Supreme Court of Ireland Decisions

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2018:000070

Clarke CJ

O’Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

BETWEEN/

UNIVERSITY COLLEGE CORK,

NATIONAL UNIVERSITY OF IRELAND

APPELLANT

- and -

THE ELECTRICITY SUPPLY BOARD

DEFENDANT/RESPONDENT

Judgment of O’Donnell J. delivered on July 8th, 2020.

Introduction

1.       I regret that I have come to a different conclusion in this case to that arrived at by my colleagues. There is, however, I believe, a large area of agreement between us as to the general analysis of the legal issues, and, in particular, the approach to be taken to a novel claim as to the existence of a duty of care. As I understand it, we agree that there is discernible in the law of negligence a broad principle that there is, in general, no duty of care to prevent harm being caused to an individual by another person or thing (and, in this case, the natural flow of a river), and we also agree that such a general principle, even broadly expressed, is subject to exceptions themselves quite broad, and whose boundaries are subject to legitimate dispute. The point of departure between us is that my colleagues consider that this case comes within one such exception, namely that the defendant had a special level of control over the source that caused the damage to the plaintiff, such that it was appropriate for it to owe a duty of care to persons downstream in relation to the management of the flow of water through the dams which it operated on the River Lee. The majority of the court would find that the ESB was in breach of that duty in a certain limited respect. That finding departs from the basis upon which the High Court judge found in favour of the plaintiff, and therefore means that the ESB is liable for some, but not all, of the flooding to the plaintiff’s premises. It will accordingly be necessary both to determine the cross-appeal on contributory negligence, which has been adjourned pending the outcome of this appeal, and thereafter for there to be a retrial limited to the assessment of the damage that can be attributed to the ESB on the basis of the findings of the majority of this court.

2.       I recognise fully the force of the reasoning leading my colleagues to this conclusion, and I readily acknowledge that it is a difficult matter. However, while agreeing with my colleagues as to the overall analysis of the law, I am unable to agree with the limited finding of liability. That, in itself, would not require a substantial judgment. However, the general issues are both difficult and important, and accordingly I have sought to set out my understanding of the major issues, in the hope that this will be of some more general application, and which approach is, as I understand it, agreed, at least broadly, by my colleagues. Setting out my approach to the general law will also lead to the reasons which regrettably have led me to a different conclusion to that of my colleagues, in the particular circumstances of this case. 

The November 2009 Flood

3.       During the evening and night of the 19th to the 20th of November, 2009, the River Lee flooded Cork City. As a matter of history, Cork City is prone to both fluvial and tidal flooding, but this particular event was one of the most serious floods the city has experienced. The immediate cause of the flood was the fact that the ESB opened sluice gates in a dam operated by it on the river, and allowed the river to flow through the dam, in circumstances where the waters stored in the dam were approaching and exceeding the maximum level considered safe. A large number of premises were flooded. University College Cork (“UCC”), which has a number of buildings in the city close to the river, was particularly badly hit. UCC now brings these proceedings at the instance of its insurers. The proceedings raise important and difficult issues of law.

4.       The River Lee is known to be prone to rapid “flashy” floods. The ESB operates two hydroelectric generating dams on the river; one at Carrigadrohid, 27km west of Cork city; and the other 14km downstream at Inniscarra, 13km west of the city. The dams were built between 1952 and 1957 as part of the hydroelectric generating scheme under which 13 dams and nine hydroelectric generating stations were built on five rivers within the State: the Shannon, the Liffey, the Lee, the Erne and the Clady. By international standards, the dams are relatively small in comparison with, for example, hydroelectric schemes in the UK with similar “heads”, i.e. the difference in height between upstream/downstream levels, and their storage capacity is limited. Carrigadrohid reservoir covers an area of about 9km2 and has a capacity of 16.2 x 103  cubic metres at a water level of 64.50m. Inniscarra reservoir covers an area of about 5km2 and has a capacity of 16.2 x 103 cubic metres at a water level of 49.50m. The two dams are constructed in a cascade formation so that the discharge from Carrigadrohid forms part of the in-flow to Inniscarra. The relative size and capacity of the dams is illustrated perhaps by the fact recorded in the High Court judgment that at average annual rainfall rates and no discharge, the reservoirs would fill from empty to the ESB determined maximum in 18 days for Carrigadrohid and 26 days for Inniscarra.

5.       In addition to the management of the water levels for hydrogeneration, the ESB has an agreement to sell fresh water to Cork County Council to supplement fresh water supply. It has also agreed to protect wetlands in the Gearagh national nature reserve by maintaining the level at Carrigadrohid so far as possible at a minimum of 63.40m in the summer months between April and October. Finally, the ESB is required to convene a meeting with Cork County Council and the Department of Fisheries when water level reaches 46m at Inniscarra to ensure protection of fisheries. None of these matters are suggested, however, as significant in leading to the flooding in November 2009. The basic facts, however, that the topography of the catchment area of the Lee and its tributaries in West Cork means that the rivers are prone to “flashy”  flooding, the high rainfall (particularly in Autumn and Winter months) and the relatively small dams and reservoirs with limited storage, set the essential boundaries and constraints within which the events of the 19th to the 20th November, 2009, must be analysed.

6.       November is normally a month of heavy rainfall in Ireland, and in particular in the south-west, but November 2009 came after an unusually wet summer and autumn, which had the effect that the rivers were full and the catchment area of the Lee and its tributaries was saturated. The judgment of the Court of Appeal noted that the level of in-flow in the critical period into the reservoir at Carrigadrohid was unprecedented in the history of the hydroelectric generating stations. Water in both dams was approaching the ESB’s maximum level. The ESB, in accordance with its own regulations which it had developed for management of the stations on the River Lee, discharged waters through sluice gates at both dams. These discharges were substantial and can be said to have led to, and thereby caused, the flooding experienced by UCC and other properties. The discharges reached a high point of 535 m³ per second (m3/s) at 22.30pm on the evening of the 19th November. The significance of this figure is that the ESB, and anybody else who was interested, knew from flood inundation studies that discharges of more than 150 m³/s through the dams would cause flooding of lands and roads in the Lee Valley, and that discharges of in excess of 250 m³/s would lead to flooding of premises. However, substantial as the discharges from the dams were on the evening of the 19th to the 20th of November, they were never greater than the level of in-flow coming into the dam complexes. To that extent, the ESB argues that it only permitted the river to pass through the dams in circumstances where it could not store the water within the dams because it was already above the maximum safe level. On the other hand, UCC say that the ESB did something – discharge water - which damaged their premises in circumstances where, moreover, if it had done something which it failed to do - discharge water earlier in increased quantities –  the flooding, or at least some of it, could have been averted. UCC have commenced these proceedings seeking to recover damages from the ESB for the damage to its property. A large number of other claims are awaiting the determination of these proceedings.

7.       Very detailed evidence was given and arguments advanced, and it will be necessary to address them in some detail. But the key issue in this case can be reduced to this: did ESB owe a duty of care to UCC to take steps that could have prevented some damage caused by the flooding on the night of the 19th to the 20th of November, 2009?

Overview

8.       Before considering the precise facts that were established in evidence as to the events of mid to late November 2009, it is in my view necessary to attempt to understand how dams work and, in particular, how hydroelectric generating dams operate, and place that understanding within its legal context before addressing the facts and the admittedly difficult legal issues this case gives rise to.

9.       The generation of electric power through hydroelectric stations was one of the great industrial achievements of the newly independent State. The rate of flow, and consequently both the energy capable of being generated by a river, and its potential for flooding, fluctuates during the year having regard to climatic conditions. In any river, the rate of flow is a function of the accumulated rainfall feeding into the river and its tributaries, the degree of deforestation or development upstream, the topography of the river and, in particular, the river channel, its depth and width, and also developments downstream, which either increase or, more likely, reduce flood plains, as well as flood defences. 

10.     A dam can be constructed on a river and will hold back the flow of water in a form of reservoir for a number of different purposes: to create a reservoir to allow a continued supply of drinking water; to feed canals or irrigation networks; to prevent flooding; or, as in this case, to generate electricity. While there was some debate in the High Court as to whether it could be said that the Lee Scheme was a mixed-use scheme, the High Court judge found, correctly in my view, that the sole function of this dam was the generation of hydroelectric power. This is a particularly important finding, the importance of which was not, perhaps, particularly appreciated in the High Court.

11.     Any dam operates to increase the capacity of the river. It creates, in effect, an artificial lake through which the river water flows, is stored, and is released. In the case of a hydroelectric dam, it is released downstream through turbines, forcing them to turn, and thus providing the power to generate electricity. The storage capacity allows a more consistent flow of water through the turbines, which permits the generation of electricity all year round.

12.     It is obvious that the dam operator, in this case the ESB, does not control the supply of water to the dam. The capacity of the reservoir is finite. In an unusually dry period, the levels of the reservoir may be reduced to close to zero and no power may be generated. Conversely, the weather conditions may be such that the volume of water in the system is more than can be discharged through the turbines, and inevitably it will rise in the reservoir and continue to do so. If no action was taken in such circumstances, it would flow over the top of the dam (“over topping”), which would damage the mechanism of the dam and, in an extreme case, put the dam structure at risk. Dam failure would lead to an immediate uncontrolled release of all the stored water behind the dam, with potentially catastrophic effects on lives and property downstream.

13.     For this reason, an important part of the engineering of a dam and its management involves identifying a possible maximum level below the crest of the dam which the water should not be allowed to exceed. In the case of the ESB, this was described as the maximum normal operating level, known as MaxNOL. When MaxNOL is reached, it is necessary to discharge or, as it is described, “spill” water through sluice gates, bypassing the turbines and thus losing the opportunity of generating electricity, the object for which the dam was built. The justification for this is the safety of the dam and, consequently, persons and property downstream. There is also a minimum normal operating level, MinNOL, below which the turbines cannot, or should not, be permitted to operate. Normally, the dam is intended to operate in a relatively narrow band between these two figures. Finally, and perhaps more controversially in this case, the ESB regulations also identify TTOL - the Target Top Operating Level. There was controversy in the High Court as to whether this could be properly considered a level like MaxNOL or MinNOL, or rather an economic band of activity. The High Court and Court of Appeal considered that TTOL was a level, as indeed it was described in the ESB’s Regulations: the top operating level which the station should endeavour to maintain during non-flood conditions. TTOL is adjusted to take account of seasonal fluctuations such as low flow in the summer and likely flooding in the winter. As a result, TTOL is lower in winter (since it is anticipated that there will be a plentiful supply of water coming into the dam) and higher in summer. Mr. O’Mahony, the ESB’s chief engineer, described TTOLs as “basically economic targets, whose main purpose are to provide for optimising availability for power generation and minimising unnecessary spilling of water from the reservoirs.” This is logical. If the reservoir is kept at a lower level (TTOL), it means that it is correspondingly less likely to reach or exceed MaxNOL, which would require spilling and the loss, from the generator’s point of view, of a useful resource. Each of these levels is reviewed by the ESB from time to time in the light, presumably, of experience and international developments.

14.     It is important that the target that TTOL represents was to be achieved, if at all, by the operation of the turbines, that is, by the flow of the water through the dam but not otherwise. In particular, it was not anticipated that it would make sense to “spill” water to achieve TTOL. It follows that the ability to achieve TTOL was limited by the capacity of the turbines and the in-flow of water into the dam. The dams on the River Lee are relatively small, and the reservoir has a relatively small capacity, so it appears the Inniscarra dam, for example, only reached TTOL once in the previous six years. At the relevant time, MaxNOL had been set by the ESB’s Lee Regulations at 64.5m for the Carrigadrohid dam. TTOL was 62m in winter and 64.2m in summer. At Inniscarra, the regulations provided for a MaxNOL of 50m, but in the aftermath of the flooding event in December 2006, the chief civil engineer issued an amendment which had the effect of commencing mandatory spilling at an earlier point of the flood, i.e. 49.5m instead of 50m. During non-flood periods, however, the reservoir could still be allowed to rise to 50m without a requirement to discharge water through the spillway gates. TTOL was 47.5m in winter and 49.5m in summer.

15.     The nature of a hydroelectric dam may even be structurally different from a dam designed, for example, for flood alleviation purposes. A hydro power reservoir operates within a relatively narrow band of water levels, and the commercial objective of the scheme is to utilise storage to maximise power. As the High Court judgment put it, a flood-control reservoir maintains an empty volume for storage or flood flows, whereas a hydropower reservoir maintains high water levels to generate electricity. The difference in function can thus manifest itself in the form of the dam as constructed. Accordingly, water discharge outlets in a pure flood-control dam are generally located at a low level to permit greater emptying. In contrast, in a pure hydropower dam, outlet gates may be located near the dam crest, limiting the ability of the dam to reduce water levels other than by turbine usage. It also follows that a hydroelectric scheme will treat the water in a reservoir differently from a flood-controlled scheme. In a hydroelectric scheme, the water is a valuable resource, and in circumstances where, as in the River Lee, an arrangement is made to sell some of the water for drinking water supply, it is sold at a price that reflects that it is a resource which would otherwise be used profitably. 

16.     It follows from this that some flood alleviation is a natural consequence of the hydroelectric generation. The very existence of the dam on the reservoir increases the water capacity of the river by the storage capacity of the reservoirs. This might be described as passive flood alleviation. It may also be that some flood alleviation can be achieved compatibly with the hydroelectric function so that, for example, within the storage capacity of the reservoir, the operator can hold back some of the water which enters the reservoir, and which otherwise might flow down the river in flood conditions. But there is a natural and unavoidable tension between operating a dam reservoir for hydroelectric generation and operating it for flood alleviation. This was well explained in the High Court judgment at para. 105 as follows:-

          “Flood alleviation and hydroelectric generation are sometimes compatible, sometimes in conflict. Mr. Stevenson, an expert witness called by UCC agreed when counsel for ESB suggested that “there is necessarily a tension between the object of generating hydroelectricity and the object of optimum flood management” (Transcript, Day 52, p. 56). This tension arises because “hydro depends on stored water and flood alleviation depends on empty space”.  (Transcript, Day 52, p. 56). Mr. Stevenson also accepted the suggestion of counsel for ESB that whenever a flood is apprehended the “theoretical tension between flood management … and hydro generation … becomes a practical conflict.” (Transcript, Day 52, p. 57). Mr. Faulkner, an expert witness called by UCC, perhaps what matters best during cross-examination: “I wouldn’t say that, you know, the two are always opposed or acting in opposite directions, but there is obviously a tension there.” (Emphasis in original).

