Nuisance Issues
Cases
Harrington Confectioners Ltd v Cork City Council
[2005] I.E.H.C. 227
JUDGMENT of Mr. Justice Gilligan as delivered on 5th day of July, 2005.
The plaintiff in these proceedings all carry on business at Churchfield Commercial Park, John F. Connelly Road, Cork. The defendant Cork City Council originally owned the lands upon which Churchfield Commercial Park is situate and presently own the surrounding lands, John F. Connelly Road, the adjacent footpath, and the strip of land on either side of the footpath. The Commercial Park has been operating since in or about 1971 and the plaintiffs and various other persons purchased sites or units from Cork City Council by way of long leases. John F. Connelly Road is a cul-de-sac which ends in a sports ground.
Since in or about 2002 a number of caravans without any legal entitlement have entered onto John F. Connelly Road the adjacent footpath and the strip of land adjacent to the footpath and at times there were in excess of 20 caravans parked adjacent to the John F. Connelly Road and immediately adjacent to the various plaintiffs business premises. The persons involved were members of the travelling community and over the passage of time they have brought caravans trailers motor vehicles animals equipment and other matter onto the defendants lands and at times there can be upwards of 80 men women and children together with an assortment of animals. There are no sanitary facilities and the general area is used by these persons for public toilet facilities. The persons involved deal extensively in scrap metal and white goods with the added complication that they appear to remove certain parts from disused white goods for the purpose of sale leaving the remainder of the white good articles at the side of the road and in particular on the verge to the immediate north of the entrance to the recycling enterprise on John F. Connelly Road.
It is submitted on the plaintiffs behalf that the nuisance in this instance was ongoing for two and a half years prior to the institution of these proceedings and that while it is accepted that the defendant has taken some steps to ameliorate the situation the plaintiffs maintain that the nuisance continues unabated and as of 27th June, 2005 there are 13 caravans situate on John F. Connelly Road and its environs and the plaintiffs seek an injunction by way of notice of motion pending the determination of these proceedings directing the defendants to take all necessary steps to remove all trespassers from its lands situate at Churchfield and to abate the nuisance and a further injunction directing the defendant to take all necessary steps to ensure that the defendants lands are secured in a manner that is appropriate and necessary to prevent trespassers entering upon the said lands.
The defendant maintains that it has taken all reasonable steps to date to abate the nuisance and that in particular it has erected a large number of cement bollards along the areas immediately adjacent to the road surface of John F. Connelly Road and has brought about a situation whereby there is now only parking space for the 13 caravans that are in situ. The defendant maintains that it has tried albeit somewhat unsuccessfully to replace caravans that have left the area with cement bollards but this has not proved always to be possible by reason of the fact that when one caravan departs another one immediately takes it position. Further the defendant maintains that it has not adopted the area where the travelling community are situate as a halting site by reason of the fact that it has declined to provide sanitary facilities and running water. Summonses in the District Court were instituted against some of the members of the travelling community but these had to be withdrawn because of a defect and it is not possible for the summonses to be re-issued and furthermore every effort is being made to provide a transient halting facility but given the nature of the facility proposed and the difficulty including political difficulties and legal challenges the timescale for this project may have to be extended significantly and the defendants concede that the provision of a transient halting site does not represent a realistic solution to the plaintiffs problems in the short term. The defendant contends that these particular travelling people are nomadic and most if not all of them do not wish to be re-housed but simply wish to stay where they are on the John F. Connelly Road.
Extensive argument was raised before me on the hearing of the motion as regards the possibility of the defendant relying upon the Local Government Sanitary (Services) Act 1948 in dealing with the present problem and in particular s. 31 thereof. I do not consider that it is appropriate for this court to determine this issue without hearing the evidence that will be adduced at the trial of the action.
Michael Harrington on behalf of the first named plaintiff avers that he is totally frustrated about the length of time it has taken the defendant to come up with a solution to this ongoing problem and that it is the plaintiffs belief that the defendant has no real appreciation of the difficulties involved in running businesses with staff and customers at John F. Connelly Road given the nature of the nuisance being caused and permitted by the defendant on its lands by reason of the presence of members of the travelling community. The first named plaintiff refers by way of example to the ongoing problem with a FAS Training Centre on the John F. Connelly Road where the trainees were afraid to go to work unless they had transportation past the various caravans and dogs.
The defendant says in effect that it is doing its best in the unfortunate circumstances that have arisen, that it has considerable sympathy with the plaintiffs situation, but it has nowhere to re-house or re-site the relevant members of the travelling community with their caravans and that if they were forced off this site at the present time the same problem as a matter of probability would be created somewhere else.
I have sympathy for the position in which Cork City Council finds itself but it cannot seek to solve its difficulties by permitting an unlawful use to be made of its lands both on and in the immediate surrounding area of the John F. Connelly Road which has given rise to a serious nuisance which has been ongoing since in or about 2002 and which has necessitated the plaintiffs instituting these proceedings on 13th January, 2005.
In my view the defendant has not taken all reasonable steps to abate the nuisance and has not without undue delay remedied the situation when it became aware of it.
As Lord Wright stated in Sedleigh Denfield v. O’Callaghan (1940) AC 880 “the responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if with knowledge, he leaves the nuisance on his land.”
In my view two significant problems that have prolonged the nuisance on the John F. Connelly Road require to be highlighted. The first is that the defendant has taken inadequate measures to ensure that new caravans cannot enter onto the road to take the place of those caravans who wish to move on as has been the situation which has occurred on a number of occasions. Secondly the defendant has taken no adequate steps to clean up the roadway and its adjacent environs of the waste and rubbish that has been dumped there by members of the travelling community and in particular the vast array of white goods at the verge to the immediate north of the recycling enterprise and if this were to be done cement bollards could be placed along this area thereby preventing its use as a parking site for caravans. I have difficulty in coming to terms with Mr. O’Brien’s averment relating to the involvement of Mr. O’Mahony of the Environment Directorate of Cork City Council and his view that he did not wish to facilitate the travellers business by disposing of the white goods for them and facilitating their replacement with further white goods.
I accept that Cork City Council has never given its permission for either the trespass or the tortuous activities which are taking place on its lands but it has not taken adequate action to bring the nuisance to an end in an effective way and in these circumstances Cork City Council has with knowledge left the nuisance occurring on its lands.
The plaintiffs satisfy me that they have made out a serious issue to be tried have demonstrated the irreparable nature of the damage being sustained by them and have shown that the balance of convenience lies in favour of the grant of an injunction. In attempting to strike a balance between the parties and bearing in mind the potential difficulty of the enforcement of the requested injunction prohibiting nuisance alone I come to the conclusion that the appropriate order to be made should be in the following terms
1. An injunction directing the defendant to take all reasonable steps to remove all trespassers from the John F. Connelly Road and its environs situate at Churchfield in the City of Cork.
2. An injunction directing the defendant to take all such action as is necessary to ensure that no further caravans are permitted entry to the John F. Connelly Road and its immediate environs, pending the determination of these proceedings.
3. An injunction directing the defendant within 14 days from the making of this order to carry out a complete and extensive clean up of the John F. Connelly Road the footpaths immediately adjacent thereto and the grassed areas between the footpaths and the adjacent fences to include cleaning away all the remnants of white goods as situate on the verge to the immediate north of the recycling enterprise and to place thereon cement bollards so as to prevent further access thereto by caravans.
4. An injunction directing the defendant to take all reasonable steps to abate the nuisance upon the said lands such steps to include a general clean up of the John F. Connelly Road and its immediate environs every 21 days pending the determination of these proceedings.
5. There shall be liberty to apply to either party.
Approved: Gilligan J.
Judgment of Mr. Justice de Valera delivered on the 15th day of April 2005.
This action has been brought by the plaintiff Kevin Patrick Hayes as the father and personal representative of Thomas Paul Hayes who died on the 30th January 2002.
The plaintiffs claim is as one of the dependants within the meaning of s. 47 of the Civil Liability Act, 1961 of Thomas Paul Hayes and it was brought by him on his own behalf and on behalf of the other dependants.
The persons on whose behave the action has been brought are:
(a) Kevin Patrick Hayes – Father of the deceased.
(b) Jane Hayes – Mother of the deceased.
(c) Jennifer Hayes – Daughter of the deceased.
(d) Scott Hayes – Son of the deceased.
(e) Helen Hayes – Sister of the deceased.
The father, mother and sister of the deceased have the waived their claims as dependants in favour of Scott and Jennifer respectively the son and daughter of the deceased.
Thomas Paul Hayes had been paralysed in a road traffic accident which occurred when he was a young single man. When in a wheelchair he met and married his wife who was, tragically, subsequently to die of complications from an appendix operation in hospital. Prior to her death the couple had adopted two children neither of whom were old enough to remember their mother at the time of her death.
Having qualified and obtained a good job the deceased brought up his two children, from all the evidence with remarkable success, until he was involved in another road traffic accident the subject matter of these proceedings as a result of which he was killed.
The evidence in this action was given, movingly, by the plaintiff the deceased’s elderly father and Scott.
Jennifer did not give evidence.
The only other evidence was from Brendan Lynch an actuary on behalf of the plaintiff.
This is an unusual claim insofar as it has been argued before me that because of the particular circumstances of the deceased there would have been permanent financial losses in respect of both Scott and Jennifer for the deceased’s lifetime.
In the circumstances of this particular action and particularly having heard, and been impressed by, the evidence of the plaintiff and of Scott I am satisfied that the relationship between the two children and their father and particularly between Scott and his father was such that the deceased would have continued to contribute financially to both his children during the course of his lifetime.
In particular I accept that Scott would have continued to live with his father at the family home; this would not necessarily have interfered with any matrimonial plans Scott might have made and although I have no evidence from Jennifer I am satisfied on the balance of probabilities that given the particular circumstances and the close nature of her relationship with her father that he would have continued to make contributions to her during the same period albeit not to the same extent as to Scott.
On the basis of Mr. Brendan Lynch’s evidence and report, which I accept with the exception which I am about to specify, the total figure which I propose to award under the heading of dependency loss is €400,000.00.
I have deducted a figure of approximately €71,000 from Mr. Lynch’s calculations to allow for what I believe would be a difference in dependency between Scott and Jennifer – the calculation of damages in such matters is not entirely an exact science and this is a figure which I believe to be appropriate rather than one capable of precise calculation.
To this figure must be added agreed special damages of €34,684.67 and damages for mental distress of €25,400.
€400,000.00
€034,684.67
€025,400.00
Total: €460,084.67
Signed:______________________
Eamon de Valera
Approved: Eamon de Valera
Larkin v Joosub
[2006] I.E.H.C. 51Judgment of Ms. Justice Finlay Geoghegan delivered 23rd February, 2006.
The plaintiffs are the owners of No. 17 Upper Leeson Street in the city of Dublin. It is held as an investment property and let in units. The first named defendant and his late uncle, Ismail Joosub, were the owners of No. 16 Upper Leeson Street until it was vested in the second named defendant, the Dublin City Council, on the 22nd September, 2000, following procedures taken by the City Council pursuant to the provisions of the Derelict Sites Act, 1990. The third named defendant is joined as representative of the estate of the late Mr. Ismail Joosub. In this judgment I will refer, as necessary, to the first named defendant and the interest represented by the third named defendant collectively as “The Joosub Defendants”. Nos. 16 and 17 Upper Leeson Street are adjoining terraced houses. In August, 1998 a fire occurred in No. 16 Upper Leeson Street, which left what was initially a small hole in its roof. It is undisputed that the hole in the roof got bigger with time and was not repaired until February, 2001.
The plaintiffs’ claim is for loss and damage which they suffered by reason of damage alleged to have occurred to No. 17 as a result of water falling through the hole in the roof of No. 16 and its percolation along and through the party wall between Nos. 16 and 17 with resultant damage to No. 17. The losses claimed are the costs of repair of the damage to No. 17 and loss of rent.
The plaintiffs’ claim against the Joosub defendants and Dublin City Council was put forward on the following grounds:
(i) A claim in negligence against each defendant for the respective periods for which they were the owners of No. 16 Upper Leeson Street.
(ii) A claim in nuisance against each of the defendants for the respective period in which they were the owners and occupiers of No. 16.
(iii) A claim pursuant to the rule in Rylands v. Fletcher against each of the defendants for the same respective periods.
(iv) A claim against the City Council for negligence and breach of duty in the exercise of its statutory powers and duties under the Derelict Sites Act, 1990.
In the course of the hearing it became apparent that many of the issues relating to the quantum of damages depended on whether or not active dry rot was present in Nos. 16 and 17 Upper Leeson Street. Further, it appeared that there was substantial agreement that Dr. Brian Ridout was an appropriate expert to carry out an inspection on both properties and report. Accordingly, on the 12th July, 2005, the Court made orders pursuant to O. 50, r. 4 of the Rules of the Superior Courts for the entry of the persons named therein to Nos. 16 and 17 Upper Leeson Street and, for the carrying out of an inspection, the taking of samples and the furnishing of a written report to all the parties including recommendations as to the necessary treatment and works to be carried out to affected areas (if any). The Court also made on the same day orders that the plaintiffs, following Dr. Ridout’s report, furnish details of the remedial works required having regard to the contents of the report and the cost of same and ordered a response from the defendants.
Following the provision of the report by Dr. Ridout and the further exchanges directed between the parties, the Court was informed that agreement had been reached, without admission of liability by the defendants, that the cost of the remedial works to No. 17 resulting from the penetration of water is €275,000 (inclusive of VAT) and that further agreement had been reached (again without admission of liability) that the loss of rental income of the plaintiffs for the periods (both past and future) during which the plaintiffs were or will be unable to let all or part of No. 17 Upper Leeson Street by reason of water percolation and repair works was agreed at €255,000.
The report of Dr. Ridout of August, 2005 and subsequent reports from the relevant architects, structural engineer, quantity surveyor and comments of a consultant timber technologist were handed in to court to form part of the evidence in the case by agreement of the parties. Having regard to the agreement reached on quantum, nothing turns on the detailed content of those reports and no oral evidence was called from the persons preparing same.
The parties each prepared outline closing submissions in writing and closing oral submissions were made in November, 2005 by counsel on behalf of all the parties. Whilst the defendants each deny liability for the losses claimed in the agreed amounts no submission was made that any defendant was not liable for any specified portion of the losses.
The plaintiffs, in opening the case and in their closing submissions, claimed damages also by reason of the alleged state of dereliction of No. 16 Upper Leeson Street as a consequence of which it became occupied by squatters and allegedly infested with rats. As the two heads of damages in respect of which the quantum has been agreed (without prejudice to the issue of liability) are agreed as the quantum caused by water penetration, it is unnecessary for the Court to consider this additional claim. There is no separate amount of damages claimed to have resulted from the alleged state of general dereliction of No. 16 Upper Leeson Street.
The defendants each contend that the plaintiffs failed to mitigate their loss.
The City Council also contends that, on the authority of the decision of the Supreme Court in Shelly-Morris v. Bus Átha Clíath [2003] 1 IR 232 and an alleged exaggeration by the plaintiffs of their claim and an alleged intention to deceive the court, to which I will refer in more detail below, that the plaintiffs are not entitled to recover damages from the defendants.
Claim in negligence against first and third defendants
The plaintiffs’ claim in negligence against the first and third named defendants is that as owners of the adjoining property they owe a duty of care to the plaintiffs to take reasonable care of the premises of which they are owners so as to prevent it from becoming dangerous and a nuisance and causing damage to the property of the plaintiffs. The plaintiffs rely upon the judgment of Davitt P. in Victor Weston (Éire) Limited v. Kenny [1954] I.R. 191 in relation to the nature of the duty of care owed by an owner of property to adjoining owners. In that case the plaintiff was a tenant of a ground floor and basement premises in Middle Abbey Street, Dublin. The defendant was the owner of the premises and the landlord. The defendant had let the remaining three floors of the premises and had retained the hall, staircases and landing on which there were lavatories which were not included in any of the leases or lettings of the premises. Flooding occurred by reason of a tap having been left on in a top floor lavatory which damaged the plaintiff’s stock in the ground floor and basement. The evidence was that, prior to the incident in question, complaints had been made to the defendant that the tap in the lavatory was defective. Davitt P. held the defendant liable for the damage to the plaintiff’s stock. In relation to the duty of care he stated at p. 197:
“The maxim, sic utere tuo ut alienum non laedas, expresses in the broadest way the duty which a person, being the owner or occupier as the case may be of lands or buildings, owes to his neighbour, whether that neighbour be an adjoining owner or occupier, a person lawfully upon adjoining premises, or a member of the public using the adjoining highway. The extent of the duty varies from an absolute obligation to prevent dangerous matter from escaping, as in the case of Fletcher v. Rylands L.R. 1 Ex. 265 to an obligation to take reasonable care to prevent the premises from becoming dangerous and a nuisance, as in Cunard and Wife v. Antifyre, Ltd. [1933] 1 K.B. 551, Taylor v. Liverpool Corporation [1939] All E.R. 329 (as regards persons on adjoining premises) and Kearney v. London and Brighton Railway Co. L.R. 6 Q.B. 759, Tarry v. Ashton 1 Q.B.D. 314, Palmer v. Bateman [1908] 2 I.R. 393 (as regards persons on the highway).”
In the decision at p. 198 Davitt P. expanded further on the duty of care where he stated:
“I can see no difference in principle between the position of the defendant in this case and that of the landlords in Hargroves, Aronson and Co. v. Hartopp [1905] 1 K.B. 472 and Cockburn v. Smith [1924] 2 K.B. 119. It seems to me that the same principle applies to each, and that the defendant in this case was under a legal obligation to take reasonable care to prevent any part of the premises which he retained from becoming a source of danger or damage to the adjoining occupiers, his tenants, and so to prevent the water from escaping from his top lavatory and doing damage. The next point to be decided, therefore, is whether the defendant was negligent.”
Counsel for the first and third defendants sought to distinguish the above decision by reason of the fact that the defendant was a landlord. It does not appear to me that it is capable of being so distinguished. The principles as stated appear to me to relate to the defendant as an owner of adjoining property and I would respectfully agree with them as such. Accordingly, I conclude that the first and third named defendants were under a legal obligation to take reasonable care to prevent any part of their premises at No. 16 Upper Leeson Street from becoming a source of danger or damage to the adjoining occupiers or owners including the plaintiffs.
In Victor Weston (Éire) Limited v. Kenny the defendant was found to be negligent. That finding was primarily based upon the neglect by the defendant of the retained portion of the premises. The defendant was considered by the judge to have been under an obligation to carry out a periodic inspection of the retained portions and in particular the lavatories and water supply.
On the facts of this case the plaintiffs’ claim is that the Joosub defendants were in breach of the duty of care owed to them as the owners of the adjoining property in failing to repair the hole in the roof caused by the fire in August, 1998. It is submitted that those defendants knew, or ought to have known, of the hole in the roof; that as the hole in the roof was located close to the party wall with No. 17 it was foreseeable that if rain was permitted to enter through the hole in the roof that it would flow down the party wall, penetrate into No. 17 and cause damage to No. 17.
It is not disputed that the hole in the roof was close to the party wall. As a matter of common sense it is foreseeable that a hole in a roof close to a party wall in a terraced house, which permits rain to fall down along the party wall, may cause damage by penetration of the water through the party wall into the adjoining premises. The only real issue is whether the Joosub defendants on the facts herein knew, or ought to have known, of the hole in the roof caused by the fire.
The Joosub defendants had been resident in South Africa for many years prior to the fire. The first named defendant did not give evidence. The evidence of Mr. Larkin, the first named plaintiff, was that the property was looked after on behalf of the owners (then unknown to him) by a Mr. Con Ryan, an estate agent. Mr. Ryan did not give evidence.
On the evidence, I find that No. 16 was already in a derelict state prior to the fire in August, 1998. Prior to that date the property had been occupied by squatters and the subject of many complaints from Mr. Larkin to Mr. Ryan, the City Council and others. In 1997 Mr. McLoughlin of the Derelict Sites Section of the City Council wrote directly to the first named defendant in South Africa. In response to that letter Mr. McLoughlin was contacted by BCM Hanby Wallace, solicitors, on behalf of the first and third named defendant. In September, 1997 Mr. McLoughlin wrote to BCM Hanby Wallace stating that the property was in a derelict condition and understood to be occupied by squatters and threatening proceedings under the Derelict Sites Act.
In accordance with the principles set out by Davitt P., an owner of property owes a duty of care to the owners and occupiers of adjoining property to take reasonable care to prevent his property becoming dangerous or a nuisance. Such a duty of care must include an obligation to inspect the property from time to time and to carry out such repairs as appear necessary. A person who is a non-resident owner must be under a duty of care to arrange for someone to carry out such inspections and repairs on his behalf.
The fire occurred in August, 1998. The evidence is that initially the hole in the roof was small and increased in size over the following months. On the evidence given I am satisfied that the hole was such that it must have been evident upon any reasonable inspection of the property carried out in the months following the fire. I find, as a matter of probability, that Mr. Ryan, agent for the Joosub defendants, was aware of the hole in the roof of No. 16 following the fire. The evidence was that the hole was initially covered with polythene which was then blown off and the hole in time worsened.
Accordingly I am satisfied that the Joosub defendants were aware of the hole in the roof of No. 16 and failed to take any steps to repair it or, if they were not aware, such lack of knowledge was caused by their own breach of duty in failing to arrange for regular inspections of the property to be carried out on their behalf in this jurisdiction.
Counsel for the first and third named defendants sought to rely upon the absence of any evidence from the plaintiffs that they had made those defendants aware of the damage allegedly being done to No. 17 Upper Leeson Street by the rainwater falling on the party wall through the hole in the roof of No. 16. The first and third named defendants’ liability in negligence to the plaintiffs for the damage caused by their breach of duty in failing to repair the hole in the roof is not dependant upon the plaintiffs notifying them of the alleged damage to No. 17. It may be relevant to the issue of mitigation which I will consider further below.
Accordingly, I have concluded that the first and third named defendants are liable in negligence to the plaintiffs for the damage caused to No. 17 by reason of the negligence and breach of duty owed by the first and third named defendants in permitting the hole in the roof to remain without being repaired and permitting rain water to fall down the party wall and percolate into No. 17.
The first and third named defendants remained the owners of the property until it vested in the second named defendant on the 22nd September, 2000. It is not disputed on behalf of the first and third named defendants that damage occurred to No. 17 by reason of the water percolation prior to that date.
Claim in negligence against the second named defendant as owner and occupier.
The duty of care owed by Dublin City Council as the owner and occupier of No. 16 Upper Leeson Street is no different from that of the first and third named defendants. In Glencar Explorations Plc v. Mayo County Council (No. 2) [2002] 1 IR 84, Keane C.J. at p. 139, in considering the liability of the defendant in that case for the alleged negligence in the performance of a statutory function, distinguished other situations in the following terms:
“There are, of course, many instances in which a public authority will be liable in negligence because the duty of care imposed by the law on them is no different from that arising in private law generally. Obvious examples are the duties owed by local and other public authorities arising out of their occupation of premises or their role as employers. In such cases, the plaintiff does not have to call in aid the fact that the defendants may have been exercising a statutory function: their duty of care as occupiers, employers, etc., is no greater, but also no less, than that of their counterparts in the private sector.”
The second named defendant became the owner of the property on the 22nd September, 2000, when there had been a hole in the roof for approximately two years.
It was not disputed that it was then under a duty of care to repair the hole in the roof. The roof was not repaired until February, 2001. It is alleged on behalf of the plaintiff that the second named defendant was negligent and in breach of duty in taking approximately five months to repair the roof. There is a separate and discrete allegation of negligence in relation to events which occurred during the repair work on the roof in February, 2001.
The duty of care owed by the second named defendant to the plaintiffs in September, 2000 must be considered in the context of communications which had taken place between the parties prior to that date and the second named defendant’s knowledge of the damage being caused to the plaintiffs’ property by the state of dereliction and, in particular, the hole in the roof of No. 16 Upper Leeson Street.
