Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 26)

1. [1]

   Following the publication of the principal judgment (Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657; “Rodriguez (No 22)”) and a judgment dealing with apportionment (Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 23) [2020] NSWSC 650; “Rodriguez (No 23)”), the next round of issues to determine in these proceedings was the appropriate order for costs of the proceedings, the resolution of the remaining causation and quantum issues affecting the sample group members [1] and motions for the referral of various claims of group members to a referee in anticipation of a later application by the plaintiff for an order under s 177(1)(f) of the Civil Procedure Act 2005 (NSW) (“CPA (NSW)”).

2. [2]

   Both costs and the motions for referral have now been dealt with. [2] This judgment deals with causation and quantum issues affecting the sample group members. It assumes a familiarity with Rodriguez (No 22) and Rodriguez (No 23).

3. [3]

   There were five sample group members whose claims were not fully determined by Rodriguez (No 22) and Rodriguez (No 23): Mr and Mrs Keller, Ms Visser, Ms Lynch and Ms Harrison. The balance of all four matters was due to be heard (along with the other issues) in the week beginning 26 October 2020. Mr Keller was required for cross‑examination but unfortunately he became ill shortly before the hearing. The hearing of his and Mrs Keller’s claims will take place on 11 December 2020. Evidence and submissions were received in relation to Ms Harrison’s claim. However, in what represents something of a miracle for these proceedings, agreement was reached over the quantum of her claim, although it was agreed the evidence adduced from her provides a convenient vehicle to resolve an issue raised by the State that affects other group members. Ms Visser and Ms Lynch’s matters proceeded, although for the reasons that I will explain a dispute broke out over one component of their claims, namely cleaning costs, that necessitates the obtaining of further evidence. That aspect of their claims will also be litigated on 11 December 2020. The balance of their claims is addressed below.

4. [4]

   Further, by a notice of motion filed 10 September 2020 [3] the State sought, inter alia, that certain questions be determined as questions common to the claims of all group members, namely:

5. [5]

   As explained below, these questions concern flood relief programs that have some similarity to the payments made by the Queensland Rural Adjustment Authority (“QRAA”) under the “Special Disaster Flood Assistance (November 2010 to January 2011) Scheme” provided for in Part 29 of the Rural and Regional Adjustment Regulation 2000 (Qld) (“Part 29”) addressed in Rodriguez (No 22). [4] Of the sample group members noted above, only Mr and Mrs Keller received loans of the kind referred to in question 41. Although submissions were received in respect of treatment of those loans, the determination of that issue will have to await the resumed hearing of Mr and Mrs Keller’s claims on 11 December 2020. Otherwise, it is appropriate to address questions 39 and 40 first before the specific issues affecting Ms Visser and Ms Lynch.

6. [6]

   In summary in relation to those issues, I find that:

Premier’s Disaster Relief Fund

1. [7]

   According to the report of the Chairperson of the Premier’s Disaster Relief Appeal Distribution Committee (the “Distribution Committee”), on 29 December 2010 the Queensland government launched the Premier’s Disaster Relief Appeal (“PDRA”). On 10 January 2011, the Premier announced the appointment of that committee to oversee the distribution of the funds raised.

2. [8]

   On or about 19 January 2011, a Trust Deed was executed by the then Premier of Queensland, the then Treasurer of Queensland and the then Minister for Police, Corrective Services and Emergency Services of Queensland as initial trustees. The Deed established a charitable trust which was to hold a fund known as the “2010/2011 Queensland Floods Disaster Relief Fund” (“PDRF”). [5]

3. [9]

   Recital B to the Trust Deed provided that “[t]he Trustees propose to solicit and accept gifts, or as the case may be appropriations, of money from the general public, industry, the State of Queensland” and other government authorities or instrumentalities or any other appropriate source.

4. [10]

   Clause 2.1 of the Trust Deed provided that the trustees declared that “they hold the Fund upon trust solely for charitable purposes involving the provision of money for the relief … of people in Australia in distress as a result of the Disaster”. The phrase “Disaster” was defined as meaning the “widespread flooding in Queensland in the areas covered by disaster situations declared under the Disaster Management Act 2003 (Qld) in December 2010 and January 2011, being a disaster that satisfied the requirements of subsection 30‑46(1) of the Income Tax Assessment Act 1997 (Cth)”. It was accepted that this was not confined to the flooding in Brisbane and Ipswich that occurred on or about 11 January 2011. The material described below confirms that it included flooding across the State as well as a result of Cyclone Yasi.

5. [11]

   Consistent with what was stated in the Trust Deed, appeals were made to members of the public. For example, in January 2011 a poster was distributed stating, inter alia: [6]

6. [12]

   According to the Distribution Committee’s report, [7] by October 2011 the appeal had raised $277.2m, which included $11m from the Queensland government and $11m from the Federal government. It administered assistance to over 40,000 Queensland residents and over 4,400 households received additional payments to assist them in rebuilding their homes.

7. [13]

   In describing the work of the Distribution Committee, its Chairperson stated that by early January 2011, the Committee “quickly ascertained that, despite public generosity, the dollars collected by the Appeal would be insufficient to provide a surrogate insurance policy for the tens of thousands of Queenslanders whose property losses were either uninsured or underinsured” and so the Committee adopted the principles that would guide its work over the ensuing months. [8] The Chairperson stated that “[r]ecognising that it was administering a charitable trust” the Distribution Committee resolved that “its highest priority would be to alleviate hardship and, in particular, direct a greater measure of assistance to those with the least capacity to recover from the impact of the natural disasters”. [9]

8. [14]

   In the same document, the Distribution Committee described its task as follows: [10]

9. [15]

   The Distribution Committee’s report stated that there were three rounds of funding. The first round was referred to as “emergency assistance”. It was described as providing a “non‑means tested Emergency Assistance payment [that] provided eligible applicants with $2000 per adult and $1000 per dependent child (under 18 years)”. A person was eligible for assistance under round 1 if they were experiencing hardship from the impact of flooding or Cyclone Yasi without financial assistance, and their principal place of residence was flooded internally above the level of the floor in the living areas of the home, making the home uninhabitable, or the damaged residence sustained cyclone damage to the living areas of the home making the home inhabitable. [11] The report noted the necessity for verification as to the level of inundation or cyclone damage at the home. [12]

10. [16]

    Applicants for assistance under round 1 were required to complete a form providing their personal details, and answer questions directed to the eligibility criteria. [13] At the conclusion of the form they were required to declare the truth and accuracy of their statement. They were also required to acknowledge that any overpayment would have to be returned and that the information they provided would be provided to a government agency for the purpose of assessing the application which could include “an assessment of whether [their] property was inundated by flood waters and deemed uninhabitable”.

11. [17]

    Ms Visser received a $2,000 payment under round 1 in February 2011. [14] Ms Lynch received a $2,000 payment under round 1 in March 2011. [15] Between them, Mr and Mrs Keller received $6,000 in round 1 payments. [16]

12. [18]

    According to the Distribution Committee’s report, funding assistance for round 2 was announced on 8 March 2011. It was described as concentrating “initial structural damage assistance on those who had been hardest hit by the floods and Cyclone Yasi, namely those people who had lost everything”. [17] Although the available funding and eligibility criteria changed over the course of the programme, the final requirements for eligibility were that the applicant’s principal place of residence was totally destroyed or had to be demolished as the result of the Queensland floods or Cyclone Yasi, that the applicant was the owner occupier of that residence and that the combined household income was less than $150,000 gross per annum. [18] The report noted that eligibility for the assistance was assessed by determining an applicant’s income, as well as requiring evidence of property ownership and principal place of residence. The level of damage to owner-occupied places of residence was verified either from an independent assessment or by the applicant’s insurer. [19] As to the amount of assistance that was made available, the Distribution Committee’s report stated: [20]

13. [19]

    This extract describes three layers of payment, being an “initial” payment or first layer of $10,000; a “further payment” or second layer; and a “contents contribution” of $30,000 or third layer.

