In the case brought by UCC, Mr Justice Max Barrett found the ESB, as dam operator, was 60% liable, with UCC liable for 40% of the damage after a finding of contributory negligence on its part.
A solicitor representing approximately 40 Cork City residents whose homes were badly damaged by the flood waters said the ESB and possibly the two Cork local authorities could be the subject of legal actions. Joe Noonan said some of his clients had already lodged legal papers, while others who had been awaiting the verdict in the UCC vs ESB case would now follow suit.
However, he added that “potentially hundreds” of other householders could also bring cases, although they will need to do so quickly as the statute of liabilities in such cases is six years, meaning November 19 — the sixth anniversary of the flood — is the cut-off point.
“The ESB has failed in its denial of liability,” Mr Noonan said of the court ruling, adding that it was “hard to see” how the finding that UCC was 40% culpable could apply to any private householders.
“We will press on now,” Mr Noonan said with respect to legal actions, adding that while it remained to be seen if the ESB would appeal yesterday’s ruling, it would be “prudent” for anyone who was affected to seek legal advice.
The ESB has been urged to accept the court ruling and make a compensation offer to hundreds of Cork residents and business owners who were devastated by the 2009 flood.
Junior minister Dara Murphy, who was lord mayor of the city at the time of the disaster, and Mardyke residents spokesman Barry Keane, who represented some of the residents affected first by the flood, said last night that the company should not force ordinary citizens to got through the courts.
“I congratulate UCC for taking this case, but UCC has deep pockets and was able to do this,” Mr Murphy said. “I appreciate that the ESB may appeal. But I’m not aware of any reason why the flooding in UCC was any different to flooding anywhere else in the city.
“The ESB must now come forward with some proposal rather than forcing individuals to take a series of one-off claims against them.”
Mr Keane said residents worst hit by the flood had come within inches or minutes of drowning, had their personal possessions destroyed, and their homes left uninsurable and unsellable.
However, he said, within two weeks of the flood, they had united to investigate what had happened and why.
He said some of the information found by their campaign, and shared with UCC, had helped secure the legal victory.
“The judgment confirms all of the claims made by the residents were correct. They have been vindicated,” he said. “Many of those who began the fight are no longer with us. The very least they deserve is an apology from ESB and an acceptance of the judgment and not drag elderly and ordinary citizens through the courts.”
Mardyke residents are expected to meet in the coming weeks to decide their next course of action.
In his findings against ESB, the judge said that 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, said Mr Justice Barrett.
Members of the Cork Business Association are understood to also be reviewing the court decision, as many of them have been unable to secure insurance since the 2009 flood.
In a statement, the ESB said that it acknowledged Mr Justice Barrett’s judgment in the case and the company and its legal team will now review it in detail.
It also stressed that its “main priority during the event was for the safety of people downstream”.
UCC also said it would be considering the implications of the court’s decision with its legal team in the coming days.