Queensland Floods - Settlement Administration
In May 2021, the NSW Supreme Court approved a partial settlement with Sunwater and the State of Queensland, who are two of the three defendants. The value of the partial settlement is $440 million and covers 50 per cent of the liability for the losses suffered by group members.
The Court has appointed Maurice Blackburn as the Administrator of the Settlement Scheme. The Settlement Distribution Scheme (SDS) has been approved by the Court and establishes who is eligible to receive compensation and how the settlement will be distributed. The SDS is designed to provide a fair and reasonable process for all participants.
In the following sections, we provide more information about the overall process for distributing the settlement.
The Settlement process
1. Confirm details of the claim
We will ask you to confirm your details and your Claims. We will also seek some additional information from you. We may need to contact you several times.
2. Calculate the flood adjustments
Using a methodology approved by the Court, we will calculate the losses you would have incurred if the defendants were not negligent.
3. Loss Assessment and Fast Track
A loss assessor will be engaged to assess losses for your Claim. If you qualify for the Fast Track assessment, you may choose this quicker assessment process.
4. Rights of Review
We will seek your approval at multiple points during the assessment process. You also have the right to review your assessment during the settlement process.
5. Payments and Adjustments
We aim to make payments as soon as is practicable. You may qualify for a Fast Track assessment, but we must follow the settlement rules to ensure the process is fair.
Frequently Asked Questions
We recognise that the January 2011 flood occurred a long time ago and the circumstances of many Group Members may have changed significantly. This means we need to ensure we have the correct information from you before we begin the settlement process.
We already have some of your details
The information you have previously provided to Omni Bridgeway (formerly IMF) has been provided to the settlement administration team at Maurice Blackburn, so we already have access to some of the details needed for the settlement administration process.
Who will we be dealing with?
We need a single point of contact who is authorised to represent the Claimant (the “Contact”). Some examples would be:
- If the Claimant is a company the Contact will likely be a director, company secretary or similar.
- If the Claimants are married or partners, then one of them may be the Contact for both claims.
It may be more complex if there has been a death, divorce, or a company has gone into liquidation or ceased trading. For example:
- If the Claimant has died, the Contact will likely be an executor
- If in liquidation, the Contact will likely be the liquidator
In some cases, we will need to talk to you and seek further evidence of your authority to represent a Claimant to ensure we are dealing with the person authorised to give us instructions about the claim.
Do you have authority to represent the Claimant?
You have authority to represent the Claimant where:
- You have been specifically authorised by the Claimant to act on their behalf in relation to this settlement administration, and/or
- If you are otherwise legally authorised to do so; and/or
- If you fall within one of the following specific categories of authorised representatives recognised in the court-approved Settlement Distribution Scheme.
Please note that you will be required to declare that you are authorised to act on behalf of the claimant and the Administrator may require you to provide supporting documentary evidence.
To help us understand how and why you have the authority to represent the Claimant, we will ask you to choose from one of the following entity types for your Claimant and then ask what your relationship is to that entity:
- Sole Trader
- Please let us know if the entity is ‘dissolved’ meaning it is no longer operating or in existence.
- These entity types cover most, but not all types of entity. If in doubt please select ‘the most accurate’ entity type and then select ‘Other’ as your relationship to the entity. Then you can leave us a note explaining your special circumstance.
The specific categories of authorised representative recognised under the Settlement Distribution Scheme are:
- Insurers or other persons who have indemnified one or more Group Members in respect of any loss or damage arising out of the factual matters pleaded in the proceeding.
- Persons authorised to act on behalf of bodies corporate or other bodies that hold property, such as a director, the company secretary or an employee.
Where was the damage suffered?
We will ask you for some details about the location where the damage was suffered and the type of property at that location. This will help us to determine the flood levels at your property and the nature of the losses you will have suffered.
Have a look at the next process step “Calculating flood adjustments” for more detail.
Would you like to take up the opportunity of Fast Track assessment?
This is a complex settlement process and assessing losses will require detailed and time-consuming data collection and assessment by professional loss assessors. In many cases the details may not always be known and evidence may have been lost.
