The ESB is facing a compensation bill than could run into tens of millions of euros after the highest court in the land ruled it was negligent when floods deluged Cork city in 2009.
The Supreme Court found the State-owned utility was negligent in its operation of the River Lee dams and is now liable for some of the flood damage caused to parts of University College Cork (UCC) 11 years ago.
UCC's action against the ESB is one 400 proceedings initiated as a result of the 2009 flood in Cork which saw homes and businesses devastated. This ruling could now lead to a flood of other claims.
UCC suffered extensive property damage on the night of November 19 and the morning of November 20, 2009 when, after days of heavy rainfall, the ESB discharged tonnes of water from behind its hydroelectric dam at Inniscarra.
The subsequent flood swamped the Lee Fields and flowed eastwards through homes and businesses on the outskirts of the city, causing damage to several UCC buildings. The flood continued towards the city, breaching the quay walls and swamping parts of the city centre, including the main thoroughfares of Patrick St, Oliver Plunkett St and the South Mall.
UCC argued the ESB had a duty of care to avoid unnecessary flooding and it was in breach of that obligation. While it acknowledged the ESB had given certain flood warnings, it claimed these were wholly inadequate.
ESB denied liability and argued the dams actually had an attenuating effect on the flood and said the flood event was less than would have been the case had the dams not been there. It also maintained it had given adequate warnings in accordance with the obligation it had undertaken.
The Supreme Court judgement is the latest stage in a marathon legal saga which began in 2012 when UCC sued the ESB for €18 million arising from flood damage. UCC claimed 30 acres of its 80 acres was submerged and 29 buildings damaged.
A High Court hearing that took 104 days resulted in a 500-page judgement in 2017 which found the ESB 60% liable for the damage, and both sides subsequently appealed the judgement.
In March 2018, the Court of Appeal held that the flooding damage to UCC’s buildings arose from a natural event and that the ESB did not cause the flooding of its buildings.
Both sides appealed to the Supreme Court which has now issued its decision.
Legal experts have said it is almost certain this will be the final judgement, and there is likely no legal reason for the decision to be appealed to the European Court of Justice on any grounds.
The ESB said in a brief statement it noted the judgment delivered by the Supreme Court.
“We will now study this judgment in detail and we have no further comment to make at this time,” the firm said.
A spokesman for UCC welcomed the ruling.
“UCC and Aviva will consider the implications of the Court's decision with its legal team in the coming days. Aviva is committed to promoting awareness of the importance of flood risk management and this ruling provides an important clarification on the obligations of dam operators and property owners in the sphere of flood management,” the spokesman said.
A solicitor whose firm has almost 100 cases pending against the ESB over the 2009 flood has called on the company to devise a system soon to deal with peoples’ losses.
Planning and environmental law expert Joe Noonan, of Noonan, Linehan, Carroll and Coffey, said it was a pity the case went contested for so long. He said the ruling has implications too for the Office of Public Works’ (OPW) €150m Lower Lee flood relief scheme (LLFRS), the Cork flood defence scheme which includes contentious proposals for raised quay walls in places, and for the insurance industry.
“We have approaching 100 cases representing private residents, businesses and voluntary organisations, pending against the ESB arising out of the 2009 flood,” he said.
A spokesman for the residents back in 2009, Barry Keane, said the Supreme Court decision is a "great result for the people who were so dreadfully damaged by the flooding", and that "logic has finally won out".