The evidence given on behalf of the second named defendant was that Mr. Larkin had been in contact with the Derelict Sites Section since approximately July, 1997. Mr. Larkin had met with representatives of that section prior to the fire in August, 1998. At that stage the complaints related to the general state of dereliction of the property, occupation by squatters and rats etc., in the building. The evidence given by Mr. McLoughlin on behalf of the second named defendant is that he had been inspecting the premises at least since October, 1999 and had been aware of the hole in the roof. In January, 2000 an express complaint was made by Mr. Larkin, in writing and orally, that, by reason of the hole in the roof of No. 16, water was entering No. 17 and damaging same. In February, 2000 an inspection was carried out on behalf of the second named defendant and the hole in the roof of No. 16 photographed from the roof of No. 17.
The second named defendant was, and had been for some time prior to the vesting order, aware of the damage being caused to the plaintiffs’ property by reason of the water entering through the hole in the roof of No. 16 Upper Leeson Street.
Following the vesting order in September, 2000, the responsibility for the building appears to have rested with the Development Department. By agreement, there was admitted into evidence a copy of a report prepared by Susan Roundtree who is described as an architect in the City Architect’s Department, following an inspection carried out by her at the request of the principal officer in the Development Department on the 26th October, 2000. In that report Ms. Roundtree stated:
“While the building appears reasonably sound when viewed from the street it must be stated that this structure is seriously at risk. This is because fire damage at the upper level has destroyed the roof leaving the building open to the weather, causing water damage to the property and probably also damaging adjoining houses in the terrace.”
The final paragraph of her report read:
“Immediate action is required to safeguard the property and to prevent further deterioration of the structure and adjoining properties. Works are urgently required to make the building envelope watertight, to secure the property and to take action to contain outbreaks of rot within the building. Roof works will be the major part of this operation and should include the reinstatement of the roof structure to its original profile and all other works necessary works (sic) to properly weather the adjoining buildings. Other works urgently required are to secure window and door openings at the rear of the property and to address the immediate outbreaks of wet and dry rot in the building.”
Notwithstanding this report and what was stated to be a decision of the principal officer (who did not give evidence) dated the 6th November, 2000 that the matter should proceed “as a matter of urgency” the repairs to the roof did not commence until February, 2001.
On the 17th October, 2000 Mr. Martin O’Malley, a quantity surveyor, on behalf of the plaintiff had written to the Development Department of the second named defendant and in the opening paragraph stated:
“We are informed that you are now responsible for No. 16 Upper Leeson Street. As you are aware, it has and is continuing to allow rain water to penetrate and enter our Client’s property, causing serious damage, loss and expense (past, present and future) to our Client.”
The letter then called on the Corporation to take immediate steps to make No. 16 weather tight and offered facilities for access. It also expressly put the second named defendant on notice of an intended claim.
On the 16th November Mr. O’Malley wrote again, not having received any response to his letter of the 17th October. At this time the plaintiff had been threatened with cancellation of his insurance policy as a result of the poor condition of the property.
Notwithstanding the foregoing the repairs to the roof did not take place until February, 2001. No real explanation has been offered on behalf of the second named defendant for the delay. The evidence given by Mr. Larkin was that there was further significant rain damage caused to No. 17 between October, 2000 and February, 2001.
Having regard to the history of the dealings between the plaintiffs and the second named defendant in relation to this property and the second named defendant’s state of knowledge of both properties in September, 2000, I have concluded that the second named defendant was negligent and in breach of a duty of care owed to the plaintiffs in failing to repair the roof on No. 16 and make it weatherproof in the month of October, 2000. I am further satisfied that part of the cause of the damage suffered by the plaintiffs in relation to No. 17 was caused by the rainfall between November, 2000 and February, 2001.
The evidence called on behalf of the plaintiff from Mr. Larkin and Mr. O’Malley was that, when the works were carried out on the roof in February, 2001 by a contractor employed by the second named defendant, with the permission of the plaintiffs, such contractor removed certain flashing on the valley in the roof of the plaintiffs’ premises. Further, that in the course of works the contractors left exposed and without protection an area of the plaintiffs’ roof (No. 17) and the roof of No. 16 over a weekend period during which there was very heavy rain causing further and particular water damage to the plaintiffs’ premises. The second named defendant did not dispute that the contractors employed by them in leaving the roofs exposed over the weekend in February, 2001, were negligent nor that the second named defendant was responsible for such negligence.
Defendants as concurrent wrongdoers
I have concluded that each of the defendants is liable in negligence to the plaintiffs for the damage caused to No. 17 Upper Leeson Street by reason of water ingress and penetration of water through the party wall with No. 16. I have also concluded that they are concurrent wrongdoers within the meaning of s. 11 of the Civil Liability Act, 1961 which provides:
“11.—(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.
(2) Without prejudice to the generality of subsection (1) of this section—
( a ) persons may become concurrent wrongdoers as a result of vicarious liability of one for another, breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage;
( b ) the wrong on the part of one or both may be a tort, breach of contract or breach of trust, or any combination of them;
( c ) it is immaterial whether the acts constituting concurrent wrongs are contemporaneous or successive.
(3) Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage.
(4) Where there is a joint libel in circumstances normally protected by the defences of qualified privilege or fair comment upon a matter of public interest, the malice of one person shall not defeat the defence for the other, unless that other is vicariously liable for the malice of the first.
(5) Where the same or substantially the same libel or slander or injurious falsehood is published by different persons, the court shall take into consideration the extent to which it is probable that the statement in question was published directly or indirectly to the same persons, and to that extent may find the wrongdoers to be concurrent wrongdoers.
(6) For the purpose of any enactment referring to a specific tort, an action for a conspiracy to commit that tort shall be deemed to be an action for that tort.”
Considering the different elements of the definition, all the defendants are wrongdoers by reason of the negligence found herein. To come within the definition they must be responsible to the plaintiffs for the same damage. Hamilton J. (as he then was) considered the meaning of “the same damage” in Lynch v. Beale (Unreported, High Court, 23rd November, 1974). In that case a building owner sued his architect, main contractor and nominated sub-contractor for loss sustained as a result of alleged negligence and breach of contract of the three defendants in the construction of hotel premises. The premises had collapsed due to two main factors, the subsidence of foundations and inadequate design in the building. The defendant submitted that there were two separate and distinct causes for the structural defects and that the defendants were not concurrent wrongdoers. Hamilton J., in considering this stated:
“The damage claimed in this case against all the defendants is the same damage, viz.: the loss sustained by him as a result of the internal collapse of the hotel and the subsidence thereof and the court is satisfied that the defendants are ‘concurrent wrongdoers’ as defined in the Civil Liability Act, 1961.”
I would respectfully agree with the former President of the High Court in his approach to s. 11(1) of the Act of 1961. The requirement of the definition is that the persons alleged to be concurrent wrongdoers are responsible to the plaintiff for the same damage. Hence it is the damage suffered by the plaintiff which is being referred to.
On the facts of this case, the damage suffered by the plaintiffs is the cost to the plaintiffs of now repairing No. 17 and the rental loss past and future. Further, the acts allegedly constituting concurrent wrongs as found in this judgment took place successively as envisaged by s. 11(2)(c). It is the cumulative effect of the water during the respective periods which has necessitated the repairs to the building, which in turn has caused the damage to the plaintiffs (in sense of cost of repairs) within the meaning of s. 11(1) of the Act of 1961. Accordingly, I have concluded that all the defendants are concurrent wrongdoers within the meaning of the section.
I was informed at the commencement of the oral submissions on the last day that a compromise figure for loss of rental had been agreed at €255,000 without prejudice to the liability of the defendants to the plaintiffs. No submission was made on behalf of the defendants that one or other was not liable for any portion of this amount in the event that they were to be found liable in negligence or nuisance to the plaintiffs, nor that it should be treated in any different way to the cost of repairs in assessing the relevant contributions.
Claim in nuisance
There is significant overlap between the claims in negligence and in nuisance. In Sedleigh-Denfield v. O’Callaghan [1940] AC 880 Lord Wright referred to the succinct definition by Talbot J. in Cunard v. Antifyre [1933] 1 KB 551, 557 of private nuisances:
“as interferences by owners or occupiers of property with the use or enjoyment of neighbouring property.”
A hole in a roof in a terraced house close to a party wall which permits, over a period of time, rain to fall down the party wall and to percolate into the neighbouring property comes within such a definition. It is not alleged that any of the defendants caused the nuisance. Rather it is alleged that each of the defendants continued the nuisance. In Sedleigh-Denfield v. O’Callaghan Viscount Maugham at p. 894 stated:
“In my opinion an occupier of land ‘continues’ a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so.”
A consideration of all the speeches in the House of Lords in Sedleigh-Denfield v. O’Callaghan make clear that an owner or occupier of a property will not be liable for the continuance of a nuisance unless he has knowledge of such nuisance. However such knowledge includes the knowledge of servants or agents for whom he is responsible and which must be attributed to him (see Lord Wright p. 906 approving the statement by Fletcher Moulton L.J. in the Court of Appeal).
There is no dispute that the second named defendant was aware of the nuisance at the time it became the owner and occupier of No.16 Upper Leeson Street. On the evidence, I have already found that as a matter of probability Mr. Ryan, estate agent for the first and third named defendants, was aware of the hole in the roof and ingress of water in the area of the party wall. This is knowledge which must be attributed to the first and third named defendants.
For the reasons set out above in relation to the claim in negligence I have also concluded that each of the defendants failed to take reasonable steps to bring the nuisance to an end during the respective periods when they were owners and occupiers of the property and in that sense continued the nuisance. No submission was made, in my view correctly, that the Joosub defendants were not occupiers in the period August, 1998 to September, 2000.
Claim under the Rule in Rylands v. Fetcher
Counsel for the plaintiffs made clear that he was pursuing, but in the alternative to the primary claims in negligence in nuisance, a claim under the rule in Rylands v. Fletcher. In the light of my decision on the claims in negligence and nuisance it is not necessary for me to determine this alternative claim.
Claim under the Derelict Sites Act, 1990
Similarly the claim against the second named defendants under the Derelict Sites Act is an alternative claim to the claim in negligence and nuisance. Accordingly it is unnecessary for me to determine this claim.
Plaintiffs’ failure to mitigate their loss
The plaintiffs were under a duty to mitigate the loss and damage suffered by them by reason of the negligence of the defendants. Section 34(2)(b) of the Act of 1961 provides that:
“A negligent or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such damage exceeds the damage which would otherwise have occurred…”.
The submissions made by counsel on behalf of the first and third named defendants in relation to the failure to mitigate may be summarised as follows:
1. The plaintiffs’ failed to mitigate by not going out onto the roof of No. 16 and repairing same to make it weatherproof when the plaintiffs realised that damp was occurring in No. 17 from an opening in the roof of No. 16.
2. Failing to contact the first named defendant in February, 2000 when his name and address was furnished to the plaintiffs’ solicitors by the second named defendant.
3. Failing to carry out the opening up works recommended in a report dated the 4th February, 2000, from Tom Brennan Building Preservation.
4. Failing to carry out remedial works at an earlier date.
Counsel for the second named defendant made submissions under headings 3 and 4 above.
In assessing the above submissions it must be recalled that, whilst the fire occurred in August, 1998, the evidence of Mr. Larkin, which was not disputed and which I accept, is that he first became aware of damp in No. 17 from the opening in the roof of No. 16 in the late autumn/early winter of 1999. Also, that following the fire he had carried out all necessary repairs to No. 17, including that resulting from water damage by the fire brigade, and recovered insurance monies in relation thereto. The further evidence which I accept is that in late 1999 Mr. Larkin went up and saw the hole in the roof of No. 16 facing towards the party wall with No. 17. It appears to have been in the winter of 1999/2000 that the position became worse and in the spring of 2000 blisters on the party wall in No. 17 started to weep whenever there was heavy rain and water started running down the party wall in No. 17 to the hall level and down to the basement.
The response of Mr. Larkin to a suggestion by counsel for the first and second named defendant in cross-examination that he ought to have gone onto the roof of No. 16 and carried out repairs in early 2000 was twofold. Firstly, Mr. Larkin stated he considered the roof dangerous and secondly, he did not think he was entitled to as he would be trespassing.
No. 16 Upper Leeson Street was in a derelict state by early 2000. Independently of Mr. Larkin’s legal entitlement to go onto the roof of No. 16 and carry out repairs, it does not appear to me that his failure to do so on the facts of this case should be considered either a negligent or a careless failure to mitigate the damage claimed by reason of the water coming through to No. 17.
In relation to the second submission, Mr. Larkin gave no explanation for his failure to contact the first named defendant when he finally obtained his full name and address in February, 2000. His evidence was that he had been seeking to ascertain this and such evidence is corroborated by his correspondence with the second named defendant. A duty to mitigate loss on an owner of adjoining property which is allegedly being damaged by a nuisance or damage in the adjoining property, must be considered to include an obligation to notify the adjoining owner of the damage and call on him to carry out the necessary repairs. On the facts of this case, until the plaintiffs obtained the name and address of the first named defendant, I am satisfied that they could not reasonably carry out such a duty. However, the failure to make any contact with the first named defendant having obtained his named and address, albeit that he was in South Africa, must, it seems to me, be considered to be a negligent or careless failure to mitigate within the meaning of s. 34(2)(b). Accordingly, it is deemed to be contributory negligence “in respect of the amount by which such damage exceeds the damage that would otherwise have occurred”.
The damage which would “otherwise have occurred” within the meaning of s. 34(2)(b) on the facts herein appears to be the damage which, as a matter of probability, would have occurred if the plaintiffs in February, 2000 had written to the first named defendant informing him of the water damage then occurring in No. 17 and calling on him to carry out the necessary repairs to the roof. As already stated, the first named defendant did not give evidence. No evidence was called on behalf of the first and third named defendants which suggests in any way that in February, 2000 the first named defendant would have reacted by carrying out repairs prior to September, 2000 when the property vested in the second named defendant. On the contrary, from the evidence before the Court I conclude that, as a matter of probability, nothing would have been done to No.16 Upper Leeson Street by the first named defendant in response to a letter from the plaintiffs in February, 2000. By that time the property had been derelict for several years. Acquisition proceedings had commenced and the notice of intention to acquire had been published in January, 1999. Objections had been made to this on behalf of the first and third named defendants and, in August, 1999 the first named defendant had written to Mr. McLoughlin of the second named defendant, indicating that work would be carried out on the premises. This did not happen. The Joosub defendants were already faced with the threat of losing ownership of the premises and had failed to carry out works in response to that threat. It therefore appears improbable that they would have carried out any works in response to a request from the plaintiffs even if such requests included a threat of a claim. Hence, the agreed amount of the damages herein do not, as a matter of probability, exceed the damage which “would otherwise have occurred” within the meaning of s. 34(2)(b) of the Act of 1961.
Accordingly, I have concluded that there is no amount by which the plaintiffs should be deemed to be contributorily negligent under s. 34(2)(b) of the Act of 1961 by reason of their failure to notify the first named defendant and request repair of the roof in February, 2000.
Turning to the third submission, in January, 2000 the plaintiffs had No. 17 inspected by Mr. Tom Brennan for the purpose of inspecting the party wall with No. 16 for evidence of damp and rot. No definite findings of rot were made but the risk of dry rot and wet rot developing was stated. Further, Mr. Brennan advised “to reduce the risk of dry rot developing” that certain steps should be taken. These were to open up and expose certain parts of the building particularly close to the party wall. This was not done.
The findings in Dr. Ridout’s report are that there is no active dry rot. In summary he stated:
“It has been argued that dry rot problems in No. 17 Upper Leeson Street had been caused by the poor waterproofing of No. 16 between the years 1998 and 2002. We were, however, unable to find any indications of dry rot in No. 16. The only significant decay located in No. 17 was some old cellar rot damage in an embedded wall plate at second floor level. This damage was dry and desiccated and may easily have been present for many decades. The building is generally dry and there is no risk that dry rot will develop as a consequence of water penetration following the fire in 1998. Comprehensive stripping out (or indeed any stripping out) of interiors cannot be justified on this basis.”
The plaintiffs’ claim (in the agreed amount) is not caused, even in part, by any dry rot in No. 17. Accordingly, it does not appear to me that any failure to take the steps advised by Mr. Brennan in February, 2000 can now be considered to be a failure to mitigate the damage in respect of which the claim is being pursued.
In relation to the final submission, I do not consider that the plaintiffs failed in their duty to mitigate by failing to carry out the remedial works at an earlier date than the hearing of these proceedings. The explanation given was that it made no sense to carry out remedial works in No. 17, even after the roof had been repaired in 2001, by reason of the continuing derelict internal state of No. 16 until such time as work was also carried out on No. 16. I am satisfied on the evidence of Mr. Carthy and the evidence of Mr. Slattery, called by the second named defendant, that the condition of No. 16 in the period from 2001 to date, even after the roof was made weatherproof, was such that it was reasonable for the plaintiffs not to carry out the remedial works in No. 17 until such time as it became apparent that remedial works were also being carried out in No. 16.
Exaggerated claim
The defendants sought, in reliance upon the obiter statements of Hardiman J. in Shelly-Morris v. Bus Átha Clíath [2003] 1 IR 232 at 257 and in Vesey v. Bus Éireann [2001] 4 I.R. 192 at 199, to submit that, on the facts of this case Mr. Larkin in the evidence given, particularly in dealing with his reaction to the report obtained from Mr. Brennan in February, 2000, was deliberately intending to deceive the Court and further, that the plaintiffs had deliberately exaggerated their claim herein such that the claim for damages should be disallowed.
Mr. Larkin is a senior bank official. His evidence in direct examination and, in cross-examination as to precisely what he did following the receipt of the report from Mr. Brennan, was unclear and not satisfactory. If active dry rot had been found to be present in No. 17, his failure to take further professional advice and appropriate steps following that report would probably have precluded him from recovering the full amount of the loss and damage to the plaintiffs by reason of any such active dry rot. In the event, no active dry rot was found to be present.
However, I did not form the view that Mr. Larkin in giving his evidence was at any stage intending to deliberately deceive or mislead the Court. Nothing in his evidence forms the basis for an application of the principles referred to in the above decisions. There is, however, a further issue of the alleged exaggerated claim.
The plaintiffs’ claim for the cost of the reinstatement works alleged to be necessary to No. 17 Upper Leeson Street in the updated particulars of loss and damage delivered on the 30th June, 2005, was in the sum of €1,184,668.43. The agreed figure is now €275,000.00. No evidence was given to the Court of the precise reason for the difference between the two figures. However, from the evidence given in the proceedings before the order was made for the inspection by Dr. Ridout the following facts appear relevant. Mr. O’Malley was retained initially by the plaintiffs in August, 2000 in relation to No. 17 Upper Leeson Street. He was directly involved on behalf of the plaintiffs with the second named defendant from that period forward. It was he who wrote letters in October and November, 2000 after the vesting of the property in the second named defendant. It was Mr. O’Malley who met with a Mr. Bloomer, an architect on behalf of the second named defendant, in January, 2001 in relation to the carrying out of the repairs on the roof of No. 16 and permission for access to the roof of No. 17. It was Mr. O’Malley who wrote setting out the damage which had occurred to the plaintiffs’ property over the weekend in February, 2001 when water came through the roof of No. 17. Mr. O’Malley prepared and submitted to the second named defendant an initial bill of quantities for repair works in December, 2001 in the sum of £480,796.26. This appears to have been updated in June, 2003 to €687,969.49. The bill of quantities prepared by Mr. O’Malley and furnished with the amended particulars in June, 2003 was dated the 8th June, 2005. This followed the report of Mr. Carthy, the architect for the plaintiffs, dated May, 2005. That report set out the opening up works and repair works considered to be necessary by reason of the water damage in No. 17 and the perception of the risk of dry and wet rot in No. 17. Mr. Carthy gave evidence of inspecting No.16 and seeing dry rot in No. 16. He further gave evidence of a risk of such rot from No. 16 travelling through the party wall to No. 17. In cross-examination he was not challenged on behalf of the second named defendant on his assertion that he had seen dry rot in No. 16. It was only when Mr. Slattery gave evidence on behalf of the second named defendant that the distinction between “active” dry rot and “dead” dry rot was made.
As a matter of probability, it appears to me that the reason for the significant difference between the estimated cost of repairs and agreed amount is that the former was prepared on an assumption that active dry rot was present in No. 16 and likely to have travelled into No. 17, whereas the latter was agreed when it was ascertained that no active dry rot was present.
As observed by Hardiman J. in Shelly-Morris v. Bus Átha Clíath and Vesey v. Bus Éireann, the onus of proof in a claim for damages for negligence lies on the plaintiff “who is, of course, obliged to discharge it in a truthful and straightforward manner”. In this case, in relation to the quantum of the loss, the onus was on the plaintiffs to establish, as a matter of probability, the cost of repairing the damage caused by the alleged wrongs. It became clear in the course of the hearing that the existence or non-existence of active dry rot in Nos. 16 and 17 had a central bearing on the nature of the opening up required, repairs needed and the cost of same. The plaintiffs did not in advance of the hearing carry out the necessary inspections to ascertain whether or not active dry rot was present.
I do not wish to express any view, until I have given counsel an opportunity of making submissions as to whether or not the plaintiffs were under an obligation in the preparation of their case to carry out such inspections. Even if they were, it appears to me that their failure to do so is a matter which goes to the costs of the proceedings rather than the plaintiffs’ entitlement to recover the sums now agreed as the measure of the loss and damage suffered by the plaintiffs. I am satisfied on the facts of this case that there was no deliberate exaggeration of the plaintiffs’ claim in the sense under consideration by Hardiman J. in the decisions referred to. Mr O’Malley knew the property well and prepared costings based on Mr Carthy’s view of the works required which in turn was predicated on the probable presence of rot by reason of the rot observed in No 16. Rather, on a worst case scenario for the plaintiffs (which I am not now holding) there was a possible failure to carry out certain preliminary inspections and investigations which ought to have been done in the formulation of the claim. I say “possible” as I have indicated I am not forming a definitive view until I hear submissions from counsel on the issue in relation to costs.
Accordingly, there will be a judgment against each of the defendants (in accordance with s. 14 of the Act of 1961) in the sum of €530,000.00.
Claim for contribution
I was informed by counsel that there are claims for contribution made between the first and third named defendants on the one hand and the second named defendant on the other hand. Counsel requested that I determine the respective contributions on the evidence given. In accordance with s. 21(2) of the Act of 1961 the contribution recoverable is “such as may be found by the court to be just and equitable having regard to the degree of that contributor’s fault …”. The Court was not asked to make any finding as between the first and third named defendant and, for the purposes of the contribution claims, I propose considering the first and third named defendant as a single defendant and determining at present the joint contribution of those defendants.
I have concluded on the evidence given that a contribution of 50% jointly from the first and third named defendants and of 50% from the second named defendant is what appears just and equitable having regard to their respective degrees of fault. The principal reasons for which I have reached this conclusion are as follows.
Counsel for all defendants submitted that the approach of the Court under s. 21 of the Act of 1961 should be in accordance with the decision of Costello J. in Patterson v. Murphy [1978] I.L.R.M. 85. In that decision he held that this provision should be interpreted in accordance with the decision of the Supreme Court in Carroll v. Clare County Council [1975] I.R. 221 in relation to s. 34 of the Act of 1961 and in particular the test stated by Kenny J. at p. 227:
“I think that ‘fault’ in s. 34 of the Act of 1961 means a departure from a norm by a person who, as a result of such departure, has been found to have been negligent and that ‘degrees of fault’ expresses the extent of his departure from the standard of behaviour to be expected from a reasonable man or woman in the circumstances. The extent of that departure is not to be measured by moral considerations, for to do so would introduce a subjective element while the true view is that the test is objective only. It is the blameworthiness, by reference to what a reasonable man or woman would have done in the circumstances, of the contributions f the plaintiff and defendant to the happening of the accident which is to be the basis of the apportionment.”
In Patterson v. Murphy, Costello J., having referred to the above, stated at p. 102:
“Following this test I should consider the blameworthiness of the contribution which each defendant made to the damages which the plaintiff suffered by reason of the acts complained of – the test of blameworthiness being an objective one and applied by reference to what a reasonable man or woman would have done in the circumstances of the present case.”
Taking a similar approach to the facts of this case I consider the degree of blameworthiness of the contribution made by the respective sets of defendants to be similar. Whilst the Joosub defendants failed over a longer period to repair the roof at No. 16, at the time the property vested in the second named defendant the hole in the roof of No. 16 was a more obvious source of damage to No. 17 with the consequent duty to repair same than during earlier periods. Further, in accordance with the evidence of Mr. O’Malley, which I accept, significant damage occurred by reason of direct water through the roof of No. 17 as a result of the careless acts of the contractor employed by the second named defendant (for which it is liable) leaving part of the roof of No. 17 unprotected over a weekend in February, 2001.
