University College Cork – National University of Ireland v The Electricity Supply Board

2020_IESC_38 Clarke CJ, MacMenamin J (Unapproved).pdf
Geographical Area
Case Name
University College Cork – National University of Ireland v The Electricity Supply Board
Case Reference
[2020] IESC 38
Name of Court
Supreme Court of Ireland
Key Facts
Cork city suffered severe flooding on 19-20 November 2009 when the River Lee broke its banks following days of heavy rainfall, causing damage to many properties. The campus of University College Cork (UCC) was severely damaged as a result. As water levels rose due to the bad weather, the controllers of the Lee Dams and Inniscarra Reservoir up-river from Cork (the Electrical Supply Board, “ESB”) allowed the flow of the river through the system to increase by degrees but ultimately discharge at more than 500m3/s occurred. This resulted in severe damage to properties of UCC and a claim of €20 million against the ESB, plus a further €14 million for damages to other properties in Cork city.

UCC, the plaintiff, claimed that the defendant, the ESB, was negligent or guilty of nuisance regarding how it handled the flow of water through the dams during the crucial period of early November 2009. The ESB denied this. In the High Court, it was held that the ESB was liable but that UCC was guilty of contributory negligence which was measured at 60%. This was appealed to the Court of Appeal which set aside the judgment of the High Court and found that the ESB was not liable. The parties then appealed to the Supreme Court.
Decision and Reasoning
The central area of dispute between the parties concerned the extent or scope of a duty of care which the ESB could be said to owe to UCC.

UCC argued that it was foreseeable that any failure of the part of the ESB to manage the Lee Dams could lead to down-river flooding, and that the flooding downstream was proximate to any failure to manage the dams. ESB argued that at no time was the down flow greater than the inflow and that any wrongdoing amounted to what was an omission rather than a wrongful act. UCC sought to argue that the ESB could not be equated to the bystander who simply fails to act to prevent harm being done to a third party The Court referred to numerous New York jurisprudence starting with Iodice. It was held in the Appellate Division of the Supreme Court of the State of New York, held that there was no duty on the part of the state to regulate the outflow from a reservoir to minimise the flooding of lands downstream. Iodice was followed in Elliott v. City of New York (06 C.V. 296, 2010 U.S.Dist. LEXIS 121344.
The Supreme Court found the ESB liable. Four of the five Supreme Court judges agreed, while O’Donnell J dissented.

The court held that the ESB exercised a very significant degree of control over the flow of water in the River Lee. The Court held that the duty of care arising in this case is best expressed as an obligation to assess, having regard to existing conditions and relevant forecasts, the likely range of possible outcomes for downstream land occupiers and to form a reasonable judgment as to how to manage the dams so as to minimise risk to those downstream occupiers. The control of ESB over the river is sufficient to give rise to a duty of care.

The court held that there was a sufficiently close degree of proximity between ESB and UCC as to give rise to a duty of care. It was foreseeable that the incorrect decisions made by ESB could have real consequences for UCC.

A decision on a subsequent cross-appeal on the issue of contributory negligence on the part of UCC remains pending at the time of writing.
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.