14. [20]

    The application form for round 2 funding advised applicants that if they were eligible they would “receive an additional payment of $10,000 towards [their] rehousing and recovery needs” and that “[a]dditional assistance of up to $90,000 may be provided depending on [their] income and other circumstances” but that “[a]ny insurance payment, or ex‑gratia payment received, for example from [their] bank or insurance company or grants under the Community Recovery Structural Assistance Grant, will be deducted from the amount [they] are assessed to be eligible for”. [21] The discrepancy between the reference to “$90,000” and the reference to $240,000 in the above extract from the Distribution Committee’s report appears to reflect the fact that the amount of assistance provided under round 2 increased over time.

15. [21]

    The application form for round 2 assistance required the provision of personal details, including the existence of any insurance policy in respect of the destroyed home. [22] The form did not require applicants to provide quotes for the cost of rebuilding the home or for the cost of building another home or purchasing another home. The form was required to be verified by a statutory declaration in which the applicant stated that, if their application was approved, “the funds will be used to meet my/our rehousing and recovery needs”. Both the State and SunWater treated this statement as somehow requiring the applicant to apply the funds to repair the destroyed home. (They made the same submission in relation to the equivalent form for round 3 in that they contended it required the recipient to apply the funds granted to repair the damage to their home. [23] ) I disagree. That statement left the grantee free to decide for themselves how their “rehousing and recovery needs” could be met. A grantee could have purchased a new dwelling, a mobile home or moved interstate or overseas to live with relatives. Moreover, there is nothing in the material that restricts “recovery needs” to accommodation. This is confirmed by the letter noted at [29].

16. [22]

    Grant applicants were also required to complete a form addressed to “[t]he Trustees of the 2010/2011 Queensland Floods and Cyclone Yasi Disaster Relief Fund” as well as other entities, consenting to the release of information concerning their personal insurance details to the Trustees and various state government entities. [24]

17. [23]

    The reference to a “contents contribution of $30 000” in the passage at [18] is somewhat opaque. I infer that this was relevantly identical to the contents contribution of up to $20,000 that was made available in relation to round 3 as explained below.

18. [24]

    According the Distribution Committee’s report, round 3 funding was made available for persons who had suffered structural damage to their home. The eligibility criteria was that the person’s principal place of residence suffered structural damage as a result of the floods, or Cyclone Yasi, and that their household income was less than $150,000 gross per annum.

19. [25]

    Again the funding was said to be made available to “both insured and insured applicants, with varying payment levels depending on the applicant’s circumstances”. [25] The Distribution Committee’s report stated that “[t]hose who were eligible for Damaged Home assistance received an initial payment of $5000 towards their rehousing or recovery needs, regardless of their insurance status…” (ie, a first layer). [26] Thereafter, a damaged home payment was available, (ie, a second layer). It was available (ie, a second layer). It “was originally calculated at 50 cents in the dollar based on repair quotes provided”, but that “was increased to meet the full cost of the quoted repairs up to the maximum payment of $80,000” including the first layer payment of $5,000. Initially, applicants were required to include two quotes seeking funding, however from May 2011 applicants could avoid this requirement by providing one quote from a designated panel of licensed builders. [27] In June 2011, it was announced that there would be an additional payment to eligible householders to assist them in replacing damaged household contents” of up to $20,000 (ie, a third layer). According the Distribution Committee’s report, this meant that there was “a maximum payment of up to $100,000 … available under the [Round 3 funding] ... depending on a household's circumstances”. [28]

20. [26]

    Consistent with this, the form for round 3 funding advised recipients that if they were eligible they would receive an “initial payment of $5,000” and “[a]dditional assistance of up to $75,000 may be provided depending on [their] income and other circumstances”. [29] The form requested details of the applicant’s insurance, income and the provision of two quotes. Applicants were required to complete a statutory declaration and provide a notice that was not materially different to those provided for stage 2 funding. [30] In particular, the statutory declaration only recorded the applicant’s commitment to use the funding “to meet my/our rehousing and recovery needs”. [31]

21. [27]

    Ms Visser applied for assistance under round 3 in May 2011. [32] She ultimately received $100,000 in funding. Her income was below the relevant threshold and her insurer also declined liability on the basis a flood exception. [33] At some point she provided quotes for damage to her home that exceeded $80,0000. [34] There was tendered the letters received by Ms Visser and what appears to be in the fund’s internal working documents. [35] None of that material includes any quotes or estimates of Ms Visser’s home contents that were lost or destroyed in the flooding.

22. [28]

    The chronology of the payments received by Ms Visser was as follows. In June 2011, Ms Visser received two letters, one advising her that she would receive the initial payment of $5,000 and the other concerning a further payment of $75,000. [36]

23. [29]

    On or about 16 June 2011, Ms Visser received a further letter advising her that “as a recipient of assistance under Round 3, you are now eligible for an immediate contents payment of $10,000” (ie, the third layer). [37] The letter added that “although this payment is intended to provide assistance in replacing damaged household goods, as with other payments from the appeal, it may be used for whatever purpose best assists with your disaster recovery.”

24. [30]

    In August 2011, Ms Visser received another letter advising her that she would “receive a further payment of $10,000 in recognition of the hardship you have sustained in the ensuing months following the summer disasters”. [38] This appears to be the balance of the third layer.

25. [31]

    Ms Lynch received $100,000 in round 3 funding from the PDRF. [39] She lodged an application form in April 2011. [40] She advised that her income was less than $150,000. Although she was insured, her insurer denied cover on the basis of a flood exception. [41] At some point she provided a quote for the cost of repairs to her home of $154,651.20. [42]

26. [32]

    On 17 June 2011, Ms Lynch received a letter advising of an initial payment of $15,000. [43] This appears to have consisted of the $5000 first layer of payment and a further $10,000 in respect of contents (ie, third layer). On 22 June 2011, she received a letter advising of approval of a further payment of $75,000. (ie, second layer). [44] On or around 25 August 2011, [45] Mr and Ms Lynch received a letter advising them that they would “receive a further payment of $10,000 in recognition of the hardship you have sustained in the ensuing months following the summer disasters”. [46] This appears to be another tranche of the third layer, ie a payment in respect of home contents.

27. [33]

    Mr and Mrs Keller received $15,000 in funding under round 3. [47] In June 2011, they applied for round 3 funding in respect of their property at 426 O’Reilly’s Weir Road, Lowood. [48] Their insurer provided only limited cover for their home and contents in the case of flood damage. [49] They provided a quote for just under $12,900. [50] They were approved for the initial payment of $5,000 but not any further payment given the scope for insurance recoveries (ie, the first layer). [51] On 18 July 2011, they were sent a letter advising that a payment of $15,000 had been approved. [52] It seems that the additional $10,000 was referable to the funding for replacing household contents (ie, the third layer).

28. [34]

    In Rodriguez (No 22), I addressed the principles governing whether or not payments made by a third party to an injured party should be deducted from their tortious damages. [53] It suffices to restate the following: [54]

29. [35]

    Later, in the context of addressing payments that were not paid under a statutory scheme, I noted that in Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52 (“Zheng v Cai”), the High Court held at [23] that the “critical question” was whether the payments by the Church were “intended by it to operate in the interest[s] of the [tortfeasor] and to diminish the damages he otherwise would be liable to pay”. [55] I also noted that the Court in Zheng v Cai referred at [20] to a passage from Windeyer J’s judgment in Espagne concerning charitable benefits, in which his Honour stated (at 598 to 599):

30. [36]

    In terms of inferring the relevant intention “from the circumstances”, an intention to diminish the damages was inferred in Rodriguez (No 22) in relation to the statutory scheme for reimbursing expenses provided for in Part 29. [56] Having regard to the “nature of the benefit[s]” provided by that scheme, namely “reimbursement [of] specific cost items that represented forms of ‘direct damage’ suffered as a result of flooding”, I concluded that they did not exhibit the “distinguishing characteristic” of conferring benefits that are intended to be “enjoyed independently of, and cumulatively upon” any right to damages in respect of the same cost items the subject of a grant under the Scheme (Manser v Spry (1994) 181 CLR 428 at 436; [1994] HCA 50; “Manser v Spry”).

