Date
Geographical Area
Pacific
Countries
Australia
Keywords
Case Name
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority
Case Reference
[2019] NSWSC 1657
Name of Court
Supreme Court of New South Wales
Key Facts
In response to rapidly rising reservoir levels, flood engineers at the Wivenhoe Dam (employed by either Seqwater, SunWater or the State) opened the dam’s radial gates, significantly increasing its outflow into the Brisbane River. This was done as the water level was well above 74m, the elevation level at which the safety of the dam predominates decision-making according to the Dam Manual. The Manual had no force in law, but was approved by the Director General of the Department of Environment and Resource Management and heavily informed the content of the duty of care owed by the flood engineers.
This increased outflow coincided with the large increase in outflows from Lockyer Creek and the Bremer River, leading to a peak flow rate of between 10,420m3/s and 10,700m3/s in the Brisbane River at Moggill – between 4,200m3/s and 5,300m3/s of which was attributable to the releases from the Wivenhoe Dam. This flow rate was well above the 4,000m3/s flow rate which the manual designated as the threshold point at which homes and businesses downstream would be flooded.
This class action represented 6,870 persons or entities (as well as insurers) who had either suffered damage or loss of enjoyment to their land, or owned personal property which was damaged or destroyed, as a result of flood waters from the Brisbane River, Bremer River, or their tributaries in the period from 9-24 January 2011. The plaintiff sued in negligence, nuisance and trespass, claiming that the defendants breached their duty of care by not evacuating water in advance of the predicted rainfall.
This increased outflow coincided with the large increase in outflows from Lockyer Creek and the Bremer River, leading to a peak flow rate of between 10,420m3/s and 10,700m3/s in the Brisbane River at Moggill – between 4,200m3/s and 5,300m3/s of which was attributable to the releases from the Wivenhoe Dam. This flow rate was well above the 4,000m3/s flow rate which the manual designated as the threshold point at which homes and businesses downstream would be flooded.
This class action represented 6,870 persons or entities (as well as insurers) who had either suffered damage or loss of enjoyment to their land, or owned personal property which was damaged or destroyed, as a result of flood waters from the Brisbane River, Bremer River, or their tributaries in the period from 9-24 January 2011. The plaintiff sued in negligence, nuisance and trespass, claiming that the defendants breached their duty of care by not evacuating water in advance of the predicted rainfall.
Decision and Reasoning
The Court accepted that Seqwater and each of the flood engineers owed a duty of care to the plaintiff and sample group members, as their exercise of control over releases corresponded to a significant level of control over water flow – including a significant but not complete control over the risk of flooding. Therefore, people downstream were vulnerable to any negligent exercise of that control. The Court stated that it did not matter that the class of person that the duty was owed to was very large.
The Court found that each of the flood engineers breached the duty of care owed multiple times between 2-10 Jan 2011, which the judge was satisfied were jointly sufficient to account for the particular harm to the plaintiff’s store and other forms of harm to the sample group member’s property.
The Water Supply (Safety and Reliability) Act 2008 stated that Dam owners were exempt from civil proceedings where an act or omission was honestly made and without negligence. However, this was not the case here. As the Court accepted that Seqwater, SunWater and the State were vicariously liable for breaches of the duty of care owed by the flood engineers that they employed, they were liable for their negligence.
The claims of nuisance and trespass failed.
The Court found that each of the flood engineers breached the duty of care owed multiple times between 2-10 Jan 2011, which the judge was satisfied were jointly sufficient to account for the particular harm to the plaintiff’s store and other forms of harm to the sample group member’s property.
The Water Supply (Safety and Reliability) Act 2008 stated that Dam owners were exempt from civil proceedings where an act or omission was honestly made and without negligence. However, this was not the case here. As the Court accepted that Seqwater, SunWater and the State were vicariously liable for breaches of the duty of care owed by the flood engineers that they employed, they were liable for their negligence.
The claims of nuisance and trespass failed.
Outcome
The plaintiff and selected sample of group members succeeded in their negligence claim against all of the defendants.
This was the principal judgment, damages for the other group members were determined later – overall the defendants were ordered to pay AUS$440 million in damages.
This was the principal judgment, damages for the other group members were determined later – overall the defendants were ordered to pay AUS$440 million in damages.
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Disclaimer
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.
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