17.     It is useful to place the operation of this dam within the framework of the general law. Rivers were from an early time important in the development of agriculture and commerce and, consequently, wealth. As a result, the common law was required to regulate the rights and duties of people in respect of rivers. In general, the rights and duties of property owners adjoining a river is, and has been, regulated by riparian law. That law is not determinative of this case since, while UCC has some property adjoining the river, not all its properties are so located. However, riparian law is a useful point of reference, since it would, for example, be surprising if a dam operator owed greater obligations to properties and persons distant from the river than to those adjoining the river and with rights of access to and use of the waters. 

18.     A dam operator will normally own land on either side of the river and therefore the river bed. The general obligation of a riparian owner is to permit the flow of the river past his property and not to interfere with it so as to cause flooding upstream or to deprive a downstream owner of the natural flow of the river. Within those basic obligations, a riparian owner can make what is described as normal use of the river, including damming it for the purposes of a mill or to generate power. In such a case, however, the river must still be allowed to flow so that the downstream owners can still have access to and use of the river. A riparian owner can generally build flood defences on his or her land, even though the consequence may be that land downstream is flooded. Conversely, a riparian owner can remove walls or banks from his own land, even though the consequence may be that adjoining land becomes flooded through the riparian owner’s land. 

19.     As already observed, riparian law recognises the entitlement of a riparian owner to make normal use of the river by erecting a dam to harness the power of the river for purposes of, for example, a mill. But there are inevitable uncertainties as to what precisely is contemplated by a normal use of a river. In the case of the erection of a large scale industrial dam like that on the Lee, it is, as a matter of practicality, necessary to have the works authorised by statute. The Electricity (Supply) (Amendment) Act 1945 specifically permits the ESB to acquire property, including fishing rights. By s. 34, the ESB is given power to control and affect “the level of any lake, pond, or other water on or connected directly or indirectly with the river in or on which the works are situate”.

20.     The legal effect of statutory authorisation is that the carrying out of works specifically authorised by statute does not itself give rise to any cause of action, even if it causes damage or injury to others, if done without negligence. If, however, the statutory function is performed negligently, then that can give rise to a cause of action since, while parliament can be taken to have authorised the harm necessarily caused by works deemed of public importance, it cannot be taken to have authorised negligence and any consequent damage which was not necessary.

21.     This principle is illustrated by the leading Irish case of Geddis v. The Proprietors of the Bann Reservoir [1878] 3 A.C. 430 (“Geddis”). A body known as the Proprietors of the Bann Reservoir were empowered by a private Act of Parliament to create a reservoir with a view to collecting water from a number of tributaries and delivering it to the Upper Bann to facilitate the linen works which had been established along that river. Accordingly, they diverted water into a reservoir and then cut a new channel to connect water to the river bed of one of the tributaries which had been diverted, thus delivering the water to the Bann. The tributary was, however, quite narrow, and the amount of the water now being discharged down it was considerable. The defendants dredged it on a number of occasions, but did not do so regularly, with the effect that the flow of the water led to a silting on the river bed and ultimately to overflowing and flooding of lands, including those of the plaintiff, and damaging his crops. The plaintiff claimed damages and succeed in the Court of Queen’s Bench in Ireland but the verdict was reversed in the Court of Exchequer Chamber. He then appealed to the House of Lords, where he was represented by no less a figure than Sir Charles Russell. The House of Lords unanimously allowed the appeal, with Lord Blackburn stating the principle in a way which came to be repeated unquestioningly in subsequent years:-

          “I take it, without citing cases, that it is now thoroughly well established that no action will allow for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently.”

          It was indeed this principle which was relied on unsuccessfully by the plaintiffs in the case of East Suffolk Rivers Catchment Board v. Kent [1941] AC 74 (“East Suffolk”), a case to which it will be necessary to return in greater detail later.

22.     If a dam were to collapse and the waters escape, then, as I apprehend it, that would probably give rise to liability without proof of negligence under the principle in Rylands v. Fletcher [1868] LR 3 HL 330 (“Rylands v. Fletcher”), which itself involved the escape of water from a reservoir brought onto the defendant’s land. Similarly, if the operator was to discharge more water from the dam than came into it, causing damage to a neighbouring property, that might give rise to a claim in nuisance, at least in respect of immediate adjoining properties, again without having to establish negligence. This sits comfortably with the principle of riparian law that a riparian owner is obliged to permit the natural flow of the river, and, by inference, incurs no liability as a result for any damage done by that flow. The holding back of water by a dam so that the river is forced through it by turbines for the generation of power is not inconsistent with that principle and, in any event, in this case is specifically authorised by statute. Any release of water from the reservoir increasing the natural flow of the river may give rise to liability, however, if damage ensues.

23.     These broad principles are not in dispute. What remains in issue, and what was hotly contested in this case, is whether the dam operator is under a duty, in the particular circumstances of this case, to take steps to release or “spill” more water than the river was delivering to the dam, with a view to creating storage space within the dam, and thus avoiding the worst effects of the flooding as a result of heavy rainfall that in mid-November was reasonably anticipated and/or the heavy rainfall of the 19th-20th of November that was forecast reasonably consistently from earlier that week. 

The Lee Regulations

24.     The document entitled “Regulations and Guidelines for the Control of the River Lee” (“the Lee Regulations”) does not have any statutory or other legal status. The Lee Regulations are instead the internal guidelines promulgated by ESB and regularly updated in the light of increased knowledge and experience. The first version was issued in 1957 after the opening of the dams, and the most recent version prior the flood had been issued in 2003, subject to one modification issued by the chief engineer in 2007 pending formal revision of the  Regulations, after a flooding event in 2006.

25.     There had been dam improvement works in 1991 at Carrigadrohid by the introduction of a new spillway, with the result that it was considered that the dams operated to a design flood of 1 in 10,000, that is that the type of flood which would create a risk of dam failure would occur once in 10,000 years. The general approach to flooding in the Regulations provided for the spilling of water at MaxNOL, which was adjusted in the light of the experience of the dams. The purpose of the spilling of water was to maintain the integrity of the dam itself. It was a fixed point of the Regulations that peak discharge at Inniscarra could not exceed peak in-flow during the flood period. Thus, the principal effect that the dams had in mitigating flooding was by the storage available in the dams. Once, however, MaxNOL was reached, spilling commenced which had, in essence, the effect of allowing the flow of the river through the dams unconstrained or limited by the storage in the dams, which had now reached capacity. All the Regulations then provided was that any such spilling should not exceed in-flow, and the discharge should not therefore add to the flow of the river. 

26.     In the revisions made to the Regulations in 2000, a significant adjustment was made to permit what is described as discretionary spilling, that is, the discharge of waters through the sluice gates or spillways before MaxNOL has been reached. However, this option was only possible or permissible when the information indicated that spilling (and therefore MaxNOL being reached) would be likely within hours or days. In other words, it would be permissible to commence the spill before MaxNOL was actually reached, but only when it was clear it would be reached, and spilling would be necessary. In effect, it was permissible to spill the water that would have been spilled in any event.

27.     The 2003 Regulations set MaxNOL for Carrigadrohid at 64.5m and for Inniscarra at 50m. Subsequently, in 2007, following a flooding event in 2006, a minor alteration was made to this by direction of the chief engineer pending a formal revision of the Regulations. Accordingly, MaxNOL at Inniscarra was reduced to 49.5m during flood conditions, but could remain at 50m outside a flood period. TTOL was set out by reference to a chart at Appendix 6 to the Regulations which showed increased TTOL for the summer months and a reduced figure for the winter months.

28.     The Regulations contain the definition of TTOL already set out, but which it is worth repeating at this point:-

          “The “Target Top Operating Level” is the top operating level which the station shall endeavour to maintain during non-flood conditions. The Target Top Operating Level varies throughout the year to take account of seasonal factors such as low flows in summer and likely floods in winter.  See drawing … “River Lee Guidelines Levels” in Appendix 6”.

          MaxNOL is defined as “the maximum normal operating level”, that is the highest level allowable in the operation of the reservoir under normal operating conditions. It could only be exceeded “under special flood instructions.”

29.     The introduction to the Regulations provided that the spilling instructions had been modified to deal with extreme floods. The Regulations, in conjunction with the completed dam improvement works, meant that the Carrigadrohid and Inniscarra dams would be capable of dealing safely with floods having expected annual probability of occurrence of 1:10,000. It was also provided that the Regulations would be applied when the water levels reached MaxNOL at Carrigadrohid or Inniscarra. When the dam approached those levels, however, the hydro manager, on the advice of the hydrometric officer, “has the option of spilling in order to increase storage and/or to reduce flooding at a later stage. The peak discharge shall not be allowed to exceed the peak in-flow during the rising flood”. 

30.     Paragraph 1.2 of the Regulations defined the flood period as beginning when, in the judgement of the hydrometric officer, conditions, and all available information including weather forecast, rainfall (including snowmelt), available storage, and data from the Flood Model “are such that spilling may be necessary and continues until he/she is satisfied that normal conditions prevail”. Paragraph 2.2 provides that during the flood period as defined, “the top priority is the proper management of the flood to avoid any risk to dam safety. All other factors such as efficiency of generation, system requirements, environmental, social and legal, economic considerations are secondary”. It was specifically provided at para. 2.2(c) that:-

          “the hydro manager, on the advice of the hydrometric officer, has the option of spilling below the levels prescribed in the regulations for spilling, in order to increase storage, and/or to reduce flooding at a later stage. This option may be exercised when all the available information indicates that spilling will be likely under the regulations within hours/days. However, the peak discharged from either reservoir shall not be allowed to exceed the peak in-flow to the catchment during the rising flood… this guideline may be applied even if it results in inundation of land, car parks and roads, if in the judgment of the hydrometric officer, it reduced the effect of subsequent flooding.”

31.     The guidelines also provided that where it was proposed to spill from the dam at Inniscarra, the controller would notify downstream residents and interested parties of the intention to spill. A list was to be kept in the control room at Inniscarra and would be updated from time to time. If the total discharge was such that roads were likely to be flooded, i.e. if it was greater than 150 m³/s, a more general public warning was to be given through the relevant authorities in the media. Again, a separate list of contact numbers was given for this purpose. 

32.     UCC’s case has been presented with the assistance of considerable professional expert evidence, but in essence, and perhaps unsurprisingly, it resolves itself to the contention that either the starting levels in the reservoirs were too high coming into the November period, or the ESB ought to have made greater use of its power of discretionary spilling, and/or allowed the waters to exceed MaxNOL at both dams, or held back more water at Carrigadrohid, or, finally, that the Regulations were too inflexible in limiting the circumstances in which there could be spilling or discharge. It is obvious that if any of the above steps had been taken, there would have been more storage in the Inniscarra dam when the forecast heavy rain of the 19th of November arrived, with the effect that the level of discharges would have been less, and consequently the flooding reduced. The core question in this case is whether the ESB owed a duty of care in the circumstances to UCC and, if so, whether it breached it in the sense that a reasonable dam operator would not have acted in the way ESB did in one or other of these respects.

The week of the 16th of November

33.     Keeping in mind the figures for MaxNOL of 64.50m at Carrigadrohid and 49.5m during a flood period for Inniscarra, it is now possible to consider the course of events in the critical week in November. In doing so, it is useful to also have in mind two other key figures already mentioned: if the total discharge through Inniscarra dam was in excess of 150 m³/s there would be flooding of property and roads, and if the total discharge exceeded 250 m³/s, there would be flooding of buildings. 

34.     As already discussed, the period between June and November was unusually wet. November itself was known to be a rainy month, but in this case it rained almost every day up to and beyond the 20th. In the immediate period leading up to the flood event on the 19th and the 20th of November, there was a period of heavy rainfall overnight on the 15th and the 16th, and another one starting on the night of the 17th and continuing with only a short break during the day on the 18th and all day on the 19th, with a prolonged peak from midnight to early afternoon on the 19th. Between approximately 65 and 68 mm of rain fell in the reservoir catchment area in the 24 hours of the 19th. This was not a case, however, of an extremely large single rainfall event: in the past there had been heavier periods of individual rainfall. It was, however, a case of a consistent, persistent and sustained rainfall event coming after an unusually wet summer and autumn.

35.     On Monday the 16th at 1 o’clock in the morning, Mr. Brown, the ESB’s hydrometric officer at the Lee Dams, was awake at home. It was raining heavily. He rang the control centre to ascertain the water levels. Carrigadrohid was at 64.16m against MaxNOL 64.5m and winter TTOL 62m (summer TTOL 64.2m). The water in-flow was already 166 m³/s. Inniscarra was at 49m (against MaxNOL 49.5m, and winter TTOL 47.5m and summer 49.5m). Accordingly, as this critical period commenced, both dams were approaching MaxNOL, which was no doubt why Mr. Brown, when he woke and heard the rain, rang to check. Having received reports of further rain, he decided that they should “man up” the dam, and he left home and arrived at the dam at around 2.45am with other ESB officials. By then, the level had increased slightly at Carrigadrohid to 64.26m (MaxNOL 64.50m) and at Inniscarra to 49.10m (MaxNOL 49.5m). The flow of water in Carrigadrohid was running at 167 m³/s. Mr. Brown formally determined a flood event was presenting, and accordingly decided to spill water from Inniscarra at an initial rate of 14 m³/s which, together with the water then being passed through the turbine, gave a total discharge at Inniscarra of 120 m³/s. 

36.     Pausing at this point, it is apparent that at the starting point in this critical week, the dam operators had very little room to manoeuvre. UCC is critical of the fact that the levels of the dams were so high at this point (and it will be necessary to consider this argument later), but if these levels are accepted as the starting point (and, as a matter of fact at least, they must be), water was flowing into the dams at a higher rate than flowing out, the levels in the reservoirs were consequently rising quite rapidly towards MaxNOL, and water would have to be spilled to prevent the level rising further, and at a rate and in a quantity where it seemed apparent that some flooding would necessarily occur. It is also apparent that at this point the ESB were proceeding in accordance with the Lee Regulations, and in particular Clause 2.2, which permitted discretionary spilling when it was apparent that MaxNOL would be reached within hours/days, as was clearly the case here. 

37.     At 07.15am on the 16th, levels Carrigadrohid had risen to 64.55m, and just exceeded MaxNOL. At 7.30am, Mr. Brown increased the discharges from Inniscarra to 150 m³/s. The water level at Inniscarra was 49.13m (MaxNOL 49.5m). At 7.50am, the ESB issued a flood warning and contacted those persons (including UCC) who had asked to be included on the list held at the dam.

38.     At 12 o’clock, water levels at Carrigadrohid had crested at 64.70m (MaxNOL 64.5m) and at Inniscarra 49.3m (MaxNOL 49.5m). Discharges were continuing from Inniscarra at 150 m³/s. Water levels crested at Inniscarra at 7pm, and reduced thereafter. 

39.     By Monday evening, the levels of both reservoirs were very high, spilling had commenced at Inniscarra and had brought the levels below MaxNOL at Carrigadrohid and maintained it below MaxNOL at Inniscarra. The weather forecast available to ESB was predicting a significant, if reduced, rain event for Thursday the 19th in particular. 