31. [37]

    In seeking to ascertain the relevant “intent of the person conferring the benefit” paid out of the PDRF, Senior Counsel for the plaintiff, Mr Sexton SC, submitted that the relevant intent was that of the persons who donated funds. [57] He submitted that the only evidence of their intention was what could be inferred from the fund raising material, such as the poster described above. Were the matter to be analysed in that way then I have no doubt that the payments made into the fund were not intended to operate in the interests of any tortfeasor and diminish the damages they would otherwise be liable to pay (Zheng v Cai supra). The fund raising material was clearly directed to seeking charitable donations to alleviate the hardship of those affected by flooding across Queensland and Cyclone Yasi, with no regard whatsoever to the interests of any tortfeasor or for the potential to avoid double recovery by the persons who might benefit.

32. [38]

    However, in this case the relevant person “conferring the benefit” was the Trustees of the PDRF. The “intention” of the donors as inferred from the fund raising material is relevant only to the extent that it bears upon ascertaining or characterising the intent accompanying the payments made out of the fund. Mr Sexton SC submitted that, if the matter was ascertained from the perspective of the Trustees, then the inquiry need not extend beyond the terms of the Trust Deed. He submitted that the Trust Deed established conclusively that the Trustees were administering a charitable trust and any payments made by the Trust were only permitted to be for the “relief … of people in Australia in distress as a result of the Disaster”. He submitted that this was the end of the inquiry as charitable payments made in that context could not have been intended to operate in the interests of any tortfeasor (citing Zheng v Cai). [58] He also contended that the fact that the funds were not limited to persons who were affected by the flooding the subject of these proceedings, but extended to other flooding and the effects of Cyclone Yasi was indicative of the payments not operating in the interests of the tortfeasor. [59]

33. [39]

    I accept that the fact that the payments were made from a charitable trust for the “relief … of people in Australia in distress as a result of the Disaster”, which extended beyond the flooding the subject of these proceedings, and that the source of the funds was (principally) an appeal to the public, are strong indications that the intention accompanying them “is that the injured [party] shall enjoy [their] bounty in addition to whatever rights [they] may have to recover damages from the tortfeasor” (Espagne supra). However, those matters are not necessarily determinative. The above passage from Espagne contemplates that the possibility that a payment may be made out of sympathy for the injured party but still operate in the interests of a tortfeasor. Further, the concept of the payer having an intention that the payment operate in the interests of a tortfeasor does not necessarily require an advertence to the identity of a specific tortfeasor or a specific claim and that is especially so in relation to schemes that confer benefits on a significant portion of the population. Instead, it is sufficient that the relevant intention is that the payment operate in the interests of any tortfeasor, that is that the injured party cannot enjoy the benefit “in addition to whatever rights [they] may have to recover damages from the tortfeasor”. Thus, in Redding v Lee; Evans v Muller (1983) 151 CLR 117; [1983] HCA 16 (“Redding v Lee”), it was found that unemployment benefits should be deducted from an award of common law damages because it was concluded they were a “benefit paid in lieu of what could have been earned in employment if suitable employment had been available” (at 146 per Mason and Dawson JJ with whom Wilson and Deane JJ agreed). This characterisation of the payment was treated as sufficient to manifest the requisite intention in relation to all potential tortfeasors.

34. [40]

    The State submitted that, in ascertaining the relevant intention, regard can be had to statements of the Distribution Committee as they oversaw the distribution of funds. [60] I accept that contention but only because I infer that the Trustees appointed the members of the Distribution Committee and either adopted or approved their approach to the distribution of funds. However ultimately that does not assist the defendants. The Distribution Committee’s description of their own approach, namely “not [providing] compensation for loss” but instead making “a gift towards recovery costs”, was inconsistent with any intention to make payments “in the interest of the tortfeasor” and instead indicative of an intention to allow the injured parties to “enjoy [their] bounty in addition to whatever rights [they] may have to recover” from elsewhere (Espagne supra). “Gifts” are generally not recoverable and do not diminish other benefits and rights.

35. [41]

    SunWater disavowed reliance on the Distribution Committee’s statements and instead pointed to a media release from the Premier concerning the PDRF which referred to the offering of “grants”. [61] I do not regard that statement as any different from the Distribution Committee’s description. If it is, it overlooks the fact that the only authority that the Premier had to deal with these funds was that conferred by the Trust Deed and it characterises the funds received as gifts which were to be distributed as “charitable payments”.

36. [42]

    The State further submitted that regard can be had to the manner and circumstances in which the funds were distributed. [62] Even so, a consideration of the material concerning the “nature of the benefits” made available in each round of funding does not alter the position suggested by the Trust Deed or the Distribution Committee’s report.

37. [43]

    In relation to round 1, as noted it was a non means tested payment at a flat rate of $2000 per adult and $1000 per dependent child that was made available for people experiencing hardship from flooding. Payment was not contingent upon or calculated by reference to any particular loss having been occasioned or expenditure incurred. There was no obligation imposed on recipients to use it in respect of loss or damage occasioned by flooding. As submitted by the plaintiff, the “generalised approach to Round 1, focussed on the occurrence of an event rather evidence of loss and damage” which suggests that the “intention in relation to these payments was to provide immediate assistance directed at relieving hardship … not as compensation for loss”. [63]

38. [44]

    Payments under round 1 of PDRA were clearly intended to be received by flood victims “in addition to whatever rights [they] may have to recover” elsewhere (Espagne supra).

39. [45]

    In relation to rounds 2 and 3, as noted each of them involved three layers of payment. The first layer, being $10,000 in the case of round 2 and $5,000 in the case of round 3, was paid irrespective of whether or not the applicant had insurance cover. That is suggestive of the payment being made with the intention that it was “in addition to whatever rights [they] may have to recover” elsewhere, such as insurance. The third layer was described as referable to the loss or damage to contents of the home. It is not clear whether it was also payable irrespective of whether the applicant was covered by insurance, although Mr and Mrs Keller’s experience suggests that it was not. Like the first layer, it was not dependent on proof of any particular form of loss in relation to the contents. No invoices or quotes concerning the contents of the houses appear to have been required and, in the three cases noted above, they were not supplied. Instead, the loss of contents appears to have simply been assumed and payments made in tranches of $10,000. The accompanying letter sent to Ms Lynch stated that it was “made in recognition of the hardship you have sustained in the ensuing months following the summer disasters” (see [32]). The circumstance of the payments made in respect of each of these two layers reveal they were intended to be received by flood victims “in addition to whatever rights [they] may have to recover” elsewhere (Espagne supra).

40. [46]

    In relation to the second layer of rounds 2 and 3, the making of those payments was affected by the existence of insurance. The amount of the payment was calculated by reference to the applicant’s means and, to an extent, by the amount of damage suffered, but only up to a cap. Like the other two layers, the payment was not a refund of expense incurred in rebuilding a destroyed or damaged home and the applicant was not obliged to utilise the funds for that purpose. Instead, the destruction or damage to the home was simply a criteria for the funding and the applicant was only required to use the funding to “meet my/our rehousing and recovery needs”. This is consistent with the statement in the letter noted above at [29]. Again, the circumstance of the payments for the second layer of rounds 2 and 3 suggest they were intended to be received by flood victims “in addition to whatever rights [they] may have to recover” elsewhere (Espagne supra).

