Local authorities may face an increase in legal actions from people whose property suffers flood damage due to the decline in availability of insurance cover, legal experts have said.
With serious flooding in the aftermath of Storm Desmond, concerns are once again mounting as to shortfalls in defence systems and the potential for further severe weather systems in the coming months.
According to the Office of Public Works (OPW), the body responsible for rolling out protection schemes, there are seven projects under construction in Wicklow, Dublin, Cork, Waterford and Clare.
Twenty-nine other schemes throughout the country remain at planning stage with varying completion estimates.
This year, the OPW will have spent in the region of €45 million on such works with a further €430 million committed between 2016 and 2021 – rising steadily from €45 million a year to €100 million a year by 2021.
The recent storm hit the western seaboard badly while extensive flooding swept the south and northwest.
Bandon in particular felt the effects but its defence works are among those still under planning. A scheme was due to be presented to the Minister for Public Expenditure Brendan Howlin by the end of the year and is at tender stage.
Crossmolina in Co Mayo was also badly hit when the river Deel bust its banks. An outline design for a scheme there is just being completed and should be exhibited within the first half of 2016.
There are 16 schemes at post-construction phase, completed between 2009 and 2014 and a further 12 finished since as far back as 1995.
The Government approved the Report of the Flood Policy Review Group in 2004 which recommended the OPW work in tandem with local authorities to develop “catchment flood risk management plans” as focal points for works.
In 2011 the Catchment Flood Risk Assessment and Management programme came into being, dealing with medium and long-term strategy.
Its three phases incorporated preliminary risk assessment (2011), studies and other activities (2011-2015) and implantation (from 2016). Separately, a 10-year Irish coastal protection strategy study, completed in 2013, provides an outlook for current and future flooding scenarios.
Last year the OPW and the insurance industry agreed information on completed works would be taken into account on assessments of flood risk. In that regard, information was provided on 12 completed schemes.
No recourse
However, with continuing difficulties in securing insurance, legal experts have said claims may increasingly be levelled at local authorities, whether or not they prove successful.
"It depends on the circumstances they are in. If somebody has suffered flood damage and it was just an act of God and there was nothing that anybody could have done to prevent it then there is no recourse," said Sinead Carroll of Ernest J Cantillon Solicitors in Cork.
“However it if was caused negligently – like water was allowed to escape and it affects property because there was no risk assessment carried out – then there might be recourse.”
Two issues must be considered: first, whether the risk was foreseeable or preventable; and second, was that risk managed appropriately? The second question is the legal test for negligence although most cases are taken under the law of nuisance.
“In a lot of these places [that flood] they are the same places over and over again. Surely that puts them on some notice that this is an area that is subject to it and if they could have managed it better then possibly people will have recourse,” she said.
Roddy Tyrrell of lawyer.ie said a rise in legal actions against the State was likely but their success or failure would come down to individual factors.
“All people, including local authorities, are under a duty of care that whatever they do doesn’t cause damage to myself or my property,” he said.
“Under the rules of nonfeasance and misfeasance if something [bad happens] because of wear and tear they aren’t likely to be responsible, ie [damage from] potholes,” he said. But this would not include an “escape” of something, including water, due to a structural or maintenance shortfall.
Cases in areas not yet fitted with flood defences would be less likely to prove successful, he said.
Fianna Fáil spokesman on the environment Barry Cowen said such a legal scenario would not surprise him.
“There is a correlation between the two in the sense that many of the insurance companies have said that until such time as preventable measures are put in place, they won’t insure . . . [people] could argue that it’s negligence on the part of the State,” he said.
