A Supreme Court judge would dismiss University College Cork’s appeal over damage caused by the November 2009 Cork flood, according to a dissenting judgment delivered by O’Donnell J. on July 8, 2020. He disagreed with the court’s majority, which found the Electricity Supply Board liable for some of the flooding and called for a retrial to assess the damage attributable to that liability.
The judgment is one of five listed in the Supreme Court case. O’Donnell J. said his colleagues considered that the ESB had a special level of control over the source of the damage and owed downstream property owners a duty of care in managing water through its River Lee dams. He did not accept that conclusion and said he would dismiss UCC’s appeal. His judgment does not state the Supreme Court’s final orders or resolve the separate cross-appeal on contributory negligence, which had been adjourned pending the appeal.
The flood occurred overnight from November 19 to 20, 2009, after an unusually wet summer and autumn. The ESB opened sluice gates at the Carrigadrohid and Inniscarra hydroelectric dams as water levels approached or exceeded the levels set for their operation. Discharges at Inniscarra reached 535 cubic metres per second. The judgment records that discharges above 150 cubic metres per second were known to cause flooding of roads and land in the Lee Valley, while levels above 250 could flood buildings. The ESB’s releases did not exceed the water flowing into the dam complexes during the event.
UCC argued that earlier or greater releases could have created more storage before the forecast heavy rain, reducing the eventual discharge and flood damage. O’Donnell J. accepted that, with the benefit of hindsight and the known variables, better management could have reduced the flooding. He said the legal question was whether the ESB was under a duty to take those steps.
The High Court had found the ESB liable, relying in part on its failure to maintain the reservoirs at a target operating level, and reduced UCC’s damages by 40 per cent for contributory negligence. The Court of Appeal overturned that decision. O’Donnell J. considered that the target level could not define a mandatory legal standard and that the proposed broader duty to mitigate flooding was not justified. In his view, the dams were authorised to generate electricity, not to provide flood control, and the ESB had not become legally responsible for controlling the river simply by operating them.
He also rejected the High Court’s alternative reliance on a nuisance principle concerning hazards on land, finding it did not establish a duty to UCC in these circumstances. His conclusion was a dissent; this judgment alone does not establish the Supreme Court’s final disposition of the appeal.