07 Sep 2021, 8:42 PM UTC
Queensland water utility wins appeal against 2011 flood damages ruling
State-owned dam operator Seqwater has won an appeal against a landmark ruling on the 2011 Queensland floods. In 2019, the Supreme Court in New South Wales found the Queensland government, Sunwater and Seqwater, had acted negligently and had contributed to the disaster. It was ruled engineers had failed to follow their own flood mitigation manual, leading them to release large volumes of water at the height of the flood, damaging more properties. A judge ordered more than 6,500 victims whose homes or businesses were damaged were entitled to almost $900 million in compensation. Two of the defendants agreed to pay their share of the settlement but Seqwater ? which was found liable for 50 per cent ? appealed against the decision on a number of grounds. During a hearing in May, Seqwater argued engineers had acted appropriately and the decisions about water releases were suitable. In a published judgment today, three NSW Court of Appeal judges ruled the engineers "acted by way of consensus" and "ultimately" followed the strategy determined by the senior flood operations engineer and were not in breach of the Civil Liability Act. "Failure by Seqwater's flood engineers to depart from that strategy was not proven to be in breach," the judges found. "Even if their conduct departed from the manual, that did not of itself entail a breach of that standard." Seqwater CEO Neil Brennan said the 2011 flood event was "one of the most extreme weather events ever experienced in our region". He said Seqwater was acutely aware of the impact on the community. "Our focus continues to be providing safe and secure water supply for south-east Queensland," he said. 'Kick in the guts' Ipswich councillor and Goodna flood victim Paul Tully slammed the unexpected decision as a "kick in the guts" to many still-struggling flood victims. "This decision defies commonsense and logic given that SunWater and the state government have already accepted they were jointly liable for the flood," Mr Tully said. "We now have the bizarre situation where the state government and SunWater have agreed to pay $440 million as their assessed 50 per cent liability, while Seqwater has squirmed out of its responsibility on a legal technicality." Mr Tully accused Seqwater of legal delaying tactics over 10 years "lacking one iota of justice, common decency or fair play". "In the past decade, many flood victims have passed away, marriages have failed and people have suffered mental breakdowns as a result of the legal delays." Class action law firm Maurice Blackburn, which represented claimants, said it would carefully review the "disappointing" judgement, before deciding whether to launch a High Court appeal. It said the settlement reached with the Queensland Government and Sunwater remained in place. 'Not proven to be in breach' The judgment also rejected the initial judge's determination that losses had been caused by the "cumulative effect" of several breaches by the flood engineers. "That approach was artificial ? and assumed that each flood engineer could and should exercise independent judgment," the judges found. "The flood engineers acted in a collaborative manner ? all were liable for each breach. "The fact that a particular engineer was on duty at a particular time was not a critical factor." 'Rainfall predictions being uncertain' In a judgment summary, the Court of Appeal rejected the original legal challenge that engineers were negligent for not taking into consideration forecast heavy rain when deciding to release water. "Contrary to the finding reached by the trial judge, the Court of Appeal held that the manual did not provide for continued releases once the dam had fallen to full supply level," the summary said. The judgment summary also said the Court of Appeal held there had been "no negligence" in ceasing to release water prior to the peak of the floods. "As the manual did not allow reopening of the radial gates of Wivenhoe Dam until the water level reached 67.25m, which did not happen until 6 January," the summary said. The Court of Appeal also rejected the major legal challenge that "engineers had consistently underestimated the likelihood inundation" between the January 6 and January 10 when torrential rain fell and large releases were made. "The court accepted that, at least with hindsight, it was clear that the engineers underestimated the volume of rain which was to fall in the dam catchments and remained for too long in strategies designed to avoid submerging the downstream bridges. "However, rainfall predictions being uncertain as to volumes, location and timing, the engineers did not breach the applicable standard of care."