Suing dam operator for flood damage has precedent

MANILA, Philippines — To sue a dam operator for sudden and unadvised release of water from its facility may be a prudent recourse, as shown by previous court decisions wherein damage pay was awarded to affected residents in connection with the massive flooding in Norzagaray, Bulacan in 1978.

A review of jurisprudence would show that residents of Norzagaray won their civil suits against the National Power Corp. (NPC), which was directed to pay the affected residents millions of pesos in actual and moral damages, litigation expenses and attorney’s fees.

The cases were in connection with the inundation of Norzaragay town on Oct. 26 to 27, 1978 at the height of Typhoon Kading. The flooding was purportedly caused by the NPC’s release of water from three floodgates of its hydroelectric plant in Angat Dam.

Based on records of the case, the three floodgates were opened by the NPC at late night of Oct. 26 to early morning of Oct. 27, which caught the residents by surprise, most of them barely managing to climb trees or the roof of their houses.

The incident left around 100 people drowned, together with several cattle, livestock and domestic animals. Over a hundred houses and establishments were also destroyed.

A total of 11 civil cases were filed by the residents before the Regional Trial Court of Malolos, Bulacan against the NPC and its then plant supervisor Benjamin Chavez. The RTC dismissed four of the cases while the rest were ruled in favor of the complainants.

All the cases were elevated to the Court Appeals (CA), which, in two decisions promulgated on Sept. 18, 1990 and Aug. 19, 1991 sided with the Norzagaray residents.

The CA directed Chavez and the NPC to pay the residents moral and actual damages as well litigation expenses ranging from P20,000 up to P500,000 each.

In its decisions, the CA said the loss of lives and destruction of properties were caused by the NPC’s “patent gross and evident lack of foresight, imprudence and negligence in the management and operation of Angat Dam.”

For one, the CA noted that as early as Oct. 24, the media have been reporting about the upcoming typhoon, and yet the NPC did not gradually release water from its floodgates even if the water was already at critical level.

“As observed correctly by the trial court (Malolos RTC), had the opening of all the three spillways been made earlier and gradually, there would have been no need to open the same suddenly... What made the situation worse was that the opening of the spillways was made at the unholy hours when residents were asleep. The plaintiffs all testified that they were never given any warning that the spillways would be opened to that extent,” the CA’s 1990 decision read.

The Supreme Court upheld both the 1990 and 1991 rulings of the CA in decisions promulgated on July 3, 1992 and May 21, 1993.

The high tribunal said that Chavez and the NPC cannot invoke the act of God or force majeure to escape liability “since they were guilty of negligence.”

“The event then was not occasioned exclusively by an act of God or force majeure; a human factor – negligence or imprudence – had intervened,” the SC said.

Typhoon Ulysses

The aftermath of Typhoon Ulysses that battered Luzon last week was supposedly made worse by the sudden release of water from the Angat and Magat dams.

Marikina Mayor Marcelino Teodoro on Friday said he was planning to sue the management of Angat Dam for negligence over the alleged failure to inform the city government that it would be releasing water.

Teodoro pointed out that weather specialists and disaster management officials only anticipated the water level from Marikina River to reach up to 18 meters but because of Angat Dam’s unadvised opening of floodgate, the water level reached 22 meters, higher than the 21.5 meters recorded during Tropical Storm Ondoy in 2009.

Meanwhile, Cagayan Gov. Manuel Mamba, in a radio interview on Saturday, said his constituents were also urging him to sue the management of Magat Dam not only for the inundation of almost the entire province after the onslaught of Typhoon Ulysses but also for the yearly floods they suffer supposedly due to the dam’s poor maintenance.

Mamba explained that irrigation water from Magat Dam all flow through Isabela and yet the towns in Cagayan were the ones suffering from constant floods.

“The people of Cagayan wanted a lawsuit against them (Magat Dam management) for damages. We do not reap any benefit from Magat Dam and yet we suffer the flooding woes from Magat Dam every year,” Mamba said.

Mamba blamed the flooding on Magat Dam’s deteriorated watershed.

He pointed out that if the watershed is in good condition, it can hold much water even after heavy rainfall, thus water can be released gradually.