Cork floods: Ruling opens path for restoration

The High Court ruling regarding the 2009 flood is timely in terms of potential redress claims and anyone who has sustained loss or damage as a result of the incident should take legal advice immediately, writes Joe Noonan

TO MANY, the 2009 flood is a distant memory. For those whose homes, businesses, or sports clubs were inundated the trauma will never be forgotten. The shock and terror is hard to convey in words. This flood peaked in the city in the dead of night. People awoke disorientated to the sound of water flowing into their houses. Darkness surrounded them as the filthy water had tripped their electricity. They stepped out of bed onto the floor, only the floor was now under water.

People fled their homes in confusion, wearing only their nightclothes.

In the damp light of day people continued to rally round those most affected. Neighbours had saved neighbours during the night.

St Vincent de Paul and others gave immediate practical support to many. Soon the question was asked: what had happened?

It has taken almost six years to get a dispassionate clear objective answer to that question. The High Court has found that what happened was an avoidable event. This was not an act of nature. This was human and organisational failure.

A claim for loss and damage to property or belongings caused by negligence must in general be commenced within six years of the negligent conduct. (The period is different for children under 18 years). This judgment is therefore timely — next month brings the sixth anniversary of the flood, after which no legal redress may be available. Anyone who has sustained loss or damage should take legal advice immediately.

The court has issued a major judgment in every sense. This was one of the longest running cases of its kind, spanning close on four years from beginning to end. A 555-page judgment, containing 58 chapters, reflects the painstaking attention to detail paid by the Court.

From the outset, it was clear that this was a major event in the history of Cork city and its environs, along the banks of its river, the Lee. Why did it happen? Was it human or organisational error? Was it a natural flood?

The High Court also had to address a claim by the ESB that if it was found at fault, it should not be ordered to shoulder all of the cost of damage caused by the flood. The ESB argued that UCC should have organised its affairs differently in various respects. By its own actions or inactions, the ESB claimed, UCC had contributed to the scale of harm sustained by its buildings and equipment.

So the court had two separate steps to take: it had to decide if the flood was the fault of the ESB. If the court found it was their fault, then it also had to decide if UCC had made its own situation worse than it needed to be.

The decision of the court therefore is in two parts — the first finding is that the ESB was negligent in its operations and had thus caused the flood to be of such a scale. It sets out eight findings critical of the ESB.

The last of the court’s nine specific findings is essentially that UCC had contributed to its own losses. The court put the contributory negligence on the part of UCC at 40% of the total claim brought on behalf of the university. So as matters stand, UCC can expect to recover 60% of the value of its proven losses from the ESB. Measuring the value of UCC’s losses is an exercise that the court has left over for another day.

There are now three outstanding issues:

  • The ESB has yet to say if it will accept the decision or appeal. If it does accept it then it would be able quickly to begin settlement discussions with affected householders, businesses, clubs and organisations.
  • Insurance companies generally operating in the Cork general insurance market covering homes and other premises need to confirm that they accept the court finding as well. The inescapable conclusion is that the affected area is not a flood zone in the sense that insurers normally apply the term. This was not a natural flood. This flood was the result of human error. It was the result of an error or combination of errors that the ESB is unlikely ever to repeat. There is therefore no justification for any insurance company excluding homes and other premises between Inniscarra and the city centre that were inundated on that night from standard flood cover at normal rates. Insurance companies should now restore cover to areas excluded and refund excessive premiums collected since 2009.
  • When big bodies with deep pockets cause harm to people of normal resources, the legal battle is bound to be unequal. It is fortunate that UCC’s insurance company chose to pursue recovery against the ESB.

Now that they have brought the case to a conclusion, I hope that UCC’s insurers too will accept the finding. That will open the way for the affected families, individuals and enterprises to work with the ESB to restore themselves, as far as money can do it, to the situation they were in before November 19, 2009.

 

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