The ESB is going to have to make a multi-million euro contribution to the costs of the Cork flood devastation of November 2009, following a High Court ruling.
Mr Justice Max Barrett ruled the ESB was 60 per cent liable for extensive damage to several buildings of University College Cork, caused by the flooding that affected the city.
The university argued the way the ESB released water from two hydro-electric dams following heavy rainfall led to unnecessary additional flooding which caused substantial damage. Its lawyers maintained far less damage would have been suffered by UCC and many other property owners in Cork if the situation had been handled differently.
In a 550-page judgment, Mr Justice Barrett also ruled UCC was 40 per cent liable for failing over years to act on mounting information of flood risk to its properties and continuing to construct properties on the River Lee flood plain. Its failure to engage with the flood risk exposed UCC, its staff and students to “significant hazard”, he said.
In terms of flood preparation, the university had “a hundred sandbags and no demountable barriers” and there was no unified campus-wide plan to deal with flood events.
“The unhappy truth of this case is that ESB stands guilty of wrong-doing and so does UCC,” he said.
UCC brought its claim on behalf of its insurer Aviva, which was seeking €20m damages from the ESB for losses at UCC and an additional €14m for losses suffered by other property owners.
Cork solicitor Joe Noonan, who represents 40 other affected property owners, said he hoped the ESB would accept the decision and not appeal.
UCC had claimed actions and inactions by the ESB concerning management of water releases from its two hydro-electric dams at Iniscarra and Carrigadrohid on the River Lee were “highly dangerous” and led to significant unnecessary additional flooding causing substantial damage. It claimed 30 acres of UCC’s 80 acre campus were submerged under water and 29 campus buildings, including the Gluksman Gallery and the entire Mardyke sports complex were damaged.
ESB argued it did not cause the floods and alleged contributory negligence by UCC, including its construction of low-level buildings in the flood plain of the River Lee.
Mr Justice Barrett ruled the ESB, as operator of the dams, was 60 per cent liable in nuisance and negligence for the damage to UCC’s properties. UCC was 40 per cent liable over contributory negligence on its part, including failure to address information of flood risk to its properties, he found.
The amount of damages will be quantified in a later hearing. The costs of the case, which ran from June 2014 for 104 days over several months and involved a wide range of expert evidence, are estimated at several million euro.
In his findings against the ESB, the judge said it, as operator and controller of the dams on the River Lee, failed in November 2009 to give adequate warning of the discharges it intended to make and of their likely impact.
The ESB had a duty of care to UCC and other owners/occupiers of property downstream from its reservoirs, including not to cause unnecessary flooding by crossing the point it itself identified as its top operating level in the reservoirs.
The ESB could, and should, reasonably have reacted to weather forecasts on and from November 16th 2009 so as to spill water form the dams earlier and in greater amounts than it did, and thus created the space for more water at the Lee Reservoirs, he said.
The ESB could and should reasonably have maintained lower water levels than it had in the reservoirs in the period leading up to November 19th 2009. The dam-discharge rules operated by ESB were neither necessary nor appropriate in the circumstances of November 2009 and this was recognisable at that time. Had ESB operated the appropriate levels consistently, the discharges that occurred would have been neither necessary nor appropriate.
During the flood events of November 19/20th 2009, the ESB failed to adhere to its own “do not worsen nature” rule of operation. By failing to properly pre-plan, ESB was equipped only to release inappropriate discharges.
The ESB also failed to give anyone, including UCC, adequate or timely warning about the events ESB knew to be presenting and failed to carry out an adequate risk assessment exercise. That would have identified the “mainfold deficiencies” in its River Lee Regulations and in ESB’s operation of the Lee Dams, which caused the damage suffered by UCC’s buildings in November 2009.
In his findings of contributory negligence against UCC, the judge said he counted 50, maybe more, instances in the evidence in which UCC was put expressly on notice of flood risk to buildings it built or acquired on the River Lee floodplain.
“To borrow from Oscar Wilde, if once is misfortunate and twice is carelessness, when it comes to at least 50 failures to respond to a known flood-risk, one appears to the court to have strayed far from Lady Bracknell territory and well into the realm of significant and serious contributory negligence.”
The most fundamental failure by UCC was its failure to conduct a flood-risk assessment of its lower-lying buildings, he said.
If the UCC Buildings Committee discharged its supervisory task badly, “and it is difficult to see how it could have done worse”, that was not the fault of ESB. UCC never raised any question as to how expensive buildings were being constructed without proper regard to that flooding.