or the definitions which suggest that the concept should be restricted to causation, and, more narrowly, ‘factual’ causal responsibility, as the applicant suggests.
[50]Macquarie Dictionary (online at 24 October 2022) ‘responsible for’.
As indicated already, there is little in the way of judicial authority in respect of s 157(4)(b). However, in Podrebersek, the High Court said the following in relation to the task of apportioning ‘responsibility’:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man…and of the relative importance of the acts of the parties in causing the damage…It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.[51]
[51](1985) 59 ALJR 492, 494 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ); [1985] HCA 34 (emphasis in original).
Although, as the applicant highlights, Podrebersek was concerned with contributory negligence, there is no reason why the reference to ‘responsibility’ in s 157(4)(b) should be read in a different way to that considered in Podrebersek.[52] The legislature is to be taken to have been aware of this position taken by the High Court. Further, consistent with the dictionary definitions, above, the decision suggests that the concept of apportioning ‘responsibility’ will be concerned with much more than factual causation. More particularly, it suggests that, in assessing comparative ‘responsibility’, the relevant persons will also be liable so that their ‘culpability’ may be taken into account.
[52]See also Tanah Merah Vic Pty Ltd v Owners Corporation No 1 PS613436T [2021] VSCA 72, [262] (Beach and Osborn JJA and Stynes AJA), where the approach in Podrebersek was applied under the Wrongs Act Part IVAA regime.
Secondly, if a comparison was only to be made on the basis of factual causation, the legislature would be expected to say so. It clearly uses the word ‘causes’ and ‘caused’ in other parts of the Act (eg s 16), as well as in s 157 itself (in sub-s (1)). There is also the alteration of the form of the language used when compared with the 1958 Act provision. Thus, although s 277(c) expressly directed the court or arbitrator to determine ‘the cause’ of the flooding, the absence of such language in s 157(4)(b) is striking. It is well established that where the Parliament could have used the same word, but chooses to use a different word, the intention is to change the meaning.[53]
[53]Bayley v The Queen (2013) 43 VR 335, 346 [47] (Warren CJ, Neave and Coghlan JJA); [2013] VSCA 295.
Thirdly, for reasons given already, the very task identified by s 157(4)(b) also involves an assessment of liability. In such circumstances, I agree with the judge that a ‘like with like’ analysis is appropriate in the interests of consistency. That is, that each of the persons should have some liability in order that there be a proper comparison of ‘responsibility’ (which can involve both culpability and causation). By way of contrast, the applicant’s approach involves internal inconsistency and fragmentation of the process of determining liability. Thus, on its construction, the Authority’s liability would be determined, first, by reference to its overall liability for injury, loss, or damage (under s 157(1)) and then, by reference to factual causation only (under s 157(4)(b)). This view is reinforced by s 19(9) of the Act which was not contained in the 1958 Act. That provision makes clear that the liability of an Authority involves legal causation, not just factual causation.
The focus is therefore on the attribution of responsibility for loss for which a person is liable. This also suggests that natural causes are not intended to be included as part of the assessment of liability under s 157(4)(b). Thus, it is only those who are liable to pay compensation who are to be considered in apportioning proportionate responsibility. The applicant sought to make much of a concern that natural causes might be responsible for a flow of water. Any natural flood may well raise issues relevant to causation, as the judge acknowledged. However, the focus of s 157(4)(b) is on those liable for the relevant ‘injury, damage or loss,’ which may include persons who are not directly responsible for the flow of water at all. This is highlighted in the present case given that the applicant sought to reduce its liability on the basis of the Building parties who were said to be responsible for the same loss by reason of their involvement in the design and/or construction of the Building. This is despite the fact that they do not appear to have actually caused the flow of water themselves.
Turning to purpose, s 157(1) is clearly intended to make the Authority liable to compensate a plaintiff where a flow of water has occurred by reason of its intentional or negligent conduct. The apparent purpose of s 157(4)(b) is to then alter the general principle that a plaintiff can recover all damage from a single entity (being the Authority in this case, who would otherwise be liable for the entire loss). However, the Authority is able to reduce its liability by pointing to others who are also liable for the same loss, without the radical erosion necessitated by the applicant’s approach. There are also safeguards provided. For example, under s 157(3)(b), the Tribunal is required to take into account the peculiar position of the Authority. The Authority is also not liable for remote, indirect or speculative damage (s 157(4)(c)).
By way of contrast, the reduction of an Authority’s liability by reference to persons who are not liable — as well as by reference to natural causes — would, as the judge observed, ‘strike at the heart of the cause of action created’. By reason of s 17, s 157 is the sole avenue for recovery by a person against an Authority for loss caused by a flow of water. The applicant’s approach would undermine the very remedy Parliament has seen fit to provide by leaving claimants with little, or no compensation. There is nothing in s 157(4)(b) which suggests that Parliament intended such a drastic result.

Finally, both parties referred to the regime created under Part IVAA of the Wrongs Act. As the judge observed, these provisions came into existence after the Act, and therefore can have limited relevance. Suffice to say that the approach I have adopted is consistent with the approach adopted in respect of Part IVAA. More specifically, the majority in Hunt and Hunt stated that the value judgments involved in determining the extent of a defendant’s ‘responsibility’ differed from, and were more extensive than, those which informed the question of causation.[54]
[54]Hunt and Hunt (2013) 247 CLR 613, 638 [57] (French CJ, Hayne and Kiefel JJ); [2013] HCA 10. See also Spiteri v Roccisano (2009) 22 VR 596, 630 [105] (Kaye J); [2009] VSC 132.
Properly construed, then, s 157(4)(b) requires a comparison of the responsibility of the Authority for the injury, loss or damage for which it is liable under s 157(1), with the responsibility of any other persons who are also liable for that loss. The judge was thereby correct to require the Authority to plead the basis upon which it alleged that the other specified parties bore a legal liability for the loss as claimed.

