In a landmark judgment, the January 2011 Brisbane (Australia) floods class action decision was announced by the New South Wales[i] Supreme Court (Justice Robert Beech-Jones) on Nov 29, 2019[ii]. The court held[iii] the State of Queensland, Wivenhoe Dam operators and engineers responsible for inappropriate operation of the dam. It’s one of the largest ever class action suits of Australia and could cost the government millions of dollars.
Brisbane Times reported on Nov 29, 2019[iv]: “More than 6800 victims of the 2011 Brisbane flood have won a historic class action against Seqwater, Sunwater and the Queensland government over the management of the Wivenhoe Dam. The NSW Supreme Court on Friday ruled that the dam’s flood engineers relied too closely on “rain on the ground” estimates in 2011 and did not appropriately use rainfall forecasts to manage Wivenhoe Dam, as required by its manual.” The manual was gazetted by the Queensland government in 2010, a year before the flood.
Justice Robert Beech-Jones ruled that the four flood engineers who had operated the Wivenhoe Dam in January 2011 had “in some respects” breached their duty of care in managing the flow of water from the dam. Announcing a complex ruling over almost two hours, Justice Beech Jones said Seqwater, Sunwater and the state government were “negligent”.
Maurice Blackburn lawyers lodged the class action on behalf of the 6870 flood victims. Other tests cases will now be evaluated before a further hearing in the NSW Supreme Court on February 21, 2020. That opens the doors to a potential payout of hundreds of millions of dollars – law firms suggest it could run to a billion dollars.
The Jan 2011 Brisbane floods The summary of the Judgment describes these as: “In early January 2011, the Brisbane River Basin experienced extensive rainfall, culminating in extreme downfalls from 9 to 11 January 2011. On 11 and 12 January 2011, there was flooding of many homes and businesses as a result of the Brisbane River, the lower Bremer River and Lockyer Creek breaking their banks. Of the recorded peak flow on the Brisbane River at Moggill, at the height of the flooding somewhere between 39% and 51% of the flow was attributable to releases made from Wivenhoe Dam.”
The Accused The summary of Judgment: “The plaintiff sued the three defendants, who were said to be legally responsible for the actions of four flood engineers who were responsible for conducting flood operations at Wivenhoe Dam and Somerset Dam from 2 January 2011 to 11 January 2011. Seqwater was the owner of the Dams and the employer of two of these flood engineers. SunWater was contracted to provide flood management services to Seqwater and was the employer of one of the four flood engineers. The (Queensland) State employed the fourth and final flood engineer. The plaintiff sued the three defendants in negligence, nuisance and trespass.”
Key aspects from the Judgment The defendants (the State of Queensland, Sunwater and SEQWater, the operators and engineers), were variously responsible for inappropriate operation of the dam by failing to evacuate the dam to accommodate rain inflows, and are therefore breached their duty of care. The negligence claims of the plaintiffs succeeded against all of the defendants. Various damages were awarded, with some adjustments for different plaintiffs, depending on several issues, such as compensation already awarded. The exercise of reasonable care would have permitted water releases despite the operation manual’s norms.
- In the six days before the flood, the rain forecasts in an already saturated catchment indicated an imminent urban flood event, which should have been declared, and the actual rain was exceeding the forecasts. With dam already full, virtual certainty that flooding would occur.
- Justice Beech-Jones raised inconsistencies between the Wivenhoe Dam flood manual and the operation of the dams. He said the flood engineers had relied too closely on “rain on the ground” modelling and not on forecast rainfall, particularly four- and eight-day forecast rainfall in the Wivenhoe Dam’s catchment areas.
- “I accept that each of Seqwater, Sunwater and the State are vicariously liable for any breaches of the duty of care owed by the flood engineers that they each employed… The manual unambiguously and stubbornly required that ‘best forecast rainfall’ be used to make predictions for the purpose of determining the anticipated storage levels in the dams in order to select the applicable flood strategy,” said the ruling.
- The Judge said he accepted much of the evidence of Utah dam expert Ronald Christensen. Dr Christensen had posed 10 alternative modelling scenarios for managing the Wivenhoe Dam and argued that using flood forecasts was part of the Wivenhoe Dam’s flood manual.
