Council not liable for flooded butcher’s shop

A newly opened butcher’s shop suffered “catastrophic damage” when a huge county council asbestos mains water pipe burst in July 2009, and flooded the shop in Killarney, the Circuit Civil Court was told yesterday.

Such was the nature of the burst pipe that the pressure of the water through the 600mm-diameter pipe, which supplies 30,000 homes in Tralee and Killarney, caused the water to burst up from 3m depth, to flood the shop of Timothy Jones, trading as Country Pork, 100 metres from the burst at Central Point, Park Road Killarney.

The damage to the shop was €25,000 and the shop and its insurers sued the county council for negligence. They had been led to believe the council would cover the costs, Katie O’Connell barrister for Mr Jones said.

Council reports of the damage were not made available and it was the following December before engineers for Mr Jones could inspect the pipe burst which had at that stage been repaired and re-instated, Ms O’Connell outlined.

The court was handed in copies of a newspaper report ( Irish Examiner of January 2010) which carried detail of 2,000 leaks in the Kerry water system and the need to replace water mains, particularly asbestos mains. Minutes of the meeting were also handed in to court.

“We are saying that the pipe was asbestos, that it should have at least been maintained if not replaced,” Ms O’Connell said.

Elisabeth Murphy for the council said the council disputed that it had ever agreed to underwrite Mr Jones’ damages. She also said, citing Section 29 of the Water Services Act of 2007, that the council was “immune from prosecution” for sanitary services for failing to prevent damage. It could not be sued on the basis of what it should have done, Ms Murphy said.

It was not denying the flood, the fracture or the damage — but it was not liable, Ms Murphy said.

Judge O’Sullivan said the mains piping was “clearly fit for purpose” as it had conveyed significant amounts of water for many, many years. There was no negligence on the part of the council; they had not turned a blind eye and were actively trying to replace the pipes and they could not be held negligent if central Government did not give them the money or it could not be raised through local taxes.

He dismissed the claim and also awarded costs to the council. The plaintiffs are to appeal the decision.