INTERNATIONAL experts are now highly confident that the flooding from Brisbane’s Wivenhoe Dam caused a disaster almost completely avoidable if the operators had not been negligent, prompting the filing in the NSW Supreme Court today of Australia’s largest and potentially most costly class action.
The decision of legal firm Maurice Blackburn to definitely run the case for more than 4000 victims of the January 2011 floods that devastated South East Queensland homes and businesses follows a closed-door multimillion-dollar evidence-testing program by a team of United States-based hydrologists. It has so far cost the firm and its funder, Bentham IMF, millions of dollars and the costs are set to escalate sharply, while the potential payout for some 4000 signed-up flood victims would be met in part by a major insurer if the victims win the case.
The cost and damage suffered by South East Queensland families and businesses, many of them uninsured for the inundation of thousands of homes, means the payouts in the event of a success could be as much as $2 billion.
The lead lawyer who has been managing the case, Damian Scattini, told The Australian today: “We know now that this was a disaster that didn’t have to happen. The data is very clear.
“The evidence tells us that the rainfall that occurred was not a so-called ‘black swan’ event — we say that the rainfall that was forecast to fall actually fell, but the operators of the dam had not left any capacity in the dam to deal with it.
“For whatever reason, probably because that was how Wivenhoe Dam had always done it, the operators just let the rainfall keep going into the dam in the weeks before January, and when it stopped raining they were going to drain it off. But this time, there was too much rain, and when they realised the dam was almost full and they had lost their buffer, they panicked and let it rip — they released these huge volumes quickly, and that was the Brisbane flood.”
The Australian’s reports and findings three years ago that the Wivenhoe-related flood was avoidable, and that it only occurred due to breaches of the operating manual, are conclusively supported by the international team of experts.
The hydrology team working for Maurice Blackburn and its litigation funder, Bentham MF, will give evidence in the event of a trial in a New South Wales Supreme Court, where the case is filed today due to Queensland’s lack of a class action regime.
The operators of the Queensland government-owned Wivenhoe Dam have consistently denied any wrongdoing and emphatically rejected claims of negligence. They have been backed by Premier Campbell Newman, whose government inherited the flood debacle from former premier Anna Bligh. The Newman government tried to hose down potential litigation over the flood by commissioning its own study from US engineers in 2012 with restrictive terms of reference to prevent the adoption of adverse evidence.
A Queensland Royal Commission-style inquiry was forced to go back to public hearings and change its final report in early 2012 after The Australian discovered damning new evidence, resulting in the adverse findings that the operators were in the wrong dam-release strategy, failed to take into account forecast rainfall, and misled the Supreme Court judge running the probe. Mr Scattini said these findings were at “the core” of the legal case.
“The people who have commented publicly and said everything was done properly are looking at the wrong facts, and they are just flat out wrong,” Mr Scattini said.
“We now have terabytes of data, a huge volume of material drawn from many sources, and we are sure of the facts.”
Mr Scattini said the flood engineers failed repeatedly as far back as early December 2010 to properly operate Wivenhoe Dam and the smaller Somerset Dam, adding that Brisbane averted a catastrophe — the overtopping and collapse of Wivenhoe — which was on the cards due to the inaction of the operators.
He said that from early December 2010 onwards the flood engineers failed repeatedly to adopt proper release strategies for both dams, despite continuing and serious official weather warnings of more heavy rain.
The legal action will allege negligence and nuisance against the operators of the dams — the “defendants’’ Seqwater, Sunwater and the State of Queensland, with the four flood engineers responsible for dam operations being employees of the defendants.
Maurice Blackburn and IMF Bentham will assert that the defendants owed those living and operating businesses downstream of Wivenhoe Dam a reasonable care to avoid the risk that a failure to properly operate the dams would cause greater flooding to areas downstream.
The Commission of Inquiry found the flood engineers repeatedly failed to take into account forecasts issued by the Bureau of Meteorology which predicted heavy and prolonged rainfall.
Flood operations stopped altogether at a number of critical moments during the flood event — twice in December and once in early January, yet the flood event was ongoing and further heavy rainfall was predicted.