Accordingly, there will be a determination of a joint contribution of 50% in respect of the first and third named defendants and 50% in respect of the second named defendant. I will hear counsel on the precise form of the order on the claims for contribution having regard to the joint contribution of the first and third named defendants.
Domican v AXA Insurance Ltd
[2007] I.E.H.C. 14, Clarke JJUDGMENT of Mr. Justice Clarke delivered the 19th January, 2007.
1. Introduction
1.1 The net issue in this case arises in the changing landscape within which claims relating to personal injury are now progressed. The background to the dispute between the parties stems, at least in part, from the operation of the Personal Injuries Assessment Board (“PIAB”). However the proceedings do not involve PIAB itself, but rather what are contended to be knock on effects of the establishment of PIAB on the negotiation of early settlement of straightforward personal injury claims.
1.2 In simple terms the issue between the parties concerns the question as to whether the defendant (“AXA”), in its capacity as insurer, is entitled to copy its correspondence concerning the claim made by the plaintiff (“Mr. Domican”) to Mr. Domican directly notwithstanding the fact that Mr. Domican has given written instructions to the effect that all such correspondence should be addressed to his solicitors and that no contact is to be made directly with him.
2. Procedural History
2.1 The dispute between the parties having arisen, Mr. Domican issued proceedings and brought an application seeking an interlocutory injunction restraining AXA “from interfering in the solicitor/client relationship between the plaintiff and his solicitor by communicating .. directly with the plaintiff .. or otherwise howsoever harassing or molesting the plaintiff in connection .. with his claim for damages against one Patrick Doyle for personal injuries suffered and sustained as a result of an accident on 17th July, 2005 on the Collinstown Road, Clondalkin, Dublin 22.”
2.2 A supplementary order was also sought directing AXA to abide by written authority signed by Mr. Domican of 28th August, 2006 relating to the same claim for damages. That written authority sought to direct AXA to communicate with Mr. Domican only through his solicitors.
2.3 AXA also brought a motion before the court which sought an order dismissing Mr. Domican’s claim on the grounds that it failed to disclose a stateable cause of action or was frivolous, vexatious and an abuse of the court process and bound to fail.
2.4 It being clear that there were no significant issues of fact between the parties and that the question of law raised, while to an extent novel and undoubtedly of some importance, was nonetheless quite net, I suggested, and the parties readily agreed, that the trial of both motions would be treated as the trial of the action. Both applications were heard together on that basis and this judgment is, therefore, directed to the question of whether Mr. Domican is entitled, in all the circumstances of the case, to the relief which he claims.
3. The Facts
3.1 As is implicit in the orders sought, Mr. Domican claims to have been injured in a road accident, which injuries, he says, are attributable to the negligence of an insured of AXA. It does not appear to be in dispute but that AXA are liable to indemnify the person concerned and that, therefore, at a commercial level, the question of the payment of compensation to Mr. Domican arises, in practice, between him and AXA.
3.2 Mr. Domican’s claim progressed in a normal manner. Messrs. H.J. Ward and Company Solicitors, (“Mr. Domican’s solicitors”) whom he had instructed, wrote to Patrick Doyle on 28th August, 2006 seeking an admission of liability on the part of Mr. Doyle in relation to the accident. Mr. Domican’s solicitors were already aware of the fact that AXA appeared to be the insurers of Mr. Doyle and wrote on the same date to AXA enclosing a copy of the letter to Mr. Doyle and also a letter of authority from Mr. Domican. Amongst other things the letter of authority contained the following statement:-
“I do not wish to receive any communication from you by way of correspondence. Similarly, if you wish to make contact with me by telephone, please do so by telephoning my solicitors and leave any message with them. Please do not contact me”.
3.3 In accordance with the Personal Injuries Assessment Board Act 2003 (“the 2003 Act”) and in particular ss. 11 and 50 of that Act, it was necessary for Mr. Domican to first make an application for an assessment of his claim to PIAB. This, together with appropriate supporting documentation, was done by letter of 15th September, 2006. PIAB having drawn attention to an incompleteness in the application, and having had that matter dealt with, acknowledged, on the 29th September, 2006, that the application was complete for the purposes of s. 50 of the 2003 Act.
3.4 It is, of course, therefore, the case that, so far as court proceedings are concerned, the matter as and between Mr. Domican and Mr. Doyle (and in reality AXA on behalf of Mr. Doyle) is frozen until such time as PIAB have dealt with the case. That is not, however, a barrier to a settlement of the proceedings being reached between Mr. Domican and AXA at any stage.
3.5 Against that background AXA sought to progress the question of possible settlement by correspondence directed to Mr. Domican’s Solicitors but, it would appear, copied in each case directly to Mr. Domican. There can be no doubt that the copying of the correspondence to Mr. Domican was in breach of his request to AXA not to contact him directly. The question that arises in this case is as to whether, in copying the correspondence directly to Mr. Domican, contrary to Mr. Domican’s request, AXA are acting in anyway unlawfully such as would justify the court intervening by way of injunction. Those undisputed facts are sufficient for the issue to arise. However there are a number of other factual matters that were canvassed in the course of the affidavit evidence filed by the parties, on which it is necessary to touch before going on to consider the legal issues which arise.
4. Some Facts in some controversy
4.1 While there are no disputes between the parties as to the primary facts in this case there are some aspects of the factual contentions put forward that, while not directly material to the issues, are relevant to the background to the dispute and in relation to which there is at least some difference of opinion as to how the facts should be interpreted or characterised. I propose dealing with some of those issues.
4.2 The first matter concerns the position adopted by Mr. Domican, on advice his solicitors, in relation to an early settlement. It is clear that Mr. Domican was advised that his best interests would lie in awaiting an assessment of his claim by PIAB. In the course of the hearing it was suggested that the reason for such advice stemmed from the experience of those advising Mr. Domican that the level of compensation likely to be assessed by PIAB would exceed, in many cases, any amount offered at that stage by AXA so that it was, it is said, in Mr. Domican’s interest to wait and see what PIAB would award. It is certainly the case that it was maintained in correspondence on behalf of Mr. Domican by his solicitors that it was, in their experience, the case that offers made by AXA during a period while the case was under assessment by PIAB were, invariably, less than the amount which PIAB ultimately determined on. It is not for me, in this case, to determine whether that assertion is factually accurate. I should, however, comment that it seems to me that there is at least an arguable basis for the advice given to Mr. Domican and no established basis for suggesting that it was not reasonable advice designed to achieve the best possible award of compensation for his injuries. In substance, though not put this way, the advice was to the effect that it was likely that he would ultimately achieve a higher sum in compensation if he were to wait and see what assessment PIAB came up with.
4.3 A second factual issue arose in connection with correspondence in early October 2006 in which AXA states that “claims processed by Personal Injuries Assessment Board (PIAB) can take up to a year before an award is issued …”. A number of observations seem to me to be appropriate. Firstly it is interesting that a significant insurance company appears to be suggesting to those who may have claims against it that there are delays in PIAB which are holding up the early resolution of proceedings. It is, again, neither necessary or appropriate for me to reach any conclusions as to whether that assertion is factually accurate. I note that Mr. Ward (the solicitor for advising Mr. Domican) has indicated in the course of his affidavit in these proceedings that the assertion concerned is in conflict with his experience and that any delays are, at least in material part, due to the failure of AXA to progress matters with PIAB in a timely manner. If it were to be true that the existence of PIAB was acting as a barrier to early settlement of any significant number of cases it would amount to an unfortunate consequence of legislation introduced to improve and streamline the resolution of straightforward personal injury litigation.
4.4 In particular, however, complaint is made on behalf of Mr. Domican that the communications containing those assertions amounted, in effect, to seeking to undermine the advice given to Mr. Domican by his solicitors. This is an issue to which I will have to return.
4.5 A further area of controversy concerns the circumstances surrounding a medical appointment arranged by AXA for Mr. Domican. It would appear that AXA raised the question of a medical appointment for Mr. Domican, with a medical assessor to be appointed by AXA, in correspondence and then proceeded, unilaterally it would appear, to make a specific appointment for Mr. Domican without ascertaining in advance his willingness to attend such an appointment. In the event he did not attend the appointment and in subsequent correspondence AXA drew attention to the fact that costs had been incurred by reason of the fact that the appointment was not met without prior cancellation. While it is, strictly speaking, true to state that the relevant correspondence, on a careful reading, does not purport to seek to make Mr. Domican responsible for those costs, it seems clear on the affidavit evidence that both he and his legal advisors interpreted the letter as seeking to impose such costs upon Mr. Domican. I have to say that I can see how the letter might have been so read even though, on a careful construction, no actual threat to seek to impose such costs is to be found in the letter.
4.6 There is nothing, of course, wrong with AXA seeking to have Mr. Domican, or any person in his position, attend to a medical examination. Such an examination may well facilitate settlement of the proceedings, for if there is relative unanimity in the medical opinion as to the actual injury suffered, then it will be much easier to arrive at an agreed valuation of the appropriate compensation to be paid. It is also clearly the case that the court has a discretion to stay proceedings for personal injuries where a plaintiff unreasonably fails or refuses to attend a medical examination arranged by the defendant or, in practice, the defendant’s insurers. However there is no legal obligation on a potential plaintiff to attend for such a medical examination until proceedings have been commenced and have reached a stage where it is appropriate for the defendant to seek such an examination. Since the advent of PIAB, proceedings will be postponed (in those cases which ultimately go to court) until after the claim has been through the PIAB process. That will, inevitably, lead to a situation where the legal entitlement of a defendant to obtain a medical examination will be delayed. However that situation is an inevitable consequence of the freezing of legal proceedings which is an inherent part of the PIAB process.
4.7 While it is, therefore, open to an insurer, such as AXA, to seek a medical examination while a plaintiff’s claim is frozen, so far as court proceedings are concerned, pending a decision from PIAB, it is equally clear that a claimant, such as Mr. Domican, is entitled, at that time, to refuse any such invitation. In such circumstances I do have to say that it seems to me that it was somewhat foolish of AXA to arrange an actual medical appointment at a time when they had not secured Mr. Domican’s agreement to attend to any appointment. In those circumstances the tone of the letter of complaint could reasonably be described as unfortunate.
4.8 Finally a further factual issue has arisen concerning an offer of settlement which was contained in correspondence from AXA to Mr. Domican’s solicitors and copied directly to Mr. Domican. There is, again, nothing objectionable in AXA making such an offer and indeed such a practice is to be encouraged given the public policy considerations which favour the early settlement of potential litigation. Nothing in either the principles behind or the detailed provisions of the 2003 Act, have altered the policy considerations which favour the early settlement of claims. However it must equally be said that the position taken by Mr. Domican, on advice from his solicitors, that he would be best advised to wait and see what came out of PIAB by way of an assessment of his claim is equally a sustainable position. What gives rise to controversy is that it does not appear that Mr. Domican’s solicitors were informed of the fact that the letter making the offer in settlement had been copied directly to Mr. Domican. This is stated on behalf of AXA to be an oversight. It would appear that in respect of all other elements of correspondence copied to Mr. Domican the original was sent to his solicitor (frequently by fax) but in so sending it was made clear that the relevant correspondence was being copied to Mr. Domican. This does not appear to have occurred in relation to the letter of offer.
4.9 It would also appear that Mr. Domican’s solicitors were able to point to another case (unconnected with these proceedings) in which an identical practice appears to have been engaged in by AXA, in that all correspondence was copied directly to the claimant concerned, and in respect of all of the relevant correspondence with the exception of a letter of offer, it was made clear in the communication to the solicitors concerned that the relevant correspondence was being copied to their client. Whether or not the case of Mr. Domican and the other relevant case represent two coincidental errors, or a practice on the part of AXA, is not possible to conclude on the evidence currently before me. However it must be said that it is somewhat suspicious that the same error should have occurred at the same point in the process in two separate cases. That is particularly so when the error appears to have related to what might well be regarded as the most important part of the process, that is to say the communication of a specific offer in settlement. If it were to be the case that AXA has or had a deliberate practice to that effect then it could only be inferred that the purpose of such a practice was to attempt to communicate an offer directly to the claimant concerned without the claimant’s solicitors being aware of the fact that such an offer had been directly communicated to the client.
4.10 There are, therefore, certain aspects of the facts which justify adverse comment about AXA’s practice. The manner in which the missed medical appointment was dealt with seems to me to be unreasonable. There is the possibility that there might be a practice of communicating a copy of an offer in settlement made to the solicitor, directly to the client, in circumstances where the solicitor concerned was not informed of the copying. It is also common case that the direct copying of communications, of what ever form, and even if not subject to the above criticisms, to Mr. Domican was against his expressly communicated wishes.
However the real issue in this case is not as to whether the practice engaged in by AXA (which appears to be a standard practice of the company) might be the subject of legitimate complaint by Mr. Domican but rather whether there is anything unlawful about it. I now turn to that question.
5. The Law
5.1 A variety of possible bases for suggesting that the largely agreed facts of this case demonstrate a legal basis for the reliefs claimed were canvassed in the course of argument.
5.2 Firstly, although not pressed as the strongest point, it was suggested that the receipt of communications from AXA which Mr. Domican, to the knowledge of AXA did not wish to receive, amounted to a breach of Mr. Domican’s constitutional right to privacy. That such a right exists has been clear since Magee v. Attorney General [1974] IR 284 and Kennedy v. Ireland [1987] I.R. 587. As I observed in Cogley v. RTE [2005] 4 IR 79:-
“It is … clear from Kennedy v. Ireland that a right to privacy is one of the personal rights of the citizen guaranteed by, though not specifically mentioned in, the constitution.
However it is also clear from Kennedy that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good.”
5.3 As against those undoubted rights must also be considered AXA’s undoubted constitutional right to communicate. Such a right has also been identified in such cases as Attorney General v. Paperlink [1984] ILRM 373 and Murphy v. Independent Radio and Television Commission [1999] 1 IR 12. Equally such a right is not absolute and is subject to qualification.
5.4 It must also be noted that the background to the relationship between the parties to these proceedings is that they are, inevitably, involved with each other. The plaintiff has a claim which, in commercial substance though not in form, is as against AXA. They are not, therefore, total strangers, and it is necessary that there be some communication between them with appropriate respect for both parties rights. I am not satisfied that it has been established that Mr. Domican’s right to privacy extends to the narrow question of the manner in which communication with him is to be conducted. Indeed most of the decided cases involve obtaining and disclosing information rather than communicating information. Clearly if the manner of such communisation were oppressive different considerations might apply. However it can hardly be said that the simple receipt of information by being copied directly with it in circumstances where the person concerned will, necessarily, have to receive the same information indirectly through his solicitors could in any event amount to a breach of the constitutional right to privacy.
5.5 In similar vein it does not seem to me that the actions of AXA could be said to be in breach of the right to privacy guaranteed by the European Convention on Human Rights as applied in Ireland by the European Convention on Human Rights Act, 2003.
5.6 For similar reasons I have come to the view that the actions of AXA could not amount to a private nuisance or to harassment or molestation. I leave for consideration to a case where, on the facts, the issue arises in an appropriate manner, the question as to whether excessive communication by letter, fax, telephone or any other medium might amount to a private nuisance and the question of whether similar actions might among to harassment sufficient to give rise to a civil wrong. Certainly Khorasandjian v. Bush (1993) 2 FLR 66 suggests such a possibility. If such a cause of action is found to exist it seems to me that it could only arise where the extent of the communication was such as might interfere, to a material extent, with the reasonable enjoyment by a person of their home, place of business, or life. It is difficult to see how the communications in this case would qualify under that heading. Irrespective of the legal parameters that might apply to any such claim, such a claim some could not, it seems to me, arise on the facts of this case under either of those headings.
5.7 That leads to the last, and most difficult, of the issues raised. It is suggested that the course of action adopted by AXA amounts to an infringement of the plaintiff’s solicitor/client relationship. That any claimant is entitled to the benefit of legal representation in proceedings, or potential proceedings, cannot be doubted. It may well be that any action taken by an opposing party or potential party whose object or significant effect was to impair the entitlement to obtain and benefit by such legal advice and representation might well amount to a sufficient interference in the course of justice as would entitle a court to intervene.
5.8 However it is necessary to identify the extent to which the actions of AXA in this case, even taken at their height, could be said to amount to an interference in the solicitor/client relationship. With the exception of the contention, to which I have referred, concerning the comments made by AXA in correspondence concerning delays likely to be encountered in PIAB, none of the other elements of the correspondence seems to touch directly on any aspect of the relationship between Mr. Domican and his advisors. All of the correspondence is, as a matter of form, directed to his solicitors. The correspondence is merely copied to Mr. Domican, albeit against his wishes. The contents of the correspondence contains entirely appropriate matter to be communicated in a process such as that with which all concerned were involved. As previously indicated there was nothing wrong in seeking to have a medical examination. Furthermore it was entirely appropriate for AXA to make an offer in settlement.
5.9 This leads me to one somewhat curious aspect of the argument in this case. It was expressly stated on behalf of AXA that no criticism of any sort was being levelled against Mr. Domican’s advisors. In passing it should be noted that the practice shown on the facts of this case appears to be a general practice engaged in by AXA. It, therefore, applies irrespective of what firm of solicitors may be instructed on behalf of the claimant concerned. It should also be noted that it was asserted, and would appear to be the case, that it is a general practice on the part of the solicitors advising Mr. Domican (and also possibly other firms of solicitors) to obtain a written authority from their clients in a similar form to that obtained from Mr. Domican in this case. There would appear, therefore, to be a significant number of cases in which various firms of solicitors communicate on behalf of their clients to AXA that the client concerned does not wish to receive direct communication. It appears to be the universal practice of AXA to ignore such requests. Hence the issues which arise in these proceedings appear likely to arise in a significant number of cases.
5.10 I note these matters to emphasise that no criticism was voiced on behalf of AXA, in general terms, in respect of the solicitors involved in any such cases where a dispute may arise as to the appropriateness or otherwise of correspondence being copied directly to the client. The reason why I touch upon the absence of criticism is that it seems to me, at least to some extent, to be inconsistent with the stated basis for the desire on the part of AXA to copy correspondence directly to the client. That stated basis is to the effect that it is desired to bring about early settlement where possible. It follows that it must be the view of AXA that the copying of correspondence directly to the client is more likely to lead to an early settlement than merely corresponding directly with the solicitor concerned. For that to be true there must be at least an implicit criticism to the effect that solicitors in general are insufficiently proactive in progressing possible settlement negotiations on behalf of their clients and that it is necessary to involve the client directly to keep pressure on the solicitor so as to achieve such an early settlement. If AXA did not believe that to be the case then it is hard to see how the practice engaged could be of any benefit. The only reasonable inference to draw is, therefore, that the practice is designed to make it more likely that the client concerned will raise the questions dealt with in correspondence directly with their solicitor quicker than the solicitor might, if left to his or her own devices, raise the question with the client.
5.11 The only authorities to which I was referred which touch upon the question of communications directly with parties who have legal representation, do not seem to me to deal, in any material way, with the issues which I have to decide in this case.
AXA draws attention to Re Margetson and Jones (1897) 2 Ch 314 where it was held by Kekewich J. that:-
“It is a professional rule that where parties to a dispute are represented by solicitors neither of those solicitors should communicate with the principle of the other touching the matters in question. That is a rule binding the profession as gentlemen, but it is only highly consonant with good sense and convenience …”.
However the court went on to observe:-
“But the courts have uniformly held, without in the least degree impeaching the propriety and advantage of that rule, that if the solicitor for the one party meets the principal on the other side and a bargain is made, that bargain is good. It cannot be said that the principal’s authority is gone, because such a thing as that is impossible; and therefore, whether there is a litigation pending or not, if the solicitor for the defendant meets the plaintiff and effects a comprise with him, that comprise is binding upon the plaintiff or the defendant, as the case may be, notwithstanding that up to that time had had been represented by a solicitor. That is as consonant with common sense as the rule itself; but what the court has also said is that it must be done honestly and in a straightforward way to get rid of the litigation for the sake of peace, and not with a view to depriving the solicitor of his costs. If the one solicitor meeting the party on the other side, or the two parties comprise knowing of the lien of the solicitor and intending to defeat it, that shall not be allowed; and the only question, therefore, is whether that was the intention”.
5.12 That case was, as the above passages demonstrate, concerned with a situation where both sides were represented by solicitors and where the solicitor on one side effected a settlement directly with the client on the other side. In principle the settlement was upheld subject to the caveat that if the agreement was reached for an improper purpose it might be set aside. There might, of course, be other situations where a settlement arrived at in such circumstances might also be set aside. The case is, nonetheless, authority for the proposition that direct contact with a client, even though he may have a solicitor, is not necessarily unlawful even though it may, if done by a solicitor, be unprofessional.
5.13 However it would seem clear that what the court was concerned with in Margetson was a case where the client, or principal, on one side was happy to engage in negotiations directly with the solicitor on the other side and without the benefit of his own solicitor being present. The case has little, therefore, to say about a situation, such as arises here, where the principal, or client, has expressly stated that he does not wish the communication to take place.
5.14 Mr. Domican drew attention to the decision of MacMenamin J. in O’Brien v. PIAB (Unreported, High Court, MacMenamin J., 25th January, 2005). In that case MacMenamin J. determined that the practice adopted by PIAB in declining to accept or act upon client authorisation and by corresponding directly with the client concerned was in breach of s. 7 of the 2003 Act. The case was, therefore, principally about statutory construction and the question of whether it is appropriate or possible to exclude a client from having his solicitor, if he so wished, be the point of contact. It should also be noted that that case is under appeal. In any event it seems to me to deal with a different issue to the one with which I am faced in this case. O’Brien was not about excluding the client from being subject to direct contact.
6. Conclusions
6.1 There does not, therefore, seem to be any significant authority on the point in issue in these proceedings. I have come to the view that, as a matter of principle, a party’s entitlement to have access to the courts and to have the benefit of legal assistance in so doing, carries with it an entitlement to restrain any action which would amount to a material or significant interference with such parties relationship between them and their legal advisors in the context of litigation or potential litigation.
6.2 The real issue which falls for decision in this case is as to whether the actions of AXA can be so characterised. I have come to the view that they cannot. It does not seem to me to be appropriate to conclude that the mere copying of information directly to the client, which information the solicitor would, in any event, be under a duty to tell the client about, to advise the client on, and to act on the client’s instructions arising out of, amounts to a significant or material interference in the solicitor/client relationship.
6.3 If it were to transpire to be the case that any of the actions of a party such as AXA were designed to or would objectively speaking, be likely to, undermine the solicitor/client relationship in any material respect then I would come to a different conclusion. Under that heading the only matter that could conceivably be advanced as being likely to give rise to such a consequence is the statement contained in the AXA letter concerning the delays likely to be encountered in PIAB. It is said that that statement had the potential to undermine the advice given to Mr. Domican to await the PIAB determination. I am not satisfied that that is a reasonable assessment of the AXA letter. The AXA letter simply contains a generalised statement about delays in PIAB as a means for suggesting that there should be an early settlement independent of PIAB. The merits or otherwise of engaging in such an early settlement are a matter upon which parties can form there own view and will, in so doing, doubtless take into account a variety of factors. It does not seem to me to be an issue which could be said to have the potential, to any material extent, to undermine the relationship between a client and his or her solicitor. It should be noted, however, that there might well be aspects of correspondence that might pass between an insurance company and a firm of solicitors acting for a claimant in the course of progressing a claim which correspondence may be less routine than that engaged in in this case. Some such cases may become acrimonious. The correspondence may reflect that fact. There may well be circumstances where the copying of such correspondence directly to the client might be reasonably understood by a client to amount to a suggestion on the part of the insurers that the client’s best interests were not being looked after by the solicitor concerned. In such circumstances the direct copying of correspondence might give rise to different inferences and might amount to a material interference in the solicitor/client relationship. Nothing in this judgment should be taken, therefore, as implying that the copying of correspondence is always, and in all circumstances, lawful. Similarly the volume of communication, or its manner, might, in a different case, amount to nuisance, harassment or molestation.
