A legal action to decide if the ESB must bear any liability for the damage opened yesterday at the Commercial Court.
University College Cork alleges the ESB was negligent and breached a duty of care to manage two dams, located 13km and 27km upstream from Cork City, and associated reservoirs so as to minimise the risk of flooding. It also claims the ESB wrongfully interfered with the enjoyment of its lands and created a nuisance.
UCC claims warnings of heavy rainfall were issued by Met Éireann for the River Lee catchment area on November 12, 15, and 18, 2009, but the ESB failed to adequately respond. Water levels at the reservoirs were kept at levels too high for the rainfall expected and there was inadequate storage capacity for flood mitigation, it is claimed.
On November 19, 2009, following heavy rainfall, the ESB rapidly increased the amount of water released from both dams at unprecedented rates of discharge and failed to act preemptively by releasing amounts at a rate to avoid or minimise the risk of flooding, it is alleged.
It is claimed 30 acres of UCC’s 80-acre campus were submerged under water and 29 campus buildings, including the Glucksman Gallery, Western Gateway Building, several student accommodation blocks, and the entire Mardyke sports complex were damaged.
UCC, in a subrogated claim on behalf of its insurer Aviva, claims actions and inactions by the ESB concerning management of water releases from its two hydro-electric dams at Inniscarra and Carrigadrohid on the River Lee were “highly dangerous” and led to significant unnecessary additional flooding causing substantial damage.
The ESB denies the claims. Mr Justice Max Barrett has begun a hearing, listed to last up to six months, to decide whether it has any legal liability.
If liability is found, there will be a separate hearing to determine damages, with UCC claiming €19m.
Aviva’s losses as a result of the flooding are more than €34m. The insurer intends to pursue the balance of its losses following the UCC proceedings.
Opening the case, counsel for UCC, Paul Gallagher, said the case involved “a sorry tale of missed opportunities” to handle an impending and severe problem in a way an organisation like the ESB would be expected to do.
In November 2009, it had rained almost daily in Cork up to November 20 and it should have been obvious to the dam operators and managers they were facing a very difficult, serious and dangerous situation, he said. Had that situation been managed and operated properly, there would have been a very significant reduction in the “huge” damage caused not just to UCC but to “countless” other property owners and businesses in Cork City, he argued.
UCC accepted the ESB’s argument the peak water flow through the city would have been higher if there were no dams at all but his case was, had the dam discharges been managed differently, the flood profile would not have been the same, flood waters would not have risen so quickly and preventive measures could have been taken to protect people and property.
Instead, “huge” floods resulted from “ramping up” the discharge of water and a lot of people suffered “very harrowing and distressing” experiences due “in no small part” to the actions of the ESB.
Cork City was affected by flooding in previous years, counsel said. UCC’s case was the 2009 floods were not exceptional but the situation was significantly worsened because of how the ESB handled matters.
The case continues.