Skip to main content

Inappropriate dam operation: What India can learn from 2011 Australian floods judgment

In a judgment on November 29, 2019 Australia’s New South Wales Supreme Court has held the State of Queensland, Wivenhoe Dam operators and engineers are responsible for “inappropriate operation of the dam”, leading to the devastating Brisbane 2011 floods. A South Asia Network on Dams, Rivers and People (SANDRP) note on the relevance of the judgment for India:
***
In a landmark judgment, the January 2011 Brisbane (Australia) floods class action decision was announced by the New South Wales Supreme Court (Justice Robert Beech-Jones) on Nov 29, 2019. The court held the State of Queensland, Wivenhoe Dam operators and engineers responsible for inappropriate operation of the dam. It’s one of the largest ever class action suits of Australia and could cost the government millions of dollars.
Brisbane Times reported on Nov 29, 2019: “More than 6800 victims of the 2011 Brisbane flood have won a historic class action against Seqwater, Sunwater and the Queensland government over the management of the Wivenhoe Dam. The NSW Supreme Court on Friday ruled that the dam’s flood engineers relied too closely on “rain on the ground” estimates in 2011 and did not appropriately use rainfall forecasts to manage Wivenhoe Dam, as required by its manual.” The manual was gazetted by the Queensland government in 2010, a year before the flood.
Justice Robert Beech-Jones ruled that the four flood engineers who had operated the Wivenhoe Dam in January 2011 had “in some respects” breached their duty of care in managing the flow of water from the dam. Announcing a complex ruling over almost two hours, Justice Beech Jones said Seqwater, Sunwater and the state government were “negligent”.
Maurice Blackburn lawyers lodged the class action on behalf of the 6870 flood victims. Other tests cases will now be evaluated before a further hearing in the NSW Supreme Court on February 21, 2020. That opens the doors to a potential payout of hundreds of millions of dollars – law firms suggest it could run to a billion dollars.

The Jan 2011 Brisbane floods

The summary of the Judgment describes these as: “In early January 2011, the Brisbane River Basin experienced extensive rainfall, culminating in extreme downfalls from 9 to 11 January 2011. On 11 and 12 January 2011, there was flooding of many homes and businesses as a result of the Brisbane River, the lower Bremer River and Lockyer Creek breaking their banks. Of the recorded peak flow on the Brisbane River at Moggill, at the height of the flooding somewhere between 39% and 51% of the flow was attributable to releases made from Wivenhoe Dam.”

The Accused

The summary of Judgment: “The plaintiff sued the three defendants, who were said to be legally responsible for the actions of four flood engineers who were responsible for conducting flood operations at Wivenhoe Dam and Somerset Dam from 2 January 2011 to 11 January 2011. Seqwater was the owner of the Dams and the employer of two of these flood engineers. SunWater was contracted to provide flood management services to Seqwater and was the employer of one of the four flood engineers. The (Queensland) State employed the fourth and final flood engineer. The plaintiff sued the three defendants in negligence, nuisance and trespass.”

