Perth v Halle

The case of *Perth v Halle* involved an appeal to the High Court of Australia from a judgment of the Supreme Court of Western Australia. The respondent, Halle, had sued the appellants, the Municipality of Perth, alleging that the negligent construction and maintenance of a stormwater drain in Royal Street had caused large quantities of sand and water to be removed from the subsoil, resulting in subsidence and damage to his houses.

The central legal issues before the High Court were whether the Municipality was liable for the damage caused by the removal of sand and, alternatively, for damage caused by the withdrawal of subterranean water. The Municipality contended that they were not liable for the mere abstraction of water, relying on the principles established in cases such as *Chasemore v. Richards* and *Popplewell v. Hodkinson*, which generally protect landowners from liability for draining percolating water from their own land. They also argued that any damage was due to faulty construction of the houses or the inherent marshy nature of the land.

The High Court, affirming the judgment of the Supreme Court, held that the Municipality was liable for the loss of support caused by the removal of sand due to the negligent construction and maintenance of the drain. The Court reasoned that while the Municipality had statutory authority to construct drains, this authority did not extend to negligent execution or maintenance. Furthermore, the Court found that the Municipality did not possess the full proprietary rights of a landowner in the soil of the street, which would have been necessary to invoke the full protection of the *Chasemore v. Richards* doctrine. Griffith C.J. stated that the Municipality's rights were limited by statute, and exceeding those powers placed them in the position of a wrongdoer. The Court also indicated that even if the damage had resulted solely from the withdrawal of water, the Municipality would likely still be liable because they were not owners of the soil in a manner that would grant them immunity, and their actions exceeded the scope of their statutory authority.

The High Court varied the judgment of the Supreme Court by limiting the recoverable damages to those caused by the Municipality's negligence, excluding any damage that would have occurred even if the drain had been constructed and maintained without negligence. The appeal was otherwise affirmed.