WALKER JA:

This appeal concerns the construction of s 157(4)(b) of the Water Act 1989 (the ‘Act’), which provides for a limitation on the damages that may be awarded against a water authority where the water authority is liable under s 157(1) to pay damages to another person (‘the claimant’) for injury, loss or damage caused to the claimant by a flow of water from the authority’s works onto land. Section 157(4)(b) provides as follows:
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.
The respondents brought a claim against the applicant (‘Melbourne Water’) in the Victorian Civil and Administrative Tribunal (‘VCAT’) under s 157(1) of the Act relating to an alleged negligent flow of water. Melbourne Water sought to rely on s 157(4)(b) in its defence to that claim. It pointed to other persons who, it said, were responsible for the loss and damage in question. A judge of this Court, sitting in VCAT, struck out the relevant paragraphs of the Amended Points of Defence because Melbourne Water had not specified the basis upon which the other parties were legally liable for the injury, damage or loss.[55]
[55]Vaughan Constructions Pty Ltd v Melbourne Water Corporation (Building and Property) [2022] VCAT 633, [139]–[140] (‘Reasons’).
Melbourne Water now seeks leave to appeal from that decision on a question of law. The question of law is as follows:
Whether a water authority in its defence to a claim that relies upon s 157(4)(b) of the Water Act1989 is required to identify and to plead facts which show the basis upon which it contends that other parties bear a legal liability for the injury, damage or loss as claimed.

Melbourne Water contended that, in order to invoke s 157(4)(b), it was sufficient for it to identify and plead facts going to causation by another party; and that it was not required to identify and plead facts that demonstrated another person is legally liable for the injury, damage or loss claimed. On that basis, it submitted, the trial judge should not have struck out the paragraphs of the Amended Points of Defence. In contrast, the respondents submitted that it was necessary for Melbourne Water to plead facts demonstrating that another person is legally liable for the injury, damage or loss in issue.
I have had the advantage of reading, in draft form, the judgments of Sifris JA and Kennedy JA. I gratefully adopt Kennedy JA’s recitation of the relevant legislative provisions, the facts and the parties’ submissions. However, I have the misfortune to disagree with Sifris JA and Kennedy JA as to the result. I would grant leave to appeal and allow the appeal. In my opinion, s 157(4)(b) of the Water Act does not require a water authority to plead facts that show that another person is legally liable to the person who suffered injury, damage or loss; it is sufficient for the authority to plead facts that identify another contributing cause to the injury, damage or loss in question. That is, in my opinion, in order for s 157(4)(b) to be engaged the authority must demonstrate that it is not responsible for some proportion of the injury, loss or damage. If it can show that it did not cause some proportion of the injury loss or damage, then it will have demonstrated that it was not responsible for that proportion.

