In a significant decision, the Court of Appeal has set aside a High Court judgment against ESB as representing “a significant alteration of the existing law of negligence and nuisance” adding that it “would not be consistent with reason and justice”.

ESB had a statutory mandate to generate electricity, in this case by means of hydropower on the river Lee. These proceedings arose following flood damage caused at UCC when ESB released water from its dams on the river following the worst storm in the dams’ history. UCC claimed that ESB had breached a duty of care to avoid unnecessary flooding, that it should have had more space in the dams to absorb flood waters and that flood warnings had been inadequate. ESB denied that it owed a duty of care and argued that its stations had in fact decreased the amount of flooding that would otherwise have occurred.

The issue for the court was whether the ESB was obliged to tailor the operation of its dams and reservoirs, amend its own internal operating procedures and conduct its business so that flooding arising from natural flooding by waters passing through its dams impacted to the minimum extent necessary on UCC’s property which lay downstream.

The High Court had attributed 60% liability to ESB. However, on appeal, following an extensive review of the Irish law of negligence and nuisance, this judgment was set aside and UCC’s claim was dismissed. The Court of Appeal found that the trial judge had conflated avoidability of harm and liability in tort. This ignored the distinct elements which a plaintiff must demonstrate before liability could be established. It also pointed out that notwithstanding the many others downstream from the dams who could be adversely affected by measures taken to prevent flooding at UCC, it sought to impose on ESB a bespoke duty tailored to it exclusively and directed to an obligation to take whatever measures were necessary to obviate flooding particularly of UCC’s buildings at any time when the river was in flood.

In summary, the Court of Appeal found that, if permitted to stand, the High Court judgment would represent a significant alteration of the existing law of negligence and nuisance, would be contrary to the statutory mandate of ESB in respect of electricity generation and would be inconsistent with reason and justice.

It concluded that:

  • The damage arose from a natural event. ESB did not cause the flooding and did not release stored water from its reservoirs. The outflow was less than the quantity of water coming downriver to the dams;
  • Had there had been more space in the reservoirs, a lesser quantity of water would have gone downriver but the High Court erred in holding that ESB had a legal duty to provide such space;
  • ESB did not have a duty in law to avoid unnecessary flooding, to keep the level of water in the reservoirs to optimum economic operational targets or to make anti-flooding storage space available;
  • ESB was not negligent in respect of flood warnings given to UCC;

A claim under the law of nuisance also failed. There was no hazard on ESB’s lands that could be identified for the purpose of being corrected or removed. ESB was no more responsible for the flooding than any other proprietor on the river.1