I would be interested to see a Tribunal ruling (if one exists) that the affected neighbour had no claim against the upstairs owner unless they could prove negligence.
Here’s one: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2015/1912.html
There are others as well but I think that one is a fair example. It’s a spontaneous plumbing leak event. In this case a sewage containment leak. And the “upstairs owner” is the Owners Corporation but it could have been a lot owner.
The affected lot owner claimed $9,494.00 in damages from the OC. But lost. They could not establish the OC’s negligence or failure to maintain its common property …
I have a huge problem with the idea (often repeated here) that a failure to contain water in one person’s apartment is not their responsibility if it accidentally floods another unit –
… or the OC’s requirement to contain the flow eg under Water Act.
Two of the case findings:
- The OC did not breach its duty under s47 of the OCA to repair and maintain the sewer stacks; and
- The OC did not cause the flow of sewerage from the sewer stack into the apartment of Mr O’Connor under s16 of the Water Act 1989.
There’s no mention of a trespass claim. I believe trespass requires intent.
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