Analysis

Relevant principles

The question in this case is a question of statutory construction, involving the attribution of meaning to statutory text.[56] The starting point in such an exercise is the text of the provision. However, the text is to be considered in light of its context and purpose.[57] Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act.[58] Consideration of purpose is further reinforced by s 35(a) of the Interpretation of Legislation Act 1984 (‘ILA’), which provides as follows:
A construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object.
[56]Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22] (the Court); [2014] HCA 12.
[57]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ), see also 157 [41] (Gageler J), 162–3 [64] (Edelman J); [2018] HCA 55. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the cases there cited at n 105; [2009] HCA 41.
[58]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28 (‘Project Blue Sky’).
In some cases it may also be appropriate to have regard to the principle of construction that beneficial legislation should be accorded a ‘fair, large and liberal interpretation’, rather than one which is literal or technical.[59] I discuss further below whether this principle has application in the present case.
[59]See, eg, New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, 255 [32] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 50, quoting IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J), 39 (Gummow J); [1997] HCA 30. See also ADCO Constructions Pty Ltd vGoudappel (2014) 254 CLR 1, 16 [29] (French CJ, Crennan, Kiefel and Keane JJ); [2014] HCA 18.
It is permissible to have regard to extrinsic materials in resolving the meaning of the text, particularly in cases of ambiguity.[60] However, legislative history and extrinsic materials cannot displace the meaning of the statutory text.[61] It is also permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.[62]
[60]ILA, s 35(b).
[61]Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); [2012] HCA 55.
[62]R v Young (1999) 46 NSWLR 681, 687–8 [15] (Spigelman CJ); [1999] NSWCCA 166. See also Project Blue Sky (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28; CTM v The Queen (2008) 236 CLR 440, 509 [237] (Heydon J); [2008] HCA 25. See generally the discussion in Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014) 79–83 [2.38]–[2.40] (‘Pearce and Geddes’).
As part of the interpretive task, a court may be ‘justified in reading a statutory provision as if it contained additional words’.[63] Additional words might either confine or expand the operation of a provision.[64] Implying words into a statute may be necessary to ensure that a statute operates in conformity with the ‘the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions’.[65] Critically, however, any ‘modified meaning must be consistent with the language in fact used by the legislature’.[66]
Text and statutory context
[63]Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531, 548 [38] (French CJ, Crennan and Bell JJ); [2014] HCA 9 (‘Taylor’). See generally the discussion in Pearce and Geddes, 69–79 [2.32]–[2.37].
[64]Taylor (2014) 253 CLR 531, 548 [37] (French CJ, Crennan and Bell JJ); [2014] HCA 9. See also 556 [65] (Gageler and Keane JJ); HFM043 v Republic of Nauru (2018) 92 ALJR 817, 820–1 [24] (Kiefel CJ, Gageler and Nettle JJ); [2018] HCA 37 (‘HFM043’).
[65]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321 (Mason and Wilson JJ); [1981] HCA 26, cited in HFM043 (2018) 92 ALJR 817, 820–1 [24] (Kiefel CJ, Gageler and Nettle JJ). See also ILA, s 35.
[66]Taylor (2014) 253 CLR 531, 549 [39] (French CJ, Crennan and Bell JJ); [2014] HCA 9, cited in HFM043 (2018) 92 ALJR 817, 820 [24] (Kiefel CJ, Gageler and Nettle JJ); [2018] HCA 37.
The text of s 157(4)(b) is unhelpfully brief. It is in terms directed to the proportion, if any, of the responsibility of the water authority for the injury, loss or damage (hereafter referred to as ‘loss’, for convenience). However, s 157(4)(b) is but a sub-paragraph of a sub-section of a section. It thus falls to be construed in light of that section as a whole, as well as in light of the Act as a whole.
Although s 157(4)(b) does not use the word ‘cause’, I accept Melbourne Water’s submission that, read in light of s 157(1), a reference to ‘cause’ is implicit in s 157(4)(b). That is because, in order to be in the territory of the potential application of s 157(4)(b), there must already have been a conclusion that s 157(1) is satisfied and the authority is liable. Thus, understood in context, s 157(4)(b) relates back to the loss caused by the water that flowed from the Authority’s works, referred to in s 157(1).
Section 157(4)(b) is directed to the following question: for what proportion of the claimant’s loss (which has been established under s 157(1)) is the water authority responsible? It does not follow from the text of s 157(4)(b) that that question necessarily falls to be answered by reference to the legal liability of another person. While the section requires the identification of some other source of responsibility for the loss caused by the flow of water, it does not follow that it necessarily requires identification of another person who is responsible, let alone another person who is legally liable for the loss.
