Superquinn Ltd v Bray U.D.C.

• Jurisdiction: Ireland
• Judge: Justice Laffoy
• Judgment Date: 18 February 1998
• Neutral Citation: [1998] IEHC 28
• Docket Number: [1988 No. 7966P]
• Court: High Court
• Date: 18 February 1998

SUPERQUINN LTD v. BRAY URBAN DISTRICT COUNCIL, WICKLOW COUNTY COUNCIL, UNIFORM CONSTRUCTION LTD, COILLTE TEORANTA & POWERSCOURT ESTATES

BETWEEN

SUPERQUINN LIMITED

PLAINTIFF

AND

BRAY URBAN DISTRICT COUNCIL, THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW, UNIFORM CONSTRUCTION LIMITED, COILLTE TEORANTA AND POWERSCOURT ESTATES

DEFENDANTS

[1998] IEHC 28

No.7966p/1988

THE HIGH COURT

Synopsis

Nuisance

Negligence; nuisance; construction; excessive flooding; ineffective drainage of resevoir; resultant damage to plaintiff's property; determination of liability; whether defendant liable for damage; whether damage caused was forseeable; whether flooding caused by an Act of God; whether the acts or omissions of the defendants caused the flooding Held: Action dismissed; defence of Act of God succeeded (High Court: Laffoy J. 18/02/1998)- [1998] 3 IR 542

Superquinn Ltd v. Bray Urban District Council

1 Justice Laffoy delivered on the 18th day of February 1998

THE CLAIM

2 In these proceedings, which were initiated by Plenary Summons which was issued 19th August, 1988, the Plaintiff claims damages for loss it incurred in consequence of the flooding of its supermarket premises at Castle Street, Bray, Co. Wicklow on the night of 25th August, 1986 and in the early hours of the morning of 26th August, 1986 during the course of the storm which has come to be colloquiallly known as "Hurricane Charlie", That night the River Dargle overflowed its bands and caused extensive flooding in the town of Bray and in particular, in the area known as Little Bray in which the Plaintiff's premises are located

3 When the hearing commenced in this Court, the proceedings had been discontinued against two of the Defendants the County Council of the County of Wicklow and Powerscourt Estates. In broad outline the bases of the Plaintiff's claims against the remaining Defendants are as follows:

4 (1) Bray Urban district Council (the Council) is sued as the sanitary authority for the functional area in which Little Bray, Including the Plaintiff's premises, is situate and as the body responsible for planning and directing drainage construction works which were being carrie out in that area prior to the storm. It is alleged that the Council is liable in negligence and nuisance for the flooding of the Plaintiff's premises, which it is alleged was caused or contributed to by the manner in which the drainage construction works in the River Dargel in the vicinity of Bray Bridge and of the Plaintiff's premises were being executed prior to the storm. In particular, it is alleged that in the execution of the works prior to the storm the river defences were breached and the flow toward and through Bray Bridge was obstructed by temporary works and machinery.

5 (2) Uniform Construction Limited (Uniform), the building contractor which was carrying out the drainage construction works under contract with the Council, is alleged to be liable in negligence and nuisance for the manner in which the works were being carried out.

6 (3) Coillte Teoranta (Coillte) is sued as the successor in title to the Minister for Energy, as the owner, occupier and body responsible for an artificial lake of reservoir known as Paddock Pond, which was located upstream of the River Dargle. On the night of the storm the dam at Paddock Pond failed. It is alleged that the waters released by the dam failure joined the River Dargle, thereby increasing the volume and level of the river and, in consequence, causing or contributing to the flooding in Little Bray. The claim against Coillte is founded in negligence and nuisance for alleged failure to properly use and maintain the dam and to provide and maintain an effective overflow arrangement for releasing water from Paddock Pond when the level of the reservoir rose. It is also alleged against Coillte that the existence of the Paddock Pond reservoir constituted and unnatural use by Coillte of its land and that Coillte is liable under the Rule in Rylands -v- fletcher LR.3 HL330for the escape of the water and the alleged resulting flooding of the Plaintiff's premises.

7 At the commencement of the hearing it was agreed by the parties that the quantification of the damages, if any, to which the Plaintiff is entitled should be deferred. This judgment is concerned only with the issue of the liability of the Defendants to the Plaintiff for the damage caused by the flooding of the Plaintiff's premises.

