Who pays up when rains fall? (Here’s a hint: it’s not God)

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.