In some cases you will have the option to select a ‘Fast-track’ assessment. This is a much simpler process and will result in a shorter time to initial payments. Have a look at the Loss Assessment process step for more detail about “Fast Track Assessment”.
Actual and ‘Counter-factual’ flood levels
The Settlement Agreement provides for compensation to Claimants where the flood damage was caused by the negligent operation of the Wivenhoe and Somerset Dams. The flood levels have been modelled by an expert across the flood impacted area, downstream of Wivenhoe and Somerset Dam. An expert has modelled both the ‘actual’ flooding (which is the flooding that did occur in January 2011) and the ‘counter-factual’ flooding (meaning, the likely flood level that would have occurred if the dams were operated without negligence).
What will we ask you for?
You will be asked to provide information about your claim, for e.g.:
- What was the location of the loss?
- Was the building use predominantly residential or commercial?
- What type of building was it?
- What is the distance from the ground to the bottom of the front door?
How do we adjust the flood levels?
The Court has approved the use of a series of ‘damage curves’. These essentially provide an indication of the amount of damage that would likely be caused at different flood levels.
In simple terms, a large proportion of flood damage is normally caused when flood levels are just above the floor level. The damage then increases gradually as the water level increases up a building.
It is possible that some of the damage to your property may have occurred even if the dams were not operated negligently. The damage curves or flood adjustment modelling provides a way of determining how much of the damage is ‘compensable’ under the Settlement Distribution Scheme.
What will the adjustment look like?
We will use the information you provided to calculate a ‘multiplier’ which will be applied to your total assessed losses.
- If your multiplier is zero, the model has determined that none of your losses were caused by the defendants’ negligence.
- If your multiplier is one, the model has determined that all of your losses were caused by the defendants’ negligence.
- In many cases the multiplier will be between zero and one. This means that some of the damage would have occurred anyway, regardless of the defendants’ negligence.
What is my right to review?
We will provide you with the calculated multiplier and detail of the inputs we use on your claim. You will have up to 28 days to either accept the multiplier or request a review, which will be referred to as a Counterfactual Review.
- Please note, you do not have the right to question the methodology adopted in the Settlement Distribution Scheme, as it has been approved by the Court and will be consistently applied to all Claims.
- You do have the right to request a review of the inputs used and this review will be undertaken by the Settlement Administrator.
Who does the loss assessment?
The loss assessment will be conducted by a professional loss assessor, appointed by the Settlement Administrator.
What is involved?
The Loss Assessor will contact you with a detailed questionnaire. The questions you are asked and the evidence you are required to provide will vary depending on the nature of your losses.
You will have the right to review the loss assessor’s assessment. More information about your rights to review are provided below.
Can I choose the Fast Track assessment option?
If you have a Residential Claim, you may be eligible for the Fast Track assessment process. The majority of Claims are Residential.
If you are eligible and choose to take up the option, you can bypass much of the loss assessment process.
Fast Track assessments will be prioritised and interim payments will be made sooner than standard assessments.
How does Fast Track assessment work?
We will ask you questions that will help us to assess your likely building losses, based on the Assessment Principles contained in Confidential Schedule A, or otherwise in accordance with the laws of Queensland.
We will then simply ‘Multiply Up’ or increase your assessed losses by a Court-approved multiplier:
- For owner-occupiers: Assessed building losses* multiplied by 1.8
- For landlords: Assessed building losses* multiplied by 1.25
- For tenants: Assessed contents losses* multiplied by 1.25
Key things to note about Fast Track assessment
The loss assessor will only assess building or contents losses and multiply that. For example, this will not include vehicles, fences, gardens, pontoons or inconvenience damages.
A Fast Track assessment is in lieu of any other assessment process set out in the Settlement Scheme, and any election by a Claimant to have a claim assessed using the Fast Track Assessment process is final. This means that a Claimant cannot later elect to have their claim assessed by any other assessment process. Any review of a Fast Track assessment will be limited to whether the Administrator correctly applied the Fast Track methodology and will not assess loss using an alternative methodology.
Must all Claimants at a loss location elect for Fast Track?
Yes. For the present time, the Fast Track assessment process will only be available where there is agreement from all Claimants with shared interests at the same property.