40.     By 15.30pm on the 17th, the water levels were now 64.15m at Carrigadrohid (MaxNOL 64.5m) and 49.24m at Inniscarra (MaxNOL 49.5m). Throughout this period, discharges from Inniscarra were maintained at 150 m³/s, the maximum level which did not cause flooding. 

41.     On the morning of the 18th, another 20mm of rain had fallen, with the result that water levels were rising again. Spilling continued at Inniscarra so that discharges were maintained at 150 m³/s. The level at Carrigadrohid had risen to 64.31m by 17.00pm. 

Thursday the 19th

42.     At midnight, Carrigadrohid had risen again to 64.47m, only 0.03m below MaxNOL, and was rising at 5cm per hour. Inniscarra was at 48.34m, but was receding slowly at 3cm per hour, with discharges continuing at 150 m³/s.  Thus, as Thursday dawned, both dams were close to MaxNOL, with a significant rain event forecast. 

43.     At 08.00am, ESB increased discharges from Inniscarra to 160 m³/s. In accordance with the regulations, a more general public warning was now issued to relevant authorities and the media. The emergency services of the city and county councils were contacted, as were local radios and RTÉ. The message given was in the following terms:-

          “ESB Lee Stations at Inniscarra dam has issued a severe weather alert, the areas at risk of flooding are the Inniscarra and Carrigrohane/Lee Road and areas downriver of Inniscarra Dam.”

44.     At 10.30am that day, another round of calls were made to people on a list, and a further public warning was issued. The warning given was along the following lines:- 

          “This is Gerry Brown from ESB at Inniscarra Dam. We are issuing a flood warning due to heavy rainfall in the catchment. We will be increasing discharge from Inniscarra Dam during the day”. 

45.     By 16.00pm, ESB were discharging approximately 225 m³/s from the reservoir. Levels were increasing quickly. Discharges were approaching 250 m³/s. The ESB issued a further warning both to individuals on the list and to the general authorities and the media:-

          “I am calling from ESB Inniscarra Dam to inform you that ESB will be increasing discharges from the dam on numerous occasions throughout the evening and this is a large, bad flood.”

18.45 pm

46.     The ESB considered that it was approaching the peak of the flood. In-flows at Carrigadrohid had receded from 675 m³/s to 533 m³/s. The chief engineer was contacted and agreed to permit the level at Carrigadrohid to rise above MaxNOL so as to avoid greater in-flow to, and consequently greater discharges from, Inniscarra. It appears Inniscarra dam was at that point close to 50.85m (MaxNOL 49.5m). Mr. O’Mahony, the chief engineer, agreed to the holding back of water at Carrigadrohid because, he said, the safety of the Carrigadrohid dam was not immediately compromised as water at that level would flow through auxiliary spillways as the level rose, and there were no immediate dam safety risks. However, taking this step would allow less discharge from Inniscarra (and consequently less flooding). The trial judge attributed particular significance to this event showing, he considered, deviation from the Lee Regulations, although it is fair to say no criticism has been directed to the wisdom of the particular decision. On the contrary, it is suggested, perhaps, that greater deviation from the Regulations ought to have taken place at an earlier stage in the process. It is also fair to say that the Regulations set out at paras. 24-32 above, defined MaxNOL in terms that it could be exceeded “under special flood instructions”.

47.     At 20.00pm on the 19th, the in-flow at Carrigadrohid peaked. The level at Inniscarra was 50.79m (MaxNOL 49.5m), and discharges in accordance with the Lee Regulations were approximately 47.5 m³/s. Water levels at Carrigadrohid were 65.34m (MaxNOL 64.50m). Although this was the peak of the flood at the dams, flooding was only commencing downstream in Cork City at this time. 

48.     At 22.30pm, Inniscarra water levels had risen to 50.86m (MaxNOL 49.5m) and discharges were 535 m³/s and approximately matching in-flows. The gates and turbines were fully open. Flooding was an inevitable consequence. 

49.     Although, however, the crisis had passed at this point at the dams, it was only commencing in the City. At this point in the evening, for example, UCC’s prized Glucksman Gallery, with important paintings stored in the basement had “gone beyond saving”. Discharges at the dam were reduced in accordance with the regulations. By 06.30am in the morning of the 20th of November, Carrigadrohid levels were 65.06m (MaxNOL 64.50m), and Inniscarra levels were 50.74m (MaxNOL 49.50m). Discharges at Inniscarra were now running at 470 m³/s and 350 m³/s at Carrigadrohid. 

50.     At 09.00am on the morning of the 20th, the level at Inniscarra was 50.5m (MaxNOL 49.50m), discharges were running at 345 m³/s, and the Carrigadrohid level was 65.05m (MaxNOL 64.50m), and discharges at 210 m³/s. By 16.00pm, the level at Inniscarra had receded to 50.41m and the discharges reduced to 257 m³/s.  At Carrigadrohid, the level had dropped to 64.95m, and the discharges reduced to 120 m³/s.

51.     Finally, by 20.00pm on the evening of the 20th, Carrigadrohid levels were 64.70m (MaxNOL 64.50m) and Inniscarra 50.23m (MaxNOL 49.50m). Discharges were reducing, but at Inniscarra were still running at 290 m³/s. Mr. Brown hoped to have Inniscarra down to MaxNOL 49.50m by the next morning, when there was further rain forecast.

The Significance of Weather Forecasts

52.     Evidence was given in the High Court by Gerald Fleming, head of forecasting with Met Éireann. Met Éireann not only provided general weather forecasts, but also supplied the ESB with private forecasts in respect of the dam catchment area. Mr. Fleming said that forecasting was of decreasing accuracy the further from the event the forecast was given. Forecasting of heaving rain was particularly difficult to get precisely correct. If a forecast was given one or two days hence, the uncertainty level was about 30%. At about five days, that level was 50-55% and at eight to nine days it was 80%, and any earlier, forecasting could be said to be essentially useless.

53.     Rainfall predictions for the 18th of November fluctuated considerably. At midnight on the evening of the 14th of November, 12.7mm of rain was predicted to fall in the 24hours of the 18th of November. Six and a half hours later, at 06.30am on the 15th of November, this forecast had increased to 26.3mm, and at 21.30pm on the evening of the 15th of November, 8.9mm was being forecast. Similarly, the rainfall predicted for the 19th of November fluctuated, although not as dramatically. At 06.30am on the 16th of November, 58.90mm of rainfall was predicted for the 24 hours to midnight on the 19th. At 21.30pm on the evening of the 16th, 48mm was predicted to fall by 23.00pm on the 19th. On the evening of the following day, the 17th, the predicted rainfall for the 19th was 52.20mm. It is clear, however, that a degree of heavy rain was consistently forecast, and reference was made by Met Éireann to a flooding risk. 

The High Court Judgment

54.     This case was contested very vigorously between two very well resourced entities who investigated all possible issues of fact, and with the benefit of expert evidence from a series of impressively qualified witnesses. The hearing lasted for 104 days between June 2014 and late April 2015. Judgment was delivered with impressive speed on the 5th of October, 2015. 

55.     The judgment of the High Court is monumental in scale, running to 555 pages, and contains, to borrow a word from the judgment itself, a cornucopia of information, evidence, observations on that evidence, legal submissions and legal analysis. The Court of Appeal in its judgment nevertheless expressed a concern about a difficulty in navigating the judgment and following the reasoning path at certain points - concerns which I would respectfully share. It is important that any judgment at first instance should record the facts that are considered not to be in dispute, identify those issues in dispute, and whether the dispute is as to a primary fact, inference from such facts or opinion based on fact, and then set out the judge’s conclusion, and, as importantly, the reasoning process. The issues of law should also be identified, and again the judge’s conclusions and reasoning for coming to such a conclusion set out clearly.

56.     Here, there was a torrent of evidence and a considerable level of detail. There was, however, very little dispute about the critical facts, such as the construction of the dams, the legislation providing for that, the capacity of the dams, the provisions of the Lee Regulations and their development, the particular definitions of MaxNOL and TTOL (although there was considerable dispute as to the significance and status of TTOL), the levels of water at the dams at the commencement of the critical period between the 16th to the 20th of November, the measures taken during that period, the warnings given and the persons to whom those warnings were given, and their terms, and finally the progress of flooding downstream and the damage that ensued.

57.     There was very considerable evidence, interesting and informative in itself, about certain matters concerning the operation of the dams. This evidence was given about the manner in which water levels were measured: the number of water gauges which functioned; the method of calculating in-flow into the dam; the question of whether rain forecasts should be adjusted by the ESB because the relevant rainfall was in a mountainous area; and the ineffectiveness of the Lee flood model attempted to be used by ESB personnel at a number of points during the period, and much more.

58.     However, notwithstanding the superficial similarities between an action for damages and a formal inquiry into events with a view both to assigning responsibility and making recommendations for the future, there are significant and important differences between the two forms of proceedings. Most of the issues referred to above and criticised in evidence, and at some points in the judgment, fall away as part of the legal analysis because it was simply not possible to assert with any degree of confidence that any flooding was caused by any of the matters criticised, or could have been avoided if some of the steps recommended had been taken. Thus, while a number of issues were raised which could conceivably improve the operation of the dams by the ESB in the future, they had no significant role in determining the question of liability. Indeed, in a significant finding at para. 357, the High Court concluded that it was “difficult even with hindsight to settle on what would have been a better sequence of gate-openings” in the period from 16th to the 20th November, 2009, which would have provided a benefit in that flood. Inevitably, and logically in the light of the factual matters set out above, the main focus of the liability argument had to be upon the starting levels of the dams at the beginning of that period.

59.     It is not difficult to identify the broad grounds for the decision of the High Court, or the underlying reasoning. The High Court found, importantly, that the Lee dams were single purpose dams and their function was hydroelectric generation. However, the ESB had made representations to the world at large as to the flood protection achieved by the dams. The ESB owed a duty of care to property owners and persons downstream to avoid or minimise flooding. Its specific duty was to maintain the levels of the reservoir at TTOL, a self-defined target operating level which - in words repeated throughout the judgment - optimised the availability for power generation and minimised unnecessary spilling of water from the reservoir. The failure to do so was a breach of the duty of care and also constituted actionable nuisance of the type first identified in Goldman v. Hargrave [1967] AC 645 (“Goldman v. Hargrave”), and Leakey v. National Trust [1980] QB 485 (“Leakey v. National Trust”). The warnings which the ESB had issued were also deficient. However, UCC for its part was guilty of contributory negligence in the siting and construction of the new buildings. The court concluded that UCC knew or could have readily ascertained that, based on historical flood information, the sites of the Glucksman, the Tyndall Institute, University Hall, the enterprise in Butler Building, and the Mardyke were at risk of flooding. Uniquely, the ERI building was designed after contact with the ESB, and a design floor level of six metres adopted. Notably, that building did not flood in November 2009. By the High Court’s count, there were 50 instances identified within the evidence with which UCC was put expressly on notice of flood risk at the buildings it constructed and/or acquired on the Lee flood plain. It was not an answer that UCC had in each case engaged ostensibly competent professionals. These were UCC’s buildings, and UCC had a responsibility to ensure it adopted an approach to its own campus which took account of the risks presenting. Accordingly, the court assessed contributory negligence at 40 per cent. UCC was entitled to recover 60 per cent of its damages, and 60 per cent of its costs.

60.     While the judgment is clearly expressed in terms that show that the High Court considered that the ESB was in breach of duty of care by not discharging or spilling water to achieve TTOL, it is not clear whether this was a finding that the Lee Regulations were themselves defective - since they did not so provide - or, as the judgment seems to suggest, that the ESB should simply have been willing to deviate from the provisions of the Regulations. While the ESB had relied on a significant weight of authority emanating principally from US state courts on the liability of dam owners for downstream flooding, the High Court found it was dangerous to have regard to such authorities from other jurisdictions without knowing the legal background: this was “like being shown a series of interesting paintings without any proper understanding of what the artist was truly about” [para. 1193]. Unlike authorities from Commonwealth jurisdictions, “which are informed by and inform United Kingdom jurisprudence”, there was a risk that authorities from other jurisdictions could prove false friends. Ireland was, in legal terms, “often closer to Berlin than Boston”. Nevertheless, the judge analysed the cases, and expressed a preference for the analysis in People v. City of Los Angeles (1950) 34 Cal. 2d 695, and that in Elliott v. City of New York [2010] 6 C.V. 296 (R.P.P), and expressed his conclusion that UCC was entitled to succeed, subject to a significant reduction for contributory negligence.

 

 

Court of Appeal

61.     The appeal was heard by an experienced Court of Appeal, comprised of Ryan P., Irvine (as she then was) and Whelan JJ. The judgment of the court runs to more than 100 pages. The court unanimously reversed the decision of the High Court. The Court of Appeal identified the High Court’s approach to TTOL (correctly in my view) as central to the High Court’s reasoning and finding of liability. It highlighted one response in the High Court to an issue raised by the parties in respect of the terms of any injunction that might be ordered. The Court of Appeal considered, again correctly in my view, that this fairly encapsulated the approach of the High Court:-

          “Thus: ESB must never exceed TTOL, and if, inadvertently, it does so, it must immediately take steps to reduce water levels to TTOL. Or a possible alternative mandatory form:  ESB must treat TTOL as though it were MaxNOL.”

62.     The Court of Appeal concluded that this approach was unsustainable in law and logic.  The reasoning of the Court of Appeal is set out succinctly at para. 128 of that court’s judgment:-

          “TTOL is an internal target set by ESB and is not a mandatory obligation; it does not establish a duty of care nor does it fix the standard of care. It is also overly prescriptive and precise and incapable of general application. It is potentially in conflict with the duty to avoid unnecessary flooding. If it were to be demonstrated that flooding could have been lessened by having the water in the reservoirs even lower, the case could be made that ESB was negligent in having TTOL itself too high. In an action for negligence or nuisance, proving compliance with TTOL would not be a defence.”

63.     The Court of Appeal considered that the High Court’s concentration on TTOL had diverted that court from a more reliable mode of analysing liability. The Court of Appeal considered that the nuisance finding was similarly flawed, and expressed the view that had it been necessary to consider the question of contributory negligence, the court would have overturned that conclusion also. Even assuming that there was negligence in the siting and construction of the buildings, it was not UCC’s negligence: UCC had been entitled to rely on independent and competent advisors. This court, by a determination made on the 17th of October, 2018, granted UCC’s application for leave to appeal against the decision of the Court of Appeal, and granted leave to the ESB to cross-appeal on the question of contributory negligence.  

