Ambrose v Shevlin

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 11 December 2009
• Neutral Citation: [2009] IEHC 548
• Docket Number: No. 922 P 1996
• Court: High Court
• Date: 11 December 2009

Ambrose v Shevlin

[2009] IEHC 548

BETWEEN

MICHAEL AMBROSE

PLAINTIFF

AND

PATRICK SHEVLIN

DEFENDANT

[2009] IEHC 548

No. 922 P 1996

THE HIGH COURT

TORT

Nuisance

Water - Drainage of water from higher to lower land - Damage caused by flooding - Whether duty of care - Whether damage reasonably foreseeable - Exceptional circumstances - Relevance of actions to remedy drainage issues - Subsequent damage to property caused by flooding - Whether damage reasonably foreseeable - Fitzpatrick v O Connor (Unreported, Costello J, 11/03/1988) and Home Brewery v Davis and Company [1987] 1 All ER 638 - Decree in favour of plaintiff (1996/922P - Dunne J - 11/12/09) [2009] IEHC 548

Ambrose v Shevlin

Facts The plaintiff lived adjacent to a field belonging to the defendant. On that field was a farm track or farm 'pass', which ran along the boundary with the plaintiff's property. The plaintiff's residence was located at a lower level than the farm pass. The plaintiff gave evidence that the farm pass was constructed in 1993 by the defendant at a higher level than his residence and it acted as a dam when water levels in the area rose. Over the weekend of 25, 26 and 27 February 1994, the plaintiff's home was damaged due to flooding. The plaintiff gave evidence that on the Friday night he removed a stone that was obstructing a pipe under the farm pass. The plaintiff stated that he breached the farm pass with the assistance of some neighbours and subsequently the water levels subsided. However, the trench made by the plaintiff was subsequently filled in and consequently the water levels rose and the plaintiff's home was further flooded. It was necessary on the Sunday to re-open the breach. The defendant denied constructed the farm pass in 1993 and submitted that the existing farm pass was merely repaired at that time.

Held by Dunne J. in allowing the claim: That construction works that took place on the farm pass in 1993 and raised the level of the farm pass with the result that on the relevant weekend in February 1994, it acted like a dam and impeded the natural flow of the overflow from the stream and caused the flooding of the plaintiff's house. However, due to the fact that exceptional heavy rain fell that weekend and there was a failure at the culvert the events of the Friday night were not reasonably foreseeable. However, the result of the defendant filling in the breach in the farm pass without providing suitable drain pipes was inevitable and consequently the flooding on the Saturday night was reasonably foreseeable. In the circumstances, the defendant was liable to the plaintiff for the damage done to his property and the plaintiff was entitled to a decree in the sum agreed. It was not possible to distinguish between the level of damage done on the Friday night and the damage that occurred subsequently.

Reporter: L.O'S.

FITZPATRICK v O'CONNOR UNREP COSTELLO 11.3.1988 1988/4/1095

HOME BREWERY v WILLIAM DAVIS & CO 1987 1 AER 637 1987 QB 339 1987 2 WLR 117

JUDGEMENT Delivered by

Ms. Justice Dunne

1 on the 11 day of December 2009.

2 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.

3 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.

4 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.

5 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. Mathews, 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.

6 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.

7 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.

8 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.

9 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 the 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.

10 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 Shevlins 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...