The ESB could be facing a high bill in liability charges as the Supreme Court found guilty of negligence in the case of the flood University College Cork campus in 2009. This was presided over by five judges, four of them finding negligence in this case, putting the ESB in a precarious situation after such a landmark ruling.
Dissenting, Mr. Justice Donal O’Donnell expressed that the flooding was caused by the River Lee, not a definitive act from the ESB so there was “no compelling reason” why the cost of the flooding to UCC campus “should be shifted from insurers who had agreed to be responsible for that very risk and placed upon the ESB and its customers”.
This hearing will now proceed to the High Court, on a date yet to be arranged. The extent of the damages to the campus properties will depend on the decision of the High Court, in relation to whether UCC had any contributory negligence to the damages it received in the flood.
Twenty-nine campus buildings were damaged in 2009 and in a claim on behalf of its insurer Aviva, UCC claimed the ESB’s management of the water release systems from the hydro-electric dams led to considerable damage suffered during the floods.
Aviva sought €20 million in damages for the losses incurred at UCC, plus another €14 million for the losses suffered by other property owners.
The ESB denied liability and argued in favour of the existence of the dams, saying they had reduced the level of water that came down to UCC campus.
Judgments at The Supreme Court concerned appeals taken after the Court of Appeal overturned findings by the High Court’s Mr. Justice Max Barrett of 60 per cent liability on the ESB’s part and 40 per cent contributory negligence on UCC’s part.
First, The Supreme Court had taken the decision to determine whether the ESB had a liability in this case. Today the majority concluded that the ESB was guilty under the law of negligence.
The main judgment, by Chief Justice Frank Clarke and Mr. Justice John MacMenamin, found that the High Court had noted different management structures of the River Lee dams by the ESB would have reduced flooding downstream, including at UCC, finding ESB negligent in their operation of the management of the Lee dams. On the other hand, the evidence made clear that the management of the dams had not made things worse but might be said to have failed to make things better, they said.
The ESB as a party of privilege and with a special level of control over danger, despite the fact the danger was not directly of their own making, owes a duty of care to those that their decisions may affect, determined the two judges. Mr. Justice Peter Charleton noted in a concurring judgment that the ESB were aware that there was a storm warning during that time; they would have been aware that the ground would have been saturated and could have opened the dam earlier to provide sufficient room in the water system for the stormy weather that was predicted.
He added two caveats which may impact on overall damages in this case. The first was ESB’s duty under statute to generate electricity and its liability depends on not just managing the waterway but also taking calculated precautions according to the need to create power. The second was, by releasing the water at an early stage to manage the predicted heavy rainfall, the ESB could have flooded UCC and Cork City to some degree which would have been less than the major flood that was ultimately caused. Any future damages would be assessed on the difference between the damages on the two floods, he said.
Ms. Justice Elizabeth Dunne agreed with the majority.