University College Cork v Electricity Supply Board (1)

JurisdictionIreland
CourtSupreme Court
JudgeMr Justice Peter Charleton,Mr. Justice Clarke,O'Donnell J.
Judgment Date13 July 2020
Neutral Citation[2020] IESC 38
Docket Number[Record No. 70/18] [2020] IESC ?? Court of Appeal record number 2016/92 [2017] IECA 82 High Court record number: 2012/129P [2015] IEHC 958
Date13 July 2020

[2020] IESC 38

THE SUPREME COURT

AN CHÚIRT UACHTARACH

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

[Record No. 70/18]

Supreme Court appeal number: S:AP:IE:2018:000070

[2020] IESC ??

Court of Appeal record number 2016/92

[2017] IECA 82

High Court record number: 2012/129P

[2015] IEHC 958

Between/
University College Cork – National University of Ireland
Plaintiff/Appellant
and
The Electricity Supply Board
Defendant/Respondent
Joint judgment of Mr. Justice Clarke , Chief Justice, and Mr. Justice MacMenamin delivered the 13 th July, 2020.
1. Introduction
1.1

Cork City suffered very severe flooding on 19 and 20 November 2009. A principal cause λvas that the River Lee broke its banks, thus subjecting many nearby properties to significant damage. Amongst those who suffered was the plaintiff/appellant, University College Cork (“UCC”), where the campus was severely damaged.

1.2

UCC has claimed that the defendant/respondent, the Electricity Supply Board (“the ESB”), was negligent or guilty of nuisance in the way in which it handled its up-river dams at Inniscarra and Carrigadrohid, thus causing or contributing to at least a significant part of the flooding concerned. On that basis, UCC commenced these proceedings alleging negligence and nuisance against the ESB. The ESB denied that it was guilty of either negligence or nuisance, but pleaded, in addition, that if it were liable, UCC should be found guilty of contributory negligence and thus have its damages reduced.

1.3

In the High Court, UCC succeeded in part, in that the trial judge (Barrett J.), for the reasons set out in a written judgment dated 5 October 2017 ( University College Cork – National University of Ireland v. Electricity Supply Board [2015] IEHC 598) concluded that the ESB were liable but also held UCC to be guilty of contributory negligence, which he measured at 40%.

1.4

Both sides appealed to the Court of Appeal. In a judgment of that Court delivered by Ryan P. ( University College Cork – National University of Ireland v. Electricity Supply Board [2018] IECA 82), the appeal of the ESB in respect of the finding of liability made against it was allowed and thus the judgment of the High Court against the ESB and in UCC's favour was set aside. The Court of Appeal went on to consider whether UCC could properly have been found guilty of contributory negligence, for there remained the possibility of an appeal to this Court in which the question of contributory negligence could again become relevant if this Court were to take a different view on the initial liability of the ESB. The Court of Appeal came to the view that UCC should not have been found guilty of contributory negligence.

1.5

Thereafter, both sides successfully sought leave to appeal to this Court in terms to which it will be necessary to turn. Thus, both the question of the primary liability of the ESB and the potential liability of UCC for contributory negligence are before this Court. However, in the course of case management, it was decided that the Court would initially consider the question of whether the ESB could properly be found to be liable. Clearly, so far as a court of final appeal is concerned, there is no need to go on to consider the question of contributory negligence in the event that there is no sustainable finding of primary liability in the first place. Thereafter, a hearing followed on the question of the liability of the ESB. The question of whether any contributory liability can be attached to UCC has been left over until that issue has been determined and, obviously, will not need to be determined in the event that no liability attaches to the ESB.

1.6

Put at its very simplest, therefore, the issue on this appeal is as to whether the High Court was correct to find that the ESB was liable in negligence and/or nuisance or whether the Court of Appeal was correct to find that it was not. However, behind the broad issue expressed in those simple terms, there are potentially a range of issues which can contribute to a final determination as to whether the ESB is liable.

1.7

In order to understand the issues in a little more detail, it is necessary to at least start with a brief overview of the facts.

3
2. The Facts – An Overview

(a) General Background

2.1

It is proposed to deal with detailed aspects of the facts relevant to the issues which arise on this appeal in the context of the specific issues as they arise. For present purposes, it is sufficient to give an outline of the background facts so as to place those legal issues within their general context.

