Court to decide on liability for Cork flood damage

A legal action to decide if the Electricity Supply Board must bear any liability

for damage inflicted by floods that affected large parts of Cork city in November 2009 has opened at the Commercial Court.

University College Cork, in a subrogated claim on behalf of its insurer Aviva, claims actions and inactions by the ESB concerning management of water releases from its two hydro-electric dams at Iniscarra and Carrigadrohid on the River Lee were "highly dangerous" and lead to significant unnecessary additional flooding causing substantial damage.

The case involved “a sorry tale of missed opportunities” to handle an impending and severe problem in a way an organisation like the ESB would be expected to do, Paul Gallagher SC, for UCC, said.

In November 2009, it had rained almost daily in Cork up to November 20th and it should have been obvious to the dams’ operators and managers they were facing a very difficult, serious and dangerous situation”, he said. Had that situation been managed and operated properly, there would have been a very significant reduction in the “huge” damage caused not just to UCC but to “countless” other property owners and businsesses in Cork city, he argued.

UCC accepted the ESB’s argument the peak water flow through the city would have been higher if there were no dams at all but his case was, had the dam discharges being managed differently, the flood profile would not have been the same, flood waters would not have risen so quickly and preventive measures could have been taken to protect people and property.

Instead, “huge” floods resulted from “ramping up” the discharge of water and a lot of people suffered “very harrowing and distressing” experiences due “in no small part” to the actions of the ESB.

The ESB appeared to argue it was absolved from all responsibility on grounds including its duty was confined to preventing dam collapse and it had no duty whatever to manage flood flows but UCC rejected that and the ESB’s other defences, he added.

The ESB appeared to have misunderstood its own regulations and he was also concerned an absence of relevant data lead to decisions being made “in the blind”. While the ESB also insisted there was no certainty about the rainfall forecasts, prudent and responsible judgments must be made on those and other available data, he added.

It was also “extraordinary”, although the ESB has a water flow forecast model into which data may be inputted so as to forecast floods into the future, either that model “was not used or it did not work”.

Cork city is located in a flood plain and was affected by flooding in previous years including 2006, 2000, 1990, 1986, 1978, 1964, 1961, 1948 and 1916, counsel said. His case was the 2009 floods were not exceptional but the situation was significantly worsened because of how the ESB handled matters.

The ESB denies the claims and Mr Justice Max Barrett has begun a hearing, listed to last up to six months and involving evidence from geologists and hydrologists among others, to decide whether it has any legal liability.

If liability is found, there will be a separate hearing to determine damages with UCC claiming some €19m. Aviva’s losses as a result of the flooding are more than €34m and the insurer intends to pursue the balance of its losses following the UCC proceedings.

UCC alleges the ESB was negligent and breached a duty of care to manage the dams, located 13km and 27km upstream from Cork city, and asociated reservoirs so as to minimise the risk of flooding. It also claims the ESB wrongfully interfered with the enjoyment of its lands and created a nuisance.

UCC claims warnings of heavy rainfall were issued by Met Eireann for the River Lee catchment area on 12th, 15th and 18th of November but the ESB failed to adequately respond. Water levels at the reservoirs were kept at levels too high for the rainfall expected and there was inadequate storage capacity for flood mitigation, it is claimed.

On November 19th 2009, following heavy rainfall, the ESB rapidly increased the amount of water released from both dams at an unprecedented rate of discharge and failed to act preemptively by releasing amounts of water from the dam at a rate to avoid or mimimise the risk of flooding, it is alleged.

It is claimed 30 acres of UCC’s 80 acre campus were submerged under water and 29 campus buildings, including the Gluksman Gallery, Western Gateway Building, Maltings Complex, several student accommodation blocks and the entire Mardyke sports complex were damaged.