The Supreme Court has upheld the finding that the Electricity Supply Board (ESB) was liable in negligence for flood damage to University College Cork’s campus during the River Lee flood of 19 November 2009. The Court left unresolved whether UCC was contributorily negligent and whether damages should be recalculated.
In a judgment delivered on 8 July 2020, Mr Justice Peter Charleton said the ESB had assumed responsibility for managing the river through its dams and controls. The duty of care had to be considered alongside the ESB’s statutory function of generating electricity. It did not require the ESB to stop production or prevent all flooding, but required reasonable care to reduce flood risks consistently with that function.
The judgment said the High Court had found that the ESB had weather forecasts, information about ground conditions and river inflows, and could have created reservoir capacity by releasing water earlier. The Supreme Court judgment did not find that the ESB caused the storm or released more water than was flowing into the system. It held that the fact that the flooding arose from a natural event did not, by itself, settle whether the ESB had taken reasonable care in its management of the dams.
The Court rejected the ESB’s argument that its statutory duty to generate electricity exempted it from negligence liability to people and property downstream. It also rejected treating the case as a mere failure to intervene: the ESB was actively controlling the river system for electricity generation, and its public statements and activities had included flood management.
The judgment stressed that reasonable care must be assessed in the circumstances, including forecasts, ground conditions and electricity generation. It cautioned that expert evidence about what could have been done does not, on its own, establish what reasonable care required.
The Court said the remaining issues included contributory negligence and the possibility of recalibrating damages. It expressed no view on whether reasonable care would have required an earlier release that itself caused flooding, or whether damages should reflect the difference between that hypothetical damage and the damage that occurred. Those questions remained for further consideration on appeal.