41. [47]

    Finally, it is necessary to refer to decision of the Full Court of the Supreme Court of Victoria in Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91 (“Wollington”). Wollington was considered in Rodriguez (No 22) [64] . Wollington addressed whether a scheme of ex gratia payments made by the State government to bushfire victims should be deducted from damages payable to the plaintiff by a tortfeasor responsible for the fire. The funds were the subject of an Appropriation Act but otherwise there was no legislative support for the scheme (at 94 and 98). The scheme was effectively a program of ex gratia payments distributed by a committee consisting of a Minister and various public servants. There was no statutory support for the committee’s work (at 94).

42. [48]

    In its submissions concerning the PDRF [65] , the State sought to contrast this case with seven criteria identified by the Full Court in Wollington which supported that Court’s conclusion that the payments were not deductible, namely (i) the payment was only made after a consideration of the injured party’s own resources to rehabilitate himself; (ii) the injured party had no entitlement to the benefit; (iii) there was no suggestion that the payment was made in part compensation for a tortious act and there was no connection between the wrongdoer and the payment; (iv) the object of the ex gratia scheme was to relieve personal hardship; (v) the payment was not related to the value of any goods lost but calculated by reference to standard replacement costs of certain items; (vi) the injured party was free to use the payment as they chose; and (vii) there was no stipulation that the injured party had to refund the costs if damages were later recovered (at 100 to 101). Mr Sexton SC disputed that these criteria were a complete statement of the relevant indicia or that ascertaining whether the requisite intention has been established is a simply a matter of “tick[ing] off or cross[ing] off” these criteria. [66]

43. [49]

    In relation to criteria (iii), the State submitted that the payments were referable to a connection between the wrongdoer and the payment because the PDRF was administered by the State and it was “established for the very reason of the disaster”. [67] I disagree. The PDRF was a charitable trust and the source of the funds was the public. The agencies of the State were simply the means of channelling the funds to the affected persons. Payments were made via the State qua people in need. They were not made qua tortfeasor and injured party. Otherwise, the PDRF addressed flooding across Queensland and the effects of Cyclone Yasi.

44. [50]

    In fact, criteria (i), (iii), (iv), (vi) [68] and (vii) from Wollington applied to all three rounds of payment, including all layers of payments made in rounds 2 and 3. Criteria (v) is applicable to payments made in round 1, and the first and third layers of payments in rounds 2 and 3. In relation to the second layer in rounds 2 and 3, the amount of the payment was in part referable to the amount of damage that was incurred but was otherwise capped.

45. [51]

    As for criteria (ii), the defendants submitted that there was an entitlement to payments from the PDRF. [69] I do not accept that there was any such entitlement. All of the payments were made out of a charitable trust. As such, it was subject to supervision by the Supreme Court of Queensland at the suit of the Attorney-General, a trustee or “any person interested in the due administration of the trust” (Trusts Act 1973 (Qld), s 106(2)). I do not accept that such supervision would extend beyond orders requiring the Trustee to carry out the trust or rectifying any improper exercise of the Trustee’s powers (Trusts Act 1973, s 106(1)) and extend to an order compelling the Trustees to pay a grant to a particular affected person such as to amount to an “entitlement” in them to receive a grant (see Sayeng v Kellog Superannuation Pty Ltd [2003] NSWSC 945 at [73] per Bryson J).

46. [52]

    In oral submissions, the defendants adverted to the possibility of seeking judicial review of decisions made by public officials in the administration of the PDRF. [70] There is no statutory basis for judicial review of PDRF payments. Decisions concerning such payments are neither a decision under an enactment nor a decision concerning funds appropriated by Parliament or from a tax, charge, fee or levy authorised by or under an enactment (Judicial Review Act 1991 (Qld), s 4). Otherwise, the mere fact that public officials administered a charitable trust could never give rise to any basis for relief in the form of mandamus requiring the payment of funds out of the trust.

47. [53]

    Finally, I note that the defendants all pointed to the practical implementation of the PDRF as effectively conferring an entitlement to a benefit, in the sense that the scheme was implemented on the basis that if a person met the criteria for a payment they would receive it. [71] They pointed to the internal appeal regime. [72] Those matters do not create an entitlement. No doubt the scheme in Wollington operated in a similar way.

48. [54]

    It follows that none of the payments made from the PDRA are deductible from damages owing to group members.

Natural Disaster Relief and Recovery Payments

1. [55]

   Another set of payments for flood victims was made available through the NDRRA agreed between the State and Commonwealth governments. Broadly there were two types of support packages made available pursuant to the NDRRA, being financial support for individuals and families, and financial support for primary producers, small business, charities and not‑for‑profit organisations. [73] The former was administered by the Queensland Department of Communities, Disability Services and Seniors (“DOC”) [74] and the latter by the Queensland Rural Adjustment Authority (the “QRAA”). [75] This part of the judgment is concerned with the former. The scheme provided for in Part 29 and addressed in Rodriguez (No 22) is an example of the latter.

2. [56]

   The Queensland Reconstruction Authority (“QRA”) was established under the Queensland Reconstruction Authority Act 2011 (Qld) (the “QRA Act”). According to its Chief Executive Officer, the QRA oversaw the “reimbursement of funding to these delivery agencies for the making of … grants and loans” under the NDRRA. [76] At the relevant time, s 10(1)(e) of the QRA Act conferred on the QRA the function of “coordinat[ing] and distribut[ing] financial assistance for affected communities”. However, the QRA Act did not establish a scheme of entitlements to grants or loans like the regulations to the Rural and Regional Adjustment Act 1994 (Qld) did. [77]

3. [57]

   At all relevant times, NDRRA grants and loans were administered under executive authority. In its submissions concerning the NDRRA, the State appeared to suggest that regulation 96 of the “Regulation” created some entitlement to payments in accordance with the guidelines applicable to NDRRA grants. [78] This appears to be a reference to regulation 96 found within Part 8 of the (former) Rural and Regional Adjustment Regulation 2000 (Qld). [79] Regulation 96 concerned the functions of the QRAA in administering grants to primary producers under a scheme similar to that provided for in Part 29 as addressed in Rodriguez (No 22). [80] It has nothing to with the QRA or the making of grants under the NDRRA. Otherwise, a decision to refuse a grant might be reviewable under the Judicial Review Act 1991 because it appears to involve the deployment of funds appropriated by the Queensland Parliament (as well as the Commonwealth Parliament). Nevertheless, the power to grant relief under s 30 of the Judicial Review Act 1991 is conditioned by the grounds of review provided for in ss 20 to 22 (Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343; [2000] HCA 9 at [33]; “Thiyagarajah”). It suffices to state that it would only be an extremely rare case where s 30 would authorise the grant of merits relief requiring the payment of a grant, especially where the criteria is only specified in guidelines with no statutory backing (see Minister for Immigration and Ethnic Affairs v Conygham (1986) 11 FCR 528 at 537, cited in Thiyagarajah at [32]). Given the limits on that power, it cannot be said that the Judicial Review Act 1991 establishes an “entitlement” to a grant. Instead, it only confers an entitlement to review of a decision, not to make grant or a failure to make a decision about a grant.

4. [58]

   Two sets of documents were tendered to establish the circumstances in which the various payments were made to individuals and families under the NDRRA. The first set consisted of a determination made by the Minister for Local Government, Territories and Roads under the Appropriation Act (No 2) 2006-2007 (Cth) setting out the terms and conditions applicable to Commonwealth NDRRA funding (“the Determination”), [81] a set of guidelines issued by the Queensland government concerning its use of that funding [82] and an agreement between the Commonwealth and the State of Queensland entered into in 2011 concerning NDRRA payments. [83] The second set consisted of various internal DOC documents which reveal the procedures and criteria adopted in the administration of the scheme. [84]

5. [59]

   There were four types of grants made to individuals and families of present relevance, being:

6. [60]

   The Determination identified each of the first three of these payments as a “Category A measure”, that is a “form of emergency assistance that is given to individuals to alleviate their personal hardship or distress arising as a result of a natural disaster”. [85] The fourth payment was identified in the Determination as a “Category B measure”, specifically a grant to “alleviate the financial burden of costs incurred by certain business, primary producers, voluntary non-profit bodies and individuals as a direct result of a national disaster”. [86]

7. [61]

   The Emergency Assistance Payment (“EAP”) was described in the Distribution Committee’s report as a “one-off grant” that assisted with “immediate needs such as food, clothing, accommodation and medical supplies in the immediate aftermath of a natural disaster”. [87]

8. [62]

   The maximum EAG grant was $170 per person or $850 per family. [88] The grant was not means tested, but was instead available to “all people affected by disaster who without assistance would suffer personal hardship and distress”. [89] Its payment was not tied to the incurring of any specific loss, cost or expense nor was there any requirement for a recipient to apply it in any particular way. Given the purpose of the payment and its terms and conditions, it is clear that it was not intended to operate in the interests of any tortfeasor, but instead intended to be received by flood victims “in addition to whatever rights [they] may have to recover” elsewhere (Espagna supra).