- “The Court found that the flood engineers failed to comply with the Manual in these and other respects and that this, in turn, meant that by 11 January 2011 they were forced to make large releases of water to ensure Wivenhoe Dam did not fail. The Court found that the impugned actions of the flood engineers during the January 2011 Flood Event were not reasonable mistakes made in the heat of the moment, but systemic failures to apply the Manual that they had drafted… The Court found that each of the flood engineers’ conduct of flood operations was not to the standard of a reasonably competent flood engineer and that they therefore breached the duty of care they owed to the plaintiff (and group members).” (Summary of Judgment)
- “The Court accepted three of the simulated alternative flood operations put forward by the plaintiff’s expert as representing the flood operations that a reasonably competent flood engineer would have undertaken during the January 2011 Flood Event (“Simulations C, F and H”). All the simulations were premised on a methodology of conserving dam storage capacity when forecasts pointed to rainfall and then using dam storage capacity to ensure peak releases did not coincide with heavy downstream flows in times of substantial rainfall. The Court accepted that the simulations were consistent with the Manual.” (Summary of Judgment)
- “Using a two-dimensional numerical hydraulic model of the Brisbane River catchment and other evidence of the effects of the January 2011 Flood Event, the plaintiff sought to demonstrate that its store would not have been inundated had the flood engineers undertaken flood operations in accordance with the simulated flood operations advanced by the plaintiff’s expert. The Court accepted that contention and found that the level of flooding that would have been experienced under Simulation C would not have inundated the plaintiff’s store and the homes of a number of other group members whose cases were also heard in part during this phase of the proceedings.” (Summary of Judgment)
- “The Manual designated a flow rate of 4000m3/s in the Brisbane River at Moggill as the threshold point at which homes and businesses downstream of the dams would commence to be flooded. The flows in the Brisbane River at Moggill comprise the outflows from Wivenhoe Dam as well as outflows from Lockyer Creek and the Bremer River into the Brisbane River. Unfortunately, to a significant extent the large increase in outflows from Wivenhoe Dam coincided with large outflows from Lockyer Creek and the Bremer River. The peak flow rate experienced at Moggill was at around 1.00pm to 2.00pm on 12 January 2011. It was between 10,420m3/s and 10,700m3/s, of which between 4200m3/s and 5300m3/s was attributable to releases from Wivenhoe Dam.” (Full Judgment)
- The Judgment emphasised that the dam operators were not completely bound by specifics in the dam operation manual which the defendants claimed prevented pre-emptive emptying, but by its more fundamental principles and provisions to prevent flooding. They could have decided to partially empty the dam in the days preceding the flood. They did not have to prioritise maintaining full supply level for the period after the flood over damage prevention and dam safety, and should have placed more weight on rain forecasts. Issues like keeping low-lying bridges open should not have taken precedence over flood prevention.
Brisbane Resident Dr. Charles Worringham Dr. Charles Worringham, a long-time Brisbane resident and former academic described the judgment as historic. He told SANDRP: “Judge Beech-Jones left no doubt that the dam operators were negligent in the days leading up to the catastrophic releases. He gave considerable weight to analyses showing how precautionary releases ahead of time would have reduced the severity of flooding. The dam was already at full supply level while exceptional rains were not just forecast, they were already being exceeded.”
Dr. Worringham described his own experience of the floods: “No-one who lived through these largely preventable floods will forget the devastation they caused, even if they did not personally experience damage. My son and I joined thousands of others filling sand-bags the night before when we all knew what was coming, but this was all too little and too late. Seeing the Bremer river rise nearly 15 meters in just a few hours, watching the debris carried down by the swollen Brisbane river past the University of Queensland, and hearing the eerie roaring sound as it spilled into so many city neighbourhoods are things that stay with you forever.”
Dr Worringham added: “The recovery effort was huge but lasted for months. If a wealthy city like Brisbane with its abundant equipment and resources can be so badly effected, I can only imagine how desparate the situation would be for communities that lack them. While disasters tend to bring out the best in people wherever they occur, voluntary efforts cannot substitute for responsible planning and operation of such important – but potentially hazardous – facilities as dams. And with rainfall patterns becoming less predictable as the climate crisis unfolds, record falls can occur with little notice, making greater caution even more important.”
Dr. Worringham said about future implications: “This judgment really sets a precedent for dam operators everywhere. Given the similarities to operational failures in other jurisdictions that have also led to large-scale loss of life and damage, it is likely to influence not just future court decisions, but encourage dam operators to urgently review their operating procedures and give greater priority to timely flood mitigation and dam safety measures – even if these cause minor conflict with policies favouring high dam levels. Let’s hope the lessons of this episode are well understood everywhere.”
Thanks, Dr. Worringham, for alerting SANDRP about this order and also sharing your views and experience of the Dam floods in Brisbane in January 2011.
Relevance for India There are quite a few detailed statements in the judgment that may be relevant to the India including Kerala floods of Aug 2018. We hope Indian courts will also take note of this landmark judgment.
[i] As the judgment said, when the class action suit was filed in 2015, Queensland legislation did not allow class actions of this type.
[ii] Official court documents: http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_classaction/floods.aspx; Full Judgment: https://www.caselaw.nsw.gov.au/decision/5dddcf04e4b0c3247d7135cf; Judgment summary: https://bit.ly/2QZSjfn
[iii] https://www.youtube.com/watch?v=YJXVTEg7TT4 (This was the live feed of the judgment)