2.2

The River Lee flows through Cork City, which was built on its floodplain. The city is susceptible to both fluvial and tidal flooding. In 1949, the Lee Hydroelectric Scheme (“the Lee Scheme”), for the generation of electricity by means of hydraulic power, was approved for construction by the Minister for Industry and Commerce, under the Electricity (Supply) (Amendment) Act 1945 (“the 1945 Act”). The scheme as approved was built between 1952 and 1957.

2.3

The Lee Scheme comprises of two dams (“the Lee Dams”), each impounding a reservoir of water. The power station, dam and reservoir at Inniscarra (“the Inniscarra Dam”) are located approximately 14km upstream of Cork City. Approximately 13km further upstream, there is a second power station, dam and reservoir located at Carrigadrohid (“the Carrigadrohid Dam”). The Lee Dams work together for the most part and outflow from the Carrigadrohid Dam is discharged directly into the Inniscarra Dam system. The Hydro Control Centre in Wicklow is responsible for the normal operation of the Lee Stations. However, management of water levels and flood management are dealt with from the control room at Inniscarra Power Station under the Hydrometric Officer's instruction.

2.4

The operational rules of the Lee Scheme are contained in the Lee Regulations (“the Regulations”) which is an internal ESB document the first version of which was published in 1969. The Regulations have been subject to a number of subsequent revisions and, it should be noted, do not have statutory standing. The Regulations contemplate, amongst other things, the operation, management and control of the Lee Dams both in normal conditions and in flood events and also contain rules, procedures and guidelines to be applied in respect of the water levels of the reservoirs, the management of water discharges and flood management.

2.5

The Lee Dams are classed as “Category A” dams, meaning that a breach of such a dam would endanger the lives of a downstream community. Dam integrity requirements are therefore fundamental to the Lee Regulations.

2.6

The Lee Regulations outline three separate levels against which the water in the reservoirs can be measured. The first of these is the “Maximum Normal Operating Level”, referred to as “MaxNOL”, which is defined as meaning “the highest level allowable in the operation of the reservoir under normal operating conditions”. It can only be exceeded under special flood instructions. Once MaxNOL is reached, water must be discharged in accordance with the Lee Regulations, for to ordinarily allow reservoir storage above MaxNOL is considered an unacceptable risk to dam safety, as the danger exists of dam failure resulting from spilling of large quantities over the top of the barrier. The Target Top Operating Level (“TTOL”) for both Lee Dams are also prescribed in the Lee Regulations. This level is defined as the “top operating level which the station shall endeavour to maintain during non-flood conditions” and, while it varies during the year to accommodate seasonal weather conditions, it is always lower than MaxNOL. The “Minimum Normal Operating Level”, referred to as “MinNOL”, is the lowest level at which the normal operation of the plant is possible.

2.7

The Regulations prescribe how discharges are to be managed during floods, in order that the Lee Dams are capable of dealing safely with floods, by providing that specified amounts should be discharged at specified reservoir levels. Tn order to understand the appropriate procedures, it is necessary to start by saying a little about the concept of “spilling”. Essentially, all water entering into the system of either dam passes to the downstream side of the dam concerned either by passing through the turbines and thus generating electricity or by being “spilled”, that is permitted to pass through gates designed to allow for the release of water beyond that which passes through the turbines.

2.8

A “flood period” begins when, in the judgment of the Hydrometric Officer, conditions and all available information indicate that spilling may be necessary. During a flood period, the Regulations provide that “the top priority is the proper management of the flood to avoid any risk to dam safety”. General hydroelectric generation practice requires that dam integrity be ensured by following a mandatory discharge regime at specified levels. Discharges are generally made through the turbines, as part of normal station operations, although in advance of a potential flood, water may also be “spilled”.

2.9

Based on operational experience, a discharge of up to 150 m 3/s from the Inniscarra Dam is considered by the ESB to be that which will remain “in-bank” (that is within the banks of the river) and thus flooding should not result. Discharges greater than 150 m 3/s are likely to breach the river-channel capacity and cause flooding. For that reason, the Regulations require that discharge should not exceed peak in-flow. Thus, the assumption behind the Regulations is that it is permissible when required in the appropriate circumstances to discharge more water than is coming into the system but only where that discharge will be not more than 150 m 3/s. In that context, it is worth noting that the normal flow through the turbines when they are operating to...

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