64.     This case has been elaborately argued and has been the subject of lengthy and detailed judgments in both the High Court and Court of Appeal, coming, however, to opposite conclusions. It is pointless to deny that the issue here is complex and finely balanced. The key issue in my view, however, is whether the defendant ESB owed a duty of care to UCC to take steps to avoid or, more realistically, minimise the flooding which occurred on the River Lee in November 2009, after a summer and autumn of rainfall which was well above average. It is important to avoid skewing the issue, or indeed begging the question, by the framing of the issue to be decided. The question here, however, can I hope be posed neutrally as whether the ESB in operating the dam for the purposes of hydrogeneration, and knowing that downstream flooding was a possibility, was obliged to take steps which it could have done to minimise or reduce that flooding. This question and UCC’s proposed answer to it, namely that, applying the settled tripartite test endorsed in Glencar Explorations v. Mayo County Council (No. 2) [2002] 1 IR 84 (“Glencar”) of foreseeability, proximity and what is fair, just and reasonable, such a duty was clearly demanded, shows that the resolution of this case involves not merely a very substantial claim for damages in its own right, and indeed a test case for the very many other claims arising out of the same incident, but also raises basic and fundamental questions in relation to the law of negligence.

65.     This was also apparent from the detailed and careful submissions made by counsel for the ESB, Mr. Brian Murray, S.C. He argued that the litmus test of the case is that it represented a claim in respect of an omission, or as it is now formulated, a failure to confer a benefit by the prevention of a harm to the plaintiff from another agency. This calls to mind the recent and influential judgment of Lord Reed in the United Kingdom Supreme Court in Robinson v. Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] 2 All ER 1041 (“Robinson”), and the rehabilitation of the judgment of the majority in East Suffolk, a case with some possible points of contact with the present since it involved the flooding of the plaintiff’s land which might have been avoided by the more careful exercise of statutory powers by the defendant.

66.     Counsel also sought to align this modern analysis with an impressively lengthy and consistent line of authorities in the State Courts of the United States, of which perhaps the leading case is Iodice v. State of New York (1951) 103 N.E. 2d 346 (“Iodice”), and which have almost universally held that dam operators have no liability at common law for any flooding caused which was not any more than would have occurred from the natural flow of the river if the dam had not been there. This has been described as an approach of “do not worsen nature”, which appears to sit easily with the decisions in East Sussex and Robinson. 

67.     The plaintiffs have formulated this case under a number of headings, including negligence, nuisance, so-called measured duty in nuisance derived from Goldman v. Hargrave, and Leakey v. The National Trust, and the principle in Rylands v. Fletcher, although that argument was not proceeded with at the trial. However, I think the case is best approached by reference to the question of the existence of a duty of care at common law. This has been the main battleground between the parties and the analysis of the case in negligence will significantly assist the consideration of the related issues.

68.     In considering the question of duty of care, it will be necessary to consider in some detail, the judgments of the House of Lords, and latterly the U.K. Supreme Court, particularly the aforementioned decisions in East Suffolk and Robinson. It would be a foolish and narrowly parochial approach to refuse to acknowledge the benefit to be gained from analysis of well-known cases tracing the development of the duty of care in negligence in the judgments of the House of Lords, the High Court of Australia, and other jurisdictions. Issues may have arisen in litigation in other jurisdictions which might not have been raised, or litigated to final determination, here. In any event, there is considerable benefit to be obtained from any penetrating analysis, particularly one which is the product of a broadly similar legal system. However, in considering these cases, it is necessary to keep in mind that the exercise that this court is engaged in is somewhat different to that which might confront a court in the relevant jurisdiction. We are not concerned with reconciling sometimes disparate authorities with each other. Rather, cases from similar jurisdictions are of benefit at the level of principle and theory. In any event, although the tendency of Irish law has been to follow roughly the same trajectory as that followed in the Courts of the UK (since, in this respect, the law of Scotland is broadly similar to that in England and Wales and Northern Ireland), and in that way Ward v. McMaster [1988] I.R. 337 (“Ward v McMaster”) parallels Anns v. The London Borough of Merton [1978] AC 728, [1977] 2 All E.R. 492 (“Anns”) (and Glencar follows the approach in Caparo v. Dickman [1990] 2 AC 605, [1990] 2 W.L.R. 605 (“Caparo”)), the law in this jurisdiction has never been precisely the same, or necessarily reached the same results, as that in the UK. Irish law in this regard can be described as less clear-cut and structured. That is not necessarily a criticism: life is not clear-cut or structured. However, it adds a further layer of complexity to the task. With these caveats in mind, it is necessary to turn once again to cases well known to every law student.

69.     In simple terms, in Donoghue v. Stevenson [1932] AC 562 (“Donoghue v. Stevenson”), Lord Atkin famously stated his neighbour principle as a single unifying principle underlying the tort of negligence, at least that causing physical injury to persons, and establishing in that case the liability in the tort of negligence of a manufacturer of ginger beer to the ultimate consumer. The decision has always been significant, not only for the identification of a single unifying principle, but also for the elegant and vivid way it was achieved by a memorable reference to the parable of the Good Samaritan. However, the invocation of the parable showed that there was a fundamental difference between what a person should do and what the law required him or her to do. As Windeyer J. noted in the High Court  of Australia in Goldman v. Hargrave (1963) 110 C.L.R. 40, 66, the Samaritan who tends to the traveller receives moral approval, but the priest and Levite who passed by are nevertheless not liable at law.

70.     Like many things in life, the very strength of the judgment in Donoghue v. Stevenson is also its weakness. It has tended to give rise to a belief that all issues of law, and certainly those within the field of tort - in particular the tort of negligence – should be capable of resolution to a single memorable principle capable of comprehension and application by even the most reluctant student. For much of the period following the recognition of Donoghue v. Stevenson as a landmark decision, and one moreover with immediate application in a rapidly developing society, the issue to be determined in courts, and debated in class rooms and learned journals, was to what extent the qualifications contained in the decision of Donoghue v. Stevenson, such as, for example, the apparent requirement that there be no possibility of independent examination of the content of the product, were to be regarded as essential to the principle.

71.     The question also arose as to how the law would develop in fields where hitherto there had been no liability in negligence, but which arguably could be bought within the taxonomy of neighbourhood/proximity, foreseeability of harm, and damage as established in Donoghue v Stevenson. Among the areas in which this issue arose were liability for statements rather than actions, compensation for nervous shock, recovery in cases of pure economic loss, the position of public authorities - particularly those exercising powers rather than duties - the liability of occupiers of premises and, as contemplated in Donoghue itself, the liability for omissions rather than positive actions. 

The East Suffolk Case and its relevance to this case

72.     East Suffolk Rivers Catchment Board v. Kent is an important case, and came at an early point in the development of the modern law of negligence, and perhaps before Donoghue v. Stevenson had come to be recognised as the touchstone for liability in negligence. The plaintiffs were, respectively, the owner and occupier of farmland which was below the level of the high tide, and protected by a sea wall. After one very high tide, the wall was breached, and the plaintiffs’ land flooded. The fact that the land was below the level of high tide meant that the land remained flooded. The defendant authority had a power, although not a duty, to repair sea walls and attempted to do so, but its efforts to repair the walls (described by Lord Romer as “ridiculous”) were unsuccessful until eventually the wall was repaired 178 days after it was first breached. There was evidence that if the method ultimately adopted had been taken at the beginning of the process, the repair could have been completed in no more than 14 days. The members of the House of Lords were perhaps understandably cautious about the clarity and persuasiveness of this evidence, but it had the benefit of presenting the issues in the case very neatly for future generations. The case has always been understood as presenting a clear-cut set of circumstances and a precise legal issue. There was no doubt that the authority had not, on these facts, exercised reasonable care or competence. The question in that case was therefore that which is central to this case: whether the authority owed a duty to the plaintiffs to exercise such care so that it would be liable for the flooding of the plaintiffs’ lands for 164 days. As such, the case raised the question of the liability of public authorities for the exercise of statutory powers. It also raised (rather less clearly) the question of liability for omissions or, perhaps more precisely, the failure to prevent harm caused by someone, or something, else.

73.     It is understandable that these issues were not as readily identified in 1941 as one hopes they might be today, but there are nevertheless traces in the majority judgments of a number of the themes that have become more prominent in subsequent cases. The majority was plainly influenced by the fact that the authority was not obliged to repair the wall at all. Lord Romer observed:-

          “The [Land Drainage Acts 1930] imposed upon the [board] no duty of repairing the wall. It merely gave them the power of doing so. Whether or not they should exercise that power was a matter entirely within their own discretion… Had they determined not to effect the repair at all, or not to embark upon the work until (say) the end of the following March, the respondents would have had no cause of action for the damage entailed upon them by such decision.”

          As Lord Hoffman put it later in Stovin v. Wise [1996] AC 923, 948 (“Stovin”):-

          “What the majority found impossible was to derive such a duty from the existence of a statutory power: to turn a statutory “may” into a common law “ought”.”

74.     However, other judges in the majority in East Suffolk focussed on what was described by Lord Thankerton as an issue of causation:-

          “I have felt throughout that the only real question in this appeal relates to causation, and the difficulty arises from the fact that prior to the intervention of the appellants a source of damage had been already created by the action of the flood waters and that source continued to be available - at least in some measure - until it was at long last excluded by the operations of the [board]. Now the point on which admittedly the success or failure of the appeal depends, is whether the failure of the appellants to close the breach sooner by an efficient method can be held as the causa causans of the damage which accrued during these extra days, to the exclusion of the flood breach as a cause of the damage.”  

75.     Viscount Simon said, at page 85:-

          “In the present case the damage done by the flooding was not due to the exercise of the appellants’ statutory powers at all. It was due to the forces of nature which the appellants, albeit unskilfully, were endeavouring to counteract.”

          While expressed in terms of causation, it is, I think, possible to see in these comments elements of concerns raised in later cases, namely that, while the board clearly owed a duty to avoid causing damage itself by the manner in which it did the works, whether by causing physical damage to the lands or by causing a greater area to be flooded, or causing the affected area to be flooded for a longer period than would have been the case if the board had not intervened at all, the claim here was based upon a contention that the board had failed to prevent or mitigate the damage which followed from the breach of the sea wall. It can be characterised, therefore, as a claim that the Board owed a duty of care to prevent damage to the plaintiff caused by a third party, in this case Nature.

76.     East Suffolk has remained an important decision, not least because the dissenting judgment was delivered by no less a figure than Lord Atkin, who furthermore observed that the principle in Donoghue v. Stevenson was capable of giving guidance on the issues in the case. He saw the issue as whether the duty undoubtedly owed by the defendants included a duty to carry out the work with reasonable dispatch. Once formulated in this way, it was a short step to his conclusion: the defendants owed such a duty and were in breach of it. He was able to dispose of the causation argument on the basis that if there was such a duty, then it followed that the damage caused by flooding following the period after which the breach in the sea wall could have been fixed with reasonable dispatch was in the real sense caused by the breach of duty. Having recited the argument that the board’s failure could not be said to have caused the flooding, he said at p. 93:-

          “I venture to think that this does not quite meet the plaintiffs’ point. I understand them to say true it is that we cannot complain of the original flooding:  and we must put up with the damage that resulted from the ebb and flow of the water over our lands for a certain time, namely, the time that would expire before our wall was repaired, when once you had begun to repair it, with reasonable dispatch – x days. But on the assumption now made you are under a duty to us to use reasonable dispatch when the water ebbed and flowed over our land for a far longer period, x + y days: and we have suffered damage from the presence of water for this x + y period greater than the damage we would have suffered from the x period alone. Now if the plaintiffs can prove this it seems inevitable that the extra damage is directly caused by the breach complained of.”

          On the question of causation at law this is persuasive. However, it does not address the issue lurking in the case of a duty to prevent harm caused by another.

77.     The case has remained intriguing for a number of reasons. It was clearly a difficult case, as acknowledged by Viscount Simon, and it is possible to sympathise with, and find persuasive, both the majority and minority judgments. But the case has continued to be of significance because it seemed to identify an area, or areas, involving the exercise of powers by a statutory authority, and liability for omissions, which could come within the general principle stated in Donoghue v. Stevenson, of proximity, foreseeability, and loss, and where the conduct could be described as negligent, but where there was no liability at law.

78.     In Anns v. London Borough of Merton, the House of Lords had to consider the question of the liability of a local authority which had a power, though not a duty, to inspect foundations to ensure they complied with the required standards. The case established what has become known as a two-step test for the identification of a duty of care in novel cases. First, if there was sufficient proximity between the plaintiff and the defendant and foreseeability of harm, there was a prima facie duty of care which could, however, be negated, reduced or limited, either in the class of person to whom it was owed or the damages to which a breach of it might give rise. In doing so, the judgment of Lord Wilberforce cast considerable doubt on the decision of the majority in East Suffolk, observing that:-

          “only one of their Lordships [Lord Atkin] considered [the case] in relation to a duty of care at common law… I believe that the conception of a general duty of care, not limited to particular accepted situations, but extending generally over all relations of sufficient proximity, and even pervading the sphere of statutory functions of public bodies, had not at that time become fully recognised.”

79.     This seemed to adopt Lord Atkin’s observation in East Suffolk that Donoghue v. Stevenson was capable of giving guidance, and indeed enlarge upon it. Lord Wilberforce considered that it was not true to say that a body exercising a statutory power had total freedom to act or not to act. Its decision was reviewable in public law. It had a duty, therefore, in public law to consider the exercise of the power. But such a duty would only give rise to a claim in private law where it could be said the decision was operational rather than one of policy. While that distinction was illuminating, it was, he considered, a distinction of degree: the more operational a power or duty may be, the easier it was to superimpose upon it a common law duty of care. 

80.     The fact that the distinction between policy and operational matters was, as Lord Wilberforce recognised, somewhat elusive was illustrated by his treatment of the decision in East Suffolk. It might be thought that the conduct of the catchment board in issue was quintessentially operational. It involved no policy decision as to whether or not to repair the wall, the number of men or days to devote to it, or repair works more generally, or the reconciling of competing claims on the board’s budget. On the contrary, it involved a decision (described by Lord Romer as “ridiculous”) to attempt to repair the breach in the wall by driving a dam straight across the breach rather than by building a temporary V-shaped dam to allow the wall to be repaired. However, Lord Wilberforce considered that East Suffolk could be said to involve a question of policy or discretion, and accordingly was properly consistent with the principle established in Anns.

