The Supreme Court has sent questions about causation, damages and the apportionment of liability in University College Cork’s flood-damage case against the Electricity Supply Board back to the High Court. It upheld some, but not all, of the findings that UCC contributed to its losses and did not set a final percentage of responsibility.
In a judgment delivered by Chief Justice Frank Clarke on 25 March 2021, the Court refused to let the ESB rely on a new argument under section 35(1)(i) of the Civil Liability Act 1961. The ESB had sought to attribute to UCC negligence by its professional advisers, on the basis that claims against those advisers had become statute-barred. Clarke said the argument had not been raised at trial or in the Court of Appeal and that allowing it at this stage carried a material risk of prejudice to UCC. The advisers’ alleged negligence therefore could not be used to establish UCC’s contributory negligence in these proceedings.
The Court upheld a finding that UCC was contributorily negligent for failing to carry out and act on a comprehensive flood-risk assessment. Clarke said a major land occupier in an area with a foreseeable flood risk had an obligation to assess the risk and consider protective measures, even where it had engaged experts to design buildings.
The Court also upheld findings that UCC had not responded adequately to warnings before the November 2009 flooding and had failed to take sufficient care over valuable items stored in vulnerable locations. It said UCC had taken some action after receiving warnings, so it would be unfair to describe it as having done nothing. The item-specific contribution of the storage issue is to be assessed against claims for damage to particular property. The Court did not uphold every basis on which the High Court had found UCC contributorily negligent.
The High Court must now consider whether the causal link between the ESB’s negligence and the damage, as previously assessed, remains sound under the different duty of care identified by the Supreme Court in its earlier appeal judgment. If not, it must reassess causation and quantify damages attributable to the additional flooding caused by the ESB’s negligence.
The High Court must also assess, for each affected property, whether UCC’s upheld contributory negligence materially contributed to the damage there and determine the parties’ relative blameworthiness. The Supreme Court said the High Court must not revisit matters already decided, and any new evidence should be strictly necessary to resolve the limited remitted issues. The High Court President will decide whether the case returns to the original trial judge.