In that regard, it is also necessary to observe what s 157(4)(b) does not contain.
First, it contains no reference to any other person who might be responsible for the same loss, or who might have caused the same loss. As discussed further below, in that sense it is quite different from pt IVAA of the Wrongs Act 1958, which is directed to an apportionment between ‘concurrent wrongdoers’. Rather, the only ‘responsibility’ identified in the text of the section is that of the water authority.
Secondly, s 157(4)(b) contains no provision requiring the joinder of any other person, nor any provision that precludes the court or tribunal from having regard to the ‘responsibility’ of another person if that person is not a party. If the respondents’ construction is correct, and ‘responsibility’ means ‘legal liability’, that is a surprising omission; for if s 157(4)(b) required the court or tribunal to determine the legal liability of another person, one would expect that that person ought to be joined as a party to the proceeding before such a determination is made.
Of course a court or tribunal could order that such a person be joined as a necessary party, based on the ordinary powers available to it. However, that does not address the issue fully.
(a)First, s 157(4)(b) provides that the proportion of the authority’s responsibility ‘must be assessed’[67] by the court or tribunal. There is no scope for the court or tribunal to decline to make such an assessment if another person who may also be responsible is not joined.
(b)Secondly, the relevance of this point is not that the court or tribunal would lack the power to join such a person (it would not) — it is that the absence of such provisions suggests that Parliament did not have in mind that the court or tribunal would determine the legal liability of another person when assessing the damages payable by a water authority. In my opinion it is improbable that Parliament would have required a court or tribunal to determine the legal liability of another person when applying s 157(4)(b), without making express provision either in relation to that person’s joinder, or by placing some limit on the ability of the court or tribunal to determine such liability if the other person is not joined. Rather, I consider that, had Parliament intended that a court or tribunal was to determine whether another person was legally liable for the loss in question, it would have made express provision for that person to be joined as a party to the proceeding and, if the person was not joined, for there to be a limitation on the court or tribunal having regard to that other person’s responsibility. Such a mechanism is adopted in ss 24AI(3) and 24AL of the Wrongs Act.
[67]Emphasis added.

The lack of reference to any other person in the terms of the section is, in my opinion, deliberate and significant. In particular, because of that omission the words of the section, read naturally, are capable of applying to circumstances where part of the ‘responsibility’ for the loss is attributable to some natural event, for which no person is responsible (that is, which no person either caused or had liability for). In such a case, as a matter or ordinary language, it could be said that the natural event was ‘responsible’ for the loss, and the respondents accepted as much in the course of argument.[68] But plainly the natural event would not be ‘liable’ for the loss. Understood in that way, s 157(4)(b) would permit a water authority to prove that it was not responsible for the entirety of the loss caused by the flow of water from its land by pointing to an additional, natural event that was a contributing cause of that loss, such as a flood. I explain further below why I consider this approach to be supported by the purpose of s 157(4)(b).
[68]So, for example, one could say that ‘Hurricane Ian was responsible for extensive flooding in Florida’.
The respondents relied upon various dictionary definitions of ‘responsibility’, which were also relied upon by the judge.[69] They submitted that these definitions revealed that the word ‘responsibility’ connoted ‘accountability’, not merely attribution of cause ‘in fact’. The respondents relied upon the Macquarie Dictionary[70] and the New Shorter Oxford English Dictionary[71] and submitted as follows:
(a)The Macquarie Dictionary defines ‘responsibility’ to mean ‘the state or fact of being responsible’, ‘an instance of being responsible’ and ‘a particular burden of obligation upon someone who is responsible’. ‘Responsible’ is defined to mean ‘involving accountability or responsibility’, ‘having a capacity for moral decisions and therefore accountable’ and ‘able to discharge obligations or pay debts (emphasis added).
(b)The New Shorter Oxford English Dictionary defines ‘responsibility’ to mean ‘a charge, trust, or duty, for which one is responsible’. It defines ‘responsible’ to mean ‘answerable, accountable’, ‘liable to be called to account’, ‘accountable for one’s actions’ and ‘capable of fulfilling an obligation or trust’ (emphasis added).
[69]Reasons, [113].
[70](8^th ed, 2020).
[71](4^th ed, 1993).
However, in addition to the definitions identified by the respondents, the Macquarie Dictionary also includes the following definition of ‘responsible’ (emphasis in original):
–phrase 5. responsible for,

