ESB 60% liable, UCC 40% to blame for damage to college buildings during 2009 floods, High Court rules

Mr Justice Max Barrett, after hearing a case over 104 days, also ruled University College Cork was 40% 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", the judge said.

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," Mr Justice Barrett said.

The exact figure both ESB and UCC will have to fork out will be decided by the High Court at another stage. The costs of the case alone are estimated at several million Euro.

UCC had brought its claim on behalf of its insurer Aviva, which is seeking €20m damage for losses at UCC and an additional €14m for other 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 Glucksman Gallery and the entire Mardyke sports complex were damaged.

ESB argued it did not cause the floods and alleged contributory negligence by UCC, including by constructing low-level buildings in the flood-plain of the River Lee.

Mr Justice Barrett ruled ESB, as operator of the dams, was 60% liable in nuisance and negligence for the damage to UCC's properties. UCC was 40% liable over contributory negligence on its part, including in failing to address information of flood risk to its properties, he found.

In his findings against 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 16, 2009 so as to spill water from 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 19, 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 19/20 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.

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.

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.

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.

In a statement after the ruling, UCC said: "UCC believes the response of its staff to the flooding on the night of 19 November 2009 was exemplary and ensured the safety of all staff and students. UCC has full confidence in its staff, in particular in their role in the development of the campus.

"UCC has put in place significant flood protection works since the 2009 event to enhance the safety of staff and students and the protection of the campus.

"UCC and Aviva would like to thank the Court for the time it has taken in hearing and considering this long-running and complex case. UCC and Aviva will consider the implications of the Court’s decision with its legal team in the coming days. Aviva is committed to promoting awareness of the importance of flood risk management and this ruling provides an important clarification on the obligations of dam operators and property owners in the sphere of flood management.

"Finally, UCC and Aviva would like to offer their thanks to the staff of UCC for their assistance and co-operation throughout this case."