9. [63]

   The Essential Household Contents Grant (“EHCG”) was described by the Distribution Committee as providing “assistance towards the repair or replacement of damaged/destroyed uninsured essential household contents”. [90] The maximum EHCG payment was $1705 for an individual and $5120 for families with sub-limits for the individual items lost. [91]

10. [64]

    The EHCG payment was means tested and only available to persons who did not have contents insurance. [92] Applications for the grant utilised a form to assess the “total allowable items lost in the disaster based on the household composition”. [93] The grant covered beds, mattresses, sheets, blankets, wardrobes, clothing, household linen, fridges, non-fixture stoves, cooking utensils, food, tables, chairs, washing machines and floor coverings. [94] The relevant form made provision for payments in respect of freezers, clothes dryers, air conditioners, water pumps and generators. [95]

11. [65]

    The plaintiff’s submissions correctly characterised the process of assessment as follows: [96]

12. [66]

    Applicants for a grant were required to acknowledge that it was a one-off payment. However, they were not required to utilise the funds to pay for the lost or damaged items or repay the funds if compensation was recovered. [99]

13. [67]

    The flooding of the storage facility containing Ms Harrison’s personal items is described in Rodriguez (No 22). [100] In her affidavit affirmed 9 October 2020, Ms Harrison describes in detail the items that were lost and how her insurance claim was rejected. [101] As a consequence, in March 2011, Ms Harrison rang the Premier’s office about her predicament. She later authorised the storage company to provide information about her circumstances to the Premier’s office. [102] In late March 2011, Ms Harrison collected a cheque for $1,275 from the offices of Ipswich Council. [103] She signed an acknowledgement form for the payment which referred to it as an EHCG grant. [104] It was not suggested that Ms Harrison ever provided receipts or the like for her lost items.

14. [68]

    EHCG payments are very similar to the payments that were the subject of decision in Wollington which were found to be conferred independently of any right of recovery against a third person. [105] Both were based on Appropriation Acts; both involved a consideration of the recipient’s means, both involved payments referable to personal items lost as a result of a disaster and neither were determined by reference to the value of the goods lost. [106] Further, the only potentially relevant differences between this grant and the EAG grant just considered are firstly the means testing of the payment, secondly the necessity to show an absence of contents insurance and thirdly the fact that it involves a payment which is broadly referable to the loss of certain household items. The first matter makes it more likely that the payment was conferred independently of any right of recovery against a third person, while the second tends against that. With the third matter, the imposition of (modest) caps on the amount recoverable for each item, the fact that no evidence of actual loss and damage was necessary other than the assessment noted above and the absence of any requirement to apply the funds to fix or replace those items indicates that it was truly a payment to relieve “personal hardship or distress” and not some compensatory payment for a specific loss which should not be the subject of double recovery. The circumstances in which Ms Harrison received her payment only reinforce that characterisation.

15. [69]

    In its submissions, the State sought to address the Wollington criteria in relation to the grants made under the NDRRA. [107] In relation to the EAG and EHCG grants, the State accepted that there was no connection between the tortious act and the payment (ie, criteria (iii)). [108] It submitted that the funds were referable to the value of goods lost [109] and there was as an entitlement to the payments, [110] contentions I have already rejected. I have also explained how the recipients of the grants were not obliged to apply the funds in any particular way.

16. [70]

    Again, given the purpose of the EHCG payment and its terms and conditions, I am satisfied that it was not intended to operate in the interests of any tortfeasor, but instead intended to be received by flood victims “in addition to whatever rights [they] may have to recover” elsewhere (Espagna supra).

17. [71]

    The Distribution Committee described the Structural Assistance Grant (“SAG”) as “assistance to return owner occupied dwellings to a habitable and secure condition”. [111] The DOC’s material described the grant as “a contribution to assist eligible homeowners return their home to a safe and habitable condition”. [112] The maximum grant available was $10,500 for an individual applicant and $14,200 for families. [113] The grant was means tested and only available to those who were uninsured (or underinsured). [114]

18. [72]

    DOC’s procedures referred to the relevant form being completed by a recovery worker and thereafter an officer of the Department of Housing and Public Work visiting the home and “conduct[ing] a specialised assessment of damage and provid[ing] a scope of works of eligible items for repair”. [115] The form contemplated the obtaining of that assessment or the provision of quotes or receipts. [116] The maximum amount of the grant was reduced by any amount received for the EAG or EHCG. [117] A grant recipient was required to complete a statutory declaration stating, inter alia: [118]

19. [73]

    The Departmental guidelines contemplate that, in some circumstances, payments would be made direct to repairers. [119]

20. [74]

    As explained in Rodriguez (No 22), [120] the judgment in Manser v Spry established that the “nature of the benefit” (at 437) is a significant factor in determining whether a payment under a legislative scheme exhibits the “distinguishing characteristic” identified by Dixon CJ in Espagne (at 573), namely that it is are conferred independently of the existence of a right of redress against others and “so that [it] may be enjoyed by him although he may enforce the right”.

21. [75]

    Unlike the EAG and EHCG, the SAG is directed towards meeting at least a portion of a specific loss or expense that the applicant has suffered or incurred or will incur in the following 12 months. It is very similar to the statutory scheme of payments provided for in Part 29 discussed in Rodriguez (No 22). [121] In relation to that scheme I concluded as follows: [122]

22. [76]

    At the risk of repetition, this passage reflects an assessment that it is inherently unlikely that a legislative scheme that provided for a payment referable to a specific cost or expense and required the application of that payment to meet that cost or expense would have intended that there be a form of double recovery in respect of that cost or expense if the recipient otherwise recovered damages from a third party.

23. [77]

    Subject to three related matters this passage from Rodriguez (No 22) is equally applicable to SAG payments. The first is that this passage refers to a legislative scheme, whereas the SAG was a scheme based solely on an exercise of executive power. The second is that the above passage refers to an entitlement to the grant which was conferred by the statutory scheme. Save for the possible application of s 30 of the Judicial Review Act 1991, no such entitlement arises with the NDRRA. The third is the statement in the Determination Committee’s report that “Category A measure[s]” such as this were intended to alleviate an individual’s “personal hardship or distress arising as a result of a natural disaster”. Even allowing for these differences, I consider that the above reasoning in Rodriguez (No 22) is applicable to these payments. The nature of the benefit payable is such that it does not exhibit the “distinguishing characteristic” identified by Dixon CJ in Espagna. In terms of the Wollington criteria, they are distinguishable from the PDRF payments, as well as the EAG and EHCG, because the payments were calculated by reference to the value of the loss suffered and the “injured party was [not] free to use the payment as they chose” (at 100 to 101).