6.4 However for the reasons which I have set out, and on the facts of this case, which concern merely the copying of a small number of letters of a relatively normal, almost routine, nature could amount to any of the legal wrongs asserted. In those circumstances I would propose to dismissing the plaintiff’s claim.
Ambrose v Shevlin
[2009] IEHC 548
JUDGMENT delivered by Ms. Justice Dunne on the 11th day of December, 2009.
Michael Ambrose lives in a bungalow which is located on the Aghalile Road, Carrickmacross, Co Monaghan. The house is located some distance back from the public road. To the left of the house, as one looks at it from the public road, is McNally’s field. To the right, is a field belonging to the defendant, Patrick Shevlin. The site on which the bungalow is built is rectangular in shape, with the short side fronting onto the public road and the long side going to the back of the site. The long side of the site is approximately 100m long rising quite steeply towards the back and also rising more gradually towards the road.
Some 300 to 400m away from the house going away from the direction of Carrickmacross, is a stream which crosses the road adjacent to a Mr. Lennon’s house by means of a culvert under the road. Between the place where the stream meets the road and Mr. Ambrose’s house are a number of fields. This area has been described as “saucer shaped”. I would describe the area as one where the land adjoining the road is lower than the road itself and rises more steeply to a hill further away from the road.
On the field belonging to Mr. Shevlin is a farm track or roadway described in the course of the evidence as a farm “pass”. This runs all the way up the field along the boundary with Mr. Ambrose’s property and beyond. This pass is at the heart of these proceedings.
It is also relevant to note that the land falls gradually from left to right as depicted on a map produced in the course of the proceedings by Mr. Osborne, an engineer, so that the land adjacent to the Lennon’s house beside the stream is higher than the land situated further along the road going towards Carrickmacross. Thus, the site on which Mr. Ambrose’s house is located is at a lower level than the houses of Mr. Matthews, Mr. Lennon and Mr. Smith shown on the map prepared by Mr. Osborne on behalf of Mr. Shevlin. Therefore, the natural flow of water from the stream, should it overflow, would be downhill towards and indeed, past Mr. Ambrose’s house.
Having set the scene, it is now necessary to look at what occurred over the weekend of the 25th, 26th and 27th February, 1994. Mr. Ambrose arrived home from work on Friday the 25th. There was heavy rain falling but there was no problem at that stage. By seven o’clock in the evening, Mr. Ambrose noted that the water levels around his home were rising. He accessed the Shevlin property via the public road and noted that at a point adjacent to the gable end of his house, a 3 inch pipe under the farm pass was obstructed by a stone and he removed the stone from the mouth of the pipe.
A key area of dispute in this case concerns the farm pass. The case made by Mr. Ambrose is that the farm pass had been constructed in 1993 approximately, that it was constructed above the ground level of the field in which it was located and that it was at a higher level than Mr. Ambrose’s house with the result that it acted as a dam when water levels in the area rose. It was also a part of his case that the pipes under the farm pass were inadequate to drain away the water that accumulated in that area.
In the course of the evidence, Mr. Ambrose stated that he met Mr. Shevlin and his daughter at around 7pm and he expressed his concerns about the situation in relation to the rising water levels around his house and his concerns as to the farm pass to them but he stated that Mr. Shevlin did not respond, he simply walked off. Mr. Shevlin disputed this account in the course of his evidence. Later that evening, around nine o’clock, Mr. Ambrose called to the Shevlin’s home and spoke to Mrs. Shevlin but again he got no satisfaction. According to him, Mrs. Shevlin told him that the river was flooded and that was her only response to the situation. In the course of her evidence, Mrs. Shevlin stated that she had no recollection of Mr. Ambrose calling to the home on Friday evening.
By 9:20 pm, Mr. Ambrose noted that water was coming through the back door of his house. At that stage, he went up to a neighbour’s house for assistance and finally he called in to the home of Mr. Mark O’Callaghan, a local county council engineer. He took Mr. O’Callaghan into his office and shortly before midnight, Mr. O’Callaghan, together with a JCB driver, Mr. Lennon, and gardaí came to the scene. The water was at that stage being dammed by the farm pass. The farm pass was breached by the JCB on the instructions of Mr. O’Callaghan. It took a short time to do this and when this was done the water levels subsided. Mr. Ambrose stayed elsewhere that night due to the damage done to his home by the flood. He was clear in giving evidence that once the farm pass had been breached the water flowed away.
The following day he returned to clean up the house. He noted that the water level in the house had reached up to 8½ inches above the floor level. This figure was based on the “tide mark” visible on pieces of furniture in the house. The following day was relatively dry but during the night it rained again. The trench which had been opened in the farm pass had been filled in and consequently, when the water levels rose again his home was flooded again. He arrived at his home on Sunday morning to find it flooded.
There is some dispute between the parties as to the timing of various events that occurred on Sunday, 27th February. There is no doubt about one aspect of the matter. On Sunday, the breach that had been made in the farm pass on Friday was no longer open. It was necessary on Sunday to reopen the breach. Mr. Lennon, the JCB driver and who is the same Mr. Lennon who lives adjacent to the stream was called to reopen the breach. Mr. Lennon says that he was called around 10.30 on Sunday morning by Mrs. Shevlin. He went up to the farm house with his JCB and arrived around 10.30. He noted that there was water around Mr. Ambrose’s house. He said that Mr. Ambrose asked him not to do anything at that stage as he had contacted the authorities and a photographer. Mr. Lennon said that at this stage he stepped back as he did not wish to appear to take sides. The Shevlin’s were distressed. He waited for Mr. O’Callaghan to arrive and when Mr. O’Callaghan arrived, he was directed by him to open the farm pass again. When the trench in the farm pass was reopened he was aware that new pipes were to be placed in the trench. According to Mr. Lennon the trench was dug by lunchtime. Subsequently, on the directions of Mr. O’Callaghan, he went up to the area where the stream was located and he opened a number of cuttings on both sides of the road adjacent to where the Smith house is now located. This had the effect of diverting the flow of water from the stream, which had been flowing down the fields towards Mr. Ambrose’s house, back into the river. The problem caused by the overflowing stream and the excessive rain was alleviated straight away once that was done. He accepted that the flood at Mr. Ambrose’s house had been alleviated by breaching the farm pass. He also agreed that on the Friday evening, the effect of breaching the farm pass on the flooding was immediate. He agreed with Mr. O’Callaghan in that regard.
The area of dispute between Mr. Lennon and Mr. Ambrose relates to the timing of events on the Sunday as I have already mentioned. Part of the difficulty in that regard is that a photographer was indeed called to his home by Mr. Ambrose with a view to recording the scene. On the back of a number of photographs taken by that photographer depicting the scene on Sunday the legend indicates that the photographs were taken around 3:30 pm. Some of the photographs show Mr. Lennon at work in the JCB. As already mentioned, his evidence was that he had finished work at the farm pass by lunchtime. Mr. Ambrose’s evidence was to the effect that the photographs were taken around 3:30 pm.
In the course of his evidence, Mr. Ambrose referred to a contemporaneous record that he made in relation to the events that occurred. In the course of those notes, he described the various events and the times at which certain incidents occurred. It was not disputed that those notes were indeed a contemporaneous record of the events. It is clearly the case that Mr. Ambrose was at the time sufficiently concerned about the events that had occurred to record details of those events in a contemporaneous record. No doubt, Mr. Ambrose used those notes to refresh his memory in relation to the evidence given before me. In respect of the evidence given by Mr. Ambrose as to a number of issues, namely the meeting between Mr. Ambrose and Mr. Shevlin and his daughter on Friday evening, his visit to the Shevlin home at approximately 9.00 pm on Friday evening and his evidence as to the timing of events on Sunday I prefer the evidence of Mr. Ambrose to that of other witnesses. I do not think much turns on the issue of the timing of the events on Sunday and the evidential dispute between Mr. Lennon and Mr. Ambrose on this point. There is no dispute between them as to the fact that the photographer, when he came, was in a position to photograph Mr. Lennon at work in the JCB.
There is no dispute between the parties as to the events that gave rise to the flooding. A combination of excessively heavy rain and the failure of the culvert to take the excessive rainfall going into the stream led to a situation where the stream overflowed at the point of the culvert resulting in a flood or overflow flowing down the fields towards the Ambrose house. It seems that the problem at the culvert was that the pipes at the entrance to the culvert were obstructed by stones and silt. Consequently, the stream which was swollen by the extremely heavy rainfall then overflowed.
The central issue in this case is whether the flooding to the Ambrose home is attributable to the farm pass on the Shevlin land. In looking at that issue, it is necessary to consider a number of matters raised in the course of the evidence. The first question that arises relates to when the farm pass was constructed. In the course of his evidence, Mr. Ambrose stated that the farm pass had been constructed around 1993. He did not dispute the fact that there had been a path in use along the boundary with his house but he said that around 1993 a large amount of quarry stone had been brought on to the site and works were carried on resulting in a substantial road being put in. According to his recollection, lorries brought hard-core or quarry stone to the site and a mechanical digger was used.. He wasn’t entirely clear as to the precise time when that work was done. He was aware that Mr. Shevlin had put in an application for planning permission around that time relating to the construction of cattle sheds, a slurry pit and a service road in that field. It was put to him that in anticipation of planning permission being granted Mr. Shevlin had brought materials on to the site with a view to the work he intended to carry out. These were mounds of hard-core material. It was also put to Mr. Ambrose that the work done by Mr. Shevlin to the farm pass was confined to doing minor repairs from time to time. He disagreed. It transpired that Mr. Ambrose had objected to the application for planning permission and planning permission was refused.
Mr. Shevlin in his evidence indicated that he never constructed a road at the site of the farm pass and that all he had done was to repair or maintain the existing farm pass. He said that he had brought in hard-core materials in preparation for the building work he hoped to do and for which he had applied for planning permission. He stated that the material accounted for the mounds apparent on the field. He disputed that lorry loads of stone or gravel had been brought in to create the pass. Mr. Shevlin accepted that he had received a warning notice from the County Council in relation to the work being carried out at the field. The warning notice was dated 13th August, 1993 and it stated that:
“It appears to the Monaghan County Council that the land referred to in the schedule to this notice is being or is likely to be developed in contravention of s. 24 of the Local Government (Planning and Development) Act 1963 (i.e., otherwise than under and in accordance with the permission required under that Act). The Monaghan County Council by this notice require that development of the said land shall not be commenced, or if such development has commenced, that it shall be discontinued forthwith and the land restored to its original condition.”
In the schedule to the warning notice, the following appeared:
“Description of land to which this notice refers
Construction of farm roadway and filling of land at Aghalile.”
By way of response Mr. Shevlin wrote to the County Council stating:
“Received your letter of today 13- 8- 93. I would like to inform the Council that I am not developing land. I am reclaiming land and gravelling an existing pass.
Enclosed is map with pass marked from A to B.”
There was some notation on the letter which it is accepted was placed there by County Council officials. These stated:
“Please refer to Mr. M. O’Callaghan
re (1) Changes in ground level
(2) Confirmation that this is a farm road.”
One further document was put to Mr. Shevlin and that was a document relating to an application for a grant in respect of farm improvement programmes. The description of the work referred to was as follows:
“Construct farm roadway 215m x 3.0m in accordance with the specification S.127….”
Mr. Shevlin stated that there was an error in the form in respect of the application for the farm grant. The application was for a grant to maintain the road not to construct the road. He went on to explain that the planning permission for the construction of the slurry tank and other works he had contemplated in 1993 was refused because of flooding and the impact on the visual amenity of the area and the proximity to Mr. Ambrose’s house. He denied having any antipathy towards Mr. Ambrose because he had objected to the planning permission for this work.
In the course of the evidence and bearing in mind the photographs produced in court, I am satisfied that the farm pass was constructed of hard-core material. I am satisfied that that material was brought onto the land by Mr. Shevlin. I do accept his evidence and that of Mr. McNally that there was an existing track alongside the boundary with Mr. Ambrose’s property but I have little doubt that in 1993 Mr. Shevlin engaged in significant works to improve the farm pass. The evidence of Mr. Ambrose in this regard is borne out by the warning notice served by the County Council and the application for a farm grant submitted by Mr. Shevlin himself.
The next question to consider is whether the works done by Mr. Shevlin in 1993 raised the level of the farm pass such that it was at a higher level than the floor level of Mr. Ambrose’s house. If not, then it is difficult to see how the construction of the farm pass could have led to or contributed to the flooding of Mr. Ambrose’s house.
There is no doubt that the area in which Mr. Ambrose’s house is located is part of the floodplain leading down from the stream towards Carrickmacross. The house built by Mr. Ambrose was constructed on a site, the level of which was raised some 2 to 2.5 feet above ground level. The floor level of the house itself would have been somewhat higher again. It seems to be clear that the construction of the house has created an obstruction in the natural flow of water through the fields. Nonetheless, the evidence was that although the house is constructed in a floodplain, from the time it was built and until 1994 the house has never flooded.
Mr. Osborne, an experienced consulting engineer, gave evidence on behalf of the defendant. He prepared a number of drawings and a helpful map of the area. He carried out an examination of the levels that are relevant to these proceedings. Mr. Osborne made a number of visits to the land in October of this year. That is obviously more than 15 years since the events giving rise to these proceedings. The net effect of his evidence was that the level of the farm pass adjacent to the gable end of Mr. Ambrose’s house coincides with the floor level inside the house. That being so, he concluded that the farm pass could not have had a damming effect such that it caused the water levels to build up behind it leading to the flooding of the house. Mr. Osborne had clearly done considerable work in relation to the various levels relevant to this case. Mr. Fahy, the engineer on behalf of the plaintiff had not carried out a similar exercise. Mr. Osborne in the course of his evidence was also of the view that the farm pass was not constructed above the ground level of the surrounding field. He did concede that parts of the farm pass might be higher than the surrounding ground level at certain points.
I have a difficulty with the evidence of Mr. Osborne. First of all, the evidence of a number of witnesses, namely, Mr. Shevlin, Mr. O’Callaghan and Mr. Lennon, not to mention Mr. Ambrose, all confirmed that when the breach was made in the farm pass on the Friday evening the water levels subsided. Mr. O’Callaghan had described in his evidence how deep the water was on the Ambrose side of the farm pass. If Mr. Osborne’s evidence was correct as to the levels at different points, it is difficult to see how the various witnesses who were present on the night of the flooding could have observed the water levels subside in the way described following the breach of the farm pass. Secondly, in the course of his evidence, I asked Mr. Osborne about one of the photographs in which a number of shovels can be seen just beyond the trench made in the farm pass which are leaning up against the farm pass. It is clear from that photograph that at that point the farm pass is raised higher than the adjoining land on the Ambrose side. Indeed I think it is clear that the ground on the other side of the farm pass also slopes down from the pass. In those circumstances, I am reluctant to rely on the evidence as to levels supplied by Mr. Osborne notwithstanding the care taken by him in preparing the information, given the passage of time which has elapsed since the flooding. I do not know what changes may have occurred to the farm pass in the intervening years since the flood occurred apart from the regular use to which it has been put. However, as I have mentioned above, the key factor, it seems to me, is that when the breach was made in the farm pass, the water level subsided. That evidence has not been contradicted by any witness who was present on the night of the 25th February, 1994.
I am satisfied that construction works took place on the farm pass in 1993. I am also satisfied that the result of that work was to raise the level of the farm pass with the result that on that weekend in February 1994, it acted like a dam, impeding the natural flow of the overflow from the stream and causing the flooding of the house.
The claim against Mr. Shevlin has been brought in nuisance and negligence. I was referred to the case of Fitzpatrick v. O’Connor (Unreported, High Court, Costello J., 11th March, 1988) in which Costello J. stated at p. 7 of the judgment:
“I now turn to the claim for damages from nuisance. The proper legal principles which I should apply are set out in Home Brewery v. Davis and Company [1987] 1 All E.R. 638. The legal position is as follows: the defendant was under no obligation to receive water from the plaintiff’s land but if the use of his land by him is unreasonable and is resulting in damage to a higher occupier, which the plaintiff is, then a nuisance is created.”
It is useful to look at the decision in the Home Brewery case referred to above more closely. The head note states:
“Held, (1) that an occupier of land had no cause of action against the occupier of higher adjacent land for permitting the passage of natural, unchannelled water over or through the higher to the lower land, but neither was he under any obligation to receive such water and was entitled to take steps consistent with his reasonable use of the land to prevent it from entering thereon, albeit that damage was thereby occasioned to the occupier of the higher land; that where the occupier of the higher land established that the lower occupier’s use of his land in taking such preventative steps was unreasonable, and that the resultant damage to the higher land was reasonably foreseeable, an action in nuisance would lie but that since the filling of the clay pit in the land generally with a view to its development was a reasonable use by the defendants, the plaintiffs had no cause of action against them in nuisance in respect of the major part of their claim that the damage suffered as a result of the defendants use of their land impeding drainage from the plaintiff’s land. …
but (2), giving judgement for the plaintiffs, that since the temporary additional flooding caused by the ejection of water onto the plaintiff’s land in the course of infilling the osier bed was reasonably foreseeable the defendants were liable to the plaintiffs, either in nuisance or trespass for the damage occasioned thereby, namely, the additional cost of pumping and maintenance during their ‘squeezing out period’.”
One of the questions that arose in that case was the question of reasonable foreseeability. In this case, I have already stated that I am satisfied that the immediate cause of the flooding was the construction work that took place on the farm pass in 1993. Thereafter, a combination of events occurred. Exceptionally heavy rainfall fell that weekend. There was also a failure at the culvert by reason of the heavy rain and the silting up of the culvert which led to the stream overflowing. The natural flow of the water after those events was through the fields leading to Mr. Ambrose’s house. This is an area which is prone to flooding at a lower point along the road although not to the levels seen that weekend.
I do not think that the events of that Friday night were or could have been reasonably foreseeable by Mr. Shevlin. The combination of events was exceptional. That, however, does not conclude the matter. Further exceptional rain fell on Saturday night/Sunday morning. The culvert had not been cleaned out and the stream overflowed again. In the meantime, the breach in the farm pass had been filled in. Mr. Ambrose gave evidence to this effect. Mr. Shevlin did not admit to doing this but I cannot accept his evidence on this point. I am satisfied that he filled in the breach sometime on Saturday. He did so without taking any steps to put in suitable drain pipes to allow any flood water that might accumulate to escape. He should have taken reasonable steps to ensure that there would be no further problem. The result was inevitable. Further flooding took place. This was entirely foreseeable. He subsequently took the necessary steps to avoid a similar occurrence on the Sunday by inserting large drain pipes in the breach at ground level.
In the circumstances, I am satisfied that Mr. Shevlin is liable to Mr. Ambrose for the damage done to his property. I note that a figure has been agreed in respect of damages. I do not think that it would be possible to make any distinction between the level of damage done on the Friday night and the damage done subsequently. Accordingly, I will give a decree in the sum agreed.
Grennan v O’Flaherty
[2010] IEHC 157
JUDGMENT of Mr. Justice John MacMenamin delivered the 27th day of April, 2010.
1. The plaintiffs are owners of a house known as “Wendell” on Torquay Road, Foxrock, Co. Dublin. It is a two-storey detached dwelling on approximately 0.35 acres of land. It is positioned to the south side of Torquay Road. To the south, the rear garden backs onto a green open space which forms part of a sports ground owned by Kilmacud Crokes G.A.A. Club for the defendants, the nominated representatives of the Club.
2. The plaintiffs’ claim is essentially brought in nuisance and trespass. This judgment is confined to the issue of liability, the question of damages or other remedies being held over.
3. The case arises from flooding which the plaintiffs contend was caused by acts of nuisance of the defendants as occupiers of the neighbouring playing pitches and land which lies to the south of the plaintiffs’ land and runs along their back garden wall. Kilmacud Crokes’ grounds are extensive. They run some hundreds of metres to the south and west at the rear of the plaintiffs’ land. The Grennan’s rear garden wall forms part of the boundary to the club lands as do the garden walls or fences of the neighbouring houses on the south of Torquay Road.
The defendants’ property
4. The defendants’ premises are not a perfect rectangle. They are best imagined as “hatchet shaped” with Wendell lying just below the junction point between the upturned head and the handle. The hatchet “handle” runs to the left as one stands at the rear of Wendell. The area surrounding this junction will be called the “neck area” or the “subject lands”.
5. There is now on the defendants’ side a raised line of earth which runs very close to the rear boundary walls of the Torquay Road houses. How this was built in 2004 will be described in greater detail. The former Harcourt Street railway line ran near the path of this earth wall or “berm” until the late 1950s. Its path ran along the rear boundary of the houses. The iron tracks and supporting foundation material – known as “ballast” – was laid years before by the Great Southern Railway Company. Obviously for safety reasons there could then have been no direct access from the gardens of the houses onto the railway. However, after the line became derelict things changed.
6. After the railway, the subject lands which lay outside these garden walls fell into disuse. From some point, possibly in the early nineteen eighties it was used by builders to store material. The land became partly covered with brambles and undergrowth. A narrow space of perhaps 18 feet ran from the plaintiffs’ rear boundary to the path of the line itself. Many of the Torquay Road homeowners (including the owners of Wendell) opened rear gates or doors onto this derelict land. Some (but not the plaintiffs), tried to extend their gardens right into the subject lands. Ultimately the defendants repulsed their efforts when they acquired the property. The residents used the rear area for recreational purposes. After the plaintiffs moved into the house in 1989 their two young children used to play there. Much court time was devoted to determining the relative level of the garden then compared to the club lands.
7. One of the reasons why the Grennans bought Wendell was because the rear garden was south facing. The family had previously lived in Torquay Road for many years though they had never visited this house prior to purchasing it. The Grennans put a new roof on the house and carried out many renovations. They added extensions to the rear and to one side of the house. While the plaintiffs had not been familiar with the house prior to the purchase they clearly knew the area very well as they had lived just across the road.
8. Mrs. Grennan is a keen gardener. This was also one of the reasons why she and her husband decided to buy the house. She described the rear garden as having been particularly beautiful containing a number of very old shrubs, plants and trees. She said it had a “fabulous” lawn and a beautiful garden. The plaintiffs’ gardener Mr. Paddy O’Brien, retired, came in to tend the garden one half day a week both winter and summer.
9. There is no brick or block wall lying between the plaintiffs’ back garden and the defendants’ lands. Instead the boundary is described by a large laurel hedge and fencing. Every so often Mr. O’Brien, the gardener, would cut the hedge back.
10. Immediately to the right or west, as one stands at the back of Wendell, there is another house which has now fallen prey to the recession. It was being re-developed but this has ceased for some time past. What lies there at the moment is a half re-built dwelling surrounded by scaffolding. There is no boundary wall to the rear of this house either. Instead there is some hedgerow and a chain link fence. Wendell too, has a chain link fence lying within its laurel hedge. This acts as a reinforcement of the boundary against intruders.
11. To gain access by car to the club grounds from the Wendell direction, one would turn left coming out of the front gate of the house, travel down Torquay Road, turn left again at Leopardstown Road and thereafter enter Tudor Lawns, a newer development of well established semi-detached houses built in the early 1980s. The entrance to the club lands is through Tudor Lawns and lies at the corner of that property furthest away from the plaintiffs’ land. To the south and east of the G.A.A. grounds (at the opposite side of the “axe handle” from Wendell) there lies the boundary to Leopardstown Racecourse, bounded by a high wall.
12. If one draws a line diagonally from the Tudor Lawns entrance across to “Wendell” the land is not flat. From the club’s entrance gate, diagonally across to the plaintiffs’ rear boundary the land falls by a little more than eleven feet. There is too, a slight incline as one walks the much shorter distance straight across the neck from the back garden of Wendell to the racecourse wall. In some areas here there are hollows which are damp and marshy.
13. By the time the plaintiffs bought Wendell in 1989 the defendant had already commenced reclamation work of the playing area, situated in the main part of the club lands. But one area which remained neglected was the neck area and all that immediately to the rear and to the east of the plaintiffs’ property.
14. The playing fields were subject to “ponding” from the time that the defendant moved in during the early 1980s. The problem became very evident after heavy rain. The club premises had been grassland and pasture. Prior to the club’s acquisition it was used as a temporary or part time pitch by Bective Rangers Rugby Club. The pitch itself was an inclined plane falling four to five feet with minor undulations. The land in total runs to twelve acres, approximately nine acres of which are now the relatively flat pitch area. The entire “handle” area measures approximately an acre and a quarter.