a.
having the responsibility of.

b.
chargeable with being the author, cause, or occasion of.
Paragraph b. is grammatically apt for application to the phrase ‘responsibility of’ in s 157(4)(b).[72]
[72]In addition, the Macquarie Dictionary defines ‘6. responsible to’ as: ‘answerable or accountable to, as for something within one’s power, control, or management’. That more closely aligns with the definitions relied upon connoting accountability, but is less grammatically apt for the text of s 157(4)(b). In that regard, I accept Melbourne Water’s submission that the relevant question under s 157(4)(b) is: ‘responsibility for what?’; not: ‘responsibility to whom?’
This aspect of the Macquarie Dictionary definition is consistent with my view about the ordinary meaning of the word ‘responsibility’, and with the proposition articulated above that, as a matter of ordinary language, one can say a natural event, such as a flood, was ‘responsible for’ loss caused by the event. Thus, although some caution is needed in relation to reliance on dictionary definitions so that they are not used as a substitute for the statutory text,[73] in the present context I do not consider that the dictionary definitions point to the construction for which the respondents contend. To the contrary, I consider that the Macquarie Dictionary supports the construction advanced by Melbourne Water. This understanding of the phrase ‘responsibility for’ is also supported by some of the extrinsic materials relating to the predecessor provisions to s 157(4)(b), which I discuss further below.
[73]See discussion in Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2^nd ed, 2020) 36–8 [2.140]–[2.150].
The respondents also submitted that, if a natural event is a contributing cause of the loss, then that event will be considered under ss 157(1) and (3), and only under those sections. I do not accept that submission. Of course if a natural event is the sole cause of the entirety of the loss, then the water authority will not be liable even if it was negligent, for the flow of water from its works will not have caused the loss, as required by s 157(1)(b). In that regard, I note that the trial judge observed as follows:
Nothing in the text of s 157(1) suggests that if the cause of the flow is negligence, the Authority would be liable, even if the negligence of the Authority was not a material cause of the flow. If the only material cause of the flow was a natural cause, then s 157(1) would not be satisfied, and no occasion would arise for the operation of s 157(4)(b).[74]
[74]Reasons, [137(b)] (emphasis added).
That is plainly correct. But in my opinion that simply does not deal with the circumstances where both the (negligent or intentional) flow of water from the authority’s works and a natural event have caused the loss, in the sense of each being a material cause.
If it be accepted that s 157(4)(b) is capable of taking account of circumstances where a natural event is ‘responsible’ for the loss, in the sense of being a materially contributing cause, and operating in those circumstances to reduce the damages that the authority is to pay, then it follows that it is not necessary, in order to trigger the application of s 157(4)(b) that there be another person who is liable for the claimant’s loss. Of course in some cases there will be; but there need not be. And it also follows, in my opinion, that where another person was ‘responsible’ for the damage, it is not necessary that that person be legally liable to the claimant.
Both parties placed reliance on the principle that the use of a different word in a statutory provision is indicative that the legislature intended a different meaning.
(a)Melbourne Water argued that s 157(4)(b) did not use the term ‘liable’ or ‘liability’, which is used elsewhere in the Water Act. Had the legislature intended, by the use of ‘responsibility’, to require identification of another person who was liable for the loss, it would have said so expressly; but it did not.
(b)The respondents argued that s 157(4)(b) did not use the term ‘cause’ or ‘caused’, which is also used elsewhere in the Water Act. Had the legislature intended by the use of ‘responsibility’, to require identification simply of another person who caused the loss, it would have said so expressly; but it did not.
Ultimately, in my opinion, this principle is of limited assistance in the present case given the fact that both the alternative terms pressed upon this Court are found elsewhere the in the Water Act and not in s 157(4)(b) itself. However, I accept Melbourne Water’s submission that, to the extent that this principle is of assistance, it favours Melbourne Water. That is because, as discussed above, I accept that the notion of cause is implicit in s 157(4)(b). Given that, ‘responsibility’ can be understood as directing attention to the question whether, in addition to the authority’s causal responsibility, there is some other contributing cause of the loss, whether a natural event or the act or omission of another person, for which the water authority is not responsible. It may of course be that in some cases the proportion for which the authority is responsible will fall to be ascertained by reference to another person who is legally liable to the claimant; but the text of s 157(4)(b) does not limit its operation in that way.
I also record for completeness that, even if the word ‘responsibility’ in s 157(4)(b) is understood as referring to ‘legal liability’, as the respondents contend (but which I do not accept), it does not follow that s 157(4)(b) requires a comparison of the legal liability of a water authority with the legal liability of another person. That is because s 157(4)(b) does not say that that is what it requires. The text attaches the word ‘responsibility’ to the authority (the liability of which will necessarily have been determined under s 157(1)). It does not direct that the determination of the relevant proportion of that legal liability is to be measured against, and only against, the proportionate legal liability of some other person.
In that regard, I reject the submission that s 157(4)(b) requires a ‘like with like’ analysis, by comparing the legal liability of the water authority with the legal liability of another person. That is not what the section says, and it is not necessary that such an analysis be undertaken. As Melbourne Water submitted, the only person whose liability is mentioned in s 157 is the water authority itself. No other person’s liability is mentioned.
Nor do I think that s 19(9) of the Act provides any basis for concluding that s 157(4)(b) is directed to the legal liability of another person. That section provides that, in determining a cause of action arising under s 157(1), 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’. It does not refer to the term ‘responsibility’ or to s 157(4)(b) and thus does not in my opinion shed any light on the meaning of ‘responsibility’ in s 157(4)(b).
Legislative history, extrinsic materials and purpose
Although I have based my construction of s 157(4)(b) principally on the textual matters discussed above, I consider that my conclusion is supported by the legislative history of the provision and, to some extent, by some of the extrinsic materials. Those matters assist in identifying the purpose of s 157(4)(b), which I consider supports the construction explained above.
In so far as the legislative history is concerned, s 157(4)(b) is the successor provision to several earlier provisions in the Water Act 1928 (the ‘1928 Act’), the Water (Compensation) Act 1956 (the ‘1956 Act’) and the Water Act 1958 (the ‘1958 Act’) (together, the ‘predecessor provisions’), which limited the amount of damages payable by a water authority.
(a)Section 263 of the 1928 Act, which was inserted into that Act by s 12(5) of the Water Act 1954 (the ‘1954 Act’), provided as follows:
Where compensation is claimed in respect of flooding of land or of water being in any way sent thereon the arbitrator shall determine the cause of the flooding or sending of water and the amount of damages assessable under this Act in respect thereof and shall also determine the proportion (if any) of the responsibility of the Authority therefor and shall award against the Authority only such proportion of such amount.
(b)Section 263(c) of the 1956 Act provided as follows:
The court or arbitrator shall determine the cause of the flooding and the amount of damages assessable in respect thereof and the proportion (if any) of the responsibility of the Authority therefor and shall award against the Authority only such proportion of such amount.
(c)Section 277(c) of the 1958 Act provided as follows:
The court or arbitrator shall determine the cause of the flooding and the amount of damages assessable in respect thereof and the proportion (if any) of the responsibility of the Authority therefor and shall award against the Authority only such proportion of such amount.