Key aspects from the Judgment

The defendants (the State of Queensland, Sunwater and SEQWater, the operators and engineers), were variously responsible for inappropriate operation of the dam by failing to evacuate the dam to accommodate rain inflows, and are therefore breached their duty of care. The negligence claims of the plaintiffs succeeded against all of the defendants. Various damages were awarded, with some adjustments for different plaintiffs, depending on several issues, such as compensation already awarded. The exercise of reasonable care would have permitted water releases despite the operation manual’s norms.
In the six days before the flood, the rain forecasts in an already saturated catchment indicated an imminent urban flood event, which should have been declared, and the actual rain was exceeding the forecasts. With dam already full, virtual certainty that flooding would occur.
Justice Beech-Jones raised inconsistencies between the Wivenhoe Dam flood manual and the operation of the dams. He said the flood engineers had relied too closely on “rain on the ground” modelling and not on forecast rainfall, particularly four- and eight-day forecast rainfall in the Wivenhoe Dam’s catchment areas.
“I accept that each of Seqwater, Sunwater and the State are vicariously liable for any breaches of the duty of care owed by the flood engineers that they each employed… The manual unambiguously and stubbornly required that ‘best forecast rainfall’ be used to make predictions for the purpose of determining the anticipated storage levels in the dams in order to select the applicable flood strategy,” said the ruling.
The Judge said he accepted much of the evidence of Utah dam expert Ronald Christensen. Dr Christensen had posed 10 alternative modelling scenarios for managing the Wivenhoe Dam and argued that using flood forecasts was part of the Wivenhoe Dam’s flood manual.
“The Court found that the flood engineers failed to comply with the Manual in these and other respects and that this, in turn, meant that by 11 January 2011 they were forced to make large releases of water to ensure Wivenhoe Dam did not fail. The Court found that the impugned actions of the flood engineers during the January 2011 Flood Event were not reasonable mistakes made in the heat of the moment, but systemic failures to apply the Manual that they had drafted… The Court found that each of the flood engineers’ conduct of flood operations was not to the standard of a reasonably competent flood engineer and that they therefore breached the duty of care they owed to the plaintiff (and group members). 
“The Court accepted three of the simulated alternative flood operations put forward by the plaintiff’s expert as representing the flood operations that a reasonably competent flood engineer would have undertaken during the January 2011 Flood Event (“Simulations C, F and H”). All the simulations were premised on a methodology of conserving dam storage capacity when forecasts pointed to rainfall and then using dam storage capacity to ensure peak releases did not coincide with heavy downstream flows in times of substantial rainfall. The Court accepted that the simulations were consistent with the Manual. 
“Using a two-dimensional numerical hydraulic model of the Brisbane River catchment and other evidence of the effects of the January 2011 Flood Event, the plaintiff sought to demonstrate that its store would not have been inundated had the flood engineers undertaken flood operations in accordance with the simulated flood operations advanced by the plaintiff’s expert. The Court accepted that contention and found that the level of flooding that would have been experienced under Simulation C would not have inundated the plaintiff’s store and the homes of a number of other group members whose cases were also heard in part during this phase of the proceedings. 
“The Manual designated a flow rate of 4000m3/s in the Brisbane River at Moggill as the threshold point at which homes and businesses downstream of the dams would commence to be flooded. The flows in the Brisbane River at Moggill comprise the outflows from Wivenhoe Dam as well as outflows from Lockyer Creek and the Bremer River into the Brisbane River. Unfortunately, to a significant extent the large increase in outflows from Wivenhoe Dam coincided with large outflows from Lockyer Creek and the Bremer River. The peak flow rate experienced at Moggill was at around 1.00pm to 2.00pm on 12 January 2011. It was between 10,420m3/s and 10,700m3/s, of which between 4200m3/s and 5300m3/s was attributable to releases from Wivenhoe Dam.”
(Summary of the Judgment)
The Judgment emphasised that the dam operators were not completely bound by specifics in the dam operation manual which the defendants claimed prevented pre-emptive emptying, but by its more fundamental principles and provisions to prevent flooding. They could have decided to partially empty the dam in the days preceding the flood. They did not have to prioritise maintaining full supply level for the period after the flood over damage prevention and dam safety, and should have placed more weight on rain forecasts. Issues like keeping low-lying bridges open should not have taken precedence over flood prevention.

Brisbane Resident Dr. Charles Worringham

Dr. Charles Worringham, a long-time Brisbane resident and former academic described the judgment as historic. He told SANDRP: “Judge Beech-Jones left no doubt that the dam operators were negligent in the days leading up to the catastrophic releases. He gave considerable weight to analyses showing how precautionary releases ahead of time would have reduced the severity of flooding. The dam was already at full supply level while exceptional rains were not just forecast, they were already being exceeded.”
Dr. Worringham described his own experience of the floods: “No-one who lived through these largely preventable floods will forget the devastation they caused, even if they did not personally experience damage. My son and I joined thousands of others filling sand-bags the night before when we all knew what was coming, but this was all too little and too late. Seeing the Bremer river rise nearly 15 meters in just a few hours, watching the debris carried down by the swollen Brisbane river past the University of Queensland, and hearing the eerie roaring sound as it spilled into so many city neighbourhoods are things that stay with you forever.”
Dr Worringham added: “The recovery effort was huge but lasted for months. If a wealthy city like Brisbane with its abundant equipment and resources can be so badly effected, I can only imagine how desparate the situation would be for communities that lack them. While disasters tend to bring out the best in people wherever they occur, voluntary efforts cannot substitute for responsible planning and operation of such important – but potentially hazardous – facilities as dams. And with rainfall patterns becoming less predictable as the climate crisis unfolds, record falls can occur with little notice, making greater caution even more important.”
Dr. Worringham said about future implications: “This judgment really sets a precedent for dam operators everywhere. Given the similarities to operational failures in other jurisdictions that have also led to large-scale loss of life and damage, it is likely to influence not just future court decisions, but encourage dam operators to urgently review their operating procedures and give greater priority to timely flood mitigation and dam safety measures – even if these cause minor conflict with policies favouring high dam levels. Let’s hope the lessons of this episode are well understood everywhere.”
Thanks, Dr. Worringham, for alerting SANDRP about this order and also sharing your views and experience of the Dam floods in Brisbane in January 2011.

