ESB urges court to find UCC has some liability for flood damage to buildings

Neil Steen SC, for ESB, disputed arguments made on Monday by Paul Sreenan SC, for UCC, that the college should be found to have no liability in relation to the flood damage. 

 

Some of the damaged buildings were built on a flood plain, including the Western Gateway building which was completed in 2009 on a site “notorious for flooding”, Mr Steen said. 

 

UCC had no emergency plan in place to minimise fluvial flood damage, took “as a given” there would be protection from the ESB’s hydro-electric dams on the River Lee and appeared to have a “childlike” dependency on others, he argued. 

 

In apportioning liability, the court should start from a 50/50 basis between the ESB and UCC, he said. 

 

Earlier, Mr Sreenan submitted that UCC was reacting to an “unprecedented flood crisis” created as a result of “massive discharges” by the ESB into the River Lee. 

 

The flooding should not have happened in the first place and there was nothing UCC could have done to prevent its buildings being affected in the circumstances of the 2009 flooding which was fluvial rather than tidal, he argued. 

 

UCC acted with reasonable care and as a “prudent” property holder, he maintained. 

The five-judge court, having previously decided the ESB was guilty of negligence concerning the flooding, heard closing arguments on Monday on a cross-appeal by ESB concerning whether UCC also has a liability. 

 

The Chief Justice, Mr Justice Frank Clarke, said the court will give its judgment on the cross-appeal on a later date. 

 

In a subrogated claim against the ESB on behalf of its insurer Aviva, UCC claimed the ESB’s management of water releases from two hydro-electric dams on the River Lee led to significant unnecessary additional flooding causing substantial damage to 29 buildings on its campus in 2009. Aviva sought some €20 million damages for losses at UCC, plus another €14 million for losses suffered by other property owners. 

 

The marathon litigation went to the Supreme Court after the Court of Appeal overturned findings by the High Court’s Mr Justice Max Barrett of 60 per cent liability on the ESB’s part and of 40 per cent contributory negligence on UCC’s part. The Supreme Court decided it should first determine whether the ESB had a liability. In a significant judgment last July, it found the ESB was guilty of negligence in relation to the flood damage to buildings on the UCC campus. 

 

The negligence finding has implications for some 400 other cases against the ESB over the flooding, plus wider implications for the ESB’s liability arising from its management of hydroelectric dams in the State. Four of the five judges concluded the ESB had a liability on the basis the case was an exception to the general principle an individual did not owe a duty of care to prevent harm to another caused by actions of a third party. Dissenting, Mr Justice Donal O’Donnell said the flooding was caused by the River Lee, not any positive act by the ESB, and there was “no compelling reason” why the cost of flooding to UCC “should be shifted from insurers who had agreed to be responsible for that very risk and placed upon the ESB and its customers”. A hearing to assess damages in the UCC case will proceed later before the High Court on a date to be fixed. 

The extent of the ESB’s damages bill will depend on the Supreme Court’s decision on the ESB’s cross-appeal concerning any contributory negligence by UCC. The court heard closing arguments on that cross-appeal on Monday and also heard submissions on issues concerning the scope of the damages hearing before the High Court.