81.     It seemed, however, that the decision in Anns had significantly undermined the decision in East Suffolk and while it was not formally overruled, the case now stood upon rather shaky and unconvincing foundations. It was described as a “much battered decision” in the 13th edition of Winfield and Jolowicz on Torts (London: Sweet & Maxwell, 1989) and, insomuch as the case remained authority, seemed either likely to be confined to its own facts, silently ignored, or perhaps simply overruled. For a time, the decision in Anns was treated as one of the pillars of the law of negligence of a stature similar to the cases of Donoghue v. Stevenson, Hedley Byrne v. Heller [1964] AC 465, and Home Office v. Dorset Yacht [1970] AC 1004 (“Dorset Yacht”), and Lord Atkin’s dissent in East Suffolk received some of the reflected glory. Lord Atkin’s biographer described the dissent in East Suffolk as an important example of Atkin’s ability to illuminate the future. G. Lewis, Lord Atkin, (London: Butterworths, 1983). However, as is well known, the decision in Anns, and in particular its expansive two-step test of liability, provoked disagreement and dissent. In particular, the High Court of Australia in Sutherland Shire Borough Council v. Heyman [1985] 157 C.L.R. 424 (“Sutherland Shire”) refused to adopt the two-step test and instead expressed a preference for incremental development of the common law by analogy with decided cases, and that after it had been decided that there was both proximity and foreseeability, it was then necessary to consider whether it was just and reasonable to impose a duty of care. 

82.     It is necessary to pause at this point and consider the development of Irish law. In Ward v. McMaster, the Supreme Court had to consider the issue and the criticisms of the approach in Anns which were beginning to emerge at that time. McCarthy J., however, preferred “not…to dilute the words of Lord Wilberforce”. Indeed, if anything, McCarthy J. expanded upon them, considering that any consideration of public policy negating or limiting the prima facie duty of care would have to be a very powerful one if it was to be used to deny an injured party his “right to redress”. He showed no enthusiasm for Brennan J.’s judgment in Sutherland Shire that the law should develop novel categories of negligence incrementally and by acknowledging established categories, because this “verbally attractive proposition of incremental growth, suffers from a temporal defect - that rights should be determined by the accident of birth”. The decision in Ward v. McMaster, however, predated the more decisive rejection of the Anns test in Caparo, and the formal overruling of Anns insofar as it concerned liability in respect of pure economic loss in Murphy v. Brentwood District Council [1991] 1 AC 398. It became a matter of conjecture if Irish law would follow the same course. 

83.     The developments in the law in other jurisdictions continued apace. The decision in Anns, while no longer authority on the issue of pure economic loss, still stood in the UK for the proposition that a public authority could owe a duty of care for the exercise of statutory power causing injury to person or property if that exercise lay sufficiently at the operational end of the spectrum. That was reconsidered in Stovin. There, a plaintiff had been injured when his motorcycle was involved in a crash with the defendants’ motor car emerging from a side road onto a main road. The junction was known to be dangerous in part because a bank of earth on private property made sight lines from the junction difficult. The local authority, as highway authority, had the statutory power to remove matters which caused a danger to the road. It had inspected the site and proposed removing the bank if the landowner agreed. The landowner had not responded to the proposal and the matter had fallen into abeyance by the time the accident occurred. The insurers of the driver of the motor car sought contribution from the council as concurrent wrongdoer. The High Court found that the council owed a duty of care to the plaintiff, had been negligent, and was 30% at fault for the accident. The council’s appeal was dismissed by the Court of Appeal. On further appeal to the House of Lords, that court allowed the council’s appeal by a slender majority.

84.     The judgment for the majority was delivered by Lord Hoffman. He traced the line of authority from East Suffolk through Anns, and disapproved of the treatment of East Suffolk in the Anns decision. The reputation and standing of the relevant decisions had undergone a sea change. East Suffolk was now seen as an example of how, in the absence of other factors such as reliance, or possibly a concept of general reliance, there was no duty of care arising from an omission to act. The broad analysis in Anns, and its distinction between operational and policy decisions was unsatisfactory. However, Lord Hoffman did not revert entirely to the clear-cut proposition of Lord Romer in East Suffolk that it was simply impermissible to derive a common law duty of care from a statutory power. He observed that Brennan J. in Sutherland Shire had been the only member of the court who had been willing to “adhere to such uncompromising orthodoxy”. Instead, it remained possible that there could be a common law duty of care if - and exceptionally - it would have been irrational not to have exercised the power so that there was in effect a public law duty to act, and second, “that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised”. 

85.     Lord Hoffman also adverted to an important aspect of the case. It had been suggested that a concept of general reliance could justify the imposition of a duty of care. He did not consider it necessary to decide that issue definitively because he did not consider that there were circumstances in the present case which could bring it within any such concept. Nevertheless, he observed:-

           “I will only note in passing that this application may require some very careful analysis of the role which the expected exercise of the statutory power plays in community behaviour. For example, in one sense it is true that the fire brigade is there to protect people in situations in which they could not be expected to be able to protect themselves. On the other hand, they can and do protect themselves by insurance against the risk of fire. It is not obvious that there should be a right to compensation from a negligent fire authority which will ordinarily enure by right of subrogation to an insurance company. The only reason would be to provide a general deterrent against inefficiency. Then there must be better ways of doing this than by compensating insurance companies out of public funds. And while premiums no doubt take into account the existence of the fire brigade and the likelihood that it will arrive swiftly upon the scene, it is not clear that they would be very different merely because no compensation was paid in the rare cases in which the fire authority negligently failed to perform its public duty.”

86.     In considering the facts of Stovin, Lord Hoffman concluded that a common law duty of care could not be derived from a highway authority’s power to remove dangers. This was particularly so since the statutory power had coexisted for a long time with the well-known limitation on the liability of a highway authority for misfeasance. Lord Hoffman also observed that to impose a duty of care would distort the priorities in local authorities which would be bound to try and play safe by increasing their spending on road improvements rather than risk enormous liabilities for personal injury accidents. On the other hand, denial of liability did not leave the road user unprotected. Drivers of vehicles must take the highway network as they find it. Everyone knows that there are hazardous bends, intersections, and junctions. It was primarily the duty of drivers of vehicles to take due care, and if they did not, there was compulsory insurance to provide compensation to the victims. There was no reason therefore in policy or justice requiring the highway authority to be an additional defendant.

87.     It is again useful at this point to note the parallel development of Irish law. In Glencar v. Mayo County Council (No. 2), the Supreme Court had to consider a claim that the adoption by the local authority of an absolute ban on mining within its functional area, which was ultra vires (or for the purposes of the case was to be assumed to be ultra vires), could give rise to a claim for damages. The decision of the Supreme Court established very firmly that an ultra vires action does not per se give right to a claim for damages without more. The court, and in particular Chief Justice Keane, also considered the conclusion of the High Court judge that the authority had been negligent in adopting the ban. Chief Justice Keane considered the judgment in Ward v. McMaster and concluded that the dicta of McCarthy J. did not foreclose a consideration of the question of whether the more cautious approach adopted in Caparo should also be adopted in Ireland. He considered that the fact that the exercise of a power by a public authority may confer a benefit on a person of which he would otherwise be deprived did not of itself give rise to a duty of care in common law (pages 104-141). There was, he considered, moreover no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of “proximity” or “neighbourhood” can be said to have been met unless very powerful public policy considerations dictate otherwise. No injustice would be done if they were required to take the further step of considering whether, in all the circumstances, it was just and reasonable the law would impose such a duty. In the particular circumstances of the case, the plaintiffs could not in any event establish the necessary proximity. 

88.     Of particular interest for the present case is that Keane C.J. considered that the basic distinction made by the law of negligence that a rescuer (or, more accurately, a non-rescuer) owed no duty of care at law to attempt a rescue, even if his or her failure to do so might be the subject of censure from a strict moral code, was in danger of being eroded by the approach in Anns. This was the fundamental distinction made at the heart of Donoghue v. Stevenson between what morality expected of the Good Samaritan and what the law of tort demanded, that is the distinction between acts and omissions. He went on to expressly reserve the question of whether a duty of care arose to avoid pure economic loss in circumstances other than negligent misstatement or, perhaps, in the particular circumstances captured by Siney v. Dublin Corporation [1980] I.R. 400 (“Siney”) and Ward v. McMaster. It follows that the actual decision in Ward, and what could be derived from it as authority, remained undisturbed. The clear thrust of the then Chief Justice’s judgment was, however, clearly sceptical of any broad duty of care to avoid pure economic loss.

89.     The outcome of Glencar was to place the law in Ireland firmly within the same stream of authority as was running in the United Kingdom and Australia. The developments in the UK have continued and it is necessary to consider the more recent case law from that jurisdiction in the context of the present case. 

90.     In Gorringe v. Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] All E.R. 326 (“Gorringe”), the House of Lords affirmed the decision of the High Court and Court of Appeal that the plaintiff who had been injured in a serious road traffic accident could not succeed in her claim against the highway authority that it had a duty of care to erect warning signs at or on the road. The case is more interesting because Lord Hoffman repeated his view that “[r]easonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others”. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it. Other than in special circumstances such as in Goldman v. Hargrave, no duty of care arose in such circumstances.

91.     Gorringe (alongside Stovin) was later to be identified as a key step in what has been described as a return to orthodoxy, and certainly a retrenchment from any expanded duty of care. But the decision in Gorringe is also interesting, however, because although the decision seemed to show that the decision in Stovin was now accepted as correct, there nevertheless remained a difference of views among the judges of the House of Lords as to the appropriate analysis. Lord Steyn, for example, reiterated his agreement with the judgment of Lord Hutton in Barrett v. Enfield L.B.C. [2001] 2 AC 550, where Lord Hutton had considered that the decision in Stovin was not authority precluding the finding that there was a duty of care where the allegation of negligence related to the manner in which a local authority exercised its statutory duty and powers, in that case in respect of a child in care. 

Robinson v Chief Constable and its relevance to this case

92.     This brings us to the decision of Robinson v. Chief Constable of West Yorkshire Police, a decision relied on by the Court of Appeal in its decision in this case, and by the ESB in the course of this appeal. The facts are far removed from the question of the flooding of the River Lee. The plaintiff, who was a relatively frail lady aged 76 years, was shopping in a town centre. The police wished to arrest a suspected drug dealer and were required to do so in order to obtain and retain evidence of possession of drugs for the purposes of dealing. However, in doing so there was a scuffle and they and their target fell to the ground on top of the plaintiff, who had been passing at the time. The High Court found that the police had not acted with all due care, both because one of the arresting officers admitted to having seen the plaintiff walking past and then lost sight of her, and because other officers involved had been slow to reach the scene which might have avoided the scuffle becoming so violent or dangerous to pedestrians. However, the High Court judge considered that police had immunity from actions in negligence under a principle derived from the well-known case of Hill v. The Chief Constable for North Yorkshire [1989] AC 53 (“Hill”), in which it had been held that investigating officers did not owe a duty of care to the family of the last of the victims of the Yorkshire Ripper to have caught him earlier. The Court of Appeal dismissed the appeal, but, conscious perhaps of the criticism that had been directed both at Hill’s reference to policy considerations and the idea of an immunity from claims for police more generally, reformulated the basis of the decision. Adopting the language of Caparo, the court held that it would not be fair, just, and reasonable to impose a duty of care in such circumstances. Hallett L.J., who gave the judgment of the court, also expressed herself willing if necessary to have overturned the findings of negligence in the particular circumstances.

93.     The Supreme Court of the United Kingdom unanimously allowed the plaintiff’s appeal. A number of the judges expressed perhaps understandable unhappiness and doubts with the finding of negligence on the facts, but ultimately considered that the findings of the trial judge in this regard could not be disturbed. Accepting, therefore, that there had been a want of care, the court unanimously agreed that the police owed a duty of care for conduct which, on the facts found, had caused or been a cause of, physical injury to the plaintiff, and reversed the decision of the Court of Appeal.

94.     It is apparent that the principal judgment of Lord Reed, with whom two other members of the Supreme Court agreed, while describing itself modestly as a return to orthodoxy, is a radical, if elegant, reinterpretation of the existing law. First, the proposition that the Caparo test applied to all claims in negligence was mistaken. It was not a test, but merely an approach which only arose where a novel liability was asserted in circumstances where hitherto no duty of care had been established by authority. This is consistent with the decision of this court in Whelan v. Allied Irish Banks plc and Ors [2014] IESC 3, [2014] 2 I.R. 199. Second, at common law, public authorities are generally subject to the same liability in tort as private individuals and bodies. This could be traced to A.V. Dicey’s Lectures Introductory to the Study of the Constitution (Macmillan, 1886), in which he identified a principle of equality before the law. This was the principle that every official from the prime minister down to a constable or collector of taxes is under the same responsibility for every act done without legal justification as any other citizen.

95.     A number of consequences followed from this principle of equality. First, a public authority owed a duty of care for positive acts which if done by private individual will give rise to a duty of care. That resolved Robinson into a simple case where on the facts it had been found that negligence had caused physical injury. But it also followed from the principle of equality that the omissions principle also applied to a public authority. Those cases where police and other authorities had been held not to owe a duty of care on grounds of public policy could be better understood as illustrating a general principle that no one, whether a private individual or a public authority, was normally under a duty to prevent the occurrence of harm to others, even if foreseeable. While this was often referred to as the principle that there was no duty of care for omissions, that description had sometimes proved difficult, and it was better understood as the principle that no one was, at least generally speaking, under any duty of care to prevent the occurrence of harm to others. This principle too, however, was subject to exceptions. Lord Reed adopted the formulation contained in a learned article by Tofaris and Steel “Negligence Liability for Omissions in the Police” (2016) 75(1) C.L.J. 128:-

          “In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.”

96.     Importantly, the general principle of non-liability for failure to prevent harm from a danger not created by the defendant applied notwithstanding the fact that a public authority may have statutory powers enabling, or even statutory duties requiring, it to prevent the harm in question. A well-known illustration of that principle was, Lord Reed considered, the decision of the House of Lords in East Suffolk. The importance of that case can be illustrated by the fact that later in the judgment in Robinson, Lord Reed explained that Hill had been decided at a time when policy matters were particularly prominent in judicial reasoning “and when the principle in East Suffolk, which could otherwise have provided a solution, had been rejected”. Where the dissent of Lord Atkin had returned as justification for Anns, now the majority judgment was restored as illustrating the basic, but important, principle that the common law did not normally impose a duty of care for omissions to act, now reformulated as a failure to prevent harm from a danger not created by the defendant. 

97.     The judgment of Lord Reed is undoubtedly a significant development in the law, and an impressive achievement of clarity and simplicity. It is, however, important to note for present purposes that two members of the Supreme Court (Lords Mance and Hughes) while agreeing with the outcome, expressed some doubts that the cases could be so comprehensively reanalysed, and, in particular, that the public policy component in decisions such as Hill could be limited or removed entirely from the analysis. 

