On 8 September 2021, the NSW Court of Appeal handed down its decision. The Court of Appeal upheld Seqwater’s appeal and found that Seqwater is not liable in negligence for its operations of Wivenhoe and Somerset Dams during January 2011. We are carefully reviewing this decision and considering the next steps in the matter.
The settlement reached with the the State of Queensland and SunWater remains in place.
On 3 May 2021, the NSW Supreme Court approved the partial settlement that was reached in-principle on 26 February 2021. The settlement is with two of the three defendants, State of Queensland and SunWater, and covers 50 per cent of the liability for the flood damage suffered by group members.
The other defendant, Seqwater, is not a party to the settlement and continues to appeal the Supreme Court’s 2019 decision.
In approving the settlement on 3 May 2021 the Court appointed Maurice Blackburn as the Administrator of the Settlement Scheme. The settlement administration and distribution of settlement money is a complex undertaking that will require a significant amount of work, particularly in the early phases to establish the systems and processes to enable an efficient administration and distribution to group members as soon as possible.
The trial of this proceeding commenced in the Supreme Court of New South Wales on 4 December 2017 and concluded in March 2019.
The Court found that the plaintiff and group members suffered loss and damage as a result of the negligent operation of Wivenhoe and Somerset dams during the January 2011 flood in South East Queensland.
This case affects thousands of people and represents a significant victory for everyone who suffered devastating losses as a result of the flood.
Frequently Asked Questions
The class action alleges that the negligent operation of the Wivenhoe and Somerset dams in the lead up to and during the 2011 flood significantly contributed to the extent and the level of flooding downstream of the dams and created a flood that was much worse than it would have been if the dams had been operated competently.
The class action is being brought in negligence, against Seqwater, Sunwater and the State of Queensland. As the operators of Wivenhoe and Somerset Dams, they had a duty to operate the dams competently in order to minimise the impact of dam releases downstream.
The action alleges that the dam operators were negligent in, among other things:
- failing to use rainfall forecasts in making decisions about operating strategies, and
- failing to preserve a reasonable amount of the dams' storage capacity in order to provide optimum protection of urbanised areas from inundation.
This negligent conduct, in addition to other conduct, contributed significantly to the downstream flooding experienced in Brisbane and Ipswich.
The class action is being run on a no win – no fee basis. This means that group members will not have to pay any fees unless the case is won. If you are part of the action, you cannot be ordered to pay the other side’s costs if the action is unsuccessful.
All costs and risk will be fully underwritten by Omni Bridgeway (formerly IMF Bentham). There are no out of pocket costs or risks to you.
If the action is successful, the costs of the proceedings, which will include expert evidence fees, legal costs and interest, will be shared across the class.
If the case is won, Omni Bridgeway will be paid a commission from the settlement or judgment proceeds. The details of the costs and funding arrangements are set out in full in our Retainer and in Omni Bridgeway's litigation funding agreement which group members have received and had the opportunity to consider before joining the class action.
The class action is seeking damages for our clients for economic loss. The amount of damages will vary from person to person depending upon their individual circumstances.
The types of damages that can be claimed are as follows:
- Damage caused to business, home, furniture or possessions
- Financial loss caused as a result of business interruption during and after the flood
- Costs associated with temporary relocation during flood repairs
- Costs associated with rebuilding, cleaning or repairing flood damage, and
- Costs associated with replacing lost or irreparably damaged possessions.
The types of damages that we will not be claiming for are as follows:
- Personal injury;
- Psychological harm;
- Pure economic loss; and/or
- Claims only for nuisance in circumstances where there was no physical damage to property.
If you wish to make a claim for damages for personal injury, psychological harm, pure economic loss or nuisance in circumstances where there was no physical damage to property, you should seek urgent legal advice from another lawyer as strict time limits apply.
The class action is brought on behalf of people who suffered loss or damage as a result of inundation by water in areas downstream of Wivenhoe Dam in the period between 9 and 24 January 2011.
The class consists of people who entered into a litigation funding agreement with IMF Bentham (Australia) on or before 31 December 2016 and:
- leased, owned or otherwise held interest in property that was inundated with water and suffered loss or damage as a result of the inundation, or
- held an interest in land that was inundated with water and whose use or enjoyment of the land was interfered with as a result of the inundation, or
- owned personal property that was damaged by flood water.
Regrettably, if you did not register on or before the 31 December 2016 deadline, it is not possible to add your claim to the class action.
If you are a group member in the class action, then you do not need to do anything at the present time. We will write to you with further information about the settlement administration process and timeframes.
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