The respondents contended, and the trial judge accepted,[75] that s 157(4)(b) is sufficiently textually different from those earlier sections as to reveal that it was intended to work a significant alteration to the operation of the limitation on the liability of water authorities to pay damages for loss caused by a flow of water from the works of the authority. With great respect to the trial judge, I do not agree.
[75]Reasons, [128].
Plainly, the text is different. However, in my opinion the difference is not as significant as the respondents contend. The principal difference is to remove from the section the first part of the text that refers to a determination of the cause of the flooding and the amount of damages assessable in respect of it. Notwithstanding that change, I consider that a reference to cause is implicit in s 157(4)(b), as explained above. Thus in my view s 157(4)(b) is not as radically different, textually, as the respondents submit.
Further, in my opinion s 157(4)(b) is properly to be regarded as having the same purpose as the predecessor provisions. That is, it was intended to continue in existence the same substantive protection for water authorities as had been found in the predecessor sections. The judge appeared implicitly to accept that those predecessor sections would have operated to limit the damages payable by a water authority in circumstances where a concurrent cause of the loss was a natural event, such as a flood.[76] The respondents also appeared to accept that, although they submitted in the alternative that the earlier provisions did not have that effect. I record for completeness that I do not accept that alternative submission, which was based on the absence of a comma in s 263 of the 1956 Act and s 277 of the 1958 Act, and on the use of the word ‘also’ in s 263 of the 1928 Act. Those minor matters, which are likely to reflect drafting conventions of that era, do not require the conclusion that those earlier sections did not operate to limit the damages payable by a water authority in circumstances where a natural event also caused the loss.
[76]That is implicit in his Honour’s focus on the fact that the language of s 157(4)(b) was different from the language of the predecessor provisions, which he concluded meant that s 157(4)(b) operated differently from those provisions: Reasons, [126]–[128].
In my opinion it is clear that the predecessor provisions operated to limit the damages payable by a water authority in circumstances where there was a contributing cause of the loss (including a natural event).
(a)First, that emerges from the text: the court or arbitrator was first required to assess causation, then to assess the proportion of the authority’s responsibility. The plain implication is that the authority was to be responsible for that which it had caused, and not responsible for that which some other person or event had caused.
(b)Secondly, that construction of the predecessor provisions is supported by the extrinsic materials, which reveal that in the 1950s, when those provisions were enacted, there was a particular concern with the attribution to a water authority of 100 per cent of the loss caused by both its negligence and by natural flooding.[77] This was the ‘mischief’ to which the predecessor provisions were directed.
[77]See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 3 November 1954, 1520–3.
In relation to the second proposition, a significant impetus for the enactment of the 1954 Act appears to have been a decision of Sholl J, acting as an arbitrator, in Re Armstrong.[78] That case concerned whether compensation was payable by a water authority under the 1928 Act for flooding of the complainant’s land caused by the State Rivers and Water Supply Commission (the ‘Commission’), as well as by an ‘unprecedented’ storm.[79] Sholl J found that the storm would have caused flooding over the claimant’s land even if the Commission had not been negligent.[80] However, he concluded that the Commission’s works had produced flooding to a greater depth and of a greater duration (which he referred to as ‘excess flooding’) than would have occurred if the works had been of an appropriate nature.[81] Sholl J said that he considered the excess flooding to be ‘substantial’, but that it was not possible on the evidence to quantify it.[82] Although at that time, s 263 of the 1928 Act did not contain an apportionment provision, Sholl J nonetheless concluded that apportionment would be possible. However, he considered that, in light of relevant authorities, the onus was on the Commission to demonstrate the amount of the loss that was not due to its works.[83] If it failed to do so, it would be liable for the whole of the loss.
[78][1952] VLR 187.
[79][1952] VLR 187, 205.
[80][1952] VLR 187, 205.
[81][1952] VLR 187, 205, 206.
[82][1952] VLR 187, 206.
[83][1952] VLR 187, 207, 208.
Re Armstrong was referred to in the debates on the 1954 Bill.[84] It was perceived as creating an unexpectedly large scope for the liability of water authorities for negligence, give the reverse onus provision in the 1928 Act. In the second reading speech for the 1954 Bill in the Legislative Council, the Minister of Forests said this:
Clause 12 makes provision for the payment of compensation in respect of injury caused by flooding. Although it is not intended that the onus of proof shall be abolished completely so far as the commission is concerned, it is desired that the Commission shall not be held entirely responsible for … flooding that may result from the carrying out of necessary drainage works. Under the provisions of the Bill, compensation may be assessed in whole or in part, whereas previously, courts experienced difficulty in making a verdict for payment of other than the full amount of compensation.[85]
In my opinion these aspects of the context in which the 1954 Act was enacted support the conclusion that the purpose of the inclusion of the predecessor provision in s 263 was to ensure that water authorities were not liable for loss that was attributable to a cause other than their works — in particular, loss caused by a natural event.
[84]See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 3 November 1954, 1520, 1525.
[85]Victoria, Parliamentary Debates, Legislative Council, 7 December 1954, 2522–3 (Don Ferguson) (emphasis added).
Once it is accepted that this was the purpose and effect of the predecessor provisions, then in my opinion s 157(4)(b) ought to be understood as operating in the same way. That is because I do not consider that the textual differences between s 157(4)(b) and its predecessor provisions are sufficiently significant to demonstrate an intention to depart from that operation, and also because there is no indication in any of the extrinsic materials relating to the Water Act that, having adopted a provision with significantly similar language, albeit with some differences, the legislature intended drastically to reduce the protection afforded to water authorities by s 157(4)(b) from the protection that they had previously enjoyed.
In considering extrinsic materials it is also appropriate to consider the second reading speech for the Water Bill 1989. There it was said that the Bill involved ‘a complete rewrite’ of the law relating to water authorities, including a series of ‘major reforms’.[86] So much may be accepted. But the second reading speech did not list, as one of the ‘major reforms’, a significant expansion of the liability of water authorities for loss or damage caused by water that flowed from their works. Furthermore, the second reading speech observed that the existing statutes (of which there were many) were regarded as ‘a maze of out-dated, imprecise, overly complex and often inconsistent legislation’. The Minister observed that the Bill ‘replace[d] fifteen existing Acts, and over 1000 pages of out-dated statute law with about 200 pages of plain clear language’.[87] That aspect of the second reading speech suggests that a large part of the ‘re-writing’ of the law relating to water authorities involved simplification. That provides an explanation for the change in language as between the 1958 Act and the Water Act, other than an intention to depart from the existing meaning and operation of the protection provided to water authorities. While this would not, alone, have been sufficient to conclude that s 157(4)(b) operates in the manner for which Melbourne Water contends, it provides some additional support for that construction by reason of its explanation for the difference in language between the old and the new provisions.
[86]Victoria, Parliamentary Debates, Legislative Assembly, 26 May 1989, 2226, 2228 (Ronald Walsh, Minister for Water Resources).
[87]Victoria, Parliamentary Debates, Legislative Assembly, 26 May 1989, 2227 (Ronald Walsh, Minister for Water Resources).