98.     It is, however, clear why this decision was of considerable importance in the judgment of the Court of Appeal in the present case, and why it is now relied on by the ESB in this appeal. First, if this analysis is correct, it would mean that the decision in East Suffolk could be treated as establishing a general principle of possible application to the particular facts of this case. On this reading, the ESB certainly had some statutory powers, and undoubtedly could, as a matter of both fact and law, have done something to reduce the flooding that occurred, most clearly by reducing the levels in the respective dams to or below TTOL to allow for an accumulation of the expected waters in the reservoirs, which might in turn have reduced or limited the flooding which ensued. However, ESB argues that it was not under a duty to do so. The flooding that UCC and others experienced was caused by the river, and in that sense by nature, and the ESB had no duty to prevent that or mitigate it, any more than the catchment board had a duty to prevent or reduce flooding from the sea even after it commenced the repair of the sea wall in East Suffolk. Its duty was merely not to do something which positively worsened the situation. Viewed in this way, the outcome would, moreover, be entirely consistent with the extensive authority, mostly from the USA, on the specific question of flooding of rivers and where claims had been brought against dam operators upstream of the premises flooded, and to which it is now necessary to turn. 

The Jurisprudence on Dam Liability

99.     The most commonly cited case in the US text books is Iodice v. State of New York, in which the decision of the appellate division of the Supreme Court of New York was affirmed summarily on appeal by the Court of Appeals of New York. In these proceedings, Iodice has been referred to as shorthand for a line of authority holding that a dam owner owes no duty to avoid flooding downstream so long as the dam operator has not done anything to increase the flow of water above that which would be provided by the river if the dam were not there. 

100.   The State of New York maintained a dam on the Mohawk River for the purposes of controlling the supply of water to a canal system. The plaintiff’s premises were flooded after a period of heavy rainfall. There was no doubt that if the levels of the reservoir had been dropped sufficiently, the dam could have held back the waters caused by the heavy rainfall. To that extent the facts are similar to, and if anything stronger than, the present case. However, Vaughan J. for the majority considered:-

          “[t]here being no statutory duty to operate the dam for flood control purposes, any duty to operate the dam for the purpose of bettering natural conditions must be found in some rule of the common law which would be applicable to a private individual or corporation. We know of no principle of common law which imposes any such duty.”

          Subsequently, he expressed the principle underlying the court’s decision in a single paragraph:-

          “In the absence of a showing - of which there was none - that the flooding of claimants’ premises was any greater than it would have been if the dam had never been built, the State cannot be called upon to respond in damages to these claimants.”

101.   McCurn J. dissented. He considered that the dam had been built in 1910 and had the effect that the State was now in control of the entire situation. Once the State put itself in the position of absolute control, its duty was no longer based on the circumstances which had previously existed. A new relationship then came into existence, and the State assumed a duty of care based on its ability to protect the claimants and the helpless inability of the claimants to protect themselves.

102.   The decision in Iodice surveyed a number of earlier decisions which appeared to come to the same conclusion. Indeed, the approach taken by the majority in Iodice seems to have held sway thereafter, and represents the law of the various states in the US and North America more generally. The weight and consistency of the authorities is impressive.  As early as 1858 in Canada, in Wegenast v. Ernst [1858] O.J. No. 308, the Upper Canada Court of Common Pleas, in the judgment of Draper C.J., said:-

          “The plaintiff had to guard against any flow of water which proceeded from natural causes. In other words, so long as the defendants let down no more from their pond than natural causes brought into it, and at no faster rate than natural causes were at the time supplying it, they would not be liable.”

103.   Subsequently, in Smith v. Ontario and Minnesota Power Company [1918] O.J. No 7 45 D.L.R. 266, the Ontario Supreme Court said:-

          “It would appear that part of the damage complained of would have been done had the dam not been in existence, but apparently not all, the plaintiffs… are entitled to recover for the difference between the whole and what would have occurred in the absence of the dam.”

104.   In Smith v. East Bay Municipal Utility District (1954) Cal. App. 2D 613, the California Court of Appeals, speaking through Kaufman J., said:-

          “Plaintiffs must first show the existence of a duty of care owed by a defendant before they can show negligence… [t]his they have attempted to do by stating that the defendant had the right to discharge water in “reasonable” amounts.  Appellant argues that no such duty to discharge water only in reasonable amounts has been placed upon the owner of a dam in California, nor in any other state that has considered the question. The duty is only negative - that is, he must not augment the flow of water and time of flood by releasing stored water.”

          However, in that case the court concluded that there was evidence that more water had been released from the dam than naturally flowed into the dam from the river. The defendant was under a duty to the plaintiffs not to permit a greater flow of water over the dam than that which would naturally flow into it from the river and was accordingly liable for the damage which ensued.

105.   In Ireland v. Henrylyn Irrigation District (1945) 160 P 2d 364, the Supreme Court of Colorado dealt with the situation in which the defendant dam operator had lowered the spillway on the dam. The plaintiff argued that they had a vested right in having the flow of water maintained at its original condition. This was rejected by the Supreme Court in the following terms:-

          “We believe this position is untenable.  We are of the opinion that plaintiff could not acquire a right against defendant to have a system of flood control and storage works located above his property that would be any better than if defendant’s reservoir had never been built.”

106.   In 1965, the Georgia Court of Appeals stated in Baldwin Processing Company v. Georgia Power Company (1965) 143 S.E. 2d 761:-

          “We think that a reading of these [cases] clearly indicates that there is no duty on the part of the owner and operator of a hydro-electric dam to operate the dam as a flood control mechanism, and this seems to be the rule in most other states.”

          (Citing Iodice, Ireland v. Henrylyn, Smith v. East Bay Municipal Utility, and Trout Brook v. Willow River Power Company (1936) 267 N.W. 302.)

107.   In Michalka v. Great Northern Paper Company (1955) 151 Me. 98, the Supreme Court of Maine stated:-

          “The owner of a dam is entitled to permit the natural flow to pass. This common law right is recognised by both counsel in their briefs. The lower riparian owner is entitled to the natural flow, unless of course a legislative charger authorises otherwise.”

108.   Similarly, in Rockford Paper Mills Inc v. City (1945) 311 Mich. 100, the Supreme Court of Michigan approved the following statement from a 1915 case, Taylor v. Indiana Michigan Electric Co. (1915) 184 Mich. 578:-

          “No matter how much damage plaintiff and his assignors may have suffered by reason of the overflow of water from the St. Joseph river from and after the 4th day of June, 1909, he and neither of them can recover in this action if the water for any reason so flowing upon and over their lands was not more than would naturally and necessarily been cast upon their lands if there had been no dam at the place shown by the evidence.”

109.   In 1968, in Key Sales Company v. South Carolina Electric and Gas Company (1968) 290 F. Supp. 8, the Federal District Court of South Carolina expressed its conclusions of law as follows:-

          “The court concludes that under the applicable common law principles the only obligation imposed upon a dam operator and the operation of his dam is not to worsen conditions downstream beyond what would have occurred in the absence of the dam.” (citing, inter alia, Ireland v. Henrylyn, and Rockford Paper Mills Inc v. City of Rockford.) 

110.   The court also approved the following statement of law  in the earlier case of Crawford v. Cobbs and Mitchell Company (1957) 253 P. 3, 257 P. 16:-

          “The following principles of law may be taken as well established.  First it is applicable to this case, that the defendant had the right to erect and maintain its dam at the place where it was constructed and to impound the water therein to the full height of the dam; second, that it had, in the case of offload or unusual high water the right to permit flood waters to pass through or over the dam in such quantities as flowed into it; third, that they had no right, after having impounded the water, to release it in larger quantities than were then flowing into it from above, thereby adding to the normal flow of waters so released by this act and raising the floodgates; fourth, that if, in addition to the normal flow, defendant, by suddenly releasing large quantities of water in addition to the flood water then coming into its town, caused damage to the plaintiff, either solely by the waters so released, or concurrently with the flood water which was coming down, it is liable for such damage.”

111.   In this case, the Court of Appeal also considered it significant that the decision in Iodice had been affirmed relatively recently in the Federal Courts, in  Elliot v City of New York (2010). That case concerned a dam for the purposes of water supply which created a reservoir, and which had been constructed between 1941 and 1953. The plaintiff claimed damages as a result of flooding. The Federal District Court held that the defendant was entitled to summary judgment dismissing the claim, holding that “since the Dam and Reservoir were not created for flood control, the Iodice rule governs; the only duty imposed on Defendant is to avoid making the flood worse than it would under natural conditions”. That decision was itself affirmed in a summary decision of the United States Court of Appeals of the Second Circuit, which stated the decision in this way:-

          “The dam owner is not liable for downstream damage as long as it does not increase the flow of water from the dam beyond its natural flow… Here the City did not increase the flow of water over the spillway beyond that which is incurred naturally as a result of the storms in question. Plaintiffs conceded that the City’s dam actually attenuated the flooding. The District Court correctly granted summary judgment on plaintiff’s negligence claims. The city owed no duty to plaintiffs”.

112.   The Court of Appeal also observed that the principles applied in this line of caselaw were consistent with the reasoning in two Scots cases. In Greenock Corporation v. Caledonian Railway Co. [1917] AC 556, the principle was stated in this way in the House of Lords by Lord Shaw of Dunfermline at p. 579:-

          “A person making an operation for collecting and damming up the water of a stream must so work as to make proprietors or occupants on a lower level as secure against injury as they would have been had nature not been interfered with. And this is so although the water accumulated suddenly, or the fall was extraordinary or even unprecedented in quantity. These are general propositions of law”. 

          In Stirling v. North of Scotland Hydroelectric Board [1974] S.C. 1, Lord Avonside said, at p. 14 of the report:-

          “In my opinion these authorities establish that no compensation is due on the provisions of the relevant clauses in the schemes of the defendant unless it be proved that the damage of which complaint is made would have afforded a ground of action had the schemes not been in existence. Where his claim relates to damage by flood alleged to have been caused by an opus manufactum, he is put to the proof proper to the claim, and an essential part of that proof lies in showing that the flood would not have occurred had nature been left undisturbed”. (Emphasis in original).

113.   ESB for its part suggests that this stream of authority, which is impressive in its consistency, and does not appear to have been challenged or criticised, is consistent and sits very well with modern UK case law on the duty of care just surveyed. It is said, moreover, that there are echoes of the recently rehabilitated decision in East Suffolk, namely that the damage was caused directly by the river and by nature, and that the only duty that the ESB owed was not to make matters worse by some positive action on its behalf.

114.   The ESB also contend that these principles are consistent with the long-established law of riparian rights which has regulated the rights, duties and liabilities of landowners adjoining the river. Indeed, the case law in relation to dams must be understood against that background. In general, the riparian owner is entitled to the benefit of the natural stream of the river and to have it come to him or her in its natural state and flow quantity and quality and go from him or her without obstruction. It is partly because of the limited interference with this right that is created by the establishment of a hydroelectric system that it is necessary to provide statutory authorisation for it. While UCC and other victims of the flooding are not necessarily riparian owners, it would be strange, the ESB argues, if the neighbour principle required a different outcome in respect of those landowners whose land did not adjoin the river, but which were affected by any flooding from it. 

115.   The ESB argues that if it had a duty to warn in relation to the likely flooding (which it denies), it nevertheless complied with any such duty. This is a subsidiary point, which it is useful to deal with at this stage. For the reasons set out in the judgment of the Court of Appeal, I agree that any warning given was in sufficient compliance with this duty. In this case, a number of direct phone calls were made to persons and businesses downstream, including UCC, culminating in the warning that this was a “large, bad flood”. It is undoubtedly the case that there are useful suggestions that could be made in the light of the experience of the November 2009 flood for a more efficient modern system of warning, but the fact that a system can be improved is not the same as showing that there was negligence.

116.   However, I consider it helpful to have regard to this issue in the broader context of the duty of care in this case. The ESB accepts that it owes a duty of care in relation to positive action taken by it which could increase the flow beyond the natural flow into the dam, and, as set out, to warn of flooding caused by the natural flow of the water. The acceptance of a duty of care in these regards is of some help in isolating the issue to be determined in this case. It seems clear, therefore, that there is sufficient proximity between the ESB as the dam operator and UCC and other property owners likely to be affected by the flooding. Even though they are physically separate, they are connected very directly by the river itself, both the source of the water through the dam and the source of the flooding to the property. Similarly, it seems clear to me that there is sufficient foreseeability that the actions or omissions of the ESB in controlling the flow of water through the dam could cause damage to downstream property owners in the event of a flood. Unless these terms, proximity and foreseeability, are to be infused with some mystical quality which has not yet been articulated, then it would seem to follow that there is, inevitably, sufficient proximity and foreseeability for the duty of care for the positive actions of the ESB, and for the warning obligation more generally. Consequently, there must be sufficient proximity and foreseeability for present purposes, that is for the alleged duty to avoid or minimise what has been described as “unnecessary flooding”.

117.   What remains, however, is the most difficult question. There is no direct Irish authority on the question of the liability of a dam operator for downstream flooding caused by the natural flow of water through a hydroelectric dam. Indeed, insomuch as there is common law authority, it must, I think, be taken to be hostile to the imposition of a duty of care. Accordingly, it is necessary to consider, in the words of Glencar, whether it is just, fair, and reasonable to impose a duty of care in such a case. For my part, I readily adopt the further gloss upon this term contained in the judgment of Lord Reed in Robinson. This question does not involve some abstract determination of policy. Unmoored from the principles to be deduced from decided cases, such an approach risks becoming no more than the imposition of a judge’s subjective views, heavily influenced by the particular circumstances of the case. Instead, the consideration of the fairness, justness and reasonableness of imposing a duty of care must proceed by analogy from decided cases and the principles to be deduced from them. This third limb is not, as it has sometimes been suggested, an unnecessary and unduly theoretical dispute as to the point at which fairness, justness and reasonableness is to be considered. As Lord Hoffmann observed in Stovin, at p. 949 of the report:-

          “the assumption from which one starts makes a great deal of difference if the analysis is wrong. The trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person (preferably insured or a public authority) whose act or omission can be said to have caused it. The default position is that he is not”.

          This is a useful, if arresting, point from which to analyse the issue. The default position (supported in this case by extensive common law authority and fitting comfortably with the traditional judgment of the common law that a person does not, without more, owe a duty of care to prevent harm occurring to another caused by another person or agency) is that a dam operator does not owe a duty of care to prevent damage from flooding caused by the natural flow of a river. What justifies the imposition of a duty in this case, and, if so, what precise duty?

118.   While it has been necessary to discuss in detail the case law of the United Kingdom, the United States and Canada, among others, it is important to recall that the task of this court is not to navigate a path through binding authorities sometimes difficult to reconcile, which might be the case if any of the prior cases had been decided in this jurisdiction. Instead, the function of this court is to determine the issue as a matter of Irish law. In that regard, it is necessary to remind ourselves that, for good or ill, Irish law has never been as clear-cut or as decisive as, for example, the law in this regard in the United Kingdom. Even if the judgment of Keane C.J. in Glencar should be understood as essentially aligning Irish law in this regard with the developments in the UK post-Caparo, and endorsing the general retreat from Anns - and, for my part, I think it should be so understood - it must be recognised that even then the judgment in Glencar did not cast doubt on the decisions in Siney and Ward, for example, which were explained on the basis that sufficient proximity could be found in each case.