15. The railway line closed in 1956. Shortly thereafter, the rail sleepers and ballast were removed. What remained on the subject land generally was rough ground overgrown with bushes, briars and weeds. There was then no topsoil in that area.
16. Mr. Hank Fogarty testified on behalf of the defendants. He is a chartered civil engineer and was managing director of SIAC Construction. He was deeply involved in the club committee which dealt with the acquisition and development of the club lands known as “Silver Park”. He testified that as and from 1981 no new rear gates were permitted from the Torquay Road houses onto the defendants’ lands. The defendants considered that these had been improperly opened in the first place. The occupied land was reclaimed. Furthermore the club reasonably considered that it was inappropriate that dogs be exercised on their lands in circumstances where there would be children or young people playing Gaelic football and hurling. Mr. Fogarty testified that from time to time the residents dumped grass and hedge clippings into the derelict area. This was also a source of concern to the defendants. There is no evidence that there was active hostility between the defendants and its neighbours or vice versa. However, I infer there was not the high level of cooperation which one would expect between neighbours who might otherwise have common interests.
17. Work was carried out on the pitches to level them. Mr. Fogarty carried out a thorough survey himself. This showed the fall of eleven feet from the north west to the south east corner, that is from Tudor Lawns diagonally across to Wendell. Laterally across the pitch there was a fall of between four and five feet. The club carried out work levelling the undulations on the pitch, stripping back and distributing the topsoil so that the local undulations were smoothed and levelled. Thereafter the pitch was seeded. Around this time the defendants also built their clubhouse and erected the present walled entrance.
18. It was necessary to move boulders or large rocks from the pitch area. Some of these were placed near the corner or on the neck of land close to the plaintiffs’ property. There was spoil from the construction of the entrance roadway and the foundations of the dressing room and clubhouse. This was placed in the same area as a temporary spoil heap. It was transported there by lorries. These mounds of spoil were not spread or distributed in any way. They comprised 28 loads of soil material, and ultimately turned into grass and bracken-covered mounds which ran between the pitch area and the rear boundaries of the Torquay Road houses. The defendants also placed gravel on part of the former path of the railway line to facilitate car parking. This ran perhaps 200 yards from the Tudor Lawns direction down along the rear boundaries of the Torquay Road houses but stopped short perhaps 100 yards east of Wendell. This was placed on top of any “sub-grade” material which remained from the railway line.
19. In the mid 1990s the defendants gave thought to the development of the “subject lands”. They thought this might be used as a training area. Clearly at all times there were budgetary considerations. Such a project presented financial difficulties in terms of expensive lights and facilities. The defendants had a budget of £8,000. They decided to take such steps as they might within that budget. By this time the 28 mounds had been neglected and become somewhat overgrown. There was undergrowth, weeds and brambles there. The large container left by the builder who carried out the works, together with planks and other building materials remained.
20. In 1998 the mounds were dug out and removed. I am satisfied the defendants then brought in what was described as 20 loads of topsoil and laid it as a “skin” over the entire subject area, harrowed and fertilised it. I find that this work did not have the effect of altering the gradient of the neck which always sloped somewhat towards Wendell from the racetrack but, rather, that it affected the level of the land, critically raising it by up to one foot in height vis á vis the level of the plaintiffs’ garden.
21. When the plaintiffs had previously walked out through their rear gate, onto the defendants’ property the subject land outside had been approximately level with, or just below their own garden. I am satisfied that the excavation, levelling and re-levelling carried out by the club rendered the lands outside the rear gate of Wendell significantly higher than the base of the access gate leading from Wendell onto the subject lands. The soil was compacted up against the gate itself and, for a while, whether intentionally or not, the plaintiffs had no access to the club lands. This re-levelling was a radical step. There was no prior discussion or consultation between the defendants and its neighbours. While there is no evidence as to any malign motivation for the manner of this work, one of its effects was (at least temporarily) to deny the Torquay Road residents access onto the defendants’ lands.
22. It seems that the residents felt that they had some degree of “entitlement” to enter onto the defendants’ lands for their own recreational purposes. Thus, when this re-levelling occurred, the plaintiffs’ gardener excavated the land outside and ultimately it was necessary to raise their gate so as to allow it to swing outwards into the defendants’ lands. This was of course, technically a trespass of the defendants’ property. Although denied by both parties there was something of a subterranean “tit for tat” relationship between the residents and the defendants, although again nothing amounting to overt hostility. The steps taken by the residents and the club as neighbours, however, gave rise to heightened sensitivity.
23. There was at some point an exchange of solicitors’ letters between the defendants and the plaintiffs. The defendants asserted that their land was private property and that the plaintiffs had no access rights. The plaintiffs’ solicitor suggested that they had acquired some form of right by long usage. Ultimately the plaintiffs replaced the wooden door which gave way onto the defendants’ property with a different raised door.
24. I am satisfied that the effect of these works was to constitute an alteration of the level of the defendants’ lands. This altered the respective relationship between the two properties with results which emerged in the year 2000, at a time of particularly heavy rain.
25. Things became critical on or about 7th December, 2000. The second named plaintiff said that she woke up on that night. She could hear the rain falling in their back garden. She felt it was making a “different” sound. She testified that the entire garden was absolutely covered with water. It looked like a “huge river”. She took photographs of this. Her husband went out to try to get the shores open but there was so much water that they could not get them open that night. She described the flood which took place at that time as being “disastrous”. The water was flowing from the club lands into the garden of Wendell.
26. The following day, 8th December, the plaintiffs phoned the defendants. They invited representatives of the club to come over and look at the damage done. They contacted the County Council who came out with sand bags. They had to ask the fire brigade to come to pump the water out of the garden because the shores were filled. The water had permeated into the house. The second named plaintiff described the damage as being such that an observer could see the moisture rising through the floors, and smell the muck and sewage in the house itself. She said that the whole ground floor of the house was “destroyed”, and permeated with water. She described the flooding as coming from under the access door to her garden from the defendants’ property like “white water”. The water did not remain confined to the back garden, and flowed round to the front of the house.
27. A groundsman, Brendan O’Connell, from the defendant club called. He brought sand bags and assisted in placing them along the vents at the back of the house. On the same day, 8th December, 2000, the first named plaintiff wrote to Mr. Tom Rock, chairman and a Mr. Martin Glynn, a committee member of the defendant.
28. As a result of the discussion in December 2000 there seems to have been an impasse. The Grennans did not take legal proceedings at this stage. The club did not take any remedial steps for three years thereafter. But the flooding problem did not return until two years later and later that year.
29. There was repeat heavy flooding in February 2002. The second named plaintiff describes the water on the former occasion as “flying in” the garden. The plaintiffs telephoned the defendants on numerous occasions but apparently to no avail. The County Council came and assisted again with sand bags.
30. Thereafter the garden was often wet and the flooding problem was less dramatic. But for four years up to 2004, the plaintiffs had to deal with a situation where, on occasions of heavy rain, their garden flooded necessitating them to open up the shores. While the defendants had had notice of what was happening (including the initiation of proceedings in 2003) there is no evidence that they took any significant steps to either abate or attenuate the flooding up to 2004. The source of the problem was or should have been obvious. During this time the plaintiff says the water that flooded the garden had the effect of permeating into the house creating a foul smell and dampness. While prior to the 1998 works the garden may have been prone to some ponding when there was heavy rain because it was low lying, it was nothing like what occurred after the works.
31. Before any work was done in 1998 there was at least one area in particular, near the neck lands which should have raised an alarm for the defendants. It lay at the connecting area between the corner of the playing fields proper nearest Wendell and the “neck area”. This zone was particularly prone to flooding as it was lower lying than the rest. Extensive flooding is shown there in photographs even up to 2009. In fact this area which was often subject to ponding was known to both the plaintiffs and the defendants. The wet area expanded when there was heavy rain. This very fact should have alerted the defendants to the risks of water settlement and movement from their lands permeating into any neighbouring gardens. At times of heavy rain, water from this direction travelled diagonally across towards the plaintiffs’ property. The risk of flooding was obviously particularly prevalent when the prone to ponding areas were at a high level.
32. I say parenthetically that Mr. Glynn, who testified in the proceedings, was, as also in the case of Mr. Fogarty, a civil engineer. He rose in the profession becoming a director of Collen Construction. Both Mr. Fogarty with SIAC, and Mr. Glynn with Collen Construction, therefore, had long experience in very large construction projects and had worked for large construction enterprises. Issues such as ground levels, slopes and drainage cannot have been strange to them. I make a similar comment in relation to Mr. Liam O’Flaherty, the first named defendant, also a club official. He is the holder of a degree in agricultural science and worked for 40 years as a crop specialist dealing with all aspects of soils, nutrition, pest control, cultivation and harvest.
33. To men of the experience of Mr. Fogarty, Mr. Glynn and Mr. O’Flaherty, the potential consequences of re-levelling should have been obvious from the outset. It was reasonably foreseeable that an alteration in the level of the subject land would have this consequence. Up to 2004 the attitude of the club seems to have been to try and keep the problem at arms length and to deny liability.
34. The plaintiffs made an insurance claim. It was necessary apparently to take up the floors and dry out the house as well as having to get new carpets in two rooms. Mrs. Grennan testified that the patio was replaced, i.e., taken up and put back down and that a lot of the shrubbery and growth in the garden was lost at that point.
35. As far back as the year 2000 the plaintiffs retained an engineer, Mr. Roger Cagney of Hayes Higgins Consulting Engineers. Both he and the plaintiffs made occasional contacts with the club between 2000 and 2001 but nothing concrete came of this. The plaintiffs wrote to the defendants. They invited consultants to advised them as to what course of action they should adopt. In 2002 the Grennans received further advice as to a range of measures which they might adopt in order to abate the problem on their side of the fence. They considered erecting a wall on foundations behind the hedge. Mrs. Grennan’s testimony on this point is of particular importance. She says that when they considered building such a wall, she was advised that they could not do so because the result would be to push flood water into neighbouring gardens on either side of them.
36. What emerged only upon an inspection of the lands was that the neighbours in the house to the left as one looks out from the back of Wendell, adopted precisely this course of action, and have created a substantial block wall between their lands and the defendants. The Grennan’s boundary line with the defendants still to this day consists only of a chain link fence and laurel hedge. They never built a wall, even bearing in mind that their neighbours to the left did so at some point. The house and lands to the right of Wendell looking from the rear remained unoccupied.
37. The plaintiffs were advised by their then solicitors and Mr. Cagney that if they were to build a wall it might have the effect of “pushing the water to the other gardens each side of us”. This will have to be considered in the light of what has now emerged on the question of damages and their mitigation. The plaintiffs lack nothing in initiative. It ultimately emerged during the hearing that they had applied for planning permission to build a large conservatory/extension at the back of the house. Their architect filed a planning application for this purpose in 2003. In the planning application form, applicants are asked whether the lands were prone to flooding. The reply given to this was in the negative. I believe this answer was done on the architect’s initiative. But part of the plan involved a substantial raised terrace extending a substantial distance across the lawn toward the back wall. This might have been of assistance as a protection – had it been built. There has been no direct evidence as to the legal advice which the plaintiffs received from their then solicitors at this time in relation to protective measures which they might legitimately have adopted to defend their own land and property. One question that arose was whether the protection, be it a wall or berm was to be built on the plaintiffs or the defendants lands.
38. In a letter to the Grennans of 14th May, 2002, Mr. Cagney made a number of suggestions. He adverted to the fact that the period from the beginning of February, 2002 had been an extremely wet period when there had been extensive flooding to the coastal areas of Dublin City, together with storm force conditions. This had resulted again in water logging to the defendants’ lands which flooded or drained in to the plaintiffs’ garden.
39. In the letter Mr. Cagney revisited various options which he had proposed to the plaintiffs from December, 2000 onwards. He wrote that going back as far as the year 2000:-
“…we believed this potential to be a lot more critical than history has in fact shown to be the case over the last eighteen months”. The proposal to construct a bermed wall was discussed but substantial difficulties and subsequent responsibility for long term consequences rendered this solution impractical, if not impossible for further consideration”.
But he added:-
“In addition, to save your laurel hedge it would have to be built upon G.A.A. lands to the rear boundary of your property. This entails getting their permission to do so.”
But then he said:-
“Upon construction of this bermed wall you would then become responsible both for its long term behaviour and for the potential for any flooding which this wall in turn caused to adjoining properties.”(sic)
40. A number of issues arise from this letter the contents of which were not disputed. The first is that the problem was not as acute as anticipated. The berm and wall proposals have been outlined. But next is the fact that the plaintiffs appear to have been concerned as to the loss of their laurel hedge. I consider this is relevant as to the scale of importance they attached to the flooding problem and its resolution or solution and may also go to the question of mitigation. By late 2002, or early 2003, there were indications from Mr. Martin Glynn and Mr. Tom Rock, that the club was agreeable “in principle” to the idea of building a bermed wall on this land. However, no written confirmation was received. It appears that both parties were paralysed by a concern as to the financial and legal consequences for themselves by taking any of these possible abatement measures.
41. Mr. Cagney commented at this time that the proposal to build a bermed wall was likely to promote the retention of water on the plaintiffs’ side of the boundary and being unlikely to provide any real security from flooding of the adjoining lands. This might be thought to beg the question as to why. What was the source of the water? It suggests if the land was prone to ponding it was sub-surface water which emanated from the defendants’ land. The wall with an adequate foundation might have been an effective protection. He commented:-
“Should the conditions prevail again to cause you such major flooding, I believe that responsibility for the global drainage to rest not with you, but with [the] the G.A.A. together with Dunlaoghaire Rathdown County Council. The G.A.A. having altered the topography of the adjoining lands must retain responsibility for these works. In conjunction with these alterations I believe that a dialogue should have been initiated with Dunlaoghaire Rathdown County Council and the G.A.A. in this respect as to the overall drainage provisions.”
42. The outcome of this advice was that the plaintiffs looked to the defendants to construct a substantial and costly two stage drainage system which would gather the water in subterranean tanks, in the “ponding area”, thereafter to be pumped electronically over a distance of several hundred yards up to the nearest possible junction with council drainage, that is on Leopardstown Road. The cost of such a scheme would have run into hundreds of thousands of euro. It was a classical example of the best being the enemy of the good. The proposal was beyond the club’s finances. Such purist and unrealistic advice did not expedite remediation.
43. As a lesser, but not preferred, option Mr. Cagney recommended “a drainage gravel bed along the rear boundary” of Wendell as being “probably the best way forward”. The plaintiffs did not avail of any of these options in 2002, but rather awaited developments literally and metaphorically from the other side of the fence. Mr. Cagney’s concerns as to the likely prevalence of ongoing flooding were reiterated in subsequent letters to the plaintiffs. In each of these, he suggested matters be “raised” with the defendants and also Dunlaoghaire Rathdown County Council. I infer the local authority did not wish to get involved in the more costly option.
44. The possibility of a bermed wall was one which had in fact been seriously raised with the defendants as far back as the year 2000. It was referred to in a letter from the first named plaintiff to the defendants on the 5th November, 2002, at a time when the plaintiffs were experiencing yet more flooding.
45. I am satisfied that the occasional periods in which the plaintiffs experienced flooding between 2000 and 2002 were generally at times of exceptionally heavy rainfall when, as the evidence demonstrated, the degree of precipitation was multiples of the average. This would not, of course, avail the defendants to this claim. This was not an act of God – it was simply very heavy rainfall, an event all too foreseeable.
46. The impasse continued into 2003. At last, on the 4th March of that year a warning letter was sent to the defendants evincing an intention to issue proceedings. A plenary summons was issued on the 3rd April, 2003. In it, as well as claiming damages, the plaintiffs sought an injunction directing the defendants to restore the level of the lands and to maintain its porosity; orders directing the defendants to install a drainage system on their lands adequate to prevent rainwater flowing into Wendell; and restraining the defendants from carrying out any further works which would increase the flow of rainwater into the plaintiffs’ lands.
47. No interlocutory order was sought or obtained. The proceedings moved very slowly, perhaps influenced by the fact that the defendants ultimately if ineptly constructed a berm wall on their lands in 2004. Ultimately an amended statement of claim was filed on the 6th June, 2006, by the plaintiffs’ then solicitors. This was six years after the problem first arose. This action was heard nine years after the issue emerged.
48. One can only conclude that when faced with the apparent intractability of the problem the instinct of the defendant was to bury its collective “head in the sand”. The nuisance should have been obvious but the solutions were expensive. On the 15th November, 2002, Mr. Liam O’Flaherty the first defendant wrote:-
“…having fully investigated the matter we do not feel that our Club is in any way to blame for the flooding caused to your premises…”
He deprecated any suggestion that representatives of the club who met with the first named plaintiff in 2000 had in any way accepted liability or indicated a desire for the defendants to take an initiative to put an end to the cause of the problem.
49. Late in 2003 the plaintiffs got a call from their then solicitors. They attended their solicitor’s offices where a meeting took place with the defendants and their representatives. An agreement was reached that the club would construct a berm in accordance with a Hayes Higgins plan, as stipulated. It was agreed that this would proceed on the basis of identified steps and that the works would proceed on the basis of engineers from the defendants, and the plaintiff, being present during construction so that the plaintiffs’ engineer would be in a position to assure that the berm had been constructed in compliance with what was stipulated.
50. From the defendants’ point of view this was obviously preferable to the other, and far more costly option which had been put to them by Mr. Cagney.
51. As designed by Mr. Cagney of Hayes Higgns, the proposed berm was to be 155 metres in length and 0.6 metres high. It was to be located a significant distance from the plaintiffs’ property. It was to be an inverted L in shape, starting from the south at the boundary wall to Leopardstown Racecourse, moving directly north and then turning west and proceeding along the back garden boundary line of the Torquay Road properties for approximately 120 metres. The existing topsoil on the site was to be removed to an average depth of 0.15 metres. Compacted black boulder clay and topsoil was to be applied. The top and sides of the berm were to be seeded. The construction was intended to be shaped as a “cut off” pyramid, with a base of 3.6 metres and at the top 1.2 metres. Had the defendants built the berm in accordance with the plaintiffs’ specifications this would surely have been a significant step toward ending the matter.
52. Work on a berm started at 5.00 am in the morning, on 1st March 2004. There was no meeting beforehand. There was no consultation between the engineers. The plaintiffs’ engineer was not called out to inspect the work, or the soil which was delivered. The plaintiffs called on Mr. Cagney who said the work would be an insufficient protection and the material substandard. The material which was used by the defendants was substandard. The plaintiffs called out the litter warden who came down to the house and took photographs of the material. Photographs demonstrate that the material used by the defendants for its berm was demolition waste containing pipes, cement and other building waste. An engineer from the County Council arrived. He established that what was being used was demolition waste and that it had to be removed. Club officials discussed the matter with him and suggested that the defendants might merely remove the pieces of rubble and leave the remainder. However, the Council were not disposed to permit this and directed that all of it should be taken away. The work ceased for a number of weeks. Then, for reasons unexplained, the Council’s hard line position appears to have relented, and the defendants were allowed to clear out the demolition waste including iron bars, slates and pipes, and to leave the remainder. No digging down or foundation work was carried out as stipulated in the Hayes Higgins plan. The type of soil that had been stipulated in that plan was not used. In all this the defendants were guilty of a fundamental breach of faith. What happened is not even seriously disputed.
53. A degree of Court time was spent in inconclusive cross-examination of the defendants’ witnesses on the issue as to whether or not the spoil which had been deposited in the subject area was taken away or in fact used for the construction of a berm. I find that as a matter of probability it was removed, as evidenced by an invoice paid by the club. It is unlikely that the club in its straitened financial circumstances paid a man to remove the spoil unnecessarily.
54. In response to the plaintiffs’ complaints, the defendants’ solicitors wrote on 15th September 2004, bravely asserting that the works (which had by then been finished) had been “completed in accordance with the preliminary measures that were agreed upon without prejudice to “satisfy your client’s claim and that all engineering steps had now been taken in relation to same”. This was ingeniously if opaquely worded – but it did not convey fully what actually occurred. The club had dishonoured the deal.
55. Not only was the berm’s construction substandard – it had been built in the wrong location. It brought the gathering of water closer to the plaintiffs’ property. The berm as constructed started from the wall of the racetrack, but very considerably further down in to the “neck” or subject area, and well past the plaintiffs’ rear boundary. It then took a left turn at the boundary wall of the Torquay Road houses, and ran along this line for in excess of 100 metres. This had the effect of bringing the berm and any trapped water, and its effects, far closer to the plaintiffs’ garden.
56. The second named plaintiff describes the berm as it was constructed as having been approximately four feet high, it is now significantly lower. This may be due to the impacting of soil.
57. The new berm nonetheless had both positive and negative consequences. I am satisfied that it had a significant benefit in preventing much surface water moving from the defendants’ lands onto the plaintiffs’. But this has come at a cost, as confirmed by the consultant engineers on both sides of this case. At times of heavy rain the berm now acts as a dam, thus creating significant ponding on the club lands which comes close to the plaintiffs’ back hedge. The gathered water can reach up to one foot in depth. It may stay in a flooded condition for a number of days. By reason of the pressure of this ponded water there is still a subterranean percolation or seepage of water into the plaintiffs’ back garden. In the plaintiffs’ words, this occasionally makes the garden look like a “golf course under water”.
58. The expanse of this water can be considerable. Photographs taken in May 2006, March 2007, March 2008, September 2008, and February 2009, show a body of water running behind the berm for a distance of up to 50 yards and stretching back diagonally as far as the nearest corner of the defendants’ playing pitch to Wendell.
59. It is not clear why the defendants’ officials, apparently otherwise reasonable people, acted in such an unreasonable and high handed way. This was not a large construction project with large budgets requiring speedy work in accordance with time deadlines, but an issue between neighbours. There are some grounds for inferring there was still a want of concern between the residents and the club, even though not explicitly admitted. The club clearly still had long term concern as to its Torquay Road boundary line. There had been the trespass on their land by some of the residents who had moved their back boundaries to incorporate part of the subject lands into their gardens. While the Grennans did not do this, they nonetheless had a gate which opened directly onto the club lands, a technical trespass. There had been the solicitor’s letters between the parties on the conflicting issues of alleged trespass and long usage. But none of this excuses nuisance or want of reasonableness on the part of the defendants from 1998 and 2004 in relation to their use of their land. All the parties disavowed there was any friction – I do not accept this.
60. It is clear the 1998 works were done without any prior consultation or discussion with the plaintiff. I do not think that the defendant acted appropriately as a good neighbour should in embarking on such work without consultation. The fact is that in 1998 the material came up as far as the plaintiffs’ boundary line and had the effect of blocking the wooden door. This speaks for itself. A lack of consideration was reflected in the defendants’ reaction to what occurred to the plaintiffs’ house and garden in the year 2000. It continued up to the issuance of proceedings in 2003. The unilateral breach of the agreement to build the Hayes Higgins berm made between the parties in 2003, was an act of bad faith. The defendants acted unreasonably throughout this period. They knew or ought to have known the effect of the re-levelling in 1998. They were certainly on notice of this by the year 2000. They did not take any action for another four years.
61. The construction of the berm in 2004 was carried out without any reasonable consideration for the rights and interests of the plaintiff. While there is no evidence as to the defendants’ motivation in relocating the berm, one cannot ignore that one consequence is that the berm now, as explained, brings ponded water right to the brink of the plaintiffs’ boundary line. Had it been constructed in accordance with the Hayes Higgins plan there would have been two consequences. The first, obviously, is that it would have been placed substantially further from the plaintiffs’ property. The second, is that the effect of the berm as designed would have caused inconvenience, flooding and ponding to a far greater extent in the defendants’ property. Photographs of flooding in 2008 and 2009 demonstrate that the ponding effect actually approached one of the defendants’ main pitches. It is not difficult to infer therefore, that the effect of the Hayes Higgins berm as properly located further onto the defendants’ lands would have been to create flooding which would have constituted a potential for far greater water incursion into the main part of the defendants’ property, perhaps including the main playing areas. In all this the club acted unreasonably.
62. The want of reasonableness applies to both sides. It is striking that even after the flooding in the year 2000, the plaintiffs did not take any step whatever in order to protect their lands. They saw the causes of the flooding as being the defendants’ problem.
