Court says parts of marathon flood case between UCC and ESB must be reheard

The Supreme Court has directed a fresh hearing in the High Court of certain aspects of the marathon litigation between University College Cork and the ESB concerning their liability for extensive flood damage to buildings on the college campus in 2009.

A majority Supreme Court ruled in July 2019 there was negligence on the part of the ESB concerning the flooding and it has returned certain matters to the High Court arising from that, including consideration of damages.

In a further judgment on Thursday on a cross-appeal by the ESB, the court found contributory negligence by UCC in relation to the flooding but said the extent of the contributory negligence, and thus the respective liability of the ESB and UCC, would now have to be decided by the High Court.

Because the Supreme Court had found the ESB’s negligence was based on a duty of care different in some respects from the duty of care originally found by the High Court, which could impact on the extent of damage attributable to the ESB, the Supreme Court said it could not itself apportion liability between the sides.

Some 400 other cases against the ESB over the flooding remain on hold pending the rehearing, a date for which will be fixed later.

In its cross-appeal, the ESB had argued some of the damaged buildings, including the Western Gateway building completed in 2009, were built on a site “notorious for flooding”.

The High Court had measured UCC’s liability at 40 per cent but, in the Supreme Court, the ESB argued that liability could be higher.

On Thursday, the Supreme Court directed that various issues affecting liability, and possibly, but not necessarily, causation, should be reheard by the High Court.

Complex case

Giving the judgment, the Chief Justice, Mr Justice Frank Clarke noted the case is very complex and has been before different courts for some time but this judgment should narrow the issues for rehearing.

In various findings, he said some, but not all, of the bases on which the High Court determined UCC was guilty of contributory negligence are sustained on the evidence.

He was satisfied it is appropriate to fix UCC with contributory negligence relating to the failure to conduct and act on a flood risk assessment and failing to respond adequately to warning of the impending risk of serious flooding. While it was not fair to characterise UCC as having failed to take any action, that factor only went to the degree of its culpability.

The High Court, in assessing the degree of liability of the parties for the flood damage, should not factor in contributory negligence by UCC concerning its placement of certain valuable material in locations which, it was argued, were particularly at risk should flooding occur he said.

However, that issue should be factored into the High Court’s assessment in respect of the damages attributable to particular items of loss incurred, he said.

The High Court was not bound by the earlier finding of 40 per cent contributory negligence against UCC and should decide the extent of contributory negligence in line with the Supreme Court’s judgment, he said. The focus would be on assessing whether that negligence might be material in relation to the damage at any particular UCC property and, if so, to what extent.

In other findings, the judge held the ESB could not rely on section 35.1.i of the Civil Liability Act 1961 as a means of seeking to fix UCC with liability in contributory negligence for the actions of UCC’s professional advisers.

He also said it is possible, “although it is not necessarily the case”, the question of causation of the flood damage may have to be revisited by the High Court because the consequences caused by a breach of the ESB’s duty of care as identified by the Supreme Court may differ from the consequences caused by the duty of care identified by the High Court, he said.

In a subrogated claim against the ESB on behalf of UCC's insurer Aviva, UCC claimed the ESB's management of water releases from two hydro-electric dams on the River Lee caused 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 €14 million for losses suffered by other property owners.

High Court findings

The litigation went to the Supreme Court after the Court of Appeal overturned the High Court’s findings of 60 per cent liability of the ESB and 40 per cent contributory negligence by UCC.

The Supreme Court decided it should first determine whether the ESB had a liability.

In July 2019, four of the five judges found the ESB was guilty of negligence in relation to the flood damage to buildings on the UCC campus. The majority held 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 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”.