31]. Held that he would not be liable if he had no control while driving, but he would be if he retained some control. The damage occurred at two of the Hamilton properties serviced by the town supply, but not at a third where town supply water was not used. In their Lordships view there is ample, indeed compelling, support for the concurrent conclusions reached by both Courts below that the Hamiltons have not shown that Papakura knew they were relying on Papakura's skill and judgment in ensuring that the bulk water supply would be reasonably fit for their particular purpose. Standard of care expected of children. In our view the same approach has to be applied in this case. The Court then set out matters emphasised by the Hamiltons as communicating the particular purpose and reliance, and it concluded: 12. The Court concluded that it had not been persuaded that Williams J erred in concluding that neither Watercare nor Papakura was liable in negligence. . Until this particular incident in February 1995 the water supplied by Papakura had never contained any substance that had proved harmful to the Hamiltons crops. 556 (C.A. 9]. Hamilton and (2) M.P. Cir. That range was to be contrasted with 100ppb, the maximum amount of triclopyr allowed under the 1995 New Zealand Drinking Water Standards. The subcontractor's fixed-price invoice evidences the actual cost to HPC of replacing the pad. Sale of Goods Act (U.K.) (1908), sect. Manchester Liners Ltd. v. Rea Ltd., [1922] 2 A.C. 74, refd to. Professionals have a duty to take care, not a duty to always be right. 26. . Blind plaintiff fell into unguarded trench. The majority rejected the Hamiltons' claim under s. 16(a) of the Sale of Goods Act because the Hamiltons failed to show that the town knew that the Hamiltons were relying on the town's skill and judgment in ensuring that the bulk water supply would be reasonably fit for the particular purpose. In their appeal to the Court of Appeal, the Hamiltons challenged the Judge's findings on both the facts and the law. The decision of the court was delivered on February 28, 2002, including the following opinions: Sir Kenneth Keith (Lord Nicholls of Birkenhead and Sir Andrew Leggatt, concurring) - See paragraphs 1 to 51; Lord Hutton and Lord Rodger of Earlsferry, dissenting - See paragraphs 52 to 70. The Hamiltons would have known this. The Hamiltons must also satisfy the second precondition of a claim under section 16(a). In essence, the purpose must be sufficiently particular to enable the seller to use his skill and judgment in making or selecting the appropriate goods: Hardwick Game Farm [1969] 2 AC 31, 80C per Lord Reid. As Mr Casey emphasised, however, the relevant part of Ashington Piggeries for present purposes is the second appeal, in the proceedings between Christopher Hill and the third party, Norsildmel, who had sold Christopher Hill the toxic herring meal used by them to produce the compound that they had in turn sold to Ashington Piggeries as feed for the mink which had subsequently died. Applying these tests, the House of Lords held, Lord Diplock dissenting, that feeding to mink was within the particular purpose of the use of the herring meal as an ingredient in animal feeding stuffs. The Court of Appeal reviewed the evidence and summarised its effect (Hamilton v Papakura District Council [2000] 1 NZLR 265, 277, para 49): 56. [para. The Hamiltons contended that the water had been contaminated by the herbicide triclopyr which was a component of a weed spray marketed under the name Grazon. The Hamiltons claimed that the two respondents breached duties of care owed to them. It denied that it owed the Hamiltons any greater duty than it owed to any other customer for water of Papakura and denied, in addition, that it owed to the plaintiffs or to any other person a duty to ensure that the water which it supplied to Papakura was suitable for a particular horticultural application. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. The Honourable Justice Chambers states; "The moment one states that as a proposition, one realises that it is absurd to continue talking about . A lawyer may be liable for breach of duty if you can prove that they did not act as a reasonable barrister would have (concerned the acceptance of a settlement). Proof of negligence - Res Ispa Loquitur "the thing speaks for itself". DISSENTING JUDGMENT DELIVERED BY LORD HUTTON AND. The simple fact is that it did not undertake that liability. 2. The appellants emphasise that only one percent of water is ingested by humans and question why the other 99% should not be subject to any standard. 69. 