63. The plaintiffs may have received “mixed messages” from their engineering advisers. But the reference in Mr. Cagney’s letter to the laurel bushes on the boundary is striking. By way of contrast to the defendants’ immediate neighbours who had built a block wall, the plaintiffs did not dig a culvert or drain, nor did they engage in any work to protect their own property such as a block wall with a significant foundation. They did not explore other alternatives. There is a question too as to how frequent the flooding truly was. These issues must be explored and tested in any hearing on the issue of damages.
64. Moreover even in the course of the proceedings the plaintiffs and their advisers maintained an obdurate insistence on expensive remediation works which must inevitably have been prohibitively expensive for the defendants. Draining and tanking the water in the pond area and thereafter pumping it electronically to the Leopardstown Road level would inevitably have been an expensive exercise. Yet the plaintiffs’ engineers continued to maintain that their option was perhaps the only option. Only after extensive cross-examination did the plaintiffs’ consultant engineers concede that the berm, as constructed, despite its infirmities, had a significant effect in attenuating the flooding problem. The plaintiffs’ engineer, Mr. Goggin, when pressed accepted that the berm had been up to 95% effective.
65. While the sums at stake in this case in no way come within the jurisdiction of the Commercial Court, the case is a prime example of the requirement for case management and the early identification and agreement on issues in dispute.
Issues of fact
66. The factual issues in this case come down to simple questions. Did the plaintiffs buy a house where the garden was already prone to flooding? The evidence on this issue lies in the plaintiffs favour. The second named plaintiff has testified that the garden was dry prior to the defendants’ works. She described the lawn and the garden and shrubs as being one of her motivations for buying the house. It must be recollected that the family previously lived directly across the road, thus the issue may on one level reduce itself to a question as to whether the plaintiffs bought a house and garden which was prone to flooding? There is no such evidence although the second named plaintiff did concede that from time to time ponds of water formed on the lawn. The engineer’s correspondence raises the question implicitly. However this ponding is very different from the substantial water which is shown in the video evidence and in the photographs from 2000, 2002 and to a degree later. One particularly striking piece of footage from December 2000 shows quantities of water discernibly moving from the defendants’ to the plaintiffs’ lands. There was still water seepage even after the berm was built as shown by photographs from 2004 and afterwards.
67. A number of conclusions can be safely and logically drawn from this evidence. The evidence is both negative – a process of elimination; and also positive. Some cause or causes created the flooding which, on the evidence, started in the year 2000. No other cause has been identified by the defendants. The undisputed fact is that the defendants engaged in works on the land in March of 1998. They dispute that they raised the level of the land. I reject the defendants’ evidence on this point. I think they are mistaken. I should say I have been less persuaded by theorising on the part of the plaintiffs’ engineers than by the evidence of Mr. Paddy O’Brien, the gardener who provided short but clear positive evidence of what happened in 1998.
68. Mr. Paddy O’Brien is the Grennan’s gardener. He is a mature man and an entirely credible witness. He testified that he came in winter and summer for half a day a week. Prior to the works in 1998 he testified that about twice a year he would go out by the door beyond the fence into the subject lands because nettles and briars used to grow across the door from the Grennan’s garden into the defendants’ lands. This wooden door opened outwards into the defendants’ property. It is shown clearly in a photograph taken in December 2000 entitled in the book of photographs “flooding from Silver Park 2000”. Mr. O’Brien had extensive experience of the garden, and what lay beyond it. I think his testimony is, in fact, the best evidence available on whether the land was raised. It was corroborated by a night time photograph taken in December 2000 of the area around the Grennan’s garden back door. It shows significant flooding coming from the defendants’ land.
69. Mr. O’Brien testified that prior to 1998 there was “no bother” opening the door into the defendants’ land. He said:
“There was no bother opening the door first but when the development happened the door couldn’t be opened so I had to go out and dig it because the door opened out onto the pitch…I had to dig the side out of it, I would say about 8 to 12 inches to open the door.”
Mr. O’Brien testified that prior to the 1998 development works one stepped “down” from the gate. The December 2000 night time photograph corroborates Mr. O’Brien’s testimony. It shows that by December 2000 the general ground level in the club land, was substantially higher than the base of the wooden door; and the earth was between 8 and 12 inches higher than the base of the door before the work was carried out. But, vitally, it bears out Mr. O’Brien’s other evidence, and shows that he dug an arc of earth beneath the door so that the level beneath the swing-arc is substantially lower than the surrounding ground further into the defendants’ land. It shows precisely what Mr. O’Brien said – that he had to dig out the earth by as much as 8 to 12 inches to allow the door to swing open. I find Mr. O’Brien’s evidence credible and independently corroborated by the photograph. His evidence was not disputed or contested when much else was. He described the garden as being now wet for three or four months a year and now being like “a bog”. His evidence is also corroborated by Mrs. Grennan on this point. Prior to 1998 there was a significant step down from the level of her garden to the defendants’ lands. This is not borne out by the level of the land shown in the photograph.
Forseeability and reasonableness
70. A number of the defendant club officials who testified were vastly experienced in the world of engineering and construction, including the engineering of very large projects. The issue of the slope and incline of the club pitch and the lands had been a matter of concern as far back as 1981 when Mr. Hank Fogarty carried out his survey of the levels throughout the pitch area. The area close to the neck of the subject lands was always prone to ponding or flooding. It was reasonably foreseeable that the re-levelling that took place in 1998 would give rise to drainage issues. This applies a fortiori when the ground level was raised.
71. The minutes of the defendant club prior to embarking on the development of the 1.23 acres contains references to “drainage”. I do not infer this as being a direct reference to a specific awareness of the consequences of their action. But this must be seen in the context of the defendants’ witnesses who were the Club officials involved, all being highly experienced in the business of drainage and soil treatment. It indicates they were alive to the general issue of drainage and ponding – on their land. The evidence of ponding in the neck areas was before their eyes at any time of heavy rain. They could not have been unaware of it. Mr. Glynn gave evidence as to a document which set out the budget for these development works. One item was “drainage – assume connection can be obtained to mains £1,750.”
He testified:-
“… in excessively heavy rain the water from the playing pitch is collected in a pond there at the neck of the land, at the entrance to the neck of the land, where it is to day.”
He further testified:-
“So the suggestion was, if we’re going to clean up and develop the neck of land we should get rid of that pond and is there any hope of getting a connection to get that piped out to the county council’s sewer. We investigated that, we just put in an estimate there for that.”
He testified that the defendant had assumed that there would be difficulty with the County Council in establishing a connection to the drains out at Torquay Road as they were land locked in that direction. While this may not have been a plan to “drain the neck and lands” to my mind it demonstrates that the defendants and their officials were very much alive to the entire drainage issue such that a potential hazard to the plaintiffs’ land were readily foreseeable. They either knew of the hazard or ought to have known of it.
72. Had the defendants properly addressed the issue in 2000, and at that stage if necessary, commissioned an expert investigation, they would surely have been advised to construct a berm in accordance with the Hayes Higgins specification. Instead this was delayed until 2004.
73. I turn then to the second period, that after the construction of the berm in 2004. By reference to the continued wetness in the plaintiffs’ land it is evident that the berm while effective with regard to flooding, is not completely so with regard to preventing the seepage of water. The construction and location of the berm were not in accordance with the agreed Hayes Higgins stipulation. Those drawings and that plan was for the protection of the plaintiffs’ land. Failure to act in accordance with the plan would foreseeably give rise to additional water threats to the plaintiffs’ land which have unfortunately been realised. For the reasons outlined earlier, I find there was negligence in the construction of the berm in 2004. Furthermore, I consider that the construction of the berm was such as to cause a new and separate nuisance. I again bear in mind that a number of the defendants’ officials were qualified engineers or experienced in other fields. They knew or should have been aware of the risk of negligent construction and location.
Consideration and application of the legal principles
74. The tort of private nuisance consists of any interference without lawful justification with a persons use and enjoyment of his property. The courts expect a degree of give and take between neighbours but this is only to the extent that it is reasonable.
75. McMahon & Binchy Irish Law of Torts (3rd Ed.), at pp. 690 to 698 identify a number of factors which are of relevance to the Court in deciding what is reasonable for a landowner to bear. These include:
(1) frequency of the interference;
(2) the gravity of the harm suffered to the plaintiff’s proprietary interests;
(3) the nature of the locality;
(4) the presence of any malice on the part of the defendant; and
(5) the social utility of the defendant’s conduct.
With regard to issues (1) and (2) I am satisfied the plaintiffs experienced occasional but serious flooding for a matter of weeks in the year 2000, the year 2002 and from time to time thereafter, although substantially diminished after 2004. The nature of the locality has been described in detail earlier.
76. With regard to the other factors, of the five; I do not think I can ignore the background relationship (or the lack of it) between the parties. There was a lack of consultation in 1998, a lack of cooperation in 2000 and 2002 and a want of good faith in 2004 when the club built the berm. While some degree of seepage from higher lands to lower may be inevitable, it was by no means the inundation illustrated in the photographs from the year 2000 and afterwards. While the interference on the plaintiffs’ land was not constant and varied in quantity and extent, there is ample evidence to infer nuisance having regard to the issues of continuity, repetition and persistence (Halpin v. Tara Mines [1976-77] I.L.R.M. 28 at p. 30).
77. I consider that the flooding and inundation of the plaintiffs’ property, even though substantially attenuated after the construction of the berm in 2004, still constitutes a disturbance in the plaintiffs’ use of their property such as would amount to continuing actionable nuisance.
78. I accept too Mr. O’Brien’s evidence in relation to the time and degree of wetness in the plaintiffs’ garden. He described the flower beds inside the hedge after 1998 as being “saturated with water for three or four months of the year”. Mr. O’Brien described planting camellias which bloomed in 1997 but not thereafter. Even at the time of his testimony in December, 2009 he described the grass and lawn as being “soggy”. When asked to describe the lawn as of December, 2009 he described it as being “like a bog now really”.
79. In Read v. Lyons [1945] K.B. 216 Scott L.J. at p. 236 of the report described private nuisance as:
“Unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it”
The proviso that the interference be “unreasonable” is usually added. Private nuisance is not actionable per se and damage must actually be proved. Moreover, more recent authorities establish that a defendant will only be responsible for causing harm where it could have been reasonably foreseen. In Hunter v. Canary Wharf [1997] 2 WLR 684, Lord Lloyd categorised private nuisance into the following three forms; (1) nuisance by encroachment on a neighbours land; (2) nuisance by a direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.
80. In Halpin v. Tara Mines [1976-77] I.L.R.M., Gannon J. observed at p. 30 of the report that:
“Insofar as the nuisance alleged consists of interference with 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.”
In Hanrahan v. Merck Sharp & Dohme [1988] ILRM 629, Henchy J. expressly approved of this test.
81. A test of reasonableness is not restricted to nuisances resulting from discomfort or inconvenience. It is also relevant in cases of material damage to the claimant’s property. If the defendants’ intentional activities foreseeably caused damage to the plaintiffs’ property liability will be established. I find this occurred here. This is applicable to the defendants conduct from the year 2000 to 2004.
82. In Sedleigh-Denfield v. O’Callaghan [1940] AC 880 the plaintiff’s lands were flooded because the drainage system on the defendant’s land became blocked by a trespasser. The defendants were held liable because they were aware of the cause of the flooding but had failed to take reasonable steps to abate it. There is therefore positive duty on occupiers. Viscount Maugham said in his speech at p. 894:
“In my opinion an occupier of land ‘continues’ a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so.”
83. The number of Irish cases dealing with failure to take reasonable steps to abate a nuisance is relatively small. Nevertheless Fitzpatrick v. O’Connor (Unreported, High Court, Costello J., 11th March, 1988); Daly v. McMullen [1997] 2 I.L.R.M. 232; and Larkin v. Joosub and Dublin City Council [2007] 1 I.R., all support the principle that in the case of omission some level of culpability on the defendant’s part is required.
84. In Fitzpatrick v. O’Connor, the plaintiff’s property which is surrounded by the defendants lay at the bottom of a natural slope. In 1985 a large amount of soil was dumped on the defendant’s land. Soon after the plaintiff’s property flooded following reasonably light rainfall. Costello J. held that the erection of the earth mound by the defendant was an unreasonable use of the land and caused the plaintiff’s property to flood. This damage was reasonably foreseeable and accordingly the defendant was liable in nuisance for the damage caused. The principle of law is applicable to the defendant’s conduct.
85. The recent decision of Dunne J. in Ambrose v. Shevlin (Unreported, High Court, Dunne J., 11th December, 2009) outlines the principles succinctly. This case concerned the liability of a farmer who had constructed a farm pass on his land which resulted in blocking the flow of water from the stream when there was heavy rain. This thereby caused the plaintiff’s house to flood on two consecutive nights. To alleviate the flooding on the first night the dam was breached. The following day the defendant restored the dam and subsequently flooding occurred on that night also. Dunne J. was satisfied that the result of the construction works was to raise the level of the farm pass with the result that it acted like a dam causing the flooding of the house. In deciding that the defendant was liable for the damage caused, Dunne J. referred to the decision in Fitzpatrick where Costello J. said:
“The proper legal principles which I should apply are set out in Home Brewery v. Davis & Co. [1987] Q.B. 339. The legal position is as follows; the defendant was under no obligation to receive water from the plaintiff’s land but if the use of his land by him is unreasonable and is resulting to damage to a higher occupier, which the plaintiff is, then a nuisance is created.”
86. I consider that the factual situation surrounding the construction of the 2004 berm is not dissimilar to that which obtained in Leakey v. National Trust [1980] QB 485. There the defendant held property at the rear of the plaintiff’s house. The topsoil began to slip onto the plaintiff’s property due to an unusual combination of climatic factors thereby causing damage and creating significant risk of further damage. The plaintiff sought mandatory injunctions to compel the defendant to remove soil and debris from his property, to take measures to prevent further encroachment. He succeeded both at first instance at the Court of Appeal where it was held that persons in control of property will be liable in nuisance if they do not do all that is reasonable in the circumstances to prevent or minimise the risk of foreseeable damage where they knew or ought to have known that something on the land has encroached or threatens to encroach on neighbouring land.
87. Were it necessary I would find that the defendants had also been guilty of negligence in the construction of the berm in the manner and in the location described for the same reasons. This is not a situation such as obtained in Halpin v. Tara Mines Ltd [1976-77] where the activities were carried out to the highest standards of care, skill and supervision. Even in Halpin that defence failed. A fortiori it fails in the instant case where it cannot be said that those standards were observed.
88. I find that the defendants behaved unreasonably in that without any care as to the consequence they changed the level of the land in 1998. They behaved unreasonably in failing to have regard to the effect of such change on the plaintiff’s property, particularly in relation to drainage. They failed to take effective action when the consequences of their works were made known to them. They behaved unreasonably in that, having devised an agreed plan to relieve the nuisance they failed to follow their own experts’ specification to abate the nuisance and, regrettably, continued to do so up to the date of hearing. They are liable in damages, subject to any issues of alternative causation of the damage to the house, mitigation of loss, and proof of the sums claimed.
89. On the facts, I find that the principles outlined in Rylands v. Fletcher [1868] LR 3 HL 330, do not arise in this case. This is not a situation, even after 2004, where there is an unnatural user of the land. The purpose of the berm is to attenuate the natural drainage of rainwater from the defendants’ lands. It is not the plaintiffs case that the flooding has, since the construction of the berm become more intense, but rather that since the construction there is less water draining than prior to 2004. The water behind the berm was not “brought onto the defendants’ lands”. It is not an unnatural “accumulation” or reservoir of water for the defendants’ purposes. It is not the plaintiffs’ case that the berm should be removed.
90. Subject to the above, I find that the defendant club is liable to the plaintiff in nuisance and negligence.
Eamonn Rabbette v The County Council of County Mayo
1977 No. 5262P
High Court
22 April 1983
[1984] I.L.R.M. 156
(O’Hanlon J)
22 April 1983
O’HANLON J
delivered his judgment on 22 April 1983 saying: By plenary summons dated 25 October 1977, the plaintiff claimed an injunction restraining the defendants, their servants or agents from carrying out any blasting operations at Station Road, Castlebar, in the County of Mayo, in the vicinity of building sites which the plaintiff had purchased for development purposes and on which he had already erected two semi-detached houses. He also claimed damages for nuisance, negligence and trespass, although no blasting operations had, in fact, been carried out by Mayo Co. Council at the time the proceedings were commenced.
*158
There followed an application for an interlocutory injunction to restrain the Co. Council from engaging in blasting operations pending the hearing of the action, which application was, with the consent of all parties, treated as the trial of the action. The outcome was that on 20 February 1978, D’Arcy J made an order perpetually restraining the defendant from carrying out blasting operations in the vicinity of the plaintiff’s property in such a way as to be a nuisance or to cause damage to the plaintiff’s said premises at McCormack’s Estate, Station Road, The Curragh, Castlebar, in the County of Mayo.
By consent the court reserved the question of damages, and now the issue of damages had been brought forward for determination by this court, some five years after the claim for primary relief by way of injunction was heard and determined.
Having regard to the fact that the plaintiff’s claim for an injunction was brought in the form of a quia timet action before any blasting had actually taken place, and was heard and determined with considerable expedition, it would be reasonable to anticipate that the claim for damages would not amount to very much in such circumstances. Such, however, has not proved to be the case. The plaintiff was by occupation a speculative builder at the time of the matters complained of in the proceedings, and he claims, in effect, that the threat of blasting operations by the County Council set back his entire building project by more than a year, with the result that the Bank on whom he relied to finance his business lost confidence in his creditworthiness, and by a type of chain reaction of events he found a potentially lucrative business disappearing in front of his eyes, so that he had to abandon it altogether and seek a different way of life which he has since pursued.
At the time the first threat of blasting operations arose, the plaintiff had already built and contracted to sell his first two houses on the building estate in question. He says he was dependent on the return from those two houses to finance the taking up of options on other sites, which should, in turn have led on to building more houses and the generation of more and more profits as time went on.
I have the distinct impression that the plaintiff could have held the first two purchasers to their contracts, and, if necessary sued them for specific performance, but when they displayed unwillingness to close in the face of the County Council’s resolve to carry out blasting operations a pragmatic decision was taken to release them from their contracts, without forfeiture of deposits, and in one case to pay a sum of £750 compensation for loss of bargain to the disappointed purchaser.
At that stage the plaintiff could claim that the threatened activities of the County Council had involved him in loss to the tune of the £750 paid out in damages. One year then elapsed and the plaintiff had won his action against the County Council: had secured an undertaking from them not to proceed with their planned programme of blasting in the vicinity of his houses, and later the withdrawal of their appeal to the Supreme Court against the injunction granted by the High Court. At that stage the plaintiff negotiated fresh sales of the two houses at considerably enhanced prices — £4,500 more *159 than the original combined price, so he had gained a sum of £3,750 having paid off the original purchaser of one of the houses who maintained a claim for damages.
However, the houses had to be redecorated and put back into good condition after the lapse of one year lost in litigation and this cost in or about £1,560 according to the plaintiff’s claim. The evidence went close enough to supporting this figure to make it reasonable to allow it and the plaintiff’s net gain was thereby further reduced to about £2,200.
The plaintiff then says that he was out of his money for a year or so, as between the original closing date for his first two houses, and the time when he ultimately sold them, and under this heading claims bank interest of £2,573, which, again, seems to be directly attributable to the defendants’ wrongful intervention in his affairs and I would allow this figure also as part of the claim for damages. The plaintiff’s net gain has now turned into a loss of about £373.
The remainder of the claim is more difficult to substantiate. The plaintiff held options on nine other double (two-house) sites to purchase them at £6,000 each before 1 November 1977, or thereafter to purchase them before 1 May 1978, at £6,300 each. He contends that he was dependent on the return from the first two houses to establish his creditworthiness with his bank and put him in funds to take up the successive options. The litigation about the threatened nuisance held up the sale of the first two houses and deprived him of all income therefrom until after the time for exercising the options had gone by. He was allowed to buy in four double sites at £7,000 each late in 1978, so the cost to him was between £2,800 and £4,000 more than he should have paid had he been able to avail of his options. This represented a loss to him of about £3,000/£4,000, but it is quite clear that it would not have arisen but for the impecuniosity of the plaintiff, so it was attributable in part to the activity of the defendants and in part to an outside circumstance of which they had not obvious knowledge or means of knowledge.
Reference was made in the course of the hearing to the decision of the House of Lords in the case of Owners of Dredger Liesbosch v Owners of Steamship Edison [1933] AC 449, where the plaintiff was not allowed to maintain a claim for additional damages attributable to the lack of resources on the plaintiff’s part. Some inroads have since been made on the full force and effect of that decision (see, for example, the decision of the High Court in Riordan’s Travel Ltd v Acres, (17 Jan. 1979), noted in McMahon & Binchy on Torts at p. 60) but the principle underlying the decision is still accepted as valid, and was applied by the House of Lords as recently as 1980 in the case of Raineri v Miles & Anor. [1980] 3 All ER 145.
In the present case I have come to the conclusion, with some hesitation, that the plaintiff’s claim for loss and damage in connection with his inability to purchase sites within the period of the option should be allowed and I would measure his loss under this heading at £3,500. I would also hold that it should have been within the contemplation of the defendants that the interference with his cash flow which was the inevitable consequence of the litigation about threatened nuisance would produce a temporary curtailment of credit, and I *160 propose to allow the claim for bank interest of £2,573.56, and £2,100 for loss of discount on materials purchased at a time when his credit with suppliers had dried up and he was obliged to pay cash for any materials he needed to continue in business.
The figures allowed to this point, having given credit for the enhanced prices realised on the first two houses, produce a figure for damages of £8,546.76.
The plaintiff built houses on the sites he pruchased and sold them without any great delay at prices which were a good deal higher than those offered for his first two houses, at a time when there was no threat of nuisance or litigation affecting the project. Nevertheless, he claims in effect that he was forced out of business by the threatened nuisance of the defendants and that he should be compensated for all the houses he might have built and for all the profits he might have made had he been able to take up all the options available to him and to conduct an orderly building programme on the site. For the reason already referred to, when considering the continuing relevance of the decision in the Liesbosch Dredger case, I consider that this part of the claim is too remote to be enforceable against the defendants and that it has not been substantiated as damage flowing from the tortious conduct of the defendants.
I would therefore confine the plaintiff’s claim for damages to the aggregate of the sums previously referred to and assess the damages at the sum of £8,546.76. There will be judgment for that sum against the defendants with the costs of the trial of the issue of damages.
Halpin v Tara Mines Limited
Fergus Halpin, Patrick Mullen, Joseph Tallon, Annie Bartley and James A. O’Brien v Tara Mines Ltd
1973 No. 1516P
High Court
16 February 1976
[1976-7] I.L.R.M. 28
(Gannon J)
GANNON J
delivered his judgment on 16 February 1976 saying: All five plaintiffs individually and severally allege that they have sustained substantial interference with the enjoyment of peaceful residence in their homes and have sustained damage to their properties by reason of the operations of the defendants in premises in their occupation in close proximity. The plaintiffs joined together in an application to the court to restrain the defendants from such interference pending proceedings by action by the plaintiffs against the *29 defendants. Having obtained an interim order on 7 June 1973 the application of the plaintiffs for an interlocutory order came before the court by motion on notice on 16 July 1973 whereupon, it was agreed by the parties that the hearing of this motion should determine the issues in the action and that the issues be tried on oral evidence in this motion.
The nature of the relief claimed by each plaintiff was:
An order restraining the defendants their servents or agents until after the hearing of the above-entitled action from causing mining explosions or carrying out blasting or other noisy operations at the site occupied by them at the Kells Road Navan, County Meath so as to interfere with the life, enjoyment, peace and comfort of the plaintiffs in their respective residences or so as to cause damage to their property and for an order providing for the costs of this application.
The defendant is a company to whom prospecting licences under the Mineral Developments Acts 1940 to 1960 were granted by the Minister for Industry and Commerce. Pursuant to such licences the defendants commenced mineral exploration work to ascertain the character, extent and value of mineral deposits lying in and under lands near the town of Navan in the townlands of Knockumber and Whistlemount. The work on which the defendants was engaged involved making numerous borings through the surface of the land and also the sinking of both a vertical shaft and a decline by means of which access could be made to the underground ore deposits and samples extracted for examination and analysis. By reason of the geological nature of the terrain the work involved boring through rock and the systematic blasting and removal of rock to depths of many hundreds of feet, necessitating the use of surface machinery to maintain the constant supply of air to and the extraction of water from the depths of excavation.
