The world’s largest law firm may lead the first class action on property damage related to WestConnex tunnelling.
Claims of severe cracking have been routinely rejected by the M4 East contractor.
But for residents who are waiting to be impacted by Stage 3 construction, and are suspicious of the existing compensation claims process, there exists a sense of powerlessness. To join a class action you must first incur damage.
Sit up and take notice
On Wednesday evening, about 300 residents met for the first time with Dentons partners, John Dalzell and Ben Allen, to gauge the merits of entering a class action.
Allen told residents that, with collective bargaining power, they could “get the government or get the defendant to sit up and take notice in some forum they can’t ignore. It’s not a process they design, it’s not a process a contractor designs. It’s a process that’s set up already under the class action schemes”. The forum will likely be the Federal Court.
In the current scheme, the M4 East contractor assesses damage claims. A rejected claim can be appealed to the same entity. Further appeals must also be made to the people the claimant suggests damaged their home.
Annandale resident, David Moran, told City Hub, he would “definitely” join a class action, and even a test case.
After returning from an overseas trip in January, Moran got the first definitive statement that his home would be impacted.
A flyer from Greens MP for Balmain, Jamie Parker, stated that the M4-M5 link would tunnel beneath his house.
Moran used the WestConnex online tool as confirmation.
He hasn’t received a notice for substratum acquisition, and current information suggests the tunnel will be less than 20 metres below ground.
Most homes on his street are over a century old and expected subsidence is between three and seven millimetres.
“If one side of my house subsides by seven millimetres and the other by three I will have cracks all through my house,” Moran said.
St Peters resident, John Bartholomew, is also considering joining.
He said that although his home’s foundations are adequate, tunnelling would cause it to “collapse or subside so much that it might as well collapse”.
The earth below him is a mixture of “lumps of shale in a sea of clay… as soon as you take something out everything else is going to slump down into the void you’ve just left”.
The notice he received for acquisition of his substratum land indicates pictorially that the substratum that will be acquired starts from five metres below surface.
An independent property impact assessment panel was commissioned in response to community activists questioning the fairness of the current complaints scheme. It will assess appeals to claims rejected by contractors.
This month the Roads and Maritime Services agency (RMS) said that satellite data acquired by Otus Intelligence Group may be used by the panel. Images show that tunnelling has damaged land and houses up to 300 metres from construction sites.
John Dalzell told residents that claims like negligence and nuisance are applicable to this class action, and unaffected by limitations and defences to statutory claims related to a project of state significance.
Local solicitor, Joanne, presented residents with the instrument of approval for the WestConnex M4-M5 link, which indicates that the proponent of the planning approval, the RMS, must perform rectification.
Joanne is a member of Leichhardt Against WestCONnex, which successfully campaigned against a second dive site in Leichhardt for the Stage 3 tunnel.
WestCONnex Action Group spokesperson, Rhea Liebmann, who is also a solicitor, told City Hub that the RMS has made contractors contractually responsible for damages, and that RMS would likely ask that contractors be awarded damages in a class action, leading to “a huge number of parties”.
Class action infinitely better
The claims of Beverly Hills resident, Kathryn Calman, were routinely rejected and she has become an advocate for damages victims. She tabled testimonies of seven families at the recent WestConnex parliamentary inquiry.
For her family, “class action is infinitely better [than seeking personal compensation in court] because if we took the RMS to court ourselves, we’d face bankruptcy”.
While a sub-contractor appointed engineer said that the severe cracks around Calman’s home were caused by excess moisture from sources like a dripping tap, an engineer she commissioned found that new WestConnex drains and channels were actually drying the soil.
In 2016, the government scrapped charging residents rent while waiting to leave their compulsorily acquired homes. Independent Inner West Councillor, Pauline Lockie, is hopeful that a class action could have indirect policy ramifications.
“We’ve already seen how negative publicity around compulsory acquisitions for WestConnex led to legislative changes designed to make the system fairer.”