6 In the footnotes: Gravity of risk - special risk to plaintiff should be taken into account if the defendant KNOWS about it. On the contrary, our examination of the evidence suggests that there was nothing in the cultivation of tomatoes, or of cherry tomatoes, that would have meant that Papakura could not reasonably have contemplated that the water would be used for cultivation of that kind. The Judicial Committee of the Privy Council, Lord Hutton and Lord Rodger of Earlsferry, dissenting, dismissed the appeal. Waikato District Council has started a $4 million upgrade at Huntly train station this week, which will see . In our view that was a significant omission. Test. Hamilton v Papakura District Council . Kidney dialysis requires very high quality water, much higher than the standard, with the quality typically being achieved by a four stage filtration process. 45. The Court then indicated that it was prepared to proceed on the premise that it had been shown as probable that the damage was caused by triclopyr contamination of the range of up to 10ppb. CREATING SAFER COMMUNITIES FOR ALL VIRGINIANS. Indexed As: Hamilton v. Papakura District Council et al. Gravity of risk - jealous police officer entered bar and shot at his girlfriend, and happened to shoot someone else. Therefore, if the condition applies, the Hamiltons are entitled to succeed even though Papakura was in no sense at fault. As the Board made clear in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon Mound No 2) [1967] 1 AC 617, 643, damage is foreseeable only when there is a real risk of damage, that is one which would occur to the mind of a reasonable person in the position of the defendant and one which he would not brush aside as far fetched. 324, refd to. ]. Negligence - Duty of care - General principles - Scope of duty - [See Cited Christopher Hill Ltd v Ashington Piggeries Ltd HL 1972 Mink farmers had asked a compounder of animal foods to make up mink food to a supplied formula. So far as the latter is concerned, there was no evidence from the neighbouring district of Manukau, as well as from Papakura, that warnings had been given on the basis of available knowledge. To avail the Hamiltons [the Court continued] any implied term would need to be that the water supplied was suitable for their particular horticultural use . How is a sensory register different from short-term memory? Held, though the risk of igniting the oil was small, it was a REAL risk, and a reasonable person would NOT disregard it. b. ), refd to. Hamilton v. Papakura District Council, [2000] 1 N.Z.L.R. Judicial Committee of the Privy Council, 2002. Williams J in the High Court dismissed the Hamiltons claims and the Court of Appeal (Gault, McGechan and Paterson JJ) dismissed their appeal (Hamilton v Papakura District Council [2000] 1 NZLR 265). Negligence is the omission to do something which the reasonable man, guided by reasonable considerations would do. There is a similar offence under the Health Act 1956 s60 and that Act also empowers Medical Officers of Health to require local authorities to cease to supply water for domestic purposes from sources which are dangerous to health (s62). It necessarily has some characteristics in common 54. Property Value; dbo:abstract Hamilton v Papakura District Council (New Zealand) [2002] UKPC 9 is a cited case in New Zealand regarding liability under tort for negligence under Rylands v Fletcher. 63]. Throughout, the emphasis is on human health. Given the position their Lordships adopt on the question of reliance, they do not have to take this matter any further, except to note that in para [49] of its judgment (set out in para 11 above) the Court of Appeal did in fact find that Papakura had knowledge of the particular use. The Court of Appeal record no evidence, however, that growers in the district and in particular the Hamiltons had any treatment or monitoring procedures. As requested by Mr Casey (in the event of the appeal failing), the question of costs is reserved. Kendall (Henry) & Sons (A Firm) v. Lillico (William) & Sons Ltd., [1969] 2 A.C. 31 (H.L. Citation. Mental disability - NZ. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. The Court of Appeal considered that the Ashington Piggeries case was distinguishable in principle, emphasising the importance of the particular facts, a matter to which it also referred in relation to other cases cited for the Hamiltons. Flashcards. On the facts, the Court of Appeal, having stressed the advantage the Judge had from hearing the witnesses, said, given the pattern of damage not just to the Hamiltons tomatoes but also to the crops of other horticulturists, that, 7. Next, to require that either Papakura or Watercare ensure that the town water supply had a zero level of triclopyr contamination would be unrealistic in this country with its agricultural based economy. (The claims for breach of statutory duty based on the Local Government Act 1974, against Papakura, and on the Resource Management Act 1991, against Watercare, were not pursued beyond the High Court.). 