24. [78]

    The remaining question that arises with this form of grant is how it should be accounted for in any assessment of the damages payable to a group member. First, for the reasons given in Rodriguez (No 22), [123] it should be accounted for before judgment amounts are apportioned between the defendants. Second, any grant amount should only be accounted for in relation to a head of damage that refers to the cost and expense of repairing a group member’s home; it is not deductible from other heads of damage. [124]

25. [79]

    As its name implies, the Essential Services and Safety Reconnection Scheme provided funds to “assist homeowners reconnect essential services, such as electricity, water, gas or sewerage/septic systems, damaged by a disaster”. [125] It had two components, Part A being a contribution of up to $200 for a safety inspection and Part B, being a contribution of up to $4,200 to undertake repair work that are identified as required before an essential service can be reconnected. [126] The forms are similar to those used for the SAG. It requires the provision of a quote or receipts before a payment for a grant for repairs can be authorised. [127] Like the SAG there is requirement to provide a statutory declaration requiring the application of the funds to pay for the reconnection of the service. [128] In some circumstances the payment is made direct to the repairer. [129]

26. [80]

    As noted, this grant is a “Category B measure” and is specifically designated to “alleviate the financial burden of costs incurred” by, inter alia, “individuals”. [130] Overall, the position with this grant is no different to the SAG.

Ms Lynch’s Claim

1. [81]

   The circumstances of the flooding of Ms Lynch’s property in Fernvale are described in Rodriguez (No 22). [131] I found that, had flood operations been conducted in accordance with SIM C, then neither Ms Lynch’s home nor her shed or cottage would have been inundated by any flood waters. [132] Instead, her home was “inundated up to the gutters”. [133] Photographs taken around this time show the devastation of the property. [134] Hence, no issue of “greater flooding” arose in relation to Ms Lynch’s claims.

2. [82]

   For the hearing on quantum, each of Ms Lynch and her son affirmed detailed affidavits outlining the back breaking process of cleaning and reconstructing her home and its surrounds. [135] Ultimately, Ms Lynch’s loss and damage claim comprised: (i) property damage ($257,091); (ii) contents damage ($214,960); (iii) clean-up costs; (iv) landscaping costs ($15,298); (v) loss of rental income and temporary accommodation costs ($17,000); and (vi) a claim for physical inconvenience ($40,000). The defendants did not dispute items (i), (ii) and (iv) of this claim. [136] There were disputes about the other three heads of damage as well as four other issues as follows.

3. [83]

   In Rodriguez (No 22), I addressed an issue that arose in relation to whether the plaintiff, Rodriguez & Sons Pty Ltd, was entitled to recover the commercial cost of certain voluntary services that were provided to clean up its commercial premises in the aftermath of the flooding. [137] The plaintiff’s claim for that amount was calculated by reference to the commercial cost of cleaning the premises (ie, a “top down approach”), as opposed to commercially valuing the cost of the actual cleaning up work that was performed (ie, a “bottom up approach”). After Rodriguez (No 22) was published, agreement was reached on that figure for the plaintiff (only). [138]

4. [84]

   Prior to the hearing that resulted in this judgment, the plaintiff and Seqwater exchanged experts’ reports concerning the commercial cost of cleaning each of Ms Lynch’s property at Fernvale, Ms Visser’s property at North Booval and Mr and Mrs Keller’s properties. [139] Both experts prepared their estimates using a top down approach. [140] For Ms Lynch’s property, the plaintiff’s expert, Ms Rudd, provided an estimate of $187,426. Seqwater’s expert, Mr Threlfall provided an estimate of $141,796.01. [141] Seqwater’s submissions served prior to the hearing contended, inter alia, that “[f]or reasons which will be explained after cross‑examination, the Court would accept that Mrs Lynch’s claim for cleaning and restoration costs has been overstated” and that “[s]ome aspects of the overstatement are identified by Mr Threlfall”. [142] The submissions did not, however, expressly contend that the Ms Rudd’s (or Mr Threlfall’s) methodology was wrong. SunWater’s submissions simply noted that Seqwater relied on Mr Threlfall’s affidavits and that cleaning costs would be addressed after cross‑examination. [143]

5. [85]

   In cross‑examination and submissions on this issue, Senior Counsel for Seqwater contend that Ms Rudd’s approach (and that of Mr Threlfall) was misconceived as a bottom up approach should have been adopted. [144] Senior Counsel for SunWater adopted those submissions. [145] The State did not take any point about cleaning costs. [146] Mr Sexton SC submitted that his client was taken by surprise by this approach. This lead to a debate as to whether it was consistent with Rodriguez (No 22), especially to the extent it followed the decision in Powercor Australia Ltd v Thomas (2012) 43 VR 220; [2012] VSCA 87.

6. [86]

   Eventually, Mr Sexton SC applied for leave to reopen on this issue and adduce evidence as to quantum on the assumption that Seqwater and SunWater’s contention as to the appropriate methodology was accepted. [147] I allowed that application and made directions for the evidence and any further submissions on this topic to be made on 11 December 2020. In allowing that application I was satisfied that the plaintiff had been taken by surprise by the manner in which the issue emerged. During submissions on the issue I pointed out to Senior Counsel for Seqwater that his client had agreed to the quantum of the plaintiff’s claim calculated by reference to the top down approach. [148] He contended that the agreement did not bind his client in respect of all other group members. [149] That is correct, but the point is that in doing so, then providing Mr Threlfall’s affidavits and providing written submissions that did not raise this point, his client took the plaintiff (and the Court) by surprise on an issue of principle. The time for surprises of that kind in these proceedings has long past. [150] They will inevitably produce further delay as has occurred here.

7. [87]

   Mr Sexton SC also submitted that, even though further evidence of quantum on the bottom up basis would be adduced on 11 December 2020, the Court should nevertheless determine in this judgment the issue between the parties as to whether that or the top down approach is the correct one. [151] I decline to do so. If I was to accept that the top down approach was correct then then the evidence concerning the bottom up approach would become irrelevant and any hearing about quantum based on that approach would be entirely hypothetical. Courts cannot, or at least should not, conduct hearings of hypothetical issues. The question of the correct methodology for quantifying the cost of cleaning up group members’ properties will be decided at or after the hearing on 11 December 2020.

8. [88]

   Ms Lynch’s claim for loss of rental income had two components. First, she claimed for a loss of rental for the cottage that was flooded on her property in Fernvale. [152] A tenant moved out immediately after it was flooded and did not return. [153] Ms Lynch’s claim for $8850 loss of rental for this cottage was not disputed and is allowed.

9. [89]

   Second, Ms Lynch claimed loss of rental for another property she owned that her family moved to after the flooding in Pryde Street (the “Pryde Street” property). In her first affidavit, Ms Lynch stated that the family moved there on the night of Wednesday, 12 January 2011. She said that it had “no furniture and the power had been disconnected as it had been unoccupied”. [154] She said that it was difficult to have the power reconnected as it was in a flood zone. [155] They returned to their home at Fernvale in April 2011. In her second affidavit, Ms Lynch explained that they continued to use the Pryde Street property as a temporary location to store items until August 2011. [156] Ms Lynch added that the “usual rent” for that property was $250 per week. [157] She claimed a total of $8,250. Seqwater submitted that only half that amount should be allowed [158] and SunWater submitted that there should not be any allowance for lost rental of the Pryde Street property.

10. [90]

    Leaving aside Ms Lynch’s reference to the usual rent for the Pryde Street property, there was no evidence as to its rental history. Given that it was vacant with the power disconnected at the time of the flooding it seems very unlikely that it could have produced any rental income in the immediate aftermath of the flooding, even if it was not inhabited by Ms Lynch and her family. The difficulties with power connection are likely to have persisted even at a level of flooding associated with SIM C. That said, it seems likely that there would have been significant demand for residential premises on such a flooding scenario as other people would have still been rendered homeless.

11. [91]

    This head must be assessed on a loss of a chance basis (Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4). I will allow $3500 for loss of rental for the Pryde Street property.

