Irish Examiner View: Ruling has implications beyond ESB

Irish Examiner View: Ruling has implications beyond ESB
Flooding on Carrigrohane Road and the Lee Fields area in Cork following the heavy rainfall. Picture: Denis Minihane.

Cork city has grown from St Finbar’s sixth-century monastic settlement along the River Lee’s marshlands. Three centuries later, between 915 and 922, Vikings led by Ottir Iarla established a trading centre, Finbar’s refuge evolved as a commercial crossroads. Ever since then, the city has flooded regularly. The very reason for the city’s location — the Lee — exacts a heavy rent. That was particularly high in November 2009. Quay walls were breached, the city centre was swamped. Though no lives were lost, there was significant damage, especially to facilities bizarrely built below street level. One estimate suggests the bill stands at close to €150m. Litigation was inevitable, especially as many of those affected believed the ESB’s management of the Lee dams was the root cause of the catastrophe.

That belief has been tested in three courts and a final Irish judgement has been handed down by the Supreme Court. It found that the ESB was negligent and that the company is liable for some damage at UCC. The university sued for €18m. That ruling has opened the door for nearly 400 other flood litigants whose cases have now been strengthened considerably.

As a side issue, it is less than satisfactory that it has taken 11 years to reach this point, an impression sharpened by the fact that, over those years, three courts came to three very different conclusions. This week’s Supreme Court ruling follows that of the High Court which in 2015 found the ESB only 60% responsible. A Court of Appeal case in 2018 ruled that flood damage to UCC was caused by a natural event and that the ESB had no liability. Doctors differ, patient die, etc...

Those are not the only system quirks involved. The ESB’s advisors, according to a recent annual report, suggested the courts would not find the company culpable so no provision to meet claims has been made. The ESB’s customers, who, according to Eurostat paid the EU’s fourth-highest energy rates last year, must not be expected to foot the bill. It does seem incongruous, too, that two state entities should run up multi-million euro legal costs fighting each other. Who are the real beneficiaries?

The 2009 flood is part of history but it will live on. It was the final spur for Cork city flood prevention measures. Those who promote the current programme were unmoved by suggestions that something more comprehensive, more far-seeing but less invasive was required. The track record of the OPW, central players in that project, hardly inspires confidence. Ongoing works in Bandon confirm this. Those concerns are pertinent too as the city centre struggles to be as attractive as it was as one retail unit after another is shuttered.

Climate collapse can be surmised simply — dry places will get drier, wet places will get wetter. That means the 2009 flood will be surpassed. Should flood defences under construction prove unequal to their task, as their opponents promise, will another decade-plus round of litigation, where the taxpayers lose either way, begin? Will 400 individuals sue the city council and/or the OPW? The ESB, by developing new dam management practices, have shown that they learned the 2009 lessons. We need confidence that there won’t be a recurrence.

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