Relevance for India:

There are quite a few detailed statements in the judgment that may be relevant to the India including Kerala floods of Aug 2018. We hope Indian courts will also take note of this landmark judgment.

Source: SANDRP

Comments

TRENDING

Sorry state of Indian academics: why was I thrown out of Delhi varsity interview room?

By Dr. Abhay Kumar*  The interview for the post of political science (Guest) was scheduled on Saturday afternoon, September 10, 2022. Given my previous experience, I was not willing to appear for it. But friends persuaded me to go and fight for our rights. I reached the college well before the time. When my turn came and I entered the room. The first question was asked about my experience. I said that I had taught for four semesters at NCWEB. I mentioned that I had taught ”Comparative politics”, “International Relations”, “Comparative Political Thoughts” and “Indian Government and Politics”. I said that as a teacher I had taught all the articles listed in the syllabus of the same Delhi University and the expert could ask anything about any reading or ideas. Friends, the first question asked by a female member, perhaps she is the principal of the college if I am not wrong, to give the full form of NCWEB! The second question asked by a male expert, perhaps he is the political science dep

Musician and follower of Dr Ambedkar? A top voilinist has this rare combination!

Some time back, a human rights defender, Vidya Bhushan Rawat, who frequently writes for Counterview, forwarded to me a video interview with Guru Prabhakar Dhakade, calling him one of India's well known violinists.  Dhakade is based in Nagpur and has devoted his life for the Hindustani classical music. A number of his disciples have now been part of Hindi cinema world in Mumbai, says Rawat. He has performed live in various parts of the country as well as abroad. What however attracted me was Dhakade's assertions in video about Dr BR Ambedkar, India's undisputed Dalit icon. Recorded several years back at his residence and music school in Nagpur, Dhakade not only speaks candidly about issues he faced, but that he is a believer in Dr Ambedkar's philosophy. It is in this context that Dhakade narrates his problems, even as stating that he is determined to achieve his goal. A violinist and a follower of Ambedkar? This was new to me. Rarely do musicians are found to take a

Tokens, symbols or incipient feminists? : First generation women sociologists in India

By IMPRI Team  The online event on the theme ‘Tokens, Symbols or Incipient Feminists? : The first Generation of Women Sociologists in India’ was held as an initiative of Gender Impact Studies Center (GISC), IMPRI Impact and Policy Research Institute, New Delhi under the #WebPolicyTalk series of The State of Gender Equality – #GenderGaps. Inaugurating the session, Zubiya Moin welcomed the speaker and participants to the program, followed by an introduction to the eminent panelists. Commencing the program, Prof Vibhuti Patel made her opening remarks welcoming Prof Kamla Ganesh, Feminist Sociologists and then greeted Prof Ratna Naidu and the editors of book ‘Reimaging Sociology in India: Feminist Perspective’, Dr Gita Chadha and Dr. Joseph M.T. along with Prof Arvinder Ansari and also welcomed all participants. She set up the stage by making us familiar with women sociologists and their works. Dr Gita Chadha, Editor of the book ‘Reimaging Sociology in India: Feminist Perspective’ After th

Omission of duty by BSF and police: Hindu forcefully kidnapped, taken to Bangladesh

Kirity Roy, Secretary, Banglar Manabadhikar Suraksha Mancha (MASUM), & National Convenor, Programme Against Custodial Torture & Impunity (PACTI) writes to the Chairman, National Human Rights Commission: *** I am writing this to focus on the life and situation of the poor and marginalized villagers living alongside the Indo-Bangladesh border of West Bengal. Through the several complaints we made throughout the years to your good office, it is now evident that the people of this border are living in an acute crisis, not only from a financial perspective but also in terrible distress. The people of the border are devoid of their basic rights and are subjected to immense torture, harassment and restrictions mostly enacted by the Border Security Force personnel, who are supposed to be posted at the international borders with intentions to protect the Indian citizenry. However, on the contrary, incidents of victimizing Indian citizens are being witnessed at large by the BSF. 130 Bhot

Tamil Nadu govt claiming to reform Hindu religion, temples. People deserve better

By NS Venkataraman  For the last several decades, there have been hate campaign against Hinduism in Tamil Nadu in a subtle or not so subtle manner. Initially, it was a hate campaign against brahmins and the brahmins were abused, insulted and physically attacked. Fearing such conditions, many brahmin families left Tamil Nadu to settle down in other states in India or have gone abroad. Now, the brahmin population in Tamil Nadu is at microscopic level, for which these hate campaigners against brahmins were responsible. Later on, emboldened by the scenario of scared brahmin families not resisting and running away, the hate campaigners started focusing on Hindus. For some years, when M.G.Ramachandran and Jayalalitha were the chief ministers of the state, the hate Hindu campaigners were not much heard, as both these chief ministers were staunch believers in Hindu philosophy and have been offering prayers in temples in full public view. However, in the last eighteen months in