Finally, I also note that in the debates on the Water Bill 1954, which first introduced a proportionate liability provision into the Water Act 1928, one member observed as follows:
The risk, under present conditions, is so great that no Government — irrespective of its political colour — would undertake the responsibility of major drainage works, because the moment anything is done in that regard, the whole of the responsibility for any damage caused lies with the Commission, which might really be responsible for only 90 per cent, or possibly 10 per cent, of the damage caused.[88]
What this passage reveals is the connection, in ordinary language, between the terms ‘cause’ and ‘responsibility’, as used in s 12(5) of the 1954 Act (and thereby inserted into the 1928 Act). That provides further support for the view I expressed above that, as used in the Water Act, the term ‘responsibility for’ is directed to causation, and not legal liability.
Relevance of other statutory regimes for apportionment between concurrent wrongdoers
[88]See, eg, Victoria, Parliamentary Debates, Legislative Assembly, 3 November 1954, 1522 (John McDonald).
Finally, it is necessary to say something about the relevance to the construction of s 157(4)(b) of other regimes for the apportionment of liability between concurrent wrongdoers, or between a tortfeasor and a person whose negligence contributed to their own injury.
It is convenient to commence with contributory negligence, involving the apportionment of liability between a plaintiff and a defendant for the damage caused to the plaintiff. That doctrine, and some of the authorities concerning the operation of that doctrine, pre-date the enactment of the Water Act 1989. In particular, the respondents relied upon the decision of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd concerning contributory negligence. In that case the Court said this:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.[89]
[89](1985) 59 ALJR 492, 494 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ); [1985] HCA 34 (citations omitted) (‘Podrebersek’).
So much may be accepted. But contributory negligence is necessarily predicated on two persons who may both have contributed to the loss suffered by the plaintiff — that is, on two concurrent wrongdoers, one of whom is the plaintiff. In that context there is no accounting for loss that may have resulted from natural causes. In contrast, for the reasons I have already given, s 157(4)(b) does not by its text require any such comparison. To the contrary, I consider that a purpose of that section is to permit a water authority to have its liability for loss reduced to take account of the contribution of natural causes to the loss. It is apparent from the history of the predecessor provisions to s 157(4)(b) that it is precisely that particular issue that resulted in the enactment of a special provision reducing the liability of water authorities for loss caused by the flow of water from their works. Thus I consider the relevant statutory context applicable to water authorities to be sufficiently different from the common law context of contributory negligence between a plaintiff and a defendant to mean that the principles concerning contributory negligence do not provide a basis for interpreting s 157(4)(b) in the manner for which the respondents contend. In particular, I do not consider that, in selecting using the word ‘responsibility’, Parliament was intending to incorporate into s 157(4)(b) the principles applicable to contributory negligence as expressed in Podrebersek. There was no mention of that case in the extrinsic materials, and in my opinion it is not appropriate to conclude that the adoption of an ordinary word, which is not a term of art, and which, as discussed above, has an ordinary meaning that includes causation, carries with it the importation of principles developed in a different legal context. That is so even though it may be that the legislature is to be taken to have been aware of the approach the High Court had adopted to contributory negligence.
In so far as the statutory regime for apportionment of liability between concurrent wrongdoers is concerned, that regime is found in pt IVAA of the Wrongs Act 1958. It is not necessary to set out that part in full. Rather, it is sufficient to observe that pt IVAA contains fifteen detailed provisions regulating apportionment of damages between concurrent wrongdoers. The key provisions, for present purposes, are as follows.
(a)The operative provision is s 24AI, which provides that:
(1)         In any proceeding involving an apportionable claim—
(a)         the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just having regard to the extent of the defendant’s responsibility for the loss or damage; and
(b)         judgment must not be given against the defendant for more than that amount in relation to that claim.
…
(3)         In apportioning responsibility between defendants in the proceeding the court must not have regard to the comparative responsibility of any person who is not a party to the proceeding unless the person is not a party to the proceeding because the person is dead or, if the person is a corporation, the corporation has been wound-up.
(b)‘Concurrent wrongdoer’ is defined in s 24AH, as follows:
(1)         A concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim.
(2)         For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died.
Again it is apparent that, in terms, pt IVAA applies to circumstances where there are ‘concurrent wrongdoers’ and does not deal with any contribution to loss or damage that might be caused by natural circumstances.
The definition of ‘concurrent wrongdoer’ might, on its face, be thought to encompass a merely factual contribution to the loss or damage in question. However, the respondents relied upon the remarks of Bell and Gageler JJ in Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd,[90] as follows:
To answer the description of ‘a person … whose acts or omissions (or act or omission) caused’ that damage or loss or harm, C (in common with B) must be (or have been) legally liable to A for the damage or loss that is the subject of the claim. The reference in the definition to ‘acts or omissions (or act or omission)’ is to one or more legally actionable acts or omissions. The reference in the definition to acts or omissions having ‘caused … the damage or loss that is the subject of the claim’ is not, as has correctly been held,[91] merely to causation in fact. ‘Questions of causation are not answered in a legal vacuum’ but ‘are answered in the legal framework in which they arise’.[92] The reference here is to causation that results, or would result, in legal liability.[93]
[90](2013) 247 CLR 613; [2013] HCA 10 (‘Hunt and Hunt’). That case concerned provisions in the Civil Liability Act 2002 (NSW), which were equivalent to pt IVAA of the Wrongs Act.
[91]Shrimp v Landmark Operations Ltd (2007) 163 FCR 510, 521–3 [59]–[62]. See also St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666, 682 [58], 684 [64].
[92]Chappel v Hart (1988) 195 CLR 232, 238 [7].
[93](2013) 247 CLR 613, 649 [91] (emphasis in original) (citations in original).
