High Court ruling: ESB not liable for flood damage to UCC in 2009

High Court ruling: ESB not liable for flood damage to UCC in 2009
Cork Floods 2009: flooding at the Lee Fields. Pic: Denis Minihane

The ESB has no liability for extensive flood damage to buildings on the campus of University College Cork after floods affected large parts of Cork in late 2009, the Court of Appeal has ruled.

The three-judge court, in a significant judgment yesterday, overturned a High Court finding the ESB was 60% liable in respect of flooding and warnings.

The disputed High Court findings were made in October 2015 after a 104-day case, the first here to fully test the liability of a dam operator.

The question of who will have to pay the legal costs — expected to run into millions — will be decided at a later date.

The Court of Appeal said the High Court judgment, if allowed to stand, would represent a “significant alteration” in the existing law of negligence and nuisance that would be contrary to the statutory mandate of the ESB in respect of electricity generation and would “not be consistent with reason and justice”.

The damage arose “from a natural event”, ESB did not cause the flooding of UCC’s buildings, and it had no legal duty to avoid unnecessary flooding, the court ruled.

Liability for the legal costs will be decided later.

In a subrogated claim brought on behalf of its insurer, Aviva, UCC had claimed the ESB’s management of water releases from two hydro-electric dams on the River Lee lead to significant unnecessary additional flooding causing substantial damage to 29 buildings on the UCC campus. Aviva sought some €20m damages for losses at UCC, plus another €14m for losses suffered by other property owners.

It was claimed that warnings of heavy rainfall were issued by Met Éireann for the River Lee catchment area on November 12, 15, and 18 but the ESB failed to adequately respond, water levels at the reservoirs were kept at levels too high for the rainfall expected and there was inadequate storage capacity for flood mitigation.

It was alleged that, on November 19, 2009, after heavy rainfall, the ESB rapidly increased the amount of water released from both dams at an unprecedented rate of discharge and failed to act preemptively by releasing amounts of water from the dam at a rate to avoid or minimise the risk of flooding.

The ESB denied liability and argued the existence of the dams had reduced the level of water that came down to UCC.

In a 555-page judgment of October 2015, Mr Justice Max Barrett ruled that the ESB, as dam operator, was 60% liable in nuisance and negligence for the damage to UCC’s properties. He ruled that UCC was 40% liable in contributory negligence due to its failure over years to act on mounting information of flood risk to its properties and continuing to construct properties on the River Lee floodplain. Both sides appealed aspects of the findings.

In yesterday’s Court of Appeal judgment, compiled by its president Mr Justice Sean Ryan, Ms Justice Mary Irvine, and Ms Justice Maire Whelan, the court said the worst storm in the history of the River Lee dams brought heavy rains on November 19/20, 2009, which swelled the waters of the Lee and caused the flooding of UCC’s buildings.

The damage arose “from a natural event”, the court said. ESB did not cause the flooding of UCC’s buildings, did not release stored water from its reservoirs, and the outflow was less than the quantity of water coming downriver into the Lee scheme.

While the High Court correctly held that had there been more space in the reservoirs, a lesser quantity of water would have gone down river, it erred in holding the ESB had a legal duty to provide such space, it found.

The High Court finding the ESB had a duty to avoid unnecessary flooding was “pivotal” to the primary finding of liability against the ESB, the court said.

The High Court made a series of errors in how it decided liability on the part of the ESB, it ruled. The ESB did not have a legal duty to avoid unnecessary flooding, to keep the level of reservoirs to the target top operating level or to make anti-flooding storage available.

The ESB was not negligent in respect of warnings and the claim in nuisance against it also fell, the court ruled.

The High Court also made errors in its findings on contributory negligence, it held. The Appeal Court was not satisfied that general knowledge by members of the college’s buildings committee, or corporately by the college itself, made them vicariously liable for acts and omissions which the High Court had found constituted negligence on the part of independent experts. The college and its committee did not have the function of supervising the expert work of the advisers, it said.

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