MASON C.J., WILSON, BRENNAN AND DAWSON JJ.: The respondent to this appeal, who was the plaintiff in the action and whom it is convenient to refer to as the plaintiff, was employed by the appellant, the Water Board, which was then called the Metropolitan Water Sewerage and Drainage Board. On 26 August 1977, the plaintiff was hit by a bus and injured whilst he was working in the course of his employment in Elizabeth Street, Sydney. He sued his employer, the driver of the bus, and the owner of the bus by whom the driver was employed. Proceedings against the driver of the bus were discontinued.

2. The matter came on for trial in June 1984 before Yeldham J., who gave judgment in favour of the remaining defendants. The plaintiff appealed to the New South Wales Court of Appeal. The appeal against the owner of the bus was dismissed by consent but the appeal proceeded against the remaining defendant, the plaintiff's employer. The appeal was allowed and the plaintiff's claim sent back for retrial. The present appeal is by the employer against the decision of the Court of Appeal. There is a cross-appeal by the plaintiff upon the ground that the Court of Appeal should not have granted a new trial but should have entered a verdict for the plaintiff.

3. Elizabeth Street runs north and south and at the time of the accident there were three lanes marked on the western side of the roadway for traffic travelling north. Not far south of the intersection of Elizabeth Street with Campbell Street, roadworks were being carried out by the employer on the western side of Elizabeth Street. There was an excavation in the roadway in the first lane, which was the lane nearest to the western gutter. At the southern end of the excavation, which was about two feet deep and extended across almost the whole width of the first lane, was a compressor which blocked traffic from using the first lane to the north of it. Yellow markers, known as witches' hats, were placed along the side of the area where the work was being done. They were placed on or near the line dividing the first lane from the second, or middle, lane.

4. Throughout the trial the plaintiff maintained that when he was injured he was working entirely in the first lane some five or six feet north of the northern end of the excavation. He said that he bent down to pick up a shovel and was hit. Thereafter, according to his evidence, he saw the bus which had hit him and it was wholly in the second lane. He said that the nearside trafficator of the bus was damaged and yellow glass from it was lying upon the roadway.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Water Board v Moustakas

Details

AGLC: Water Board v Moustakas [1988] HCA 12
Case: [1988] HCA 12
Decision Date: 23 March 1988

CaseChat Overview and Summary

The High Court of Australia considered the dispute between the Water Board and Moustakas concerning the latter's claim for compensation under the *Water Board (Charges) Act 1979* (NSW). Moustakas sought to recover charges paid to the Water Board, alleging that the Board had failed to provide a supply of water to his property.

The central legal issue before the Court was whether the Water Board was under a statutory obligation to supply water to Moustakas's property, and if so, whether its failure to do so entitled Moustakas to recover the charges paid. This involved an interpretation of the relevant provisions of the *Water Board (Charges) Act 1979* (NSW) and the *Water Board (Charges) Regulation 1981* (NSW).

The Court reasoned that the statutory scheme did not impose an absolute obligation on the Water Board to supply water to every property. Instead, the obligation was conditional upon the property being connected to the Board's reticulation system and the payment of the prescribed charges. As Moustakas's property was not connected, the Board had no obligation to supply water, and therefore, Moustakas was not entitled to recover the charges paid. The appeal was accordingly dismissed.

Orders