12. [92]

    At the time of the flooding, Ms Lynch had home and contents insurance with QBE Insurance (“QBE”). In April 2011, she was advised that her claim for cover from QBE was denied. She pursued a dispute with the Financial Ombudsman Service which was resolved on the basis that QBE would meet 50% of her claim. [159] Ms Lynch also pursued a claim against her insurance broker which was settled in March 2013 through conciliation. [160] The settlement was confidential to the parties. In its submissions, Seqwater contended that it was settled for $58,750. [161]

13. [93]

    Two issues arose in relation to Ms Lynch’s insurance. First, Seqwater submitted that any judgment in favour of Ms Lynch should be subject to a direction that she pay a portion of her judgment to QBE or that the defendants do so directly. [162] Second, both Seqwater and SunWater submitted that the proceeds of settlement with the broker should be deducted from Ms Lynch’s damages or at least interest should not run on a portion that corresponds with that sum. [163] SunWater submitted to that do otherwise would infringe the rule against double recovery (citing Baxter v Obacelo Pty Ltd (2001) 205 CLR 634; [2001] HCA 66 at [39] and [48]).

14. [94]

    The relevant principle governing the treatment of insurance recoveries in relation to the payment of damages in tort was stated by Windeyer J in Espagne at 599:

15. [95]

    This statement is dispositive of both the points noted at [93]. In relation to the first contention, the only possible basis upon which a condition of the kind Seqwater asserts could be attached to a judgment is to respect whatever rights of subrogation an insurer may have in respect of the judgment sum. Leaving aside any question as to why this Court would intervene at the behest of a defendant to protect the rights of an insurer, once it is appreciated that the principle that damages are not reduced to take account of insurance recoveries is not related to principles of subrogation, then any justification for taking this step disappears. For all the Court is aware, Ms Lynch and her insurer may have reached their own arrangements as to how her judgment sum is to be deal with. Espagne confirms that her arrangements with her insurer are irrelevant to a determination of her rights vis a vis the defendants in these proceedings.

16. [96]

    The same applies to the settlement that Ms Lynch reached with her broker. The proceeds of that settlement could only be characterised as damages for the alleged failure of the broker to obtain insurance cover that would have responded to the damage she suffered as a result of the flooding. Espagne confirms that any payment under the hypothetical insurance cover that the broker allegedly should have obtained would not have been deducted from Ms Lynch’s award of damages in this case. The only potentially relevant difference between the damages recovered from the broker and a payment under such a policy is that the latter would ordinarily be subject to the insurer’s rights of subrogation whereas the former would not. However, Espange confirms that matter is irrelevant.

17. [97]

    In oral submissions, Senior Counsel for Seqwater sought to distinguish the two payments on the basis that, with an insurance payment, there is a contractual relationship with the insurer that predates the flooding and it is the happening of the flood event that triggers a payout. [164] However, there must also have been a pre‑existing contractual relationship with the broker (or a least a relationship sufficient to give rise to a duty of care) which was breached prior to the flood event by the failure to obtain cover. In its written submissions, SunWater submitted that the plaintiff’s contention that there should not be any deduction from Ms Lynch’s damages on account of her recovery from her broker could be tested by supposing two electricians negligently wired a home which burn to the ground. SunWater contended that the owner could not recover full damages against both tortfeasors. [165] Of course that circumstance involves two tortfeasors responsible for the same damage. That is not this case. The broker compensated Ms Lynch for not having appropriate insurance cover. If she had that insurance cover, payments made under it would not have been deducted.

18. [98]

    I decline to make the order sought by Seqwater in respect of so much of Ms Lynch’s judgment sum that corresponds with the amount she received from her insurer. There will be no deduction from her damages on account of the sum she received from her insurance broker.

19. [99]

    The recovery of damages for the “inconvenience” occasioned by the negligent flooding of a person’s home is an instance of the principle that a “plaintiff is entitled to recover for personal damage which is the reasonably foreseeable result of the defendant’s negligent damage of that property” (Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 511 per McHugh JA; “Mackay” citing Brickhill v Cooke [1984] 3 NSWLR 396 at 401 per Glass JA; Clarke v Shire of Gisbourne [1984] VR 971 at 997 to 999 per Gobbo J; Muirhead v Kingborough Council (No 2) [2000] TASSC 127 at [14] per Cox CJ). Mackay concerned a case where the plaintiffs suffered vexation, distress and anxiety from the collapse of their home due to the defendants’ negligence (at 511B). Perhaps out of a concern about the operation of the CLA (Qld), this was not the basis upon which this head of damage was sought in this case (see Thomas v Powercor Australia Ltd [2011] VSC 586 at [116] and [129]; “Thomas v Powercor”; Herridge & Ors v Electricity Networks Corporation t/as Western Power (No 4) [2019] WASC 94 at [602] to [608]; “Herridge (No 4)”] Instead, it was confined to the physical inconvenience to the group member occasioned by the flooding of their property. [166] This basis is consistent with the decided cases (Thomas v Powercor at [130]; Herridge (No 4) at [609]) although if it includes inconvenience occasioned by participating in the clean‑up then there is double compensation if a separate claim is also made for so much of that work that was undertaken by a plaintiff (Herridge (No 4) at [608]). In this case, the claim under this head did not include the work done by group members in cleaning their own property that being subsumed under the top down approach to estimating the cost of cleaning property.

20. [100]

    A first instance award of $6000 made in 1989 for vexation for living in a termite infested house for just over two years was not interfered with on appeal in Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417 at 432G to 433A. An award of $20,000 for physical inconvenience and mental distress following an insured’s eviction from his home after his insurer wrongly refused to make payments under a disability policy was made in Johnson v Australia Casualty Co Ltd (1992) 7 ANZ Insurance Cases 61-109 at 77,521.

21. [101]

    Both Seqwater and SunWater accepted that this head of damages was (theoretically) available. [167] Seqwater pointed to the statement by Forrest J in Thomas v Powercor at [132] that such a claim needs a “strong evidentiary foundation that the tortious act led to a genuine inconvenience of some significance (be that in terms of impact or duration)”. [168] A claim for physical inconvenience was rejected in Thomas v Powercor on the basis that the evidence of inconvenience in that case “insufficient” (at [135]). The evidence was that the plaintiff undertook some firefighting at his own home and clean‑up and repairs in the days and weeks afterwards. His home was damaged but it was saved from the fire and he was not rendered homeless (at [133] to [134]). A claim based on physical inconvenience was also rejected in Thorpe v Lochel (2005) 31 WAR 500 (“Thorpe”) where the inconvenience was said to be travelling by air from Germany to Australia and living in rental accommodation because the defendant’s solicitor’s negligent conduct of litigation required the plaintiff’s to sell their home (at [153] to [154]). This can be contrasted with Bailey v Bullock [1950] All ER 1167 where evidence was given of the cramped conditions a family was required to live under (at 1171; Thorpe at [154]).

22. [102]

    Seqwater also submitted that any allowance for this head should be relatively modest. [169] However, in Mackay, Kirby P rejected the contention that damages for this head should be “not excessive but modest” (at 504C).

23. [103]

    In her first affidavit, Ms Lynch described how she, her husband and teenage granddaughter, were forced to evacuate their home on 11 January 2011. They packed some belongings, collected their pets, assisted neighbours and took shelter in their cars on higher ground as the floodwaters rose. They spent the night in their vehicles. [170] As noted, they then temporarily relocated from their home to the Pryde Street property which was without power. They did not return to their home in Fernvale until April 2011. They lived there while it was still undergoing extensive repairs and restoration. [171] This included using industrial fans to dry the buildings. [172] When the cottage was completed in July 2011 they moved into that. That cottage is a two bedroom house with a kitchen. They moved back into their home before Christmas 2011. The final repairs were completed in February 2012. [173] Without overstatement, Ms Lynch describes the smell, grime and destruction, including dead animals, that she viewed at her home as a result of the flooding. [174]

24. [104]

    The plaintiff submitted that a figure of $40,000.00 or thereabouts was appropriate [175] especially given the passage of time since most of the above cases were decided and January 2011. Seqwater submitted that Ms Lynch had not established a “strong evidentiary foundation” for this claim. It pointed out that the immediate impact was only one night of severe location and thereafter they had relatively stable adequate accommodation. [176] SunWater submitted that an appropriate figure was $5,000. [177]

25. [105]

    I consider that an appropriately strong evidentiary foundation for this head of damage has been established even though it is confined to physical inconvenience and does not include anxiety or distress. A night in their vehicles followed by a period living in a home without power is significant. However once power was returned there is no reason to conclude that the rental property at Pryde Street property was inadequate (Thorpe). The period when they returned and lived in a damaged home using the Pryde Street property to store their personal items and then in a smaller cottage would have occasioned some inconvenience. I will allow $18,000 on account of this head of damage.

