University College Cork - National University of Ireland v Electricity Supply Board

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 20 March 2018
• Neutral Citation: [2018] IECA 82
• Date: 20 March 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: IECA 82

BETWEEN

UNIVERSITY COLLEGE CORK – NATIONAL UNIVERSITY OF IRELAND

RESPONDENT

AND

ELECTRICITY SUPPLY BOARD

APPELLANT

[2018] IECA 82

Ryan P.

The President

Irvine J.

Whelan J.

Neutral Citation Number: IECA 82

[2016 No. 92]

THE COURT OF APPEAL

Negligence – Nuisance – Damages – Respondent seeking to recover the cost of repairs and losses from the appellant – Whether the appellant was in breach of a duty of care

Facts: The respondent, University College Cork (UCC), sought to recover the substantial cost of repairs and losses from the appellant, Electricity Supply Board (ESB), which it blamed for the flooding of its campus buildings. In January 2012 UCC issued proceedings against ESB claiming damages in negligence and nuisance. There were two elements to the claim advanced, concerning flooding and warnings. The essence of the flooding case was that ESB had a duty of care to avoid unnecessary flooding and that it was in breach of that obligation as a result of which UCC suffered substantial loss and damage. In regard to warnings, UCC acknowledged that ESB had given certain warnings but maintained that they were wholly inadequate. The High Court held that ESB, as dam operator, was liable in nuisance and negligence for the damage caused, and that UCC was liable in contributory negligence, attributing 60% liability to ESB and 40% to UCC. ESB appealed that decision to the Court of Appeal, maintaining that it fully discharged its legal obligations pursuant to its statutory mandate and common law. Moreover, and fundamental to its defence was the fact that its scheme did not add in any way to the flooding, but actually reduced it.

Held by Ryan P that the conclusions reached by the trial judge in imposing liability on ESB in respect of flooding and warnings were erroneous and that the appeal must be allowed; the High Court judgment if permitted to stand would represent a significant alteration of the existing law of negligence and nuisance, would be contrary to the statutory mandate of ESB in respect of electricity generation and would not be consistent with reason and justice. Ryan P held that: (i) the High Court erred in fixing the target top operating level (TTOL) as the level that ESB was obliged to observe for the water in its reservoirs; (ii) the statutory provisions for the Lee Scheme did not envisage the imposition of a policy imperative of flood alleviation as imposed by the High Court; (iii) common law did not oblige ESB to observe such a duty; (iv) ESB did not by its actions and words take on such liability; (v) whereas TTOL was an unjustified specific instruction, unnecessary flooding was impractically vague and unachievable; (vi) the law of nuisance did not supply what negligence could not; (vii) the warnings ESB gave were adequate in the circumstances; and (viii) overall the action should not have succeeded. Ryan P held that contributory negligence did not arise in light of the Court's decision unless the matter proceeded to a further analysis.

Ryan P held that the decision of the High Court must accordingly be set aside and the action dismissed.

Appeal allowed.

JUDGMENT of the Court delivered by the President on 20th March 2018

Introduction

1 ESB operates hydroelectric generating systems on five Irish rivers, including the River Lee, which has two stations with which this case is concerned. The Lee Scheme was constructed in the 1950s, pursuant to statutory authorisation under the Electricity (Supply) (Amendment) Act 1945. Inniscarra station is located upriver of Cork City some 13km from the campus of UCC. Carrigadrohid station is further again, 14km from its sister facility. They work together for the most part with the outflow from Carrigadrohid feeding into the Inniscarra Dam. In normal operation mode they are centrally controlled from Turlough Hill Control Centre in County Wicklow, but in flood conditions the local staff manage the systems from Inniscarra. Operators are nevertheless on hand at Carrigadrohid in case communication between them becomes impossible.

2 November 2009 was a time of very wet weather in Ireland and particularly in the Cork region. A severe storm on 19th and 20th brought heavy rains to the whole country. ESB's hydroelectric stations had to be carefully monitored to ensure that they did not become dangerous by reason of any threat to dam integrity. The storm on the Lee was the worst in the history of the dams and possibly for nearly 100 years. As the water levels rose further and further to the maximum permissible levels and beyond in the Lee dams, ESB controllers allowed the flow of the river through the system to increase gradually but very substantially in accordance with their protocols for such situations. That meant ensuring that the outflow from the dams was less than what was coming down the river into the reservoirs. The eventual maximum quantity of water going downriver was destined to result in severe flooding. Whereas operators could assume that a flow of 150 m3/s would stay within the river banks, they ultimately had to release more than 500 m3/s until the storm abated and water levels fell.