THE EVIDENCE GENERALLY

8 The evidence adduced at the hearing can be conveniently considered under the following headings:

9 (a) The geography and typography of the dargle catchment;

10 (b) The condition of Paddock Pond and its dam prior to the storm;

11 (c) The nature of the drainage construction works being carried out in the River Dargle near Bray Bridge prior to the storm and the allegations of negligence in relation to those works;

12 (d) The evidence, including meteorological evidence, in relation to the storm;

13 (e) Eyewitness accounts of witnesses who experienced the storm in the Dargle catchment of its aftermath; and

14 (f) Evidence going to the issue of causation adduced by the Plaintiff, by the Council (and adopted by Uniform) and by Coillte.

GEOGRAPHY AND TYPOGRAPHY OF THE DARGLE CATCHMENT

15 Paddock Pond was located approximately 14.4 kilometres, measured along the channel of the River Dargle, upstream of Bray Bridge. The reservoir was formed about a century and a half ago by the construction of a dam across the northern end of a natural valley, which was fed by stream. It was originally part of the Powerscourt Estate. Historical sources suggest that initially its purpose was ornamental. In later years it may have been used to power a sawmill downstream. However, such use had long ceased before the mid-1980's. By then it was in the middle of an afforested area and its only practical benefit to its owner would appear to have been that the roadway which was constructed on the top of the dam afforded the only mens of access to the forestry in the area to the west known as Priest's Hill.

16 Immediately downstream of Paddock Pond there is a steep wooded gorge. A watercourse connected Paddock Pond to the Dargle through this gorge. The confluence of the watercourse and the Dargel is somewhat downstream of Powerscourt Waterfall. A number of landmarks and features along the river, downstream of this point and between it and the outskirts of the urban area of Bray, are of significance if the history of the storm. The first is a bridge at the main entrance to Powerscourt Waterfall, which was not damaged in the storm. A short distance downstream a masonry bridge, which most of the witnesses have referred to as Valculsa Bridge, was demolished by the current and pieces of masonry weighing several tons were carried up to a hundred metres downstream. Further downstream, at the confluence of the Dargle and its tributary the Glencree River, Ballinagee Bridge was demolished. Further again downstream, roughly halfway between Paddock Pond and the sea at Bray, at Tinnehinch Bridge near the Golden Gated, the most dramatic incident recounted by an eye witness, which I will outline later, occurred. Another tributary, the Glencullen River joins the Dargle a short distance upstream of the bridge known as Dargel Bridge, which was called Fassaroe Bridge by some of the witnesses.

17 Downstream of Dargle Bridge the river flows thorough an area known as the Slang and it then passes the factory premises of Lithographic Universal Limited,(the Lithographic premises) which are on the northern bank of the river. At the eastern boundary of the Lithographic premises a steel bridge gave access to Killarney Glen on the southern bank of the river. The steel bridge was swept away in the storm. Below the Lithographic premises the river flows past a housing estate, the Coburg Estate, the river flows past the People's Park which occupies the northern bank of the river from River Lane, which delimits the western boundary of the People's Park, down to Bray Bridge. From River Lane to Bray Bridge the People's Park is bounded on the south by the river from which it is separated by a river wall. It is bounded on the north by a public road, Lower Dargle Road. On the north side of Lower Dargle Road there are terraces of houses. One such terrace, opposite the area of People's Park to the east of the bandstand, is known as Vale Terrace. Another further east, is known as St. Bridget's Terrace. The houses Nos. 1 and 2 St. Bridget's Terrace are at a junction opposite the narrowest portion of the river, where there is a slight bend in the river. This junction is known as Haughton's Junction. From Haughton's Junction, Lower Dargle Road continues to the east to Bray Bridge, Sheridans Lane (called Brabazon Cottages and St. Laurence's Terrace on the Ordnance Survey map) leads in a north-easterly direction to Castle street, and Adelaide Villas leads in the direction of Greenpark Road.

18 From River Lane east to Haughton's Junction, the People's Park is separated from Lower Dargle Road by railings four feet high which are set in a plinth which varies in height from nine inches to eighteen inches. From Haughton's Junction to Bray Bridge, the People's Park, which tapers off very considerably going from west to east, is separated from Lower Dargle Road by a masonry wall 1.2 metres to 1.3 metres in height.

19 From the very considerable body of evidence adduced as to ground levels certain broad propositions can be deduced. The lowest ground levels are in the area to the north of Haughton's Junction along Adelaide Villas and Sheridans Lane. In general, ground levels tall from the Coburg Estate east towards Bray Bridge; Lower Dargel Road falls towards Sheridans Lane and Greenpark Road falls towards Castle Street, To the east of Haughton's Junction Lower Dargle Road rises towards Bray Bridge.

20 The Plaintiff's...