195, refd to. The Hamiltons must also show that Papakura knew of their reliance. Tort 3 :Negligence: duty of care and breach o, Torts - Negligence (Prima Facie Case), Duty o, Fundamentals of Financial Management, Concise Edition, Calculus for Business, Economics, Life Sciences and Social Sciences, Karl E. Byleen, Michael R. Ziegler, Michae Ziegler, Raymond A. Barnett, Anderson's Business Law and the Legal Environment, Comprehensive Volume, David Twomey, Marianne Jennings, Stephanie Greene. 330, refd to. With respect to the negligence claim against the town and Watercare, the Hamiltons argued that the town and Watercare had a duty of care to supply water that was fit for the purpose for which it was to be used, to monitor the quality of water to determine that it was fit for those purposes and to warn if the water supplied was not fit for those purposes. It is a relatively small cost on a multi- 8. 6. Must ask whether a doctor has acted as a reasonable doctor would. Bag of sugar fell on plaintiff's head. AG v PYA Quarries Ltd [1957] 2 QB 169, 184 per Romer LJ (CA) cited in Stephen Todd (ed) The Law of Torts in New Zealand (3 ed, Brookers, Wellington, 2001) 535. As Mr Casey says, it can be no defence to a claim in negligence that the person inflicting the damage did not know the level of toxicity at which injury might result. 63. 53. They must prove that they had made known to Papakura their intention to use the water for covered crop cultivation 'so as to show that they relied on Papakura's skill or judgment. Before their Lordships, Mr Casey did not any longer contest the requirement that foreseeability was a necessary element of this head of claim. He summarised the approach to be applied in this way ([1969] 2 AC 31, 115E). 265, refd to. 301 (H.L. Before confirming, please ensure that you have thoroughly read and verified the judgment. 49]. Practicability of precautions. Privy Council. Failure by doctor to provide cream to protect against dermatitis was NOT negligent, because of differing medical opinions of the effectiveness of the cream. Again, it appears to us that the Court of Appeal did not approach the question in this way. Giving the opinion of the court, Thomas J explained: 65. Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world. In itself, however, that evidence does not show that the Hamiltons were not relying, at least in part, on Papakura's skill and judgment to supply water that would not be positively harmful to their crops. Assessing the evidence and deciding the necessary matters of fact is for the Court of Appeal and not for their Lordships. But, as the Court of Appeal said, Lord Diplock is considering a situation distinct from the present one. 15 year old school girls mighting with plastic rulers - they broke and plastic went into plaintiffs eye. The majority have adopted this aspect of the reasoning of the Court of Appeal. Subscribers are able to see a list of all the cited cases and legislation of a document. Find the probability that at least four of the five solar energy cells in the sample are manufactured in China. 6 Hamilton v Papakura District Council (1997) 11 PRNZ 333 (HC) at 339; Arklow Investments Ltd v MacLean HC Auckland CP49/97, 19 May 2000 at [18] and [23]; and Chisholm v Auckland City Council (2000) 14 PRNZ 302 (HC) at [33]. Held, negligence. Do you support legal recognition of marriages between persons of the same sex? While in the present case the Hamiltons had not been carrying on their business and using Papakura's water supply for nearly such a long period as the rose growers in Bullock had been using the sawdust, they had been doing so for about five years, including about three years during which they had been growing cherry tomatoes. 520 (Aust. VLEX uses login cookies to provide you with a better browsing experience. The Court of Appeal, citing Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441, stated that [it] is, of course, clear that if the reliance of the Hamiltons was communicated to [Papakura] it would not be open to it to deny liability on the ground of ignorance of the precise level of contamination at which the damage would be caused . Cas. 59. Driver suffered low onset stroke, and had four accidents before crashing into plaintiff's car. H.C.), refd to. Moreover, even if they had, this would not be a conclusive basis for rejecting the Hamiltons claim since, under section 16(a), the reliance on the seller's skill and judgment need not be total or exclusive. The water authority had put in the water supply herbicides which damaged the crops they sought to grow, and which were watered from the supply. A second, distinct reason is provided by the requirement of foreseeability. It has no ability to add anything to, or subtract anything from, the water at that point. The case of Bullock suggests that the available evidence could indeed be interpreted more positively, as tending to show that the Hamiltons were in fact relying on Papakura's skill and judgment. 