119.   While recognising the substantial achievement in reanalysing the law, and the insights to be gained, in particular from the decision in Robinson, I am reluctant therefore to accept fully the argument that this case should simply be understood as a case of omissions, where it is alleged that the defendant failed to prevent harm occurring from another source, and where the common law does not in general impose a duty of care in such circumstances. There are, I think, a number of reasons for caution in this regard.

120.   First, it is by no means clear that this development has yet run its course, even in the law of the United Kingdom. The history of the development of the law, and the dramatically contrasting fortunes of the decisions in East Suffolk and Anns, for example, at different points along that development, suggest that the point has not yet been reached where a single encompassing principle can be confidently identified.

121.   Second, the clarity and uniformity of the principle extracted from Robinson may be more apparent than real. The principle, expressed by reference to the extract from Tofaris and Steel, is subject to significant and substantial exceptions. Depending on how broadly those exceptions are interpreted, the line between liability and no liability, duty and no duty, may not be just as clear-cut as the clarity of the initial distinction might suggest, or necessarily particularly different from the line which would have been drawn hitherto by the accumulated decided cases.

122.   Third, I accept that the distinction between omissions and positive acts is a real one and not merely verbal. The fact that a case can be characterised in either positive or negative terms is not determinative. In many cases, it will be possible for a court to consider whether in substance what is alleged is, for example, a failure to confer a benefit or prevent a harm. Nevertheless, it may still be a difficult line to draw in particular cases. In this case, for example, it is certainly possible to characterise the claim as one alleging a failure to prevent or mitigate a harm caused by someone, or in this case something, else. That characterisation may indeed be illuminating in the analysis of the case. But it can also be plausibly asserted that the case is also about what the ESB did rather than fail to do, that is its management of the dam and, in particular, the maintenance of the water levels close to MaxNOL. It may be that a choice can be made as to how the case should be viewed, but it is not made for us, beyond argument. When, as it is suggested, the choice of the manner in which the case is characterised will effectively determine the outcome, it is, in my view, unsatisfactory that a decision of such importance should rest on the court’s choice, perhaps never fully articulated, as to the manner in which the claim should be characterised.

123.   Fourth, I would respectfully share the doubts expressed by the concurring judgments in Robinson that the policy factors that lay behind some of the earlier cases can be expelled entirely, or reduced to a minor role. This is particularly so in cases concerning liabilities of public authorities and, perhaps most acutely, police authorities. It may also be doubtful that the cases in that regard can be so comprehensively re-characterised as to be understood as merely cases of omission/prevention of harm or failure to confer benefit cases where the same principle should apply, and result ensue, as if a private individual was involved. 

124.   Dicey’s principle of equality before the law (a phrase that made its way into Bunreacht na hÉireann, but having there a rather different meaning) means, as I understand it, that there is no rigid distinction made by the common law - by which I think Dicey meant English law - between administrative law and private law, as there is in the civil law systems. A trespass by a police officer was the same as a trespass by a private individual and, as importantly, was dealt with by the same code. 

125.   However, I do not see that that is of decisive effect here. Equality means treating like persons alike in respect of those matters in respect of which they are alike. A state employee owes the same duty of care while driving a car as a private individual does, but unless the principle is stated as a very high level of generality, it does not help in addressing those areas where a public body is not the same as, or even like, a private individual. No private person has the power or, as importantly, the duties of a police officer. If it is concluded that a public authority performing a public function is the same as a private individual carrying out a quite different activity for profit, so that a duty of care may arise in both cases, a judgment is being made, but for reasons not necessarily clearly articulated.  

126.   There are, moreover, good reasons for distinguishing between the exercise of a public law power and the carrying on of public duties, on the one hand, and private conduct on the other. The differences of functions, capacity, duty, power and nature, between a public body established pursuant to statute and, say, a private individual engaged in commerce, are all relevant to the issue which is addressed by the question of the existence of a duty of care in negligence. In the classic context of a private action between individuals, the identification of a duty of care is an important part of the tort of negligence. The function of the tort is generally to provide for the compensation of persons suffering injury or loss by reason of acts deemed wrongful in the past, but is also intended to affect, and improve, future behaviour. The use of a duty of care and liability for breach seeks to dissuade persons from engaging in behaviour that can cause unacceptable loss or damage to others, or at least to bear the cost of that activity. As Calabresi observed, if a person is held liable for the damage and loss they caused to others, this person will eventually refrain from carrying out the harmful activity. (G. Calabresi, ‘Some Thoughts on Risk Distribution in the Law of Torts’ (1961) 70(4) Yale Law Journal 499). 

127.   A private individual or business can choose to engage in an activity and alter its manner of operation if it finds it too costly to do so, or alternatively decide to absorb the cost if that is considered preferable to the cost of avoidance, or may abstain from the activity altogether if the risks of accident and the cost of avoidance make the activity unprofitable. A public body is not necessarily in an equivalent position. For example, it cannot necessarily decide to refrain from an activity authorised, permitted, or sometimes required by statute, simply because of the potential for litigation, nor is it necessarily desirable that it should. It is still desirable that such bodies should carry out their functions carefully and avoid possible injury or loss to others, or indeed prevent harm to them, or confer benefits on them. But it is not self-evident that the same analytic structure should be applied to such a question as to a private individual engaged in activity, perhaps for profit. Indeed, it is perhaps noteworthy that Tofaris and Steel, in their article, cited at para. 95 above, make this point, albeit for the purposes of arguing that the police should be subject to liability where a private individual would not . They argued that:-

          “[I]t is doubtful that the rule of law, even on Dicey’s conception, is truly engaged here. The rule of law does not prohibit differential treatment of the state and private individuals if there are normatively important differences between individuals and the state which justify this. It is hard to believe that there are no normatively important differences between police officers and private individuals with respect to the suppression of crime”.

128.   Finally, and in any event, it is doubtful that it is possible to take the step in this case of recasting the existing Irish law on the identification of a duty of care solely in terms of omission/failure to confer benefits or prevent harm and positive action, even if that were considered desirable. Without doubting the analytical benefit, therefore, of identifying cases which can be said to be omissions or, more accurately, failure to prevent harm from others, I do not think it can be the sole or decisive touchstone for this case. Also, while the principle of a distinction is valid, the East Suffolk case, despite its points of contact with the present case, is not an ideal example. If, for example, the catchment board had succeeded in repairing the wall within 14 days, but had done so defectively so that the wall burst again, they would, as I understand it, be liable on the Geddis principle. It is difficult to see a clear bright line distinction between such a case and what was done by the board in fact. East Suffolk must therefore be seen at best as the high water mark, as it were, of the principle.

129.   It is, in any event, difficult to view this case solely by reference to what flooding would have occurred on the River Lee had the hydroelectric dam system not been put in place, at enormous cost to the country, in 1947. The development of hydroelectric schemes were massive industrial undertakings at the time, and it is somewhat artificial to seek to judge the liability of the ESB for a flood which occurred nearly 70 years later by reference to what would have happened on the river had there been no such system installed.

130.   On the other hand, substantial as these dams are, and as sophisticated as the operation is, they do not seem to me to make the ESB the master of the river or the controller of the situation, as McCurn J. considered in his dissent in Iodice. It is clear that nature still controls the fundamental elements of the equation beyond the power of the ESB, such as the contours of the river, the topography of the surrounding countryside, and the quantity, rate, and duration of rainfall. These factors may be affected by matters which are also outside the control of the ESB, such as developments upstream affecting the flow of rainfall into the river and its tributaries, and developments downstream facilitating or retarding flooding. The ESB may be able to harness nature to some extent by guiding the river through its turbines to generate electricity, and holding back water in its reservoirs to ensure a steady supply of water through the year, but it has not tamed nature, and in a world of increasingly severe weather events, it is clearly not in control of everything that happens on the river, and which affects the flow of water on it. While therefore benefitting significantly from the insights offered by case law as it has developed in other jurisdictions, I think it is necessary to approach this case at a perhaps more fine-grained, indeed granular, level. 

131.   The High Court found that the respondent did owe a duty of care and breached it. It should, the court considered, have reduced the water levels to TTOL and, as it was put pithily, TTOL was the new MaxNOL. But this approach was comprehensively criticised in the Court of Appeal judgments for reasons that I find persuasive.

132.   First, the concepts of TTOL and MaxNOL are designed to allow the water level to move between the two points without limiting the generating capacity and efficiency at the lower levels, or endangering the dam at the higher levels. If the High Court judgment was correct, this would become impossible. The ESB would be obliged to discharge water all the time to keep the level of the dam to TTOL, with the inevitable consequence that it would on occasions drop below it, with a consequent impact on the generating efficiency of the turbines, and in certain circumstances, perhaps leading to closure. On the other hand, the spare capacity between TTOL and MaxNOL would never then be used, even though it is precisely that capacity which was capable of limiting the flooding risk by at least that amount. If there was a sudden in-flow of water as a result of persistent rain, the waters, instead of being retained safely within the dam, would have to be discharged, even though that itself might lead to flooding. On this appeal, UCC did not seek to revive this theory. Instead, it offered a more sophisticated approach drawn more closely by reference to the facts of the particular case.

133.   The evidence shows that the ESB, as might be expected, had a very good understanding of likely events, taking account of anticipated weather and predicted rainfall and water in-flow. UCC now suggest that for a very limited period between the 16th day of November, 2009, and the 20th day of November, 2009, ESB recognised that they had to spill or discharge excess water to bring the level below MaxNOL. It did this successfully, and if it continued to do so, it would have reduced the level of the water even further, which would have meant that the dam would have had more storage capacity to hold the accumulated water during the heavy rainfall which was forecast at that time, and which indeed arrived. If so, while further discharge of water in considerable quantities would still have been necessary, the volume would have been less. There would still have been flooding, but it would have been less severe, and it follows that buildings further away from the river might not have been flooded at all.

134.   I am prepared to accept that, as a matter of fact, in hindsight, when all the variables are known and fixed, this theory is accurate, even though the calculations are perhaps more complex that this simplified account allows. The one given is the amount of rainfall and the consequent water flow into the dams, which have limited capacity. The UCC theory of earlier and greater releases relies upon water being discharged earlier into a river already approaching its capacity. I am prepared to accept that in hindsight, with all the information available, and probably also in advance of the event, with the predicted rainfall figures, the ESB had sufficient knowledge of the capacity of the river bank and the ability to model the likely impacts, such that additional water could probably have been discharged without causing additional flooding, which would then have reduced the necessity to release as much water as was released on the night in question.

135.   Undoubtedly, therefore, this case must be approached on the basis that ESB could have managed a difficult situation better than it did. The question remains whether it was under a duty to do so, such that it should now bear the very considerable costs of the flooding (and the not inconsiderable costs of establishing such liability). One further factor that emerges from this focus on the facts is that what this theory gains in plausibility and factual accuracy, it loses in simplicity and clarity. ESB is not now liable for all the flooding which occurred. Whereas reduction of the water level to TTOL and maintenance there has at least the attraction of a defined level to which liability could be attached, that point becomes more blurred on this more qualified theory of liability. Either some lower level ought to have been maintained, or some greater discharges  made, or MaxNOL ought to have been more comprehensively exceeded, or some combination of these.

136.   The flooding must now be divided into two categories:  as the ESB  put it, “necessary” and “unnecessary” flooding, or perhaps “avoidable” and “unavoidable” flooding. If UCC is correct, ESB must bear the cost of the unnecessary and avoidable flooding, while the property owners, or, more plausibly, their insurers, must bear the cost of the unavoidable and necessary flooding. This, moreover, is not merely an exercise in drawing a line by reference to a computer model identifying the likely extent of the point that would be reached by the unavoidable/necessary flooding: on this approach, every premises that was flooded was flooded to a greater extent, and for a greater time, than was necessary and unavoidable.

137.   It is, of course, not an impossible exercise, even if expensive and cumbersome, to divide the damage in such cases between the respective parties, but it leads to a consideration touched on in Stovin: the downstream landowner, if insured, is insured against all loss caused by flooding whether avoidable or not, and the premium is calculated accordingly. It becomes a much more difficult question to explain why the insurer should be relieved of that part of the cost of flooding claims by being able to make a claim against ESB, especially since this cannot have an impact on the calculation of the premium to their client, but would, however, require ESB either to absorb those claims, or to insure against such an extensive liability. 

138.   A further consideration which must be taken into account is the impact on ESB’s activity of a potential exposure to liability for failure to prevent or mitigate, or better prevent or mitigate,  flooding. In Iodice, it was argued that a duty to avoid flooding was consistent with the authority’s statutory function in that case of controlling the water canal system, since excess water being released into the river was inconsistent to the proper management of that system also. Even so, the court was unpersuaded that a duty of care should be imposed.

139.   But the statutory function of generating electricity is not consistent in this way with the proposed duty of care. Instead, as observed at the outset, there is an irreducible tension between the two. The maintenance of water levels in a reservoir is done to permit the most efficient generation of electricity by the turbines. If water is discharged, without passing through the turbines, that may make the generation of electricity more inefficient, less cost effective, and, in certain circumstances, not possible. In principle, there is, of course, no fundamental difficulty in having a duty of care that is opposed to, and constrains, the economic interests of the person on whom it is imposed. Indeed, it can be said in some cases to be one of the civilising effects of the law of tort. Indeed, as I understand, it the High Court judge, and my colleagues in the majority, point to the relatively small income generated by ESB for the retained water, particularly when compared to the damage caused by the flooding, as an important factor justifying the imposition of a duty of care, and consequent liability. I would see that disparity between the benefit to ESB of a somewhat higher level of water in the dam, and the potential cost of flooding claims, which in this case will run to many hundreds of millions of Euro in a somewhat different light. Given this disparity, at any given point where ESB must consider the discharge of water to avoid a risk of flooding, it is almost bound to do so. A common law duty to avoid flooding will almost always trump the statutory obligation to generate electricity. In effect, the dam becomes not just a dual-purpose dam, but one in which the flood avoidance obligation must predominate, with the cost falling on the ESB and its customers.

140.   The limits of any duty are not readily apparent. It would seem that, if they are to be effective, flood avoidance discharges would have to exceed inflow, but, if so, then it would appear that the ESB would be liable - without the necessity of proof of fault – for any damage that was caused by that discharge. If the position arose that discharges in excess of 150 m3/s were necessary to avoiding flooding of buildings, would the ESB be obliged to permit discharges that would flood, and therefore damage land? Furthermore, while the flood models seemed to show that the river could accommodate total discharges of 150 m3/s, the river is not a pipe or funnel with fixed characteristics. The flood plains were saturated. It should not be too readily assumed that any deliberate discharge would not cause flooding. Discharges in excess of the river flow may therefore carry different risks.

