Watching the heavens dump a Sydney Harbour into Sydney Harbour every hour, I’m moved — like all lawyers — to think about the later flood that will inevitably follow the current flood drowning my city and state: litigation.
Not that I’ll be suing anyone or acting for anyone who’ll be suing anyone, but questions will be asked because the losses will be incalculable — in lives, property, income, stock, produce and trauma. Who, it will be asked, is to blame? And can they be made to pay?
With water, we are in the legal realm of the Act of God. The law has always said that God is immune from suit, being omnipotent (and notoriously difficult to serve with court papers). More technically, he is incapable of negligence, given that everything he does is by design.
As a general rule, since rain does come from heaven, or the sky if you prefer to be prosaic about it, the courts are not keen on attributing legal responsibility for where it goes once gravity has a hold of it. Shane Stone was right about one thing: if you build your house on a flood plain, pretty good chance it’ll get flooded.
The point is not the “suck shit” philosophical stance which the Morrison government that appointed Stone has as its general attitude to everything bad that happens to people who aren’t its corporate donors. The point is that rain, floods and storm surges are largely natural phenomena. Like volcanoes, earthquakes and drop bears, they’re considered to be nobody’s fault at all. Consequently, when they hit you, there’s nobody to sue.
Which is why insurance was invented, although that’s cold comfort to the entire population of the northern rivers who will never be able to afford the premiums again after this latest once-in-1000-years biannual event.
Of course we’d all like to sue the government over this waterlogged shitshow. State or federal, it hardly matters — they didn’t prepare for it and have done fuck-all to deal with it. Quite apart from the government’s failure to take any mitigation steps, it continues to pretend like this isn’t nature visiting on us precisely what we asked for when we warmed the planet by an extra 1.5 degrees.
There are two possible ways to approach this: first, while you can’t sue over a flooded river just because it flooded, you potentially can sue if the government has done or failed to do something it should have that contributed to the consequences. For example, mismanaging dam flows, failing to maintain drains or doing something else idiotic, such as what the US army corps of engineers spent decades doing to the Mississippi River to basically ensure that one day New Orleans would drown when a big enough hurricane hit it square-on.
The second possibility derives from the same principle that the Federal Court recognised in the Sharma test case last year: that the government owes a duty of care, at least to children, to not let their world burn to a fucking crisp. In that context, failure to act on climate change while knowing what will happen if you don’t is, quite simply, negligent (or wilfully genocidal, but let’s go for the lowest-hanging legal fruit).
These cases that might be run are tantalising, at least to the human subspecies known as class action lawyers and litigation funders. As the waters recede and the mud cakes on to what’s left behind, pencils will be sharpening in city offices that remained bone-dry throughout.
If you’ve lost your house, furniture, business, car, livestock or livelihood in the deluge then, yes, there is some hope that somebody might be somewhat liable; most likely one government or another. It’s going to be a speculative bet if you make it: see Act of God, above.
But let’s consider how all this will look a bit further down the track, when either we’ve actually addressed climate change and managed to save the planet at the last gasp through a combination of ingenuity and desperation, or when the natural disasters we’re suffering now are laughably inconsequential compared with what nature is turning on by then.
From that perspective, whichever it turns out to be, who sued who and how much was paid out over the great floods of 2022 won’t matter at all.
And that would be why the Coalition are so keen to push the Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill through and make it law.
Anything that makes it so very much harder for class action suits will make it very much harder to sue governments.
Governments are incorporated bodies which means under law, a corporation is a person. This was established a while back in the US. The particular person responsible for flood and tidal damage is the person that allowed building in a high risk zone and that person would be local government.
But.
Flood and tide maps and other natural hazards date are all available to the prospective buyer of a property.
I don’t know if the vendor has legal liability to supply this information. It is available in most local government master plans. Buyer beware.
Insurance risk is also a known available to prospective buyers. When the premium offered is out in orbit or the property is uninsurable, again, it’s the buyers responsibility.
All that coastal realty about to become the next disaster zones.
Yesterday I encouraged a friend from Hervey Bay to Retro fit cyclone upgrades. She had no clue that her place was vulnerable to future extreme weather. Going to learnt the hard way.
Some estimates (Financial Impact Of 2019-20 Australian Bushfires – FXCM Australia) put the cost of the 2019 bushfires at around AU$100 billion. Unlike bushfires, flooding tends to hit residential areas harder than rural (at least in terms of damage dollars), so who knows what the current crisis will be worth, especially as it’s not over yet. Let’s say AU$50 billion, but if someone has the expertise to make a better guess, I’d be glad to hear it.
So that’s around AU$150 billion of natural disaster economic damage Australia has racked up in just THREE years – and we still haven’t rebuilt from the 2019 fires yet. Oh, and if my garden is anything to go by, all this rainfall is growing vegetation like crazy. Fuel for the next cycle of fires in a few years time.
We are a wealthy country, but there is a limit to the financial impact we can absorb. However, this is just what scientists have been warning us of for decades: that increasing atmospheric temperatures will lead to an increase in both the frequency and intensity of extreme weather events. In other words, forget ‘once in a century’ or ‘once in thousand years’. This is the new normal. We can expect more of this pain, more often and more intensely, in the years to come.
How many times can people come back and rebuild, after seeing all that they have worked for burnt to cinders or washed away? Even just financially, leaving aside all the emotional trauma.
And yet we still have this small cadre of stupid, greedy, (mostly) men who hold political power in this country in a death grip, clinging to denial.
This political power has to be broken. They have to be voted out, because they will go on denying until we are all dead.
As a disciple of God Scotty will be stepping up, no doubt, to take the heat out the worn out insurance industry ruse “Act of God” with an offer to think about having an inhouse inquiry on why every organisation (outside the Federal Government and God) failed to keep it in the “she’ll be alright, mate” mode in this Morrolithic era hallmarked by deliberate Climate Change inaction and LNP preoccupation with its shrinking entrails and the conversion of the Party’s electoral appeal program to a rorts based model.
As the said, “once in 100 years” or indeed a “millennium”, Acts of God now appear to be occurring every 10 years or so it is a moot question as whether Sott’s sermon from the Mount will grace our ears before the next round of epoch ending flood, firestorm or pestilence.
Whatever he says it will be of little or no practical consequence as he hasn’t been here for the country to date and, in all likelihood, will not be here for the country in any foreseeable future. He doesn’t know how hold a hose, a sandbag or a syringe as we all know, but he definitely knows where the Treasury rainbow ends.
Theologicaly speaking the question is has Smirko really worn out enough carpet with his praying, but also as Pentecostal believe in glossalia, maybe he is speaking in the wrong tongue and due to such fact either his particular deity is not listening, or is somewhere attending to business in the multiverse or more likely does not exist?
I hear from media representatives who were in Lismore today that Scott Morrison appeared fleetingly unto a hand-selected group in a secluded location redolent with the icons of privilege and propriety but otherwise largely denied to those he claims to had come to save with heaven sent lucre. It must have been in the order of an immaculate conception for the town’s flooded out residents as he came and went without the body of his flooded out hosts being aware of his ephemeral visitation.
However, he suggested that he will make a much heralded deposit in the region future when State and Federal communication arrangements permit and Vice-Regal protocols can be properly observed.
In much the same way that, in other more pressing personal circumstances, rorts are promised to those in temporary, political, holy lands.
Is the Federal Government’s general ignorance of climate change actually a legal defence? If there is a lack of consensus that climate change exists, they may less likely be sued for negligence. After all, it’s not a thing means there was nothing to know. It can all be attributed to God, even if they’re starting to wonder why he’s ramping up the acts these days.