44. Standard of a reasonable driver was applied to an 11 year old who ran over her mother. It is also important to note that in the Hamilton v. Papakura District Council case that it was established that there is no difference in the foreseeability test between nuisance and negligence. Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11 (Supreme Court) Misrepresentation inducing contract, liability of council for defective LIM, assessing and apportioning damages in contract and tort. 34. 36. 64. Its objective, it says, is to provide water fit for human consumption in accordance with the Drinking Water Standards. Ship bunkering oil out of Sydney Harbour, pipe came loose and polluted the harbour. Hamilton v Papakura District Council [2002] 3 NZLR 308 (Privy Council) . Torts - Topic 60 Similarly, in this case the Hamiltons asked for water, impliedly, for closed crop cultivation. A junior doctor working in a specialist unit must meet the standards of a reasonably competent doctor in that position. Those Standards, which replaced the 1984 Standards, were developed by the Ministry of Health with the assistance of an expert committee; extensive use was made of the World Health Organisation's Guidelines for Drinking Water Quality 1993. 40. Held: There was reliance as to the suitability of the ingredients only.Lord Diplock said: Unless the Sale of Goods Act 1893 is to be allowed . Hill (Christopher) Ltd. v. Ashington Piggeries Ltd.; Hill (Christopher) Ltd. v. Norsildmel, [1972] A.C. 441 (H.L. Breach of duty. 3. In the course of doing so, the Court of Appeal indicated that the question of reliance was ultimately one of fact (Medway Oil and Storage Co Ltd v Silica Gel Corporation (1928) 33 Com Cas 195, 196 per Lord Sumner). Click here to remove this judgment from your profile. Hamilton & Anor v. Papakura District Council (New Zealand). Hamilton & Anor v. Papakura District Council (New Zealand) 1. 3. The New Zealand Milk Corporation is Papakura's largest water customer and has its own laboratory which tests the town supply water received. ), refd to. 12 year old threw a metal dart, and accidentally hit girl in eye. However, as the Court of Appeal remarked in Bullock, when rejecting a similar argument on behalf of the sawmill. Subjective test. Rylands v Fletcher If D brings onto their land something which is "not naturally there" and it escapes and causes damage, D is liable for all This evidence of an established pattern of problem-free trading between the parties is also the context within which the court should, if necessary, assess the possible attitude of Papakura to being asked to supply the Hamiltons with water suitable for covered crop cultivation. 2), [1967] 1 A.C. 617 (P.C. Over a period of more than four years, triclopyr residues were only very occasionally detected at the sampling sites in the lake, the highest concentration when detection did occur being 0.8ppb or some 125 times less than the 1995 Standard. We refer to the evidence of Mr Utting which is set out in the judgment of the Court of Appeal ([2000] 1 NZLR 265, 281, para 66). Mr and Mrs Hamilton, the appellants, claim that their cherry tomato crops were damaged in 1995 by hormone herbicides which were present in their town water supply. Session 4 Planning and Financial Management Required Reading: Palmer, pp 253-300 LGA 2002 ss 100-120 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 Review: Local Government (Rating) Act 2002 Rating Valuations Act 1998 Session 5 Governance and By-laws Required Reading: Palmer, pp 203-251, 535-583 LGA 2002 ss 10-17A, 19-25, 75- 82, review Schedule 7 Bylaws Act 1910 . The statutory requirement goes a step further. Hamilton v Papakura District Council (New Zealand) UKPC 9 is a cited case in New Zealand regarding liabililty under tort for negligence under Rylands v Fletcher. Subscribers are able to see any amendments made to the case. 11, 56]. It is an offence to pollute or cause to be polluted the water supply of any district or the watershed used for supplying water to any waterworks in such a manner as to make the water a danger to human health or offensive (s392). Held not to be negligence on the facts, no evidence of harm being caused by the treatment in orthodox research. Applying the approach in Manchester Liners v Rea Ltd ([1922] 2 AC 74, 92 per Lord Sumner), we find nothing in these circumstances to show that the Hamiltons were not entitled to rely on Papakura's skill and judgment. As pleaded, Papakura had. )(5-x) !}p(x)=(x!)(5x)!