Neighbour liable to farmer for agreed sum of damages following flooding incidents

Clarke J (nem diss): Appeal from the High Court (Dunne J.) - dispute between neighbours - two separate but connected flooding events - damage, eventually agreed at €44,757.00, occurred to the property – High Court held that it was as a result of a nuisance on the part of the neighbour – farmer noticed that water levels around his home were rising – entered his neighbour's property and noticed that a three-inch pipe under a farm pass was blocked - farm pass or roadway had been constructed the previous year - the farm pass was acting as a dam - no substantive response from the neighbour – later that evening, water was coming through the back door of his house – farmer obtained help from a local county council engineer, who arranged for the pass to be breached by a JCB - the water level subsided – next day, the trench having been filled in, water levels rose again and flooded the farmer’s property - farm pass in question was constructed without planning permission - construction of the farm pass was defective in that it provided inadequate means of allowing water to pass under it - damages were agreed but liability was contested - no attempt was made by the parties to distinguish between damage which might have been caused respectively by the flooding which occurred on the first night and that which resulted from the second night – neighbour denied that the existence of the farm pass had actually caused the flooding – neighbour denied that he had been responsible for the filling of the breach between the flooding incidents - no serious legal issues raised - question of foreseeability - the adverse consequences for the farmer which resulted from the construction of the farm pass were not foreseeable in respect of the events which occurred on the first night - it was foreseeable that the consequence filling in the trench without taking any appropriate steps to put in drainpipes or other measures which would have allowed floodwater to dissipate if there were further heavy rains would be to cause renewed flooding – neighbour was found liable in respect of the second night only - trial judge indicated that it was not possible for her to make any distinction between the damage which had been caused on each respective occasion and, therefore, gave a decree in the agreed sum - motion seeking to amend the notice of appeal by the addition of some further grounds - heard at the same time as the substantive appeal - whether it is appropriate to allow the defendant to amend his notice of appeal – two substantive grounds are sought to be added to the notice of appeal – a landowner is entitled to protect his lands against flooding even if it is foreseeable that the consequence of his protection may be to increase flooding on some neighbouring lands - he was therefore entitled to have his lands protected from flooding – the farmer’s claim should not have succeeded even though it was found by the trial judge that the building of the farm pass had actually caused the flooding – argued that the trial judge had failed to consider whether the building of the relevant land pass was or was not a reasonable use of the neighbour’s lands - grounds not raised in the High Court - extent to which it may be appropriate to allow someone to raise on appeal a point which was not argued in the court of trial – original appeal sought either a reversal of the trial judge's finding or, alternatively, a retrial on the question of the extent to which any additional damage was caused by the flooding on the second night – neighbour argued that he should only be liable for damages arising from the Saturday night flooding – no argument was put forward on behalf of the neighbour at the trial which suggested that it might be necessary to seek to separate the damage resulting from the respective incidents - failure of neighbour to raise such an argument at the trial deprived the farmer of the opportunity to lead such evidence.