The owner of Wairoa flooded business, The Limery, is taking the HB Regional Council to court.

A complaint filed 16 July in the Napier High Court alleges that HBRC was negligent in its handling of recent Wairoa River flooding – failing to open the river mouth in a timely fashion. 

The resulting flooding on 26 June devastated The Limery as well as around 500 other properties.

And indeed these other parties are being invited to join a class-action suit. A website soliciting other affected persons to register interest in the lawsuit has been set up by the Christchurch-based class-action lawyer Grant Shand, representing The Limery.

Joining the suit is cost-free. The lawyer is paid 15% of the damages awarded, if any, as the website makes clear:

“It costs you nothing to register and does not obligate you to anything. 

“If in the future you receive a settlement as a result of the class action, the litigation funder will charge a maximum fee of 15% (including GST) of any settlement monies received or judgment sum awarded.  

“You will never be asked to pay any money up front or pay for a share of any costs – it’s simply a deduction of up to 15% (including GST) off any amount you are entitled to receive once the class action is resolved.  You do not pay any additional legal fees.  This is less than many other class actions.”

One might expect a raft of ‘Why not’ co-plaintiffs to come forward.

Assuming this case proceeds, it will be a high-profile test of the degree to which HBRC’s – or any council’s – performance can be successfully challenged legally, with culpability found and damages awarded, especially in the frenetic circumstances surrounding an unfolding natural disaster.

From what the parties have said publicly, the plaintiffs will argue that locals knew better when and how to act (and arguably would have intervened more quickly), while HBRC, represented by Auckland-based negligence specialists Heaney & Partners, will assert that a faster attempt to open the bar would have been fruitless.

The Statement of Claim filed by Mr Shand also asserts that – pre this disaster – HBRC failed to implement a variety of other precautionary measures (e.g. spillways and stopbanks) that might have mitigated the flooding.

That argument opens an even bigger can of worms regarding HBRC’s or any council’s responsibility to anticipate and address potential risk from natural events. That seems like a steep hill to climb, the prevailing defence in such cases generally being that public bodies can only be expected to act in good faith on the best information and understanding of the issues at the time and given the resources available.

In any event, The Limery seems to have found (or been found by) an experienced lawyer in such matters. Mr Shand’s website notes that 

“Grant currently has the most cases of anyone in the High Court earthquake list. His other particular area of expertise is in leaky home/leaky building cases. 

“He is recognised as an expert in the field and obtains excellent results for homewners or building parties in leaky home/leaky building claims in the Weathertight Homes Tribunal or in Courts.”

The legal contest is on. Stay tuned!