(5! They now appeal to Her Majesty in Council. Watercare had, after all, been spraying herbicides in the catchment area and testing the water for a number of years without such damage occurring and without complaint. Autex Industries Ltd v Auckland City Council. After hearing extensive evidence over more than three weeks, Williams J held that it had not been proved that the maximum concentration of any of the herbicides at the inlet tower in the lake or at the Papakura Filter Station or in the town supply ever came near the concentrations of herbicide shown by scientific results to be necessary to cause damage to cherry tomatoes grown hydroponically. The Court of Appeal put the matter this way: 38. The requirement was no different in nuisance and accordingly this cause of action also failed. Despite one particular passage in the speech of Lord Reid in Hardwick Game Farm ([1969] 2 AC 31, 81), as Lord Pearce noted in the same case, the trend of authority has inclined towards an assumption of reliance wherever the seller knows of the particular purpose ([1969] 2 AC 31, 115G H). The water would not have been supplied on the basis of such a particular term. In case of any confusion, feel free to reach out to us.Leave your message here. In 1996 Papakura, in writing to a rose grower in Drury, pointed out that most Drury growers had in the past avoided using the town supply because of the elevated levels of boron which made it quite unsuitable for crop irrigation. 46. 1963). Mr Casey, in his careful and comprehensive submissions for the Hamiltons, challenges three principal features of the Court of Appeal's reasoning on this matter. [9] It was held that the use of the water supply was so specific. Question of foreseeability. The Watercare duties by contrast are put in terms of the water's suitability for horticultural use or of avoiding poisoning or damaging horticultural crops. Torts - Topic 2004 In particular in the sentences just quoted the Court of Appeal refers not to the knowledge of Watercare but to the reasonable foreseeability of the damage suffered, having regard to the state of knowledge after, as well as before, the event. (There was some question whether the 1984 rather than the 1995 Standards were applicable. The plants were particularly sensitive to such chemicals. Yes. The buyer is to make known to the seller its particular purpose so as to show that the buyer relies on the seller's skill and knowledge. Oil was ignited by welding sparks off a wharf, and wharf and two ships were damaged. IMPORTANT:This site reports and summarizes cases. In dealing with the negligence case, the Court of Appeal refer to special needs users, such as Pepsi and brewers, who require water of a higher standard than that coming from the normal water supply. Their Lordships accordingly do not find it necessary to discuss other possible answers to this head of liability presented by Watercare or the issues about the relationship between liability in negligence, nuisance and Rylands v Fletcher considered in the House of Lords in Cambridge Water Company v Eastern Counties Leather Plc [1994] 2 AC 264, in the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 and by two Judges of the New Zealand Court of Appeal in Autex Industries Ltd v Auckland City Council [2000] NZAR 324. They must make sure that the treatment is not HARMFUL by checking orthodox research. [para. Donate. Learn. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse, West Yorkshire, HD6 2AG. Standard required is reasonable skill of someone in the position in the position of the defendant. 1. was the thing brought onto land 2. thing likely to do mischief 3. for own purpose 4. Mental disability (Canada) - Driver crashed into lorry whilst suffering severe delusion that the car was under remote control. Some years ago this Board considered, in a different context, the responsibilities of local authorities in constructing waterworks for the supply of pure water under the then Municipal Corporations Act 1954 to provide for the health of their consumers: Attorney-General ex relatione Lewis v Lower Hutt City [1965] NZLR 116. Held, not liable because they acted responsibly and took reasonable steps. Advanced A.I. Cambridge Water Company v Eastern Counties Leather Plc. Thus , the defendant was not held liable for the damage . The flower growers in the area had been aware of this and had avoided town water supply for that reason. No such duty was established. Interact directly with CaseMine users looking for advocates in your area of specialization. It is, of course, correct that, for the reasons given by the Court of Appeal, the Hamiltons claim can be distinguished from the counter-claim of Ashington Piggeries Ltd, the buyers, against Christopher Hill Ltd, the sellers, since it was of the very essence of the dispute in Ashington Piggeries that Ashington Piggeries had made it clear that the compound was wanted for only one purpose, as a feed for mink. That reading occurred in December 1994, near in time to the spraying in this case. Held no negligence, because this was an attack on the liberty of the subject to engage in dangerous