3 As the situation developed during 19th November, ESB activated its notification system by alerting people on its contact list that water discharges from Inniscarra were being increased to deal with the swollen flow of the river and the risk of flooding. When things got even worse, the warnings became more severe and urgent and were broadcast widely in the region.

4 There was extensive flooding in Cork City. UCC was severely affected, with many low-lying buildings suffering damage from water.

5 In due course, UCC sought to recover the substantial cost of repairs and losses from ESB, which it blamed for the flooding of its campus buildings. In January 2012 UCC issued proceedings against ESB claiming damages in negligence, nuisance and under the rule in Rylands v Fletcher but it subsequently abandoned the last of these liability claims.

The Case brought by UCC Concerning Flooding and Warnings

6 There were two elements to the claim advanced, concerning flooding and warnings. The essence of the flooding case was that ESB had a duty of care to avoid unnecessary flooding and that it was in breach of that obligation as a result of which UCC suffered substantial loss and damage. In regard to warnings, UCC acknowledged that ESB had given certain warnings but maintained that they were wholly inadequate.

7 In its defence, ESB denied liability, claiming inter-alia that the dams actually had an attenuating effect on the flood so that the flood water that came down to UCC in the river was less than would have been the case had the dams not been there. It maintained that it had given adequate warnings in accordance with the obligation it had undertaken. All the claims other claims and a plea of contributory negligence advanced.

8 The flooding case UCC made in the High Court was not that ESB had opened the gates of its dams and released stored water, but that it should have had more space in them to absorb flood waters when they arrived. It alleged that ESB owed a duty of care to UCC and other downstream occupiers to avoid unnecessary flooding. It should, according to UCC, have anticipated the heavy inflow of water that the storm would bring and made sure that there was space in the reservoirs to accommodate a sufficient amount of the inflow as would have prevented a substantial part of the damage UCC suffered.

9 ESB did acknowledge having a duty of care in respect of two risks, but only those two, namely, dam failure and flooding caused by the release downriver of more water than came in to the dam. A major plank of defence was that, far from worsening the flood ESB had improved the situation over that which would have pertained if its stations were not there. It maintained that its statutory function was to generate electricity and, while it endeavoured to avoid spilling water and reduce flooding in a manner consistent with its primary obligation, it was not in any way legally bound so to do. It did not owe a duty of care to avoid unnecessary flooding, as claimed by UCC. There were many reasons why such a legal requirement was erroneous as a matter of law. Neither could it work in practice because it is hopelessly vague, the theory on which it is based is illogical and it is not justified by law.

10 The case was unusual to say the least. The hearing in the High Court occupied some 104 days. The documentary material put before the Court amounted to more than 100 books. The trial judge referred to the cornucopia of law that had been furnished to him. In spite of this intimidating burden, the judge delivered his judgment with remarkable and enviable expedition. The judgment itself is something of an epic, extending as it does to more than 500 pages, in addition to appendices that account for a further 50. It is fair to acknowledge the extraordinarily difficult task that the High Court undertook and discharged in a remarkably short time for such an extraordinary undertaking.

11 The first paragraph of the judgment contains the essence of the judge's finding on the flooding issue.

'In the waning hours of 19th November, 2009, and on into the early hours of the 20th, a great volume of water that had been released through the Lee Dams and then flowed down the Lee Valley, entered Cork City and flooded the campus of University College Cork. The university claims ESB, as dam operator, is liable in nuisance and negligence for the damage caused. ESB claims the university is liable in contributory negligence. Both are correct.'

12 The judgment repeated the quoted statement at paragraph 1188 in the concluding paragraph, adding the Court's decision on the apportionment of liability, attributing 60% liability to ESB and 40% to UCC. UCC succeeded in persuading the High Court that ESB owed it a duty to avoid unnecessary...