Some time ago, my client’s business suffered substantial damage when a water main burst and flooded his buildings. Insurer for the water authority refused claim saying it was not responsible, the claim for negligence could not be proved and as the water main had been in satisfactory use for at least seven years. I found otherwise:

This is what I said:

Inspection Findings:

The most telling finding is the presence of deep gash in the water main pipe wall.

The most likely cause of the pipe damage is excavating machine or equipment damage to the pipe.

The pipe may have been damaged in stock or at the time of laying.

Expert opinion:

 The pipe failed because it cracked at the wall weakness caused by a deep gash.

The reason it did not fail immediately and did so after seven years is that despite the gash it still had some residual wall strength.

Pulsations caused by variance in pipe pressure and the momentum of moving liquid eventually caused material fatigue/wear and the failure.

Normally good defence against negligence is documented satisfaction of critical procedures/testing however in this case there has been manifested failure at four levels:

1)    Operational level: Training and education. It is difficult to see how properly trained pipe installers exercising their art with reasonable care and skill could have failed to see the damaged pipe and if they did why did they let it remain in the ground?

2)    Supervisory level: Properly trained and experienced supervisor exercising his art with reasonable care and skill should have picked up damaged pipe and ordered it to be replaced.

3)    Quality Assurance: It is difficult to see how the respondent could not have effective QA system in place and if it did why has it failed to pick up obvious pipe damage.

4)    Failure to properly document and record the three steps as outlined above.

For the reasons given above it is my opinion that the (damaged) pipe was laid negligently, that failed supervision did not pick up defect and furthermore that QA system that is there precisely to pick up such defects, has failed.

That is negligence.

Guess what? Insurer paid up!

The moral of this story is: don’t accept refusal without a fight, they may be just bluffing.

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