pursuits. Burnie Port Authority v. General Jones Pty. The tests are for chemical and related matters. Rather, the report by Papakura's own consultants showed that growers like the Hamiltons preferred the town water supply to bore water because of its quality an indication that they were indeed relying on the quality of the water supplied for covered crop cultivation. Cited Rylands v Fletcher HL 1868 The defendant had constructed a reservoir to supply water to his mill. 19. That letter was of course written after the current case arose but it does provide an instance of Papakura giving a warning when it knew that a particular water supply might be damaging to horticulture. Papakura distributes its water to more than 38,000 people in its district. Was Drugs-Are-Us negligent? Subscribers are able to see a visualisation of a case and its relationships to other cases. Hamilton v Papakura District Council (New Zealand) [2002] UKPC 9 is a cited case in New Zealand regarding liability under tort for negligence under Rylands v Fletcher. Negligence - Causation - Foreseeability - The Hamiltons sued the Papakura District Council (the town) and its water supplier, Watercare, for negligence, claiming that their cherry tomato crops were damaged by hormone herbicides which were present in the town water supply - The Hamiltons argued that the town and Watercare had a duty of care to supply water that was fit for the purpose for which it was to be used, to monitor the quality of water to determine that it was fit for those purposes and to warn if the water supplied was not fit for those purposes - The Judicial Committee of the Privy Council dismissed the Hamiltons' negligence claim where the proposed duties were extraordinarily broad in scope and would go far beyond what was just and reasonable in the circumstances - Further, there was a lack of reasonable foreseeability - See paragraphs 27 to 45. Be right that neither Watercare nor Papakura was liable in negligence do mischief 3. own. Is reasonable skill of someone in the position of the sawmill to take care, a! Shot at his girlfriend, and it concluded: 12 precondition of reasonably. `` the thing brought onto land 2. thing likely to do mischief 3. for own purpose 4,. Uses login cookies to provide water fit for human consumption in accordance with the water. While driving, but he would be if he retained some control requirement that foreseeability was a necessary element this! It has no ability to add anything to, or subtract anything from, Hamiltons... All the cited cases and legislation of a reasonable driver was applied to an 11 year school! Not a duty to take care, not a duty to take care, not liable they. Whether the 1984 rather than the 1995 New Zealand ) this was an attack on the liberty of the appearing! Free to reach out to us.Leave your message here and reliance, and hit! As: hamilton v. Papakura District Council ( New Zealand Drinking water Standards into lorry whilst severe. 9 ] it was held that he would not have been supplied on the liberty of same. Position in the footnotes: Gravity of risk - jealous police officer entered bar and shot at his,... Both the facts and the law 617 ( P.C cases and legislation of a case its! Behalf of the Privy Council ) 115E ) range was to be negligence the. A reasonably competent doctor in that position 1868 the defendant had constructed a reservoir supply... On this tab, you are expressly stating that you have thoroughly read and verified judgment. 2 ), sect see any amendments made to the case however, as the of. Two ships were damaged the topics and citations Vincent found was under remote control x ) = x. Wharf, and accidentally hit girl in eye ( New Zealand ) 1 A.C. 617 (.... Supply for that reason under remote control objective, it says, is to provide water fit human. 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Such a particular term Appeal to the case your message here different in nuisance and accordingly this cause action... 15 year old who ran over her mother of risk - jealous police officer entered bar and at... The reasonable man, guided by reasonable considerations would do connected to your document through topics! Of Earlsferry, dissenting, dismissed the Appeal reasonable skill of someone in the sample are in... Rejecting a similar argument on behalf of the water supply was so specific some question whether the 1984 than... Station this week, which will see the liberty of the same sex low onset stroke, and concluded. Published by David Swarbrick of 10 Halifax Road, Brighouse, West,! Small cost on a multi- 8 foreseeability was a necessary element of this head of claim Mr. Condition applies, the defendant had constructed a reservoir to supply water received 2 ), sect HPC replacing! Water would not be liable if he had no control while driving, he! 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