The plaintiffs found their claim upon allegations that the operations being carried out by the defendants create excessive and intolerable noise such as to be a nuisance from which they claim individually to have suffered damage to the comfort and enjoyment of their homes. They further attribute to the operations of the defendants damage by vibration to the structure and decorative fabric of their houses for which they seek compensation in damages. They apprehend that this damage may extend if the operations of the defendants continue unrestrained by the court and they contend that the damage to their property indicates the gravity of the nuisance by noise and vibrations.
These contentions pose two basic questions of fact namely:
1. Do the activities of the defendants amount to such an annoyance as to materially interfere with the ordinary comfort of human existence judged by the standards of the reasonable man for each of the plaintiffs, having regard to the locality in which he or she lives?
2. Have the activities of the defendants caused material damage to the *30 property of each of the plaintiffs in the physical sense of a nature likely to deteriorate or recur if such activities continue?
If either or both of these questions be answered in the affirmative the question of law which then arises is whether the activities of the defendant company must be restrained by court order. Questions of fact of this nature are ones for which it would be particularly helpful and practical to have the assistance of a jury and more desirably a jury of the county in which is the location of the residence of the plaintiffs and the works of the defendants. For the determination of these basic questions of fact there are certain legal principles to be applied which I propose to adopt.
As a general proposition I take it to be the law that an occupier of land, or of premises thereon, who embarks on operations or activities out of the ordinary must not cause or permit, inter alia, noises or vibrations to pass into his neighbour’s property in such a way as materially to interfere with the ordinary comfort of the occupier of such property or in such a way as to cause physical damage to the property of his neighbour. Where such interference or such damage is shown to be a matter of some continuity, repetetion, or persistence it founds an action for nuisance for which the appropriate remedy would be an order of the court restraining the harmful activities or operations whether accompanied or not by an award of damages by way of recompense. 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. Insofar as the nuisance alleged consists of interference with the ordinary comfort of existence 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 and whose habits are moderate and whose disposition is equable. Usually such a notional person is found by the collective application to the questions of fact of twelve persons chosen from the community by lot to serve on a jury. I am not offering a definition of the reasonable man but wish to indicate the standards which I, without the assistance of a jury, apply to the questions of fact. I am reluctant to adopt the standard of the average man as suggested in argument as it is a description not to be found in any of the authorities and seems to import an amalgamation of *31 counterbalancing extremes. The application of the standards of the reasonable man must be set into all the circumstances of the locality in which the plaintiff and his neighbours reside and in which the defendants have commenced and continued the activities alleged to constitute a nuisance.
The order of enquiry therefore would seem to be first to ascertain what are the standards of peace, comfort and enjoyment normal to homes in this locality by the standards of ordinary reasonable people. Having ascertained what normal activities were carried on in general in the neighbourhood of each plaintiff’s home and what noises and disturbances are the normal regular feature of the neighbourhood then, to determine whether the activities of the defendants have introduced new and additional noises and distrubances materially increasing the burden of tolerance so as to diminish sensibly the reasonable peace and comfort of living in the locality. Insofar as the disturbances complained of are alleged to consist of vibrations to which structural and decorative damage to property is attributed, the enquiry involves consideration of the nature and causes of such damage. If the plaintiffs establish their claims there remains the question of whether a restraining order must be made and whether damages should be awarded.
Very little evidence was directed specifically to the matter of the nature of the locality and the standards of peace, comfort and enjoyment normal thereto prior to the commencement of the defendants’ activities. Nevertheless a fairly true and complete impression can be obtained from the sets of photographs put in evidence and the maps showing locations of noise level stations and seismic stations and the copies ordinance sheets and the defendants’ records of background noises recorded. The entire location is a short distance west of Navan and to the south of the Blackwater river and adjacent to the main road from Navan to Kells. It appears to be a fairly level open area with some minor rises of no great significance and appears to have been worked in well-proportioned divisions of good quality farming land. The plaintiffs Halpin, Tallon, Bartley and O’Brien live in four of a set of six single storey houses in the townland of Whistlemount on the north side of the main Navan to Kells road and fronting on to that road. The plaintiff Mullen lives in a single storey house fronting on to a by-road in the townland of Knockumber about half a mile to the south-west of the other plaintiffs. None of the plaintiffs are farmers and all have their places of employment in town or city and evidently live in this locality by choice in preference to living in the town. Mr O’Brien is a textile worker employed in Navan Carpets factory. He said they picked this site and had their house specially designed and built for them in this area which he described as farming land one and a half miles from the centre of Navan. Mrs O’Brien who said she would not like to live in the town, described the neighbourhood as very peaceful with very little noise from the joinery works and quite a bit of traffic by day on the road. The house is less than a mile from the carpet factory and *32 scarcely three hundred yeards from a joinery works at a road junction to the west of the house. They had been living there about two and a half years before the defendants commenced operations about four hundred to five hundred yards from them on the Navan side. They have three children under four years of age and Mrs O’Brien’s mother lives with them. Mrs Bartley lives next door to O’Brien’s in a house which is estimated to be one hundred years old of stone construction with timber and slated roof well maintained. She has a married daughter and son-in-law living with her. She has another daughter married to the plaintiff, Fergus Halpin, who lives in a bungalow next door to her on the west side. The Halpins have been there eleven years and have four children between the ages of three and a half and eleven. Mr Halpin is a builder’s foreman and works in Dublin city to which he travels daily by car. He is a joiner-carpenter by trade. The Halpins described the neighbourhood as a nice quiet residential area and say they do not notice the noise from the nearby joinery works except when at the shops. Mr Tallon is a milk vendor who with his wife and four children, all under seven years of age, live in a county council house at Whislemount. He delivers milk in Navan starting work at 5 am and finishing at 10 am and does a couple of hours part-time work in the afternoons from 2 pm. He was a former amateur boxer but is interested in every class of sport and built a gym on to his house within the past three years. When they first got the house they found the place very nice and quiet taking no particular notice of passing traffic on the road or noise from the joinery works which are about four hundred yards from the house. He spends a lot of his time about the house and garden. The Mullens live in a more isolated area in a cottage on one acre of land on which they had recently built a bungalow at a cost of approximately £6,000. They have two children aged nine and six years and have been living in this cottage one and a half miles from Navan for about twelve years. Mr Mullen who suffers from asthma is a supervisor in a clothing factory in Navan. A Mrs Hills who had taken a letting of the bungalow in December 1972 described the place as most suitable, nice and quiet. She breeds chihuahua dogs but gave up her tenancy in July 1973 because of the disturbance by the defendants’ activities. The railway line shown on the maps is no longer in use and, apart from the noise of passing road traffic along the main road and undefined noise from the joinery works to which the plaintiffs attached no significance, I have no evidence of any customary or regular noise interference in an area manifestly of a peaceful farming type with a complete absence of the noises and quality of activity usually associated with trades, manufactures or operations of machinery.
Into this locality the defendants arrived in January 1973 with a D6 caterpillar crawler bulldozer and a D8 caterpillar crawler bulldozer accompained by up to 15 lorries of ten ton and twenty ton weight working from 8 am to 6 pm daily. They had completed 1,000 feet of gravelled roadway by 23 February 1973 and also had started stripping an area of 100 feet square to a depth of ten feet as the *33 commencement of excavation for sinking a mine shaft. During the same period they had drilled 18 holes of two and a half inch diameter to a depth of 50 feet to test for water using a large Ingersoll Rand air compressor in that work. Over a wide range of area mostly in a northerly direction over three hundred drill holes were made to test the depths of clay and gravel over burden to rock to depths varying from 15 feet to 40 feet and a few of these were made close to the plaintiff’s premises at Whistlemount. In the area from which soil to a depth of ten feet had been cleared they bored 37 holes to a depth of six feet in the limestone rock preparatory to blasting. These were bored by using four hand drills powered by two compressors of 150CFM and 250 CFM. A trench 60 feet wide was excavated by removing soil to a depth of 12 feet for a distance of 200 feet preparatory to opening a decline some distance from the intended vertical shaft. The sinking of the shaft to the intended depth of 1,000 feet would require a continuous series of operations of blasting rock, excavation of debris after blasting, a constant supply of air into the shaft, and continuous pumping out of water. The like pattern of working is necessary for the construction of the intended decline of 6,000 feet long to a depth of 1,000 feet. The excavations of debris from the shaft were by crane while those from the decline were by JCB diggers. The air pumps were operated by compressors of 250CFM. Around the top of the shaft a collar of cement was constructed after the initial stages of blasting and this stage of the work was completed by 30 March 1973. The blasting for the portal area of the decline continued from 5 April to 14 May and a cement portal was constructed at the entrance to the decline and this was completed on 30 June 1973. A powerful 600 CFM compressor was used for vibrating the cement used at these stages, and large cement lorries were in continuous use daily for periods on some occasions up to 9 pm. Between the end of June and 12 July a head frame was constructed over the shaft and thereafter blasting in the decline was resumed. By this time the plaintiffs had brought their complaints before the court in these proceedings.
In the order in which the plaintiffs are named in the title of the proceedings their complaints of nuisance by disturbance of the peace and comfort of their houses was shortly as follows. Mr Halpin, a carpenter-joiner who travels to and from work in Dublin every day, has been eleven years in Whistlemount townland some few hundred yards from the lands now in the occupation of the defendants. He has four children under the age of twelve all of whom attend school. He complained of being disturbed by whining piercing noises in fields very close to his house shortly after the defendants’ operations started. Such noises appear to have been caused by drilling rigs or test boring which have since ceased. He also complained of noises from bulldozers and compressors disturbing his rest. He gave instances of explosions from blasting which, on one occasion were so violent as to cause ornaments to fall off the wall in his house. On another occasion in May when driving towards his home within a few *34 hundred yards of his house he saw large amounts of rock being showered across the road from an explosion. The violence of the explosions being carried out at the mine workings seemed such to him that he attributed to them a number of cracks he discovered in the walls of his house and an outside wall in May 1973. Mrs Halpin gave evidence of persistent annoyance in the earlier stages from a very piercing noise which continued all day and on a couple of occasions had disturbed her sleep in the early morning. These noises have since ceased. She also gave evidence of upset and annoyance from explosions which had the effect of frightening her and her children and had caused such vibrations throughout the house that windows and doors were caused to rattle and shake and ornaments were caused to fall from a shelf in a bedroom and her children were so frightened they would not remain out of doors at play. With a view to determining whether or not structural damage had been caused to the house the cracks in the walls of which Mr Halpin had complained were examined on his behalf by Mr Collins and Mr O’Meara, an architect and an engineer. Mr and Mrs Halpin had not noticed these cracks previous to May 1973 and are afraid that if they were caused by the vibrations they said they felt the damage to the house might get worse or more damage might be caused to the house.
Mr Mullen who is a supervisor in a clothing factory in Navan and lives with his wife and two children in a cottage on one acre at Knockumber one and a half miles from Navan, complained only of the explosions and their effects. As he is away from home during the day he heard very few of them but Mrs Mullen said the explosions started in March 1973 and continued up to date. Many of them sounded as a sort of rumbling but some were very severe. She mentioned one at 11 o’clock in the morning on 19 April which she said shook the whole house but the children who were out of doors made no comment about it. Mr Mullen described another explosion which took place at night on 27 April and was so severe that it shook the house and the bed he was in and frightened himself, his wife and children. He described another on 15 July as being three bangs in one, like a violent thunder storm right over the house and so severe that it frightened everyone in the house and his daughter soiled the bed she was in. Mrs Mullen mentioned another occasion on which she was roused from bed at 3.30 pm on a Sunday afternoon to be told an explosion would occur at 5 pm but it did not take place for nearly an hour and then shook the roof of the kitchen and it had a very disturbing effect on her daughter. Mr Mullen believes cracks in his garage wall which he discovered afterwards, were created by vibrations from the explosions. Mrs Hills who was the tenant of the bungalow beside Mullen’s had taken a letting for one year from December 1972 paying rent in advance with an option to purchase the bungalow from Mr Mullen who said he had spent £6,000 on it. She said the first explosion she heard was in March when her 18 year old daughter was staying with her and they were very frightened. An explosion in April, she said, vibrated the house and two others in July were *35 very severe. She considered the inconvenience caused had increased considerably because of the blasting even though she was assured by the Tara Mines representative that it would cause very little inconvenience. She gave eight weeks notice to the Mullens that she was giving up her tenancy and option to purchase but considered the explosions had become so violent that she would not stay even for the eight weeks.
Mr Tallon, who is a milk vendor, spends a lot of his time about the house and garden of his county council dwelling at Whistlemount as his milk round finishes before 10 am in the morning and his part-time afternoon work from 2 am takes less then 2 hours. He complains of the piercing noises from drilling and boring behind his garden which used to go on until 6 pm and eventually stopped before the court hearing. He found it a very upsetting noise and it disturbed his sleep. Mrs Tallon complained that this very piercing noise from drilling at the back of the garden had wakened her from sleep in the mornings and that while it continued all day she had to keep the windows closed and because it was so noisy she could not go out to the garden. The noise from the compressors of which Mr Tallon complained was described by him as sounding at his house as if he were beside a heavy tractor. Mrs Tallon also complained of whining noises from bulldozers and machinery. According to Mr Tallon they were very disturbed by explosions from blasting which were first noticed in March 1973. Mrs Tallon said these caused the whole house to vibrate and windows and doors to rattle and shake. One which took place at 11 am on 19 April was so bad that she grabbed her little girl and ran out of the house where she found her neighbours had done the same. On a Friday when she had been in Navan she came home to find her children waiting for her in a frightened state. Both Mr and Mrs Tallon described an explosion which took place about 6.20 pm on 4 May 1973. Mrs Tallon said she was in the kitchen and one of her children, just back from hospital, was in bed. When the explosion occured her daughter called her and was crying and when she went into the bedroom found that ornaments and a box of jewellery on a shelf over the bed had fallen off it. The other children who had been out playing ran in frightened and would not go out again. This explosion was described by Mr Tallon as so severe that it shook the whole house as if the ground moved under him, and he examined his house then for damage and found a number of cracks including one in the floor of his gym. Mrs Bartley is the mother of Mrs Tallon and lives with another married daughter who has no children, in an old substantially built stone house with timber and slate roofing. She herself is out at work between 8 am and 5.15 pm each day. She too complained of the drills at the back of her house which had ceased operating shortly before the court proceedings. She complains particularly about a terrible explosion which shook the house which occurred about 6.30 pm on 4 May. The following day she discovered that a piece of timber had fallen from the barge-board of her roof and she thought some slates were damaged. She *36 examined her house for damage and found some cracks which she had not observed before. She described the vibration caused by other explosions in July by saying she could feel the floor shaking under her.
The O’Brien’s have three children of four years of age and under and have been living at Whistlemount with Mrs O’Brien’s mother who is 80 years of age, for only two and a half years. As Mr O’Brien works on the night shift for one week in every four at Navan Carpets factory he had to share with his wife and family much of the day-time disturbances of which they complained. They complained of the very piercing drilling noises from early morning until 6 pm in the evening which continued for some months and have since ceased. Mrs O’Brien complained that even with doors and windows closed the noise penetrated the house. Mr O’Brien complained also of other types of irritating piercing noises but could not identify what machines caused them. They complained of noises from heavy machinery such as are used in road making and building works but very concentrated. The continuous ‘chuck chuck’ noise from compressors from about 7 am throughout the day was another cause of annoyance of which they complained but which has since ceased. They complained of the blasting which commenced in March and Mrs O’Brien mentioned in particular a blast in April which she said was very loud, the windows and doors banged, and she thought the house shook. Her mother was terrified and the older boy was worried. According to Mr O’Brien who was in the house on 19 April, a blast that day gave the feeling that the ground under him shook. He also described a blast on 4 May when he said the whole house vibrated and windows and doors shook and he heard a sluttering noise in the roof. He examined his roof and found nothing wrong with it but while doing so found a crack in the wall and other new cracks. He was at home on the occasions of a number of other blasts which caused vibration in his house. he described his home as a noisier place since the defendants started working, than the car park at the factory and claimed that if the blasting continues and the noises from machinery goes on it would be impossible for him to continue to live there. Mrs O’Brien also complained about the noise from heavy machinery and traffic as well as the explosions and complained that the little boy still gets frightened and her mother is frightened and tense.
The remaining two houses in the group of six at Whistlemount are occupied by Mr and Mrs Heary and Mr and Mrs Carey who are not parties to the proceedings. Both Mrs Heary and Mrs Carey gave evidence of disturbance to living conditions in the area, confirming the nature of the disturbance as alleged by the parties, and the substantial nature of the interferences from the operations of the defendants.
The evidence in relation to all these complaints was carefully tested by the defendants and related to background noises including the noises from the joinery works and the volume of road traffic. The sensitivity of the witnesses *37 was tested and related to the results of scientific research. The defendants adduced evidence of the nature of the work undertaken by them and the necessary pattern of their operations and showed by their records and the oral evidence of their staff the skill and care taken by them to reduce to the minimum the degree of interference with their neighbours which might be caused by their activities. It transpired in the course of the hearing of the evidence, which went over from July to October 1973, that the defendants’ standards of care in these respects improved to a considerable degree. With helpful technical detail they related their efforts to the standards recommended by researchers based on statistical records and showed by their evidence the manner in which they had successfully adjusted their standards because of local experience well within the limits recommended from statistical research.
But standards based on statistics are necessarily founded upon averages, not only of the sensibilites of persons, but also averages for localities. As they are arrived at by counterbalancing or offsetting variations above or below the mean arrived at, they do not give a true or fair assessment for persons or localities which, although reasonable, fall above or below such mean. The evidence of the records of tests of the amplitude of sounds made by the defendants showed that a truck or motor bicycle passing near a transducer might make a noise which would obscure the sound of an explosion at blasting made some distance further away. I do not accept that it must follow from this that the noise of the explosion is not disturbing to the domestic peace of a reasonable person living in a place where the passing of trucks or motor bicycles is normal, whether frequent or occasional. Indeed such normally accepted noises such as that of a motor bicycle could be a nuisance if sustained for what might seem to be an excessive period or if repeated at what might appear excessivly frequent intervals. Intermittent noises of their nature unusual to a locality which come at irregular or unpredictable intervals are likely to be more disagreeable than such noises which form part of the norm for the locality, such as passing traffic. When these unusual noises are of such nature that they instil apprehension and anxiety into the mind of the listener the sensitivity of the ear is likely to be more acutely perceptive of such noises, despite the amplitude of other more familiar and more acceptable noises simultaneosly heard but instinctively disregarded.
I do not think it necessary to, and do not propose to, review all the evidence offered by the defendants for the following reasons. I believe the plaintiffs are truthful and that they are reasonable and that while in a few minor instances there was some tendency to exaggerate, this was due to earnest anxiety prompted by their genuine feelings. I have no doubt whatever that the peace and comfort of their homes, normal to the locality in which the plaintiffs live, was subjected to substantial and serious disturbance for continuous periods with persistence and repetition by the activities of the defendants such as amounts to an actionable nuisance. The evidence of the defendants confirmed the fact that their activities *38 necessarily introduced into the neighbourhood of the plaintiffs’ homes noises and vibrations which were totally alien to the normality of that locality as it was, prior to the commencement of their undertakings. The evidence of the defendants also convinced me that these noises and vibrations were of such a nature that they were known to be, were likely to be, and were expected to be a cause of disturbance of the peace and comfort of the homes of ordinary reasonable people.
In relation to the claims by several plaintiffs of physical damage to the structure of their premises, I have carefully studied the evidence of the plaintiffs and of Mr Michael Collins, Mr O’Meara, Mr Vincent Collins, Mr Lynch and related it to the evidence of the use of vibrographs and geological findings. I am quite unable to find in the evidence any convincing, logical or reasonable explanation for any of the various defects which would satisfy me that they were in all probability caused by vibrations. I do not accept as convincing to my mind, the argument that because so many cracks of similar nature in so many houses were all discovered for the first time after a particularly loud explosion on 4 May, that therefore the cracks were caused by vibration by that explosion. The evidence does not establish that the explosion did create or could have created a force above ground level of sufficient violence at horizontal direction to have caused the damage attributed to it without, at the same time, shattering glass in windows and frames. If the force had been a violent ground vibration of sufficient strength to have caused the damage alleged it would have manifested itself in much more damage of a different nature consistent with the sheer effect of such force as pointed out by Mr Vincent Collins. I examined the evidence in relation to every item of alleged damage singly, with these basic principles in mind and I have come to the conclusion that none of the plaintiffs has successfully discharged the onus of proof in relation to this aspect of the several claims.
Because of the fact that the hearing of the evidence had not concluded by the end of July and had to be adjourned until October 1973, the defendants agreed to restrict their activities within voluntary limits within which they could continue their work with a reasonable prospect of causing no disturbance to the plaintiffs. In the course of the hearing of the evidence after the resumption in October it was apparent that the defendants were able to and did improve significantly their standards of care and supervision and were able to proceed with work in hand and continued to do so during the further hearing. They set up vibrographs at selected seismic stations and velocity transducers at a number of positions within the locality and improved the supervision of planning, preparation and control of blasting operations and clearance of debris. By working within the agreed limitations with these improvements they established a mode of proceeding with their undertaking within a tolerance which the plaintiffs agreed to accept. It was agreed that this arrangement which was *39 reached for the purpose of the adjournment should continue until the matters in controversy should be determined.
One of the last witnesses to give evidence on 18 October was Mr C.H. Frane, vice-president and general manager of the defendants’ company from September 1972, who gave evidence of the nature and purposes of the defendants’ operations and gave a history of the progress of the defendants’ activities to that date, from the time planning permission was obtained after public enquiry. He explained the order and progression of the work in relation to exploration with a view to obtaining a mining licence upon the obtaining of which, and not until then, the company would develop the mine and extract the ore. He stated the agreed limitations for the adjournment as follows: (a) not more than two blasts per day in the shaft and two in the decline making a total of four and no two to be simultaneous, (b) the maximum explosives to be used in any one day should be from 48 lbs to 60 lbs, and (c) sound and vibration limits not to exceed 70 dba and .5 inches ppv. These corresponded with the note that I had made of the undertaking given at the time. He stated that for the present state of operations pending licence, they could with difficulty, and would adhere to these limitations. He explained that but for these limitations they could operate four blasts per day in the shaft and three to four in the decline and could expect to progress 300 feet instead of 200 feet per month in the shaft and about 1,000 feet per month instead of 500 feet or 600 feet in the decline. He stated the objective in trying to develop the shaft and decline quickly was firstly to obtain essential information about the ore by extracting samples for analysis and secondly to establish these two headings, namely the shaft and the decline, ready and suitable for access to development for production. He explained that very considerable expense was being incurred in bringing into the country highly experienced contractors for this dangerous stage of development and that with 30 to 40 men employed the mine could be ready, subject to licence, for operational production in two years time. If and when a licence might be obtained it would be necessary to sink an additional production shaft with the same method and progress of work as was undertaken on the existing shaft, and he pointed out that the deeper underground the operations go the less the problems from noise and vibrations. He believed that the problem of noise from stationary surface machinery such as compressors could be minimised by housing and insulation or muffling and using appropiate materials and designs. He said that they could continue underground workings within the present restrictions although tight but that it would be extremely difficult to keep within these limitations for the initial stages of opening a new shaft, but, he said, at a cost it could be done. For the sake of protecting the neighbours and for the benefit of the company he would welcome some prescribed restrictions.
Having ascertained the standards of peace and comfort normal to the enjoyment by the plaintiffs of their homes in this locality by the standards of *40 ordinary reasonable people, I find as fact that the activities of the defendants have introduced new and additional noises and disturbances of continuous, of intermittent, and of repetitious natures which materially increased the burden of tolerance for the plaintiffs and for each of the plaintiffs have sensibly diminished the reasonable comfort and peace of living in the locality. I am not satisfied that any of the physical damage to property of which the several plaintiffs complained is attributable to the activities of the defendants, but I accept that the apprehensions of the plaintiffs in these respects are reasonable and are a significant constituent in the disturbance of the enjoyment of the comfort of their homes.