I note that Bell and Gageler JJ were in dissent in Hunt and Hunt. Furthermore, while their Honours considered Nettle JA’s decision in St George Bank Ltd v Quinerts Pty Ltd[94] to be correct, it does not appear that the majority in Hunt and Hunt held the same view.[95] Nor does it appear that the majority in Hunt and Hunt necessarily adopted the same approach to the reference to causation in the definition of ‘concurrent wrongdoer’:
The word ‘caused’, in a statutory provision in terms similar to s 34(2), has been read as connoting the legal liability of a wrongdoer to the plaintiff. The language of liability is used in contribution legislation, but not in Pt 4 of the Civil Liability Act. Nevertheless, it would usually be the case that a person who is found to have caused another’s loss or damage is liable for it. References to the liability of a wrongdoer should not, however, distract attention from the essential nature of the enquiry at this point, which is one of fact.
In determining the question of causation, it is necessary to keep clearly in mind the harm suffered by [the respondent company]: its inability to recover the moneys advanced. Merely to then state the obvious facts — that the moneys were advanced under the loan agreement and on the security of the mortgage — is to acknowledge that the harm suffered has more than one cause.[96]
[94](2009) 25 VR 666; [2009] VSCA 245.
[95](2013) 247 CLR 613, 634 [41] (French CJ, Hayne and Kiefel JJ).
[96](2013) 247 CLR 613, 635 [47]–[48] (French CJ, Hayne and Kiefel JJ) (citations omitted).
Later in the judgment, the majority observed as follows:
If a finding of causation is made with respect to other wrongdoers, so that a defendant is a concurrent wrongdoer within the meaning of s 34(2), s 35(1) then requires the court to determine the extent of the defendant’s responsibility. The value judgments involved in that exercise differ from, and are more extensive than, those which inform the question of causation.[97]
[97](2013) 247 CLR 613, 638 [57] (French CJ, Hayne and Kiefel JJ).
This latter passage provides some support for the respondents’ submissions concerning the meaning of the term ‘responsibility’ in pt IVAA of the Wrongs Act. But even accepting, for the purposes of a detailed apportionment regime such as pt IVAA of the Wrongs Act, that a reference to responsibility encompasses legal liability, and not simply causation, it does not follow that s 157(4)(b) of the Water Act falls to be interpreted in the same fashion. There are several reasons why, in my opinion, it should not be so interpreted.
(a)First, pt IVAA was inserted into the Wrongs Act in 2003[98] — many years after the enactment of s 157(4)(b). Its terms — and the meaning attributed to them by the courts — thus cannot shed light on the intention of Parliament at the time s 157(4)(b) was enacted.
(b)Secondly, pt IVAA operates in relation to apportionment between two legal persons; it is not concerned with natural causes of loss or damage. In contrast, as already explained, s 157(4)(b) is intended to deal with the contribution to loss occasioned by natural causes.
(c)Thirdly, one notable aspect of pt IVAA is how detailed a regime it prescribes for resolving issues of apportionment, including, in particular, rules requiring joinder of concurrent wrongdoers, with certain exceptions. It would be surprising if Parliament had intended to enact a regime of that kind simply by enacting the short provision found in s 157(4)(b).
(d)Fourthly, the text of pt IVAA includes the defined term ‘concurrent wrongdoer’. The word ‘wrongdoer’ supports the proposition that the person who contributed to causing the loss or damage, so as to trigger the apportionment provisions, has committed a (legal) wrong.
[98]Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003, s 3.
For these reasons, I do not consider that the operation of pt IVAA of the Wrongs Act supports the respondents’ construction of s 157(4)(b). To the contrary, in my opinion the detailed regime found in that part, as compared to the sparse text of s 157(4)(b), supports the proposition that s 157(4)(b) is a provision of quite a different kind, directed to quite a different problem. Had the legislature intended to include in the Water Act a regime directed to legal liability of concurrent wrongdoers, it would have used quite different language from that found in s 157(4)(b).
An issue that remains undecided
This appeal concerned whether the judge was right to strike out parts of the Amended Points of Defence on the basis that Melbourne Water was required to plead facts which show the basis upon which it contends that other persons bear a legal liability for the loss as claimed. I have concluded that the judge was wrong in that regard. However, this Court was not called upon to decide on this appeal whether, when determining whether there is some other person or event responsible for the loss in question, ‘responsibility’ connotes factual causation (based on a ‘but for’ test) or legal causation, in which value judgments and policy considerations have a part to play in determining whether an act is sufficient to bring about the harm suffered by a plaintiff, and where the law has adopted a ‘common sense’ approach.[99] A common sense approach to causation might, for example, provide an answer to the respondents’ hypothetical case concerning hundreds of people running or walking on a levee that was negligently constructed, and thus causing loss in a factual sense (along with the entity responsible for the negligent construction), but not in a legal sense. It may be that s 19(9) assists in resolving this issue even though, as already noted, it is not in terms directed to ‘responsibility’ or to s 157(4)(b). But it is not appropriate to determine this issue in this case, in the absence of the issue having arisen for determination and been fully argued.
[99]See, eg, March v E & MH StramarePty Ltd (1991) 171 CLR 506, 515 (Mason CJ), 523 (Deane J); [1991] HCA 12; Hunt & Hunt (2013) 247 CLR 613, 634 [43], 637–8 [57] (French CJ, Hayne and Kiefel JJ); [2013] HCA 10.
Thus, while in my opinion it is open to Melbourne Water to plead that other persons are ‘responsible’ for the loss claimed, without pleading that they are legally liable to the claimant, the question whether those persons would ultimately be regarded as ‘responsible’ for the loss would fall to be resolved by the judge at the hearing of the matter, in circumstances where the judge has before him all the relevant evidence that will assist him to resolve this additional question of construction in light of a concrete set of facts.
Finally, I note that it is also possible that there may be further issues of construction of s 157 that emerge once the matter progresses to trial, which will not have been resolved by this Court’s decision.
Conclusion
In light of the above, I consider that the answer to the Question of Law raised by this appeal is ‘no’. That is, a water authority in its defence to a claim that relies upon s 157(4)(b) of the Act is not required to plead facts which show the basis upon which it contends that other persons bear a legal liability for the loss as claimed.
---

SCHEDULE OF PARTIES

MELBOURNE WATER CORPORATION	Applicant
and
VAUGHAN CONSTRUCTIONS PTY LTD (ACN 004 334 543)	First Respondent
KV COOPER PTY LTD (ACN 609 267 763)	Second Respondent
DRAKON INVESTMENTS PTY LTD (ACN 609 250 740)	Third Respondent

[2022] VSCA 241

10 November 2022