There has been much talk in the media that the release of the report by the Queensland Floods Commission of Inquiry would lead to legal action against the State of Queensland. Three flood engineers have been refereed to the Crime and Misconduct Commission but not for their conduct during the flood, but for their conduct before the Commission. Even if it is proved that they did not operate their dam in accordance with the operating manual, it does not follow that this will establish legal liability on the part of the state.
Fran Kelly, on ABC Radio National’s Breakfast program (today 19 March 2012) interviewed John Walker, a litigation funder who is looking at funding a potential class action. The interveiw was very balanced and gave a clear description of the issues facing the potential plaintiffs and the limited relevance of the fact that the engineers may not have followed the manual to the letter. For a good description of the issues, download the interveiw from their website.
Michael Eburn
19 March 2012
Australian Emergency Law 
I don’t get it. Correct me if I’m wrong but at the time of the water release was not the dam at 120% of capacity …… or some other such dangerous, ready to overflow/ collapse situation. I suppose taking the reports in the press as gospel truth being the basis of this belief means that it could all be total fiction as well. My point being that eventually the water would have run downstream anyway completely out of anyone’s control causing greater destruction . Kinda makes this witch-hunt look a little academic dont it??
John, your right, if the dam was at 120% then the water had to go somewhere and the obligation on everyone was first, and foremost, protect the dam. The allegation that is being explored is that if the dam operators had let the water out earlier, then the peak flow would not have been as much and so the damage not as great. In the interview I referred you to the lawyer being interviewed quite fairly makes the point that they have to investigate and prove all that. If the damage would have been the same, even if there had been earlier flows, and for some properties that will be the case, then there will be no claim.
He at least was not asserting that this would be an easy case to win. Mere failure to comply with the manual does not prove negligence, rather the plaintiffs will have to prove that there was a legal obligation to protect those downstream properties, that SEQWATER should have done something different and it would have made a difference. They are looking to recruit potential plaintiff’s to see if its worth pursuing but they were not saying either that they would win or would even take action – that’s why I say it was a balanced and informative interview – well worth listenting too.
The important thing, that people often lose sight of, is even if they chose to bring an action it does not mean that there was negligence or is or will be liablity. Courts are there to hear the evidence and test the issues. The real tragedy is that the courts do have to hear the evidence, they can’t just rely on the findings of the Inquiry (see my earlier posting on Matthws v SPI Electricity (No. 3) [2011] VSC 399 so with that, and a CMC inquiry, the engineers can expect to spend several more years going over their decisions in a 24 hour period.
Michael Eburn
19 March 2012