Reviewing the Flood Adjustment Factor determination
You will have up to 28 days to either accept the Flood Adjustment Factor determination or request a review, which will be referred to as a Counterfactual Review.
A Counterfactual Review is limited to a review of the inputs or information used in determining the Flood Adjustment Factor and this review will be undertaken by the Administrator.
Review rights in respect of a nil entitlement Final Notice of Assessment issued by the Administrator
Where the Administrator issues a Final Notice of Assessment and a statement of reasons which assesses the entitlement of the claimant as nil, the Claimant has 28 days within which to request an informal review by the Administrator.
If, after conducting an informal review, the Administrator confirms the nil entitlement assessment, the claimant will have 28 days within which to seek a Review Assessment. The Administrator may require the Claimant to pay a bond for the cost of the Review Assessment. Once any bond is paid, a Review Assessor will be appointed to review the claim and the Review Assessor’s decision will be final and binding.
Review Rights for Assessments
- Informal review of the Loss Assessor’s Provisional Notice of Assessment
At the conclusion of their assessment, loss assessors will provide Claimants with a Provisional Notice of Assessment and a provisional statement of reasons. Claimants will then have 28 days to notify the assessor of any errors or omissions and these will be considered by the assessor.
- Review Assessment of the Final Notice of Assessment
Once a Final Notice of Assessment and statement of reasons are issued by the Administrator, a claimant has 28 days within which to seek a Review Assessment. The Administrator may require the Claimant to pay a bond for the cost of the Review Assessment. Once any bond is paid, a Review Assessor will be appointed to review the claim and the Review Assessor’s decision will be final and binding.
Review rights for Fast Track Assessments
At the conclusion of the Fast Track Assessment process, a claimant will be issued with a Final Notice of Assessment and a statement of reasons. A claimant then has 28 days within which to seek a Review Assessment.
The Administrator may require the Claimant to pay a bond for the cost of the Review Assessment. Once any bond is paid, a Review Assessor will be appointed to review the claim and the Review Assessor’s decision will be final and binding.
Any review of a Fast Track assessment will be limited to whether the Administrator correctly applied the Fast Track methodology and will not assess loss using an alternative methodology.
No reviews of claims assessed through court ordered reference process
Claims assessed by referees pursuant to the Court ordered reference process cannot be reviewed under the Settlement Scheme.
If you suffered losses during the Queensland Floods in 2011, you will not recover all of your losses through this settlement.
Once your losses are assessed, they will be adjusted to take account of the following factors:
- The settlement with Sunwater and the State is only in respect of 50% of the liability for claimant’s losses and, being a settlement, it is for less than the full entitlement.
- Adjustment Factor for the counterfactual flooding scenario. Some properties would have flooded to some extent, even if the dams had been managed properly. This means that for some claimants, their losses will need to be adjusted to reflect the fact that not all of the loss was caused by the negligent operation of the dams.
- You and/or your insurer have agreed to pay a percentage of the compensation that you recover to the litigation funder.
- You will be required to contribute to the legal costs incurred in administering the settlement. These costs are subject to approval by the Court.
The Administrator will take all reasonable steps to ensure that all claimants receive approximately the same proportion of their adjusted assessed losses taking into account that claimants may pay different amounts of funding commission depending on the amount of their adjusted assessed loss.
You will receive two different types of payments for your losses once they have been assessed and adjusted as described above:
- Interim payments:
Once a sufficient number of claims have been assessed and adjusted, the Administrator will commence making interim payments to eligible claimants. These interim payments will represent a proportion of the overall compensation that claimants will ultimately be paid. You do not have to separately apply for an interim payment. Instead, they will be paid to claimants in tranches. Interim payments will first be paid to eligible claimants who have elected to pursue a Fast Track Assessment, and then in subsequent batches once a sufficient volume of non-Fast Track claims have been assessed. Where an interim payment is made to you, you will be provided with an estimate of the proportion of your likely overall compensation that the interim payment represents.
- Final payments:
Final payments of the balance of your overall compensation can only be paid after all eligible claims are assessed. This process will likely take some time. Final payments will be adjusted for all of the adjustments set out above. When a final payment is made to you, you will be provided with information to enable you to understand how the final amount has been arrived at.
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