Emerging dimensions of India’s foreign policy in the context of global politics

By IMPRI Team  The three-day course took place recently, providing participants with an understanding of the development of Indian foreign policy, the complexity of geopolitics, and its flexibility to adjust to and even shape global outcomes. Many distinguished academics, senior scholars, former Indian diplomats, and journalists who are skilled observers and commentators of India’s foreign policy will serve as instructors for this course. Day 1 The three-day immersive online certificate training on “Emerging Dimensions of India’s Foreign Policy and Global Politics”, an initiative by the Center for International Relations and Strategic Studies (CIRSS) at IMPRI Impact and Policy Research Institute (IMPRI), began on July 14th, 2022 at 5:00 PM (IST) on Zoom platform. Dr Souravie Ghimiray served as the emcee throughout the 3 days of the event and welcomed the distinguished speakers of Day 1. The esteemed panel on Day 1 consisted of, Dr Soumita Basu, Associate Professor, Department of Intern

Demographic parameters of India@75: resource allocation, political representation

By IMPRI Team  As per UN Population Prospects 2022, India is going to be the most populous country in the world. In this regard, IMPRI Impact and Policy Research Institute, New Delhi with #IMPRI Center for Human Dignity and Development (CHDD) , organized a panel discussion, #WebPolicyTalk, as part of the series The State of Population Development- #PopulationAnd Development on India@75: Most Populous Country? The moderator of the event was Mr Devender Singh, Global Studies Programme, University of Freiburg and a Visiting Senior Fellow at IMPRI. The panellists for the event were Prof P.M Kulkarni, Demographer, Retired Professor of Population Studies, Jawaharlal Nehru University(JNU) , New Delhi; Dr U.V Somayajulu, Co-Founder, CEO and Executive Director, Sigma Research and Consulting ; Dr Sonia George, General Secretary, Self Employed Women’s Association (SEWA), Kerala; Prof K.S James, Director and Senior Professor, International Institute for Population Sciences (IIPS), Mumbai. Th

Bhagawat Gita shows the way for the attitude to life and desirable goal of life

By NS Venkataraman*  When a mother delivers a human body, this body has no identity. Then, parents, relatives, friends consult each other and discuss the alternate appropriate names and arrive at a suitable name for this human body and this body is known and identified by this name. This human body, which steadily grow just like animals, plants and others and after experiencing the pleasures and pains of worldly life alternately for several years, perish one day, for the body to be burnt or buried. This body, bearing a name as it’s identity, comes in to the world and goes away from the world and the name that is the identity for the body also goes away along with the body. This is the scenario for several thousands of years that have gone by. The question: One question that does not seem to be still “convincingly explained” in a way that will appeal to the brain in the human body, is as to whether this human body only consists of flesh, bone and blood with well

Tattoos and intimidating gestures can't always win cricket matches for India

By Sudhansu R Das  Team India waited with baited breath for the outcome of the Pakistan vs Afghanistan match. Speculation was on about India’s return to the game if Pakistan loses to Afghanistan until Pakistan’s tailender, Naseem hit two massive sixes to win the match for Pakistan. Unfortunately, Afghanistan lost the match after being in a strong position till the last over of the game; two full touch balls in the final over turned the match into Pakistan side. The Afghanistan team would never forget this blunder and shock for a long time. India’s team management should introspect and take tough decision keeping in view of the tough match situation in the world cup matches. India lost two crucial matches in the Asia Cup. It could not defend a big total of 176 against Pakistan due to mediocre bowling attack, sloppy fielding and unimaginative captainship. It failed against Sri Lanka in similar fashion; it could not defend another respectable T 20 total of 171 runs. It was a pat

Not my burden of shame: Malaysia's apathy in tackling problem of sexual harassment

By Jeswan Kaur*  "There was no such thing as child abuse. Parents owned their children. They could do whatever they wanted." -- actress Ellen Burstyn Condemning, judging and humiliating - it this the very nature of people in general or is this what Malaysians are best known for? When a 15-year-old actress recently made a damning revelation that she was molested as a child by her perverted father, support was far from coming. Instead, many name shamed Puteri Nuraaina Balqis, calling her "stupid" and rebuking her for seeking cheap publicity by insulting her father. They "advised" her to pray more, "be thankful to her father for bringing her into this world and remember that she would be given something by Allah for insulting her father." Would any of those who condemned Puteri Balqis "enjoy" being molested, raped or sexually harassed? Would they fancy calling their house a sanctuary when safety was no where in sight? Do these insensitive