26. [106]

    As noted, Ms Lynch received $2000 in round 1 funding from the PDRF and $100,000 in round 3 funding. [178] For the reasons noted above, these amounts are not to be deducted from her damages.

27. [107]

    Two issues arose in relation to interest, only one of which can be resolved.

28. [108]

    The first concerns interest on damages for physical inconvenience. SunWater pointed out that interest on general damages for personal injury had been abolished by s 60(1) of the Civil Liability Act 2003 (Qld) (“CLA (Qld)”). [179] Section 60(1) is found within Chapter 3 of the CLA (Qld). SunWater noted that an award of interest was discretionary and contended that it would lead to a lack of coherence if the discretion was exercised to award damages for physical inconvenience arising out of property damage where it cannot be awarded for general damages arising out of personal injury. [180]

29. [109]

    Appeals to coherence are no substitute for statutory interpretation. In Moore v Scenic Tours (2020) 377 CLR 209; [2020] HCA 17, the plurality (emphatically) rejected the contention that a contractual claim for damages for disappointment and distress is unaffected by the CLA (Qld). Their Honours noted that “[n]othing in the text of the CLA [NSW] suggests that Part 2 was enacted with a view to limiting the liability of a defendant for claims that do not involve personal injury as defined in the CLA” (at [47]). Part 2 of the CLA (NSW) is the equivalent of Chapter 3 of the CLA (Qld). Moore v Scenic Tours leaves no room for SunWater’s coherence argument whether as a matter of construction or the exercise of a discretion. Like Part 2 of the CLA (NSW), Chapter 3 of the CLA (Qld) does not operate beyond the topic it addresses, namely personal injury damages. Thus, interest is allowable on this head of damages.

30. [110]

    The interest rate adopted at common law for general damages was 4% (MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 “Gogic”). It was common in applying Gogic to apply a rate of 2% to that portion of general damages which was referable to the period prior to judgment as it was generally assumed that those damages accrued at an even rate from the time of the accident. However, in this case, almost all the damage for physical inconvenience accrued no later than 1 January 2012. It follows that the rate of 4% should be applied from that time.

31. [111]

    The second issue in relation to interest concerns damages for the voluntary cost of cleaning. In Rodriguez (No 23), I determined that, to the extent that group members can recover for damage to their real and personal property in amounts calculated by reference to the commercial cost of the volunteer labour of others that repaired that damage, then they will not receive an award of interest on that amount for the period prior to the date of judgment. [181] I left open a claim for interest by a group member whose own labour repaired damaged property. [182] Nevertheless, the plaintiff did not make any such claim in respect of the time spent by Ms Lynch in cleaning up her own property (nor Ms Visser or Mr and Mrs Keller), but that was on the basis that the top down approach to quantification would be adopted. [183] Mr Sexton SC foreshadowed that may change if the Court was to uphold Seqwater and SunWater’s bottom up approach to quantifying cleaning costs. [184]

32. [112]

    To produce a final figure for the amount of damages payable by the defendants to Ms Lynch it will be necessary to resolve the dispute about cleaning costs. The parties should confer about the calculation of damages for the other components, including interest, and produce a table referable to each day on and from 11 December 2020 that allows for the competing contentions about cleaning costs and interests thereon to be added to the relevant totals.

Ms Visser

1. [113]

   The circumstances of the flooding of Ms Visser’s property at North Booval are outlined in Rodriguez (No 22). [185] I found that, had flood operations been conducted in accordance with SIM C, then Ms Visser’s home would not have been inundated by any flood waters. [186] No issue of “greater flooding” arises with her claim.

2. [114]

   Like Ms Lynch, Ms Visser affirmed a further affidavit which outlined the process of cleaning and repairing her home. [187] This was undertaken with few resources as her insurer denied cover, although they made some contribution to the replacement of her floorboards after she pursued a complaint through the Financial Ombudsman. [188] Her and her partner undertook many of the repairs themselves as they could not afford to engage tradespeople. At the end of her affidavit she explains how, despite all the work that was undertaken, the house has not been returned to its former standard. For example, the replacement front door is not aligned and is too difficult to open. [189]

3. [115]

   Ms Visser’s loss and damage comprises claims for: (i) property damage and building repairs ($79,357); (ii) contents damage ($33,812); (iii) clean‑up costs ($87,100.50); and (iv) physical inconvenience ($35,000). Seqwater and SunWater did not take issue with the first and second heads of damage. [190] Nevertheless, four issues arose with her claim.

4. [116]

   The observations made above in relation to Ms Lynch and cleaning costs apply equally to Ms Visser’s claim. The differences between Ms Rudd’s estimate ($87,100.50) and Mr Threlfall’s estimate ($84,239.21) was so minor that Mr Sexton SC was content to accept Mr Threlfall’s estimate.

5. [117]

   In her first affidavit, Ms Visser described her home as “unliveable”. [191] During the period of the initial clean‑up she and her partner lived with friends in a nearby suburb of Ipswich. They stored their belongings in a crowded “coaster bus” that was lent to her by the school she worked for. [192] After a period, they were able to store their belongings in Ms Visser’s parents’ garage. Before the flood, they lived next door to her property in North Booval. Ms Visser said that after six weeks their friends moved out of the house they were staying in. This left Ms Visser and her partner at the house with furniture until that house was sold in April 2011. [193] After that, Ms Visser states: [194]

6. [118]

   Ms Visser and her partner returned to her home in November 2011; [195] ie, they lived in her parents shed for six months. I viewed the exterior of this building during the view that was conducted in February 2018 in the presence of the legal representatives of the parties. I am entitled to draw any reasonable inference from what I saw during that inspection (Evidence Act 1995, s 54). As I only viewed the exterior of the building the inferences I draw is that it was indeed a “shed” and not a place usually suited for medium term residence.

7. [119]

   The plaintiff submitted that an amount of $35,000 was appropriate for this head of damage. Seqwater submitted that there was not a sufficiently strong evidentiary basis for the claim or that otherwise a nominal amount should be allowed. [196] SunWater submitted that a sum of $5000 was appropriate. [197]

8. [120]

   I consider that the inconvenience occasioned to Ms Visser from the flooding of her home was considerable. The defendants take a plaintiff as they find them. In Ms Visser’s case, she had little financial means to rectify the inconvenience occasioned to her. Her dislocation in the period immediately after the flood was in part alleviated by the generosity of her friends. However, a period of six months residing in her parents’ shed while continuing the clean‑up and working full time as a teacher was no doubt a very serious interruption to her life. I consider that a figure of $25,000 is the appropriate figure for this head of damage.

9. [121]

   As noted at [17] and [27], Ms Visser also received $2000 in round 1 funding from the PDRF and $100,000 in round 3 funding. For the reasons noted above these amounts are not to be deducted from her damages.

10. [122]

    The observations made above in relation to interest and Ms Lynch also apply to Ms Visser.

11. [123]

    The observations made above in relation to Ms Lynch at [112] also apply to Ms Visser.

Relief

1. [124]

   Consistent with what was stated in Rodriguez (No 23), it is necessary to pose and answer separate questions concerning the treatment of payments made out of the PDRF and under the NDRRA arrangements to group members.

2. [125]

   Accordingly, the Court orders that: