Nuisance
Cases
Boyd v The Great Northern Railway Co
[1895] 2 IR 556
Andrews J: We have not had the advantage of hearing counsel for the Railway Company, who have not appeared on the argument of this case; but having regard to the findings of fact by Mr Justice Gibson, I feel no difficulty in deciding the question he reserved for the opinion of the court, viz whether on the facts proved the defendants are liable to the plaintiff in this action. The Railway Company are not entitled either under the 47th sect of Railways Clauses Consolidation Act 1845, or any other enactment to obstruct the public highway, which they obtained power to cross on a level, for a longer period than is reasonably necessary for their own authorised purposes, and the protection of the public using the highway; and even without any such expression of judicial opinion as is to be found in the case of Wyatt v The Great Western Railway Co 6 B & S 709, 34 LJ, QB 204, I should have been quite prepared to hold the defendants liable in the present case. By the findings the only two material questions of fact are affirmatively determined, viz whether the defendants on the occasion in question unreasonably and unnecessarily obstructed the highway, and if so, whether the plaintiff suffered thereby some appreciable damage peculiar to himself beyond that suffered by other members of the public ordinarily using the highway? The learned judge has found that an actual delay of twenty minutes was occasioned by the defendants, not by any necessity arising from their traffic or otherwise, and that the delay was unreasonable, and the result of negligence on the part of the defendants. He has also found that the plaintiff is a medical man, in very large practice, whose time was of pecuniary value, and that he had sustained personal pecuniary damage from the delay of twenty minutes, which the learned judge estimated at ten shillings. Everything, therefore, which is necessary in point of law to entitle the plaintiff to recover damages in this action, has been established in point of fact, and our answer to the question reserved for our opinion must be that on the facts proved the defendants are liable to the plaintiff.
The learned judge will, upon our decision being communicated to him, reverse the dismiss, and give the plaintiff a decree for ten shillings, with such costs as he shall think it proper to award, and we shall order the defendants to pay to the plaintiff £10 for the costs of the argument before us.
ntiff in the enjoyment of her house and subject to the issue of delay she is entitled to relief.
I am also satisfied that there has been no undue delay. There are many cases such as this where a lot of neighbours will express support for the action but are then unwilling to risk the actual litigation and delays arise in trying to persuade them to support an action. The plaintiff was collecting signatures of supporters in the neighbourhood and the defendant must have been aware of this in the years 1980 and 1981. A letter of complaint was written in October 1981. The defendant cannot shorten the period of prescription from 20 to 2 years by saying that he did not realise that there were or would be objections when he bought and paid for the premises. In Mullin v Hynes (unrep Supreme Court, 13th November 1972) the defendant built his dance-hall in 1961 but the proceedings were not started until January 1967 and, nevertheless, the plaintiff succeeded.
The plaintiff in this case is therefore entitled to relief but the defendant is to be disturbed in the use and enjoyment of his property to the minimum extent consistent with giving reasonable relief to the plaintiff. I considered whether I should limit the injunction so as to prohibit only night trading in such a way as to cause a nuisance but I have come to the conclusion that this would be unworkable because any night trading at all will cause an actionable nuisance by the noise made by ordinary law abiding citizens in resorting to the premises.
I therefore affirm the order of the learned Circuit Court Judge but I vary it as follows:
“The defendant is hereby prohibited and injuncted from opening or keeping open to the public or trading or carrying on business with the public in or from the premises known as Campbell’s corner No 409 North Circular Road in the City of Dublin between the hours of midnight and 6 am, during all seasons of the year.”
I shall put a stay on the commencement of the order until Saturday the 1st December 1984, to enable the defendant to make arrangements as to staff etc. The order will therefore come into operation at midnight on the 1st December 1984.”
I award costs to the plaintiff in both the High Court and the Circuit Court and each party shall have liberty to apply to the Circuit Court.
Molumby v. Kearns
[1999] IEHC 86
O’ Sullivan J.
…THE PARTIES AND BACKGROUND
1. The first and second Plaintiffs are husband and wife and live at No. 28 Foster Avenue, Mount Merrion. The second and third Plaintiffs are husband and wife and live next door at No. 30 Foster Avenue. The fifth and sixth Plaintiffs are husband and wife and live at Glenville, Foster Avenue, Mount Merrion, which is on the same side as No. 26 and No. 28 and separated from No. 26 by an industrial estate known as Glenville Industrial Estate owned by the first and second Defendants with an official address at No. 26 Foster Avenue.
2. I shall refer to the first and second Plaintiffs as the Molumbys, the third and fourth Plaintiffs as the Careys and the fifth and sixth named Plaintiffs as the Kirranes.
3. The industrial estate comprises eight bays, six of which are now occupied by the fourth and fifth Defendants. The fourth, fifth and sixth Defendants are companies of which the first and second are Directors and shareholders. The third Defendant did have an interest in these companies but sold it to the first Defendant and the second Defendant, who is his brother, in late 1996. The remaining two bays in the industrial estate are occupied (save for a small office portion in the occupation of the fourth Defendant) by a company known as Chervil Limited. The gross “footprint” of the industrial estate comprises some 30,000 square feet. It is accessed by a narrow lane which gives on to Foster Avenue and proceeds inwards for some 70 yards and widens out at the inner end. The eight bays front on to that lane and are situate on the left as one proceeds inwards. Accordingly, they extend from the lane towards the Kirranes home at Glenville, that is, to the left as one faces in from Foster Avenue. The lane itself is bounded on the right (as one enters) by a wall, on the other side of which is the home of the Molumbys at No. 28. Apart from a rear garden attaching to the Kirranes’ home there is also a side garden which runs along the Foster Avenue frontage between their house (which is situate some 40 yards from the lane) and the industrial estate. This side garden lies inside the footpath adjoining Foster Avenue and between that and the first of the bays and runs parallel to that bay. At the end of the garden adjoining the lane there is a small building which contains a garage, which is used by Dr. Kirrane for his car, and a small living area which is known as the lodge. Beside the lodge there is a pedestrian gate which gives on to the lane from the garden.
FACTS GIVING RISE TO THE DISPUTE
4. The Kirranes have been in residence at Glenville since 1973, the Molumbys at No. 28 since 1994 and the Careys at No. 30 since the end of 1991. Up until the 7th June, 1996 the entrance to the lane servicing the industrial estate comprised two brick pillars, some 10 ft 6½ ins apart. On that date the right hand pillar (as one approaches the entrance from Foster Avenue) and some wall were removed in circumstances which will be described later.
5. The case made by the Plaintiffs is that since the knocking of the pillar, larger, louder and more polluting trucks have been accessing the lane so that there has been a dramatic increase in the number and size of vehicles together with the hours at which they come and go. This has caused a major nuisance to the Plaintiffs, particularly the Molumbys, who live immediately adjoining the laneway to the estate on the other side of a boundary wall, but also to the Careys and the Kirranes. They complain, not only about noise of truck engines and vibrations, but also fumes, diesel engines left running, radios left on, obstruction of gates, in particular the gate where Dr. Kirrane keeps his car immediately adjoining the lodge beside the estate entrance, and also the gates of the other Plaintiffs, congestion of traffic, and disruption of traffic on Foster Avenue when large vehicles are manoeuvring to access the laneway. There are subsidiary complaints relating to nuisance caused by the maintenance of a skip at the end of the lane (that is the furthest end of the laneway from Foster Avenue), the parking of vehicles in the lane over night, the servicing of vehicles from an oil tank kept towards the end of the lane immediately adjoining the Molumbys’ boundary, and noise from saws cutting wood and metal in the bays of the estate, particularly in 1996 but also in other years. There were complaints about noise from a hard wheeled fork lift truck used to shift loads around the estate.
CLAIMS OF THE PARTIES
6. The pleadings refer to a claim by the Molumbys that their wall has been physically damaged but this matter was not dealt with by me because it was met by the Defendants with a lodgment which was accepted by the Molumbys and it was agreed that no reference would be made to that particular matter in the course of these proceedings.
7. The Kirranes have included a claim for a right of way from the entrance to the estate to their side pedestrian gate adjoining the gate lodge. This issue was formally addressed on the thirteenth day of the hearing, when I ruled that it could not be conveniently disposed of together with the other causes of action in this hearing because it had not been pleaded with sufficient particularity. Furthermore, it involved only the Kirranes and I considered that it would be more convenient to have that matter dealt with after pleadings in a separate hearing. Accordingly, the Kirranes’ right of way claim is not being dealt with in this judgment.
8. The Plaintiffs bring their action in nuisance but they have also brought proceedings pursuant to Section 27 of the Local Government (Planning and Development) Act, 1976 on the basis that there has been such an intensification of use (following the knocking of the gate pier in June 1996) that it amounts to a material change of use which requires planning permission, but does not have it, and also upon the basis that one of the uses in Bay 1 (Bay 1 is nearest Foster Avenue as one proceeds in the lane and Bay 8 is at the innermost end) which is a distributor use for Dell Computers is itself a use which requires planning permission but does not have it. They also claim that the Defendants should be ordered to reinstate the gate pier and wall in their original position, and, further that they are in breach of a condition of planning permission requiring them to use the estate only in a way which would not be a nuisance to their neighbours.
9. At the outset of the hearing before me, I ruled that the cases should be tried together and that the evidence presented would be evidence in both cases. Accordingly, I ruled that the Affidavit evidence supporting the application under Section 27 was evidence in the nuisance action as well as in the planning application.
PRELIMINARY ORDERS
10. The matter first came on before me on an interlocutory basis on the 30th July, 1997 when I made an Interlocutory Order restraining the Respondents until trial of the action from compacting waste on any part of the industrial estate (the compacting of waste was taking place in large trucks very similar to local authority rubbish compacting trucks); from using a pallet truck on any of the lands except inside the buildings; and from parking Shreddit trucks overnight. The Order also excluded all vehicles from the estate except between 9 a.m. and 5 p.m. Monday to Friday and 9 a.m. to 1.30 p.m. on Saturdays. I made a further Order in relation to the wall between the Defendants’ and the Molumbys’ properties, which is not relevant to this hearing and I made a further Order requiring the erection of a temporary structure at the entrance so as to restrict the access to its original width of 3.215 metres (10 ft 6½ ins).
11. The Plaintiffs subsequently complained that the Defendants had not obeyed this Order and brought a motion for contempt in July 1998. On that occasion it was clarified that the Order which precluded access “by any vehicles” to the industrial estate other than between the authorised hours precluded all vehicles and not merely trucks or commercial vehicles as was thought to be the case by the Defendants. From that time forward all vehicles have been kept out of the estate between 5 p.m. and 9 a.m. Mondays to Fridays and 1.30 p.m. Saturday and 9 a.m. the following Monday.
12. Since that time the Plaintiffs say the estate has been peaceful at night time and their primary outstanding complaint relates to the size of vehicles accessing the estate during the permitted hours in the working week.
ISSUES
13. The Defendants have responded by fully defending these claims. The issues which arise are:-
(a) whether the Defendants have been using the estate in breach of a planning condition;
(b) whether there has been a material change of use by way of intensification;
(c) whether the “Dell” use requires planning permission;
(d) whether an Order can be made in respect of (a) or (b) in the circumstance where the breach has allegedly been continuing for more than five years;
(e) should the Defendants be ordered to re-instate the gate pier?;
(f) are the Defendants in breach of a covenant on their title precluding use of the estate which would be a nuisance;
(g) do three of the Plaintiffs have locus standi to bring the action in nuisance?; and
(h) are the Defendants guilty of nuisance?
14. Before summarising the evidence of the main participants which throws up considerable factual controversy between the parties I propose first to synopsise the uncontroverted evidence of the planning expert from Dun Laoghaire Rathdown County Council; next to synopsise the evidence of the opposing acoustic experts where opinions did not significantly diverge, and thirdly to summarise the evidence of two relatively independent witnesses, one called by each side, which deals with the pattern of activity on the estate in the later 80s and early 90s. In this way an objective setting can be established for the evidence of the main protagonists……
THE NUISANCE ACTION
Locus Standi
108. The Defendants submit that Mrs Kirrane has no locus standi to bring the nuisance claim nor have the Careys. They accept that Dr. Kirrane has locus standi but the title shows that he and he alone has a legal interest. In the case of the Careys it is submitted that there is not sufficient evidence to show that they have an interest in their property. The Defendants accept that the Molumbys have established such an interest. This latter is because Ronan Molumby’s Affidavit, sworn on the 14th February, 1997, states that their dwelling house was “purchased in our joint names in or about the month of July 1994” .
109. With regard to the Careys, the position is that Dominique Carey in her Affidavit of the same date at paragraph 8 says that “the house is the only asset that we have and I say that it is likely that we will suffer a major financial loss” . This is stated in the context of her having sworn immediately beforehand that she would have no option “but to sell my house” if the nuisance continued. Her husband, Colm Carey, swore an Affidavit on the 19th March, 1997 and makes no reference to ownership or interest in the house. His wife swore a further supplemental Affidavit of the 19th March, 1997 where she alludes to “my house” . Mr. Herbert S.C. submits that this leaves the Court in a position of having to speculate as to whether Dominique Carey owns their house or whether they both own the house or whether either of them have any legal interest in it.
110. This submission relies on a distinction which appears to have developed on the law of nuisance in the United Kingdom and which is particularly articulated in Hunter and Others v. Canary Wharf Limited [1997] 2 All ER 426. A majority of the House of Lords held that in order to sue in nuisance a plaintiff had to have an interest in the land. For example, Lord Goff of Chievley (at page 436) said:-
“Subject to this exception, however, it has for many years been regarded as settled law that a person who has no right in the land cannot sue in private nuisance”.
111. On the other hand Irish law on nuisance has been authoritatively re-stated in Hanrahan and Others v. Merck Sharp and Dohme (Ireland) Limited [1988] ILRM 629. In the Supreme Court decision delivered by Henchy J. (and in particular at page 634) it is stated:-
“It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that”.
112. Later on at pages 635/6 he said:-
“I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions [of the Constitution] as to the personal rights and property rights of the Plaintiffs as citizens”.
113. On this particular point I accept that locus standi is established by a plaintiff who sues in nuisance if he or she is the occupier of the land. I do not think it is necessary that the plaintiff establish a legal interest over and above this.
114. In passing from this topic it is interesting to note that Lord Hoffmann who was in the majority in Hunter observed (at page 453):-
“The Courts today will readily assume that a wife has acquired a beneficial interest in the matrimonial home. If so, she will be entitled to sue for damage to that interest”.
115. I would also hold on the basis of the averments in the Affidavits to which I have referred above that even if it was necessary for the Careys to establish, as a matter of probability, that they had a legal interest in their home, that such an onus had been discharged. I take the observation of Lord Hoffmann, for example, to indicate that the Court will readily infer such an interest from relatively slight evidence. Accordingly, in my view, both the Careys and Maire Kirrane would have established that they had a legal interest in their respective homes if that were a necessary precondition to asserting a claim in nuisance.
116. Accordingly, all Plaintiffs have locus standi to bring the action in nuisance.
NUISANCE
117. I have been referred to a large number of cases, and I have considered these. However, I think that in the last analysis the statement of law which I have already cited from the judgment of Henchy J. in Hanrahan not only captures the essence of the tort in Irish law but indicates that it is difficult to state the law more precisely. This in turn shows, I think, as was submitted by Mr. Collins S.C. on behalf of the Plaintiffs, that ultimately the question of nuisance is one of impression.
118. In forming an impression on the evidence I have had regard, to all of the evidence, but in particular I note that the acoustic experts were in reasonably close agreement as between themselves, and concluded that the impact of the noise in the back garden of the Molumbys’ house was such as would give rise to a serious consideration of prosecution. This does not mean, I think, as was submitted by Counsel for the Defendants, that it was a “marginal” case. The evidence shows that an increase over background of 6 decibels, and certainly 10 decibels, is such as to give rise to an expectation of community response. It was “marginal” only in the sense that the readings indicated that the measure of a 10 decibel excess over background had been just achieved. I do not think, however, that this is a “marginal” case in the context of the ordinary law of nuisance. On the contrary, I consider that the recurring movements of the larger vehicles which occur in the lane adjoining the Plaintiffs’ residences and in particular immediately adjoining the Molumbys’ residence, breaches what the Plaintiffs and in particular the Molumbys as occupiers of their land are entitled to as against the occupiers of the industrial estate, to use the phraseology employed by Henchy J. in Hanrahan.
119. I do not think the Plaintiffs and in particular the Molumbys have been afforded “the comfortable and healthy enjoyment” of their property on the basis set out by Henchy J. in Hanrahan. In reaching this conclusion, I have had regard to all the evidence and not just the evidence of the acoustic experts. I have had regard to the evidence of Mr. McGill. I think the locality in which these events have occurred is one which, on the one hand, is zoned residential in the most recent development plan so that the policy of the planning authority is to protect the amenities of residences. On the other hand, the Plaintiffs’ houses front onto a busy national route taking traffic to the West from Dun Laoghaire Harbour. Furthermore, I accept that the probability is that the industrial estate is authorised by a permission granted under the previous planning code but this is also true of the houses occupied by the Plaintiffs.
120. I treat the locality not as an exclusively residential area but as a residential area, so zoned, adjoining a busy road in front and with an industrial estate authorised by appropriate planning permission, in its midst.
121. I do not think that the fact that the residences immediately adjoin the industrial estate means that the estate must close down. I do not think this would be reasonable. Equally, I do not think that the noise, fumes and general activity and traffic movements on the estate should be such as to cause an undue impact on the amenities of the nearby residences.
122. The Plaintiffs have indicated that they would accept Hiace type vans or possibly slightly larger vans (which would include the van owned by Chervil Limited) servicing the estate. They would object, however, to large rigid trucks or any kind of articulated truck.
123. They are seeking an Order limiting the hours of access to the historic hours, namely, 8.30 a.m. to 5.30 p.m.
124. The parties are agreed that I should deal with the case upon the basis that a lodgment which was accepted means that the Molumbys are free, if they wish, to re-instate the wall between their property and the lane servicing the estate to its condition prior to any damage done by passing vehicles.
125. I have had the benefit of a site visit and on that occasion an articulated truck and others accessed the lane and I had the opportunity of standing in the Molumbys’ rear garden while the engine was left running. It is clear that, even with their wall restored to its original substantial condition, the noise carries to the rear garden and in the case of a number of trucks the exhaust fumes would emit from a high point behind the driver’s cab. I do not think it is reasonable to require residents to have to accept such impact on the amenity of their gardens on any kind of regular basis. Of course domestic occupiers will, from time to time, permit exceptional vehicles to visit their premises. Again, occasionally, construction work will be carried out on houses in residential areas. The Glenville Industrial Estate has been in place for a great number of years and will continue there. In my view, it can only so continue in compliance with the Irish law of nuisance if the working hours are strictly regulated by the closing of the access gates, if relatively quiet and relatively small commercial vehicles service the estate, if there is no commercial overnight parking, if the distribution activity servicing Dell Computers is removed and if the use of noisy pallets or fork-lift vehicles is excluded (both on the ground and in vehicles themselves).
126. In order to give effect to these criteria, I consider that the gates should remain closed except between 8.15 a.m. and 6.15 p.m. Mondays to Fridays and 9 a.m. and 1 p.m. on Saturdays. No commercial vehicles should be permitted access to the estate when the gates are closed. I consider, however, that the Defendants should be entitled to park up to three private vehicles in the estate outside opening hours to facilitate senior employees working late.
127. There should be a large clear notice at the entrance of the estate limiting speed to 8 miles an hour and prohibiting the running of engines during loading and unloading. No fork-lift or pallet trucks should be used on the estate other than electric or battery operated units with rubber wheels. There should be no obstruction of the entrances to any one of the Plaintiffs’ houses by vehicles servicing the estate or of the entrance and access to the garage usually used by Dr. Kirrane. A notice to this effect should be erected near the entrance to the laneway servicing the estate.
128. I decline to make an Order directing the Defendants to rebuild the piers and gates in the original position. I make an Order prohibiting the “Dell” operation.
129. I will hear Counsel as to the appropriate height restriction necessary to exclude all articulated trucks and high rigid bodied trucks and all vehicles higher than the white van currently operated by Chervil, and also in regard to the length of any stay on these Orders.
O’Kane v. Campbell
[1985] IR 115
Lynch J.
The plaintiff resides in Glengarriff House at No. 4, Glengarriff Parade. This street is in the vicinity of Mountjoy Prison and runs northwards from North Circular Road to the Royal Canal and the railway-line. The plaintiff’s house is the second premises from the corner, the first being a shop which does not trade at night time and the plaintiff’s house is on the left-hand side as one enters Glengarriff Parade from North Circular Road.
The defendant’s premises are on the corner of Glengarriff Parade and North Circular Road but on the opposite side of Glengarriff Parade from the plaintiff’s house, that is to say on the right-hand side as one enters Glengarriff Parade from North Circular Road. The ground floor of the defendant’s premises is used by him for business purposes. In former years it was used as a hairdresser’s business then closing about 7 p.m. Later on it was used as a grocer’s business trading up to 7 p.m. at first and later on again trading until 11 p.m. More recently, and apparently about 1977 or 1978, the premises commenced to trade on a “24 hour” basis. This occurred first when it came into the ownership of a Mr. Davey who bought the said premises in 1977. The defendant purchased the premises from Mr. Davey at a time when it was already being used as a 24 hour shop trading 7 days a week and the defendant at the time of his purchase was unaware of any objections from the neighbours if indeed any had yet been made.
The plaintiff claims that the use by the defendant of his premises for all night trading constitutes a nuisance to her in the enjoyment of her premises. The defendant denies the alleged nuisance and further says that he is using his own premises for a perfectly lawful purpose which is of benefit to the area and that he is not to blame for the conduct of members of the public over whom he has no control except when they are actually inside his shop premises. The plaintiff says, however, that it is the defendant’s night trading which attracts and causes the matters of which she complains and if in fact these matters do cause a nuisance to her premises this is a valid submission in law as to the defendant’s responsibility for at least the ordinary natural conduct of people whom he attracts to the neighbourhood.
The evidence of a Mr. Beacham, a private detective, was not really contradicted by the defendant who accepted that it was substantially true. Perhaps there was some extra custom on the two nights that Mr. Beacham observed because it was the week-end of the All Ireland G.A.A. Final but by and large his evidence gives an accurate picture of the usual week-end state of affairs. He was in the plaintiff’s house from 2 a.m. to 5 a.m. on both the Saturday and the Sunday mornings of that week-end. On each of these mornings he observed over 30 attendances at the defendant’s shop which were clearly audible through the closed windows of the front bedroom of the plaintiff’s house.
These are the normal and inevitable noises of ordinary law abiding people going to and from the shop from and to cars, motor-bikes, vans, trucks and on foot. Such noises are the revving of engines, the banging of doors (and they have to be banged to some extent to close them at all), the playing of radios in the vehicles and cordial “hellos” and “goodbyes” between people meeting each other, as well also as the clacking of hard heeled shoes on the footpaths and roads. This gives an average of 10 events per hour or one per every 6 minutes. Of course they would not be as uniform as one every 6 minutes but a picture emerges of audible attendances at the shop every 10 to 15 minutes throughout the night. This is consistent with a stated turnover of some £3,500 per week from night trading mostly at the week-ends.
The noise is not such as to call for garda intervention. There was no breach of the peace nor disorderly behaviour on these occasions. But Inspector Finn who investigated the complaints on a couple of occasions said that in his opinion the noise was sufficient to disturb sleep in the plaintiff’s house. Elderly residents of Glengarriff Parade gave similar evidence of disturbance.
On the other hand, younger people gave contrary evidence. Most of these witnesses, however, lived on the North Circular Road itself, where different conditions apply from those obtaining in Glengarriff Parade. Nurse Horan gave evidence that when she lived in No. 6 Glengarriff Parade which is next door to the plaintiff’s house she was not disturbed. Perhaps this contradiction between the evidence of the various witnesses is simply an example of the perennial generation gap. Young people can sleep in spartan conditions such as youth hostels, camping, sleeping bags or mattresses on floors. Nurses have necessarily to acquire the ability to sleep in difficult circumstances. Elderly people perhaps sleep more lightly but they are not abnormal for that and they are entitled to their night’s sleep.
Glengarriff Parade is an old established residential street. It is just removed from the bustle of other more busy places in the area. There are only two shops on the street which are situate at the corner with North Circular Road on each side of Glengarriff Parade. If the defendant’s shop were on Glengarriff Parade itself it would constitute a clear nuisance by traffic congestion and noise, etc., in a narrow street. If, on the other hand, his premises were completely on North Circular Road and a little distance away from Glengarriff Parade there would be hardly any doubt but that there was no actionable nuisance. North Circular Road is a wide busy street both by day and by night and more noise must be expected and accepted by the residents of that road and especially in the vicinity of the hospital, the garda station and the prison.
But the defendant’s premises is neither of these. It is situate on the corner of both roads. The shop door is on North Circular Road but vehicles stop at the mouth of and into Glengarriff Parade and cause enough noise through the night to disturb the sleep of residents in Glengarriff Parade.
As Henchy J. said in Mullin v. Hynes (unrep. Supreme Court, 13th November, 1972) which is reported in McMahon and Binchy’s Casebook on the Irish Law of Torts at page 524 and 529 and in particular at page 526:
“In a claim for a private nuisance of this kind the judge has to act as an arbiter between the competing interests of the respective property users. He has to decide which is to prevail, the defendant’s claim to use his property in the impugned manner or the plaintiff’s claim to use his property free from the damage caused by the defendant.”
Leaving aside altogether the evidence of the plaintiff herself and the other witnesses called on behalf of the plaintiff, I accept the evidence of Miss Hilda Hunt, Mr. Edward Brown, and Miss Pauline McKinney that the advent of the 24 hour shop trading 7 days per week has drastically altered the amenity of Glengarriff Parade as a residential street. I am satisfied that this night trading constitutes a nuisance to the plaintiff in the enjoyment of her house and subject to the issue of delay she is entitled to relief.
I am also satisfied that there has been no undue delay. There are many cases such as this where a lot of neighbours will express support for the action but are then unwilling to risk the actual litigation and delays arise in trying to persuade them to support an action. The plaintiff was collecting signatures of supporters in the neighbourhood and the defendant must have been aware of this in the years 1980 and 1981. A letter of complaint was written in October, 1981. The defendant cannot shorten the period of prescription from 20 to 2 years by saying that he did not realise that there were or would be objections when he bought and paid for the premises. In Mullin v. Hynes (unrep. Supreme Court, 13th November, 1972) the defendant built his dance-hall in 1961 but the proceedings were not started until January 1967 and, nevertheless, the plaintiff succeeded.
The plaintiff in this case is therefore entitled to relief but the defendant is to be disturbed in the use and enjoyment of his property to the minimum extent consistent with giving reasonable relief to the plaintiff. I considered whether I should limit the injunction so as to prohibit only night trading in such a way as to cause a nuisance but I have come to the conclusion that this would be unworkable because any night trading at all will cause an actionable nuisance by the noise made by ordinary law abiding citizens in resorting to the premises.
I therefore affirm the order of the learned Circuit Court Judge but I vary it as follows:
“The defendant is hereby prohibited and injuncted from opening or keeping open to the public or trading or carrying on business with the public in or from the premises known as Campbell’s corner No. 409 North Circular Road in the City of Dublin between the hours of midnight and 6 a.m., during all seasons of the year.”
“I shall put a stay on the commencement of the Order until Saturday the 1st December, 1984, to enable the defendant to make arrangements as to staff. etc. The Order will therefore come into operation at midnight on the 1st December, 1984.”
I award costs to the plaintiff in both the High Court and the Circuit Court and each party shall have liberty to apply to the Circuit Court.
University College Cork v Electricity Supply Board
[2020] IESC 38
Charleton J.
ELECTRICITY SUPPLY BOARD
DEFENDANT/APPELLANT
Judgment of Mr Justice Peter Charleton delivered on Wednesday 8th of July 2020
1. At paragraph 306 of his judgment, Ryan P summarised the conclusions upon which the Court of Appeal dismissed the finding of liability by Barrett J in the High Court against the Electricity Supply Board for the flooding of University College Cork’s campus by the river Lee in Cork on 19 November 2009:
I. The worst storm in the history of the Lee Dams brought heavy rains on the 19/20 November 2009 that swelled the waters of the River Lee and caused the flooding of UCC’s buildings.
II. The damage arose from a natural event. ESB did not cause the flooding of UCC’s buildings; ESB did not release stored water from its reservoirs. The outflow was at all material times less than the quantity of water coming downriver into the Lee Scheme.
III. The High Court held correctly that if there had been more space in the reservoirs, a lesser quantity of water would have gone downriver but it erred in holding that ESB had a legal duty to provide such space.
IV. ESB did not have a duty in law to avoid unnecessary flooding, to keep the level of water in the reservoirs to [target top operating level, TTOL] or to make anti-flooding storage space available.
V. ESB was not negligent in respect of warnings.
VI. The claim by UCC also fails under the law of nuisance or the measured duty jurisprudence.
VII. The High Court made a series of errors in coming to its conclusions on liability and contributory negligence.
2. It has not been demonstrated on this appeal that the High Court made any error of fact. The entire appeal has been dedicated to a lengthy debate on the law; of which riparian rights, the requirement that only reasonable use be made of water in a river and the entitlement of landowners through which it courses to benefit, is least relevant. Neither is liability under Rylands v Fletcher LR 3 HL 330, (1868) LR 3 HL 330, [1868] UKHL 1 apposite since, at all times, the ESB never released more water than was coming in to the two Lee hydroelectric plants at Carrigadrohid dam, 27 km west of Cork city, and 13 km from Inniscarra dam downstream, which is itself 14 km from Cork city. While liability for nuisance is a difficult fit for a case which concerns not the use and enjoyment of land, but actual damage through flooding, the central concern is whether liability for negligence may fairly and justly be extended to the owner of a dam. Where nothing was done to worsen the flow of a river during a month of widespread damage by natural flooding the following legal imperative, dissolving any potential liability, has been argued by the ESB: do not worsen nature.
Omissions
3. The first main point on appeal concerns the distinction between actions and omissions. This is not an omissions case. For half a century prior to the flood, the ESB had control over the upper stretches of the Lee and determined, from the point of view of the generation of electricity, the optimum level for the weight of water flowing through the turbines. In the High Court, at paragraph 190 and elsewhere, the trial judge found as a fact that the ESB held their activities out “throughout the proceedings” as contributing to flood management. In answering questions 66 and 67, the High Court noted that the ESB had been involved in flood management, which included “inter alia, in various flood inundation studies, by inputting into emergency planning by public authorities, and e.g. through submissions to the Oireachtas and participation more generally in public debate by way of academic papers and participation at industry conferences.” Even were that not the case, as a matter of law there is nothing in the process of managing two dams and two reservoirs, using water to power turbines at both, and managing levels in accordance with inflow and taking account of weather forecasts, that could come close to exemption from liability in negligence because of mere failure to act. Every hour of every day, the ESB is and was actively engaged in a process of control over a waterbody for its own profit. It is illogical for the ESB to claim that opening a sluice gate and releasing water could give rise to liability in tort but that failing to pull a lever that would have reduced levels to obviate later and predicted flooding would not. Both are part of the same process of control and management of a highly dangerous hazard.
4. While the law has tended to exempt from liability in negligence good Samaritans who do their best to rescue those in peril, but at the same time required those with training to act as reasonable members of whatever body to which they belong, generally speaking a tort is not committed by failing to act. That general law of no liability for omissions concerns the exemption from negligence for not acting where a person could intervene. That lack of responsibility does not apply where a defendant has an especial relationship that demands action. In the original account, a man going from Jerusalem to Jericho was set upon by robbers and left injured. While two passers-by failed to assist him, the third, who did, is described in the original narrative as his neighbour; Luke 10: 25-37. Naturally, he did his best and is not to be faulted for that. As a matter of law, notwithstanding that they passed by, the first two have no liability in tort. This is because they had no family or other relationship with the injured man, contributed nothing to the wrong done to him and did not control the pass which some historians now say was notorious for attacks by brigands. The good Samaritan exemption does not apply to negative potential tort liability should there be negligence where what is involved amounts to a close connection between the victim and the person who fails to intervene. While those circumstances may be difficult to define, where an existing relationship consists of an imperative to intervene, the general exemption from liability for negligence because of an omission will not apply. Criminal law and tort law are linked in the common origin of torts and crimes and in the role each play in the ordering of society according to acceptable norms. Criminal law channels personal impulses of retribution into a social system of trial and punishment, thus redefining offences so that they are seen as an affront to the community. Tort law re-orders society so that occurrences which affront justice are required to be paid for in damages where, according to a body of existing norms, it is right that the person responsible compensates.
5. Liability for manslaughter would not arise in the good Samaritan example had the man died and the first two passers-by been called to account. It is an entirely different matter if there is a close connection to the victim. Such a close connection to others can mean that an obligation of intervention, or of care, can arise. An example which arose in the context of manslaughter was where a man hired a prostitute for a wild party. She had substance addiction issues and became ill but was effectively left to die in a corner rather than even the emergency services being contacted. In such a case, the organiser may be guilty of manslaughter because by his own actions he has established within the ambit of those to whom he owed a duty to take reasonable care a person who otherwise would be as much a stranger as the man passed by on the roadway. On this point see R v Russell [1933] VLR 59, Ex P Parker [1957] SR 326, R v Clarke and Wilton [1959] VR 645 and R v Nixon (1990) 57 CCC (3d) 97. In terms of tort law, it is the same principle. If a defendant has nothing to do with the plaintiff, and if the situation is not of the plaintiff’s making, there can be no question of the law imposing duties to intervene and for establishing liability in negligence for any such failure. In Kent v Griffiths [2001] QB 36, the plaintiff called for an ambulance because she was having an asthmatic seizure. For no explained reason, and on the evidence there just was no excuse given, it took 40 minutes to respond. The issue in that case was as to the justice and reasonableness of extending liability in negligence to emergency services. As a starting point, Lord Wolfe at page 38 stated this general proposition:
In the absence of a special relationship or assumption of responsibility, there is no duty to take steps to rescue a person from danger, however immediate and mortal the peril to him and however trivial the risk to the rescuer. Moreover, a rescuer who was under no duty to embark on the rescue incurs no liability to the rescued person except to the extent that the rescuer’s acts cause damage beyond that which the rescued person would have suffered if the rescuer had not intervened.
6. The judgment gives the following authorities in support of this unexceptionable statement: East Suffolk Rivers Catchment Board v Kent [1941] AC 74 , 84-85, 87-88, 95, 102, 104; The Ogopogo [1971] 2 Lloyd’s Rep 410 , 412; Dorset Yacht Co Ltd v Home Office [1970] AC 1004 , 1027, 1034, 1042, 1060 and Capital & Counties Plc v Hampshire County Council [1997] QB 1004 , 1032, 1037. According to Professor Fleming, however, in the modern law the principle of excluding liability on the basis that what is involved is a mere omission is very restricted. It does not accord with common sense or with the public policy behind the imposition of a duty of care to conflate a failure to reduce river flows, or as argued here, a failure to let out water earlier so as to lessen a predicted and probable flood, with any exemption from tort liability based on a complete lack of responsibility. The current editors, C Sappideen and P Vine, include the following passage in Fleming’s the Law of Torts, (10th edition, Sydney, 2011) at paragraph 8.90:
Only in situations of the purest non-feasance, does our modern law continue to disclaim any general duty of care. Thus, where the plaintiff is endangered from a source quite unconnected with the defendant, the latter is not required to come to the plaintiff’s assistance, although it is in the defendant’s power to remove the peril with little effort … A good swimmer on the beach is free to ignore the call for help from someone in danger of drowning; and one need not shout a warning to a blind person about to walk over a precipice. The common law is prepared to support altruistic action, but stops short of compelling it. This manifestation of excessive individualism is apt to evoke invidious comparison with affirmative duties of good neighbourliness in most countries outside the common law orbit.
7. McMahon and Binchy, in Law of Torts (4th edition, Bloomsbury, 2013) at paragraph 8.01 put the principle even more starkly:
Unlike civil law jurisdictions, the common law has historically taken a harshly individualistic position on the question of affirmative duties. The courts have recognised “a basic duty between doing something and merely letting something happen”. There is no general duty to go to the assistance of another person who is in peril, even where to do so would involve no danger or real inconvenience to the would-be-rescuer. Thus, a doctor may pass a road accident with impunity even though he or she could give valuable assistance to the injured, and an adult may let a toddler drown in shallow water without lifting a finger to help the infant.
8. It may be that for certain categories of persons such as medical personnel, educated at State expense for the general good of the community, this statement could require reconsideration. But, it is not this case. This litigation is about the assumption by the ESB of control over an aspect of nature which previously followed the whims of the natural world but which is now harnessed for profit. In modern tort law, the duty in negligence is more properly expressed as a duty not to harm others, for which liability is readily imposed save where it is not just and reasonable to extend a duty of care into that area, and a duty to prevent harm of which the defendant is not the source, where such liability is to be extended only in particular circumstances. On appeal, this gave rise to considerable debate. The distinction as to omissions and as to acts is best drawn in the judgment of Lord Reed of the neighbouring Supreme Court in Robinson v Chief Constable [2018] 2 All ER 1041 at 1064 where he says:
Duties to provide benefits are, in general, voluntarily undertaken rather than being imposed by the common law, and are typically within the domain of contract, promises and trusts rather than tort. It follows from that basic characteristic of the law of negligence that liability is generally imposed for causing harm rather than for failing to prevent harm caused by other people or by natural causes. It is also consistent with that characteristic that the exceptions to the general non-imposition of liability for omissions include situations where there has been a voluntary assumption of responsibility to prevent harm (situations which sometimes have been described as close or akin to contract), situations where a person has assumed a status which carries with it a responsibility to prevent harm, such as being a parent or standing in loco parentis, and situations where the omission arises in the context of the defendant’s having acted so as to create or increase a risk of harm.
9. While a different view might be taken on the facts as to the imposition of liability in Robinson, this analysis emphasises that situations do emerge, as in the ill prostitute at the party example, where a shift in circumstances requires positive action even though the source of the harm complained of by the plaintiff originates from outside the defendant. Liability is potentially there in such situations precisely because the defendant has assumed a responsibility for dealing with the danger. This is not a case, as in Cromane Seafoods v Minister for Agriculture [2016] IESC 6; [2017] 1 IR 119 where the issue is the extension of liability in negligence into an area where it never before held sway and where different definitional elements of a different tort are sought, unsuccessfully, to be displaced; such as replacing liability in defamation with an issue as to care. Rather, the argument here is that it cannot be just and reasonable, according to the ESB, to impose liability because it is claimed that there is no responsibility to protect the inhabitants of Cork city from natural floods. The later decision of Poole Borough Council v GN [2019] UKSC 25 involved a summary by Lord Reed of the exception to the inert and duty-less defendant principle and the principle that public bodies should owe the same duties of care as private individuals where that is not inconsistent with their statutory duties:
64. Robinson did not lay down any new principle of law, but three matters in particular were clarified. First, the decision explained, as Michael had previously done, that Caparo did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fall outside them. The question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. It follows that, in the ordinary run of cases, courts should apply established principles of law, rather than basing their decisions on their assessment of the requirements of public policy. Secondly, the decision re-affirmed the significance of the distinction between harming the claimant and failing to protect the claimant from harm (including harm caused by third parties), which was also emphasised in Mitchell and Michael. Thirdly, the decision confirmed, following Michael and numerous older authorities, that public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles. That is the basic premise of the consequent framework for determining the existence or non-existence of a duty of care on the part of a public authority.
65. It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.
10. Central to the imposition of liability here is that nothing done by the ESB at the Inniscarra and Carrigadrohid dams could in any way be classified a mere standing-aside from, or walking-past, harm generated by others. Of course, the source of the harm is the river Lee, its catchment area and the ground around the watercourses saturated by a summer of endless and dispiriting rain. But, the electricity company harnessed that system and under its licence, granted under section 14(1)(a) of the Electricity Regulation Act 1999, and by the public declarations it made, the ESB assumed dominance over nature. The argument for Cork University is that this situation obliged the ESB to take reasonable care. Of relevance to these proceedings is Condition 19 of the licence, which states that “The Licensee shall take all reasonable steps to protect persons and property from injury and damage that may be caused by the Licensee and shall comply with all applicable enactments when carrying out its Generation Business.” Condition 1 defines the concept of a generation business as “the licensed business of the Licensee in the generation of electricity or…provision of Ancillary Services.” The ESB’s approach to dam safety and flood prevention mechanisms is comprehensively detailed at paragraphs 251 to 259 of the judgment of the High Court. The measures that the ESB had taken to this end included a ‘Flood Control and Dam Safety Study,’ and the establishment of an audit-style committee known as the ‘External Dam Safety Committee’ which recommended additional dam safety requirements as it deemed necessary. As an appellate court, this Court is entitled to take as primary findings of fact by the trial judge in the High Court that the ESB had weather predictions of the coming rain storm, knew about the condition of the ground and of inflows into the river system and that while they could have provided anti-flooding space in the reservoirs by earlier releases in the days leading to 19 November 2019 did not do so. In the High Court, the trial judge, faced with a bombardment of case decisions, aptly quoted the most relevant authority put forward by the ESB and pointed out the weakness in the citation of authority based on the idea of the mere bystander:
961. The bystander who sees a burning building and knows there are people inside foresees that if he awaits the fire brigade, rather than attempting a rescue, people may die. But the law has never imposed liability in negligence on a person who fails to act as the more courageous might. A moral code might censure his timidity; the law of negligence does not. (Glencar Exploration plc v. Mayo County Council (No.2) [2002] 1 I.R.84, Keane J., 138-139).
962. Observation #21: ESB has made play of Keane J.’s observation in Glencar. However, it does not seem to the court an especially apt observation so far as the within proceedings are concerned. ESB is not some bystander. It controls two dams and associated reservoirs. It allowed reservoir-levels consistently to go beyond the level it itself calculated as optimal– “the highest level allowable in the operation of the reservoir under normal operating conditions” (Lee Regs, iv ), and a level aimed at “optimising availability for power generation and minimising unnecessary spilling of water from the reservoirs” (O’Mahony Affidavit, 35). On 19th November, 2009, this resulted in flood-damage to UCC that would have been less or non-existent had ESB’s practice been to seek to maintain reservoir-levels at TTOL. No strict moral code is required to censure ESB’s actions: the suppleness of nuisance and negligence suffices.
Statutory exemption due to power to generate electricity
11. The second main point on the appeal concerns the status of the ESB. Here, their argument is that because they have a duty to generate electricity, they have no duty to take reasonable care for the safety of anyone downstream from their hydroelectric plants on the river Lee. There is almost nothing to be said for this. Were the dams to show cracking, it is clear that there would be a duty to look to the safety of those likely to be affected by collapse. Indeed, the much-vaunted standard whereby the ESB kept to an ideal level for the generation of electricity, one higher level in the summer because usually of less rain in those months, and another generally lower in the winter because rain could be predicted within days, called target top operating level, TTOL, has another standard whereby the dams are not to be topped because overflow could undermine the stability of the barrier; MaxNOL or maximum normal operating level. It was the latter standard which was exceeded in 19 November 2019 and which led to the discharge of massive quantities of water. Mostly, apparently, these were a little less than what was coming into the dam systems from nature, or about the same. What is it about the statutory duty of the ESB which could allow that situation to come about when there had been no spillage of water when the Inniscarra dams were held above TTOL all the way from 6 November 2019? Plenty of electricity could be generated since TTOL was achieved and ultimately exceeded, if the helpful diagrams handed in on appeal are accurate, by up to close to three metres. Over the extent of the reservoirs, or even Inniscarra on its own, this was the retention of an unnecessary danger. The fundamentally correct approach by a court to a statutory duty, contended for here by the ESB, excluding liability is to analyse the legislation and to ask whether there is anything in it that demonstrates that the Oireachtas were intent on placing the undertaking in a special position outside of tort liability? No, is the answer. In the High Court, the trial judge concisely dealt with the point by way of answer to the ESB’s proposition:
963. [61] Exercise of a statutory power does itself yield a duty at common law. A judge must consider whether a common law duty arises from facts and circumstances presenting in the context of the statutory framework (Sandhar v. Department of Transport, Environment and the Regions [2004] All E.R. (D.) 105 (Nov.), May L.J., para. 18).
Nature and the justice of extending liability to control
12. The third main point is about the imposition of liability. Since Donoghue v Stevenson [1932] AC 562 at 580 the law has developed so that it is no longer enough merely to be asking as to who should a defendant keep in contemplation when any consideration of the acts or omissions comes into question before a court. Rather, negligence and causation of damage are joined in areas where the law considers an extension of liability, with the question of whether the imposition of liability would be just and reasonable; Glencar Explorations Limited v Mayo County Council (No 2) [2002] 1 IR 84 at 154-155 per Fennelly J. There is no universal theory to cover all of the disparate situations which an increasingly complex society will generate, most especially where the ideal of competition as a legal system, and as an idea system, has tended to dissolve any easy answer based on the particular duty of individual State corporations. It has been correctly commented, Fleming’s Law of Torts, 8.20, that there exists no “generalisation” which “can solve the problem upon what basis the courts will hold that a duty of care exists.” While it is easy to find agreement that “a duty must arise out of some ‘relation’, some ‘proximity’, between the parties”, still there must remain the problem that “what that relation is no one has ever succeeded in capturing in any precise formula.” The original concept in Donoghue v Stevenson about neighbours, reminiscent of the Gospel story, developed in Anns v Merton London Borough Council [1978] AC 728 at 751, through the speech of Lord Wilberforce, whereby to establish a duty of care, firstly, proximity in the relationship between the plaintiff and the defendant had to be established, so that carelessness on the part of the latter would be likely to cause damage to the former, and, secondly, to ask “whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom” that duty was owed.
13. This Court adopted that approach was in Ward v McMaster [1988] IR 337. In a traditional analysis, McCarthy J considered the duty of care as arising from the proximity of the parties, the foreseeability of damage and the absence of any compelling exemption based on public policy. In Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617, the original test had been refined so that in considering the extension of liability regard should be had to precedent as a guide to whether the new situation would “be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”. This element of the test for imposing a duty of care is described in Fleming’s The Law of Torts at page 155 as looking beyond the parties to the case and considering “the wider effects of a decision on society; the burden it would inflict no less than the benefit it would secure. In short, it recognises the public law and policy element in this area of private law.” This is definitively reflected in Glencar Explorations Limited v Mayo County Council (No 2). There, Keane CJ stated the test. This has been invariably later quoted. There is no reason now to depart from it. It was described in Breslin v Corcoran [2003] 2 IR 203 at 208 by Fennelly J as “the most authoritative statement of the general approach to be adopted … when ruling on the existence of a duty of care”. The Glencar test has the virtue of simplicity and was stated by Keane CJ thus:
There is, in my view, 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. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff.
14. While in the same case, Fennelly J correctly decried any approach to the analysis of the tort which started with whether the defendant lacked care in what was done, it is always correct that the starting point for novel cases should be whether in the first place a duty of care should exist.
15. There are various approaches to this test. Since the law should not detach itself from the fundamental powers of reason on which almost every legal rule was once based and since justice may properly be regarded as instinctive to the thinking of all sensible people, one test is that set out in several English cases, of which Kent v Grffiths is an example. There, the test set out is whether the “reaction of the judge to the facts” of the case “accords with the likely reaction of any well-informed member of the public”; paragraph 51. There, to expand on the facts already recited, an ambulance was called, the plaintiff depended on it, it took 40 minutes to arrive, she could if she had known called a taxi to get her to hospital or a clinic, the ambulance personnel had literally no excuse for not doing their duty: hence, liability despite the risk of diversion of resources into litigation and undermining the special position of emergency services and their duty to manage resources according to perceived need. While, in the era of populist democratic movements sometimes apparently swamping general good sense, any test based on public expectation could be attacked as irrational, since the purpose of the law of torts is the ordering of society for the benefit of all of its members, through the recovery of damages where harm was wrongly done, it nonetheless remains sensible to ask whether the “public would be greatly disturbed if the law held that there was no duty of care in this case?” In this case, in the High Court, at paragraph 1026, the trial judge correctly stated that:
even if one sets aside the difficulty of identifying ‘nature’, the concept of pre-existing nature is artificial and does not represent the expectations or understanding of downstream residents, occupiers and owners, or, the court would hazard, of our modern society. Downstream residents, occupiers and owners do not typically, if at all, know what effect a natural event will have as the Lee Scheme intermediates between ‘nature’ further upstream and them. ESB, through the Lee Scheme, has become a major influence on what happens downstream; and it is a hallmark of our legal system that with control comes responsibility, here in the form of a duty of care vis-à-vis the safety of downstream persons/property
16. Turning to that duty to order society, some observations may validly be made as to the function and purpose of the law of torts. The nature of society is greatly dependant on how we choose to deal with non-criminal interactions between citizens. As distinct from the criminal law, which is retributive in nature and aims in large part to deter both what lawmakers have deemed criminal conduct and vigilantism, the law of torts functions so that those who are unjustly wronged are compensated for their losses where it is just and reasonable to do so. Speaking on the issue of insanity, Denning LJ highlighted difference in purpose between these two branches of the law in White v White [1949] 2 All ER 339:
In my opinion, both on principle and authority the effect of insanity is to be regarded differently in the civil courts from what it is in the criminal courts. … innocent third persons may have been injured by the sufferer [of insanity]. He may have made contracts and broken them, or he may have committed civil wrongs, and all done at a time when he was unknown to be a lunatic, although he has since been found to be so. If he is a man of wealth or is insured, are not the injured persons to be compensated from his estate? If the matter were free from authority I would say they clearly are, because it is not a question of punishing him, but only of compensating them.
17. However, unlike the law of contract and other areas of what has come to be known as ‘private law,’ the overarching objective of the law of torts is largely accepted as wider than simply awarding compensation where civil wrongs have occurred. As one commentator notes: “arising out of the various and ever-increasing clashes of the activities of persons living in a common society… there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others. The purpose of the law of torts is to adjust these losses and afford compensation for injuries sustained by one person as a result of the conduct of another.” See Wright, “Introduction to the Law of Torts” (1942) 8 Cam LJ 238. The importance of the law of torts to a modern society which is ordered for the benefit not just of individual plaintiffs but so as to encourage good conduct and to compensate for defined wrongs is captured in Prosser & Keeton’s The Law of Torts (5th edition, London, 1984) at pages 16-17:
In cases of conflict, cultures that we choose to call primitive determined who should prevail with sword and club… but in a civilised community, it is the law which is called upon to act as arbiter. The administration of the law becomes a process of weighing the interests for which the plaintiff demands protection against the defendant’s claim to untrammelled freedom in the furtherance of the defendant’s desires, together with the importance of those desires themselves. When the interest of the public is thrown into the scales and allowed to swing the balance of for or against the plaintiff, the result is a form of social engineering… This process of weighing the interests in by no means peculiar to the law of torts, but it has been carried to its greatest length and has received its most general conscious recognition in this field.
18. While scholarship in the area of private law theory can generate different views as to the aims and the purpose of the law of torts, there is a consistent underlying note which shapes the law according to justice and for the betterment of society. This approach accords very much with the Preamble to our Constitution which has as a fundamental nation aim of all of our laws the establishment of “true social order”. A comprehensive overview of the myriad theories that have been suggested across the common law world is unnecessary for the purposes of this judgment. However, three theories that purport to be universal theories applicable to the many areas of the law of torts are of relevance: Ernest Weinrib’s corrective justice theory, Robert Steven’s rights theory, and Richard Posner’s economic theory; for a thorough analysis of these schools of thought, see James Goudkamp and John Murphy, “The Failure of Universal Theories of Tort Law” (2015) 21 Legal Theory 47-85. Drawing on the first of these theories, two models of the function of tort law in wider society, a dichotomy universally attributed to Aristotle’s Nicomachean Ethics, dominate: corrective justice and distributive justice. Corrective justice is concerned with ensuring that individuals who have been wronged without justification by others can have the matter put right. It is, in many ways, transactional in nature: a plaintiff visitor is burned due to the negligence of a defendant in installing electricity in his home, and so he or she is entitled to an award of damages to an amount that seeks, at least as far as monetary compensation is capable, to put her in a position as though the incident had not occurred at all. Distributive justice is concerned with the distribution of burdens and losses, including risks, amongst members of a society. This approach may result in individuals and undertakings bearing the risk of harming others by their conduct even where they are not at fault for doing so.
19. These seemingly competing theories of the law of torts were considered in significant detail by the House of Lords in McFarlane v Tayside Health Board [2000] 1 AC 59. This case involved a married couple who were negligently advised that a vasectomy operation had rendered the husband infertile. The couple ceased all contraceptive practices, resulting in the wife undergoing an unwanted, certainly an unexpected, pregnancy. The couple sought damages, inter alia, for the cost of raising a child, though not planned, who did not have any disability or additional needs. It is curious in analysing this passage how the notion of what ordinary and right-thinking people would consider just again recurs as a touchstone for legal reasoning. Lord Steyn stated at page 82 that:
It is possible to view the case simply from the perspective of corrective justice. It requires somebody who has harmed another without justification to indemnify the other. On this approach the parents’ claim for the cost of bringing up Catherine must succeed. But one may also approach the case from the vantage point of distributive justice. It requires a focus on the just distribution of burdens and losses among members of a society. If the matter is approached in this way, it may become relevant to ask commuters on the Underground the following question: Should the parents of an unwanted but healthy child be able to sue the doctor or hospital for compensation equivalent to the cost of bringing up the child for the years of his or her minority? My Lords, I am firmly of the view that an overwhelming number of ordinary men and women would answer the question with an emphatic “No…” The realisation that compensation for financial loss in respect of the upbringing of a child would necessarily have to discriminate between rich and poor would surely appear unseemly to them. It would also worry them that parents may be put in a position of arguing in court that the unwanted child, which they accepted and care for, is more trouble than it is worth. Instinctively, the traveller on the Underground would consider that the law of tort has no business to provide legal remedies consequent up upon the birth of a healthy child, which all of us regard as a valuable and good thing.
20. This reasoning was later affirmed in the House of Lords decision in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. A further significant decision that considers the wider societal impact of the law of torts is White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. This case involved a number of police officers who suffered psychiatric harm as a result of witnessing the events of the Hillsborough disaster. Previously, the House of Lords had held in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 that the relatives of those killed in the tragedy were not allowed to recover damages for psychiatric illness they incurred as a result. This was the application of the principle restricting nervous shock to those present who were also connected to the tragedy. In refusing the relief sought, Hoffman LJ again referenced at page 510 that the ordinary person
would think it unfair between one class of claimants and another, at best not treating like cases alike and, at worst, favouring the less deserving against the more deserving. He would think it wrong that policemen, even as part of a general class of persons who rendered assistance, should have the right to compensation for psychiatric injury out of public funds while the bereaved relatives are sent away with nothing.
21. Although, in principle, Hoffman LJ suggested that the police officers should have been allowed to recover for the injuries they suffered, permitting this would have created an unacceptable distribution of the risks and costs of negligence as between different classes of victims. Similar considerations as to the wider implications of decisions in the law of negligence can be seen in other jurisdictions. What matters is the imposition of liability not just on the basis that harm is to be predicted reasonably, but that liability should only be imposed where it accords with the view society holds of itself and of the duties and obligations that an organised community regard as just and reasonable. For example, in Sullivan v Moody (2001) 207 CLR 562, the High Court of Australia held at paragraph 42 that
the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms.
22. The courts in this jurisdiction have had to grapple with the role that the law of torts should play in society and with whether to approach cases from a corrective or distributive standpoint. In Fletcher v Commissioner of Public Works [2003] 1 IR 465, the plaintiff sought to recover damages arising out of an irrational fear that he had contracted asbestosis due to the negligence of his employer. Here, Geoghegan J endorsed the dicta of Hoffman LJ in White at page 503:
if one starts from the imperfect reality of the way the law of torts actually works, in which the vast majority of cases of injury and disability, both physical and psychiatric, go uncompensated because the persons (if any) who cause the damage were not negligent (a question which often involves very fine distinctions) or because the plaintiff lacks the evidence or the resources to prove to a court that they were negligent, or because the potential defendants happen to have no money, then, questions of distributive justice tend to intrude themselves. Why should X receive generous compensation for his injury when Y receives nothing? Is the administration of so arbitrary and imperfect a system of compensation worth the very considerable cost? On this view, a uniform refusal to provide compensation for psychiatric injury adds little to the existing stock of anomaly in the law of torts and at least provides a rule which is easy to understand and cheap to administer.
23. In refusing relief, Geoghegan J noted that “pragmatic control mechanisms must be applied in actions for pure psychiatric damage and in many instances even in the interests of distributive justice.” This Court held that, in accordance with the reasoning of Hoffman LJ in White, that awarding damages would result in great unfairness “as between employees exposed to such asbestos who may in fact suffer from great anxiety for the remainder of their lives but not such as could be characterised as psychiatric injury on the one hand and those who suffer from such anxiety as can be characterised as psychiatric injury on the other.” The principles in McFarlane and in Rees were also accepted in this jurisdiction by Kelly J in Byrne v Ryan [2007] IEHC 207. In affirming the correctness of those cases, and analysing the judgments in Fletcher, Kelly J held that “on the recoverability of damages as a matter of principle or legal policy since the question has never heretofore been considered by courts in this jurisdiction. In making that decision the court is entitled to have regard to concepts of reasonableness and distributive justice.”
24. In Cromane, the Supreme Court asserted at page 225 that “in the context of discretion as to the allocation of resources or as to the order in which problems might be tackled, any argued for existence of a duty of care may, depending on the context, be inimical both to the wider duty owed within that statutory context to the community at large and also to the non-application of the law of negligence even where the decision maker acted beyond the powers conferred, unless that decision maker otherwise acted wrongfully by misfeasance in public office.” In relation to vicarious liability, the Supreme Court made the following observation in Hickey v McGowan [2017] 2 IR 196 at page 258:
Those who have control over an enterprise may not be able, as in prior times, to pretend to a knowledge or level of skill equivalent to their workforce, but are enabled to organise the manner of work and relations with those with whom it is engaged so that risks are reasonably anticipated and, through safety measures and training, are minimised. Of course, the absence of such engagement in foresight and prevention may of itself establish fault. The party, however, with the ability to assess risk and to guard against or insure against it will be the organiser of the work, usually an employer. In advancing the economic interests of the enterprise, a corresponding duty has arisen whereby those working for such an enterprise, as salaried individuals, and without the backing of capital, become as one with those who employ them. Tort liability thus pursues its part of the proper ordering of society because it incentivises an enterprise towards safety and away from wrongful conduct.
25. These considerations have also been present in relation to the application of the tort of negligence to the fields of policing, crime prevention and the prosecution of crime. O’Donnell J weighed up the various considerations at play in LM v Commissioner of An Garda Síochána [2015] IESC 81 at paragraph 14: “On the one hand, the public policy objectives in pursuing criminality are important and anything that could interfere with that task, and the resources necessary to perform it, is to be avoided. On the other hand, the public, and private, harm caused by police failure is very substantial.” It can thus validly be said, echoing the comments in Fleming’s The Law of Torts above, that considerations approaching those present in the domain of public law often arise in cases where a duty of care in the law of torts is pleaded. But, theory while important and which can help to solve keen issues as to when it is right to extend liability in negligence, should also be informed by the key notion to which the cited texts return: how are duties and liabilities rightly to be distributed from the point of view of the result as viewed reasonably not just from the point of view of an individual plaintiff, but also from the standpoint of the law as consistent and rational and as predictably reaching a just result? In the judgment of Clarke CJ and MacMenamin J, with which this analysis concurs, the assumption by the ESB of responsibility for the river, through dams and controls, is the basis of liability. Thereby, it is reasonable to extend liability in negligence for by so blocking and controlling the river, within the ambit of a duty of care modified by the need to produce electricity in accordance with the statutory duty of the ESB, come those persons downstream of the dams who might be affected by a failure to take reasonable care in the context of the modification of that duty by the coexisting statutory duty. Were that statutory duty not to be there, it might be arguable, albeit difficult to accept, that the sole duty of the ESB was to predict weather and modify outflow and retention to at all times prevent flooding. That was not the purpose of the dams and that is not the function given to the ESB by the Oireachtas. But, nonetheless, in the context of being obliged to generate electricity, the reason for the State expenditure on these massive works in the first place, reasonable care must be taken to obviate flooding risks in a way consistent with the statutory duty.
A rational example
26. The wider societal impact of imposing a duty of care under the law of torts can be tested by this example. A family lives near a river. For centuries it has flooded and hence very few build by its shores. A private company comes in and takes charge of the river to generate power for a mill. There is a large mill pond. Flooding ceases because of their good management. Other people build homes by the river on the stated expectation encouraged by the mill company that part of what they do is to control flooding. The mill company get a weather forecast, likely to be accurate, and it should be noted by all judges that accuracy is not to be judged in fractions of millimetres but by the standard of reasonable men and women, that huge rains are expected. The pond can be reduced to keep the mill running while making space for the expected inflow, or at least a good portion of it. Instead of doing that, the mill company takes the attitude: well, we will not worsen nature and we won’t improve it either. They say: all that could be involved here is an omission. How would ordinary and sane people react to not imposing liability on the basis of the assumption of this responsibility? Similar to the House of Lords’ question in McFarlane and that of the England & Wales Court of Appeal in Kent v Griffiths as to how users of the London Underground or people or reason with full knowledge of the facts would react to liability being imposed in that case, it is important to pose similar questions concerning the reaction of ordinary users of the transport options in this jurisdiction. This approach was that of the trial judge in the High Court, where he commented thus:
1029. Is the ‘do not worsen nature’ threshold too low? ESB has been authorised to construct and operate the Lee Scheme for profit. This is a privilege conferred on it by the State. Its licence does not limit, or purport to limit, any responsibility it has at common law in respect of damage caused by passing more water than the natural inflow into the upper Lee. If the Lee Scheme released more water than would have flowed in the river Lee if the dams were not present, ESB would be strictly liable under Rylands and/or in nuisance. In other words the ‘do not worsen nature’ rule sets the lower limit of liability. It is a rule that derives from the building and ownership of a dam. It does not attempt to address the additional and distinct responsibility which attaches to harnessing and using river-flow in an industrial activity with the attendant water-control and management which that involves. It is a rule that does not reflect the development of the duty of care in the 20th century, or the rightful expectations of modern society.
Reasonable care
27. But, in all of this, the law of negligence has been consistent over eighty years as to its principles and the development as to fairness and reasonableness for extension of liability has not changed the core principle that it is reasonable care that must be exercised in circumstances where it is right that potential defendants have regard when the law regards it as right to consider particular people their neighbours. Where there is a duty of care, the first step, it is important to emphasise that what is demanded is reasonable care. That is the second step and the core test. Reasonable care is not what some person with hindsight and expertise says should have been done. In so much modern litigation, that standard of reasonable care, and nothing more than reasonable care, is what is missing from the contest of cases. It is not for experts to decide, or to substitute their paid view for that of those who know the area. It is only reasonable care that the ESB must exercise but, demonstrably in this case, that is what they failed to do. Causation of damage is inescapable for liability to be imposed but causation on its own does not establish liability. This judgment has discussed where principles of fairness and justice extends liability which seems to the opposite side of when considerations of justice and public policy should exclude liability.
28. Key to the argument made on this appeal by the ESB is that by imposing liability on the basis of reasonable care, there is no standard and thus no predictability as to when their conduct may infringe the law. Even in the context of specific regulations, for instance of road conduct by vehicle users, general duties to behave reasonably and carefully are applied. That is and was the standard before statutory regulations made as secondary legislation imposed, for instance, speed limits. But, even there, the duty to take reasonable care is not met if conditions require a lesser speed than the maximum proscribed. Here, the ESB argue for a do not worsen nature standard. This, it is contended, would give a rational and predictable standard and one which can be abided by with comfort. But, to do that would be to effectively overturn a half century where at times more or less water than natural flow is released. Furthermore, there are two connected dams and two reservoirs to be managed. What is required is that the ESB pay reasonable regard to forecasts, ground conditions and their primary function of generating electricity and plan to abate the impact of floods by taking reasonable measures. Having brought the river system under control, it is illogical to confer what would be a blanket exemption from that control by merely saying that all that needs to be done is not to worsen nature.
Case management
29. Finally, a comment becomes necessary. The adversarial system must be made to work by all sides in litigation. This trial proceeded over six months. That was unnecessary. Trial judges deserve help. When the High Court asked for the questions which would decide liability, about 220 individual numbered issues were put before the Bench. The parties could not agree so the questions covered a lot of ground and the core issues were utterly swamped. That helped nobody. Clearly the resolution of the trial depended upon:
1. What statutory duty was on the ESB in the generation of electricity?
2. Whether that excluded liability in tort for negligence?
3. If there was a duty of care on the ESB, what modification of a duty entirely dependant on the maintenance of flood barriers was required?
4. What, therefore, was the standard of care expected of the ESB?
5. Was the storm and its consequences predictable on a reasonable basis?
6. If the storm was predictable, did reasonable care require that amelioration consistent with the duty to generate electricity result in spilling water from the dams in order to capture some of the water expected by the predicted very heavy rainfall?
7. If the answer is yes, to what degree would that earlier spilling of water have caused flooding?
8. Would that flooding been of the same or of a lesser degree than the flooding actually caused by the flood here complained of?
9. If that is so, that there would have been such flooding, what is the difference in damage between that actually caused and that which would have been earlier caused in order to alleviate the worst effects of the storm?
30. Since this trial, the Rules of the Superior Courts have evolved principles whereby no more than one expert witness on an issue may be called on each side. This trial was inundated by experts, as have been so many in the past. That should stop. As to principles of law, trial judges deserve clear help since legal principles are capable of easy summary since there are judgments, such as those above quoted, which encapsulate the legal principles. Trial judges are not helped, and the administration of justice is not aided, by the citation, as here, of a vast profusion of case law. In other jurisdictions, and here the Rules of the Superior Courts enables it too, time limits may be given to parties to present their case. Since the judgment of Denham CJ in Talbot v Hermitage Golf Club [2014] IESC 57 [2015] 3 IR 512 it has become imperative to manage difficult cases so that court time is not taken away in an unbalanced way from the general resource. That should be done by giving each party a limited number of days which they can use up as they wish rather than letting cases, as they say, take on a life of their own. See further Defender v HSBC & Others [2020] IESC 38.
Result
31. In the result, the liability of the ESB as established in the High Court is soundly based. Any issue as to contributory negligence by University College Cork is left to another hearing on appeal. In concurring in the result proposed in the joint judgments of Clarke CJ and MacMemanim J, the scenario which follows must be noted. Never again should a case be afforded as much time as diffuse views as to law and as to fact and a multiplicity of experts demands. Control of time is for the court. Experts are there to assist and not more than one on an issue on each side. But, there remains both contributory negligence and the possibility of recalibrating damages. Reasonable care was what the ESB was required to exercise when taking charge of the River Lee by constructing two dams. Just because an expert claims the ESB could have done better does not mean that that is so because the principle of reasonable care may be instinctively foreign to expert analysis, a scrutiny that analyses an issue in hindsight and can very readily apply counsels of perfection.
32. It may be, no view is expressed, that the weather predictions, reasonably considered, could have meant that reasonable care may have required the release of waters that could have caused flooding earlier than the main flood. It may be that considerable damage would thereby have been caused. It may be that the measure of damages is the difference between what that would have been thereby caused and what actually happened here. As to what was reasonable care in the management of the dams, the duty to generate electricity is also relevant and there is no legal basis for expecting the ESB to stop production entirely even if that might have saved flooding in the expected storm. Lessening, consistent with duty, early release, mitigation of flooding, all of these are to be considered, from the point of view of a person of reason and that viewpoint is not necessarily the same as that of an expert.
Joint judgment of Mr. Justice Clarke, Chief Justice, and Mr. Justice MacMenamin delivered the 13th July, 2020.
1. Introduction
1.1 Cork City suffered very severe flooding on 19 and 20 November 2009. A principal cause was that the River Lee broke its banks, thus subjecting many nearby properties to significant damage. Amongst those who suffered was the plaintiff/ appellant, University College Cork (“UCC”), where the campus was severely damaged.
1.2 UCC has claimed that the defendant/respondent, the Electricity Supply Board (“the ESB”), was negligent or guilty of nuisance in the way in which it handled its up-river dams at Inniscarra and Carrigadrohid, thus causing or contributing to at least a significant part of the flooding concerned. On that basis, UCC commenced these proceedings alleging negligence and nuisance against the ESB. The ESB denied that it was guilty of either negligence or nuisance, but pleaded, in addition, that if it were liable, UCC should be found guilty of contributory negligence and thus have its damages reduced.
1.3 In the High Court, UCC succeeded in part, in that the trial judge (Barrett J.), for the reasons set out in a written judgment dated 5 October 2017 (University College Cork – National University of Ireland v. Electricity Supply Board [2015] IEHC 598) concluded that the ESB were liable but also held UCC to be guilty of contributory negligence, which he measured at 40%.
1.4 Both sides appealed to the Court of Appeal. In a judgment of that Court delivered by Ryan P. (University College Cork – National University of Ireland v. Electricity Supply Board [2018] IECA 82), the appeal of the ESB in respect of the finding of liability made against it was allowed and thus the judgment of the High Court against the ESB and in UCC’s favour was set aside. The Court of Appeal went on to consider whether UCC could properly have been found guilty of contributory negligence, for there remained the possibility of an appeal to this Court in which the question of contributory negligence could again become relevant if this Court were to take a different view on the initial liability of the ESB. The Court of Appeal came to the view that UCC should not have been found guilty of contributory negligence.
1.5 Thereafter, both sides successfully sought leave to appeal to this Court in terms to which it will be necessary to turn. Thus, both the question of the primary liability of the ESB and the potential liability of UCC for contributory negligence are before this Court. However, in the course of case management, it was decided that the Court would initially consider the question of whether the ESB could properly be found to be liable. Clearly, so far as a court of final appeal is concerned, there is no need to go on to consider the question of contributory negligence in the event that there is no sustainable finding of primary liability in the first place. Thereafter, a hearing followed on the question of the liability of the ESB. The question of whether any contributory liability can be attached to UCC has been left over until that issue has been determined and, obviously, will not need to be determined in the event that no liability attaches to the ESB.
1.6 Put at its very simplest, therefore, the issue on this appeal is as to whether the High Court was correct to find that the ESB was liable in negligence and/or nuisance or whether the Court of Appeal was correct to find that it was not. However, behind the broad issue expressed in those simple terms, there are potentially a range of issues which can contribute to a final determination as to whether the ESB is liable.
1.7 In order to understand the issues in a little more detail, it is necessary to at least start with a brief overview of the facts.
2. The Facts – An Overview
(a) General Background
2.1 It is proposed to deal with detailed aspects of the facts relevant to the issues which arise on this appeal in the context of the specific issues as they arise. For present purposes, it is sufficient to give an outline of the background facts so as to place those legal issues within their general context.
2.2 The River Lee flows through Cork City, which was built on its floodplain. The city is susceptible to both fluvial and tidal flooding. In 1949, the Lee Hydroelectric Scheme (“the Lee Scheme”), for the generation of electricity by means of hydraulic power, was approved for construction by the Minister for Industry and Commerce, under the Electricity (Supply) (Amendment) Act 1945 (“the 1945 Act”). The scheme as approved was built between 1952 and 1957.
2.3 The Lee Scheme comprises of two dams (“the Lee Dams”), each impounding a reservoir of water. The power station, dam and reservoir at Inniscarra (“the Inniscarra Dam”) are located approximately 14km upstream of Cork City. Approximately 13km further upstream, there is a second power station, dam and reservoir located at Carrigadrohid (“the Carrigadrohid Dam”). The Lee Dams work together for the most part and outflow from the Carrigadrohid Dam is discharged directly into the Inniscarra Dam system. The Hydro Control Centre in Wicklow is responsible for the normal operation of the Lee Stations. However, management of water levels and flood management are dealt with from the control room at Inniscarra Power Station under the Hydrometric Officer’s instruction.
2.4 The operational rules of the Lee Scheme are contained in the Lee Regulations (“the Regulations”) which is an internal ESB document the first version of which was published in 1969. The Regulations have been subject to a number of subsequent revisions and, it should be noted, do not have statutory standing. The Regulations contemplate, amongst other things, the operation, management and control of the Lee Dams both in normal conditions and in flood events and also contain rules, procedures and guidelines to be applied in respect of the water levels of the reservoirs, the management of water discharges and flood management.
2.5 The Lee Dams are classed as “Category A” dams, meaning that a breach of such a dam would endanger the lives of a downstream community. Dam integrity requirements are therefore fundamental to the Lee Regulations.
2.6 The Lee Regulations outline three separate levels against which the water in the reservoirs can be measured. The first of these is the “Maximum Normal Operating Level”, referred to as “MaxNOL”, which is defined as meaning “the highest level allowable in the operation of the reservoir under normal operating conditions”. It can only be exceeded under special flood instructions. Once MaxNOL is reached, water must be discharged in accordance with the Lee Regulations, for to ordinarily allow reservoir storage above MaxNOL is considered an unacceptable risk to dam safety, as the danger exists of dam failure resulting from spilling of large quantities over the top of the barrier. The Target Top Operating Level (“TTOL”) for both Lee Dams are also prescribed in the Lee Regulations. This level is defined as the “top operating level which the station shall endeavour to maintain during non-flood conditions” and, while it varies during the year to accommodate seasonal weather conditions, it is always lower than MaxNOL. The “Minimum Normal Operating Level”, referred to as “MinNOL”, is the lowest level at which the normal operation of the plant is possible.
2.7 The Regulations prescribe how discharges are to be managed during floods, in order that the Lee Dams are capable of dealing safely with floods, by providing that specified amounts should be discharged at specified reservoir levels. In order to understand the appropriate procedures, it is necessary to start by saying a little about the concept of “spilling”. Essentially, all water entering into the system of either dam passes to the downstream side of the dam concerned either by passing through the turbines and thus generating electricity or by being “spilled”, that is permitted to pass through gates designed to allow for the release of water beyond that which passes through the turbines.
2.8 A “flood period” begins when, in the judgment of the Hydrometric Officer, conditions and all available information indicate that spilling may be necessary. During a flood period, the Regulations provide that “the top priority is the proper management of the flood to avoid any risk to dam safety”. General hydroelectric generation practice requires that dam integrity be ensured by following a mandatory discharge regime at specified levels. Discharges are generally made through the turbines, as part of normal station operations, although in advance of a potential flood, water may also be “spilled”.
2.9 Based on operational experience, a discharge of up to 150 m3/s from the Inniscarra Dam is considered by the ESB to be that which will remain “in-bank” (that is within the banks of the river) and thus flooding should not result. Discharges greater than 150 m3/s are likely to breach the river-channel capacity and cause flooding. For that reason, the Regulations require that discharge should not exceed peak in-flow. Thus, the assumption behind the Regulations is that it is permissible when required in the appropriate circumstances to discharge more water than is coming into the system but only where that discharge will be not more than 150 m3/s. In that context, it is worth noting that the normal flow through the turbines when they are operating to their full capacity is somewhere between 80-85 m3/s. Thus, it is possible to discharge an additional 65-70 m3/s without exceeding the 150 m3/s threshold. While it is undoubtedly the case that a discharge above the level of inflow has an effect downstream by increasing the flow of water, experience has shown that increasing the outflow in a way which does not exceed the 150 m3/s threshold is most unlikely to cause flooding as such.
(b) November 2009
2.10 The events of November 2009 are central to the issues before this Court. That month was a time of very wet and windy weather in Ireland. The storm in the area of Cork, and the resulting rainfall in the Lee catchment area leading up to and on 19 and 20 November, was the worst in the history of the Lee Dams. As the water levels rose in the Lee Dams, ESB controllers allowed the flow of the river through the system to increase by degrees, but ultimately very substantially, in accordance with the protocols for such situations. Ultimately discharge at more than 500 m3/s occurred until the storm abated and water levels fell. This resulted in severe flooding downstream, causing significant damage to the properties of UCC and others. It does not appear that the outflow through the system at critical times on November 19 and 20 exceeded the inflow. However, in simple terms, the principal contention put forward on behalf of UCC is that, in the days and weeks leading up to the critical events of that time, the ESB negligently left less scope or capacity in their reservoir system for water than should have been the case. On that basis, it is argued that at least the worst problems of the flooding could have been prevented or alleviated had the reservoir system been capable of absorbing a greater volume of water on the occasion in question.
2.11 On a separate question, the ESB operates an ‘opt-in’ warning scheme that notifies residents downstream of the Inniscarra Dam that discharges additional to normal turbine operation will occur. As the situation developed during 19 November 2009, the ESB activated its notification system by alerting people on its contact list that water discharges from Inniscarra were being increased in response to the increased in-flow and the risk of flooding. As the situation deteriorated, the warnings became more urgent and were broadcast widely in the region.
2.12 In due course, UCC sought to recover from the ESB the substantial cost of repairs and losses arising from the flooding of its campus buildings. In January 2012, UCC issued proceedings against the ESB claiming damages in, amongst other things, negligence and nuisance.
2.13 In the light of that overview, it is appropriate first to record the conclusions of fact reached by the High Court and to identify the legal basis on which the High Court considered that the ESB was liable.
3. The High Court Judgment
3.1 The hearing in the High Court lasted 104 days and resulted in the handing down of a written judgment of over 500 pages by the trial judge. The case made by UCC was that the ESB owed a duty of care to UCC and other downstream occupiers to avoid what was described as unnecessary flooding. Accordingly, it was said that the ESB should have anticipated the heavy inflow of water that the storm would bring and should have endeavoured to ensure that it had sufficient space in the reservoirs to accommodate the flood waters when they arrived. On that basis, it was said that a substantial part of the damage which UCC suffered would have been prevented.
3.2 The ESB acknowledged that it had a duty of care to downstream occupiers, but only in respect of the risk of dam failure and in respect of the risk of flooding caused by the discharge of water in greater quantities than that which entered the dam systems. ESB’s case was that its statutory function was to generate electricity and that, while it endeavoured to reduce flooding in a manner consistent with this primary obligation, it was not legally bound to do so. On that basis the ESB argued that it did not owe a duty of care to avoid unnecessary flooding. Further, the ESB maintained that the Lee Scheme did not add to the flooding but, in fact, reduced it.
3.3 The trial judge held that the ESB was liable in negligence and nuisance in regard both to flooding and warnings. In particular, it was concluded that the ESB should have kept water levels in its reservoirs lower at TTOL in order to create more storage space. In the course of the judgment, Barrett J. set out a chronology of events which took place between 16 and 20 of November 2009, setting out the details of the evidence provided in relation to the flood event which took place in Cork City on 19 and 20 November 2009. The trial judge also noted the decisions made in relation to the operation of the Lee Dams and the spilling of water therefrom in the days preceding the flood event. The trial judge also answered no less than 261 “Key Questions of Fact” which were submitted by the parties. While the relevant findings of the High Court will be considered in more detail shortly, it should be noted that a number of issues canvassed before that Court do not remain alive before this Court.
3.4 The ESB drew attention to the fact that the powers conferred on it by s. 34 of the 1945 Act, which allowed it to control, alter or affect the water levels of the Lee Dams, required it to exercise those powers “in such manner as the Board shall consider necessary for or incidental to the operation of those works”. On that basis the ESB contended that these powers were conferred only to assist in hydroelectric-generation and that, while flood alleviation is generally incidental to this pursuit, the obligation to alleviate flooding cannot be implied into the legislative scheme where it is inconsistent with the ESB’s statutory mandate to generate electricity. There is, of course, a distinction between a statutory power and a duty of care. In rejecting ESB’s argument, Barrett J. considered that it was undermined by a number of factors. Those were that the ESB had, in fact, performed a flood alleviation role for decades. The trial judge adverted to the provisions in the Regulations which were directed toward facilitating flood alleviation and allowing for advance discharges in order to create more storage for incoming floods and to reduce peak discharge. Barrett J. also laid weight on the fact that he considered that over the years the ESB had made public representations to the effect that public safety was its utmost priority. He held this voluntary assumption of responsibility was sufficient in itself to create a duty of care.
3.5 The trial judge also considered that there could “be no serious dispute” but that UCC had reasonably relied on this duty of care, derived from the assumption of responsibility, based on the ESB’s “various utterances to the world at large as regards flood attenuation over the years” and based on the inclusion of UCC on the opt-in warning list. Further, the High Court provided a number of reasons why it considered that the objectives of flood alleviation and the ESB’s statutory “mandate” of hydro-generation were compatible. The Court noted, amongst other things, evidence to the effect stated that these aims were not mutually incompatible and that the Lee Scheme was capable of fulfilling both functions and also that this was permissible under the statutory framework. The Court also found that, while the Lee Dams were not multi-purpose dams, they were in fact operated with objectives which included flooding alleviation, holding at para. 109 that the ESB “tries, where possible, to reduce downstream flooding in a manner that does not detract from its hydro-electric purpose… By operating to TTOL, ESB combines optimal usage with substantial flood alleviation”.
3.6 The High Court considered that TTOL offers a level at which the generating potential at the Lee Dams can be optimised while ensuring that water levels are generally kept lower. The trial judge considered that, on the evidence before him, the obligation contained in the Lee Regulations was to endeavour to reach TTOL.
3.7 Having held that a duty of care was owed on the part of the ESB to owners or occupiers of downstream property, which required the ESB in its management and operation of the Lee Scheme not to cause unnecessary flooding, the trial judge considered that the practical expression of this duty of care was such as to give rise to a legal duty to maintain water levels at TTOL. “Unnecessary flooding” was held to be that which “occurs after ESB crosses the point of optimisation that it has itself identified as its top operating level”. The Court rejected the ESB’s submission that its duty is confined to not releasing more water downstream than that which is received into the Lee Dams, an iteration of the “do not worsen nature” rule which has been adopted in a number of US cases regarding the liability of dam operators. It will be necessary to return to those US authorities in due course.
3.8 The High Court accepted UCC’s contention that ‘nature’ in this case has been fundamentally altered by the construction of the dams and that the Lee Scheme represented a “new status quo”. The Court held the concept of “pre-existing nature” did not represent the expectation or understanding of downstream residents, in circumstances where it was considered that the Lee Scheme intermediated between ‘nature’ further upstream and their property. Distinguishing the other US dam cases cited to the Court, the trial judge followed People v. City of Los Angeles 34 Cal.2d 695; 214 P.2d 1 (1950), as judicial recognition of “changed nature” as the new condition to which regard must be had when considering the state of nature.
3.9 The trial judge went on to consider the nature of the ‘do not worsen nature rule’. The Court held that this represented a rule that derived from the building and ownership of a dam and the Court considered that it does not attempt to address the additional and distinct responsibility attaching to the harnessing of the river flow for industrial purposes. Barrett J. continued, at para. 1029:-
“It is a rule that does not reflect the development of the duty of care in the 20th century, or the rightful expectations of modern society. Moreover, it is not simply the case, as ESB claims, that during the flood of 2009 it merely allowed water to pass through the Lee Dams…To succeed in its ‘do not worsen nature’ argument, ESB must present itself as a ‘passive agent’ and nature as an ‘active agent’. This is a distortion of the truth.”
3.10 In relation to the duty of care established, the Court then proceeded to find that foreseeability of the harm had been established as it was “common case” that high discharges created a risk to life and property of persons downstream. In addition, and from the particularised knowledge available to the ESB, the trial judge held that it was beyond dispute that the ESB was aware of that risk. A sufficient relationship of proximity between the parties was also found for UCC, as owner and occupier of land by the river, “fell clearly within the class of persons who would be directly affected by high discharges from the Lee Scheme”.
3.11 The High Court then proceeded to make several findings in respect of the evidence as to causation, holding first that, had water levels been maintained at TTOL, the peak flow of discharges on 19 November 2009 would have been reduced, resulting in benefits downstream. Further, it was held that, if advance discharges had taken place, peak discharge on 19 November would have been reduced appreciably. The trial judge also found that more effective use of storage at Carrigadrohid would also have reduced downstream flooding. Finally, the Court held that timely and effective warnings on the morning of 19 November would have meant that less damage would have been caused. Further, the Court dismissed the ESB’s contention that the flood was caused by nature, and not by the ESB as it did nothing to worsen the natural conditions that existed, on the basis that the scope of the duty of care should not be determined by reference to causation
3.12 The High Court then proceeded to outline a number of findings of breach of duty of care on the part of the ESB. The trial judge found, amongst other things, that water levels at flood-start in November 2009 were at a level that created an obvious risk of serious flooding downstream and were unreasonably maintained at such a level, given the time of year, the pattern of unsettled rainfall, the risk of heavy rainfall, the catchment saturation and advance discharge limitations. The Court also held that the ESB failed to react appropriately to the weather forecasts received and that, given the high levels of water and the extreme weather which had been forecast, the ESB ought to have discharged water earlier and in greater quantities in the days preceding 19 November. In addition, the ESB should reasonably have maintained lower water levels than it did by operating consistently to TTOL. The trial judge considered that the start water levels in a flood situation had a critical impact on ultimate discharges, thereby determining empty space and thus determining required discharge-levels. At para. 1075, the Court found that the ESB was negligent in keeping water levels as high as it did, placing the ESB in a position where its capacity to handle a large, reasonably foreseeable flood event was severely limited.
3.13 At para. 1078, the Court found that maintaining water levels at TTOL was consistent with maximising hydro-generation and that profit maximisation was “little enough reason” for keeping water-levels high. The trial judge then referred to the evidence of Mr. Matt Brown, an energy consultant called as a witness by UCC, which indicated that the value of the additional revenue earned by the ESB by operating above TTOL during November 2009 was between €100,000 and €130,000.
3.14 The High Court further found that the ESB was liable in nuisance, where it had consistently accumulated water in excess of TTOL and, as a result of this continued behaviour, the storage capacity in the Lee Dams had been significantly reduced. It had, therefore, become necessary to release water over a prolonged period at a rate that caused flooding downstream, thereby interfering with UCC’s use and enjoyment of its property.
3.15 Under a separate heading, the Court also found that ESB had a so-called “measured duty of care” as an occupier to remove or reduce the hazard which existed to neighbours, as established in Leakey v. National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485. The ‘hazard’ which the trial judge considered to exist was that of water levels maintained in excess of TTOL. Following the decision of the Privy Council in Goldman v. Hargrave [1967] 1 AC 645, the trial judge held that the duty’s existence was based on knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate or reduce the hazard. The Court went on to hold that the standard required of the occupier ought to be that which is reasonable to expect of him in his individual circumstances. The ESB was held to have failed to do what it reasonably could and should have done to mitigate the nuisance. By deliberately releasing water, it had caused damage which could have been avoided or been significantly reduced by heeding weather reports and spilling earlier or, indeed, by operating consistently to TTOL. Maintaining water levels at TTOL was considered to be a reasonable action to minimise the known risk of flood damage to UCC from heightened discharges.
3.16 Under the measured duty of care concept, the Court held that generally it was necessary to be able to formulate as an injunction that which the plaintiff asserts the defendant was obliged to do. The trial judge defined this as follows at para. 953:
“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.”
3.17 The High Court dismissed the contention that the ESB did not create the flood. Following Bybrook Barn Garden Centre Ltd. v. Kent County Council [2001] L.G.R. 329, the Court held that, in certain circumstances, a defendant can be liable for a nuisance that he does not directly create. In response to the ESB’s contention that nature caused flood-damage to UCC rather than ESB’s own want of care, the Court observed at para. 955 that questions of causation should not be conflated with the question of the duty of care, which should be assessed by reference to foreseeability, proximity, and considerations of what is just and reasonable.
3.18 In relation to the flood warnings which were issued by the ESB, the trial judge considered that the ESB had a duty of care to warn persons downstream, that there was “a heightened duty on the ESB to warn” those on the warning list and that the warnings which were provided to UCC were neither timely nor meaningful. At para. 269, the High Court set out the features which cast this heightened duty to warn on the ESB:-
“First, ESB assumed the responsibility of giving warnings to those on its warning list; the corollary of such an assumed responsibility is a heightened obligation towards those to whom that obligation is assumed. Second, ESB was the only entity capable of providing information on discharges. Third, ESB stood possessed of its knowledge of various flood studies.”
3.19 The Court then went on, at para. 276 of the judgment, to outline what it considered to be a number of deficiencies in warnings issued by the ESB on 19 November 2009. It was held that the warnings in question were not sufficiently differentiated from those provided on previous occasions involving less serious flooding risks. In addition, it was considered that there was no indication of the severity of the flood risk arising and that the warnings contained no significant indication of the likely impact of the increased discharges of water to property downstream in general and, specifically, in relation to the buildings of UCC. The trial judge held that it would have been “relatively easy for ESB to provide more effective warnings” and convey the full risk arising from the increased discharges. These observations led the Court to conclude that the ESB had a duty to provide “timely and adequate warnings” to a person to whom it had assumed a responsibility to so warn and that it had failed to discharge this duty. Having considered the evidence of UCC staff members, the Court held that, had they known what the discharges were to entail, there was more those staff members could have, and would have, done to limit the damage caused.
3.20 As already noted, Barrett J. also found UCC guilty of contributory negligence which he measured at 40%. However, as that aspect of the proceedings is not currently before this Court, it is not necessary to set out the findings of the High Court on that question at this stage.
3.21 It is next necessary to consider the reasons why the Court of Appeal came to the opposite view to that of the High Court.
4 The Judgment of the Court of Appeal
4.1 Having appealed the primary finding of Barrett J., the ESB were successful in the Court of Appeal in overturning the judgment of the High Court on the question of its liability. The Court of Appeal considered that the conclusions reached by the trial judge in imposing liability on the ESB in respect both of floodings and warnings were erroneous and that the appeal should be allowed. At para. 14 of his judgment, Ryan P. continued:-
“The High Court judgment if permitted to stand would represent a significant alteration of the existing law of negligence and nuisance, would be contrary to the statutory mandate of ESB in respect of electricity generation and would not be consistent with reason and justice.”
4.2 The Court of Appeal first considered the trial judge’s conclusions in relation to TTOL which, it stated, formed “a central pillar” of the judgment, being crucial to the reasoned process underlying the finding of the High Court relating to a duty of care to avoid unnecessary flooding. Ryan P. noted that the judgment specified TTOL as representing the precise standard of care to which the ESB must adhere as a result of that duty. At para. 117, the Court of Appeal held that the trial judge’s analysis of TTOL was erroneous. In the view of the President, TTOL was a guideline, expressed as a target, and did not enjoy any particular binding status on the ESB. The Court found that the ESB was required to operate the dams safely, but that a breach of its internal rules alone was not sufficient to establish negligence and, conversely, the fact of compliance with TTOL would not in itself be an answer to a claim in negligence.
4.3 The Court accepted the ESB’s case to the effect that a number of problems existed regarding the theory and practice of implementing the proposed rule of compliance with TTOL. These included issues concerning the ascertainment of when it was appropriate to allow the reservoir to fill beyond TTOL, the ability of the ESB to alter the provisions of the Lee Regulations and the TTOL standard. Fixing the level which the ESB was obliged to maintain in its reservoirs as TTOL was held to represent “a highly invasive and prescriptive approach to the management of the Lee Scheme”, which was incapable of general application and therefore the trial judge was held to have erred in making such a finding.
4.4 The Court of Appeal then proceeded to consider the compatibility of the statutory provisions governing the Lee Scheme with the duty to avoid unnecessary flooding identified by the High Court. Under s. 34 of the 1945 Act, the ESB had the power to alter the water level as it considered necessary in connection with the operation of the works. The Court of Appeal held that it followed from s. 10(1) of the 1945 Act that the purpose of the works was the generation of electricity. While flood alleviation was not prohibited by the 1945 Act, the Court held that such measures were only permissible to the extent that they did not impair the exercise of the mandatory functions of the ESB. The Court then held that, conversely, it would be impermissible under the Act to prioritise flood protection as a policy imperative over electricity generation as this would be contrary to the statutory scheme. Ryan P. concluded that, if the duty to avoid unnecessary flooding in practice meant maintaining extra storing space and mandating adherence to TTOL, this should properly be construed as an impermissible inhibition of the ESB’s capacity to carry out its statutory mandate.
4.5 Turning to consider whether there existed a duty to avoid or prevent unnecessary flooding at common law, the Court of Appeal first considered the existing case law concerning dam-operators and found that it did not support the duty claimed by UCC and imposed by the High Court, whether defined in general terms or in the specific form of an order to keep to TTOL. The Court considered persuasive the rule set out in Iodice v. State of New York 247 App. Div. 647 (1951), and other subsequent US dam cases, which held that the only duty imposed on a defendant dam-operator in respect of single purpose dams (like the Lee Dams) was to avoid making the flooding worse than it would be under natural conditions. The Court rejected the finding of the trial judge that the “do not worsen nature” rule was not applicable in circumstances of long-standing constructions that had permanently changed nature and held that, if that were the case, no development of any kind could make the defence that it was not adding to the existing situation.
4.6 The Court of Appeal then addressed the question as to whether the evidence before the courts meant that the ESB had accepted responsibility for carrying out flood alleviation so as to afford legal redress to parties downstream in the event that the ESB fails to carry out such a duty. At para. 179, it was concluded that the documents established in evidence did not disclose a basis for a conclusion that ESB, through its publications and statements, had accepted responsibility for a legally enforceable duty to operate the reservoirs in a manner that is specifically directed to alleviate downstream flooding. At paras. 184 and 185, Ryan P. held that no legally enforceable obligation to carry out flood alleviation arose by reason of the ESB’s previous conduct in operating the dams, which had had the effect of reducing flooding. The fact that a person or body had engaged in an act which was of assistance to another did not, without more, create a legal liability and, while its procedures and operating rules did envisage flood risk reduction, the Court held that it did not follow that the ESB had assumed legal liability to prevent some or all flooding to a specific standard.
4.7 The Court of Appeal disagreed with the trial judge’s conclusion that, in common law, a duty of care existed not to cause unnecessary flooding. Ryan P. considered such a formulation of the scope of the duty would create difficulties in principle and in practice. He held that the asserted duty to avoid unnecessary flooding was impermissibly vague and impractical. The Court held that it was unclear where the distinction lay between “necessary” and “unnecessary” flooding and that the obligation contended for by UCC amounted to “an affirmative duty to prevent nature from injuring others” which, in the Court’s view, was unsupported by existing case law. Ryan P. concluded at para. 197 that such a duty was wholly unspecific and unknowable in advance, yet also one which was difficult to measure in retrospect.
4.8 The Court of Appeal then proceeded to consider the claim in nuisance, or on foot of a measured duty of care under the Leakey jurisprudence, in circumstances where the negligence claim had failed. In the absence of any finding that the ESB was not in breach of any obligation that was owed to UCC under a duty of care, Ryan P. considered that it would seem to follow that the use of its land in connection with its function of electricity generation should be excused of fault. Whilst accepting that some lawful activity carried out on land in a non-negligent manner may give rise to interference with neighbouring land, the Court of Appeal considered that what was alleged in this case was not something arising incidentally from the operation of the business of the ESB but rather the modus operandi of the business itself. The Court considered that the nature of the case, the reasoning of the trial judge and the structure and emphasis of the judgment “all point to the centrality of negligence and the peripheral and essentially theoretical nature of the debate on nuisance”.
4.9 The Court considered that the essence of the liability under the Leakey duty was that a harm had come from the defendant’s land and had gone on to, or was in danger of going on to, the plaintiff’s land. The Court found that the central feature missing in the High Court’s analysis was that the ESB had done nothing to affect the state of the river that was passing in its channel through its land and that of UCC. Ryan P. concluded that there was no hazard on the ESB’s lands that could be identified for the purpose of being corrected or removed and that the river was common to the lands of both parties. The Court of Appeal held that the Lee Dams were not, from the perspective of UCC, a danger, but rather gave rise to an improvement on conditions as they would have been if the dams had been absent. The water levels in the river had not been increased by ESB, nor had the ESB caused flooding and the flooding of UCC property could not be said to have emanated from the ESB. Rather, in the Court’s view, the flooding derived from the naturally occurring flood on the River Lee and consequently there was no basis in law for finding liability in nuisance. Thus, the Court of Appeal held that the determination of the High Court to the contrary effect ought to be set aside.
4.10 The Court of Appeal added that, as riparian owners, the parties are in a legal relationship with mutual obligations and rights. Under the principles of riparian law, a “lower” riparian proprietor such as UCC was obliged to accept the natural flow of the river and that this was consistent with the ESB discharging a duty to downstream occupiers and owners not to worsen nature. Ryan P. considered that it was unnecessary to look outside that scheme of riparian law for rules governing their conduct as riparian owners. On that basis it was also held that the High Court had erroneously imposed liability.
4.11 Finally, in considering the adequacy of the warnings issued by the ESB, the Court of Appeal considered in turn whether there had been an assumed responsibility to warn on the part of the ESB and whether there existed a common law duty to warn. The Court concluded in respect of the first question that, in light of its practice and conduct over the preceding years, once discharges from Inniscarra exceeded 150m3/s, the ESB had assumed the responsibility to give a general public warning through the relevant authorities and the media and had also undertaken to warn those on the opt-in warning list.
4.12 However, the Court then noted that there was nothing in the Regulations and no evidence before the Court of past conduct from which it could be inferred that the ESB had accepted responsibility to provide the type of information and warnings which the trial judge said were required to meet the obligations it had assumed. On that basis the Court concluded that warnings concerning the anticipated volume of discharges, where such discharges would likely end up, or the possible effect of any such discharges, were not required. The responsibility assumed by the ESB was held to be “no more than to forewarn those on its list that something out of the ordinary was about to occur and about which they needed to be concerned”.
4.13 The Court concluded that the fact of the ESB’s control of the dams and its knowledge of the potential consequences arising from discharges made had no effect on the extent of this assumed responsibility and that the High Court erred in concluding that there was an assumed responsibility on the part of the ESB to provide different and more detailed warnings based upon such factors. The Court was further satisfied that, in the absence of such a responsibility to provide individuated warnings concerning the likely impact of the discharges on certain properties, the ESB complied with its assumed responsibilities in providing two warnings to UCC on 19 November 2009 and that there was no basis in fact or law for the conclusion of the trial judge that the ESB had failed to comply with those obligations.
4.14 The Court of Appeal then turned to the question of whether the trial judge erred in law in concluding that the ESB owed a common law duty of care to the public at large to provide flood warnings and that the ESB owed a “heightened duty of care” in common law to those on its opt in warning list, including UCC. The Court was not satisfied that the ESB was under any duty at common law to provide a warning to all members of the public who were at risk of flooding from its dams, such that its failure to do so would give rise to an award of damages for those who did not receive such a warning. The ESB was dealing with the consequences of nature and was not doing anything to worsen the flooding. The fact that the ESB might anticipate a risk of potential flooding which could cause damage to downstream residents was held not to be sufficient to create positive duties or obligations. Therefore, the Court was satisfied that there was no legal basis for any broader duty of care than that which arose on foot of the ESB’s assumption of responsibility to provide certain limited warnings to those on its opt-in warning list.
4.15 As noted earlier, the Court of Appeal also held that Barrett J. was incorrect to hold UCC liable for contributory negligence. However, as that issue is not before this Court at present it is unnecessary to set out the reasoning of Ryan P. in that regard at this stage.
4.16 As also noted earlier, both sides sought leave to appeal to this Court, which leave, of course, forms the scope of the appeal to which this judgment is related. It is appropriate next, therefore, to turn to the grant of leave to appeal.
5 Leave to Appeal
5.1 In the determination of this Court (University College Cork – National University of Ireland v. Electricity Supply Board [2018] IESCDET 140), it was considered that the case raised novel issues of law which were of general public importance. It was further noted that UCC’s claim was one of almost 400 proceedings commenced against the ESB in respect of the flooding incident in Cork in November 2009. In granting UCC leave to appeal the decision of the Court of Appeal, the Court observed that:-
“The case addresses a number of issues including the liability of a dam operator in respect of persons or property downstream, the law relating to the existence of duty of care, the definition of any such duty and the liability of statutory undertakings both generally, and in the law of nuisance.”
5.2 Leave was also granted in respect of the cross-appeal lodged by the ESB against the decision of the Court of Appeal on contributory negligence but, as mentioned above, in the course of case management it was determined that the matter of contributory negligence was to be left over pending a determination of primary liability. Thus, it is only the main appeal against the finding of the Court of Appeal to the effect that the ESB was not liable in negligence or nuisance which is currently under consideration.
5.3 Against that background, it is appropriate first to set out in general terms the issues which arise on this appeal having regard to the judgments of both the High Court and the Court of Appeal.
6. The Issues – A General Approach and Three Areas of Contention
6.1 It seems to us that it is appropriate to group the issues into three main areas of contention.
(a) The Duty of Care
6.2 The first area relates to the claim in negligence. While a significant number of subsidiary issues potentially arise, it would appear that the central area of dispute between the parties concerns the extent, or scope, of any duty of care which the ESB could be said to owe to UCC or, indeed, other downstream owners and occupiers. It is perhaps appropriate at this stage to explain why the extent of the duty of care is so central to the issue of negligence in the circumstances of this case. There is annexed to this judgment a graphic which provides a useful synopsis of the water levels in the Inniscarra reservoir during the relevant period. While the matter is somewhat complicated by the interaction between that reservoir and the Carrigadrohid reservoir, it is sufficient for present purposes to concentrate on the Inniscarra reservoir which was, after all, the reservoir furthest downstream and which, in conjunction with the Inniscarra dam, provided the final barrier to water descending further towards Cork city. As the analysis which follows is designed purely for illustrative purposes, it is unnecessary, for the present at least, to consider any additional complications which might arise from the interaction between the two systems. The graphic is taken from the evidence and contains some commentary from the parties. However, it is the underlying data on which we comment.
6.3 From the Inniscarra graphic, it is clear that the water levels on 10 October 2009 were at a level which was somewhat below TTOL. It is also clear that there was little or no generation of electricity at that time, so that the water level was able to rise to TTOL by approximately 16 October and remain there until generation commenced around 19 or 20 October. It is then clear that the water level was able to remain at TTOL as a result of the use of water for generation purposes between 20 and 26 October and that the level further remained at TTOL until the end of October, during part of which period there was little or no electricity generation although, during the latter days of the period in question, generation did occur.
6.4 It is then clear that a very large quantity of water came into the system between the very end of October and approximately 2 or 3 November, leading to a very significant increase in water levels so that same ultimately exceeded MaxNOL. As noted earlier, the Regulations required spillage once MaxNOL had been exceeded, such that, for a period of some three or four days in early November, spillage occurred which had the effect of reducing the level of water slightly below MaxNOL. There then followed a fairly critical period between 6 November and approximately 14 November. During that period, there was more or less full generation of electricity, such that the 80-85 m3/s volume of water required for that purpose was being utilised. However, there was no spillage. Having regard to the amount of water coming into the system, the effect of the operation of the dam in that way was that the level of water remained at or close to MaxNOL for all of that period, meaning that, when a weather warning was issued on 16 November, the starting position was that the level of water was more or less at MaxNOL.
6.5 As a consequence, the system had no capacity to absorb more water than it could discharge, for to do so would have led to the water levels exceeding MaxNOL, with all the danger to the integrity of the dam which that entailed. Obviously, in those circumstances, an inflow of up to 150 m3/s could have been dealt with by a combination of electricity generation and spillage without the risk of flooding. However, the inflow greatly exceeded that amount, such that the spillage in turn was required to greatly exceed the amount which could be accommodated within the channel of the river downstream. In those circumstances, it was inevitable that flooding would occur.
6.6 Without addressing for the moment the key question as to whether any legal obligation lay on the ESB to anticipate and alleviate such a situation as it developed, it seems clear on the facts that, had the ESB spilled up to a combined generation and spillage usage of 150 m3/s between 5 November and 16 November (or at least done so in a quantity sufficient to bring the level down towards or to TTOL), the systems of the Lee Dams would have had a much greater capacity to absorb the huge inflow of rainwater which occurred on 19 and 20 November.
6.7 On the other hand, it is equally clear that at no stage was the outflow from the Lee Dams in excess of the inflow, except during a period when the combined generation and spillage quantities were nonetheless below the 150 m3/s threshold for flooding. The fact that there were some periods where a greater volume exited the system than had entered it can be seen from the fact that the overall level did drop on certain occasions due to the use of spillage. But during those periods when the outflow exceeded the inflow, it is clear that the total outflow did not exceed 150 m3/s.
6.8 It therefore also seems to be clear that, if the duty of care which the ESB might be said to owe towards owners and occupiers downstream from the Lee Dams did not extend beyond a situation whereby they would not, as it were, worsen nature (or at least would not do so to the extent that it might cause flooding by discharging water of a quantity beyond the 150 m3/s threshold), then it is hard to see how the ESB could be said to be in breach of any such duty of care.
6.9 Put simply, that analysis leads to two conclusions. If the ESB had a duty of care to engage in some form of proactive discharge, having regard to all of the circumstances of the case, then it is almost certain that the ESB was in breach of that duty of care. However, it can equally be said that, if the duty of care of the ESB did not extend beyond a “not worsen nature” obligation, except where additional outflows over the inflow would not cause flooding, then it is also clear that it would be very difficult to see how the ESB was in breach of that duty of care.
6.10 For those reasons, it was hardly surprising that a great deal of the debate between the parties, both in the written submissions filed and at the oral hearing, centred very much on the extent of any duty of care which the ESB might be held to owe to downstream owners and occupiers, for the resolution of that issue was bound to go a very long way indeed towards resolving the question of whether there was negligence.
6.11 The first area of contention, therefore, concerned UCC’s argument relating to the scope of the duty of care which rested on the ESB. If UCC’s argument in that regard is accepted, then the latter company was almost certainly in breach of such duty and thus negligent. On the basis of the ESB’s contended for duty of care, the ESB was almost certainly not in breach and thus not negligent.
(b) Nuisance
6.12 The second area of contention concerned the potential liability of the ESB in nuisance, or under the Leakey jurisprudence. As will become clear when it is necessary to discuss in detail the jurisprudence in relation to the duty of care in a case such as this, a significant distinction is made in the law of negligence between acts of commission or acts of omission. In the most recent case law, the distinction is made between acts which do harm, as opposed to a situation where there is a failure to do good.
6.13 However, under the Leakey jurisprudence, it is possible in some circumstances that liability will arise, even in cases where there is no positive action taken by the defendant which could be said to have caused harm. Thus, the issues which arise under this heading only really become relevant in circumstances where a court declines to fix a defendant with a duty of care on the basis that no positive obligation to do good exists in the context of the duty of care asserted. In that sense, the nuisance/Leakey issues are more properly to be considered as part of a fall-back position, only coming into play in the event that the duty of care issue is resolved in favour of the ESB.
(b) The Warnings
6.14 Similarly, but for somewhat different reasons, the third area of contention, being the warning issue, also represents a fall-back position. It would seem that the obligations which UCC contend lay on the ESB, either under the contended for duty of care or under the law of nuisance and the Leakey jurisprudence, appear to be the same in the circumstances of this case. Liability under either heading would appear to be likely to give rise to the same damage. However, the same is not at all true if the only head of liability established concerned the absence of warnings. There was evidence given on behalf of UCC to the effect that certain measures could have been taken which would have alleviated the flood damage, had the sort of warnings which UCC contended were required actually been given. However, it seems clear that the extent to which those measures could have alleviated the damage to UCC would have fallen a long way short of the extent to which damage might have been prevented by the sort of measures which UCC assert were required in order to meet the duty of care allegedly borne by the ESB, or might have resulted from the contended for failure of the ESB in respect of nuisance and the Leakey jurisprudence. If the case were to succeed on either of those latter bases, then the damage for which compensation would require to be ordered would inevitably include all of the damage which would be attributable to a finding of a negligent failure to give warnings but also much more damage besides.
6.15 In the light of all of that analysis, it seems to us that the most appropriate starting point must be to analyse the arguments put forward by both parties on the issue of the duty of care and to determine the scope of any duty of care which UCC owed in all of the circumstances of this case. We turn to that question.
7. The Duty of Care – the arguments
7.1 At its simplest, it is UCC’s case, as described above, that the ESB had a duty to exercise reasonable care in the operation of the Lee Dams in order to avoid unnecessary flooding taking place downstream. UCC submits that the ESB is engaged in an industrial activity and that the Lee Dams are explicitly designed to interfere with the river’s natural flow in order to enable hydrogeneration. It is said that the ESB had exclusive access to extensive information about rainfall, inflows and the predicted effects of discharges during flood events and that, on this basis, it was uniquely positioned to make decisions in relation to flood management in November 2009 and to correctly anticipate and alleviate the flooding which was to take place. It is said that the ESB did not carry out a risk assessment analysis of scenarios other than the so-called “design flood”, which analysis solely related to scenarios connected with the possible collapse of the dam. UCC contends that the duty of care arose in the particular circumstances of the flood of November 2009, where the surrounding catchment area was saturated and where heavy rainfalls were predicted. On this basis, it is said that the ESB could have foreseen that advance discharges would be required and should not have found themselves in a situation where the water levels were as high as they were at the time that the flood-event commenced. Had water levels been lowered, UCC contends that, on the evidence, significant flooding would have been avoided.
7.2 The ESB contends that the “primary and inescapable fact of this case” is that the flooding suffered by UCC in November 2009 was considerably reduced by the operation of the Lee Dams and was significantly less than it would have been in the absence of the dams which, it is said, had reduced the flow of the river downstream. The ESB accepts a duty of care to persons downstream in respect of flooding which is caused when the outflow of the Inniscarra Dam exceeds the inflow to the reservoirs. It further accepts a duty of care to persons downstream to maintain the integrity of the Lee Dams. However, the ESB argues that their actions in pursuing hydrogeneration did not cause flooding and the risk of flooding was not attributable to the ESB because, it is said, the source of the flooding downstream was nature. In that context, no duty of care to alleviate such flooding is said to arise.
7.3 Within those broad parameters a number of specific issues arose for debate between the parties. The starting point for any consideration of the extent of the duty of care in the law of negligence in this jurisdiction must be the decision of this Court in Glencar Exploration plc v. Mayo County Council (No 2) [2002] 1 IR 84. The basis for establishing a duty of care requires that damage be suffered which was both foreseeable and not unduly remote from the acts causing it. In addition, it is suggested in Glencar that it is necessary that it be considered just and equitable that a duty of care be extended in all the circumstances of the case. To a very great extent there was no dispute between the parties as to the principles identified in Glencar although there were very significant differences indeed as to how those principles should apply in the circumstances of this case. Insofar as there may have been a slight difference of emphasis between the parties at the level of general principle, the ESB relied on what it contended was the approach of the courts in the United Kingdom to the effect that, where it is sought to extend a duty of care into an area which has not been the subject of detailed judicial examination, it is appropriate first to consider whether a duty of care should be held to exist (and if so to what extent) by analogy with other areas which have been the subject of more detailed judicial consideration. Put another way, it is argued that the question of whether it is just and equitable to impose a duty of care in a particular circumstance should be approached by considering whether a duty of care has been identified in analogous circumstances. This is the first issue to which it will be necessary to return.
7.4 On the question of foreseeability, UCC argues that it was foreseeable that any failure of the part of the ESB to manage the Lee dams in a way designed to minimise downstream flooding could lead to there being more flooding than might otherwise have arisen. In those circumstances it was said that the foreseeability test was met. In like manner it was said that downstream flooding was sufficiently proximate to any failure to manage the Lee Dams in a manner designed to minimise downstream flooding so that the proximity leg of the test was also met.
7.5 However, in response, the ESB sought to place reliance on the fact that, at no relevant time, was the down-flow of rainwater beyond the Lee dams greater than the in-flow. In those circumstances it was argued that, in reality, neither foreseeability nor proximity really arose at all, because any allegation of wrongdoing amounted to what was said to be an omission on the part of the ESB to take positive action to prevent flooding rather than the commission by the ESB of a wrongful act which caused that flooding.
7.6 This dispute gave rise to a second major issue before the Court being as to the proper characterisation of the duty of care said to be owed by the ESB to UCC. While it will be necessary to turn to a more detailed consideration of the law in that regard in due course, we have already noted that there is a well-established aspect of the law concerning the duty of care in negligence which distinguishes between acts of commission and acts of omission. While it is accepted on all sides that there are exceptions to the general proposition, it nonetheless is clearly the case that the imposition of a duty of care which imposes a positive obligation to act to prevent damage arises in significantly more limited circumstances than those which impose a duty of care to refrain from acting in a way which may foreseeably cause proximate damage.
7.7 In one sense that question, as many in law, came down to one of characterisation. The way in which the Lee dams operate, as a matter of practise, was not in significant dispute. UCC sought to argue that the ESB could not be equated to the bystander who simply fails to act to prevent harm being done to a third party. In that regard UCC sought to place reliance on the fact that the ESB carries out activities which have, as their inevitable consequence, an interference with the flow of water downstream. The argument in this area centred on whether that activity on the part of the ESB was sufficient to take it out of the category of a party who could successfully argue that what was being asserted against it was an alleged duty of care to take positive action.
7.8 UCC submitted that, as the ESB maintains the Lee Dams as part of an industrial process in which the control of water levels and discharges of water comprise of positive actions taken by the dam operator, the ESB cannot properly be characterised as a simple third party. The law on omissions is said to involve strangers to the chain of events, who have no involvement in the relevant activity, whereas here the ESB is said to have failed to take reasonable care while acting in the course of an activity which is of the utmost relevance to the subsequent events. UCC submits that, if the Court does, however, regard this as an omissions case, the ESB is liable on the basis of the exceptions to the general principle on omissions which, it is argued, were correctly set out by the United Kingdom Supreme Court in Robinson v. Chief Constable of West Yorkshire Police [2018] AC 736, at para. 34 in the following terms:-
“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.”
7.9 Here, it is submitted by UCC that the ESB has met three of these categories, having assumed a responsibility to protect downstream property-owners from the risk of flooding, having a special level of control over the source of the danger, which is the river, and having a status which creates an obligation to protect downstream property owners from danger.
7.10 It was submitted by the ESB that its actions in November 2009 should be properly characterised as a “failure to confer a benefit” rather than being assessed as either an act or an omission. Thus, ESB argues that UCC’s case should properly be considered as the proposal of a duty to improve the situation for those downstream, or to “confer a benefit” to downstream property-owners, by alleviating flooding. The ESB relies on the distinction drawn in the recent judgment of the Supreme Court of the United Kingdom in Poole Borough Council v. GN [2019] UKSC 25, between cases where the defendant has caused harm to the plaintiff, on the one hand, and those where the defendant has failed to improve matters for the plaintiff, on the other. The ESB submits that the law of negligence generally imposes a duty not to cause harm rather than a duty to provide other persons with a benefit.
7.11 In response to the exceptions to the law on omissions, as set out in Robinson, which do give rise to a duty to improve matters or to protect against harm caused by a third party, the ESB suggested that the concept of a “special level of control” arises from being the source of the relevant risk and having a consequent obligation to arrest such a risk. UCC, on the other hand, submitted that the concept of “control” is not confined to circumstances in which the hazard is created by the defendant, or where the hazard is brought onto relevant land, particularly where the ESB obtains the benefit of that control.
7.12 As regards the assumption of the proposed duty of care, it is UCC’s case that ESB voluntarily assumed responsibility to alleviate flooding and that, therefore, it is “… unnecessary to undertake any further inquiry into whether it would be fair, just and reasonable to impose liability”, as stated at para. 35 of Commissioners of Customs and Excise v Barclays Bank [2007] 1 AC 181. UCC relies on the findings of the High Court in respect of the representations made by the ESB regarding flood alleviation and in respect of the reliance placed by those downstream on these representations. It submits that the Court of Appeal did not engage with these issues. UCC further submits that a court does not require evidence of specific reliance and can instead establish a general reliance, as set out in the judgment of Lord Hoffmann in Stovin v. Wise [1996] AC 923, following the decision of Mason J. in Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424. This doctrine refers to general expectations in the community, which the individual may or may not have shared, that a statutory power will be exercised with due care. The management of the Lee Dams in order to minimise flooding was said to be both uniform and routine and, therefore, it was argued, the expectation downstream was that the River Lee would not flood beyond a certain level.
7.13 In response, the ESB argued that the approach of the Court of Appeal in relation to the assumption of responsibility was correct. It was submitted that there was no acceptance of responsibility for flood alleviation in the sense contended for by UCC. It was also argued that the conduct of the ESB was such that it could be said to have tried to do what could be done to alleviate flooding without impairing the legitimate prioritisation of its hydroelectric function. ESB also contended that there cannot be any voluntary assumption of responsibility giving rise to the imposition of liability without reliance. It was said that there was no evidence of reliance in that UCC never sought any information from the ESB about the dams and never saw many of the documents which it now relies on, all of which documents reiterated that the Lee Dams did not protect against all flooding risks. Reliance was placed in that regard on the statement of Lord Hoffmann in Stovin v. Wise to the effect that, in order for the doctrine of general reliance to be applied, it must be possible to “describe exactly what the public authority was supposed to do”. The ESB submitted that there is a lack of such specificity in relation to any obligation in respect of flood alleviation in the obligation which UCC urged on this Court.
7.14 Turning to consider the effect of the 1945 Act, UCC submitted that, if the decision of the Court of Appeal is correct, the statute mandates the production of electricity at maximum profit, even if that is at the expense of the safety of persons downstream. UCC contended that the statute would have to be explicit if production of electricity was to override safety considerations and that, in accordance with the principles advanced by Clarke C.J. in his minority judgment in Cromane Seafoods Ltd. v. Minister for Agriculture, Fisheries and Food [2017] 1 I.R. 119, the mere fact that this case involves a statutory body does not prevent the Court from ascertaining whether a duty of care should be imposed in the circumstances of the case. This was said not to be a situation where exposure to liability for damages would have a prejudicial impact on the public interest. UCC argued that it does not seek to impose a greater liability here than that which would be imposed on a private individual in the conduct of industrial activities.
7.15 That the ESB “shall generate” electricity, as required by s. 10 of the 1945 Act, could not, it was said, be read as conferring a duty to exclusively pursue hydrogeneration for commercial gain or to generate continuously. In that context a number of findings of the High Court were relied on being those to the effect that the proposed duty of care to alleviate flooding is not inconsistent with generation and that the ESB has in the past actively compromised its hydroelectric function to some extent so as to provide flood alleviation. Further, it was said that the ESB never undertook a proper risk assessment of any scenario other than the design flood in order to assess whether generation had to be supressed in a manner which was inconsistent with the statutory duty.
7.16 UCC further relied on Condition 19 of the ESB’s generation licence, which has statutory force, to the effect that its statutory duties do not translate to an obligation to generate electricity in all circumstances, or in priority to all other considerations.
7.17 The ESB relied on the High Court’s rejection of the contention that the Lee Dams were multi-purpose dams to suggest that their sole statutory purpose is hydrogeneration and to support the Court of Appeal’s finding that the proposed duty would require the ESB to engage in a type of flood alleviation in direct conflict with hydrogeneration. It was submitted that the law as set out in Poole Borough Council is clear to the effect that the existence of a discretion under s. 34 of the 1945 Act to alter water levels in order to alleviate flooding and, in doing so, to confer a benefit to persons downstream, does not mean that a common law duty to exercise the power for their benefit arises.
7.18 While some flood alleviation is possible without compromising the statutory objective of hydrogeneration, should the proposed duty of care be imposed on the ESB, it was submitted this would create a fundamental tension between its statutory function and the duty to engage in flood alleviation, which would be exacerbated by what was said to be the lack of clarity on UCC’s case surrounding the appropriate level of available capacity and the standard of care to which the ESB should be held. On this basis, it was suggested that the discharge of both duties is incompatible.
7.19 Charged with the complaint that the proposed duty of care suffers from vagueness, UCC maintained that there would be no difficulty in imposing liability for only that flooding which could have been avoided by the exercise of reasonable care (being flooding which is therefore considered “unnecessary”). It was submitted that the ESB is in a position to manage its water levels and discharges with reasonable care, thereby avoiding entirely or minimising flooding and the risk to life and property downstream.
7.20 Further, UCC contested the Court of Appeal’s characterisation of its case as turning on TTOL. Rather, it submitted that, on the facts of this case, water levels were too high in the prevailing conditions and ought to have been lower. TTOL was used as a benchmark to establish a breach of the duty of care and was merely demonstrative of causative effect. It was said that, had water levels been kept to TTOL, significant flooding would have been avoided. UCC argued that the ESB should manage water levels according to the “as low as reasonably possible” principle, by predicting the frequency and magnitude of the risk of flooding, by means of risk assessment models. The actions which the ESB takes in the generation process and in safeguarding the integrity of the dam ought also to have been taken in the broader context of other safety risks. If the risk is unlikely, there is nothing to prevent the ESB from conducting operations in the normal way. UCC suggested that the Court is not asked to fix a standard which applies to all cases but merely to assess whether the ESB has acted reasonably in all the circumstances of the case.
7.21 In contrast the ESB submitted that a number of issues arise in attempting to impose a standard of action that is “necessary” or “reasonable” where the ESB does not create the source of the risk of flooding. The decision as to what flooding is “necessary” and “unnecessary” is said to affect a number of persons downstream and the lack of certainty over the standard of care required of the ESB was argued to raise a number of questions as to the practical operation of the proposed duty of care. It was reiterated that the conception of TTOL as an “optimal” level is plainly wrong and that to maintain water levels at or below TTOL would have been costly to the ESB. Further, the ESB argued that to a finding that water levels were too high must be made by reference to some standard. The relevant obligations cannot, it was said, be entirely divorced from any metric of assessment.
7.22 A further aspect of the debate on this aspect of the case centred on the argument put forward by the ESB to the effect that its only obligation could be to “not worsen nature”. ESB suggested that the imposition of a duty of care which went beyond an obligation not to leave those downstream in a worse position than they would have been had the river flown uninterrupted by any ESB works would amount to the imposition of a positive duty to prevent harm rather than what was said to be the appropriate limitation on the duty of care which was to refrain from conduct which might cause harm.
7.23 Insofar as the “just and equitable” leg of the test identified in Glencar is concerned UCC advanced a number of points which, it was argued, ought lead the Court to conclude that this aspect of the test was also met.
7.24 First, insofar as there might be a question as to whether the duty of care asserted was an established category of same, or at lease analogous to such an established category, UCC argued that their position was supported by the decision of the UK Supreme Court in Robinson, which was said to endorse the proposition that physical loss resulting foreseeably from positive conduct constitutes such an established category of duty of care, at least in some cases.
7.25 Against that proposition ESB argued that its conduct could not be characterised as positive conduct in the first place on the basis, already alluded to, that the evidence established that at no relevant time was the outflow from the Lee dams greater than the inflow.
7.26 In like manner, while UCC submitted that the imposition of a duty of care on a dam operator was established in M.J Cordin v. Newport City Council QBD (TCC) 23 January 2008. However, it was argued by the ESB that the purpose of the dam in that case was flood control which purpose was said to be the basis on which a positive duty of care not to expose persons downstream to a foreseeable risk of flooding was said to arise.
7.27 On the basis of those arguments, the ESB asserted that there was no established case law which extended a duty of care to the operator of a dam (which did not have as its specific purpose the alleviation of flooding) which required such an operator to take reasonable steps to prevent downstream flooding by adjusting its operations to minimise the risk of such flooding. As a result of those arguments, the parties then passed to consider the factors which were said to be potentially relevant to the Court’s assessment of whether the general “just and reasonable” test had been met.
7.28 In that context UCC submitted that it was just and reasonable to impose liability on the ESB which was an entity engaged in what is said to be a hazardous industrial process so that it must be obliged to take reasonable care in its operations not to cause injury or damage. UCC relied on a number of bases for that general contention.
7.29 First, it was argued that the ESB had extensive knowledge of the risks of flooding to those downstream and exercised significant control over river levels. Second it was said that the ESB operated, and has held itself out as operating, the Lee Dams with a view to minimising flooding. Third, it was said to be noteworthy that, on the evidence, the proposed duty of care would have involved a very limited loss of revenue to the ESB and it is said that the ESB is not entitled to put profit before the safety of those downstream: Finally, it was argued that the duty suggested is not a particularly onerous one, as the decisions that the ESB were being asked to take in exercise of the proposed duty of care were the very decisions that they were already taking in the operation and control of the dam.
7.30 UCC further submitted that it would be inappropriate that the sole duty of care on the part of the ESB should be confined to one limited to guard against the collapse of the dam. Thus, it was argued, a dam operator would not be liable even if it knew that its activities were likely or certain to cause risks to the prejudice of all those downstream. The ESB is a statutory corporation which, it is said, cannot be distinguished from private competitors and which is generating electricity for its own economic benefit, rather than a public authority which is exercising its powers for the benefit of the community. In these circumstances, it was said that the ESB takes the benefit of the Lee Dams and must take the burden, which is to take reasonable care for the safety of persons and property downstream.
7.31 In response, the ESB restated that it can only be properly said to be a cause of flooding if it increases the flow of the river, that is, if outflow from the dams exceeds inflow in such an amount that flooding results. The ESB maintained that it did not produce harm and did not aggravate the harm so that the flooding was not, therefore, a consequence of the activity undertaken by the ESB. It was said that the risk of the flooding which actually occurred and which caused damage to UCC was created by the river. UCC was said to deliberately conflate risks attributable to ESB with risks due to the river itself.
7.32 The ESB submitted that, for this Court to fix a level of water at the Lee Dams for the purpose of flood alleviation would be an inappropriate incursion into policy making which would affect the rights of every person along the river and in particular those who would, on UCC’s case, be lawfully or “necessarily” flooded.
7.33 The crux of the defence case, therefore, that outflow has not exceeded inflow, is rooted in the “do not worsen nature” rule, as established in a number of cases involving dam operators in other jurisdictions, such as Iodice, Greenock Corporation v. Caledonian Railway [1917] AC 556 and East Suffolk Rivers Catchment Board v. Kent [1941] AC 74. UCC submitted that there are a number of problems with this standard, the primary one being that it is said to be a notional artifice which assumes that there is some hypothetical pre-dam standard of nature which no longer exists whereas, in truth, the dam itself has altered nature. The ESB is said to be now interposed between nature and those downstream, taking the benefit of the hydrogeneration and therefore is in a position in which it can control flooding and contribute to the safety of persons downstream.
7.34 It is also argued that the “do not worsen nature” rule does not account for the natural attenuating effect of the river valley or for peak flow in downstream tributaries, or high tide downstream, which means discharges may effectively worsen nature.
7.35 The ESB rely on a number of US, Canadian and UK cases to support the contention that it is a universal rule that the obligation of dam operators is confined to one which requires avoiding worsening a natural hazard, authorities which UCC contests are not easily transferable to this jurisdiction, given which is said to be their non-engagement with the constituent elements of the duty of care.
7.36 It thus follows that a key element of the argument put forward on behalf of ESB on the “just and reasonable” leg of the Glencar test really came back to the proposition that it has no obligation beyond not worsening nature.
7.37 This defence has, in turn, provoked a further dispute between the parties as to the correct causation inquiry in negligence. UCC maintained that causation is not relevant to whether a duty of care exists and that the correct causation inquiry is as to whether a breach of duty actually caused the damage, which should lead the Court to assess whether the flooding would have been the same or worse if the ESB had exercised reasonable care in its operation of the dams. However, the ESB submitted that, where causation is in doubt, it is premature to discuss the duty of care and the true questions which the Court should address are whether the ESB or its property has done anything which produced or increased flooding or whether flooding would have been less in the absence of ESB.
7.38 It may well be that this argument is somewhat irrelevant. Obviously, if the duty of care owed by the ESB is as UCC asserts, then the issue of causation is as to whether a breach of that duty of care caused damage. But, as already noted, it is clear on the evidence that the ESB could have taken actions which would have alleviated flooding downstream. The issue is as to whether the ESB was under a duty so to do. If they were under such a duty, then a breach of that duty undoubtedly caused some of the damage downstream. But it is equally clear that, at no relevant time, was the outflow from the Lee dams greater than the inflow. It follows that, if the duty of care is confined in the manner asserted by ESB, no downstream damage was caused by a breach of a duty of care as thus defined. The question of whether damage was caused by a breach of the duty of care depends, therefore, on how that duty of care is defined.
7.39 The first, and potentially decisive, question which arises for consideration is as to the extent of the duty of care which might be said to be owed by the ESB to UCC. We, therefore, turn to that question.
8. The Duty of Care
8.1 It is important to start by re-emphasising that the ESB does not suggest that it owed no duty of care to downstream land occupiers such as UCC. The ESB accepted that it might be liable were the flow of water beyond its dams to have exceeded the flow of water into those systems to an extent that it could be said that the additional flow caused flooding and, therefore, damage. Likewise, the ESB accepted that it would also owe a duty of care in respect of any breach of the integrity of its dams which was caused or contributed to by negligence. However, neither of those eventualities occurred and therefore, for the purposes of resolving this appeal, those concessions are not material. The core question is as to the extent to which the ESB owed a duty of care to manage the dam system in a way which at least had regard to the risk of downstream damage.
8.2 As already noted, the parties accepted that the broad approach to the question of determining whether a duty of care is owed can be found in the judgments of this Court in Glencar. As also noted earlier, insofar as there was any difference between the parties on this question, the ESB did place some reliance on the jurisprudence of the courts of the United Kingdom which suggests an incremental approach to the development of the law concerning duty of care in areas not previously subjected to detailed judicial determination.
8.3 In passing it is worth noting that the first two legs of the test in Glencar, being foreseeability and the absence of remoteness, were not problematic in the circumstances of this case. The ESB did not argue that it would not be foreseeable as such that the manner in which it managed the Lee Dams might cause damage to downstream land occupiers or that such damage would be remote. The ESB’s argument on this point in reality turns on the assertion that this case comes within the “do not worsen nature” category. On that basis it is argued that a party will not be liable in negligence if they do not worsen nature even if it can be established that it was foreseeable that a failure to improve on nature would have caused damage which was not remote. That question in turn raises the issue of the circumstances in which parties may be found liable as exceptions to the “do no harm” principle. For that reason, it is necessary to address the proper approach which this Court should adopt in considering any potential evolution of the circumstances in which a liability of that type may arise.
8.4 Since this appeal was argued, this Court gave judgment in Morrissey v. Health Service Executive [2020] IESC 6. One of the matters which the Court had to consider in Morrissey was the proper approach which should be adopted by common law courts when considering the evolution of the common law or its application to new or evolving circumstances. To a large extent the views expressed by the Court in Morrissey were in accord with the submissions made by the ESB in this case. As already noted there was, in reality, little difference between the parties on this question but we do consider it appropriate to state again the basic principles.
8.5 Where a court is called on to determine the appropriate approach in common law to new or evolving circumstances or where it is suggested that a court should consider developing the existing case law, a court should first seek to identify whether there are any fundamental guiding principles to be found in the existing case law. Where such principles can be identified then the principles in question should inform any evolution of the jurisprudence or the manner in which the law in the area in question should be applied in new or evolving circumstances.
8.6 However, it must also be recognised that there can be areas where it may be difficult to discern any overarching but consistent fundamental principle. In such circumstances it may well be that the existing case law has grown up on the basis of an attempt by the courts, on a case by case basis, to deal, within some overall broad framework, with many different types of circumstances. It is in that context that the incremental approach to the development of the law by making appropriate analogies with the position already identified in similar situations may provide an appropriate approach. See in that regard the comments of Clarke C.J. in Morrissey at paras. 12.2 to 12.5.
8.7 Those two approaches were characterised in Morrissey as being the “back to first principles” model and the “evolution by analogy” approach. As was also noted in Morrissey, part of that analysis built on the previous case law including the judgment of O’Donnell J. in Hickey v. McGowan and anor [2007] IESC 6, [2017] 2 I.R. 196. In that case O’Donnell J. had reached his conclusions on the proper principles to be applied in that case by adopting what he considered “to be the cautious and incremental approach outlined by Fennelly J. in O’Keefe”. O’Donnell J. in Hickey indicated that he proposed adopting that approach, having considered what seemed to be the different approaches adopted by, respectively, Hardiman and Fennelly JJ.”
8.8 In the same context it is also appropriate to refer to Robinson where, in considering the proper approach to the evolution of the common law, the following was stated:-
“[a]n approach based, in the manner characteristic of the common law on precedent, and on the development of the law incrementally and by analogy with established authorities”.
8.9 We would add one further observation. The two approaches are not necessarily mutually exclusive. There may be situations where it is possible to identify at least some level of very broad general principle behind the existing case law, but where the application of such broad principle would, of itself, be insufficient to give any acceptable level of clarity as to how the law should be determined in new or evolving cases. In such a situation the Court should have regard to, and operate in a manner consistent with, any such principle for overall guidance, but may also have to consider the “evolution by analogy” approach for a more detailed evaluation of the precise boundaries of any evolution.
8.10 The starting point, therefore, requires the Court to ascertain whether it is possible to determine whether some general principles can be discerned which inform the existing case law. The issue in this case concerns the general approach to be found in existing case law which suggests that, ordinarily, a duty of care will not be imposed which goes beyond requiring a party to refrain from doing harm (and does not ordinarily extend to imposing a duty to confer a benefit), but where the case law also recognises that there may be certain circumstances where a more onerous duty of care may arise. The question is as to the extent to which it may be possible to determine any general principle or balancing exercise which informs that case law. In addition, to the extent that any principle which may be found cannot resolve the issues in this case, a further question may arise as to where the “evolution by analogy” approach may lead.
8.11 In the context of the overall approach identified in Glencar Exploration, it is, perhaps, appropriate to start with one observation at para. 12.10 of Morrissey in which Clarke C.J. said the following:-
“But the real question concerns how far it is possible to extend the concept of vicarious liability. Stating that it will be done when it is “fair, just and reasonable” does not really contribute very much to the analysis, for it simply begs the question as to the kind of circumstances that can be regarded as coming within that criteria. The real issue is to identify the type of situation which may legitimately give rise to vicarious liability.”
8.12 We are not sure, for similar reasons, that the use of that part of the test identified in Glencar, which is to the effect that a court must determine whether it is “just and equitable” in all the circumstances to impose a duty of care, is really of any great assistance. It begs the question of how a court is to decide what is just and equitable. By reference to what criteria or considerations is the justice or equity of the case to be analysed?
8.13 Of course it must always be recognised that one of the underlying difficulties in this area of the law has been the challenge to define the boundaries of the circumstances in which persons may be liable in negligence for loss caused to others. While the views which Clarke J. expressed as to the ultimate outcome of the case in his judgment in Cromane did not find favour with a majority, we do not cavil with one aspect of the general approach which was identified in the following terms at paras. 11.4-11.6:-
“[11.4]…The messy world of human beings involves a hugely dynamic system in which we constantly interact with each other in ways great and small. In such a situation it is inevitable that many actions or inactions have a myriad of consequences, some trivial, some potentially significant….
[11.5] While it might be an exercise in reverse engineering, it is appropriate to recall that the underlying principle of almost any area of redress in law is to attempt to put a party back into the position in which it was before any wrongful act occurred. But the range of potential consequences of a minor lapse can be so wide, so disparate, so disproportionate to the extent of the lapse and, as one moves away from direct to consequential or indirect knock-on effects, so difficult to analyse, it is hardly surprising that judges have been concerned to ensure that some limit has to be placed on the extent of legal liability for lack of care and, indeed, the scope of that duty of care itself.
[11.6] However, the undoubted acknowledgement that there has to be some limit does not provide any easy answer to the question which has troubled the jurisprudence for many years, which is as to where that limit should be placed or, perhaps, even more fundamentally, by reference to what type of principle or overall approach should we assess where those limits are to be placed in particular types of cases.”
8.14 It seems to us that the underlying questions which arise in this case stem from that difficulty. Is there any overarching principle which helps us to decide the limits of the duty of care for an electricity generator, such as the ESB, operating a dam system such the Lee dams? It might be said that the “do no harm” case law provides such a principle and informs some of the case law from other common law jurisdictions which is relied on by the ESB to suggest that no duty of care exists beyond an obligation to do no harm. The case law which suggests that a duty of care will not ordinarily be imposed so as to require a party to confer a benefit rather than avoid doing harm, spans many different types of situations. Thus a generic description of that case law can properly be described as the “do no harm” jurisprudence. It seems to us that the “do not worsen nature” approach taken in some of the dam cases, to which we will return, represents a particular application of the “do no harm” approach to cases such as this.
8.15 In that context we would respectfully agree with the more recent case law of the United Kingdom which seeks to frame the issue in terms of a “do no harm” principle, rather than the previous case law which tended to analyse such matters by distinguishing between acts of commission and acts of omission. The line between such acts can be very much a matter of interpretation. How do we analyse the failure of a motorist to slow down when approaching a dangerous bend or an incident on the road that would lead a reasonable driver to reduce speed? It might be said that, if one looks at the overall act of driving, then the motorist committed the act of driving in a negligent fashion by going, or at least continuing, at a speed which was too fast in all the circumstances. Alternatively, the very same actions (or failure to take them) could be characterised as an omission to apply the brakes. It is easy to see how such an analysis might lead to the sort of questions which Hardiman J. was wont to describe as theological. In those circumstances we agree that the “do no harm” approach provides a more robust basis for analysis. The advantages of adopting the “do not harm” approach, rather than the traditional approach of distinguishing between acts and omissions, were identified by Lord Reed at para. 29 of Poole Borough Council:-
“Like private individuals, public bodies did not generally owe a duty of care to confer benefits on individuals, for example by protecting them from harm…. In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply.”
We are persuaded by and respectfully adopt that analysis.
8.16 However, the “do no harm” approach itself does not provide a perfect answer. Indeed, it appeared to be accepted by all sides both that there are exceptions to the general “do no harm” approach but also that the circumstances in which a duty of care may arise which extends beyond “do no harm” are significantly more limited than the circumstances in which a duty of care may arise in the context of avoiding doing actual harm.
8.17 Analogies are rarely, if ever, perfect and can, indeed, be dangerous and misleading. However, it does seem to us that there is at least some similarity between the sort of questions which arise in this context and the questions which this Court had to face in Morrissey concerning the extent of a non-delegable duty of care. While the Court did not seek to provide an exhaustive list of the circumstances in which such a duty might be held to be present, the one area identified in which it was held that a non-delegable duty certainly does arise, and did arise on the facts of Morrissey, stemmed from a situation where some form of prior existing relationship led to the imposition of a non-delegable duty.
8.18 It is that sort of situation which would appear to have informed the views of the courts in the United Kingdom in Robinson as set out at para. 34 of the judgment in that case cited earlier. It is easy to see why such an exception must be held to exist.
8.19 Many cases of professional negligence, for example, do involve an allegation of failure to make things better. They are inconsistent with a pure “do no harm” approach. The reason is obvious. The very professional relationship itself is often designed to better the position of the patient or client. A doctor who negligently failed to diagnose a disease and thus failed to ensure that the patient obtained appropriate treatment could hardly argue that he should escape liability because he had done no harm. The patient was no worse off than had he not been negligent. The answer to his defence would, of course, be that the very task which he had undertaken was to competently diagnose the patient and, if appropriate, prescribe treatment which might better the patient’s situation.
8.20 It must, of course, be acknowledged that the professional negligence cases at least build on and derive from a situation where many of the obligations of the relevant professional would originally have arisen from a contractual relationship between the parties. Indeed, in many professional relationships, a case of wrongdoing will frequently be pleaded both as a breach of contract and in the tort of negligence. The analysis of whether there is liability will normally be the same in either case, for it will almost inevitably be a term, whether express or implied, of the relevant contract that the professional duties be carried out in a competent manner. As was noted in Morrissey, part of the development of the law of negligence in respect of professional services stemmed from the fact that some such services have, in modern times, been delivered without a contract, in situations such as socialised medicine. The evolution of the law of tort in a number of areas has resulted from the need to reflect the fact that situations which may have been governed by contract in the past no longer involve any contractual relations so that questions of liability can only be determined within the confines of the law of tort.
8.21 Be that as it may, it must, of course, be recognised that there is no question of any contractual relationship between UCC and the ESB concerning the manner in which the ESB would operate their dams, nor is there any relationship which resembles contract even though not technically forming a legally binding agreement. That aspect of any analogy with the extension of the law of tort which was considered in Morrissey has no application in this case. However, the true question is as to the proper limit on the extent to which a duty of care may be imposed on a party which goes beyond a duty not to do harm. In particular, it is necessary to consider the extent to which any such duty may arise in cases where there is no formal or analogous prior existing relationship between the parties, but rather where it may be said that the general circumstances are such as to impose a duty which goes beyond a requirement not to do harm.
8.22 It is accepted that the question of any potential duty of care which may lie on the operator of a hydroelectric dam to downstream land occupiers has never been the subject of specific judicial consideration in this jurisdiction. This Court is, therefore, free to determine the boundaries of any relevant duty of care but must, of course, do so in a manner which is consistent with the general principles identified by this Court and applying the appropriate approach to the application or evolution of the common law to new or evolving circumstances. In such a context it is always helpful to look at the case law of other common law jurisdictions.
8.23 Before doing so, however, we consider it useful to touch on certain aspects of the statutory role of the ESB.
9. The Statutory Role of the ESB
9.1 The statutory function of the ESB is principally to generate electricity.
This stems from s. 10(1) of the 1945 Act, which provides for the mandatory generation and distribution of electricity at and from the “hydro-electric works” completed pursuant to the Act. Section 2 of the Act defines “hydro-electric works” as meaning “works for the generation of electricity by means of hydraulic power”. Specifically, s. 10(1) provides:-
“10.—(1) When an approved scheme has been carried out and the hydro-electric works provided for by such scheme have been completed (with such additions, omissions, variations, and deviations as shall have been found necessary in the course of the work), the Board shall generate electricity by means of such works and shall transmit and distribute such electricity to such places and in such manner as shall, in the opinion of the Board, be requisite for making such electricity available for the purposes mentioned in the next following subsection of this section.”
9.2 To that end, the ESB is given significant statutory powers. One of the arguments put forward by the ESB was to the effect that it would be contrary to its statutory mandate to impose on it any duty of care which might require it not to optimise the production of electricity.
9.3 In that context it is important to note that a key finding of Ryan P., speaking for the Court of Appeal, was to the effect that it would impose an impermissible restriction, amounting to an impairment of its statutory functions, to require the ESB to have regard to the sort of considerations which UCC suggests give rise to a duty of care to downstream land occupiers.
9.4 Against that finding, UCC argues that there is no statutory obligation on the ESB to generate electricity in a manner which disregards all other considerations beyond the very limited duty of care which the ESB accepts. That the ESB has a statutory obligation to generate electricity is clear. It seems to us that the purpose of that obligation is equally clear. The ESB is given significant statutory power which entitles it to interfere in a material way with a natural resource, being the River Lee. The social benefit which is to be obtained from conferring those powers on the ESB was, obviously, the generation of electricity. But we do not interpret s.10 of the 1945 Act as imposing an obligation on the ESB to always, and in all circumstances, produce the maximum amount of electricity. We do not, therefore, agree that the statutory mandate of the ESB necessarily precludes imposing a duty of care which might, at least in some circumstances, require it to refrain from maximising electricity generation.
9.5 It is undoubtedly the case that the statutory duty of the ESB to produce electricity would place an obligation on the ESB to pay particular regard to electricity generation in any decisions which it might make. However, there is a difference between saying that significant weight ought to be attached to the obligation to produce electricity (which is, as we have pointed out, for the common good), and saying that the obligation to generate electricity is such that it excludes any other consideration being taken into account, such as one which might require, in very particular circumstances, other issues to be considered in the balance in order to comply with a potential duty of care to downstream land occupiers.
9.6 For that reason, we do not consider that the undoubted importance of electricity generation, and the equally undoubted statutory obligation of the ESB in that regard, is such that it, of itself, could be held to entirely exclude the possibility of the ESB having a duty of care to at least have regard to downstream land occupiers in decisions concerning the operation of the dam. That does not, of course, mean that such a duty of care arises, but rather means that the statutory obligations of the ESB do not exclude such a duty of care if it can be considered to otherwise properly arise.
9.7 There is a detailed consideration in the judgment of O’Donnell J. in this case of the jurisprudence, particularly from the United Kingdom, which considers the broad question of the extent to which the existence of a statutory power may, in some circumstances, carry with it a duty of care to exercise that power in a particular way. We do not disagree with the analysis of O’Donnell J. in that regard, nor with the conclusions which he reaches on the question of whether a statutory power may give rise to a duty of care to exercise that power with regard to the interests of third parties. It is true, of course, that the ESB has many statutory powers. We do not consider that any duty of care which it might be considered to owe to downstream land occupiers can be seen to derive from the statutory nature of its operations. Rather, we are of the view that any duty of care which might be held to lie on the ESB must be the same as would lie on an entirely private hydroelectric generator who operated without any specific statutory basis for the conduct of its business. We do not, therefore, consider that the statutory framework for the operation of the ESB plays a role either way in the proper resolution of this appeal. That statutory framework does not confer any immunity on the ESB from any duty of care which might otherwise arise in respect of a private operator. Equally, that statutory framework does not place on the ESB any duty of care which would not arise in the context of an entirely private operator.
9.8 In those circumstances it is next appropriate to turn to a consideration of the case law from other common law jurisdictions which deals with the duty of care on hydroelectric dam operators and which, we think it can fairly be said, comes principally, but not exclusively, from the United States.
10. The Foreign Case Law
10.1 In the course of both written submissions and oral argument, the ESB placed reliance on case law from other common law jurisdictions for the proposition that the common law does not recognise a duty of care on a dam operator (with the exception of a dam which had waterway control as part of its purpose) which goes beyond an obligation that can reasonably be described as one to “not worsen nature”. That principle may be considered as the application of what might be considered as a more general “do no harm” duty of care in cases where the potential harm stems from natural occurrences.
10.2 Many of the cases cited were from United States state courts of final appeal which were concerned with challenges to first instance awards by juries. However, it does appear that the courts concerned were seeking to define the common law principles applicable to the law of tort in their respective states and also had regard to decisions of other states in similar cases. It would, we think, be fair to acknowledge that the preponderance of the authorities cited do lend support for the proposition that it is a widely accepted view of many courts in the United States that a dam operator does not owe a duty of care to downstream landowners or occupiers beyond an obligation which might be characterised in modern terms as equivalent to the “do not worsen nature” or “do no harm” principle. In passing, it should be noted that it is accepted that different considerations might apply in a case where the purpose of the dam in question was to control a waterway. However, the issue in almost all of the cases cited concerned the operators of dams which were designed for other purposes, such as the generation of electricity. It should also be noted that some of the cases go back quite some time, but there are at least some relatively modern restatements of what is said to be the general principle.
10.3 There is no direct Irish authority on the question of the duty of care applicable to a dam owner in circumstances such as those which arise in the present proceedings. It is, of course, therefore, open to this Court to determine the extent of the relevant duty of care. However, as already noted, in so doing this Court must act in a way which is consistent with general principles and with the proper approach to the evolution of the common law. For those reasons, the Court should always give consideration to the case law of other common law jurisdictions where the courts in question have considered the parameters of the common law in the same or a similar area.
10.4 It is also, of course, the case that foreign jurisprudence is only of real assistance where the court concerned is dealing with very much the same legal question. In that context, it should be noted that some of the United States cases are concerned with claims in nuisance, and others with claims under the principles first identified in Rylands v. Fletcher (1868) LR 3 HL 330. However, it is those cases which turned on a decision as to liability in negligence that are of particular interest in the context of this appeal.
10.5 Perhaps the clearest statements can be found in New York cases, starting with Iodice. That case involved a claim by persons whose property was damaged by flooding of the Mohawk river. The state of New York was said to have been negligent in the way in which it managed the Delta Dam reservoir. The plaintiff succeeded at trial. However, Vaughan J, in the Appellate Division of the Supreme Court of the State of New York, held that there was no duty on the part of the state to regulate the outflow from a reservoir so as to minimise or eliminate the flooding of lands downstream to any extent greater than would have been the case if the river had flowed naturally. The dam in the case in question was intended as a storage reservoir for the purposes of supplying water to a canal system.
10.6 Insofar as a common law duty might have arisen, Vaughn J observed, at pp. 649-650, that:-
“There being no statutory duty to operate the dam for flood control purposes, any duty to operate the dam for the purposes of bettering natural conditions must be found in some rule of… common law… We know of no principle of common law which imposes any such duty… we simply have the question… whether a dam owner has the right to let nature take its course… we think the question must be answered in the affirmative.”
10.7 On the facts of the case, there was no evidence that the flow which caused flooding to downstream land occupiers was greater than the natural flow of the river. On that basis, the appeal was allowed and the plaintiff’s claims dismissed.
10.8 This decision was later affirmed without opinion by the Court of Appeals of the State of New York (see Iodice v. State of New York 303 N.Y. 740 (1951)).
10.9 Iodice was followed in Elliott v. City of New York (06 C.V. 296, 2010 U.S. Dist. LEXIS 121344, November 15, 2010). The dam in this case was again a reservoir dam designed for water supply. Patterson J in the Federal District Court for the Southern District of New York stated, at p.15:-
“Under established New York precedent, there is… no responsibility by or duty on a dam owner ‘to make flood conditions better for lower property owners than they would be if the river flowed naturally’.”
The Court went on to hold that the proper evaluation required an assessment of whether water was released at a faster rate than would have occurred had the river flowed naturally.
10.10 This approach was approved by the US Court of Appeals for the Second Circuit in an appeal in the same case (see Elliott v. City of New York 497 Fed. Appx. 108, 2012 U.S. App. LEXIS 19735).
10.11 Another clear statement can be found in the judgment of the United States District Court in Key Sales Company v. South Carolina Electric and Gas Company 290 F. Supp. 8 (D.S.C 1968) where, at p. 23, Simons J observed:-
“The Court concludes that under the applicable common law principles the only obligation imposed upon a dam operator in the operation of his dam is not to worsen conditions downstream beyond what would have occurred in the absence of the dam.”
10.12 Having reviewed a number of authorities, including some cited earlier in this judgment, Simons J went on, at p. 25, to state the following:-
“A dam owner may rightfully permit flood waters to pass over the dam in such quantities as flow into it. But a limitation on this right is that the water accumulated behind the dam must be discharged with ordinary care, or the owner will be liable for the resulting injuries. 93C.J.S. Waters para. 18. In the present instance defendant did not release any more water downstream than flowed into its lake, and the outflow was released in a careful and prudent manner, as is reflected by the discharge tables showing defendant maintained its dam at 360 feet under very unusual circumstances. Likewise, plaintiff is not entitled to damages if the injury to its property would have occurred even though the defendant’s structure had not been erected. 93.C.J.S Waters para. 38.”
10.13 However, the Court then went on to conduct an analysis of the evidence concerning water levels at particular times and what was held to be the absence of weather information which would reasonably put the utility “on notice that it should begin to spill water through its floodgates prior to the time it commenced to do so.” However, having done so, the Court went on to conclude at p. 25:-
“Plaintiff cannot recover in any event for a ‘dam owner is not liable where he has not augmented the flow beyond that which would have occurred in the absence of the dam.’ Kambish v. Santa Clara Valley Water Conservation Dist., Cal. App., 8 Cal. Rptr. 215 at 217.”
10.14 That case seems to us to represent an interesting aspect of what might be said to be an approach adopted by certain United States courts of various jurisdictions in some of the case law cited to us. There is, in those cases, a comment that there would not have been liability in any case because of a principle akin to that of “do no harm” or “do not worsen nature”. However, there is also a detailed analysis as to whether the evidence supported a contention that there were actions that could have been taken by the dam operator to make things better. It is difficult to see why such an analysis would have been carried out if it were absolutely clear that, in all circumstances, there could be no liability where the outflow did not exceed the inflow. If the principle were beyond debate that a dam operator could only be liable for doing harm or “worsening nature”, then it is hard to see why there would have been a consideration of the actions of the dam operator to assess whether they could have been said to be negligent in any event. While it may be reasonable to expect a trial court to answer all questions before it, lest an appellate court take a different view on a point of principle, it is more difficult to see why final appellate courts would engage in a quite detailed analysis of the facts to determine whether it might be said that there was negligence, only to add that such analysis does not matter because there could not have been liability in any event due to the absence of a duty of care.
10.15 The Supreme Court of Arkansas, in Power and Light Company v. Lewis Cash, 245 Ark. 459, 432 S.W.2d 853 (1968), had to consider an appeal against a successful action brought by landowners suing a hydroelectric dam operator for failure to operate its dams in a manner that would have controlled flooding. The landowners were successful at trial. The Supreme Court of Arkansas allowed the appeal on two bases. The Supreme Court, in a judgment from Harris CJ, disagreed with the finding of negligence made by the trial court having regard to what it considered to be the actions of the utility company in facing an emergency of “unprecedented proportion”. On the facts it would appear that weather forecasting had predicted rainfall of approximately one inch whereas four inches actually fell. The Supreme Court also considered that, even if there had been negligence, the plaintiffs’ claim should have failed on the basis that such negligence would not have been the proximate cause of the damage. The Supreme Court was not satisfied that there was anything beyond guesswork involved in the analysis of what would have been the case had there not been negligence.
10.16 On the one hand, it might be considered that the second finding of the Supreme Court of Arkansas was analogous to the application of a “do no harm” or “do not worsen nature” principle. On the other hand, the decision might be seen as involving a finding that, given that there would almost certainly have been significant flooding anyway, the plaintiffs had failed to establish what additional damage, if any, could be attributed to any negligence established on the part of the operator.
10.17 In Baldwin Processing Company v. Georgia Power Company 122 Ga. App. 92, 143 S.E.2d 761 (1965) Pannell J, in the Court of Appeals of Georgia, said the following at pp. 767-768:-
“It thus appears that any claim by a lower riparian owner against the owner and operator of a dam above him because of high water must necessarily be based upon the negligent release of excessive water from the reservoir behind the dam such an action cannot be based upon the negligent storing, unless the negligent storing of water caused or forced the release of excessive water such as a break in the dam itself or the release of excessive water to prevent damage in the dam or a break therein.”
10.18 Certainly that view is consistent with an application of a “do no harm” or “do not worsen nature” principle. It would, as the ESB accepts is the case in this jurisdiction, allow for liability in respect of negligently causing or allowing the dam to burst or in circumstances where more water was negligently allowed to flow out from the dam than was flowing in. However, if it is correct to say that no liability can attach in respect of negligent storage, then it would be clear that the ESB would be right to argue that there was no duty of care on it to manage the storage of water in its dams in such a way as might have minimised the risk of the anticipated extreme weather leading to additional flooding.
10.19 In Bryan v. Alabama Power Co. (20 So. 3d 108 (Ala. 2009)), the Supreme Court of Alabama had to consider a claim against the operators of a hydroelectric plant. The plaintiff’s downstream lands were flooded by an overflow from the Tallapoosa river. It would appear to have been accepted that the dam operators did not owe an ordinary duty at common law to engage in the amelioration of any naturally occurring floods. The case principally turned on the question of whether, in the circumstances of the case, it might be said that a heightened duty of care arose. That argument was rejected by the Supreme Court.
10.20 Lyons J, at p. 116, cited with approval the Supreme Court of Alabama’s earlier judgment in Ellis v. Alabama Power Co., (431 So.2d 1242, (Ala. 1983)) in which the Court stated, at p. 1245, that, “this Court has consistently held that one who owns or operates a dam owes a duty to lower riparian owners only to exercise reasonable care in operating or maintaining the dam”. It is clear from the context of that statement that the phrase “care in operating the dam” did not include an obligation to exercise care to minimise downstream flooding below that which might have otherwise occurred.
10.21 In Shamnoski v. PG Energy (579 Pa. 652; 858 A. 2d. 589 (Pa. 2004)) lower courts held with the plaintiffs in their claim for negligence against a hydroelectric dam operator giving rise to damage caused by flooding resulting from hurricane Gloria.
10.22 However, the Supreme Court of Pennsylvania reversed those decisions with Castille J. observing, at p.679,
“Because the dams did not fail and the damages which appellees sustained were a result of the natural effect of the storm, appellant did not breach any legal duty to appellees… The damage that appellees suffered resulted not from a rush of water released through the breach or failure of a dam, but from the natural effect of a storm of this magnitude inundating this sort of severe downhill watershed, where landowners had unwittingly and tragically built their homes in the natural flood plain of the watershed.”
10.23 With the one minor caveat referred to earlier, concerning the fact that some courts did appear to also have regard to the merits of the negligence claim itself, it would appear from the United States case law cited to us that there is a relatively consistent view across a range of states that the common law duty of care on a dam operator, whose dam was not designed for flood control purposes, does not extend to managing or operating the dam in a way which might reduce the risk of downstream flooding below that which would have occurred as a matter of nature in any event.
10.24 A similar view appears to have been taken by Canadian courts going back as far as Wegenast v. Ernst [1858] O.J. No. 308 8 U.C.C.P. 456 where the following was said by Draper CJ in the Upper Canada Court of Common Pleas at para. 10:-
“…[T]he plaintiff had to guard against and 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.”
10.25 The more recent case of Smith v. Ontario and Minnesota Power Co. Ltd. [1918] 45 D.L.R. 266, is not completely on point but may be of some tangential relevance. That case principally turned on a breach of statutory duty arising out of a clause in the Act of Incorporation of the defendant company. In addition, it was held on the facts that more damage was caused to the plaintiffs because of the existence of the dam beyond the damage which would have been incurred had the dam not been there. In that latter context it was held that there was liability for the additional damage but not, it would appear, for the damage that would have occurred in any event.
10.26 The one Australian case cited in argument, Rodriguez & Sons Pty Ltd v. Queensland Bulk Water Supply Authority [2014] NS2WSC 1565, was concerned with how the case in question should be pleaded so as to give the defendants adequate knowledge of the case being made against them. In addition, it would appear that the dam in question was designed for flood alleviation. Therefore, any comments on potential liability in respect of the negligent operation of dams are of no real assistance in considering the central issue on this appeal, being as to whether the operators of dams which are not designed for flood alleviation owe any duty of care to reduce the potential risk of flooding to downstream landowners below the level which would exist in the event of the dam not being there.
10.27 A similar comment applies in respect of one of the United Kingdom cases cited, being Cordin. It is clear that the case involved an allegation of negligence in respect of the operation of a system specifically designed to prevent flood protection. To that extent, we agree with the ESB that it is of little assistance in the context of this case. However, it may be of some relevance in respect of one of the issues to which we will have to turn when considering any possibly duty of care which might be owed by the ESB. One of the points made on behalf of the ESB was to the effect that the duty of care asserted on behalf of UCC was impermissibly vague and not such as would allow an operator to know what it was meant to do in order to comply with the duty in question. In Cordin, Jones J held, at para. 52, that the relevant duty was “to exercise reasonable care as to the manner in which it released flows from the reservoir so as not to expose the claimants to a foreseeable risk of flooding”. While acknowledging that the duty of care in that case was seen to arise from the fact that the measures which were said to have been negligently operated were specifically designed to prevent flooding, nonetheless it is worth noting that the Court had no difficulty in specifying the duty of care by reference to the very common test of reasonableness.
10.28 We should also briefly comment on the other United Kingdom dam cases cited in argument. UCC place reliance on Embrey v. Owen [1851] 6 Exch 353, in which it was observed, at p.371, that “the owner of the upper stream must not raise the water by dams, so as to make it fall with more abundance and rapidity than it would naturally do, and injure the proprietor below.” It is said that the ESB breached their obligation to maintain the natural rapidity of the river’s flow on that basis. Whatever may be the merits of that argument, it does not seem to us that it affects the issue with which we are concerned. The whole point of UCC’s case is that the ESB should have increased the flow in advance of the storm so that it could decrease the flow during the storm. We do not, therefore, consider Embrey to be of any real relevance to the issues which we have to decide.
10.29 Both sides sought to place some reliance on Greenock. However, it seems to us that the facts of Greenock are sufficiently different from the facts with which we are concerned so as to render the decision in that case of limited assistance. The relevant municipal authority constructed a concrete paddling pond in the bed of a stream. During heavy rain the pond proved inadequate to accommodate the water volume thus leading to flooding and damage into a nearby street. It does appear, however, that the Court was of the view that, in order to successfully maintain proceedings for negligence in such circumstances, a person claiming damages must be able to show that, but for the relevant works, the flow of water would not have caused the damage concerned.
10.30 It is worth noting that the Supreme Court of Ontario did follow Greenock in its decision in Smith. Greenock was also followed by the House of Lords in the Scottish case of Stirling v. North of Scotland Hydro-Electric Board [1974] S.C. 1 in which Lord Avonside stated, at pp. 8-9, that an injured party should establish “that but for it the phenomena would have passed him scatheless”.
10.31 While it is possible to identify some minor qualifications which can be made, we consider it fair to acknowledge that the preponderance of common law authority cited to us does appear to approach the question of the duty of care of a dam operator (where the dam in question has not been constructed for flood control purposes) as being confined to an obligation not to worsen nature. As we have already noted, that approach may be seen to involve a particular application of what is now described as a general “do no harm” general principle. However, it is also appropriate to consider the potential exceptions to that principle. Those exceptions were the subject of recent consideration by the United Kingdom Supreme Court in Robinson.
11. Robinson
11.1 Before turning to the decision in Robinson, we would wish to briefly comment on the detailed analysis of the ebbs and flows of the law in this area which is to be found in the judgment of O’Donnell J. in this case. That sequence of judgments may reasonably be characterised as a struggle to identify an entirely coherent red line between those areas where it may be said that a duty of care exists and those areas where no such duty will be held to apply. As we noted earlier, a significant strand of that case law involved proceedings against persons or bodies who are under a statutory duty. The question frequently addressed was as to whether, in the circumstances of each particular case, the fact that a statutory power to take action existed could give rise to a duty of care as to how that power might be exercised. However, for the reasons which we have set out earlier, we do not consider that the statutory basis of the operation by the ESB of the Lee Dams is decisive either way in the particular circumstances of this case.
11.2 The reason why we have analysed in some detail the case law which was cited to us in argument, which comes from common law jurisdictions beyond the United Kingdom, is that that the jurisprudence in question, principally from the United States, does seek to apply general principles of the common law to cases involving dams. While accepting, as we have noted earlier, that the preponderance of that authority would suggest that the United States view is to the effect that the obligations of a dam owner, in circumstances such as those which face the ESB, do not go beyond a duty which might reasonably be described as requiring the dam operator to “do no harm” or “not worsen nature”, we also consider that it is necessary to view that case law against the backdrop of recent developments in this area of law. Robinson seems to us to represent one such development which might be considered to represent an evolution in the case law and thus suggest that it may be appropriate to consider revisiting some of the earlier dam cases.
11.3 In saying that it remains, of course, the case that Robinson is but persuasive authority as, indeed, are the United States and other cases cited. We have already cited the passage from para. 34 of Robinson which sets out the circumstances in which the United Kingdom Supreme Court considered that a duty of care might arise to prevent harm which arises from a danger that was not created by the alleged wrongdoer. Four examples are given. UCC sought to rely on three of those categories. The one category not relied on is category (ii) which suggests that liability may arise where the alleged wrongdoer does something which prevents another person from preventing the harm. UCC did seek to rely on category (iv) which suggests that the status of the alleged wrongdoer can create an obligation to protect. However, we have already indicated that we do not consider the statutory basis of the ESB’s functions in relation to the Lee Dams to give rise to a potential duty of care and we do not, therefore, consider it necessary to analyse whether a category analogous to that set out in category (iv) exists in Irish law.
11.4 That leaves two categories, being category (i) which suggests that a duty of care may exist where the alleged wrongdoer can be said to have assumed a responsibility to protect the claimant from danger and category (iii) where the alleged wrongdoer has a special level of control over the source of the danger.
11.5 We propose to consider that latter category first. The initial question is as to whether such a source of potential duty of care exists in Irish law. If such a potential obligation can be said to arise then it will be necessary to consider whether it applies in the circumstances of this case.
11.6 We are persuaded that the analysis to be found in Robinson in regard to category (iii) is persuasive and represents the law in this jurisdiction. It must first be noted that each of the categories identified in Robinson are said to give rise to a duty of care even though the source of the danger was not created by the alleged wrongdoer. It seems to us to logically follow that such a situation must amount to an exception to the “do no harm” principle. The underlying assumption behind category (iii) is that the danger arose independently, that the alleged wrongdoer had some special control over that danger and failed to take appropriate steps to prevent the danger causing damage to the claimant. It follows that no liability could arise under that heading unless it represented an exception to the “do no harm” principle for the alleged wrongdoer would not have done harm but, rather, would have failed to prevent harm arising from a danger which the alleged wrongdoer did not create.
11.7 We have already commented that some of the exceptions to the “do no harm” principle stem from specific obligations undertaken to “do good” (or, in the words of the case law, to confer a benefit) such as the type of obligation frequently arising in the context of professional services. But we do not consider that the type of special relationship between parties which may give rise to an exception to the “do no harm” principle is confined to a formal arrangement between the parties whether founded in contract or not. We would view the “special level of control” category as deriving from a similar or analogous type of consideration. It brings the case outside the scope of the mere bystander who might happen to be able to act to prevent the harm or confer a benefit but chooses not to do so. That person has no special control over the problem. It requires some form of pre-existing situation whereby the alleged wrongdoer is placed in a special position of having a particular level of control over the danger in order that the person in question can be said to be in a different category from the mere bystander to whom the ordinary principle of “do no harm” would undoubtedly apply.
11.8 It was, of course, the case that the issue in Robinson itself involved a claim of negligence against the police. It might, in that context, be argued that the type of special level of control which ought give rise to a duty of care to prevent harm independently arising is confined to persons or bodies who have a special position in law. Certainly the focus of the debate in Robinson included an analysis of the position in the light of police powers. But we consider that it would be too narrow a basis for defining the appropriate boundaries of a duty of care to confine the concept of “special level of control” to persons or bodies who may have a legal power to exercise such control. In Cromane, Clarke J. cautioned against providing state or public authorities with an immunity which would not apply in an analogous situation to a private individual. The view expressed in Cromane was that there should be a broad similarity between the duty of care of public and private persons or bodies faced with analogous situations unless there was some significant countervailing factor stemming from the role of the public official or body in question which would justify a different treatment. However, it seems to us that this concept works both ways. If those who exercise a special level of control by virtue of having a legal power may, in certain circumstances, have a duty of care which goes beyond requiring them to “do no harm” then it seems to us that like considerations should impose a duty of care on those who can exercise a significant level of control in practise over a danger which may foreseeably cause harm.
11.9 We are, therefore, satisfied that Irish law recognises, as an exception to the “do no harm” principle, a category of case where a duty of care can arise because of a pre-existing situation (i.e. one which existed in advance of the events leading to the claim) and where it can be said that the alleged wrongdoer had a special level of control over a danger which causes foreseeable damage which is not remote. We would emphasise that the degree of control must be significant and not tangential. We would also emphasise that the obligation which such a duty of care imposes is not unlimited. It is implicit in the duty of care that, with the special control which the alleged wrongdoer has, comes an obligation, but it is only an obligation to take reasonable care to prevent the danger causing damage. Furthermore, the obligation cannot arise if it would be likely to lead to the risk that the person exercising special control might suffer significant loss or damage themselves. There must be a reasonable relationship between the burden which may arise from exercising a special level of control in a manner designed to prevent foreseeable harm and the likely beneficial effects of that exercise of control.
11.10 In that context, it is necessary to address the issue raised on behalf of the ESB which suggested that the contended for duty of care said to arise in this case was impermissibly vague and imprecise. We do consider that the question of whether any duty of care to prevent harm not caused by the alleged wrongdoer can be said to arise in the particular circumstances of an individual case must include a consideration of whether the obligations which would thereby be imposed can be defined with some reasonable level of clarity.
11.11 The precise obligations which may arise under a duty of care will frequently be, at least to some extent, case specific. The obligations arising can normally be stated in relatively clear terms at the level of broad principle but the precise obligations which may arise in any particular circumstance may be more difficult to define with absolute precision. It is trite to say that the duty of care of a driver is to control his car in a manner which would be expected of a reasonable driver in the particular circumstances of the case. Sometimes the precise application of that general principle may be fairly obvious. There are speeds which would, to any reasonable driver, be considered excessive, and thus negligent, in the relevant driving conditions. The precise application of the general duty of care of a driver would clearly render that driver negligent if driving at such a speed. At the other end of the spectrum there are clearly speeds which any reasonable driver would regard as safe. But there may well be a grey area in the middle where a court will have to exercise a judgement as to whether speed was excessive.
11.12 Likewise, in the context of professional negligence, it is easy to state the general principle. The standard of care required of a professional is that which would be exercised be a reasonable and competent professional of the standing of the individual concerned. As with the example of the driver, there will clearly be cases where the way in which a professional person carried out their obligations was out of line with any reasonable standards of the professional. There will equally clearly be cases where the way in which the relevant professional duties were carried out was such that a reasonable professional could have done things in exactly the same way. But again, there are undoubtedly situations where a difficult question of assessment may arise on the margins.
11.13 It seems to us to follow that it is not necessary to be able to predict in advance the precise obligations which might arise under a duty of care. The fact that there may be grey areas between actions which would undoubtedly breach the duty of care in the particular circumstances of an individual case and those which would not, does not mean that the overall standard of care will be so vague as to impose an impermissibly imprecise obligation. Most duties of care are defined by reference to some test of reasonableness. The standard of the reasonable driver. The standard of reasonable the professional. But what is reasonable may well be very fact dependent and may not always be capable of definition with absolute precision.
11.14 That being said, we do accept that a person is entitled to be able to know with some reasonable confidence where the boundaries of their duty of care lies. The fact that those boundaries may not be capable of being specified to an absolute level of precision does not in itself prevent a just duty of care being established but, if the boundary cannot really be specified with some reasonable level of clarity then, in our view, a contended for duty of care cannot be held to exist. In that context we note that the type of obligation identified by Lord Hoffman in Stovin v. Wyse was one which, it was said, must be capable of being “described exactly”. We appreciate that the type of potential liability under consideration in that case was not the same as that with which we are concerned here. In that case, amongst other things, Lord Hoffman was discussing the question of “general reliance” in the context of the exception to the “do no harm” principle, which applies where the alleged wrongdoer is said to have assumed a responsibility to protect the claimant from danger. Whatever may be the merits of requiring that level of exactitude in circumstances where a plaintiff is relying on the actions and statements of a defendant to seek to establish the assumption of responsibility, we do not think that the same level of exactness is appropriate in the context of the issue which we are now addressing. As we have already noted, the practical boundaries of the actions which may be required to meet a duty of care in many circumstances are not always capable of very precise definition.
11.15 In that context, it is also worth noting that, in some areas of the law, absolute boundaries are created by, for example, statute. In other analogous areas the law allows some level of general adjudication which a court must exercise. The contrast between a statute of limitations and the equitable principle of laches is one useful example. In the case of a statute of limitations, a person is either within the statute or outwith. The boundary can be defined with exact precision.
11.16 On the other hand, under the doctrine of laches, a court has to make an assessment as to whether an equitable remedy has been sought in a timely fashion having regard to all of the circumstances of the case. It is not possible, in such circumstances, to determine with exact precision the lapse of time which might be adjudged to have breached the principle of laches and which, therefore, may have disentitled a plaintiff to relief to which they might otherwise be entitled. It will ultimately come down to a judicial adjudication. A person who has allowed a period of, for example, two years to elapse before seeking an equitable remedy may not know for sure whether letting things lie for another six months might or might not lead to their claim being lost under the doctrine of laches. A lawyer may be able to give considered advice but will not be able, at least in some cases, to be definitive. But the fact that there is no certainty in such cases does not lead to any ultimate unfairness. There are always arguments in favour of the certainty which a clear red line brings but there are also arguments in favour of the flexibility of a more general test. Both have their merits but both have their disadvantages as well.
11.17 Much of the law of negligence falls into a category which is more closely similar to the application of the doctrine of laches rather than that of a statute of limitations.
11.18 In summary, we are satisfied that Irish law recognises the potentiality of a duty of care existing to prevent harm from a danger caused independently of the alleged wrongdoer where that alleged wrongdoer has a special level of control over the danger in question which is substantial and not tangential. That level of control does not necessarily have to arise from a legal power. However, in assessing whether any such duty of care arises in the circumstances of any individual case or type of case, a court must assess the following factors:-
(a) Whether there is a reasonable relationship between any burden which would arise from imposing such a duty of care and the potential benefits to those who may be saved from the danger in question; and
(b) Whether it is possible to define the duty of care in question with a sufficient, but not absolute, level of precision so as to avoid imposing a burden which is impermissibly vague and imprecise.
11.19 It is next necessary to consider whether the duty of care which we have just identified applied to the ESB in the circumstances of this case and, if so applying, whether it can be said that the ESB was in breach of that duty of care. We now turn to that question.
12. Is there a Duty of Care?
12.1 There can be no doubt but that the ESB exercised a very significant degree of control over the flow of water in the river Lee both at the point of the Lee Dams but also downstream. It was not, for example, an incidental user of water taken from the river where the effects of either extracting water or allowing it to flow back in would not have been significant. Rather, the whole point of the dam system was to maximise the likelihood of there being sufficient water available at any given time available so as to generate electricity. The ESB is, therefore, able to exercise a significant degree of control over the flow through the dams and ultimately down river. It is, of course, the case that the ESB does not generate that flow itself. The underlying flow derives from nature. However, the ESB exercises a significant power over the natural flow which is undoubtedly capable of being deployed to potentially minimise the risk of adverse flooding events. It is also the case that the ability to exercise that significant level of control derives from substantial works which the ESB has carried out for its own benefit, albeit with a public benefit as well.
12.2 In that context we note the finding of the trial judge that the ESB had particularised, indeed, perhaps unique, knowledge of the way in which its operation of the Lee Dams could affect third parties and, in particular, downstream land occupiers. We also note the finding of the trial judge that the ESB was aware of potential risks to downstream land occupiers in the sense that it was aware that its actions could diminish those risks. We are satisfied that there was more than sufficient evidence before the trial judge to justify those conclusions.
12.3 But knowledge of itself is not decisive. It is, however, indicative of the level of control which the ESB could exercise over any danger deriving from a flood flow of water in the River Lee upstream of its dams. Those findings, in our view, therefore support the conclusion that the ESB had a special level of control, not least because it had a great deal of empirical information which would allow it to operate its dam system in a way which had the potential to have a very significant effect on alleviating downstream danger.
12.4 That level of control was not, as such, based on any legal power. However, we have already indicated that we do not consider that the special level of control required to impose a duty of care which goes beyond “do no harm” must necessarily arise from a legal power. In all those circumstances, we are satisfied that the first element of the requirement for the imposition of a duty of care does arise in the circumstances of this case. The ESB had a significant level of special control over the risk of danger arising from flood conditions upstream of the Lee Dams. However, as we have already pointed out, such an assessment is not the end of the matter. It is necessary to go on to consider whether the other elements of the assessment which the Court must make arise in the circumstances of this case. The first such consideration is the burden which any asserted duty of care would place on the party having special control.
12.5 It is important, in the context of assessing the relevant benefits and burdens, not to be drawn into giving weight to hindsight. We note the evidence, accepted by the trial judge, which suggested that the potential loss of revenue which might have been suffered by the ESB, had it acted in a way which did not maximise the opportunity to generate electricity, was of the order of €100,000 – €130,000. There does not seem to be any basis for suggesting that any greater risk to revenue might have been considered likely in advance of the decisions taken at the relevant time. It is also clear that other factors, such as demand or the sources of energy, can affect the amount of electricity which it is considered desirable to generate from any particular source at a given time. Even in the absence of the particular circumstances which arose on the River Lee in November 2009, it seems that maximising electricity generation is not always the only consideration. We do not consider, therefore, that imposing a duty of care which might require a relatively small reduction in the amount of electricity which could be generated would, as was argued by the ESB, have a prejudicial impact on the public interest.
12.6 Against that it is clear not only that there was, as found by the trial judge, awareness on the part of the ESB of the risk but also, at least in general terms, the potential scale of that risk.
12.7 In those circumstances, we are satisfied that there was more than a reasonable relationship between the harm that would be avoided by taking measures which paid proper regard to protecting downstream land occupiers and any burden which acting to protect those land occupiers would place on the ESB. The second aspect of the analysis identified earlier also, therefore, leads to the conclusion that a duty of care existed.
12.8 Finally, it is necessary to identify whether it is possible to specify the extent of that duty of care in a manner which would not render the obligations placed on the ESB impermissibly vague. In that context the trial judge identified the obligations of the ESB in the circumstances as requiring that, insofar as possible, the levels in the Lee Dams be maintained at TTOL and, in substance, held that TTOL was in effect MaxNOL in that spillage should occur in order to keep the level at TTOL.
12.9 Specifying the duty of care in that way would, at least, have the virtue of providing absolute precision. However, that finding of the trial judge was criticised by the ESB on a number of grounds including the suggestion that to impose a duty of care which would have required keeping the level not above TTOL would have amounted to an excessive, and thereby impermissible, interference in the operations of the ESB. Such a duty was argued to be highly invasive and prescriptive.
13. The Test
13.1 We consider that this latter criticism is well made. As in all areas of the application of the law of negligence, the obligation on a party who owes a duty of care is to exercise reasonable care in relation to whatever activity they are involved in. In our view, the duty of care arising in this case is best expressed as an obligation to assess, having regard to existing conditions and relevant weather forecasts, the likely range of possible outcomes for downstream land occupiers and to form a reasonable judgement as to how to manage the Lee Dams so as to minimise the risk to those downstream land occupiers, provided that any actions which might be required for that purpose would not place an excessive burden on the ESB. It seems to us that identifying a duty of care in those terms is not impermissibly vague. There may, as in many cases such as those which we analysed earlier, be a certain grey area where a judgement call might have to be made. But similar grey areas exist in many applications of the general principles of the law of tort.
13.2 In conclusion on this aspect of the case we have, therefore, determined that the ESB had a significant level of special control over water levels in the River Lee downstream of the Lee Dams. While that control was practical rather than legal, we nonetheless consider that it is sufficient to potentially give rise to a duty of care. We have also concluded that the burden which would have been imposed on the ESB by requiring it to have regard to the interests of downstream land occupiers, at least in the particular circumstances which prevailed in November 2009, was such that it is appropriate to impose a duty of care to downstream land occupiers having regard to the relatively minor burden which would have been placed on the ESB by requiring it to so act. Finally, we have concluded that it is possible to characterise the duty of care in question in a manner which is not impermissibly vague.
13.3 In all those circumstances we are satisfied that the ESB owed to downstream land occupiers a duty of care to assess, having regard to existing conditions and relevant weather forecasts, the likely range of possible outcomes for downstream land occupiers and to form a reasonable judgement as to how to manage the Lee Dams to minimise the risk to those downstream land occupiers provided that any actions which might be required for that purpose would not place an excessive burden on the ESB.
13.4 We also consider that this case can readily be distinguished from Cromane. In that context, a number of features of this claim are to be noted. What is in issue in this appeal relates to how the ESB operated the Lee Dams. What is in question is not some matter of policy, as was the case in Cromane. Nor is there here, as there was in Cromane, any question of mistake by State authorities on a legal issue. This case is one, rather, where there was a sufficiently close degree of proximity between the ESB and UCC as to give rise to a duty of care from the former to the latter. It was readily foreseeable that incorrect decision-making on the part of the ESB in relation to the reservoirs and the dams could have real consequences for UCC. While the 1995 Act outlined the powers of the ESB, it cannot be said, on a proper reading of that Act, that, in carrying on the operation of the facilities, the ESB was acting “under law”, in the sense which that issue arose in Cromane, where the Minister was operating on an incorrect understanding of the law. It cannot be said either that there are any countervailing policy factors which would warrant excluding liability. In fact, we consider the contrary to be the case. (See Glencar). We consider that the limited exception to the “do no harm” limitation on the imposition of a duty of care which we have identified is an appropriate evolution of the case law consistent with such general principles as can be discerned in the existing jurisprudence and also with the “evolution by analogy” approach.
13.5 It follows that it is necessary to next consider whether the ESB was in breach of that duty of care.
14. Was the ESB in Breach of the Duty of Care?
14.1 A key finding of the trial judge, in our view, was to the effect that the ESB had not done any risk assessment on the effects on downstream land occupiers of the operation of the Lee Dams other than in the context of a catastrophic dam failure. In one sense that may hardly be surprising. Clearly the ESB did not consider that it owed any duty of care to downstream land occupiers other than in the context of either allowing more water to come out downstream of the Lee Dams than had come in upstream or in the context of a dam failure. In fairness to the ESB, it should also be acknowledged that they had, from time to time, operated the dam system in a way which may well have been of assistance to downstream land occupiers. However, the fact remains that no risk assessment had been carried out as to the likely effects on downstream land occupiers of the sort of events which were to take place in November 2009.
14.2 It must be acknowledged that any obligation arising under a duty of care must go no further than to require a party to take reasonable care. The ESB are not a guarantor that problems might not arise anyway. While weather forecasting is an increasingly accurate science, at least in the short term, it is not infallible. On the evidence in this case, matters such as the saturation of the ground in the catchment area of the river leading to a high level of run off from that land into the river was a factor. However, the extent of the likely effect of a factor such as that would not necessarily be known to a high level of precision. There will inevitably be legitimate judgement calls involved in estimating the likely consequences of adopting any particular method of managing the Lee Dam system. Provided that a reasonable judgement call is made in all the circumstances then there could be no negligence in the first place.
14.3 On the facts of this case, and in the light of the findings of fact of the trial judge, it is clear that there was a significant body of information available to the ESB in the immediate run up to the events leading to the flooding of UCC, from which it was clear that reducing the level in the Lee Dam system was reasonably likely to lead to a situation where there was a real prospect of a significantly more benign result for downstream land occupiers when and if the forecast very significant rainfall occurred.
14.4 This was not a case, for example, such as faced the Supreme Court of Arkansas in Power and Light Company, where what happened was significantly different from the forecasts or, indeed, one where the consequences could not have been predicted. Rather this is a case where it would have been reasonably clear that reducing the level in the dam system, and thus increasing its capacity to take a greater volume of rainfall, would have been likely to have a significantly positive impact on the downstream flow of water and, consequently, on the risk of flooding to downstream land occupiers.
14.5 As noted earlier, it seems clear on the evidence that the ESB did not consider that it had an obligation to have regard to the risks to downstream land occupiers which would result from failing to manage the dam system in a way which would give it greater capacity to absorb the anticipated rainfall. This is not a case, therefore, where it can be said that a rational and reasonable decision was made as to the precise manner in which the dam system should be managed so as to have regard both to the duty of care, which we have identified in respect of downstream land occupiers, but also to the ESB’s obligation and entitlement to generate electricity and also having regard to the entitlement of the ESB to avoid an excessive burden in acting in the interests of downstream land occupiers. We would consider that, in such a situation, a hydroelectric operator such as the ESB would be afforded a material margin of appreciation in making a judgement call on the appropriate balance between such matters.
14.6 However, we do not consider that there was any evidence which suggests that the ESB would, by reducing the level to at or near TTOL in the particular circumstances of this case, have placed any significant risk over its ability to generate electricity both in general terms and at least close to a manner which would maximise its economic benefit. In so saying, we would not go so far as the trial judge in deciding that the duty of care owed by the ESB required it to reduce the level to TTOL. It might well have been open to the ESB, for good reason, to have picked another level, above TTOL, which would nonetheless have provided for the likelihood of significant mitigation of the effects downstream but which might have been considered appropriate to enable the ESB to maximise electricity generation.
14.7 But it does not appear to us that any such decision was taken. Had such a decision been taken it would have been necessary to assess whether the considerations which led to it involved a reasonable relationship between the risks being taken in respect of downstream land occupiers and any departure from optimum conditions for the ESB. However, in our view, no such decision having been taken, and there being no evidence of any such exercise being carried out, we must conclude that the ESB cannot escape liability of the basis of that leg of the test, which determines that an alleged wrongdoer cannot be liable if the actions which might otherwise have been required of it would give rise to an excessive burden having regard to the foreseeable risks, on the one hand, and the consequences of taking action to diminish those risks, on the other.
14.8 In summary, we conclude that the ESB had in its possession more than sufficient scientific expertise and knowledge to be able to assess the potential effects on downstream land occupiers of any failure to increase the capacity of the Lee Dams so as to enable that system to absorb more of the anticipated storm flooding which the weather forecasts had reasonably accurately predicted. Given that we have determined that the ESB owed a duty of care, in the circumstances of this case, to make such an assessment and to have regard to the interests of those downstream land occupiers, we are satisfied to hold that the first aspect of the test which we have identified was established on the facts of this case.
14.9 So far as the second aspect of the test is concerned, we have also concluded that no judgement call was made as to the proper course of action to adopt which had included, as part of its analysis, the interests of downstream land occupiers. Likewise, it does not appear that any particular judgement call was made which also factored in any potential burden which would have arisen from altering the operation of the dams in a manner which would have given added protection to those downstream land occupiers. In the light of those findings we must hold that the ESB cannot escape from a liability which might otherwise arise on the basis of having made a reasonable balancing call in all the circumstances of the case.
14.10 We have already determined that the third leg of the test, being the question of whether any asserted duty of care can be defined with sufficient clarity to avoid it being impermissibly vague, is met in the circumstances of this case.
14.11 It follows that we are satisfied that the ESB was in breach of the duty of care which we have earlier identified. That finding is based on our analysis of the particular exception to the “do no harm” principle which places a duty of care on a party who has special control over a danger independently arising.
14.12 As to the other routes by which UCC sought to establish liability, we consider that difficult questions, both of law and of fact, would arise in relation to the possibility that liability might also have arisen under the “assumption of responsibility” leg of the potential exceptions to the “do no harm” principle identified in Robinson. Like difficulties, both of law and of fact, would arise in considering any potential application of the Leakey jurisprudence. A determination of those issues might well have consequences well beyond the facts of this case. In addition, findings in respect of those questions could not alter the result of the case. On that basis we think it would be best to leave such questions to a case in which they might prove decisive.
14.13 We would, therefore, confine ourselves to determining that the ESB is liable in negligence to UCC on the narrow basis which we have identified.
15. The Consequences
15.1 Having found that the ESB were in breach of a duty of care which they owed to UCC, it follows that this aspect of the appeal must be allowed. In those circumstances we have concluded that it is neither necessary nor, in the circumstances of this case, desirable to deal with some of the other issues which might have required determination in the event that we had come to a different view on the question of the duty of care.
15.2 We would emphasise that we have not reached any conclusion as to the applicability in this jurisdiction of any of the other aspects of the decision of the Supreme Court of the United Kingdom in Robinson. We have confined ourselves to determining that one of the exceptions to the do no harm rule which exists in this jurisdiction is equivalent to the special level of control exception identified in Robinson. The evolution, so far as the common law as it is understood in Ireland is concerned, of other exceptions should, we suggest, be considered on a case by case basis having regard to the approach to the proper evolution of the law adopted both in Morrissey and on this appeal. However, we would propose that further consideration be left to cases in which a detailed analysis of such issues would prove decisive to the result.
15.3 Precisely because such issues can raise complex and difficult questions, we do not consider that it would be appropriate to express any views on those questions beyond those referred to above.
15.4 We have in addition taken a similar view in respect of the nuisance/Leakey basis on which the High Court also found in favour of UCC but on which the Court of Appeal found in favour of the ESB.
15.5 Finally, as already noted, the question of whether the ESB was negligent in respect of the warnings which it gave could not alter any award of damages which might legitimately be made under the heading of negligence in the operation of the Lee Dams. It follows that it is also unnecessary to deal with that issue.
15.6 We should also emphasise that the basis on which we have found that the ESB was negligent is not exactly the same as that adopted by the High Court. It is clear that the only damages, at the level of principle, to which UCC are entitled are damages representing the difference between the losses actually incurred and any losses which might have resulted in any event had the Lee Dams not been operated in a manner which we have found to be negligent. Determining what damage can be attributed as being causally linked to the negligence of ESB on that basis is a matter which the High Court will have to assess.
15.7 Finally, it follows from our finding that, at least in general terms, the High Court was correct and the Court of Appeal incorrect on the question of the liability of the ESB for negligence, that the question of contributory negligence on the part of UCC remains a live issue. It will be necessary, therefore, to conduct a further hearing of this Court on that issue. Case management arrangements will be put in place to facilitate such a hearing in early course.
16. Conclusions
16.1 It is important to yet again emphasise that the only issue with which this judgment is concerned is the question of whether the High Court or the Court of Appeal were correct in their respective findings on the potential liability of the ESB for negligence and/or nuisance.
16.2 For the reasons set out earlier in this judgment, we have concluded that the approach identified in more recent United Kingdom case law, which analyses liability on the basis of a “do no harm” approach, is to be preferred to the more traditional consideration which differentiated between acts of commission or acts of omission. However, we have also identified that there can be exceptions to the “do no harm” rule such that a duty of care may arise, in certain limited circumstances, to confer a benefit.
16.3 We consider that one such exception arises where a party is in a special position of control enabling them to prevent harm being caused by a danger independently arising. While we consider that the special level of control in question does not necessarily have to arise from the existence of a legal power, we are satisfied that it must be substantial and not tangential. We also suggest that it must be shown that there is a reasonable relationship between any burden which would arise from imposing such a duty of care and the potential benefits to those who may be saved from the danger in question. In addition, we are satisfied that it is necessary to ensure that it is possible to define the duty of care in question with a sufficient, but not absolute, level of precision so as to avoid imposing a burden which is impermissibly vague and imprecise.
16.4 Applying that principle to the circumstances of this case we have concluded that the ESB did owe a duty of care to landowners and occupiers downstream of the Lee Dams. This duty of care arises on the basis that the ESB did have a special and substantial level of control which would enable it to prevent or reduce harm arising from a flood danger, that the duty concerned could, in the circumstances which prevailed in November, 2009, have been complied with without placing a disproportionate burden on UCC and that the duty concerned could be specified with reasonable clarity so as not to impose an impermissibly vague obligation on the ESB.
16.5 For the reasons also analysed in this judgment, we have concluded that the ESB was in breach of that duty of care.
16.6 In those circumstances, we did not consider it either necessary or appropriate to deal with the other bases on which it was argued that the ESB might be liable.
16.7 It follows that we consider that the appeal brought by UCC against the finding of the Court of Appeal (which in turn allowed the appeal against the decision of the High Court in its favour) must be allowed insofar as it relates to the overturned finding of negligence on the part of the ESB. It also follows, in turn, that we suggest that it will now be necessary for this Court to consider the cross-appeal brought by the ESB against the finding of the Court of Appeal (again overturning the decision of the High Court) to the effect that there was not contributory negligence on the part of UCC. Case management arrangements will be put in place in early course to ensure a hearing in that regard.
16.8 Finally, and having regard to the fact that we suggest a finding of negligence against the ESB, we propose that it will be necessary for this case to continue in the High Court so as to assess such damages as can be established as being causally linked to the negligence which we have found to have occurred. It obviously does not follow that all of the damage suffered by UCC will necessarily be the subject of compensation. It will be necessary for the High Court to assess the extent, if any, to which there would have been damage to UCC without negligence on the part of the ESB. Whether any damages awarded on that basis will need to be reduced to reflect a finding of contributory negligence will, of course, depend on the outcome of the second leg of this appeal.
16.9 However, and subject to the views of the parties and of the High Court, we do not see any reason why the assessment of damages cannot progress pending a final decision by this Court on the question of contributory negligence for the only effect of that decision will be to determine whether there needs to be a percentage deduction from the damages which could properly be awarded and, if so, what that percentage should be. We believe that these long standing proceedings should come to as speedy a conclusion as can justly be delivered and, in the absence of some significant countervailing factor of which we are unaware, consider that this can best be achieved by allowing the assessment of damages to be conducted in parallel with the hearing of the second leg of this appeal.
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.
Hanrahan v. Merck Sharp and Dohme (Ireland) Ltd.
[1988] IESC 1; [1988] ILRM 629 (5th July, 1988)
Supreme Court
Henchy J. (Finlay CJ and Hederman JJ concurring)
1. The general nature of the case
1. The plaintiff Mrs. Mary Hanrahan is the registered owner of a farm of about 264 acres at Ballycurkeen, Carrick-on-Suir, Co. Tipperary. It was a thriving dairy farm and was run by Mrs. Mary Hanrahan with the aid of her husband until his death in 1969, and then with the aid of her daughter Dolly until the latter left the farm on her marriage in 1978. The management of the farm then devolved on her son the plaintiff John Hanrahan who lives there with his wife the plaintiff Mrs. Selina Hanrahan and their two children, Charles (17) and Ambrose (15).
2. The farm is situated in a quiet pastoral valley which up to 1976 was virtually free from industrial activity. That rural serenity was interrupted in March 1976 when the defendants, who are a branch of a large American-based industrial group engaged in the manufacture of pharmaceuticals, opened a factory for the manufacture or processing of pharmaceutical products in the nearby townland of Ballydine, about a mile from the plaintiffs’ farm. The factory employs about 250 people.
3. The factory is primarily engaged in the compounding or processing, at one stage or another, of particular pharmaceutical products. Its activity therefore necessarily involves the storage and use of large quantities of toxic substances and compounds and the keeping in the factory area, and the ultimate disposal therein as waste, of toxic and dangerous chemical residues. Clearly a high degree of care is necessary to avoid the risk of causing personal injury or material damage by the emission from the factory of toxic gases, vapours or other dangerous substances.
4. The complaint of the plaintiffs has been that from about 1978 until 1983 operations in the factory were conducted in such a way that the emission of toxic and dangerous gases, dusts, liquids or other substances was such that they each suffered ill-health and inconvenience, that they were subjected to offensive smells, that lack of thrift, abnormalities and deaths resulted in the farm animals, that damage was caused to herbage and plant life, and that there was corrosion of metal surfaces on the farm.
5. The plaintiffs commenced proceedings against the defendants in the High Court in 1982 seeking injunctions restraining the operation of the factory in a manner resulting in the damaging emissions complained of and claiming damages for the personal injuries and material damage alleged. The case came on for hearing in February 1985 and the hearing lasted 47 days. Reserved judgment was given by the trial judge in August 1985 dismissing the plaintiffs’ claim, primarily on the ground that the personal injuries, loss and damage complained of had not been shown to have resulted from any act or default on the part of the defendants.
6. The plaintiffs now appeal to this Court against that dismiss of their claim.
2. The legal basis of the claim
7. The plaintiffs have formulated their claim on the basis of nuisance, trespass, negligence and breach of the rule in Rylands v Fletcher (1868) LR 3 HL 330. By the time the case came to court, the claim for an injunction had disappeared, for the conduct of the defendants’ operations in the factory was no longer charged as warranting the issue of an injunction. What has been in issue in the High Court and in this Court is whether a claim for an award of damages has been made out.
8. The claim as based on trespass has not been proceeded with, presumably because it could not readily be said that any of the loss or damage complained of was a direct or immediate result of the acts complained of. The loss and damage could more properly be said to be consequential on the conduct complained of.
9. Neither has the claim in negligence been pursued with any vigour. Where negligence is pleaded, the plaintiff must prove the appropriate degree of want of care. It would not be proper in a case such as this to have the plaintiffs’ case judged by the application of a particular standard of care on the part of the defendants, when the plaintiffs are entitled to make a case which does not require proof of a want of care on the part of the defendants. Hence, the plaintiffs rely on nuisance and Rylands v Fletcher.
10. To provide a basis for the award of damages for the private nuisance relied on, the plaintiffs have to show that they have been interfered with, over a substantial period of time, in the use and enjoyment of their farm, as a result of the way the defendants conducted their operations in the factory. The plaintiffs do not have to prove want of reasonable care on the part of the defendants. It is sufficient if it is shown as a matter of probability that what they complain of was suffered by them as occupiers of their farm in consequence of the way the defendants ran their factory.
11. The alternative claim under Rylands v Fletcher derives from the rule formulated in that case by Blackburn J, (1866) LR 1 Ex. 265, at p. 279:-
12. We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or, perhaps, that the escape was the consequence of vis major or the act of God; but as nothing of the sort exists here, it is unnecessary to inquire what excuse would be sufficient.
13. The escape in question in Rylands v Fletcher was that of water from an artificial reservoir on the defendant’s land which flooded a mine on the plaintiff’s adjoining lands.
14. In many cases – of which the present is one – liability may be determined under either Rylands v Fletcher or nuisance. In some cases liability arises in nuisance only, such as where the damage has been caused by noise or by something which cannot be categorised as a thing which is likely to cause mischief if it escapes. Contrariwise, in some cases liability requires to be determined under Rylands v Fletcher, such as where the plaintiff is not an occupier of land, or where the damage complained of was not so repeated or continuous as to be what in ordinary parlance could be described as a nuisance.
15. In the present case the defendants clearly brought on their land things which were likely to cause mischief if they escaped, i.e. dangerous chemical substances. The plaintiffs claim that there were repeated and prolonged escapes, in one form or another, of those substances, so that the plaintiffs as the occupiers of their farm suffered in their health and in their enjoyment of life, the livestock on the farm were grievously affected, and damage was caused to the land and to certain property on the land. While the case could have been disposed of in the High Court by the application of either the rule in Rylands v Fletcher or the law governing a claim in nuisance, the trial judge seems to have dealt with the claim as essentially one in nuisance. Since in neither the notice of appeal nor in the submissions made to this Court has it been contended that the judge erred in this respect, it is proper that this Court should also treat the plaintiffs’ claim as one in nuisance.
3. The onus of proof
16. It is common case that the probative aspect of a claim in nuisance has been correctly expressed by Gannon J in the following passage from his judgment in Halpin and Ors v Tara Mines Ltd High Court 1973, No. 1516P, 16 February 1976.
17. A party asserting that he has sustained material damage to his property by reason of an alleged nuisance must establish the fact of such damage and that it was caused by the nuisance as alleged. It is no defence to such a claim, if established, that the activities complained of were carried out with the highest standards of care, skill and supervision and equipment or that such activities are of great public importance and cannot conveniently be carried out in any other way. In so far as the nuisance alleged consists of interference with the ordinary comfort and enjoyment of the property of the plaintiff, his evidence must show sensible personal discomfort, including injurious affection of the nerves or senses of such a nature as would materially diminish the comfort and enjoyment of, or cause annoyance to, a reasonable man accustomed to living in the same locality. To my mind the reasonable man connotes a person whose notions and standards of behaviour and responsibility correspond with those generally pertaining among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason, whose habits are moderate and whose disposition is equable.
18. It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that.
19. In this case the plaintiffs’ main complaints, namely that the emissions from the factory damaged their health and that of the livestock on the farm, are of so pronounced and serious a nature that no question of nicety of reaction arises. Either those complaints were caused by the emissions from the factory or they were not. If on the balance of probabilities they can be said to derive from factory emissions, then the case for nuisance has been made out. Anything short of that degree of proof would not support a finding of nuisance.
20. The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove (save where there are admissions) all the necessary ingredients of that tort and it is not for the defendant to disprove anything. Such exceptions as have been allowed to that general rule seem to be confined to cases where a particular element of the tort lies or is deemed to lie, pre-eminently within the defendants’ knowledge, in which case the onus of proof as to that matter passes to the defendant. Thus, in the tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitur will allow the act relied on to be evidence of negligence in the absence of proof by the defendant that it occurred without want of due care on his part. The rationale behind the shifting of the onus of proof to the defendant in such cases would appear to lie in the fact that it would be palpably unfair to require a plaintiff to prove something which is beyond his reach and which is peculiarly within the range of the defendant’s capacity of proof.
21. That is not the case here. What the plaintiffs have to prove in support of their claim in nuisance is that they suffered some or all of the mischief complained of and that it was caused by emissions from the defendants’ factory. To hold that it is for the defendants to disprove either or both of those matters would be contrary to authority and not be demanded by the requirements of justice. There are of course difficulties facing the plaintiffs in regard to proof of those matters, particularly as to the question of causation, but mere difficulty of proof does not call for a shifting of the onus of proof. Many claims in tort fail because the plaintiff has not access to full information as to the true nature of the defendant’s conduct. The onus of disproof rests on the defendant only when the act or default complained of is such that it would be fundamentally unjust to require the plaintiff to prove a positive averment when the particular circumstances show that fairness and justice call for disproof by the defendant. The argument put forward in this case for putting a duty of disproof on the defendants would be more sustainable if the plaintiffs had to prove that the emissions complained of were caused by the defendants’ negligence. Such is not the case. In my view, having regard to the replies given by the defendants to interrogatories and notices for particulars and to the full discovery of documents made by them, it is not open to the plaintiffs to complain that for want of knowledge on their part it would be unjust or unfair to require them to bear the ordinary onus of proof.
22. The plaintiffs have also invoked the Constitution in support of their argument as to the onus of proof. They contend that the tort relied on by them in support of their claim is but a reflection of the duty imposed on the State by Article 40.3 of the Constitution in regard to their personal rights and property rights. The relevant constitutional provisions are:-
1º The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
23. I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions as to the personal rights and property rights of the plaintiffs as citizens. The particular duty pointed to by the plaintiffs is the duty to vindicate the personal right to bodily integrity and the property right to their land and livestock. They say that vindication of those rights under the constitutional guarantee is not properly effective by leaving them to their rights as plaintiffs in an action for nuisance and that the vindication they are guaranteed requires that once they show that they have been damnified in their person or property as alleged, it should be for the defendants to show that emissions from their factory were not the cause.
24. So far as I am aware, the constitutional provisions relied on have never been used in the courts to shape the form of any existing tort or to change the normal onus of proof. The implementation of those constitutional rights is primarily a matter for the State and the courts are entitled to intervene only when there has been a failure to implement or, where the implementation relied on is plainly inadequate, to effectuate the constitutional guarantee in question. In many torts – for example, negligence, defamation, trespass to person or property – a plaintiff may give evidence of what he claims to be a breach of a constitutional right, but he may fail in the action because of what is usually a matter of onus of proof or because of some other legal or technical defence. A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v C.I.E. IR 121); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right. But that is not alleged here. What is said is that he may not succeed in having his constitutional rights vindicated if he is required to carry the normal onus of proof. However, the same may be said about many other causes of action. Lack of knowledge as to the true nature of the defendants’ conduct or course of conduct may cause the plaintiff difficulty, but it does not change the onus of proof.
25. It is also to be noted that the guarantee to respect and defend personal rights given in Article 40.3.1º applies only ‘as far as practicable’ and the guarantee to vindicate property rights given in Article 40.3.2° refers only to cases of ‘injustice done’. The guarantees, therefore, are not unqualified or absolute. I find it impossible to hold that Article 40.3.1° means that a plaintiff in an action in nuisance is to be relieved of the onus of proving the necessary ingredients of that tort. Neither, in my view, does Article 40.3.2° warrant such a dispensation, for the guarantee of vindication there given arises only ‘in the case of injustice done’, so it is for the plaintiff to prove that the injustice relied on was actually suffered by him and that it was caused by the defendant.
26. I would hold that the trial judge correctly rejected the submission of the plaintiffs that an onus of disproving the allegation as to causation should rest on the defendants.
4. The appellate jurisdiction of this Court
27. In a case such as this, where the function of the trial judge was to decide whether the plaintiffs had suffered the loss or damage complained of and, if so, whether the defendants’ factory was a causative source of that loss or damage, the jurisdiction of this Court in reviewing the judge’s findings of fact on appeal is necessarily limited. Statements as to the limitation of a court of appeal’s power to interfere with a trial judge’s finding of fact are to be found in a number of cases, but the most recent statement emanating from this Court on the matter is to be found in J.M. and G.M. v An Bord Uchtála [1988] ILRM 203, at p. 205:-
28. For the purpose of an appeal from a judge of the High Court to this Court, facts may be divided into two categories.
29. Firstly, there are primary or basic facts. These are determinations of fact depending on the assessment by the judge of the credibility and quality of the witnesses. It is for the determination of those facts that a viva voce hearing takes place. Because those facts depend on the oral evidence given and accepted in the High Court, this Court on appeal will not normally reverse such findings. Even if it deems different findings to be more appropriate, or even if the findings made seem to be incorrect, this Court will not normally interfere with them. That is because it has not had the advantage of seeing and hearing the witnesses as they gave their evidence. It is only when the findings of primary fact cannot in all reason be held to be supported by the evidence that this Court will reject them: see Northern Bank Finance Corp Ltd v Chariton [1979] IR 149.
30. Secondly, there are secondary or inferred facts. These are facts which do not follow directly from an assessment or evaluation of the credibility of the witnesses or the weight to be attached to their evidence, but derive from inferences drawn from the primary facts. Once the primary facts have been established viva voce, their consequences or implications for the purpose of the matters in issue must be found by a process of deduction from the facts found or admitted, rather than by an assessment of the witnesses or of the weight or the correctness of their evidence. In regard to such secondary facts, the advantage of the High Court judge who saw and heard the witnesses is of such minor importance that this Court will feel free to draw its own inferences if it considers that the inferences drawn by the judge in the High Court were not correct. Such secondary facts include all matters which are evaluative of the primary facts.
31. It is noteworthy in the present case that most of the primary facts, particularly the facts as to the existence of the matters complained of, are not in dispute. The real controversy, both in the High Court and in this Court, is whether as a matter of probability it can be held that emissions from the factory were a cause of the trouble. That is essentially a matter of inference. If, having found the primary facts, the judge was reasonably entitled to infer from them that the balance of probability did not identify emissions from the factory as causative of the complaints, the plaintiffs are not entitled to succeed in this appeal. On the other hand, if on a fresh appraisal of the primary facts as found or admitted, this Court is of opinion that the likelihood is that factory emissions were causative of the complaints, then this Court is entitled to substitute a conclusion to that effect for the exculpatory conclusion reached by the trial judge.
5. The nature and scope of the complaints relied on
32. The complaints relied on as supporting the claim for damages may be broadly classified as follows:-
1. Ill-health suffered by each of the plaintiffs.
2. Ill-health, abnormalities and deaths, occurring in the cattle on the plaintiffs’ farm.
3. Personal inconvenience and discomfort, mainly in reference to smells, suffered by the plaintiffs.
4. Damage to herbage and plant life on the farm.
33. There was originally a complaint also as to damage by corrosion of metal surfaces on the farm, but this ground of complaint has not been pursued.
34. There is no doubt, and it seems to have been so found by the judge, that during the relevant time (i.e. 1978 to 1983) each of the plaintiffs suffered ill-health; the health of the dairy herd deteriorated and abnormalities of different kinds and deaths took place among the cattle; discomfort and distress were evident in man and beast, particularly in relation to the effect on the plaintiffs of offensive smells; and there was an observable retardation of and damage to growing things.
35. The judge’s dismiss of the plaintiffs’ claim in respect of each of those complaints was, as the judgment shows, due to his finding that as a matter of probability they had not a common cause, namely factory emissions. While the plaintiffs’ claim rested primarily, on evidence of what was felt or observed at the time, the defendants’ case was primarily one of rebuttal based on scientific evidence of a reconstructive nature. It is for that reason that counsel for the plaintiffs have urged that there is greater force and credibility to be given to the first-hand evidence of witnesses whose truthfulness was not called into question, as opposed to the largely abstract ex post facto evidence of scientists who had no direct or personal experience of the matters complained of. Consideration must of course be given to such a submission, as well as to the submission that the various complaints should not be viewed in isolation, that they are necessarily interlinked, and that evidence of the source of one complaint may be treated as corroborative or confirmatory of the source of another complaint, such as that the evidence of a witness that he experiences an offensive chemical smell should be coupled with his evidence that at the very same time he noticed cattle in deep distress. Such direct sensory perception, it is urged, may be pointed to as sufficient to prevail over scientific opinions as to the non-toxic cause of the distress in the cattle.
6. The complaint as to smells
36. I deal with this complaint first, not because it is the most serious, but because it is the most amenable to clear resolution and because it casts direct light on the other complaints.
37. The evidence as to offensive smells from the defendants’ factory was extensive and largely uncontroverted. I give the following abbreviated samples from the evidence.
38. The plaintiff John Hanrahan gave evidence that he began to experience an unpleasant smell in 1979. According to him it was ‘a dreadful smell, a really dreadful smell’. He complained about it to the factory on numerous occasions. On the occasion of one of those complaints Mr. Wyatt, an executive in the factory, said that the waste system had gone wrong. Mr. Hanrahan described the smell as foul and as following him into the house. He said that on one occasion the smell was accompanied by ‘a dreadful burning’ and that his skin was affected.
39. The plaintiff Mrs. Mary Hanrahan said that she first experienced a bad smell in 1978. It was so bad that some people thought their haybarn was on fire. She described the smell as being like what she describes as the horrible smell that is emitted when a blacksmith puts a hot iron on a horse’s hoof. She said that when she complained to the factory people about the smell they said it would never happen again.
40. The plaintiff Mrs. Selina Hanrahan described how she experienced unpleasant and distressing smells accompanied by clouds of emissions from the factory and which frequently caused her eyes to stream.
41. John Callanan, a neighbouring farmer who lives about a mile to the east of the factory, said he first noticed the foul smell in the Spring of 1979. He complained of it to Mr. Wyatt in the factory, who explained the smell by saying that they had gone over to the manufacture of a product called sulpinac. Mr. Callanan said that, despite assurances given, the offensive smell returned in the Autumn of 1979 and became so offensive and pervasive that they used never open the windows of their house. According to him the smells continued to be emitted by the factory until May 1983.
42. John Tobin, a neighbouring farmer who lives about a mile to the north of the factory, described experiencing unpleasant smells on five or six occasions.
43. Martin Long, a farmer who lives about 100 yards from the factory, said that he experienced unpleasant smells from the factory from twelve to twenty times in the late 1970s. The smell was so severe that his mother, with whom he lives, complained to the factory.
44. John Wallace, whose land is about 2½ miles to the north of the factory, said he first noticed the unpleasant smell from the factory in July 1983. ‘It was strong, objectionable, very objectionable. You would not stay too long where it would be’. He again experienced it in 1984, but then it was a stronger, burning smell and he felt somewhat overcome by it.
45. Thomas Rockett, whose farm lies 1½ miles north-east of the factory and beside the plaintiffs’ farm, said that in 1981 he noticed a range of different smells from the factory, some of which would ‘burn the eyes out of you’.
46. The foregoing is but a short selection from the evidence given as to the intensity and frequency of the objectionable smells from the factory. Not alone were the plaintiffs’ complaints as to smells amply corroborated but the defendants admitted that they had received complaints as to smells on over 200 occasions. It is not surprising that the judge’s conclusion as to the existence of the smells was as follows:
47. There is undoubtedly evidence that on a number of occasions the processes carried on in the defendants’ factory were responsible for offensive odours which were legitimately and reasonably objected to by the plaintiffs and many others living in the area of the factory.
48. However, he went on to find that ‘it does not appear that they [the odours] were ever on such a scale or intensity as to justify the award of damages’. This conclusion seems to me to be incorrect, not so much as an inference drawn from the facts as a misinterpretation of the relevant law.
49. As I have pointed out earlier in this judgment, by reference to the cited passage from the judgment of Gannon J in Halpin and Ors v Tara Mines Ltd, where the conduct relied on as constituting a nuisance is said to be an interference with the plaintiffs’ comfort in the enjoyment of his property, the test is whether the interference is beyond what an objectively reasonable person should have to put up with in the circumstances of the case. The plaintiff is not entitled to insist that his personal nicety of taste or fastidiousness of requirements should be treated as inviolable. The case for damages in nuisance – we are not concerned here with the question of an injunction – is made out if the interference is so pronounced and prolonged or repeated that a person of normal or average sensibilities should not be expected to put up with it. It is not necessary that an interference by objectionable smell should be so odious or damaging that it affects the plaintiffs’ health. It is enough if it can be said that a reasonable person in the plaintiffs’ circumstances should not be expected to tolerate the smell without requiring the defendants to make financial amends. I consider that the plaintiffs have made out such a case.
50. I would hold that each of the three plaintiffs has made out a case for damages for nuisance caused by offensive smells from the defendants’ factory.
7. The complaint as to John Hanrahan’s health
51. It is the contention of the plaintiff John Hanrahan that the factory emissions seriously affected his health. The particular evidence as to this complaint must be considered against the background of the general evidence as to emissions from the factory.
52. The three main possible sources of atmospheric pollution caused by emissions from the factory are:-
1.A 120 ft. high chimney over a boilerhouse where heavy fuel oil is burned. The smoke from this chimney as an atmospheric pollutant is comparable to that emitted by chimneys in other industrial buildings where oil-fired boilers are used for heating or in power stations.
2.Certain exit points from the manufacturing or process building but more particularly what is referred to in the evidence as the scrubber stack.
3.The incinerator, a construction in which the waste chemicals are burned. Because the function of the incinerator is to effect the destruction by combustion of dangerous waste chemicals and solvents and because the incinerator was for significant periods in the years in question running at below its design temperature and therefore at a heat which was not adequate to destroy dangerous and contaminated solvents, it is marked out by the plaintiffs as the primary source of atmospheric pollution on their farm.
53. The evidence seems to me to show beyond doubt that atmospheric pollution in the neighbouring farms was caused by emissions from the factory. I have already dealt with the widespread complaints of offensive smells from the factory. There was also evidence from a variety of witnesses, which evidence went largely uncontroverted, of complaints such as a burning sensation in the throat and chest, reddening of the skin, irritation and streaming of the eyes and a smothering feeling in the nose, throat and chest. While complaints of that kind seem to have been experienced by different people in the area, the plaintiffs seem to be the only people who claimed that the atmospheric pollution affected their health. Whether or not the Hanrahan farm vis -a -vis the factory was in a special meteorological position, there was unimpeached independent evidence that the complaints of physical ill-effects in humans on the plaintiffs’ farm were matched by observable distress in the animals on the farm. In fact, the judge held that the evidence established that human and animal ill-health and unusual damage to plant life occurred on the plaintiffs’ farm in the relevant period. The only real question, therefore, is whether the judge’s finding of no causal connection between those complaints and emissions from the factory can be sustained.
54. Before dealing with the evidence of John Hanrahan and his medical advisers as to his ill-health, I think attention should be directed to the extent and variety of the evidence as to abnormalities on the plaintiffs’ farm as a consequence of pollution from the factory. Different witnesses described seeing clouds of emissions coming from the factory, feeling at such times discomfort and distress, noticing animals coughing and lowing and later finding unexplained abnormalities in the herd, and observing decay in plant life. Coupled with such evidence is the defendants’ admissions, supported by hundreds of complaints, that the emissions gave offence. Even if all the complaints made by or on behalf of the plaintiffs are not accepted, there were uncontroverted items of complaints which suggested that the factory emissions were at the root of the trouble. For example, John Hanrahan gave evidence that the ivy on the trees on the farm facing the factory withered. Evidence of that kind would lead one to expect complaints of human or animal ill-health.
55. John Hanrahan gave evidence to the effect that, after seeing clouds of emissions coming from the factory and experiencing foul smells and burning sensations on his skin and in his eyes and blisters on his tongue and on his head, his general health deteriorated. In particular he suffered from wheezing and pains in his chest. He attended his local general practitioner who referred him to a specialist.
56. The specialist was Dr. Muiris Fitzgerald, Professor of Medicine in University College, Dublin and a consultant in respiratory diseases in St. Vincent’s Hospital, Dublin. Professor Fitzgerald gave evidence that he
first saw John Hanrahan in 1980 when he found him suffering from wheezing and pulmonary obstruction which he then ascribed to either environmental pollution or asthma. Professor Fitzgerald admitted him to hospital for pathological and other tests in 1980 and again in 1982. A pathologist gave evidence that blood samples from John Hanrahan tested by him showed a condition known as mild hyperchloraemic acidosis. Another pathologist found a mild decrease in the white cell count in the blood which was consistent with poisoning by solvents.
57. Professor Fitzgerald having treated Mr. Hanrahan over a period of 4½ years from 1980, and having the benefit of pathological and haematological reports, gave evidence of his final opinion as to causation in the following terms:-
58. I would say that if it is shown that fumes, dusts, vapours, chemicals are present in the botanical life or animal life in the area, and if appropriate environmental meteorology in the evidence is compatible, and if it is shown that materials, acids, vapours are emanating from a source contiguous to the farm, then the balance of probabilities very much favours [the conclusion] that his lung disease can be attributed to a toxic substance.
59. That carefully worded opinion stood undisturbed at the end of the hearing by any contrary medical opinion. It meant, in the context of the other evidence in the case, that Professor Fitzgerald’s considered opinion was that, on the balance of probabilities, John Hanrahan’s lung disease was caused by toxic emissions from the factory, for that was the only local source of toxic substances.
60. Nevertheless, the judge held that John Hanrahan had failed to adduce sufficient evidence to support a finding that the factory was the source of his illness. The judge seems to have considered that Professor Fitzgerald’s opinion was overborne by the absence, unexplained, of evidence by John Hanrahan’s general practitioner and by the fact that evidence of similar complaints by other members of his family had not been given.
61. I am of opinion that the judge’s ruling was incorrect and was not supported by the evidence. The qualifications expressed in Professor Fitzgerald’s opinion were satisfied and there was no other opinion to the contrary. In those circumstances the opinion should have been accepted unless it appeared from the evidence as a whole that it was not worthy of acceptance. Neither of the two matters put forward as grounds for rejection of the opinion could properly be held to disestablish Professor Fitzgerald’s opinion. The likelihood is that Professor Fitzgerald’s opinion was given in the knowledge that none of John Hanrahan’s family had experienced similar symptoms and it does not appear to have been suggested to him in cross-examination that his opinion may have been weakened or invalidated by that fact. Neither could the absence of evidence by the general practitioner be treated as implying that such evidence, if given, would weaken Professor Fitzgerald’s opinion. It would be idle to speculate why the general practitioner was not called as a witness. The mere absence of such evidence could not, in my view, be treated as throwing any light on John Hanrahan’s previous medical history, particularly as when he was examined in December 1984 (by which time the nuisance had been abated) by a consultant physician acting on behalf of the defendants it was found that his chest condition was normal, thus indicating that he had not at the relevant time been suffering from any chronic pulmonary disorder.
62. I would hold that John Hanrahan is entitled to damages for the ill-health he suffered as a result of the nuisance caused by the factory emissions.
8. The complaint as to Mrs. Mary Hanrahan’s health and Mrs. Selina Hanrahan’s health
63. Mrs. Mary Hanrahan did not give evidence of any specific form of ill-health alleged to have been suffered by her as a result of factory emissions. When asked in the witness box what was the ill-health she was blaming the factory for, she said: ‘I think my doctor will tell you that. I could not even tell you what it is’. In the event no doctor who had treated her was called to give evidence. Her complaint was therefore too vague and insubstantial to form the basis for an action in nuisance. The judge’s rejection of it cannot in my view be disturbed.
64. The judge also rejected Mrs. Selina Hanrahan’s complaint of ill-health. In January 1981 she was admitted to hospital in Waterford suffering from a uterine haemorrhage and was detained for seven days. She said that for the rest of that year she felt poorly, suffering from streaming eyes, sore nose and sore throat. In 1982 she was admitted to hospital twice, suffering from uterine haemorrhages. In September 1982 she underwent a hysterectomy, after which her general health seems to have improved. Having regard to the gynaecological nature of her complaints and the fact that there was no medical evidence to connect those complaints with factory emissions, it is not surprising that the judge rejected those complaints. I am at one with him in reaching that conclusion.
9. The complaint of damage to plant life
65. Evidence was given by the plaintiffs Mrs. Mary Hanrahan and John Hanrahan of damage to certain plants, vegetables and flowers on the farm and this evidence was confirmed by a number of experts who considered air pollution by the factory to be the likely cause. The judge did not in his judgment specifically reject this evidence, but it is implicit that he did not consider that a case for damages for nuisance in this respect had been made out. While this evidence may be thought to support other complaints of damage by pollution from the factory, because of its vagueness as to the extent of damage caused or loss suffered, I find no reason to question the rejection of this evidence as a separate basis for an award of damage for nuisance.
10. The nature and extent of the factory emissions
66. The main ground relied on by the plaintiffs for an award of damages for nuisance is the ill-effects suffered by the dairy herd on the farm as a result of the factory emissions. The defendants have sought to rebut that complaint in two ways: (1) by showing that the factory emissions were not such as to affect the health of the animals and (2) by showing that any ill-effects suffered by the animals were due to causes which were not factory-related.
67. It appears to be an unquestionable fact that the defendants’ factory is the main source of hydrogenchloride and hydrochloric acid mists in the Suir valley. The possible effects of such emissions have to be considered in terms of factors such as air chemistry, meteorology, the height of the factory chimneys, the configuration of the Suir valley, local meteorological features (such as the inversion by which air is trapped in the valley when winds are light) and the effect of prevailing winds. Readings taken at the points of emission in the factory are therefore not necessarily a sound guide as to the consequences of the emissions in different parts of the valley. For example, some of the emissions take place at levels below that of the valley floor, and the top of the scrubber stack is on a level with the ground floor of the plaintiffs’ house. The point has been taken that factory readings and the results shown by computer models do not take account of what actually happens in the Suir valley. The criticism has also been made that measurements of airborne concentrations on the plaintiffs’ farm give no more than an average daily concentration, thus leaving out short violent emissions and not taking into account the deleterious effect, particularly on grazing animals, of prolonged low-level emissions of gases and mists of unknown degrees of toxicity.
68. A considerable amount of scientific evidence was adduced at the trial as to the actual or possible effects of the factory emissions, and that evidence is summarised and carefully analysed in the judgment under review. I need not go through it because the judge held that ‘the only evidence in the case of measurements of toxic gases, vapours or other substances on the Hanrahan farm during the relevant period on which reliance can be placed is the evidence of Dr. Jameson’.
69. Dr. Jameson is a chemist employed by An Foras Forbartha who made reports in 1980 and 1982 on air pollution in the Ballydine area of Co. Tipperary, including the plaintiffs’ farm. His conclusions were based on a monitoring of ambient air concentrations. He found that the concentrations recorded were well within the guidelines used by many authorities.
70. Counsel for the plaintiffs have criticised those findings on a number of grounds, such as that they are based on fixed-time emissions only and that the standards applied are for humans rather than animals. Although the concentrations of acid vapours found on the plaintiffs’ farm by Dr. Jameson were said by him to be low, he agreed that they were 3½ times higher than those recorded on adjoining lands.
71. A consideration of the scientific evidence as a whole given on behalf of the defendants leads me to the conclusion that, even if accepted in full, it only shows what could or should have happened in the way of damage by toxic emissions. In the light of what did happen in the way of toxic damage, I consider that the defendants’ evidence could not be held to rebut the plaintiffs’ case. Theoretical or inductive evidence cannot be allowed to displace proven facts. It was proven as a matter of probability that John Hanrahan suffered ill-health as a result of toxic emissions from the factory. It was a fact, and so found by the judge, that there was unusual damage to some plant life on the plaintiffs’ farm in the relevant period, the only suggested source of this damage being the factory. And there was a volume of uncontroverted evidence given by eyewitnesses that animals were seen and heard to be ill and in distress at a time when the observer was experiencing foul chemical smells or weeping eyes or irritated skin, which could have been caused only by the factory. It would be to allow scientific theorising to dethrone fact to dispose of this claim by saying, as was said in the judgment under appeal, that there was ‘virtually no evidence in this case of injury to human beings or animals which has been scientifically linked to any chemicals emanating from the defendants’ factory’.
72. There are many factors which seem to me to render unacceptable the conclusion that it has not been proved as a matter of probability that the ill-health suffered by the animals was not caused by factory emissions. I instance the following four considerations:-
1. The plaintiffs’ dairy herd was a thriving one up to the time when smells and other factory emissions were noticed.
2. The five veterinary surgeons who regularly saw and treated the animals in the relevant period were all of the firm opinion that what the animals were suffering from was caused by toxic emissions from the factory.
3. The factory incinerator, which was designed to burn, destroy or render harmless seven tons a day of chemical solvents was run for long periods at temperatures which were too low to achieve the desired result, thus breaching one of the conditions of the planning permission for the factory and making damage to humans and animals highly likely.
4. The ailments suffered by the cattle – evidenced by streaming eyes, coughing, a high incidence of abortions, twinning and of calves born deformed, reduced milk yields, sore and cut teats, stampeding, marked lack of thrift, and want of sexual capacity in the bulls – were too pronounced and varied to be accounted for by natural causes such as (as was suggested by the defendants) hoose or bad farm management. The most credible explanation offered for the ailments and abnormalities in the cattle was the toxic emissions from the factory.
73. I would therefore allow the appeal against the finding that the plaintiffs had not established as a matter of probability that the complaints about the condition of the cattle were not causally linked to toxic emissions from the defendants’ factory.
11. The question whether the cattle ailments were due to causes other than factory emissions.
74. A considerable amount of evidence was given in the High Court on behalf of the defendants suggesting that the decline in the health of the dairy herd was due, not to toxic emissions from the defendants’ factory but to causes such as hoose or other animal ailments, or bad husbandry in the form of overstocking, inadequate culling, inbreeding, or poor silage and general farming practices. I have already held that the evidence established as a matter of probability that there was a causal relationship between the animal ailments and the factory emissions. What should have been in issue at the trial was whether the animal ailments were due entirely to the factory emissions. This question was never really addressed at the trial, for the case seems to have developed into a question whether the cause of the trouble was the factory or not. It is true that some of the defendants’ witnesses gave evidence suggesting that it was unlikely or impossible that factory emissions were the cause of the trouble. However, by the end of the case the question calling for an answer, particularly for the purpose of assessing damages, was whether the factory emissions were the sole cause of the animal complaints and consequently of the plaintiffs’ losses. The judge made no finding on this point because he discounted factory emissions as a cause of the plaintiffs’ complaints. All he held on this matter was that ‘there is clear evidence to indicate that the undoubted deterioration in the quality of the herd on the Hanrahan farm could have had other explanations [than the factory emissions]’.
75. In the circumstances it would not be proper for this Court to make the necessary findings as to the extent of causality which were not made in the High Court and which are a prerequisite to the assessment of damages in respect of the cattle. The hearing in the High Court dealt more with liability than damages. I consider that a further hearing in the High Court is necessary for the purpose of assessing damages and of making the findings necessary for such assessment.
12. Conclusions
76. I would allow this appeal by the plaintiffs to the extent of holding that the three plaintiffs have established that the defendants are liable to them in damages for the offensive smells emitted from the factory, that John Hanrahan is entitled to damages for the injurious effect on his health of the factory emissions, and that the defendants are also liable in damages for the cattle ailments to the extent that they were caused by factory emissions. Since it is desirable that all the damages should, at least at first instance, be assessed by the same tribunal, I would remit the case to the High Court for both the assessment of the damages and the making of the findings necessary for such assessment.
Molumby v. Kearns
[1999] IEHC 86 (19th January, 1999)
THE HIGH COURT
JUDGMENT of Mr. Justice O’Sullivan delivered the 19th day of January 1999 .
THE PARTIES AND BACKGROUND
1. The first and second Plaintiffs are husband and wife and live at No. 28 Foster Avenue, Mount Merrion. The second and third Plaintiffs are husband and wife and live next door at No. 30 Foster Avenue. The fifth and sixth Plaintiffs are husband and wife and live at Glenville, Foster Avenue, Mount Merrion, which is on the same side as No. 26 and No. 28 and separated from No. 26 by an industrial estate known as Glenville Industrial Estate owned by the first and second Defendants with an official address at No. 26 Foster Avenue.
2. I shall refer to the first and second Plaintiffs as the Molumbys, the third and fourth Plaintiffs as the Careys and the fifth and sixth named Plaintiffs as the Kirranes.
3. The industrial estate comprises eight bays, six of which are now occupied by the fourth and fifth Defendants. The fourth, fifth and sixth Defendants are companies of which the first and second are Directors and shareholders. The third Defendant did have an interest in these companies but sold it to the first Defendant and the second Defendant, who is his brother, in late 1996. The remaining two bays in the industrial estate are occupied (save for a small office portion in the occupation of the fourth Defendant) by a company known as Chervil Limited. The gross “footprint” of the industrial estate comprises some 30,000 square feet. It is accessed by a narrow lane which gives on to Foster Avenue and proceeds inwards for some 70 yards and widens out at the inner end. The eight bays front on to that lane and are situate on the left as one proceeds inwards. Accordingly, they extend from the lane towards the Kirranes home at Glenville, that is, to the left as one faces in from Foster Avenue. The lane itself is bounded on the right (as one enters) by a wall, on the other side of which is the home of the Molumbys at No. 28. Apart from a rear garden attaching to the Kirranes’ home there is also a side garden which runs along the Foster Avenue frontage between their house (which is situate some 40 yards from the lane) and the industrial estate. This side garden lies inside the footpath adjoining Foster Avenue and between that and the first of the bays and runs parallel to that bay. At the end of the garden adjoining the lane there is a small building which contains a garage, which is used by Dr. Kirrane for his car, and a small living area which is known as the lodge. Beside the lodge there is a pedestrian gate which gives on to the lane from the garden.
FACTS GIVING RISE TO THE DISPUTE
4. The Kirranes have been in residence at Glenville since 1973, the Molumbys at No. 28 since 1994 and the Careys at No. 30 since the end of 1991. Up until the 7th June, 1996 the entrance to the lane servicing the industrial estate comprised two brick pillars, some 10 ft 6½ ins apart. On that date the right hand pillar (as one approaches the entrance from Foster Avenue) and some wall were removed in circumstances which will be described later.
5. The case made by the Plaintiffs is that since the knocking of the pillar, larger, louder and more polluting trucks have been accessing the lane so that there has been a dramatic increase in the number and size of vehicles together with the hours at which they come and go. This has caused a major nuisance to the Plaintiffs, particularly the Molumbys, who live immediately adjoining the laneway to the estate on the other side of a boundary wall, but also to the Careys and the Kirranes. They complain, not only about noise of truck engines and vibrations, but also fumes, diesel engines left running, radios left on, obstruction of gates, in particular the gate where Dr. Kirrane keeps his car immediately adjoining the lodge beside the estate entrance, and also the gates of the other Plaintiffs, congestion of traffic, and disruption of traffic on Foster Avenue when large vehicles are manoeuvring to access the laneway. There are subsidiary complaints relating to nuisance caused by the maintenance of a skip at the end of the lane (that is the furthest end of the laneway from Foster Avenue), the parking of vehicles in the lane over night, the servicing of vehicles from an oil tank kept towards the end of the lane immediately adjoining the Molumbys’ boundary, and noise from saws cutting wood and metal in the bays of the estate, particularly in 1996 but also in other years. There were complaints about noise from a hard wheeled fork lift truck used to shift loads around the estate.
CLAIMS OF THE PARTIES
6. The pleadings refer to a claim by the Molumbys that their wall has been physically damaged but this matter was not dealt with by me because it was met by the Defendants with a lodgment which was accepted by the Molumbys and it was agreed that no reference would be made to that particular matter in the course of these proceedings.
7. The Kirranes have included a claim for a right of way from the entrance to the estate to their side pedestrian gate adjoining the gate lodge. This issue was formally addressed on the thirteenth day of the hearing, when I ruled that it could not be conveniently disposed of together with the other causes of action in this hearing because it had not been pleaded with sufficient particularity. Furthermore, it involved only the Kirranes and I considered that it would be more convenient to have that matter dealt with after pleadings in a separate hearing. Accordingly, the Kirranes’ right of way claim is not being dealt with in this judgment.
8. The Plaintiffs bring their action in nuisance but they have also brought proceedings pursuant to Section 27 of the Local Government (Planning and Development) Act, 1976 on the basis that there has been such an intensification of use (following the knocking of the gate pier in June 1996) that it amounts to a material change of use which requires planning permission, but does not have it, and also upon the basis that one of the uses in Bay 1 (Bay 1 is nearest Foster Avenue as one proceeds in the lane and Bay 8 is at the innermost end) which is a distributor use for Dell Computers is itself a use which requires planning permission but does not have it. They also claim that the Defendants should be ordered to reinstate the gate pier and wall in their original position, and, further that they are in breach of a condition of planning permission requiring them to use the estate only in a way which would not be a nuisance to their neighbours.
9. At the outset of the hearing before me, I ruled that the cases should be tried together and that the evidence presented would be evidence in both cases. Accordingly, I ruled that the Affidavit evidence supporting the application under Section 27 was evidence in the nuisance action as well as in the planning application.
PRELIMINARY ORDERS
10. The matter first came on before me on an interlocutory basis on the 30th July, 1997 when I made an Interlocutory Order restraining the Respondents until trial of the action from compacting waste on any part of the industrial estate (the compacting of waste was taking place in large trucks very similar to local authority rubbish compacting trucks); from using a pallet truck on any of the lands except inside the buildings; and from parking Shreddit trucks overnight. The Order also excluded all vehicles from the estate except between 9 a.m. and 5 p.m. Monday to Friday and 9 a.m. to 1.30 p.m. on Saturdays. I made a further Order in relation to the wall between the Defendants’ and the Molumbys’ properties, which is not relevant to this hearing and I made a further Order requiring the erection of a temporary structure at the entrance so as to restrict the access to its original width of 3.215 metres (10 ft 6½ ins).
11. The Plaintiffs subsequently complained that the Defendants had not obeyed this Order and brought a motion for contempt in July 1998. On that occasion it was clarified that the Order which precluded access “by any vehicles” to the industrial estate other than between the authorised hours precluded all vehicles and not merely trucks or commercial vehicles as was thought to be the case by the Defendants. From that time forward all vehicles have been kept out of the estate between 5 p.m. and 9 a.m. Mondays to Fridays and 1.30 p.m. Saturday and 9 a.m. the following Monday.
12. Since that time the Plaintiffs say the estate has been peaceful at night time and their primary outstanding complaint relates to the size of vehicles accessing the estate during the permitted hours in the working week.
ISSUES
13. The Defendants have responded by fully defending these claims. The issues which arise are:-
(a) whether the Defendants have been using the estate in breach of a planning condition;
(b) whether there has been a material change of use by way of intensification;
(c) whether the “Dell” use requires planning permission;
(d) whether an Order can be made in respect of (a) or (b) in the circumstance where the breach has allegedly been continuing for more than five years;
(e) should the Defendants be ordered to re-instate the gate pier?;
(f) are the Defendants in breach of a covenant on their title precluding use of the estate which would be a nuisance;
(g) do three of the Plaintiffs have locus standi to bring the action in nuisance?; and
(h) are the Defendants guilty of nuisance?
14. Before summarising the evidence of the main participants which throws up considerable factual controversy between the parties I propose first to synopsise the uncontroverted evidence of the planning expert from Dun Laoghaire Rathdown County Council; next to synopsise the evidence of the opposing acoustic experts where opinions did not significantly diverge, and thirdly to summarise the evidence of two relatively independent witnesses, one called by each side, which deals with the pattern of activity on the estate in the later 80s and early 90s. In this way an objective setting can be established for the evidence of the main protagonists.
EVIDENCE OF THE WITNESSES
THE PLANNING CONTEXT
15. Colm Magill was called by the Plaintiff. He is a Planning Officer with Dun Laoghaire Rathdown County Council. He said the current Development Plan was introduced in July 1998 and that if the site were a “green field site” today, the present industrial operation would be refused because (a) it would be contrary to zoning the object of which is to protect and improve residential amenity, (b) it was overlooking adjoining residences on all three sides, (c) it would impact on traffic volume and intensity and (d) it would involve reversing in or out of the industrial estate on to a busy national route which is the main artery taking traffic from Dun Laoghaire Port to the west. In such a planning application he would normally require sufficient space to enable all accessing vehicles to turn on site. He said there was no number of articulated vehicles for which he would grant planning permission to access this industrial estate.
16. He said it was absolutely unacceptable in planning terms that vehicles would reverse out on to Foster Avenue. There are geometrical calculations and designs for different vehicles turning and it was simply a question of whether it was physically possible for accessing vehicles to turn once they got inside the estate.
17. Dealing with the specific user for Dell computers (involving some element of distribution in addition to the warehouse use) he said that it was a difficult question but that he thought the use would probably require planning permission on the basis that it could not be described either as wholesale warehouse or repository (each of which was exempted development under the 1944 regulations). It was more properly described as a distribution use which he thought probably required planning permission because it was not listed as an exempted development. The existing industrial use was a non-conforming use and the development plan policy in regard to these was to help or tolerate them provided this did not involve serious injury to the residential amenities. The planning history was confused but he thought it was almost certain that there was some form of planning permission for both the industrial use under the previous planning code and also for the houses adjoining. They were mutually inimical uses both probably established by planning permission.
ACOUSTIC EVIDENCE
18. Expert acoustic evidence was given by William Donnelly for the Plaintiffs and Tom Milligan for the Defendants.
19. Mr Donnelly is an Environmental Health Officer with Dun Laoghaire Rathdown County Council and said he received a complaint in 1993 and did a full analysis which produced a background reading of 42 decibels for a one hour sample.
20. In December, 1996 he got a complaint from Ronan Molumby and installed noise monitoring equipment which could be activated by the Molumbys. He analysed two portions of the reading which, when extrapolated produced a level of 54 decibels over an hour. The guidelines indicate that the enforcing authority should consider bringing proceedings in respect of noises which exceeded the background level by more than 10 decibels. In the present instance the 54 decibels exceeded the background reading established in September 1993 by 12 decibels. He said that Ronan Molumby would be entitled to have the reading taken from anywhere in his back garden and he acknowledged that the background sound level was considerably higher in the front of the house adjoining the heavily trafficked Foster Avenue. There may have been a change in the background noise levels between 1993 and 1997 but he thought this would not be significant. He noted that Mr Tom Milligan, for the Defendants, took readings in the land adjoining but could only produce calculated measurements for the sound in the Molumbys’ back garden as distinct from his own measurements which were actual readings. He thought the Molumbys’ complaints about noise were justified and said that it was “quite difficult” to increase a background noise level by 10 decibels. The noise was significant and was on the margin for a prosecution.
21. Tom Milligan is an acoustic engineer and gave evidence for the Defendants. He tried to build up a picture for a nine hour period which he thought was preferable to picking a single hour which might be a “noisy one”. In the present case he thought it was not appropriate to add a “penalty” of an extra five decibels to the actual noise in the Molumbys’ back garden, because the tonal element in the noise which would justify this was also present in the background noise created by traffic and vehicular movement. He did recommend an acoustic screen between the industrial estate lane and the Molumbys’ back garden which would need to be a minimum of 3 metres high and higher if the upstairs bedrooms were to be protected from noise during daytime. He agreed under cross-examination that the back garden would have a lower background noise level because the house acted as an acoustic screen between it and the source of the noise out on Foster Avenue. It might reduce the background level by 8 – 10 decibels to allow for this. If in fact he made this adjustment (as distinct from the smaller adjustment in his own calculation) there was not very much difference between his estimated background noise level for the Molumbys’ back garden and the actual reading taken by William Donnelly at 42 decibels.
EVIDENCE OF ACTIVITIES ON SITE PRIOR TO JULY 1994
TONY TYNAN AND MICHAEL COX
22. Evidence was given by Tony Tynan for the Plaintiffs, who was the predecessor of the Molumbys and who lived in their house between 1987 and July 1994. Evidence was also given by Michael Cox for the Defendants who was the distribution manager for Bryan S Ryan, later Cantec which occupied unit 1 (hereinafter ‘Cantec’) from approximately 1986 until he left in 1991. Between these two witnesses, one on each side of the case, I derived a fair impression of the activities thereon prior to July, 1994.
23. From this evidence it is clear that the hours when the estate was normally open to the public were 8.30 a.m. to 5.30 p.m.. There were exceptions but not before 8.00 a.m. with occasional customers calling as late as 7.00 p.m..
24. It is also clear that a very large furniture truck called to Chervil approximately once every ten days, that a similar truck serviced Cantec four or five times per month and that it was unloaded out on Foster Avenue 50% of the times and on the lane for the remainder. There were two or three heavy goods vehicles calling to Cantec per week, with perhaps as many as 17 or 20 deliveries, mostly in Transit type vans, on a busy day to Cantec. The picture therefore was of seven or eight large articulated type vehicles per month, two or three heavy goods vehicles per week and up to twenty deliveries in smaller vehicles per day.
25. The pattern was that the hours if anything were extended as time went on. It was noteworthy that Mr Cox said that when he came to work on Saturday he approached “gingerly” because he knew he should not be there. He accepted that the laneway was unsuitable for vehicles, because there was no turning circle and it was tight to operate. He said the earliest a large articulated truck would call would be 11.00 a.m. and the latest would be 4.00 or 5.00 p.m.. Mr Cox disagreed with Dr Kirrane when the latter said that relations were good; Mr Cox was put in charge partly as a trouble-shooter between his company and the neighbours and his company eventually left in 1991 partly because they outgrew the site (their business was expanding at a rate of 20% compounded per annum) and partly because of the complaints from the neighbours.
26. It must be borne in mind that this evidence does not include the entire commercial traffic accessing the estate, but only that servicing Cantec and Chervil. Due allowance will be made for this at the appropriate point in this judgment.
PLAINTIFFS’ EVIDENCE
RONAN MOLUMBY
27. Ronan Molumby is a solicitor. His Affidavit states that he and his wife came to reside at number 28 Foster Avenue in July 1994; he had been informed that the adjoining estate was a small low-use warehouse type development; he says that for the first two years there was no nuisance or annoyance but that changed in July 1996 when the entrance was materially widened. Thereafter much bigger lorries of a different type accessed the estate, there was a great intensification of use, there was much greater noise from refurbishment work; he complains of storage of trucks, an increase not only in size but number of trucks and also in speed and revving. He states that previously the vehicles were restricted merely to vans and similar type vehicles but “… that it is not uncommon now for a large number of articulated lorries, with eighteen wheels, to gain access to the site and such traffic often takes as long as 40 minutes to gain access to the site and this can occur several times during the day.” He refers to unloading taking several hours, complains about a fuel tank used for refuelling trucks and about the excessive noise and refers to a report of a noise expert. He complains in particular about Shreddit lorries coming early and to the fact that the operators of the estate had no regard to the surrounding residential amenities. He says the owners in fact threatened to extend their activities if there were further complaints and in fact did so with movements of lorries on Saturday and Sunday.
28. Mr Molumby was cross-examined at the hearing. He denied that his Affidavits were exaggerated, pointed to child-minding at his house by his wife in the early years which activity was not affected by any intrusive noise and complained about the noise and nuisance of vehicles after 1996. He said he stayed away in the evenings because it caused tension between himself and his wife and said that trucks would often come into the estate at 10.00 p.m., 11.00 p.m. or 1.00 a.m.. Since March 1998, by contrast, all has been quiet in the evening and he can come home, see his children and go running afterwards. In his earlier Affidavit he had exhibited photographs of ivy leaves growing on the wall of the access lane covered with a black film which he said was carbon from exhaust fumes. He accepted however, that if an expert mycologist, on behalf of the defendant, says that it was fungus, he could not contradict that. He maintained there was carbon residue on the window-sill of his house.
29. He referred to a meeting between John Hefferon and himself in the autumn of 1996 when they tried to settle their differences. John Hefferon offered to buy a portion of his garden and in exasperation he said he might as well buy the whole house. He denied that there was an agreement whereby the trucks would be parked at the end of the lane, a waste skip would be collected in mid-week rather than Saturdays, oil would be delivered mid-week rather than Saturdays and the truck drivers would be told to build up the air pressure in their brakes slowly rather than rev them up. There was an incident, supported by documentation, in September, 1996 when he appears initially to have undertaken to act as Solicitor for the first three Defendants in their dispute with the fifth and sixth named Defendants and in that context he advised those Defendants to authorise him to take up title deeds; subsequently he thought better of it and told them that he could not act. This episode is common case and has significance only to show that there was a significant degree of co-operation between these parties at least as late as September, 1996.
30. He and his wife had kept diaries between October 1996 up to the end of 1997 recording the activities on the adjoining estate and these were produced in Court. He said that no articulated lorry got through the entrance gates up to 1996 and that the first one he saw was a “yellow giraffe” lorry after the gate came down (which was the 7th June, 1996). He agreed that most of his complaints in the diary were to do with the Shreddit lorries, which he objected to both because of the fumes and the visual height. He also objected to a skip kept in the estate (unless closed), and fumes from the fuel tank. To the suggestion in cross-examination that the volume of business on the estate was static since 1994 he answered “if so, the number of vehicles acquired will not reflect that”. The first articulated vehicle through the re-established entrance gate was in the week before he gave evidence. He thought that it was absurd to say that one or two articulated vehicles came in per week. Between the time the gate pillar was knocked (7th June, 1996) and the date of the interlocutory order (31st July 1997) he said there was an increase in large vans, articulated vehicles and traffic. He accepted that he had given instructions to Mr Tom Phillips, a planning expert, as to how the latter was to describe the effect of the Court’s interlocutory order to An Bord Pleanála in the context of a planning appeal by the defendant for permission to widen the entrance gate; the point here being made was that this submission to An Bord Pleanála misreported that the Court had made definitive findings in favour of the Plaintiffs when such was not the case.
31. He was under the impression that the number of smaller vehicles had increased since the interlocutory order in July 1997 but the number of larger vehicles had decreased. There was an improvement in that the noisy waste compactor had been removed, a quieter fork-lift truck had been introduced and at night since March 1998 the place was quiet and this was a tremendous relief.
32. On a number of specific matters I found this witness inaccurate. Contrary to what he stated I accept from other evidence, to which I will refer later, that articulated vehicles did access the estate prior to the 7th June, 1996 and after the 31st July, 1997 (when the widened gate was re-instated). Mr Molumby’s challenge to the effect that the number of vehicles acquired by the Defendants would not reflect their suggestion that the volume of business on the estate remained static since 1994 was not borne out when dealt with subsequently by the Defendants; I think his input into the submission made by Mr Phillips to An Bord Pleanála was quite extraordinary for a practising Solicitor (although I am satisfied it did not amount to contempt of Court as suggested by the Defendants) and I consider his Affidavit to have exaggerated the picture he was painting, in particular, in the sentence referring to articulated lorries cited above.
33. On the other hand, the complaints made in his Affidavit about cutting and welding metal boxes on site, were supported, at least to some extent, by Mr Tom Hefferon, as was in general his evidence in relation to Shreddit trucks.
34. I consider this witness was prone to exaggeration and carelessness and of assistance to me in forming general conclusions primarily when supported by other acceptable evidence.
ENDA MOLUMBY
35. In her Affidavit Enda Molumby gave a similar account to that of her husband but emphasised that she had two small children in the first two years after they moved into the house in July 1994, but they were not disturbed by activity on the adjoining estate in those years. She became aware of increased levels of activity in the summer of 1996 and specifically referred to saws and the cutting of wood and steel which began early in the morning. They had a high pitched, intrusive noise and when she approached John Hefferon she was reassured. Despite this the noise continued, the use of the estate increased in intensity and traffic increased both in size, scale and extent of lorries. She said that “I have often timed the length which these huge articulated lorries require to gain access and it can take upwards of 40 minutes”. All this created a major impact on her dwelling.
36. She says it is often necessary for other traffic in the laneway to be removed to allow a large lorry enter, and that the diesel engines are often left running during unloading. Parking can occur as late as 9.30 at night or as early as 6.30 in the morning. Lorry parking can occur immediately under her children’s bedroom window which overlooks the lane and their back garden is virtually unused because it runs along parallel to the lane servicing the industrial units. She made particular complaint about the Shreddit trucks, the industrial skip and her difficulty in getting out on to the road when a large vehicle was attempting to access the industrial estate thereby blocking her view. She says that she has been intimidated by the Defendants when she objected and refers to a huge level of stress and says that she will have no option but to sell her house if the activities continue.
37. In oral evidence she said that during the summers of 1994, 1995 and 1996 she had up to three children in addition to her own whom she minded in the afternoon. She had no problem in doing this or in running an outdoor playschool for four or five weeks each summer. After the pillar was knocked in June 1996 the big trucks came but she had not noticed them before. This brought fumes, noise and vibrations. A third child was born to her in February 1997. Since the contempt order (July 1998) there was a huge difference; they were able to sleep until 9.00 a.m., her husband could come home early from work and it was peaceful after 5.30 p.m.. She thought that the number of Inter-Link Express trucks had increased to almost daily, (in this she was subsequently proved correct) and explained that her reference to manufacturing in her Affidavit was to the wood and metal cutting subsequently acknowledged by Tom Hefferon. She said she did not complain to the Defendants about the Shreddit trucks leaving that to others, but she was concerned particularly about the noise of the compactor and the Shreddit trucks.
DOMINIQUE CAREY
38. She and her husband moved to number 30 in mid-December, 1991. It was a very quiet place prior to 1996. Before then a couple of long trucks used to call particularly to the furniture company (Chervil). She said that after 1996 they could be as late as 10.00 p.m. and as early as 4.00 or 5.00 a.m. in the morning. She complained to the gardai who told her to take pictures and make videos. She refers to one specific incident when a “McGimpsey” truck visited the site on the 20th October 1998. She said there were six or seven people there – or perhaps five or six. Ronan Molumby had said there were eight people there on that occasion. Robin Knox (a witness for the Defendants) had put his camera in her face aggressively on that occasion. In her Affidavit she had said that the whole character of the estate had changed in 1996, and referred in particular to late night and early morning movement of lorries, blocking of traffic on Foster Avenue, the noisy skip, the oil tank and she also said that she would have to sell her house if the activity continued.
DR JAMES KIRRANE
39. In his Affidavit Dr Kirrane says he purchased number 24 Foster Avenue in or about August, 1973. There were complaints in the 1980s and the 1990s but they were dealt with in a courteous and co-operative manner. There has been an intensification of noise since 1992 and especially in the summer of 1996 when it intensified far beyond anything previously experienced. Since the demolition of the entrance there was a much greater volume of traffic, much larger trucks using the entrance, and taking long periods to reverse into the site and obstructing traffic. He complained that his garage (located close to the estate entrance) was generally blocked by trucks or cars belonging to the Defendants, and he complained of a sneering, uncooperative attitude when he made complaints. He referred to insolent disrespect and disdain and he and his wife being intimidated. He says the hours of operation had increased dramatically on the site since the early 1990s as had the noise levels. He referred to the saw, dump trucks and compacting of garbage and the “Shreddit” trucks leaving before 7.00 a.m. on many mornings. He also referred to a title issue relating to a right of way which is not being dealt with in this judgment.
40. In oral evidence he said that he had good relations with the earlier occupants of the estate but complained about obstruction of his gate and one incident in 1992 around 11.00 p.m. when he heard a jack-hammer noise in the unit on the far side of a party wall which his house shared with Bay 1 of the estate. He called in to complain but was told by Tom Hefferon that he was unable to stop it because a concrete floor was being poured. Subsequently Tom Hefferon in evidence apologised to Dr Kirrane for reacting in the wrong way on this occasion. He referred to an incident on the 10th December 1996 when the driver of a Hiace van with the logo NSS fixated him menacingly and behaved in a way that frightened him and gave him a chilling experience. He called the gardai who arrived within a quarter of an hour and the van was driven away as was a Shreddit truck parked in the UCD gates opposite. In general he made several complaints averaging one a month.
41. In the early years the opening hours were from 9.00 a.m. to 5.00 p.m., the gate was padlocked and he was given a key because he had parking privileges in the lane.
42. At the end of his garden adjoining the entrance lane to the estate there was a small building described as a granny flat which had been used over the years, first for a gardener, then for students and his own children and most recently for Robin Knox for about one and a half years during the period 1996 and 1997. At present it was empty.
43. The opening hours changed dramatically when NSS became the new owners of the estate in June or July 1996. It then became a seven day operation and he saw big trucks which he had not seen prior to that. Dr James Kirrane on cross-examination said that the Plaintiffs could help by writing letters to their vehicle operators similar to those which had been written by Bryan S Ryan several years ago and also by undertaking not to block his entrance. He wished to be able to drive forward in and out without reversing on to the main road in the location opposite his garage. The “no parking” signs on this area were there for some 20 years or more and in fact the dye for painting those signs was given to him when he bought the house. If the Local Authority were objecting to signs on the road he would be prepared to consider a notice on his own garage door but he would prefer it on the apron in front of his garage.
ORIANA SHEA
44. A traffic count was conducted by Miss Oriana Shea on the five working days commencing Monday 19th October, 1998, a fellow observer filling in for the Wednesday. She presented a table of her findings setting out the time, the type of vehicle, the company, the time it went in and the time it came out. This establishes an average of 160 movements (including in and out) for each of the four days; there were 40 references to trucks, 9 to large trucks, 2 to skip lorries and 2 to articulated vehicles in the four days. The Inter-Link Express appeared every day except Thursday, and there were a number of Shreddit trucks in and out on a regular basis. She was asked (without prior notice of the question) where she would place the noise on a scale of “quiet, moderately noisy, very noisy and extremely noisy” and said between moderately and very noisy, being moderately noisy when trucks were not actually coming and going and very noisy when they were. Insofar as the evidence of Orianna Shea goes it would appear that on average for each of the four days of Ms Shea’s survey there were 10 truck movements (5 in and 5 out) 9 large truck movements, and two each for a skip lorry and an artic; that is apparently 5 trucks, 5 large trucks, one skip and one artic per day all in the context of a total average of 160 movements each day.
45. She referred to a particular incident when an artic arrived and said five gentlemen came out of the industrial estate and directed it for 6 or 7 minutes. That was on Tuesday 20th at 13.39. Amongst these were Robin Knox (with a clip-board) Paul Kearns (an employee of Chervil), the lorry’s helper and two others. This incident was contradicted by the Defendants for whom Paul Kearns (son of the first defendant) gave evidence. He said Mr Knox, (who was not involved in directing the truck) was present in addition to himself, the driver’s assistant, and Mrs Carey who was photographing and no-one else. Mr Robin Knox also gave evidence on this incident saying he was there taking photographs and he referred to the fact that Ronan Molumby said he believed there were eight people and Mrs Carey said there were six or seven. Oriana Shea had said there were five people and a driver. Mr Knox said that in fact there was the driver, the helper on the road and Paul Kearns. In addition Mrs Carey was on the footpath, and he himself was there and no-one else. It was totally unlikely, he said, that there would have been others whom he did not see present because he went out specifically to observe and photograph the incident. He timed it with a stopwatch and it lasted three minutes and 10 seconds until the traffic commenced in both directions. The truck involved (the McGimpsey truck) was 52 feet long overall.
46. On this particular incident I accept the evidence of the Defendants which is supported, to an extent, by the photographs. I refer to it in some detail to explain why I have felt it necessary to treat the evidence of Ronan Molumby, and to a lesser extent, Dominique Carey, with a measure of caution.
SERGEANT GALLAGHER
47. Sergeant Gallagher from Blackrock Garda Station gave evidence that he is the traffic sergeant with responsibility for traffic flow on Foster Avenue. He is not aware of any traffic flow problems at this location and has been in Blackrock since 1989. If there were significant delays on Foster Avenue it would have come to his attention. All complaints are recorded in the computer system and whilst he has not checked the computer register he is satisfied that there were no complaints because they would come to his attention even if he were off duty at the time.
SITE VISIT
48. I visited the site on the afternoon of Wednesday 11th November in the company of legal and other representatives of both sides. It had been arranged that an articulated vehicle would visit and a number of other smaller trucks. The articulated vehicle was reversed in in less than a minute by an admittedly good driver, and I experienced for myself the impact this maneouvre had on traffic on Foster Avenue. I also experienced the noise of its running engine in the Molumby’s garden immediately over the wall next door. I visited the houses of each of the Plaintiffs and saw over the industrial estate.
49. On the following day Colm Carey gave evidence and said that the artic which had visited the previous day was lower than the usual one and he also commented that there would usually be some vehicle parked outside the entrance gate which would have made access more difficult.
DEFENDANTS’ EVIDENCE
KEVIN DALY
50. I heard evidence from Kevin Daly of Chervil who is the managing director of that company which occupies bays 7 and 8. The company commenced business in 1980 and he has been there since 1984. They have four full time employees and one company vehicle – a white van – which is quite large. The peak period of trading for his company was from 1988 to 1991 but they have continued since 1992 at a level approximately 30% lower than their peak. Between 1989 and 1991 his hours were 8.00 a.m. to 5.30 p.m. and he himself worked occasionally on Saturdays. The same hours applied between 1994 and June 1996 but he tended to work longer hours in the evening in that period, up to 8.00 p.m. or 9.30 p.m.. He worked an average of 6 hours over the weekend on Saturdays and Sundays. The same hours applied after the 7th June, 1996 (when the pier was knocked) and the 31st July, 1997 (when the temporary structure replaced it).
51. He did his own analysis of vehicles which came and went to his company between 1995 and 1997. Since 1992 there was an average of one artic every 10½ days. Both before and after the gates were widened in June 1996 the artics came to the door of the warehouse. This continued until 31st July, 1997 when the narrow gate was re-erected but since then there has been a change, not because the artics could not physically fit but, it became clear, because the drivers objected to being videoed. He had a handful of complaints over the years from Dr and Mrs Kirrane relating to obstruction of their entrance. The present arrangement on the estate is that they share a skip and it is moved when it is full, probably once a week. He was aware of other artics coming to the estate prior to June, 1996 and he would describe the Defendants operation as a low key one which is not noisy. Any vehicle can gain access and the vast majority of the artics which visit his premises are of the very large variety. He accepted that one and possibly a second of two artics which were shown on a video were probably visiting his premises.
JOHN HEFFERON
52. John Hefferon, (brother of the third defendant) gave evidence that he has now sold his interest in the defendant companies but between late October, 1989 and the end of 1996 he was involved and had the most contact with the neighbours. He was friendly with Ronan Molumby, and dealt with occasional difficulties. There was a complaint about an electrical saw running; it was cutting timber chipboard shelves. He dealt with that and also when it re-occurred throughout 1996. He came to the conclusion that Mrs Molumby’s ear had become particularly attuned to this noise. He thought the complaints were exaggerated and they referred to noise running for hours when actually the saw might be running for 15 minutes. He had an interest in classic cars which he shared with Ronan Molumby and they were friendly. Ronan Molumby agreed to act as his Solicitor in his dispute with the Kirranes but subsequently decided not to do that.
53. He met Ronan Molumby on the 9th October, 1996 to deal with a variety of difficulties concerning the skip, the oil tank and the Shreddit trucks, and he followed up on this. He never made a promise but had an intention to solve these problems. He agreed that he might have said something like “it will be a quiet document exchange; you will love it” . After he left in December 1996 he had an “off the record” meeting with Ronan Molumby. Shelving was going on in the units since 1989 throughout 1991 and all the way through to 1996. He started the business in 1989, there was a good take-up and he wanted to make the bulk of it document storage. He said that in the early days Canon were famous for arguments with the neighbours and causing bottle-necks at the top of the lane. They also parked a number of skips near the buildings which was a fire hazard. He had good relations with the Molumbys throughout. He did his best to deal with complaints but his efforts were not necessarily always good enough. He might have said there would be no more parking of Shreddit lorries once they moved to Camden Street. He might have said it would be a quiet document storage facility; this was merely an expression of intent rather than a promise. He thought the erection of a wall between the estate and the Molumbys’ house was reasonable if it could be done at a reasonable cost.
54. He said the first Shreddit truck came in 1992, the second in 1994 and the third in 1996. They were kept in the Glenville Estate overnight and there were no complaints about parking.
ROBIN KNOX
55. Robin Knox gave evidence that he is qualified with a building related degree. He lived in the gate lodge for about 18 months around mid-1997. He presented a scale model of the entrance to the estate, the adjoining gate lodge and portion of the Kirranes’ garage with the pavement and road frontage. The area between the kerb and the Kirranes’ garage is owned by the County Council.
56. He said that when the roadworks were being done involving raising the carriageway he saw a problem for accessing trucks in that they would tilt on the resulting downslope effectively making them wider so that they would have more difficulty getting through the already narrow gate. The Defendants called a meeting with the resident local authority engineer, Paul Dolan, who agreed there was a problem and the only solution appeared to be the removal of the gate pier which occurred on the 7th June, 1996. This was substantiated in evidence by Paul Dolan. Robin Knox thought all involved namely Mr Dolan, Michael Kearns and himself understood that there was a problem of a long term nature and that the pier would have to be replaced in a different position. This was not explicitly acknowledged, but that was his impression. Applications were made for planning permission to reinstate the gate pier so as to create a wider entrance. He was not involved in the planning application but was involved in the appeal. It was refused and there is still a problem.
57. The Defendants have been running closed circuit television (CCTV) since March 1998 to record vehicle movements. On the 7th May, 1998 an artic entered with dimensions 2.5 metres wide, 3.6 metres high and length of approximately 50 feet. Another entered on the 27th July, 1998 with overall length of some 46 to 50 feet and the same height of 3.6 metres. The standard width of all these artics is 2.5 metres. He gave a list of several other vehicles the longest of which was 52 feet. He thought the level of vehicle movement recorded in Ms Shea’s survey was less than the level of activity present in 1994 and 1995 because in those days he found it more difficult than subsequently to park in the lane due to traffic. He was present on the estate on average three days a week for more than half his day. Artics have been coming since he came to the estate in 1996.
58. The opening hours were 8.30 to 5.30 with staff coming at 8.00 and usually going at 6.00 p.m.. He worked outside those hours once having made a special request. He felt that trucks had been damaging the gate piers for a number of years, he admitted he had a dispute with the Kirranes about unpaid rent for their gate lodge and accepted that it was increasingly difficult for artics to gain access. He had done a survey of the first weeks in March, April, May and June of 1998 covering 13 days excluding weekends. This showed that there were 27 heavy goods vehicle entries averaging two a day: and 49 box trucks averaging between three and four a day. He claimed that Ms Shea’s survey showed less movement than existed in 1990.
HUBERT FULLER
59. Evidence was given by Hubert Fuller BSc a Mycologist, who said that the black substance on the ivy leaves taken from the walls some five or six metres inside the entrance of the estate was a fungus in the sooty mould category and not black carbon residue. He was not in a position to say if the mould was diminishing as he did not know whether it had been well established.
TOM HEFFERON
60. Tom Hefferon gave evidence that he was joint owner with Michael Kearns of the freehold interest in the estate. He is a director of the fourth respondents who have a 35 year lease over all bays other than the two occupied by Chervil. They have gone into occupation in different stages between September, 1989 and June, 1991.
61. The normal opening hours in 1988 were 8.30 to 5.30 p.m. but people came between 8.00 a.m. and 6.00 p.m.. Administrative staff and such could work as late as 9.00 p.m..
62. The Shreddit trucks were acquired in late 1991, 1994 and 1996 and were parked in the laneway across from the Molumbys’ house. They were based in the Glenville Estate but by 1996 they were competing with NSS for space and were finally moved but not before the 14th February, 1997. When Ronan Molumby complained, they parked the Shreddit trucks at the end of the laneway 70 yards from his house. An analysis showed a number of early starts (before 7.00 a.m.) and late finishes (after 8.00 p.m.) but most of these would have not been from the Glenville Estate as the drivers took the trucks home before an early start. No shredding has occurred on site since Mr Donnelly from the Environmental Protection Agency said it was a problem in 1993.
63. He said they parked a Mitsubishi Cantor van (somewhat larger than a Hiace) overnight but it did not need to move between 6.00 p.m. and 8.00 a.m.. If a customer needed access to a box or file, he or his manager could get it and there would be no need for the customer to be on the premises. He denied that the volume of traffic increased hugely after the gate pier came down on the 7th June, 1996. There was a steady increase in business over the years since 1989 and towards the end of 1995 they had reached capacity in Foster Avenue and were looking for additional premises. The financial graph of the business as prepared by their Accountant showed a flat line over the years 1994 to 1998. There was not a huge increase in heavy goods vehicles after June 1996.
64. One cannot influence the size of vehicles delivering as the transport companies operate a “groupage” scheme, which means that a large artic may call to deliver a small load. They get an artic once a month or once every five weeks. There are three deliveries a week, each with three pallets, to the Dell computer storage which is actually occupied by a Mr Peter Harrison. He considered the Shreddit service an adjunct to his business. He accepted that there was sawing which was causing Mrs Molumby a problem and they did everything to alleviate that in 1995 and 1996. They changed their sheet-wood supplier to a supplier who pre-cut the wood for shelving at some extra cost. He believed they made an honest effort to meet all complaints including unreasonable ones such as Ronan Molumby’s request on a Saturday morning that there would be no hoovering. He would make the driver of a truck stop his engine running or turn off a radio and he himself objected to such thoughtlessness. He would not be able to stop every instance. Regarding dust and fumes, he thought that the 10 people in his own offices would object if they were a problem.
65. He never had a complaint from the gardai about parking or traffic or congestion on Foster Avenue. He acknowledged that Dr Kirrane had a genuine complaint late one evening at the end of 1991 and he apologised for reacting wrongly on that occasion. The mezzanine floor shelving requires sawing of the shelving to fit the sloping roof and this has been ongoing up to 1996. Most of the material in the skip is inorganic and it is collected once a fortnight. There has been no change in the size or kind of trucks visiting since June 1996: he could accept a 10% or possibly a 15% increase in traffic. He has never seen an artic take 40 minutes to enter and he would not tolerate this, it would be too much trouble. When he moved in he did not remove the signs specifying opening hours at 8.30 a.m. to 5.30 p.m.. If a Court Order is made he would require 30 minutes grace on either side to ensure that he would not be in breach of the Order. He claimed that any Order should allow employees of the Estate to park their own cars therein on arriving for work.
66. The Shreddit business grew from the time it commenced in January, 1992. The first truck commenced that month, a second in 1994, a van in November, 1994, a third truck in November, 1996, a van in March, 1997 and a fourth truck in 1997 and a van in January, 1998. The trucks were parked in the Estate until after the 14th February, 1997. At the interlocutory motion they did claim a right to park the Shreddit trucks at the Estate to operate the compactor and the forklift trucks. If the Plaintiffs had been agreeable to an overall settlement they would have agreed to remove the trucks but would not do it outside the context of an overall settlement. The same would have applied to the removal of the skip. He said he would not be prepared to reinstate the gate to its original position, and he did not think An Bord Pleanála had all the facts. He claimed that he was told by the Local Authority not to rebuild the gate (when the correspondence was checked this did not appear to be the case.) He said that the Order that the Plaintiffs were seeking excluding all vehicles higher than a Hiace van would exclude virtually all the larger trucks (shown on the photographs) now accessing the Estate. He thought it would be reasonable that trucks would be allowed to park at night provided they did not rev their engines or unload or move at all between specified hours. He would agree to cover the skip and to erect speed limit signs and signs directing lorry drivers to switch off their engines and he would also agree not to obstruct the side entrance to Dr Kirrane’s garden. The company does not have a premises in the docks. Regarding size of vehicle, it seems that the larger vehicles are linked to the non-document storage side of the business.
JASON SHEEHY
67. Jason Sheehy gave evidence that he is a Chartered Accountant from Simpson Xavier, Accountants. He looked at the Defendant companies’ performance between 1994 and 1998 with a view to testing the claim that there had been an intensification of activity on the site. At the end of that period the document storage stood at 63% of the vacant rooms, and the absolute level of turnover in value terms was relatively stable in relation to Foster Avenue (an increase of £3,000 on £415,000 between 1996 and 1997). However he agreed that if the Shreddit trucks had been located in Foster Avenue (contrary to what he indicated in his report) it might be appropriate to include those figures, and this would give a different picture. He checked whether there was a price change which might imply greater activity notwithstanding the flat level of turnover but there was no material alteration. The overall increase in the business between 1994 (approximately £½ million) and 1998 (some £1.2 million) was accounted for by increases referable to the Camden Row and Shreddit (off-site) earnings. The increase in the Shreddit business itself was some 300% between 1994 and 1997. The employees increased 100% between June 1996 and June 1997 and if the business documentation storage was included in the document storage this share now stood at 81% of the rooms occupied.
ISSUES:-
PLANNING ISSUES :-
(a) Are the defendants in breach of a planning condition?
68. The Plaintiffs assert that the Defendants are in breach of a planning condition which appears in an indenture dated the 11th May 1959 and made between Maura Ralph as owner of a rectangular plot in the estate comprising 152 feet by 40 feet on the one hand, and on the other, Dublin County Council (as planning authority). This indenture recites that permission was given to complete a partly completed store on both “the said lands” (that is the plot referred to) only because allowing it to be completed would render the land less objectionable in appearance. The permission was granted on condition that Maura Ralph and her successors “may use the said land and the store thereon for the storage and packaging alone of materials, goods or manufactured products of a nature not to be a nuisance or annoyance in the residential area of Mount Merrion ” and Maura Ralph convenanted that she “… will not cause any nuisance or annoyance to neighbouring owners or occupiers or the public and will at all times store, bring to store and withdraw from store the materials, goods and products in a quiet and orderly manner and without commotion noise or disturbance unsuitable to a residential district”.
69. As I read that document it relates only to the store built on the plot comprising 152 feet by 40 feet more or less recited in the document itself. I do not think this specifically refers to the entire estate. I do not think it would be fair to the Defendants to apportion part of the traffic specifically to the store built on the plot in question as no effort was made in the evidence so to do. That being the case, there is no specific evidence of breach of this condition.
70. A further point in this context is made by the Plaintiffs that a planning permission dated the 15th March 1957 for the “enclosure of one bay of prohibited structure at Foster Avenue for Dr J B Ralph” applies to this estate and is subject to the condition that the developer give a written undertaking to use the structure only for the storage of his own material and not for any other commercial or industrial purpose.
71. Again the reference to one bay seems to confine the application of the permission to only one bay and for the same reason I do not think it would be fair to the Defendants to fix them with a breach of this condition where the evidence has not established which bay was authorised to be enclosed by the 1957 permission. Mr Magill, the planning officer, agreed that the planning history was confused and difficult to construe although he did conclude that the estate probably did enjoy a planning permission under the previous planning code as do the houses occupied by the Plaintiffs.
72. I consider that the Plaintiffs have not discharged the onus of proof upon them to satisfy me that the Defendants are in breach of a condition attaching to a relevant planning permission.
(b) Has there been an intensification of use?
73. I approach this question in the first instance by considering the evidence given by Messry Cox Tynan & Daly as it bears on the pattern of vehicle movements in the later 1980s and early 1990s on the one hand, and on the other the evidence given by Miss Shea and Mr Knox who made traffic surveys for portions of the year 1998.
74. Obviously the evidence given by the former three witnesses must be treated for what it was; namely, a casting back of their minds over several years to give their best impression of the numbers of vehicles involved and without the benefit of anything like a survey. Furthermore that evidence was partial in that it did not purport to deal with the entire picture but only with traffic visiting either the Bryan S Ryan/Cantec operation or Chervil, Mr Daly’s company. Accordingly due allowance must be made in this regard. On the other hand whilst the surveys made by the latter two witnesses were not exhaustive, they do present a more comprehensive picture. Some allowance must be made for the fact that the closed circuit television system which provided the material for Mr Knox’s survey was not always operative and did not always record vehicle movements when, for example, the camera may have been blocked by a parked vehicle nearby.
75. The pattern which emerges from the evidence of the former three witnesses is that there would have been some seven or eight articulated vehicles visiting the estate every month in the late 1980s and early 1990s. There would have been two or three heavy goods vehicles per week, or, say twelve per month and some seventeen to twenty delivery vans (on a busy day) or say four hundred per month. This would produce a weekly figure of two articulated vehicles, three heavy goods vehicles and one hundred vans. Due allowance must be made, however, for the fact that this is only a partial picture and is an impression from memory rather than the product of survey. For example, there may have been a number of private vehicles coming and going belonging to employees and the figures might be reasonably increased, in fairness to the Defendants due to the fact that they relate to part only of the overall estate.
76. On the other hand the survey carried out by Miss Shea can be treated as almost 100% accurate. She attended all day for the four days that she took the count having her meals brought to her in the room which gave a good view of the entrance to the estate. The pattern which emerges from her survey is that on a daily basis there were two vehicles (being either articulated vehicles, large vehicles or skips), five trucks and an average of 135 movements overall. This is reasonably close to the survey carried out by Mr Knox (based on the CCTV system). Miss Shea’s survey covered four days in October 1998 and Mr Knox’s, the first weeks of March, April, May and June 1998. The pattern which emerges from Mr Knox’s survey is that there were between four and nine trucks and heavy goods vehicles visiting per day (but this figure excludes light vans and hiace type vans). Again the average overall number of movements was 141 on Mr Knox’s survey which is reasonably close to the average of 135 in Miss Shea’s survey to give confidence that both are reasonably accurate and reliable. Allowing for the difference in classification it seems reasonable to conclude that in 1998 two vehicles of the category large vehicle, articulated vehicle or skip truck visit daily, five smaller trucks visit daily and there is an average of about 135 and 141 movements overall. This would give a weekly (excluding Saturdays) figure of some ten of the larger commercial vehicles, twenty five of the medium van type commercial vehicles with perhaps some 700 traffic movements to and from the estate in a five day week.
77. The evidence from Messrs Cox Tynan & Daly was that there would have been one articulated truck on average every ten days servicing Chervil. There would have been between four and five of the same servicing Bryan S Ryan/Cantec. There were some two or three heavy goods vehicles serving the estate per week with some 17 – 20 deliveries to Bryan S Ryan/Cantec on a busy day. Expressed on a monthly basis this would suggest some seven or eight articulated trucks, some twelve heavy goods vehicles and perhaps 400 deliveries per month to Bryan S Ryan/Cantec. On a weekly basis this would suggest two articulated vehicles per week, three heavy goods vehicles per week and 100 vans.
78. I emphasise that these figures are figures of impression and recollection only and if anything I would think that they should be increased in order to do justice to the Defendants. Even if they are doubled, however, they are significantly less than the weekly figures which emerge from the surveys of Miss Shea and Mr Knox.
79. I formed the distinct impression throughout the trial that it was the heavy goods vehicles which were causing the vast bulk of the annoyance and disturbance to the neighbours. Indeed the case made on behalf of the Plaintiffs is that they do not mind smaller commercial type vehicles coming and going but they wish to have the larger vehicles excluded. I accept that this is a reasonable view. The implication is that the main element in the traffic pattern which must be compared in order to judge whether there has been an intensification in planning terms is the heavy commercial vehicle element. The present pattern suggests that some 10 large trucks, articulated vehicles or skips visit every working week and some 25 other vans or trucks. On the other hand in the late 1980s or early 1990s the evidence of Messrs Cox Tynan & Daly indicates that the comparable figure would have been two articulated trucks, and three heavy goods vehicles. Even if this were doubled it is clear that there has been a considerable increase in the number of larger vehicles servicing the estate.
80. This impression is supported not only by the qualitative evidence of the majority of the witnesses who gave evidence but it is also consistent with the analysis conducted by Mr Sheehan of Simpson Xavier, Accountants on the books of account of the Defendants’ business for the years 1994 to 1997. I accept that the figures for the Shreddit business (which show a 300% increase over these years) are properly allocated to Glenville Industrial Estate because the trucks were based there for the bulk of the period under review. Looking at the objective or “hard” evidence, it is impossible to avoid the conclusion that there has been a significant increase in commercial activity generated by the estate and in particular a significant increase in the numbers of vehicles of the larger kind servicing the estate. It is possible that trucks have become larger over the years and therefore more obtrusive and more inclined to impinge on the awareness of neighbours and it seems likely that delivery firms sometimes prefer to use large trucks for carrying multiple loads so that even a small load destined for Glenville Industrial Estate will involve a large truck. This is the “groupage” system employed by delivery companies referred to by Tom Hefferon in his evidence. Whatever the precise explanation, the evidence indicates that there has been a significant increase in the number and impact of larger vehicles servicing the estate since the early 1990s.
81. I would estimate that the numbers of larger vehicles has increased by a factor of at least two and perhaps by as much as three or four times; I would consider that the medium sized vans and trucks have increased by a larger factor, probably by as much as six times.
82. The Plaintiffs have assigned this increase to the months shortly following the removal of the gate pier in June 1996. There has been controversy between the parties on this aspect. The evidence suggests that the Shreddit business was growing steadily from January 1992 until it was removed in February 1997. These trucks were clearly intrusive. The knocking of the gate pier might well have made the traffic patterns within the estate more noticeable to outside observers and of course the background at this time was that the general area was undergoing major traffic disruption because of the local authority roadworks on Foster Avenue. These and other factors would explain, perhaps, why the Plaintiffs had the impression that there was a sudden increase in size and number of large vehicles servicing the estate following the knocking of the gate pier in 1996. The plaintiff’s experience may have been to some extent distorted. I think it more probable that the increase in the larger commercial vehicles servicing the estate occurred more steadily over the years. In my view the end result is the same; there has been an intensification of use comprising an increase in the size and numbers of the heavier type of vehicles by a factor of some five or six times overall. The very largest vehicles appeared to have increased by at least twice and perhaps three or four times; the smaller vehicles (large vans and rigid trucks) by a factor of five or perhaps six. Again these are not scientifically accurate figures but in my view the evidence referred to above is sufficiently reliable to lead to the foregoing conclusions.
(c) Does this intensification of the use amount to a material change for planning purposes?
83. I accept firstly that an intensification of use can itself amount to a material change. As Mr O’Donnell submitted there would be no point in the doctrine of intensification of use if it could never amount to a material change unless it was accompanied by a change of use category. Moreover, the many Irish authorities on this point support this point of view. Secondly I consider that one must have regard to the effects in planning or environmental terms of such intensification in order to assess whether there has been a material change for planning purposes. Thirdly, in the present case I would consider that the impact of an intensification of the heavier commercial vehicles is likely to be more significant in planning terms than the impact of an intensification of smaller or private vehicles.
84. It is perfectly clear from the evidence from the Plaintiffs that the impact of the heavier vehicles servicing the estate made an enormous impression on them after June 1996. The planning authority has zoned this area residential with an objective of protecting residential amenity and treats the industrial estate as a “non conforming use” within that zoning. The development plan policy in relation to the non conforming use is that such can be facilitated only insofar as this would not interfere with the residential amenities. On the other hand one has to accept that the houses of the Plaintiffs front onto a major national route carrying traffic from Dun Laoghaire to the west. The impact of this traffic, particularly in noise terms, is apparent in the front gardens of their houses; significantly less so in the rear gardens, where the noise and other impacts from the estate are therefore more obtrusive. In this context the evidence of the acoustics experts is relevant; I conclude that the noise from the estate is significant, particularly as it occurs on a regular basis.
85. Taking account of all of the evidence my conclusion is that the intensification of use which occurred does amount to a material change of use.
(d) The Five Year Point
86. That being the case, I must now move to consider whether the Defendants are entitled to the benefit of the “five year rule” which holds that an unauthorised development which has occurred more than five years prior to the initiation of proceedings is protected from an Order under Section 27 of the Local Government (Planning and Development) Act, 1976.
87. I have come to the conclusion that there has been an intensification of use by comparing the situation as described by Mr Tony Tynan who occupied the Molumby’s house up to July 1994 and also by Mr Cox who left some years earlier in 1991. Did the intensification which I have held occurred, happen more than five years prior to February 1997 when these proceedings were issued? I do not think it did. First of all Mr Tynan gave his evidence in relation to the pattern of vehicle movements as it applied until he left in July of 1994, some 2½ years prior to the initiation of the proceedings. Secondly, whilst I accept that the Plaintiff’s evidence of a sudden increase in traffic intensity in the months following June 1996 is based, in part, on a subjective impression rather than on exclusively objective fact, I think that the probabilities are that the business expanded in such a way that the pattern of vehicles servicing the estate intensified materially within the 5 years prior to the initiation of proceedings and probably well within that period. This view is consistent with the analysis of the company accounts prepared by Mr Sheehan and in particular with the 300% growth of the Shreddit-generated profits between 1994 and 1997. The Defendants have accordingly satisfied me that, as a matter of probability, the intensification to which I have referred occurred subsequent to February 1992, and is accordingly not protected by the ‘five year rule’.
(e) The “Dell” Sub-Use
88. The point made here by the Plaintiffs is to the effect that the use of the “Dell” units (that is 2 units occupied by Mr Farrell for Dell Computers) is itself a separate planning unit with a different use to that attaching to the estate as a whole namely use as a distribution centre, that no planning permission exists for this use and that therefore this is an unauthorised use.
89. The evidence is that three times a week a load of computers is delivered to the “Dell” units, each comprising on average three pallets of computers. They are off-loaded to the front of the bay in Unit 1 and sometimes further up the estate if there is no room at unit 1. A certain amount of movement of Dell computers occurs up and down the lane of the estate. These “Dell” computers are stored in two sub-units in unit 1.
90. Are the Dell sub units a separate planning unit?
In Dublin Corporation -v- Regan Advertising Limited [1986] IR 171
91. Blayney J. had to consider whether a commercial use of a long standing advertising hoarding was a material change of use. Prior to the change to commercial repetitive advertising, the hoarding had been used to advertise on a long term basis the business taking place within the building to which the hoarding was attached. Blayney J. approached the question thus
“Is this change a material one? In my opinion it is, since it involves a portion of the premises being used for a new and separate business. In this connection it seems to me that the facade of the premises must be looked upon as a separate planning unit. In Burdle and anor -v- Secretary of State for the Environment , [1972] 1 WLR 1207) a decision of the Court of Appeal in England, Bridge J. said in the course of his judgment that:-
‘It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally’ .
In my opinion, the facade has become the site of activities, namely, the display of commercial advertisements, which amount to a separate use both physically and functionally from the remainder of the premises. And if one regards the facade as the planning unit, I think that there is no doubt as to the change in its use being a material one.”
92. It is clear that the two Dell sub units are physically separate from the remainder of the units and in my view they are used for a different purpose, namely as a distribution depot which in themselves attract three deliveries weekly, each of three pallets of computers and, subsequently, the removal of those computers in different forms of transport (probably smaller vehicles) to the end users. In my view the use of the Dell sub units is not authorised because there is no planning permission authorising the use of these sub units as a distribution centre.
93. The Defendants have raised in this context the defence that this breach of planning permission is statute barred because it has existed for more than five years prior to the commencement of these proceedings. The Dell use commenced in 1994 and clearly therefore the five year limitation cannot apply to that use.
(f) The Gate Pier Issue
94. The Plaintiffs are seeking an Order directing the Defendants to restore the gate pier at the entrance to the estate. The relevant facts are that the local authority arranged to have the gate pier knocked having first consulted with representatives of the industrial estate. Following the interlocutory application, I made an Order directing the Respondents “as soon as practicable after the making of this Order (to) erect and at all times thereafter maintain until the hearing of this action a temporary non-movable structure at the entrance to the said industrial estate so as to restrict the point of access to the said industrial estate to 3.215 metres”. This was done and that temporary structure remains in place today.
95. Subsequently an application was made by the Respondents to the planning authority and on appeal to An Bord Pleanála to reinstate the gate pier so as to widen the entrance to a point where it would be approximately one foot narrower than it had been left after the local authority’s contractor had knocked the pier in the first place.
96. This application was unsuccessful. In the course of making the application the Respondents’ representatives made the argument that due to the incline consequent upon the raising of Foster Avenue vehicles tilted thereby increasing their effective width. This justified the widening of the entrance. This argument did not impress the inspector assigned to hear the appeal and the application was refused by An Bord Pleanala on two grounds relating to zoning and traffic. The stated reason in relation to zoning included the following sentence:-
“It is considered that the proposed development which would facilitate an intensification of the use of the entrance by large commercial vehicles would, by reason of the size, noise and nuisance generated by such vehicles, seriously injure the amenities of adjacent residential property and would, therefore, be contrary to the proper planning and development of the area”.
97. The second reason relating to traffic referred in particular to the inadequacy of the site to facilitate “the on-site turning of large commercial vehicles. In the absence of such turning facilities large commercial vehicles must execute reverse turning movements in order to gain entry or exit from the site”. The proposed wider entrance was unacceptable because it would facilitate an intensification of such movements which would therefore endanger public safety by reason of traffic hazard and obstruction of other road users.
98. The concerns indicated in these reasons were elaborated on by Mr. McGill.
99. The Plaintiffs submit that the Defendants are now obliged to reinstate the gate in its original position as they have planning permission for nothing else.
100. The Applicants rely on the statement by Costello J. (as he then was) in Dublin County Council v. Tallaght Block Company [1982] ILRM 534 (at page 543) where he said:-
“If an occupier of land carries out development on it and, having subsequently accepted that the development was unauthorised and that permission in respect of it should have been obtained, applies under Section 28 of the 1963 Act for permission to retain the unauthorised structure and is refused, then he cannot be heard to argue in proceedings instituted against him under Section 27 of the 1976 Act that permission for the development was not required. He is estopped from doing so”.
101. This view of the law was unanimously upheld on appeal by the Supreme Court.
102. The effect of this statement of law appears to me to be that the Respondents cannot argue that the re-instatement of the gate pier so as to widen the entrance does not require planning permission. They do not seek to argue that in this case. Furthermore, the entrance as it now is (albeit on a temporary basis) is exactly what it was prior to the knocking of the pier. So long as that remains the position, the Plaintiffs cannot complain. They say, however, that the mere toleration by the Court of the gate width on a temporary basis may encourage future steps which would lead to a wider entrance, to which they object.
103. I do not think I should make the Order sought by the Plaintiffs under this head. I do not think the Respondents are doing anything in breach of the planning law by permitting traffic to come and go through the entrance as it now stands. They do not seek to argue that they are entitled without planning permission to widen the entrance or re-instate it otherwise than as it stood originally. They have indicated no plans so to do, but, equally, if the Respondents proceeded to dismantle the present temporary arrangement with the effect of widening the entrance (otherwise than in the context of lawfully reinstating the gate pier) they would, I think, be exposed to an immediate Court Order prohibiting the use of any widened entrance.
104. A further consideration which I must bear in mind is that the knocking of the gate pier was carried out by the local authority and would appear to be, prima facie , exempted development under Section 4 of the Local Government ( Planning and Development) Act, 1963. In the exercise of my discretion, I would refuse this particular relief sought by the Applicants.
THE TITLE COVENANT
105. The Plaintiffs claim, in addition, that the title of the Kirranes and possibly of the Plaintiffs generally, includes a covenant in their favour which now burdens the Defendants whereby the latter shall not use the industrial estate so as to cause a nuisance to the Plaintiffs.
106. The Defendants submit that this particular matter has not been pleaded. The Plaintiffs say that it has indeed been pleaded and rely on paragraph 28 of the Statement of Claim. I have carefully considered paragraph 28 and it seems to me that this paragraph refers exclusively to the planning covenant dated the 13th May, 1959 to which I have already referred and not to any other covenant.
107. Mr. Herbert S.C. on behalf of the Defendants indicated that if he were to deal with the covenant claim of the Plaintiffs as it related to the title, he would have to go into the title matter in a wider context than was relevant to the proceedings as pleaded. I am satisfied, firstly, that the title covenant point as distinct from the planning covenant point has not been pleaded. I am also satisfied that the Defendants’ submission is not merely a technical pleading point but has real substance to it. Accordingly, I hold that the Plaintiffs have not pleaded any point in relation to the covenant on title and I therefore decline to consider it.
THE NUISANCE ACTION
Locus Standi
108. The Defendants submit that Mrs Kirrane has no locus standi to bring the nuisance claim nor have the Careys. They accept that Dr. Kirrane has locus standi but the title shows that he and he alone has a legal interest. In the case of the Careys it is submitted that there is not sufficient evidence to show that they have an interest in their property. The Defendants accept that the Molumbys have established such an interest. This latter is because Ronan Molumby’s Affidavit, sworn on the 14th February, 1997, states that their dwelling house was “purchased in our joint names in or about the month of July 1994” .
109. With regard to the Careys, the position is that Dominique Carey in her Affidavit of the same date at paragraph 8 says that “the house is the only asset that we have and I say that it is likely that we will suffer a major financial loss” . This is stated in the context of her having sworn immediately beforehand that she would have no option “but to sell my house” if the nuisance continued. Her husband, Colm Carey, swore an Affidavit on the 19th March, 1997 and makes no reference to ownership or interest in the house. His wife swore a further supplemental Affidavit of the 19th March, 1997 where she alludes to “my house” . Mr. Herbert S.C. submits that this leaves the Court in a position of having to speculate as to whether Dominique Carey owns their house or whether they both own the house or whether either of them have any legal interest in it.
110. This submission relies on a distinction which appears to have developed on the law of nuisance in the United Kingdom and which is particularly articulated in Hunter and Others v. Canary Wharf Limited [1997] 2 All ER 426. A majority of the House of Lords held that in order to sue in nuisance a plaintiff had to have an interest in the land. For example, Lord Goff of Chievley (at page 436) said:-
“Subject to this exception, however, it has for many years been regarded as settled law that a person who has no right in the land cannot sue in private nuisance”.
111. On the other hand Irish law on nuisance has been authoritatively re-stated in Hanrahan and Others v. Merck Sharp and Dohme (Ireland) Limited [1988] ILRM 629. In the Supreme Court decision delivered by Henchy J. (and in particular at page 634) it is stated:-
“It is clear from the authorities on the law of nuisance that what an occupier of land is entitled to as against his neighbour is the comfortable and healthy enjoyment of the land to the degree that would be expected by an ordinary person whose requirements are objectively reasonable in all the particular circumstances. It is difficult to state the law more precisely than that”.
112. Later on at pages 635/6 he said:-
“I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions [of the Constitution] as to the personal rights and property rights of the Plaintiffs as citizens”.
113. On this particular point I accept that locus standi is established by a plaintiff who sues in nuisance if he or she is the occupier of the land. I do not think it is necessary that the plaintiff establish a legal interest over and above this.
114. In passing from this topic it is interesting to note that Lord Hoffmann who was in the majority in Hunter observed (at page 453):-
“The Courts today will readily assume that a wife has acquired a beneficial interest in the matrimonial home. If so, she will be entitled to sue for damage to that interest”.
115. I would also hold on the basis of the averments in the Affidavits to which I have referred above that even if it was necessary for the Careys to establish, as a matter of probability, that they had a legal interest in their home, that such an onus had been discharged. I take the observation of Lord Hoffmann, for example, to indicate that the Court will readily infer such an interest from relatively slight evidence. Accordingly, in my view, both the Careys and Maire Kirrane would have established that they had a legal interest in their respective homes if that were a necessary precondition to asserting a claim in nuisance.
116. Accordingly, all Plaintiffs have locus standi to bring the action in nuisance.
NUISANCE
117. I have been referred to a large number of cases, and I have considered these. However, I think that in the last analysis the statement of law which I have already cited from the judgment of Henchy J. in Hanrahan not only captures the essence of the tort in Irish law but indicates that it is difficult to state the law more precisely. This in turn shows, I think, as was submitted by Mr. Collins S.C. on behalf of the Plaintiffs, that ultimately the question of nuisance is one of impression.
118. In forming an impression on the evidence I have had regard, to all of the evidence, but in particular I note that the acoustic experts were in reasonably close agreement as between themselves, and concluded that the impact of the noise in the back garden of the Molumbys’ house was such as would give rise to a serious consideration of prosecution. This does not mean, I think, as was submitted by Counsel for the Defendants, that it was a “marginal” case. The evidence shows that an increase over background of 6 decibels, and certainly 10 decibels, is such as to give rise to an expectation of community response. It was “marginal” only in the sense that the readings indicated that the measure of a 10 decibel excess over background had been just achieved. I do not think, however, that this is a “marginal” case in the context of the ordinary law of nuisance. On the contrary, I consider that the recurring movements of the larger vehicles which occur in the lane adjoining the Plaintiffs’ residences and in particular immediately adjoining the Molumbys’ residence, breaches what the Plaintiffs and in particular the Molumbys as occupiers of their land are entitled to as against the occupiers of the industrial estate, to use the phraseology employed by Henchy J. in Hanrahan.
119. I do not think the Plaintiffs and in particular the Molumbys have been afforded “the comfortable and healthy enjoyment” of their property on the basis set out by Henchy J. in Hanrahan. In reaching this conclusion, I have had regard to all the evidence and not just the evidence of the acoustic experts. I have had regard to the evidence of Mr. McGill. I think the locality in which these events have occurred is one which, on the one hand, is zoned residential in the most recent development plan so that the policy of the planning authority is to protect the amenities of residences. On the other hand, the Plaintiffs’ houses front onto a busy national route taking traffic to the West from Dun Laoghaire Harbour. Furthermore, I accept that the probability is that the industrial estate is authorised by a permission granted under the previous planning code but this is also true of the houses occupied by the Plaintiffs.
120. I treat the locality not as an exclusively residential area but as a residential area, so zoned, adjoining a busy road in front and with an industrial estate authorised by appropriate planning permission, in its midst.
121. I do not think that the fact that the residences immediately adjoin the industrial estate means that the estate must close down. I do not think this would be reasonable. Equally, I do not think that the noise, fumes and general activity and traffic movements on the estate should be such as to cause an undue impact on the amenities of the nearby residences.
122. The Plaintiffs have indicated that they would accept Hiace type vans or possibly slightly larger vans (which would include the van owned by Chervil Limited) servicing the estate. They would object, however, to large rigid trucks or any kind of articulated truck.
123. They are seeking an Order limiting the hours of access to the historic hours, namely, 8.30 a.m. to 5.30 p.m.
124. The parties are agreed that I should deal with the case upon the basis that a lodgment which was accepted means that the Molumbys are free, if they wish, to re-instate the wall between their property and the lane servicing the estate to its condition prior to any damage done by passing vehicles.
125. I have had the benefit of a site visit and on that occasion an articulated truck and others accessed the lane and I had the opportunity of standing in the Molumbys’ rear garden while the engine was left running. It is clear that, even with their wall restored to its original substantial condition, the noise carries to the rear garden and in the case of a number of trucks the exhaust fumes would emit from a high point behind the driver’s cab. I do not think it is reasonable to require residents to have to accept such impact on the amenity of their gardens on any kind of regular basis. Of course domestic occupiers will, from time to time, permit exceptional vehicles to visit their premises. Again, occasionally, construction work will be carried out on houses in residential areas. The Glenville Industrial Estate has been in place for a great number of years and will continue there. In my view, it can only so continue in compliance with the Irish law of nuisance if the working hours are strictly regulated by the closing of the access gates, if relatively quiet and relatively small commercial vehicles service the estate, if there is no commercial overnight parking, if the distribution activity servicing Dell Computers is removed and if the use of noisy pallets or fork-lift vehicles is excluded (both on the ground and in vehicles themselves).
126. In order to give effect to these criteria, I consider that the gates should remain closed except between 8.15 a.m. and 6.15 p.m. Mondays to Fridays and 9 a.m. and 1 p.m. on Saturdays. No commercial vehicles should be permitted access to the estate when the gates are closed. I consider, however, that the Defendants should be entitled to park up to three private vehicles in the estate outside opening hours to facilitate senior employees working late.
127. There should be a large clear notice at the entrance of the estate limiting speed to 8 miles an hour and prohibiting the running of engines during loading and unloading. No fork-lift or pallet trucks should be used on the estate other than electric or battery operated units with rubber wheels. There should be no obstruction of the entrances to any one of the Plaintiffs’ houses by vehicles servicing the estate or of the entrance and access to the garage usually used by Dr. Kirrane. A notice to this effect should be erected near the entrance to the laneway servicing the estate.
128. I decline to make an Order directing the Defendants to rebuild the piers and gates in the original position. I make an Order prohibiting the “Dell” operation.
129. I will hear Counsel as to the appropriate height restriction necessary to exclude all articulated trucks and high rigid bodied trucks and all vehicles higher than the white van currently operated by Chervil, and also in regard to the length of any stay on these Orders.
Lanigan v Barry
[2008] I.E.H.C. 39JUDGMENT of Mr. Justice Charleton delivered on the 15th day of February, 2008
1. The defendants operate a motor racing track in South Tipperary. It is situated within one kilometre, as the crow flies, from Tullamaine Castle Stud, a farm for breeding race horses which is owned and operated by the plaintiffs. Both businesses are situated in rolling countryside where the predominant activity is agriculture. The motor racing track was the subject of only one planning permission in 1981 and is situated on land which was previously a gravel quarrying operation. Tullamaine Castle Stud is about 15 metres higher than the raceway. The raceway has no natural acoustic barrier. The plaintiffs, together with some of their neighbours, complain that their lives have been made unbearable by the noise generated by the car racing and motor use of various kinds at the defendants’ premises. As well as bringing an action in nuisance, the plaintiffs have also claimed injunctive relief under s. 160 of the Planning and Development Act 2000.
Planning Permission
2. On the 13th November 1980, the owner of the motor track before the defendants, John McHugh of Cahir, County Tipperary, was notified by Tipperary (South Riding) County Council that he had been granted planning permission for a tarmacadam raceway at Tullamaine. The permission was subject to a number of conditions that were incorporated in the permission. Those that are relevant include the following:-
“(1) The proposed development shall be carried out in accordance in with the applicant’s submitted drawings and outline specification save where these are modified by the following conditions.
…
(7) In the event that the operation of the racetrack gives rise to justifiable complaints by local residents the applicant will be required to take whatever steps are deemed necessary by the Planning Authority to remedy the situation.
…
(10) No shop, stall or vending operation in association with this proposed development shall be permitted”.
3. In applying for planning permission, Mr. McHugh specified that he was going to race hot rod cars; that the complex would be located within the 15 acre field site so as to accommodate some 2,000 cars; that it would be intended to operate the racetrack either on a Saturday or on a Sunday evening from April through to October but if a motor organisation wished to practice on, or use, the track during weekday evenings it would be under their proprietor’s supervision and control; and, finally, that the duration of each racetrack operation would approximate to three hours at a maximum.
Unauthorised Buildings
4. There are a number of unauthorised building developments at the site of this raceway. Firstly, the racetrack is not where it was planned within the context of the 14 acre field on which it stands. It is now situated much more over towards the eastern boundary of the site. This has a potentially unfortunate consequence since it is almost beside the hedgerow of neighbouring property. Were the building of acoustic barriers, or berms as they are called, to be an appropriate, and lawful solution to any noise problem emanating from Tipperary Raceway, the trading name of the defendants, same would have to be built by purchasing further land in that area. An internal racetrack, which was not part of the original plans, has also been constructed. The original race way is an oval shaped circuit of about half a mile, of which bends take up at least one third, and on inspecting the photographs possibly more, of the track. Within it, there is a substantial area which I am satisfied was used previously for servicing or parking cars that were racing. In 1996, a new internal racetrack was constructed. This is longer than the original track because it curves in and out to make maximum use of the area and it is much less wide. This construction coincided with the commencement by the defendants of the Tipperary Raceway Karting Centre, as it was called. This karting operation continued for at least ten years from that time. The defendants then bought new racing karts; although racing with karts had occurred on the main track for some years previously. The defendants claim that this racing with go-karts has been discontinued due, among other factors, to natural wear to the stock of carts that they purchased over ten years ago. In 1982, a control tower was built at the back of the track. In 1997, some workshops were constructed on the premises. In 1996, a portakabin was put in place on the premises. In 1983, a large viewing stand holding approximately 1,500 spectators was constructed and, finally, in the year 2000 a small viewing stand was erected on the other side of the track. The only structure in respect of which planning permission arguably exists apart from the quarter mile long racetrack is a toilet block for “adequate numbers of male and female toilets”: a condition of the 1981 planning permission.
5. The planning history of this site indicates that there is only one planning permission, which I have quoted above, in respect of the motor racing track operated by the defendants. In 2004, the defendants applied to the planning authority to retain all the structures on the site. This application was invalid because it related to a motor racing circuit, which under the Environmental Impact Regulations [1989], S.I. 349 of 1989 articles 23 and 24, is a development that requires an environmental impact assessment. In 2007, a similar application was made and rejected by the authority as invalid for the same reason. Since the commencement of this case in 2006, in December, 2008 a new application for retention permission was made in respect of the small stand on the premises. This has yet to be processed.
6. The development plan for this area, promulgated by Tipperary South Riding County Council, contains the following relevant paragraph:-
“It is the policy of the council to support the improvement and expansion of the equine industry. Proposals for non-agricultural related development that are considered to have a negative impact on the viability of existing stud farms or stables will not be favourably considered”.
Neighbours
7. Relations between neighbours are a matter of give and take. Any reasonable person expects, and is expected, to put up with occasional or passing inconveniences caused by those who live near them such as a startling noise, or an annoying noise such as a loud dog or loud lawn mower. Smells and smoke may come and go as people do their garden or their pipes block. House renovation works may impose disruption on a neighbour for weeks and months. Provided these are minimised, and not dragged out much beyond the estimated time, these are usually tolerated with good will. The law recognises that people have to put up with inconvenience from time to time so that others may live beneficial lives and make full use of their properties. That principle would also apply were the person complaining of a nuisance to find themselves defending an action that had caused inconvenience to a neighbour. However, there are limits to what the law expects people to put up with. Here, the plaintiffs complain of an intensification of the use of this racetrack by the defendants which is maddening due to the noise. Most seriously, they claim that the penetrating and intense nature of the noise produced by the racetrack, coupled with its uncertain occurrence and invasive presence, has dealt a heavy blow to the economic viability of their stud farm business.
Race Horses
8. Robert and Deirdre Lanigan, the plaintiffs in this case, have spent their working lives in the stud industry. They bought Tullamaine Castle Stud in 1981, together with its 200 acres. There, they keep fourteen thoroughbred brood mares of their own. The bulk of their business, however, they described as an “equine bed and breakfast operation”. Thoroughbred brood mares typically arrive around Christmas time at their farm from owners in England and elsewhere. They are then kept in their premises while they foal in the spring and the animals then go on to be covered by one of a number of famous stallions standing in Ireland, often at nearby stud farms. At their busiest point in the year, they can keep up to a hundred blood horses, including mares, foals and yearlings. They operate with a staff of between seven and ten. The kind of horse they care for has been bred over centuries for racing purposes. I am satisfied, on the basis of the evidence from Desmond Leadon, a veterinary surgeon specialising in this area, that these animals are highly evolved and that they have not been selected for breeding over generations for their calm temperament, but for their speed. These horses are flighty and sensitive. They will flee or kick out at any annoying or unusual noise or event. Mr. Leadon’s experience of one demonstration by one car at the premises of the defendants led him to the belief that the racetrack could produce a bizarre noise which was frightening to these animals.
9. Mr. Lanigan, the plaintiff, described a number of incidents with his horses. In September, 2003 a yearling became startled by noise and ran through a fence. During 2007, a filly which was in the stable yard panicked at noise and reared up. It fell down and was killed instantaneously. In 2003, after a day of particularly loud noise from the track, a yearling broke her jaw in agitation. These horses, I was told, and I accept, require routine and some degree of tranquillity. They feed early in the day and then they sleep. They do not sleep at night time.
Noise
10. Robert Lanigan and Deirdre Lanigan described what it was like to live with the noise from the racetrack. I am satisfied that because the lack of any natural barrier, and the slightly elevated site of Tullamaine Castle Stud, the plaintiffs receive the full noise of the racetrack at their premises less only the diminution in energy as it travels through the air. The noise was asserted to be an aggressive presence that “just invades you”. It was described as “instant noise”, meaning that it has an ability to startle and set nerves on end. It involves backfiring, tyre screaming, roaring, loudspeaker commentary, engine revving and engine screeching. Bernadette Quinn, who used to reside near Tullamaine Castle, described the noise as “very loud”. Typically, it would start at midday and go on until 7 or 8 o’clock in the evening. On one occasion she organised a First Communion party for her daughter but found that the guests could not go outside in order to enjoy the garden in fine weather but, instead, were confined, by the noise, to her house. When the inoculation of her cows coincided with use at the racetrack, she recalled that she and her helpers would have to shout out the numbers when they were being recorded and then repeat communication again and again. During race days she would plan, if she knew about them, to go away for the day with her children. During Saturdays, when she could get help with her farm, she was particularly aware of the noise. She observed that when she would start a car, or her neighbour would start a car, nothing would be heard that would startle anyone. In distinction, the noise from the racetrack was described as “revving as loud as an engine can go and screeching”. Susan Foley, who lives about two miles from the racetrack, and who breeds national hunt horses there, can hear loud constant vibrating noise from the racetrack which she finds unnerving. While in her house during racetrack use, she turns on loud music in order to distract herself. Nicole Kent, who was a tenant at Tullamaine Castle gate lodge, described the noise as being that which would “drive you to a nervous breakdown”. I am satisfied that she would have preferred, because of her business, to stay in Tipperary but that she has moved temporarily away. Inside Tullamaine Castle the noise is less than outside. However, I am satisfied that on a substantial number of occasions during many races and practices, it is experienced as all-pervasive and that it has driven at least one of the children of Mr. and Mrs. Lanigan, then studying for their Leaving Certificate, to resort to Dublin as a quieter location.
11. I will shortly turn to the issue as to whether there has been an intensification in the use of the track, amounting to a material change of use for planning purposes. It suffices to record, in this section of this judgment, that there has been evidence of considerable weight that on the opening of the racetrack, and for a substantial number of years after that, noise was only heard infrequently from March through to October whereas now that it can be heard all the year around and much more frequently and for a much longer duration than previously.
12. I have carefully considered the evidence of John McHugh, Tommy Casey and the defendant Michael Barry, all of whom gave defence evidence that substantial steps have already been taken in order to abate the noise. In particular, Mr. Barry, gave evidence that better silencers were now in place on cars in use on the track that notices had been put up at the raceway that no car was to race without a silencer, that a line of a trees had been planted, that the public address system had been fixed to new maximum, and relatively quiet, level and that karting use has been discontinued. As to the trees, they are there for aesthetic purposes. I also note what John McHugh told the Court about the noises he experienced during the early days of this racetrack after he first opened for business in 1981, and how things are now better. This involved colourful evidence of people near the track stuffing cigarette butts into their ears to make standing track-side bearable. I have regard to the evidence of Tommy Casey that in the 1980s cars racing there had no proper tyres and produced lots of noise and that silencers had since become better.
13. I note that there is a divide in the evidence. On the one hand, evidence as to the brutally intrusive nature of the noise has been given by the plaintiffs, or witnesses in support of them, who are all engaged in farming, or allied work of one kind or another, and are probably animal lovers. Those who have given evidence on behalf of the defendant, including their noise expert, Mr. John Grant, are all aficionados of motor racing and more likely to tolerate the noise, or even to somewhat like it.
14. Expert evidence as to the level of noise has also been given. Noel Tynan, a witness for the defendant, has forty years of experience in noise control. He measured the ambient noise within this country area at around 37 decibels. While hot rod racing continued at the track, a reading of 93 decibels was recorded there and a reading of 62 at the castle. During practice, the figures were 87 at the track and 58 at the castle. Martin Foley, who has practised as a noise expert since 1994, gave evidence on behalf of the plaintiff. He did tests over a number of days through different years. He recorded noise levels in the garden of the castle at between 47 and 60 decibels on one occasion and 47 and 64 decibels on another occasion. In October, 2007 he recorded outdoor measurements at between 53 and 73 decibels. There was little difference between these experts.
15. I am satisfied that the test as to whether a nuisance does, or does not, exist is not exclusively to be determined by reference to British Standard 4142 (B.S. 4142). This document concerns the setting of standards for acceptable levels of industrial noise. Mr. John Grant, who also gave evidence as an expert on behalf of the defendant, claimed that there was no standard in Great Britain as what is a nuisance by reference to any standard as to noise laid down by an expert body. Mr. Foley and Mr. Tynan both testified that there should be a 5 decibel weighting added on to the scientific reading of a noise where that noise is tonal in character and especially offensive. Mr. Grant did not agree that a 5 decibel weighting was appropriate or suitable either or at all or in particular for car racing noise. I strongly prefer the evidence of Mr. Foley and Mr. Tynan in that regard. People experience a nuisance, whatever it is, based on human factors. In the case of noise, factors such as tone, unexpectedness and irritant factor, which cannot be measured by scientific instruments, are very important. B.S. 4142 takes noise irritation into account by looking at calculations involving the difference between two noises, ambient noise and the noise called into question, and the character of that noise. That seems to me to be right because it tries to take human factors into account. Other measurements take this into account too. The weather forecast can record a scientific measurement of temperature or rainfall. It cannot record the chilling effect of a wind in cold circumstances or the driving nature of almost horizontal rain. Yet, these are factors which affect us. Wind chill is now often stated in weather broadcasts. Best scientific practice should take these kinds of human factors into account. In that regard, I note the differences between the ambient noise and the racetrack noise levels that have been recorded outside Tullamaine Castle Stud with differentials that include this weighting of 5 decibels and give an average difference of 23 decibels. The excess decibel figures over the ambient noise have been recorded between 14 and 24 decibels which, with the 5 decibel weighting, give readings of between 19 and 29 decibels of difference. Both Mr. Foley and Mr. Tynan agree that a difference of 5 decibels unweighted is marginal in terms of the annoyance of noise. A difference of 10 decibels unweighted, however, gives rise to the likelihood of complaints while differences at the level recorded, I am satisfied, are likely to be intolerable to anyone with normal sensitivities. Even within Tullamaine Castle differences of 11 and 12 decibels have been recorded at the Castle before one adds the 5 decibels weighting.
16. Fifty five decibels is the World Health Organisation rating standard for noise from a busy roadway which is about .5 kilometres away. Seventy decibels or more represents the level of noise within a busy restaurant which, in ordinary human experience, involves one listening closely to one’s companions and watching them in order to understand what they are saying.
17. I am satisfied that the noise experienced by the plaintiffs involves a pervasive, persistent, frequent and intolerable intrusion. In reaching this conclusion, I am much more influenced by the human reactions of the plaintiffs and their witnesses then by any scientific evidence. Without the scientific evidence, a compelling case has been presented of a severe nuisance by noise, and I accept it as such. Much evidence has also been given as to interactions between Mr. Lanigan and Mr. Barry and, as to one incident, between Mrs. Lanigan and the defendants. The standard to be applied in terms of human conduct is that of men and women and not of perfect incorporeal beings. None of this evidence convinces me, even were I to accept it, that the plaintiffs are in the least bit unreasonable or over-sensitive. Michael Barry, the main defendant in this case, is an energetic person with an attractive personality, but I am not satisfied that he has done anything at all to meet the concerns of any of his neighbours, especially the plaintiffs. Much argument has been advanced in evidence as to why the plaintiffs are almost the only ones to have complained to the local authority. I am satisfied that anyone who complains about a neighbour runs the risk of being isolated and bullied, no matter how real their experience. I am satisfied that the plaintiffs are reasonable people and that they have put up with much more than ordinary give and take before reluctantly bringing this case. They are not to be faulted for complaining, seeing what might be done by the defendants, waiting in vain hope for reasons to prevail and then finally taking legal action in 2006.
Nuisance
18. The tort of nuisance involves interference for a substantial length of time by the occupier of a property with the lawful use or enjoyment of a neighbouring property. There must be a real and definite infringement on the comfort or convenience of the persons occupying or using the premises or land in order to establish an actionable wrong. As to what is uncomfortable or is inconvenient is set according to the plain and simple standards of ordinary and sensible Irish people. An injury to health need not be proved. A trivial or passing interference, or an annoyance with respect to a mere recreational facility like TV reception, does not suffice. Nor can the plaintiff be a sensitive soul who thereby complains unreasonably. In the 17th edition of Salmond on the Law of Torts (London, Sweet & Maxwell, 1977, edited by Professor R. F. V. Heuston), at pp.58 and 59 the following appears:-
“No action will lie for a nuisance in respect of damage which, even though substantial, is due solely to the fact that the plaintiff is abnormally sensitive to deleterious influences, or uses his land for some purpose which requires exceptional freedom from any such influences. Every person is entitled to do on his own land anything that does not interfere with other persons in the ordinary enjoyment of life or the ordinary modes of using property. In other words, his neighbours have a right to the ordinary conditions of comfortable existence, and to the ordinary conditions of the beneficial use of property; but they have a right to nothing more. Extraordinary and special requirements are not protected by the law of nuisance. So Lord Selborne L.C., after referring to counsel’s “happy use of a passage in a recent work upon mental science,” said, “A nervous, or anxious, or prepossessed listener hears sounds which would otherwise have passed unnoticed, and magnifies and exaggerates into some new significance, originating within himself, sounds which at other times would have been passively heard and not regarded. [Gaunt v. Fynney (1872) L.R. 8 Ch. App. 813] . But a defendant cannot use this argument if his own conduct has resulted in the plaintiff being hypersensitive to noise. Again, a man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure. Thus in Robinson v. Kilvert [(1889) 41 Ch. D. 88.]. The plaintiff could not recover for damage done by the heat from the defendants’ pipes to his stock of brown paper – “an exceptionally delicate trade” – since it would not have prejudicially affected any ordinary trade. But once nuisance has been established, the remedies of damages or an injunction may be available to protect the plaintiffs’ unusually delicate or sensitive trade.”
19. This is a correct statement of the law. There are places where the breeding of thoroughbred racehorses is appropriate and there are places where it is silly to even think of it. Within an industrial, urban or suburban setting, the rearing of such animals, with their sensitivity to noise or other emanations, might be regarded as outside the parameters of reasonable user; the standard which the law sets. However, the business of the plaintiffs is set within a rural area that is dominated by cattle and bloodstock farming. These horses are the stock for the business of the plaintiffs. Apart from the effect of piercing noise on a typical racehorse, I must have regard to the reaction of human beings. It is the effect on people that matters, though the law also takes account of how a nuisance affects a business in an appropriate setting. In that respect, none of the witnesses called on behalf of the plaintiffs struck me as being oversensitive or unreasonable.
Area
20. What would be a nuisance in quiet areas of Dublin 4 would not necessarily constitute an actionable tort in the industrial heartland of West Dublin. I adopt as correct the following passage from the 17th edition of Salmond on the Law of Torts at p. 56:-
“The standard of comfortable living which is thus to be taken as the test of a nuisance is not a single universal standard for all times and places, but a variable standard differing in different localities. The question in every case is not whether the individual plaintiff suffers what he regards as substantial discomfort or inconvenience, but whether the reasonable man who resides in that locality would take the same view of the matter. The reasonable man connotes a person whose notions and standards of behaviour and responsibility correspond with those generally obtained among ordinary people in our society at the present time, who seldom allows his emotions to overbear his reason and whose habits are moderate and whose disposition is equable… The result is that he who dislikes the noise of traffic must not set up his abode in the heart of a great city. He who loves peace and quiet must not live in a locality devoted to the business of making boilers or steamships.”
21. O’Kane v. Campbell [1985] I.R. 115 concerned a 24-hour shop that was located in Dublin city on the corner of North Circular Road and Glengarriff Parade. The area was characterized by Lynch J. as an intersection between a quiet and established old residential street and a wide and busy thoroughfare. Some years prior to the commencement of the action, the shop had traded during normal business hours. It had then switched to a 24 hour operation which caused noise throughout the night, involving banging doors, car radios, revving and chat. The generation gap accounted for the fact that some younger people living on Glengarrif Parade did not find this such an intrusion as to amount to a nuisance, whereas those who were older did. Lynch J. granted an injunction restricting the shop from trading from midnight to 06.00, noting that such an injunction was one which upheld the amenity of Glengarriff Parade but which might not otherwise have been granted had the shop premises been completely located on North Circular Road.
22. In considering the issue as to the amenity of an area, regard should be had to its immediate history and its character prior to the commencement of the activity complained off. The character of a neighbourhood may, however, change. This may be due to economic depravation or to the development within the area of enterprises and structures which change its character. In that regard, the wider question as to how an area is to develop is to be determined in accordance with the Planning and Development Act, 2000. The legislation is an example of the application of democratic principle to the important question as to how the area in which a citizen lives, or carries on his or her business, may change. In essence, the Act requires that any development of a site, including a material intensification of its use, should be subject to an application for planning permission to the local authority. This application can only be made through lodging detailed plans which indicate precisely what those effected by the development may reasonable expect. The entire community is given notice of the essence of what is proposed through newspaper advertisements and site notices. People may then inspect the plans. Representations may be made to the local authority as to why planning permission should not be granted and these will be primarily directed towards the effect any proposed development may have on the neighbourhood or area. Those who have made observations for an application for planning permission may appeal to An Bord Pleanála and those who have failed to make observations but who were directly affected, by reason of the immediate proximity of the proposed development, may also appeal. Were the legal mechanism of the scrutiny of planning permission not to exist and were it not the case that notice must now be given in a direct manner though what is in effect an advertisement as to what may happen at the site of a proposed development, then persons might feel aggrieved at being taken by surprise when a factory, set of apartments or some house extensions, suddenly spring up beside them. The legal mechanism is there, however, to allow participation in decisions which may effect the environment, the value of property and the nature of such quiet and comfort as may be the settled expectation of people in any particular area. Therefore, where planning consent is given after due process for a development, including a change of use, the issue as to what is a nuisance will be determined according to the character of that neighbourhood as authorised by relevant planning permissions and as declared by the development plan. The approach of Buckley J. in Gillingham Borough Council v. Medway (Chatham) Dock Co. Ltd. [1993] Q.B. 343 at 595 is apposite:-
“Doubtless one of the reasons of this approach is that Parliament is presumed to have considered the interests of those who will affected by the undertaking for works and decided that benefits from them should outweigh any necessary adverse side effects. I believe that principle should be utilised in respect of planning permission. Parliament has set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding the scales between individuals, to the local planning authority. There is the right to object to any proposed grant, provision for appeals and injuries, and ultimately the minister decides. There is the added safeguard of judicial review. If a planning authority grants permission for a particular construction or use in its area it is almost certain that some local inhabitants will be prejudiced in the quite enjoyment of their properties. Can they defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a license to commit nuisance and that a planning authority has no jurisdictions authorised. However, a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance…”
23. It therefore emerges that the lawful redevelopment of an area, or its gradual change in character over time, can affect the standard by which an action in nuisance is to judged. What would have been a nuisance in the 19th Century context of North Circular Road may not be one now. Equally, what might not have been a nuisance back then may be one now. An example of this is the prevalence of small slaughter houses in centre city areas that have now effectively been relocated to rural areas.
24. What standard of amenity is set for an area is directly influenced by the planning process. This does not mean that a nuisance is authorised by a planning permission granted in accordance with the development plan of a local authority. On the contrary, people retain their rights but according to the standard, judged against the nature of the locality, that the law sets.
25. All of this emphasises the primacy of the planning process in setting local standards of amenity. That process can not be ignored or flaunted or undermined by deception. The standard of amenity that is reasonably to be expected by people living in an area can change as an area is lawfully developed. The nature of businesses suitable for an area can also change as an area is developed by lawful means. Unless the business activity be regarded as unduly sensitive, and therefore unsuitable for the character of an area in which it is situated, no one is entitled to use a planning permission to destroy the business of a neighbour.
Business
26. I am satisfied that the business of the plaintiffs has suffered considerably in consequence of the nuisance emanating from the defendants’ premises.
27. On the 6th September, 2006, Robert Lanigan received a letter from Harry Dunlop, of Windsor House Stables in Berkshire, withdrawing his racehorses from the plaintiffs’ premises. The letter is hearsay. I am satisfied, however, that the effect of the letter has been proven by the evidence of Mr Lanigan, which I accept, as to the diminution in his business in consequence of the experience of some of his customers. The letter reads as follows:
“Thank you for showing me your 2006 yearlings. They looked very well and I hope they fetch good prices at the forthcoming sales. With regard to the mare I was considering boarding with you I think due to my expressed concerns about the excessive noise I will keep her in England. I would have been very worried about the possibility of her slipping her foal or alternatively damaging herself, a risk I cannot afford. Thank you for all your advice and I am only sorry that we cannot take up your offer this year. If the situation changes and the motor circuit noises are drastically reduced or are stopped altogether then I would not hesitate to send her to you. I hope to see you at the yearlings sales”.
28. In addition, there has been evidence from Mr. Lannigan that Simon Marsh, another Englishman in the bloodstock business, who used to have eight to twenty animals with the plaintiffs, and was an anchor client, had withdrawn all of his animals. I am satisfied that this happened due to the fact that Mr. Marsh visited the plaintiffs’ stud farm during a day of motor racing or other motor use, and was alarmed by the noise.
Intensification of use
29. I now turn to the issue of whether there has been a material intensification in the use of this motor racing track. I find myself having difficulty with the evidence given by John McHugh, the original owner of the racetrack. I accept his evidence that when the racetrack opened in 1981 there would be racing every Saturday night. This situation was, apparently, brought to an end by the Roman Catholic Church allowing their faithful to fulfil their Sunday obligation by attending Mass on a Saturday evening. So, the motor racing fans preferred that. He tried an unorthodox solution of offering mass in a forty foot trailer, but this did not help matters. I accept his evidence that the racetrack was run from St. Patrick’s Day to October. There would then be a gap through to the following mid March where there would be a charity event featuring hot rods. From time to time, he said there might be other events during the closed season, but his memory was that these would not occur more than once a month. I found the evidence of Garda Michael Craddock to be helpful. Although now retired, he served as a Garda in New Inn village from 1981 until 2002. On one occasion at Rose Green village, which seems on the map to be about two kilometres away from the racetrack and in a different area to the plaintiffs’ farm, he experienced a situation where the prevailing wind brought the noise directly to where he was operating a checkpoint. He reached the conclusion that one could not possibly live with such noise. His view as to whether use at the racetrack intensified from the 1980s to the present was that since Mr Barry, the defendant, took over the racetrack he had made a big effort to make it attractive and that since then fields across the road from the racetrack had for the first time to be used for parking. Given that the original planning application contemplates that up to two thousand cars might be parked at the racetrack, I find the evidence of Mr McHugh to be mistaken when he testified that meetings in the 1980s were much larger than at the present day. In addition to that, I take into account the evidence of Deirdre Lanigan and of Robert Lanigan that there has been a considerable escalation in the times when noise has been a nuisance to them over the years. In 1997 intensive go-carting started on the new internal track. In 2002, drift racing, involving cars going sideways in a skid around bends, started up. Mr. Lanigan said he could remember noisy days when the racetrack first started up. He did not find this an issue, as he put it, because there were so few of these days and these all seemed to be on an occasional basis at the weekends. His feeling was that matters of racing and motor noise had ceased altogether in 1991. I accept his evidence that the operation or the racetrack from 1981 to 1991 and somewhat beyond that did not discommode him.
30. The history of the track, in that regard, is that it was first operated from 1981 to 1991 by John McHugh. In 1991 Michael Barry bought it together with two partners. After a year or so, they moved on because, in Mr Barry’s words, “they did not see it as profitable”. He then reopened the racetrack in March of 1992, assuming, as he put it, that everything was “OK as regards planning permission”. During that year, he said it was mainly opened on a Sunday and race programmes involved crash racing and hot rod racing and other forms of motor use or racing. He claimed that from 1992 through to the present day there had been no escalation in use. I note, however, that flyers produced for the defendants’ premises in more recent times, also described it as a “Karting Centre”. These notices advertise outdoor “Leisure Karting” an experience involving “the ultimate speed sensation on twin engine pro-karts”. In these notices, the track was described as being “fully flood lit” and “top domestic and international race meetings” were advertised as occurring throughout the year. The raceway, in addition to the new year-long use, is advertised as being “open seven days”. The turnover figures for the raceway were produced from 1997 through to 2003. In 1997 a turnover of €48,000 was recorded whereas in 2002 the turnover figure was over five times that. And so it has continued.
31. When planning permission was sought in 1981 in respect of the raceway, the conditions of the planning permission that was granted required compliance with the application. This application sought permission to use the proposed track for a maximum of three hours racing with a potential for some supervised practise during the week. These are the relevant figures for racing hours at the defendants’ racetrack in 2007: January, thirty three hours; February, forty one hours; March, sixty hours; April, thirty eight hours; May, fifty one hours; June, thirty six hours; July, twenty nine hours; August, thirty three hours; September, fifty nine hours; October, thirty two hours; November, twenty one hours; and December, thirty two hours. To that, the evidence clearly establishes that one should add in a large number of hours per month for what are described as “practice sessions”, but which can also involve other forms of motor use. I am satisfied this at least doubles, and probably trebles, those hours. This use is all-year around and potentially on every, or any, day or time up to 22.30 hours. The raceway should never have operated during the period November through to April. The use originally contemplated and the use, to which I am satisfied the raceway was put at least through into the early 1990s, involved three hours of racing on a Saturday or a Sunday from April through to October. Multiplying three hours by 4.33, the number of weeks in a month, one reaches thirteen hours maximum of racing per month. In addition to that, one might reasonably add on seven hours of practise giving a total of twenty hours in any month. During 2007, and I am satisfied during previous years, at least since the year 2000, this total of a maximum of twenty hours of use per month, apparently allowed by the planning permission, has been very substantially exceeded by a multiple of up to ten, or perhaps more during some months. In that regard, I accept the evidence of Liam McGee, a development officer for the local authority, that there has been a substantial increase in activity which has been incremental and that this amounts to a significant intensification of use by the nature and duration of the activity. Even apart from that evidence, every credible witness points to a substantial and unregulated escalation in the use of the defendants’ motor racing facility
Material change of use
32. An intensification in the use of premises may, of itself, constitute a development which requires planning permission. The classic statement of law, in this regard, is that made by Keane J. in Butler v. Dublin Corporation, [1999] 1 I.R. 565 at :-
“Although the expression ‘intensification of use’ is not be found in our planning code or its English equivalent, the legislatures in both jurisdictions must have envisaged that a particular use could be so altered in character by the volume of activities or operations being carried on that the original use must be regarded as having been materially changed. One man digging up stones in a field and carrying them away in a wheelbarrow for a few hours each week may be succeeded by fleets of bulldozers, J.C.B.s and lorries extracting and carrying away huge volumes of rock from the same site. The use in both instances may properly be described as ‘quarrying’ but that its intensification to a particular degree may constitute a material change in its original use is, I think, not merely born out by the authorities to which I have referred, but is consistent with the underlying policy of the Act of 1963 and the amending legislation of ensuring that significant changes in the physical characteristics of the environment are subjected to planning control.”
33. There is much discussion in the relevant textbooks as to how this statement of the law should be construed. In the quotation just given, Keane J. refers to the object of the business that was carried on and to the method by which profit was obtained from the operation and to the scale of use in comparison to a relevant previous time. In Galway County Council v. Lackagh Rock Limited [1985] I.R. 120, Barron J. stressed the importance of the issue of planning considerations in judging whether any intensification of use amounted, in effect, to a new development, and therefore one for which planning permission was required. Environmental impact is regulated through the planning process. It is the effect on the wider neighbourhood that should be at issue in any adjudication as to whether an intensification of use had taken place to the degree that fresh planning permission is required. However, there can be cases where an isolated operation simply decides to ignore the planning code, in which case the latter considerations may be less important.
34. Here, the issue is as to whether the 1981 planning permission authorises the activity of the defendants as it has been carried on over the last four or five years prior to the commencement of this action in 2006. In Simons- Planning and Development Law (Second Edition, 2007) at para. 2-64, the learned author offers the opinion that, in principle, the intensification of the use of development which is already subject to planning permission can give rise to material change in use. I agree with this view and with the passage which follows on from that opinion:-
“To a large extent this turns on the nature of the development permitted under the planning permission, and in particular, as to whether or not a particular use has been specified under s. 39(2) of the Planning and Development Act, 2000. Even if a use has not formerly been specified, it may be that the documentation accompanying the application suggests the level or scale at which the development is to be carried on. In this regard, it is important to note that it is almost a universal condition of all planning permission that the development be carried out in accordance with the plans and particulars lodged with the application, or as part of a response to any request for further information.”.
35. Here, I have no doubt that the intensification in the use of this racetrack is of serious environmental impact and that it has unlawfully changed the character of this area outside the lawful changes that may take place under the planning code.
Construction of the grant
36. A planning permission is not a legal statute and nor is it to be construed as such. Rather, it is a document addressed to the world at large and one of particular interest to those who feel, by reason of proximity to the development authorised, or for good reasons like the preservation of what remains of the traditional Irish country side, that they maybe affected by it. It is the view of a reasonable person looking at the permission and the conditions attached thereto, which should determine how a court construes the documents. In that regard, I imagine now that in the lead up to the grant of permission to John McHugh, and just after permission was granted, in respect of this motor racing track in November, 1980, a stud farmer, a cattle farmer and the owner of an isolated dwelling in this area might have gone into the offices of Tipperary (South Riding) County Council and looked at the relevant documents. They would have seen that by virtue of Condition 7, the Planning Authority proposed to take a close interest in the operation of the raceway to ensure that justifiable complaints were dealt with. They would have noted that sale operations were forbidden at the site of the development. Most importantly, they would have noted the condition which requires that the raceway was to be developed in accordance with the applicants’ submitted drawings and outlines specifications. Looking at those and wondering, as any reasonable person might, as to how often cars would be racing around this track, and wondering what they might be expected to tolerate, they would have seen that the raceway was not supposed to be operational during the months of November, December, January, February and March and that there was to be weekend use of 3 hours at a maximum coupled with a certain amount of practice under the supervision of the proprietor. That is what the applicant promised to do. Thereby, nobody would have thought it important to object. When they saw the conditions of planning permission adhering the applicant to his promises, they would have felt well satisfied. No reasonable person would have expected that the raceway would operate on a seven day a week basis, as the advertisement promulgated by the defendants have proclaimed; that practice would become indistinguishable, in terms of the intensity of the noise coming from the raceway and its duration, from racing, that activities other than racing, and amounting to pleasure motoring, would take place instead; and that one of the fundamental economic bases of the area would be undermined in respect of anyone living within a kilometre or two of this raceway: namely, that the breeding of race horses would become very difficult. Instead, they would have expected an occasional, and seasonal, interruption to their peace and quiet; one for which any reasonable person might have made advanced provision and written off in the interests of give and take.
37. Instead, the entire character of this neighbourhood has been altered in a manner which has not been subject to democratic scrutiny under the planning code. It has been unlawfully altered by the refusal of the defendants to have any regard to their obligations under law. What has occurred at the raceway has been a completely new development in respect of which no planning permission exists. In interpreting the planning permission, which stands independently as a public document, I have regard to those other documents which it incorporates, namely the form of the application which the condition attached to the permission acquires to be abided by; Readymix ( Éire) Limited v. Dublin County Council, Supreme Court (Unreported July, 30th, 1974).
Prescription
38. The defendants claim that they are entitled to carry on this nuisance by virtue of long usage. Section 1 of the Prescription Act 1832, as amended, provides as follows:-
“No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken and enjoyed from or upon any land of [The State]… shall, were such right, profit or benefit shall have been taken and enjoyed by any person claiming right thereto without interruption for the full period of [20] years be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of [20] years, but nevertheless such a claim may be defeated in any other way by which the same is now liable to be defeated; and when such right, profit, or benefit, shall have been so taken and enjoyed as aforesaid for the full period… the right thereto shall be deemed absolute and indivisible, unless it shall it appear that the same was taken or enjoyed by some consent or agreement expressly made or given for that purpose by deed in writing”.
39. The proceedings herein were issued in the Circuit Court in 2006, and the time is to be reckoned from then. The defendants claim a prescriptive right, by virtue of the user of this raceway from 1986, to make the noise complained of. Prescriptive rights are traditionally understood in the context of rights of way, the taking of water from rivers, and the discharge of effluent. These, certainly, can be exercised on an intermittent basis but they occur on a basis that can be predicted and sensed, as where the flow of stream is markedly interrupted, where gas is discharged through a flue in a party wall, or were a man claims the right to walk along a path through another’s property. Under s. 4 of the Prescription Act, 1832 an interruption is deemed not have occurred unless it has been submitted to or acquiesced for one year after the party interrupted shall have had notice thereof, and of the person or making or authorising the same to be made. I adopt this as correct the passage at para. 13-12 of Bland- The Law Easements and Profits à Prendere (Dublin, 1997):-
“The intermittent character of certain rights can deprive the potential servient owner of an opportunity to interrupt enjoyment. From the interruption provision there emerged a number of propositions relating to the proof user for a prescriptive period: it was held that s. 4 required that ‘there must be act of user and enjoyment in the year proceeding the bringing of the action’, that there is an act in the year of the prescriptive period, and that the acts occur on at least year by year basis. The better view is that s. 4 has imposed no requirement as to continuality of user, as the section relates to an adverse act of the potential servient owner and not the non-user of the claimant. The courts have not in practice required proof of an active user for every year of the prescriptive period. Whether there has been sufficient continuity of user is a matter to be decided on the basics of the principles of common law that user be continuous. That principle takes account of the possible factors which may exclude an inference that the easement or profit is not enjoyed as of right, such as a period of impossibility of user.”
Actions in law for private nuisance are capable, as a matter of theory, of being barred by the defence of prescriptive right. That has not occurred here. First, I am satisfied there have been substantial interruptions to the prescriptive right claimed, particularly in the years around 1991. That is not as important as the second factor, which is that no right to commit a nuisance by noise has succeeded in any case of which I am aware. In Denis v. The Ministry of Defence [2003] EWHC 793, a case about noise from Harrier jump-jets coming and going at a Royal Air Force base in the English countryside, Buckley J. noted that counsel on both sides of the case had agreed that there was no objection in principle to a prescriptive right to commit a nuisance by noise. The defence, however, was rejected on the facts of that case in so far as no evidence on the decibel level of the relevant noise over the necessary twenty years had been put before the court such would satisfy an imaginary grant of an easement. The theory of prescription is based upon the legal fiction that at some stage in the past a prior owner, or indeed the present one, had granted to another landowner, a dominant right over his land. In order for a prescriptive right to commit a nuisance by noise to exist, it seems to me that any reasonable person giving such a servient grant would specify the time at which the noise was to be allowed, its duration, and the level at which it was to occur. I also have regard to the evidence in this case which demonstrates that noise can be tonal in character, can be influenced by prevailing wind conditions, can be of a character differing from mildly annoying to maddening and that its intrusion on a neighbour depends on the action of the user as to when, and for how long, it is expected to be endured. This makes a prescriptive grant unlikely.
40. In this case, the nature of the unauthorised development carried on by the defendants has been such that the noise has climbed from being intermittently annoying to becoming, in the last eight years, a persistent and insufferable presence. Even were I bound by a period of twenty years user to assume a lost grant, which statute to my mind has replaced by a calculation based on time, I could not imagine anyone agreeing to a nuisance of this kind without particularising its duration, timing and intensity. Since this has not occurred, it seems to me that Denis v. The Ministry of Defence, is a compelling authority.
41. When one turns to the nature of the nuisance which I have found exists in this case, one realises, from the evidence, that in terms of its duration, its intrusiveness, its intensity and its character that it has come and gone away in a manner which could not give rise to any valid prescription plea on the part of the defendants. I approve as correct the following passage from McMahon and Binchy – Law of Torts (3rd Ed., 2000), at paragraphs. 24.99 and 24.100:-
“Whether there is a prescriptive right to commit all types of nuisances doubtful. It is clear that a person may acquire a right to discharge rain-water from his eaves onto a neighbour’s land, to send smoke through flues in a party wall, or to discharge surface water onto adjoining land. On the other hand, one cannot acquire a prescriptive right to let the branches or roots of a tree intrude onto one’s neighbour’s property.
No reported decision has held squarely that one may otherwise acquire by prescription the right to annoy a neighbour by smoke, smells, noise or vibrations. It has been argued that such a right would be impossible to acquire since the quantity of interference would be variable, thus lacking the degree of certainty and uniformity of rights capable of acquisition by prescription”.
Injunction
42. Section 160 of the Planning and Development Act, 2000, provides that an application may be brought either by the planning authority or by any other person, to restrain the carrying out of any unauthorised development on land, or to require that the development be carried out in conformity with any permission pertaining to that development and any condition to which the permission is subject. Having regard to the findings of fact previously made in this judgment, I have no doubt that the use to which this raceway has been put, is unauthorised and is not in conformity with the conditions to which the relevant permission is subject. I am satisfied that by virtue of section 27 of the Local Government (Planning and Development) Act, 1976, that the large viewing stand, the spectator safety wall, the spectator fence, the maintenance building to the rear of the new viewing stand, the control tower and the flood lighting, cannot be the subject of an injunction requiring that these should be torn down. Nor am I satisfied that by virtue of the construction of the inner parting track in 1996, that the wider limitation period contained in section 160, of five years as opposed to the earlier seven years, should not apply.
43. These considerations as to limitation do not apply to the use to which the premises have been put. There is nothing in the Planning and Development Act, 2000, or its predecessor, which authorises a court to ignore, by virtue of the passage of time, a completely new user of a site, or an intensification of a use in respect of which some form of planning permission has been granted and which has been entirely altered by the illegal user thereof. I am satisfied that as a matter of law, the defendants have had the choice of using this racetrack in accordance with the planning permission of 1981, or of ignoring it. They have chosen the latter course. Instead of having one race on each weekend over a seven month period, with occasional supervised practice or use during the week, they have operated the raceway on a week-to-week basis during the entire year in a manner which is utterly at odds with the terms of the planning permission granted to their predecessor in 1981. Every occasion on which this unauthorised user has taken place has given rise to the potential for criminal prosecution on an individual basis; Clare County Council v. Derek Floyd, [2007] IEHC 48.
Equitable Principles
44. In Morris v. Garvey [1983] I.R. 319, the Supreme Court set out the principles that should move the court in considering whether an injunction under section 27 of the Local Government (Planning and Development) Act, 1963, should be exercised. These same principles apply to an issue as to the grant of an injunction under
s. 160 of the Planning and Development Act, 2000. At page 324 the Supreme Court, through Henchy J., held that for the court not to restrain a breach on the planning code it would require:
“. . .exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance), as is necessary to ensure that the development is carried out in conformity with permission”.
In Wicklow County Council v. Forest Fencing Limited [2007] IEHC 242, at paragraphs 49 and 50, having considered the relevant authorities of more recent times as to declarations by the court of planning permission by default, and of injunctive relief where planning permission is found by the court not to exist, I offered the following view:
“The balance of authority is in favour of the Court exercising its discretion to make a declaration that planning permission has been granted where the Court has found as a fact that there is a default permission in favour of a developer. The Court is there to uphold the law. Its discretion should not be used to change the law or to its operation. A similar principle, to that outlined in the separate judgments of O’Leary J. and Clarke J., should apply in the opposite circumstances, such as here, where the Court has found that there is no default permission: where the developer has, on the contrary, developed the site entirely in accordance with his own wishes and with little or no reference even to the plans in respect of which he once sought permission. The discretion of the Court, in this context, is very limited. The balancing of that discretion must start with the duty of the court to uphold the principle of proper planning for developments under clear statutory rules. Then, the Court should ask what might allow the consideration of the exercise of its discretion in favour of not granting injunctive relief.
To fail to grant injunctive relief in these circumstances, on these facts, would be to cause a situation to occur where the Court is effectively taking the place of the planning authority. The Court should not do that. This is a major development, for which there is no planning permission. It is in material contravention of the County Wicklow Development Plan. It is built entirely to suit the developer and with almost no reference to legal constraint. I am obliged to decide in favour of the injunctive relief sought”.
45. Unfortunately, this is a clear case where I must act to restrain major breaches of the planning code which have flaunted the legal rights of the community in favour of an unrestrained action that has seriously impacted on the character of a quiet area and the reasonable use by neighbours of their farms and dwellings.
Result
46. I make the following summary of the findings of fact that have been made in the course of this judgment for the purpose of determining the form of the final order:
(i) The plaintiffs have been subjected to a persistent and invasive nuisance due to noise emanating from the premises of the defendants, the nature of this being such as to require this court to restrain it through an injunction.
(ii) The plaintiffs are reasonable persons who have held off the issue of proceedings in a reasonable manner and are not, therefore, to be faulted due to delay. There is no prescriptive right in favour of the defendants.
(iii) The defendants are bound by the terms of the planning permission of 1981 to operate their motor raceway so that a car race occurs only on either a Saturday or a Sunday and for a maximum duration of three hours during the months of April to October only. In addition, the defendants may be allowed up to two hours of practice during the week of a race, but no more than that. They are now injuncted to comply with these terms.
(iv) Where the defendants wish to have a race, they are required by the terms of this injunction to put a notice to that effect on the gateway to their premises seven days before such event so that all the neighbours can take evasive action and re-plan their lives around the expected noise.
(v) On the basis of nuisance, I equally impose the restraints set out in paragraphs (iii) and (iv) by way of injunction.
(vi) I propose to make no order as to the physical condition on the premises of the defendants.
(vii) Any issue as to damages has been left over by consent of the parties pending this decision as to liability.
Frank Lynch v Liam Hetherton
High Court 1989 (Circuit Appeal)
31 January 1990
[1990] I.L.R.M. 857
(O’Hanlon J)
The plaintiff in this case was involved in an accident on 8 October 1987, while driving his car along a country road at Kilrush, Clonmellon, Co. Westmeath. A tree growing on the defendant’s lands at a point immediately adjoining the highway, broke off suddenly at the base of the tree and fell to the ground. It is difficult to determine whether it actually fell on the plaintiff’s car, or whether the plaintiff drove into it while it was falling or immediately after it fell to the ground. Fortunately, the three occupants of the car appear to have escaped injury, but the car was extensively damaged, mainly in the area of the front bumper and headlights, with lighter damage to the bonnet and roof. A branch penetrated one of the front headlights and continued for some six feet through the engine area and into the passenger area between the two front seats of the car.
The claim is framed in negligence and nuisance and is in respect of the damage caused to the plaintiff’s car on the said occasion. The learned Circuit Court judge found in favour of the plaintiff, but made a finding of contributory negligence against him, and having assessed damages at £5,390 and having reduced the figure as a result of apportionment of fault as to 70% against the defendant and as to 30% against the plaintiff, gave a decree for £3,773 and costs, against which the defendant has now appealed.
Two photographs put in evidence show that the tree was still covered with green foliage, despite the lateness of the year. It was growing by the edge of the highway and as the road was not very wide, the tree in falling blocked the entire road. The impact was between the upper part of the tree and the car, which was *859 travelling along the opposite side of the road from where the tree was growing. There was meteorological evidence to confirm that it was not a day of very high winds — the prevailing wind was from the North-West, force 5, 20 knots approximately, with gusts of around 40 knots (gale force) in showers. The normal effect of gale force winds was described in the meteorological report as follows: ‘Breaks twigs off trees; generally impedes progress’. Accordingly, it seems clear that the fall of the tree cannot be attributed to abnormally high wind, but rather was caused by some inherent defect in the condition of the tree.
The plaintiff said: ‘When we got out, we saw that the bottom of the tree was rotten completely.’ … ‘The tree was brown and mushy — you could put your finger through it’. Asked in cross-examination whether this condition was visible externally he said, ‘I can’t say; it was completely rotted; I didn’t study the whole tree. I looked at the stump and the tree.’ It was put to him that there was no evidence on the outside of the stump of decay, to which he replied, ‘I didn’t look … The stump was mushy — towards the centre and outside of centre.’
His brother, Paul Lynch, who was a passenger in the car, said he looked at the bark of the tree. ‘I could break it off, the rot was more or less to the outside. I can’t say what it looked like standing straight up. It was rotten right across the centre. The outside was soft and mushy.’
Michael O’Driscoll, an engineer with Westmeath County Council, gave evidence that a notice was sent out to the defendant after the big storm in 1985, in the following terms:
Dear Sir/Madam — Re/Potentially Dangerous Trees — It has come to the notice of Westmeath Co. Council that trees on your lands at Kilrush are considered potentially dangerous due to their proximity to a public roadway. In the circumstances, the council request that you examine these trees to ensure that they are safe. Where the trees are considered to be potentially unsafe, you are requested to carry out such pruning or felling as may be necessary to eliminate any potential danger to road users.
Thanking you in anticipation of your help and co-operation in this matter.
He said that he knew the scene, and the defendant’s lands, and inspected the area after the accident. He said that he knew the tree which fell. It looked superficially healthy. He would mark dead trees or trees with overhanging branches, and require work to be done. He did not claim to be particularly qualified in respect of trees. He would note them by driving slowly along the road or walking the road, but did not examine them.
The defendant, Liam Hetherton, said that the tree was located on an out-farm which he used for grazing, and which he would pass five days a week. He looked at the tree after the accident; it had been cut up; the stump remained in the ditch. *860 He saw white mould down at ditch level, where it had broken off, but this was not visible until the tree had broken.
He said he was checking fences every day. There was a row of wire on this ditch and connected to this tree. He had tightened it with staples ten days before the accident at a point two feet above grouhd level. The tree (at that point) was very sound and firm — it wouldn’t hold a staple if mushy. He described it as an ash-tree, about 20 years old, a very fast-growing tree. It had nothing unusual about it. It was only about one foot in diameter. If he noticed decayed leaves or rotten branches he would take it down, and he had the equipment for this purpose.
In cross-examination he said that he did inspect his trees, and had started cutting down all his trees along the road for two winters up to 1987. He had cut down 12 to 18 before the accident. He did not employ an expert to look at them. The tree was not rotten on the outside. It was sound on the outside. An area in the centre was rotten, but not the outer rings.
The legal principles applicable to the circumstances of this case have been considered in a number of decided cases, principally by the English courts.
Agreement has been reached on the general principle that a landowner having on his lands a tree or trees adjoining a highway or his neighbour’s land is bound to take such care as a reasonable and prudent landowner would take to guard against the danger of damage being done by a falling tree, and if he fails to exercise this degree of care and damage results from such failure on his part, a cause of action will arise against him. See:
Noble v Harrison [1926] 2 KB 332
Cunliffe v Banks [1947] 1 All ER 459
Brown v Harrison [1947] WN 191
Gillen v Fair (1956) 90 ILTR 119
Caminer v Northern & London Investment Trust Ltd [1951] AC 88
Quinn v Scott [1965] 1 WLR 1004.
However, greater difficulty has been experienced in defining the degree of care expected of the reasonable and prudent landowner, and the law has been left in a state of some confusion in this respect. For a plaintiff to succeed in an action for damages arising out of an incident of this kind, he must establish as a matter of probability that the landowner was aware, or should have been aware, of the dangerous condition of the tree which ultimately caused it to fall. In the absence of positive evidence about the state of knowledge of the landowner — which would rarely, if ever, be forthcoming, — it will suffice to discharge the onus of proof if the plaintiff can show that a proper inspection of the tree at reasonable intervals would have forewarned the owner that it was getting into a dangerous condition and that the danger should be averted by lopping or felling the tree or by other suitable means. But inspection by whom? By the defendant *861 himself, who may be a person having no expertise whatever in the matter? Or by a scientific arboriculturist? Or, in the absence of some degree of practical knowledge of the matter on the part of the defendant, then by someone with sufficient experience of trees to be able to identify and interpret the danger signals when they appear?
Lord Normand in Caminer said (at p. 99):
The test of the conduct to be expected from a reasonable and prudent landlord sounds more simple than it really is. For it postulates some degree of knowledge on the part of landlords which must necessarily fall short of the knowledge possessed by scientific arboriculturists, but which must surely be greater than the knowledge possessed by the ordinary urban observer of trees, or even of the countryman not practically concerned with their care.
In the same case, Lord Oaksey said (at p. 104):
Landowners are not all experts in the management of trees and those who are not perform their duty if they take reasonable steps to employ persons who are experts.
Lord Reid (at p. 104):
My Lords, I have no doubt that a person who has a tree which is in such a position that it or some of its branches may fall and injure some person passing along a busy thoroughfare is under some duty to those who pass. The place where the accident happened … was a busy street in London, and in what I say I do not intend to express any opinion about the extent of the duty of a person who has trees near an unfrequented highway or near some other place to which the public have access …
I think that the respondents’ duty was not limited to dealing with any danger of which they might happen to be aware; and if a person has any further duty than that with regard to trees his first step must be to look at those trees which are near the highway or to get someone else to do so on his behalf to see whether any of them is dangerous. … But it is not enough for the appellants to prove that the respondents failed to take any steps; to succeed they must also prove that proper inspection ought to have led to something being done which would have prevented the accident …. (p. 105)
So in my judgment the appellants can only succeed in this appeal if they can show that there was something about this particular tree which should have suggested that lopping or other action was necessary. What inspection will suggest will depend on the knowledge and experience of the inspector, and there has been some controversy about the degree of knowledge and experience necessary for adequate inspection. Plainly it would be no use to send a person who knew nothing about trees. The alternatives put forward were that he should be an expert or that he should have at least such knowledge and experience of trees as a landowner with trees on his land would generally have. As the question depends on what a reasonable man would do I think that it may be put in this way. Would a reasonable and careful owner, without expert knowledge but accustomed to dealing with his trees and having a countryman’s *862 general knowledge about them, think it necessary to call in an expert to advise him or would he think it sufficient to act at least in the first instance on his own knowledge and judgment? The evidence in this case does not suggest to me that he would, and does not convince me that he should, call in an expert. (pp. 107/108).
That decision was followed by Lavery J in Gillen v Fair, 90 ILTR 119, an appeal to the High Court from the Circuit Court, holding that the standard of care required was that of the ordinary, prudent landowner and that treating the plaintiff’s case as one of nuisance did not put it any further. That case concerned a fatal accident caused by the fall across a public road in Co. Mayo of a very large ash tree, 70 feet high, five feet in diameter, and about 130 years old. It stood back 32 feet from the highway.
The report contains the following passage (at p. 120):
His Lordship said that he had already held … that the condition of the tree, which in the event had proved to be dangerous, could not reasonably have been discovered by examination by an ordinary prudent landowner. It was proved that the tree was rotten in some respects. The defects were high up. There was black spot and fungus on it and portions of the bark had come off. These defects might be apparent to an expert but his Lordship did not think that every farmer in the country should employ an expert to examine every tree growing on their lands beside a highway. The standard of care required of a farmer in County Mayo having trees growing on his land adjoining a highway might not be as high as that required of an owner of a tree growing beside a highway in a thickly-populated, built-up area … In his view the fact that the tree in this case had a defect, which in a storm might cause it to fall, was such a latent defect that it was not discoverable by ordinary inspection or reasonable care … The case failed in nuisance as well as in negligence.
The decision in Caminer was again considered by Glyn-Jones J in Quinn v Scott [1965] 1 WLR 1004, where the tree which fell across the highway was a beech tree, about 200 years old and about 90 feet high, showing signs of scanty foliage and die-back, and being of an age when decay was to be apprehended. It was one of a belt of trees of similar type, owned by the National Trust, and bordering the public road for a distance of about a mile. Commenting on the speech of Lord Normand in Caminer, Glyn-Jones J said:
But in my opinion, there may be circumstances in which it is incumbent on a landowner to call in somebody skilled in forestry to advise him, and I have no doubt but that a landowner on whose land this belt of trees stood, adjoining a busy highway, was under a duty to provide himself with skilled advice about the safety of the trees.
He held that they had, in fact, employed such skilled advisers, but they had failed to detect the signs of decay and danger in time, although these should have been apparent to them on reasonable examination of the trees. In these circumstances he gave judgment against the landowner.
*863
In the circumstances of the present case, and having regard to the principles enunciated in the judgments already referred to, I consider that the defendant exercised the degree of care that would have been exercised by a reasonable and prudent landowner in satisfying himself that the tree which fell should not be regarded as a danger to persons using the highway. Even if a higher degree of care were demanded of him, such as arose in the particular circumstances of Quinn v Scott, involving the employment of an expert to advise about the condition of the tree, the evidence adduced in the present case has failed to satisfy me as a matter of probability that the internal decay of the tree would have been detected as a result of such expert examination, and I have been left with the impression that there were probably no external signs of disease or decay visible on the tree prior to the accident.
In these circumstances, while one must sympathise with the plaintiff on the damage and loss caused to him by the fall of the tree, I hold that liability for the accident has not been established against the defendant. I will allow the appeal, and dismiss the claim.
O’Kane v. Campbell
[1985] IR 116
Lynch J.
4th October 1984
The plaintiff resides in Glengarriff House at No. 4, Glengarriff Parade. This street is in the vicinity of Mountjoy Prison and runs northwards from North Circular Road to the Royal Canal and the railway-line. The plaintiff’s house is the second premises from the corner, the first being a shop which does not trade at night time and the plaintiff’s house is on the left-hand side as one enters Glengarriff Parade from North Circular Road.
The defendant’s premises are on the corner of Glengarriff Parade and North Circular Road but on the opposite side of Glengarriff Parade from the plaintiff’s house, that is to say on the right-hand side as one enters Glengarriff Parade from North Circular Road. The ground floor of the defendant’s premises is used by him for business purposes. In former years it was used as a hairdresser’s business then closing about 7 p.m. Later on it was used as a grocer’s business trading up to 7 p.m. at first and later on again trading until 11 p.m. More recently, and apparently about 1977 or 1978, the premises commenced to trade on a “24 hour” basis. This occurred first when it came into the ownership of a Mr. Davey who bought the said premises in 1977. The defendant purchased the premises from Mr. Davey at a time when it was already being used as a 24 hour shop trading 7 days a week and the defendant at the time of his purchase was unaware of any objections from the neighbours if indeed any had yet been made.
The plaintiff claims that the use by the defendant of his premises for all night trading constitutes a nuisance to her in the enjoyment of her premises. The defendant denies the alleged nuisance and further says that he is using his own premises for a perfectly lawful purpose which is of benefit to the area and that he is not to blame for the conduct of members of the public over whom he has no control except when they are actually inside his shop premises. The plaintiff says, however, that it is the defendant’s night trading which attracts and causes the matters of which she complains and if in fact these matters do cause a nuisance to her premises this is a valid submission in law as to the defendant’s responsibility for at least the ordinary natural conduct of people whom he attracts to the neighbourhood.
The evidence of a Mr. Beacham, a private detective, was not really contradicted by the defendant who accepted that it was substantially true. Perhaps there was some extra custom on the two nights that Mr. Beacham observed because it was the week-end of the All Ireland G.A.A. Final but by and large his evidence gives an accurate picture of the usual week-end state of affairs. He was in the plaintiff’s house from 2 a.m. to 5 a.m. on both the Saturday and the Sunday mornings of that week-end. On each of these mornings he observed over 30 attendances at the defendant’s shop which were clearly audible through the closed windows of the front bedroom of the plaintiff’s house.
These are the normal and inevitable noises of ordinary law abiding people going to and from the shop from and to cars, motor-bikes, vans, trucks and on foot. Such noises are the revving of engines, the banging of doors (and they have to be banged to some extent to close them at all), the playing of radios in the vehicles and cordial “hellos” and “goodbyes” between people meeting each other, as well also as the clacking of hard heeled shoes on the footpaths and roads. This gives an average of 10 events per hour or one per every 6 minutes. Of course they would not be as uniform as one every 6 minutes but a picture emerges of audible attendances at the shop every 10 to 15 minutes throughout the night. This is consistent with a stated turnover of some £3,500 per week from night trading mostly at the week-ends.
The noise is not such as to call for garda intervention. There was no breach of the peace nor disorderly behaviour on these occasions. But Inspector Finn who investigated the complaints on a couple of occasions said that in his opinion the noise was sufficient to disturb sleep in the plaintiff’s house. Elderly residents of Glengarriff Parade gave similar evidence of disturbance.
On the other hand, younger people gave contrary evidence. Most of these witnesses, however, lived on the North Circular Road itself, where different conditions apply from those obtaining in Glengarriff Parade. Nurse Horan gave evidence that when she lived in No. 6 Glengarriff Parade which is next door to the plaintiff’s house she was not disturbed. Perhaps this contradiction between the evidence of the various witnesses is simply an example of the
perennial generation gap. Young people can sleep in spartan conditions such as youth hostels, camping, sleeping bags or mattresses on floors. Nurses have necessarily to acquire the ability to sleep in difficult circumstances. Elderly people perhaps sleep more lightly but they are not abnormal for that and they are entitled to their night’s sleep.
Glengarriff Parade is an old established residential street. It is just removed from the bustle of other more busy places in the area. There are only two shops on the street which are situate at the corner with North Circular Road on each side of Glengarriff Parade. If the defendant’s shop were on Glengarriff Parade itself it would constitute a clear nuisance by traffic congestion and noise, etc., in a narrow street. If, on the other hand, his premises were completely on North Circular Road and a little distance away from Glengarriff Parade there would be hardly any doubt but that there was no actionable nuisance. North Circular Road is a wide busy street both by day and by night and more noise must be expected and accepted by the residents of that road and especially in the vicinity of the hospital, the garda station and the prison.
But the defendant’s premises is neither of these. It is situate on the corner of both roads. The shop door is on North Circular Road but vehicles stop at the mouth of and into Glengarriff Parade and cause enough noise through the night to disturb the sleep of residents in Glengarriff Parade.
As Henchy J. said in Mullin v. Hynes (unrep. Supreme Court, 13th November, 1972) which is reported in McMahon and Binchy’s Casebook on the Irish Law of Torts at page 524 and 529 and in particular at page 526:
“In a claim for a private nuisance of this kind the judge has to act as an arbiter between the competing interests of the respective property users. He has to decide which is to prevail, the defendant’s claim to use his property in the impugned manner or the plaintiff’s claim to use his property free from the damage caused by the defendant.”
Leaving aside altogether the evidence of the plaintiff herself and the other witnesses called on behalf of the plaintiff, I accept the evidence of Miss Hilda Hunt, Mr. Edward Brown, and Miss Pauline McKinney that the advent of the 24 hour shop trading 7 days per week has drastically altered the amenity of Glengarriff Parade as a residential street. I am satisfied that this night trading constitutes a nuisance to the plaintiff in the enjoyment of her house and subject to the issue of delay she is entitled to relief.
I am also satisfied that there has been no undue delay. There are many cases such as this where a lot of neighbours will express support for the action but are then unwilling to risk the actual litigation and delays arise in trying to persuade them to support an action. The plaintiff was collecting signatures of supporters in the neighbourhood and the defendant must have been aware of this in the years 1980 and 1981. A letter of complaint was written in October,
1981. The defendant cannot shorten the period of prescription from 20 to 2 years by saying that he did not realise that there were or would be objections when he bought and paid for the premises. In Mullin v. Hynes (unrep. Supreme Court, 13th November, 1972) the defendant built his dance-hall in 1961 but the proceedings were not started until January 1967 and, nevertheless, the plaintiff succeeded.
The plaintiff in this case is therefore entitled to relief but the defendant is to be disturbed in the use and enjoyment of his property to the minimum extent consistent with giving reasonable relief to the plaintiff. I considered whether I should limit the injunction so as to prohibit only night trading in such a way as to cause a nuisance but I have come to the conclusion that this would be unworkable because any night trading at all will cause an actionable nuisance by the noise made by ordinary law abiding citizens in resorting to the premises.
I therefore affirm the order of the learned Circuit Court Judge but I vary it as follows:
“The defendant is hereby prohibited and injuncted from opening or keeping open to the public or trading or carrying on business with the public in or from the premises known as Campbell’s corner No. 409 North Circular Road in the City of Dublin between the hours of midnight and 6 a.m., during all seasons of the year.”
“I shall put a stay on the commencement of the Order until Saturday the 1st December, 1984, to enable the defendant to make arrangements as to staff. etc. The Order will therefore come into operation at midnight on the 1st December, 1984.”
I award costs to the plaintiff in both the High Court and the Circuit Court and each party shall have liberty to apply to the Circuit Court.