Supreme Court to hear appeal by UCC over flooding at campus in 2009

By Ann O'Loughlin

The Supreme Court has agreed to hear an appeal by University College Cork over findings the Electricity Supply Board (ESB) is not liable for extensive flood damage to campus buildings after floods affected Cork city in 2009.

UCC's action is among about 400 sets of proceedings initiated against the ESB arising from the flooding.

In a subrogated claim on behalf of its insurer Aviva, UCC 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 €20m damages for losses at UCC, plus another €14m for losses suffered by other property owners.

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

In a published determination this week, a three-judge Supreme Court said the case raises "novel issues of law" which can be said to be of general public importance and, in those circumstances, it would hear UCC's appeal.

The ESB operates 16 Category A dams within the State and the case addresses issues including the liability of a dam operator in respect of persons downstream; the law relating to the existence of duty of care; the definition of any such duty and the liability of statutory undertakings generally and in the law of nuisance.

The appeal is against findings of the Court of Appeal last March that the ESB had no liability for the flood damage on the UCC campus in late 2009.

The three-judge court overturned High Court findings that the ESB was 60 per cent liable in respect of flooding and warnings. Those were made in October 2015 after a 104-day case in the High Court, the first here to fully test the liability of a dam operator.

The COA also later granted the ESB its full costs of the case against UCC but a stay applies pending the Supreme Court appeal.

The ESB opposed any further appeal to the Supreme Court but said, if such an appeal was to be heard, it wished to cross-appeal a COA finding that, had it upheld the High Court decision on liability, it would have set aside the High Court finding of contributory negligence on the part of UCC.

That cross-appeal will also be heard by the Supreme Court.

In its judgment, the COA said the High Court judgment, if it was 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.

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