141.   If a duty of care is found in this case, then the ESB customer will not only bear the cost of the very substantial damages in increased electricity charges, but also the increased cost caused by the reduction in generation efficiency that would be a consequence of the measures necessary to be taken to avoid any risk of flooding, steps which would have to be taken in all hydroelectric dams in the jurisdiction. Even so, the risk of flooding cannot be fully removed, even if, in an extreme circumstance, the dams were empty. Notwithstanding the impressive engineering achievement involved in erecting the dams and generating electricity from the water, the fundamental concept of a dam as a flood alleviation device is reasonably simple: a river has a natural capacity to contain a certain amount of water and if that is exceeded, there will be flooding at certain points. The erection of a dam creating a reservoir increases the capacity of the river. If, however, that increased capacity is exceeded, there will still be flooding. There are a number of factors leading to the risk of flooding, including: the likelihood of increased rainfall and severe weather events; developments which may increase the reception of water into the river upstream of the dam; developments affecting the flood plain by either increasing the capacity for floods to be released harmlessly, or reducing those flood plains, and accordingly decreasing the capacity of the river to pass safely without flooding through more densely populated areas; increasing the density of development downstream so that any flooding is more damaging; the development of flood defences; the granting of planning permission; and the design of premises. Indeed, the finding of contributory negligence by the High Court is one clear illustration of that fact. It amounts to a determination that the flooding to UCC’s buildings was caused in part by decisions as to location and construction of the buildings (and it is irrelevant for these purposes whether that negligence can be attributed to UCC or its advisors). This aspect also illustrates the difficulty of assembling all causal actors and ensuring that they are in a position to provide compensation in the context of private law litigation. The dam is only a part of the picture.

142.   The statutory background becomes relevant at this point, since it sets the legal context in which the ESB comes to be on the river, and accordingly in which this issue must be addressed. As Lord Browne Wilkinson observed in X v. Bedfordshire C.C. [1995] 2 AC 633, the question of the existence of a duty of care, and, if so, its ambit, must be profoundly influenced by the statutory framework within which the acts were done. It is noteworthy that in both Stovin and East Suffolk, the public authority had a statutory power to do the very thing that it was alleged there was a common law duty to do. Even so, there was no liability. Here, the position is even weaker.

143.   It is irrelevant for present purposes that the ESB is itself a corporation established pursuant to statute and publicly owned. The same duty of care must be owed by a private dam operator seeking to generate electricity for private profit from hydroelectric activity on the river. That indeed is an application of the principle of equality before the law.

144.   However, any body, public or private, seeking to build and operate a hydroelectric station on the river must normally have statutory power to do so, and this power must permit the necessary interference with the rights involved, whether of riparian owners, or of fishing or of other property rights. The objective justifying the statutory conferral of power to dam the river is of course the generation of electricity power, which is of enormous public benefit. The 1945 Act does not itself contemplate the company also fulfilling a flood prevention role. The flood alleviation created by the existence of the dams is seen therefore, at least in statutory terms, as, at best, an ancillary benefit rather than a statutory object. As Lord Hoffmann said in Stovin:-

          “I do not say that a statutory “may” can never give rise to a common law duty of care… But the fact that Parliament has conferred a discretion must be some form of indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions must be rare”.

          It is relevant, therefore, that a finding of a duty of care to mitigate the flooding risk would have the effect of constituting the ESB a flood management and electricity generating body in circumstances where, given the risk of flooding and the extensive potential liability, the flood alleviation duty would tend to outweigh the statutory obligation of electricity power generation.

145.   UCC’s case depends ultimately on the strong gravitational pull created by the facts of sufficient proximity and foreseeability, and the fact that if the ESB had managed the flood better and more skilfully, it could have reduced the impact of flooding in Cork City by discharging more water earlier, without itself causing flooding. Severe damage was suffered, and it can be demonstrated that the ESB did not do something which in hindsight it could have done, and almost certainly in future would do. In the shorthand of lawyers, that is often enough to establish liability. The question remains, however, whether it is fair, just, and reasonable to find that the ESB owed a duty of care so that it is liable for the loss suffered by UCC and others by the flooding that could have been avoided. UCC’s case is that ESB could have done something more to alleviate the flooding, and therefore should have. This brings us back to the gap identified by Lord Atkin in Donoghue v. Stevenson between what morality might expect of a neighbour, and what the law demands and punishes the failure to do, and upon which distinction it is arguable the modern law of negligence rests. 

146.   As set out above, I am not yet convinced that all of the case law on negligence can be refashioned into a distinction between a failure to confer benefit where presumptively there is no duty, and those of positive action where there will be. However, there is a valid distinction, and it is important to recognise that the law is reluctant to impose a duty of care for failure to do something which could have been done and would have avoided or mitigated harm. It is to be noted, moreover, that the Law Reform Commission recommended against any extension of liability in this area: see LRC Consultation Paper on Civil Liability of Good Samaritans and Volunteers, (Law Reform Commission, CP 47-2007), para 2.52. This recommendation was ultimately repeated in the final report: Civil Liability of Good Samaritans and Volunteers (Law Reform Commission, LRC 93-2009). In Donoghue v. Stevenson, Lord Atkin expressed his satisfaction that the common law he identified was consistent with the law in the United States and where the same principle had been identified by Cardozo J. in the famous case of MacPherson v. Buick Motor Co. (1916) 111 N.E. 1050. For similar reasons, I would give weight to the strong and consistent line of authority from North America on the liability of dam operators for downstream flooding. UCC do not suggest that this notably consistent line of authority can be explained by differences in doctrine or approach. Indeed, the very comparison drawn by Lord Atkin shows that, in this respect at least, the United States law rests upon essentially similar foundations, and the analysis applied therefore may be of benefit. In any event it is apparent that these cases are consistent with the common law as set out in Canadian and UK jurisprudence.

147.   The manner in which this case law was sought to be distinguished in the High Court judgment is unpersuasive, as illustrated neatly by the fact that the judgment of Charleton J., which would go some way towards supporting the High Court judgment, does so in reliance on the works of Prosser and Keeton on Torts (St. Paul: 5th ed, West Publishing Co., 1984), the standard text in the US, and the work originally authored by Professor John Fleming, an Australian lawyer but also the long-time professor of tort law in the University of California at Berkeley (J. Fleming, The Law of Torts (Sydney: 10th ed, The Law Book Co, 2011). By contrast, the German law of delict figures rarely, if at all, in these courts for obvious reasons, given the differences in the legal systems. In any event, I did not understand it to be suggested that German law would impose liability in this case. If so, then the weight of common law authority, which has not been persuasively distinguished, is a significant factor in this case.  

148.   One feature that emerges clearly at this point is that the theory on which liability is now to be imposed on the defendant, on the approach of the majority judgment of Clarke C.J. and MacMenamin J., is one which has only emerged in the course of the appeal process and from the need to avoid the difficulties that have become apparent in the approach of the High Court of fixing liability by reference to TTOL. But this means that no expert evidence has supported this analysis or theory. At a more basic level, it seems that UCC’s case necessarily means that the Lee Regulations that applied in November 2009 were defective, and an approach that no reasonable hydrogenerator could or would take. But it does not appear that any expert witness went so far: the evidence was, at best, that had other steps been taken the flooding would have been lessened, but that stops an important distance short of establishing a duty of care or indeed breach of such duty. No witness with expertise or experience in hydrogeneration has said that a reasonable hydrogenerator would not have acted as ESB did in the construction and revision of the Lee Regulations, or as it did in the week commencing on the 16th of November, 2009. Moreover, it is apparent that the finding of the High Court amounts to a finding that the dams served both a hydrogenerating and flood alleviation purpose, but not only is this inconsistent with the finding that the dams were single purpose dams, it also fails to explain how the tension between the two functions is to be resolved. Indeed, insomuch as it is inevitable that the hydrogenerating function must be subordinated to a flood alleviating function at some points, no attempt is made to explain how that point is to be identified and whether (and, if so, why) the ESB should be required to bear the cost of it.

149.   The approach contained in the cases from other common law jurisdictions  reduces to a rule of thumb that a dam owner owes no obligation to downstream property owners if he or she does no more than permit the same quantity of water to exit the dam as enter it in any given period, an approach which shows a healthy regard for the forces of nature, something that, in a climate-uncertain world, is of renewed importance. These are factors, therefore, against the imposition of a duty of care.

150.   It may be said that such an outcome does not encourage the dam operator to optimise performance and avoid damaging floods, which is obviously desirable. That is so, but enforcement by private action is not the only, or indeed necessarily the most efficient, method of improving behaviour. The threat of liability for widespread flooding is a blunt instrument that can deter activity which is beneficial, along with that which is harmful. The ESB point out that the Directive on the Assessment and Management of Flood Risks 2007 (2007/60/EC) obliges Member States to adopt flood prevention measures. In the case of a river like the River Lee, that may involve, for example, developing plans for the siting of properties, adopting standards for the construction of buildings, the creation of flood plains or flood alleviation measures, and the erection of flood defences, together with the possibility of insurance covering unexpected and severe weather events. The attenuation of the flooding risk created as a by-product of the hydroelectric generation is a part of that process. It is recorded in the High Court judgment that in the aftermath of the flooding the ESB agreed with the County Council to reduce MaxNOL, which would have the effect of permitting earlier spilling of water and the possibility of allowing the water level to exceed MaxNOL in flood conditions. The better management of flood waters in the future and the coordination of the ESB’s management of the dam to facilitate the generation of electricity, the maintenance of  upstream wetland areas, and the provision of drinking water supply can all be achieved in this way, rather than by the blunt instrument of imposing a duty of care and consequent enormous liability for past flooding which had never been established in legislation or case law in advance of the flooding, and at the same time releasing insurers from the obligation that they unambiguously undertook. In my view, an extension of a general duty of care is not justified in this case.

151.   It remains to consider if there is a more narrow basis for a duty of care consistent with the general principle that the law does not normally impose a duty of care for failure to prevent harm, absent some justification such as a pre-existing relationship, or an assumption of risk, or general or specific reliance. Possible headings under which liability might properly be imposed in such situations were identified in the Tofaris and Steel article set out at paragraph 95 above, namely: assumption of responsibility; prevention of someone else doing something to remove the danger; a special level of control; or a responsibility flowing from status. As already observed, these are substantial and significant exceptions to the general principle which make it clear that there may be many cases of a failure to confer a benefit or prevent harm where the law will impose a duty of care.

152.   The difficulty of this case is perhaps illustrated by the fact that it is possible to argue that the ESB’s position as dam operator on the River Lee, coupled, perhaps, with its conduct and statements over the years, brings itself within one or more of these categories. I do not think that it can be said that ESB assumed a responsibility or liability for flood prevention generally, even if it did promote the flood alleviation effect of the dams and their operation. Nor can it be said that the ESB had a particular status vis à vis the occupants of premises, akin perhaps to a parent, or a person in loco parentis in respect of a child, nor can it be said that the existence of the dams in any way prevented the erection of other dams for the sole purpose of flood relief.

153.   Perhaps the most plausible argument is that which, as I understand it, has persuaded my colleagues concurring in the majority judgment. It is said that the operation of the dams gave ESB a special level of control over the river, and in that sense the placing of the dams and the river itself creates a relatively close and defined relationship of proximity between the dam operator and those downstream and likely to be affected by flooding. I recognise the attraction of this approach. However, it is striking that no version of this argument has found favour in the dam cases to date. It turns, ultimately, on the same point that divided the majority in Iodice from the single dissenter: I cannot accept that by erecting the dams the ESB made itself the master of the river, so that it could be said to have a special level of control over it. Instead, and consistently with the statute, it had a capacity to generate electricity, which incidentally had a beneficial flood alleviation effect. Nothing in the position of ESB meant that it had a legal obligation to go further and operate the dams for the purposes of flood alleviation. The formulation in the Tofaris and Steel article is a reference, as I understand it, to the well-known decision in  Dorset Yacht. I am not persuaded that the facts of that case giving rise to the principle in that case are sufficiently comparable to this case such as to permit it to be brought within that line of authority. The special level of control the Home Office had over the Borstal boys who caused the damage arose not only from the significant fact that they were in the custody of the Home Office as a matter of law, but also that it was the Home Office, in the words of Lord Reid, that brought the boys to Brownsea Island, where they were at all times “under the supervision and control of  three Borstal officers” (p. 1025 of the report). It is not, I think, overly simplistic to observe that one thing which everyone might agree upon is that the ESB did not bring the River Lee to Cork, and did not deliver it to the city on the night of the 19th of November, 2009. UCC was flooded by the River Lee. The existence of the ESB dams reduced the flooding. ESB was not obliged by law to do more.

154.   The High Court was also prepared to find the ESB had a liability under the principle in Goldman v. Hargrave. It does not appear that this principle has been explicitly accepted in Irish law and, even if so, it has not been authoritatively determined whether it is to be considered an extension of the traditional law of nuisance, albeit introducing a requirement of negligence, or if it fits more comfortably as an example of one of those limited cases just discussed where a person owes a duty of care to prevent harm created by someone, or in this case something, else. The law has a number of unusual features,  most clearly the concept of a “measured duty of care” dependent on the resources of the occupier. I can see the strength of the argument for liability where a tree struck by lightning gave rise to a bushfire which risked spreading to the adjoining property, and the wisdom of the decision in that case. It is not necessarily an objection if the underlying principle is indistinct. The fact that the case has remained an important part of the common law suggests that it expresses some important judgment as to the justice of the particular circumstances: a fire that could have been extinguished relatively easily causing destruction in the Australian countryside.

155.   But I do not see that the case, or those which followed it, such as Leakey v. National Trust, can be decisive here. Those cases depend upon the traditional law of nuisance, where a neighbour is a much smaller category than the neighbour in contemplation in Donoghue v. Stevenson. The plaintiffs in Goldman were nearby owners or occupiers of adjoining lands. There is no suggestion that the defendant would owe a duty to everyone affected by the fire, however far it spread. Here, UCC is not an adjoining owner - in fact, its property is very distant from that of ESB. The significant development of the law in Goldman was the recognition of a limited duty of care to a limited number of people - the ambit of this duty on the landowner is necessarily less extensive than the scope of the duty of care in negligence simpliciter. If it is the case that there can be no justification for a duty of care in negligence for the reasons already set out and discussed, the deficit cannot be supplied in this case by re-characterising the duty as a more limited one by reference to the law of nuisance. I would dismiss the appeal.