Bur­den of proof lies with G-MW

Shepparton News - Country News - - OPINION -

Re: ‘Feud over prop­erty dam­age’ (Coun­try News, Au­gust 8).

Goul­burn-Mur­ray Wa­ter has the bur­den of prov­ing that it acted with care and skill when it dam­ages pri­vate prop­erty in the ex­er­cise of its pow­ers.

This means it has to show that there was no prac­ti­cal way of avoid­ing the dam­age.

The bur­den is hard to shift.

The re­verse onus of proof, in my opin­ion, is the foun­da­tion of the duty of G-MW to find out what ir­ri­ga­tion in­fra­struc­ture ex­ists be­fore it en­ters land to do works (or it au­tho­rises con­trac­tors to do so).

In the ab­sence of proper records of what ex­isted be­fore be­ing dam­aged or de­stroyed, G-MW, in my opin­ion, must re­con­struct in­fra­struc­ture to best prac­tice stan­dard in the dis­trict, even if the stan­dard is bet­ter than pre­vi­ously ex­isted.

G-MW must en­sure that its au­tho­rised con­trac­tors act with care and skill not to cause dam­age when they en­ter pri­vate prop­erty in ex­er­cise of statu­tory pow­ers and G-MW will it­self be li­able for the dam­age they caused, in my opin­ion, if it does not. — Ed­win Ken­non


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