Tuesday 20 March 2018

ESB 60pc liable for flood damage to several buildings on the campus of University College Cork, judge rules

A hearing to assess the amount of damages will take place later.
A hearing to assess the amount of damages will take place later.

The ESB is 60pc liable for damage to several buildings at University College Cork campus after floods affected large parts of the city in November 2009, the High Court ruled.

The decision is expected to cost the electricity company tens of millions.

In a 550 page judgment, Mr Justice Max Barrett also ruled UCC itself was 40pc liable for failing over years to act on mounting information of flood risk to its properties and continued 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.

"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 is seeking some €20m damage for losses at UCC and an additional €14m for other losses suffered by other property owners.

Cork solicitor Joe Noonan, who represents some 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 Carrigadrohidon the River Lee were "highly dangerous" and lead 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 Mardykesports 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 60pc liable in nuisance and negligence for the damage to UCC's properties.

UCC was 40pc liable over contributory negligence on its part, including in failing 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 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.

During the flood events of November 19/20, 2009, the ESB failed to adhere to its own "do not worsen nature" rule of operation, he said. By failing to properlypre-plan, ESB was equipped only to release inappropriate discharges.

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.

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