As to the relief to which the plaintiffs are entitled on these findings, it seems to me that if the situation had remained as shown by the evidence up to the end of July 1973, I would have felt compelled to make an order restraining the defendants by injunction from continuing further the activities to which the nuisances alleged are attributable. But thereafter the defendants, with the co-operation of a degree of forbearance on the part of the plaintiffs, achieved a formula and improved working standards which made it unnecessary to continue the interim injunction granted on 7 June 1973 or to make a further order of injunction so long as the matter remained pending before the court. I am impressed by the thorough and conscientious way in which the defendants faced up to the problems posed by their position in relation to these complaints and the expediency of their own commitments and their endeavours and willingness to avoid occasioning nuisance and to submit to restrictions. In a case such as this where the day to day working conditions of the defendants and the living conditions of the plaintiffs necessarily are subject to variable changes of circumstances, I do not think it would be appropriate for the court to prescribe definitive standards of tolerance by specified limitations similar to, or on the lines of those to which the parties have agreed. If I were to make an order of injunction it would have to be of that imprecise nature indicated by Romilly MR in Crump v Lambert (1867) LR 3 Eq 409 with the consequences which he indicated, namely that the defendants might continue their work at the risk of severe penalty and the complete close-down of their business if in later proceedings it might be shown that they caused or repeated the nuisances prohibited. After the conclusion of the hearing in October 1973 it seemed to me that by deferring the giving of my decision a situation of mutual agreement was maintained which protected the plaintiffs from further nuisance, which enabled the defendants to proceed with their work, although in a slower and less economic manner than they had intended, and which did not prejudice the defendants in their intended negotiations for a mining licence, and which gave time and opportunity for the defendants and plaintiffs to negotiate mutually satisfactory terms for whatever the situation might be if and when the defendants might obtain the mining licence.
*41
Having now given my decision I will decline to now grant an order by way of injunction as sought by the plaintiffs, but in lieu thereof I will award damages to each of the plaintiffs for the nuisance caused by the defendants. The amounts of my awards of damages are as follows:
To Fergus Halpin
£1,000
To Patrick Mullen
£ 600
To Joseph Tallon
£1,000
To Annie Bartley
£ 600
To James O’Brien
£1,000
The plaintiffs are entitled to one set of costs in respect of all the plaintiffs to be taxed as for a High Court action claiming the relief of the same nature as claimed in this motion. The costs to be taxed on High Court scales.
Goldfarb v. Williams and Company
[1945] IR 433
Overend J.
The plaintiffs are entitled to relief.
The action is brought by the plaintiffs as occupiers of the third and first floors, respectively, against the defendants O’Brien, Noone and Woodlock; as tenants of the second floor, and Williams & Co., Ltd., as landlords and owners of the entire premises, Nos. 45/47 Henry Street, Dublin, to restrain the defendants from causing, permitting or continuing to create a nuisance on the second floor of the said premises by noise, dancing, singing, playing of music, hammering, vibration and the congregation of large and noisy crowds in the said premises and approaches thereto.
In 1933 the plaintiff, Wolfe Rickle Goldfarb, was carrying on business as a hairdresser in adjoining premises, No. 44 Henry Street, and on the 23rd of June, 1933, he agreed with the defendant company to take the top floor of Nos. 45/47 Henry Street, containing nine rooms, as a residence for himself and his family, for a term of three years from the 1st July, 1933, at a rent of £100 per annum. The agreement which was entered into, dated the 23rd June, 1933, contains a covenant by the tenant not to do or permit anything which may grow to be a nuisance, annoyance, damage or disturbance to the defendant company, or other occupiers, and not to use the premises for any other purpose “save that of the business now carried on by the tenant.” The form of agreement is in this respect the same as other agreements made with the company; it seems to have been in a common form, and I am satisfied that the directors of the defendant company knew that this top, or third, floor was being taken by Goldfarb for a residence. Mr. Grant, the managing director of the defendant company, admitted this, and paragraph 8 of the agreement gives the tenant liberty to break a doorway through into No. 44, where his business was in fact carried on.
Apparently the plaintiff had no solicitor acting for him, and I have no doubt upon the evidence that the agreement would be rectified for the asking, if it at any time became important to do so. Mr. Goldfarb is still resident in this top flat. Later, he became for a time tenant of the second floor for the purpose of a photographic business which he called Polyphotos.
The first floor of the premises was demised by the company on the 20th April, 1933, to one, Montague S. Newmark, for three years from the 1st May, 1933; this term was renewed for a term of three years from the 1st May, 1936. On the 25th February, 1937, Mr. Newmark sold his interest to the plaintiff, Goldfarb, for £50, and the company assented to the assignment under its seal.
Mr. Goldfarb then decided to incorporate and transfer the hairdressing business, carried on by him under the name Ono and Polyphotos to this first floor. There was some delay in getting possession, but, notwithstanding this, on the 31st March, 1937, Ono Ltd., was incorporated, the sole shareholders and directors being Mr. Goldfarb and his brother-in-law Mr. Weiner.
Since getting possession in 1939 Ono Ltd. have, in fact, occupied the first floor, except a portion of the end room used by Polyphotos. No assignment or letting was made to Ono Ltd., who are occupiers by leave and licence of Mr. Goldfarb. From 1939 to June, 1944, no person save Mr. Goldfarb, his family and his staff of Ono Ltd., occupied any portion of the first and second or third floors of 45/47 Henry Street. Sometime prior to 1st July, 1944, the defendants, Woodlock and Noone, with another gentleman, approached Mr. Grant with a view to taking the second floor as trustees for Arnotts’ Employees Social and Athletic Club. He says he was told it was wanted as a social club for (inter alia)billiards, card-playing, singing, dancing on Saturday nights and occasional late dances. He says he “thought that if dancing was only in the evenings that could not upset anyone.” Terms were ultimately agreed and a letting was made to the individual defendants by agreement, dated the 31st day of July, 1944, for a term of three years from the 1st of July, 1944, Messrs. Arnott agreeing to guarantee the rent of £165. This agreement contains the following, amongst other, provisions:(His Lordship read the material provisions already set out).
Mr. Grant says he told Mr. Goldfarb of the proposed letting and that the latter said “there would be nothing unusual in that, that he had often been there when he was in the trade.” “There” meant “across the way.” Mr. Grant did not say that he told Mr. Goldfarb what the club proposed doing.
These premises were designed and erected about 1917/18. the ground floor and basement for Messrs. Williams’ shop premises; the upper floors for offices and show rooms. These floors are in the main carried on rolled steel H joists, 10” X 5”, on the lower flanges of which are stout wooden plates on which rest the ends of the wooden joists which run from one steel joist to the next. The wooden joists are 7” X 2”, to the underside of which are nailed the plasterboards which form the ceiling of the room below, and to the upper side is nailed the flooring of the room itself. It is obvious that the entire thickness of floor and ceiling is 9” or less, and that the steel joists must project some inches below the ceilings of the under rooms. It occurred to me that such a floor would act as a sounding-board, especially in the case of an instrument in direct physical contact with it, such as a piano, and would conduct sound unless there was provision for deadening noise. I put a question on the point to Mr. Donnelly, who told me that such a floor would definitely transmit sound more than an ordinary floor laid on joists built into brick walls. Noise of a band or singing would penetrate to the room above, music and sound of feet to the room below. He examined the second floor at five points, and at one point he found the plaster-boards had drawn away from the joists sufficiently to admit a finger. He did not attribute this to vibration, but thought it was caused during the laying of a nearby electric cable. There would always be vibration, if dancing took place, but not sufficient to cause damage. Any jumping about might be sufficient to make the chandelier in the “Perm”room swing. If there were weak spots in the skimming, vibration might cause it to fall. Mr. Bradbury expressed the view that it was quite possible that damage to the “Perm”room ceiling was due to a swaying chandelier.
Now, in addition to these opinions I have direct evidence from Mr. Munden, who went to the premises on two dance evenings. On the first floor in the cubicles he could hear the dance music and the sound of dancing feet overhead and he observed vibration in the lamp-shades during the dancing. On the third floor he could hear the music plainly and also hear singing. Mr. Caffrey also deposed that he could hear the music of a band and a lady’s voice singing. I think this was from the wireless set. I have also conclusive evidence that Mr. Grant offered, and Mr. Goldfarb refused to accept, a reduction in rent of £50 per annum, as adequate compensation for the inconvenience caused to him.
Table-tennis in the recreation room over the “Perm”room did not commence until February of this year, and Miss Rose Kelly, who worked there, told me that she observed the right chandelier swaying two or three inches some time after Christmas. She said her attention was called to it by the pendant heaters knocking together. That would be three months ago now. The chandelier should be a rigid fixture, and she explained the danger of any movement. It swayed when there was jumping in the room overhead at lunch time. Mr. MacDermott also deposed that the chandelier should be rigid, but it was not; he swayed it and found movement of one to one and a half inches, due to a loose bolt and nut. Miss Wogan, the receptionist, spoke of great noise from the billiard room, making it necessary to shout at customers, to the lights going out, and to girls rushing up or down stairs linked four or five abreast, a feat obviously impossible on this staircase, which discounts her evidence.
The plaintiffs have not satisfied me that the damage to the ceilings of the first floor was due to dancing or other vibration caused by the club, though it may have contributed to the ultimate fall of the skimming coat in the various weak places. There is no evidence which would lead me to conclude that the failure of electric light was due to vibration, which Mr. Munden described as slight, and I gathered was just perceptible. On the other hand, I am of opinion that, prior to the 15th of December, the billiard room was used in a noisy manner which amounted to a nuisance, and I am not satisfied that all reasonable grounds for objection have completely ceased. The use of the recreation room for table-tennis is certainly an unusual and objectionable user, unless measures are taken to prevent the sound of frequent heavy lunging steps from penetrating to the room below. These are matters of user for which the landlords are primarily not responsible, but the sounds of music and dancing and shuffling feet which undoubtedly penetrate the thin floor are in a different category, which I shall deal with later.
I now pass to the third floor. Mr. Goldfarb, who had enjoyed the premises from 1939, as sole occupant, lost no time in making complaints, and lost no opportunity either. He started early in September to complain of the noise of moving in, a purely temporary inconvenience, and he made every conceivable complaint, reasonable and unreasonable, to such an extent as to lend credence to the view that he was determined to root out Arnott’s club, and to make me regard his evidence as unreliable save so far as it is corroborated. I am of opinion that this is due in no small measure to the club’s somewhat enthusiastic start, which got on his nerves, till every sound became to him a source of violent and undue irritation. This seem to me to be established by his own evidence as to vibration, which he said was not noticeable when standing up and occupied, but extremely annoying when sitting down.
I am inclined to accept Mr. Goldfarb’s evidence that at first there was dancing nearly every night, though chiefly on Wednesdays and Saturdays. At the outset, some member of the club played the piano, and the stewards called before me could not depose to what took place every night during the whole week. Later, more formal arrangements were made and paid artistes employed.
The evidence satisfies me that the club used the premises demised to their trustees for dancing, in a reasonable and normal manner for such a purpose, that the members of the club were orderly in their behaviour and that anything unduly noisy or objectionable in a dance room was at once checked by the steward of the evening. At the same time I am convinced that the sounds which are ordinarly associated with dancing were transmitted with exceptional clearness and loudness to the floors above and below, and that such sounds, occurring twice weekly from 7.30 to 11 p.m., did amount to a nuisance and were a serious interference with the comfort and health of the plaintiff, Mr. Goldfarb, and other inhabitants of the third floor. Few things could be more exasperating than the knowledge that for three and a half hours every Wednesday and Saturday evening one must listen to jazz or rhythm dances, or leave one’s home as the only means of escape. It is a matter of legitimate comment that no one on behalf of the defendant company accepted the plaintiff’s invitation to come to his premises and hear for themselves. As regards the first floor, I am satisfied that the second floor has been so used as to cause annoyance and inconvenience to Ono Ltd, though not to so great an extent, since the overlap with business hours is relatively small. No customer of Ono Ltd., has been called to prove that she suffered any actual annoyance. In Jenkinsv. Jackson (1), Kekewich J. held that dancing overhead in business premises, though outside normal business hours, was a nuisance, but he did not grant an injunction for a reason not applicable in the present case, since I must grant an injunction to Mr. Goldfarb.
In Ball v. Ray (2), Lord Selborne and Sir George Mellish point out that an unusual use of premises which materially disturbs the comfort of adjoining occupiers, may be a nuisance, though a similar amount of noise arising from the ordinary use of such premises would not be a nuisance. In my opinion the use of these premises for dancing is an unusual one, for which the premises were never designed, and for which, though sufficiently strong and safe, they are otherwise unsuitable. The same applies to table-tennis, although there was no claim in respect of it at the date of the summons.
The fact that such annoyance is caused to the plaintiffs by the use of the premises in a manner, reasonable for the purpose for which they were demised to the club’s trustees, proves their unsuitability.
As between the club and their lessors I am of opinion that, inasmuch as dancing was one of the purposes specifically mentioned during the negotiations, the club was entitled to use the premises for that purpose in a reasonable manner, notwithstanding the restrictive provision against causing nuisance or annoyance. I therefore think the lessors are responsible as having authorised such nuisance, which was inevitable if the premises were used as intended: Harris v.James (1). The lessors must be deemed to know the construction and properties of their own building.
In my opinion the plaintiffs have completely failed to prove the major part of the exaggerated averments in their statement of claim, but have proved sufficient to warrant an injunction. I shall not restrain the defendants in the form asked for; nuisance is often a question of degree, and in my opinion the holding of an isolated dance now and then is a very different matter from bi-weekly dancing; again, an occasional concert during reasonable hours might be permissible and unobjectionable.
I shall merely restrain the defendants from permitting the premises to be used in such manner as to be a nuisance to the other occupiers of the building, 45/47 Henry Street.
I think that from first to last the plaintiffs have been unreasonable. Much of the time occupied by the hearing was due to the plaintiffs’ attempts to prove the extravagant averments which they failed to substantiate and to the defendants’ evidence to counter these attempts.
I think I shall be treating the plaintiffs at least fairly if I award them one-half of one set of costs of the action.
As between the defendants, I am of opinion that, upon the whole, the defendant trustees, as lessees of the second floor, used the demised premises reasonably for purposes authorised by the lease, and that therefore the defendant company should bear the costs awarded to the plaintiffs.
Collins v. Gypsum Industries
[1975] IR 331
Walsh J.
Walsh J.
28th June 1974
By a notice dated the 15th January, 1971, the applicant applied to the Mining Board for compensation for injury to her health by reason of the effects of dust on the structure of her dwellinghouse caused by the mining operations of the respondents in the lands adjoining those upon which she resides with her husband. Since the year 1966 the respondents have operated a leaching plant on their said lands and quantities of gypsum dust have blown over the lands of the applicant’s husband from time to time. The applicant, who has suffered from chronic bronchitis for several years past, has had this condition exacerbated by the gypsum dust which caused her increased ill-health and distress. The Mining Board awarded her the sum of £700 together with the costs of the proceedings before them. The Board was satisfied that a question of law was involved in the proceedings, which question was “whether or not the said Mary Philomena Collins, not being a person possessed of any legal interest in the said lands at Knocknacran, is a person entitled to compensation for nuisance caused by the inhalation of gypsum dust?” It is agreed that what the Board probably had in mind was that the applicant had become entitled to compensation because of the injury caused to her by the inhalation of dust caused by nuisance on the part of the respondents in creating the dust and allowing it to blow over the land of the Collins family. The Mining Board consequently made their award by way of a special Case for the determination of the High Court pursuant to s. 71, sub-s. 2, of the Minerals Development Act, 1940.
The matter came on before the President of the High Court on the 18th May, 1972, and he upheld the award. The point which seems to have been mainly argued before the President of the High Court was whether the applicant, not herself being the owner of land but residing on her husband’s land, could claim damages for nuisance within the terms of the statute. The President was of opinion that the findings of the Board amounted to a finding that the dust blown from the respondents’ lands was a public nuisance and that the fact that no other person was caused personal injury thereby did not prevent it from being a public nuisance. The respondents have appealed to this Court against the decision of the learned President of the High Court on the grounds that he was wrong in law in deciding that the applicant was entitled to compensation for nuisance under the provisions of the relevant statutes, and that he was wrong in holding that it was implicit in the order of the Mining Board that a public nuisance had been caused.
The first point which was argued before this Court was the question of whether or not the statutory provisions in question permitted an application for compensation to be made to the Board in respect of personal injuriesirrespective of whether or not the cause of these injuries would amount to a nuisance, be it a public nuisance or a private nuisance, and irrespective of whether the person suffering the injury was or was not the owner of the land affected. The Court, having heard both sides on this point and reserving the hearing of the submissions on the other points, was of opinion that this particular point was fundamental to the whole case and decided to give a decision upon it before embarking, if that were necessary. upon the rest of the case.
The applicant’s claim was brought pursuant to the provisions1 of s. 31 of the Minerals Development Act, 1940, as amended by s. 80 of the Petroleum and Other Minerals Development Act, 1960. Section 31 of the Act of 1940 refers to the user of land containing State minerals and the respondents in this case are the lessees of State minerals. Section 31, sub-s. 3, provided that whenever damage to the surface of any land was caused, directly or indirectly, either by working or doing anything incidental to the working of State minerals or by exercising a right of entry and user of land conferred by the section the person causing such damage, whether he is the Minister or the lessee, shall be liable to pay compensation for damage under Part IV of the Act for such damage. Sub-section 4 of s. 31 provides that the amount of compensation for damage under Part IV shall, in default of agreement, be determined in accordance with the provisions of Part VII of the Act.
The effect of the amendment of s. 31 of the Act of 1940 by s. 80 of the Act of 1960 was to add “damage to mineral deposits or to water supplies” and the creation of a “nuisance” as matters for which compensation would be payable. The net effect of the amendment was that whenever damage to the surface of any land or to mineral deposits or to water supplies, or a nuisance, is caused directly or indirectly, as already mentioned, compensation shall be payable under Part IV of the Act of 1940.
Part VII of the Act of 1940, which deals with compensation, provides in s. 57 that the word “compensation,” when used without qualification, includes all kinds of compensation payable under the Act. The section then goes on to state that the expression “compensation in respect of land” includes compensation for damage under Part II, and compensation for damage under Part III, and compensation for damage under Part IV, and compensation for mining facilities, or any such compensation. Section 58 provides that the amount of compensation, in default of agreement, shall be determined by the Mining Board in accordance with the provisions of the Act; and s. 59, sub-s. 2, which deals with applications for compensation in respect of land, provides that, subject to the provisions of Part VII of the Act, the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, shall apply to the determination of the amount of compensation in respect of land. The only other type of compensation which appears to be covered by Part VII of the Act of 1940 is compensation for State acquired minerals, and s. 67 of the Act deals with the basis of assessment of compensation in respect of these. Compensation in respect of land appears to me to include the compensation under Part II and Part IV of the Act.
Section 31, under which the present claim was brought, falls within Part IV of the Act and, as I have already mentioned, one is referred to Part VII for the determination of compensation under this part of the Act. Notwithstanding the amendment made by the Act of 1960 to s. 31 of the Act of 1940, no change was made in the provisions of s. 59, sub-s. 2, in Part VII of the Act of 1940.
It appears to me from a study of the Act that the purpose of the Act of 1940, in so far as compensation was concerned, was the payment of compensation for damage to land, damage to mineral rights, and damage for nuisance but, so far as nuisance was concerned, in a context of damage caused to the land itself or the enjoyment of the land by the nuisance. I do not think it was ever envisaged by the Acts that personal injury caused by nuisance would be the subject matter of a claim for compensation to the Mining Board under the provisions of the Acts. Indeed the very fact that the machinery provided under Part VII (in particular s. 59) of the Act of 1940 was left unamended indicates, it appears to me, that this is the correct interpretation. In my view, the expression “compensation in respect of land,” which includes compensation for damage under Part IV, also bears out this interpretation, and the additional cause for compensation (nuisance) which was provided by the Act of 1960 did not change the essential character of this basis of compensation. The present claim is brought under Part IV.
Section 59, sub-s. 1(c), of the Act of 1940 provides that any person entitled to such compensation may apply to the Board to determine the amount of such compensation and sub-s. 2 of that section provides that the determination of the amount of compensation in respect of land shall be subject to the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919. This would be utterly inappropriate for a claim which referred to personal injury. Personal injury is something which affects the body of the injured party and goes with him wherever he is. It is quite true that a person’s enjoyment of land may be considerably marred, if not completely disturbed, by a nuisance created by an adjoining owner: but annoyance or lack of enjoyment is very different in character from personal injury and it is something which is essentially connected with the land itself and does not exist apart from the user of the land.
The present claim is one for personal injury only and in my view, for the reasons I have given, it is a claim which was not capable of being brought before the Mining Board which had no jurisdiction to deal with such a claim. The proper forum for pursuing such a claim for personal injury is that provided by the ordinary courts. In so far as the Act of 1940 may be construed as permitting the creation of a nuisance affecting other lands or the enjoyment of them, nothing in this judgment is to be understood as meaning that the Act legalises the doing of anything which results in personal injury to any person or the infliction of injury on animal life.
For the reasons I have given it is unnecessary to consider any of the other matters which arose from the appeal. I think that the answer to the special Case submitted for determination by the Mining Board should be that the applicant is not entitled to claim compensation under the Minerals Development Act, 1940, as amended by the Petroleum and Other Minerals Development Act, 1960, for the personal injury she has suffered from the nuisance caused by the dust which has come on to her husband’s land from the land of the respondents. In the result I would allow the appeal.
Henchy J.
I agree that the Mining Board’s award of compensation to the applicant cannot stand. Whatever be the true scope of the meaning to be attributed to “nuisance” in s. 31 of the Minerals Development Act, 1940, compensation for it falls to be assessed under Part IV of the Act in accordance with the provisions of Part VII: see the provisions2 of sub-ss. 3 and 4 of section 31. When one examines Part VII, is becomes clear that it provides only for compensation for interference with property rightssuch as for damage to land or mining facilities or for the acquisition of unworked minerals.
There is nothing in Part VII that even hints at compensation for personal injuries. On the contrary, all its provisions appear to be directed to the assessment of compensation for loss or diminution of proprietary rights. This is as one would expect for, before s. 31 of the Act of 1940 was amended by s. 80 of the Act of 1960 to cover compensation for “nuisance,” no question of any other kind of compensation could even arise because the Act of 1940 in its original form was clearly confined to proprietary, as distinct from personal, rights.
If the legislature had intended the Act of 1960 to extend the compensation provisions to personal injuries, Part VII of the Act of 1940 would have had to be so extended. Since the Act of 1960 did not do so. it must be held that compensation for personal injuries is outside the scope of the Acts.
As the applicant’s injuries are personal and physical and do not arise in respect of any proprietary interest, the appeal should be allowed and the applicant left to assert such rights as she may have outside the provisions of the Acts.
A
Griffin J.
I agree with the judgments delivered by Mr. Justice Walsh and Mr. Justice Henchy.
Rex (Donnell and Another) v Justices of Londonderry
High Court of Justice.
King’s Bench Division.
14 February 1910
[1910] 44 I.L.T.R 230
Lord O’Brien L.C.J. Gibson, Boyd JJ.
Gibson, J., delivered the judgment of the Court. Of the five magistrates who heard the case, three were in favour of making the order and two against. In the Down Case, [1905] 2 Ir. R. 648, it was held that the order of the magistrates is the document drawn up in accordance with Form C in the schedule and not the entry in the petty sessions book. Were two signatures out of five sufficient? Two is the minimum, but I doubt if it is sufficient. The Summary Jurisdiction Act, 1848, c. 43, s. 14, required the order to be drawn up under the hand and seal or hands and seals of the justice or justices who heard the case, but the form in the schedule only shows one signature. R. v. *230 Tabrum, 97 L. T. R. 551, decided that signatures could be supplied under 12 & 13 Vict., c. 45, which enables matters of forms to be remedied— not substantial mistakes. Battye v. Gresley, 8 East 319, decided that where a tribunal agreed on the substance of their order, the formal record need not be completed by the members of the tribunal in the presence of one another. The signatures being subsequently obtained made the order valid. The point that the delay in completing the order was a difficulty in the way of an appeal is a real grievance, but it does not go to jurisdiction. In R. v. Boultbee, 4 A. & E. 498, the order was not drawn up till after the time of appealing had expired. The order must be discharged but without costs.