Burke v Dublin Corporation

• Jurisdiction: Ireland
• Judge: McCarthy, J.,FINLAY C.J.
• Judgment Date: 01 January 1991
• Neutral Citation: [1990] IESC 1
• Court: Supreme Court
• Docket Number: [S.C. No. 308 of 1989]
• Date: 01 January 1991

[1990] IESC 1

THE SUPREME COURT

Finlay C.J.

McCarthy J.

O'Flaherty J.

308/89

BURKE v. DUBLIN CORPORATION

IAN BURKE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND GLORIABURKE) ANGELA TINKLER, CELINE HICKEY and LORRAINE WADE

Plaintiffs

/Respondents

and

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSESOF DUBLIN

Defendants/

Appellants

Citations:

BURKE V DUBLIN CORPORATION UNREP BLAYNEY 13.7.89 1989/4/939

SINEY V DUBLIN CORPORATION 1980 IR 400

HOUSING ACT 1966 S66(2)

HOUSING ACT 1966 SCHED 2

HOUSING ACT 1966 S90

HOUSING ACT 1966 S90(1)

HOUSING ACT 1966 S106(1)

MARRIED WOMENS STATUS ACT 1957 S8(1)

JACKSON V HORIZON HOLIDAYS LTD 1975 3 AER 92

PRICE V EASTON 1833 3 B & AD 433

TWEDDLE V ATKINSON 1861 1 B & S 393

NEW ZEALAND SHIPPING CO LTD V AM SATTERTHWAITE & CO LTD 1975 AC 154

MARRIED WOMENS STATUS ACT 1957 S7

WOODAR INVESTMENT V WIMPEY CONSTRUCTION 1980 1 AER 571

DONOHUE V STEPHENSON 1932 AC 562

MARRIED WOMENS STATUS ACT 1957 S8

Synopsis:

CONTRACT

Privity

Stranger - Benefit - Exclusion - Housing authority - Tenants - Letting agreement - House provided by a housing authority - Authority let house to married couple - Subsequent birth of tenants" child - Benefit of implied warranty not available to child - (308/89 - Supreme Court - 26/7/90) - [1991] 1 I.R. 341

|Burke v. Corporation of Dublin|

CONTRACT

Terms

Implied term - Dwelling - Fitness - Habitation - Housing authority - Authority provided dwellings pursuant to statutory powers - Letting and sale of houses - Implied warranties that dwellings fit for human habitation - Defective stoves installed - Health of occupants damaged - Negligence - Continuing obligation to ensure fitness - Practice - Appeal - Novel issue determined exceptionally - Married Women's Status Act, 1957, s. 8 - Housing Act, 1966, ss. 58, 66, 90 - (308/89 - Supreme Court - 26/7/90)

|Burke v. Corporation of Dublin|

LOCAL GOVERNMENT

Housing

Housing authority - Letting - Sale - Terms - Implied warranty - Fitness of house for habitation - Warranty implied in lease and in conveyance - (308/89 - Supreme Court - 26/7/90) - [1991] 1 IR 341

|Burke v. Corporation of Dublin|

SUPREME COURT

Appeal

Jurisdiction - Exercise - Issues - Novel point raised on appeal - No objection by respondent - Point determined by appellate court - Exception to normal practice - (308/89 - Supreme Court - 26/7/90) - [1991] 1 I.R. 341

|Burke v. Corporation of Dublin|

WORDS AND PHRASES

"Fit for human habitation"

Dwelling - Provision - Housing authority - Letting and sale - Terms - Implied warranty - Fitness for human habitation - Defective heating unit - Occupier's health damaged - (308/89 - Supreme Court - 26/7/90) - [1991] 1 I.R. 341

|Burke v. Corporation of Dublin|

1 JUDGMENT delivered on the 26th day of July 1990by FINLAY C.J.[O'FLAHERTY CONC.]

2 The proceedings in this case consisted of claims brought by four Plaintiffs for damages, breach of contract, negligence, breach of duty and breach of statutory duty, and for certain injunctions arising out of the provision and maintenance by the Defendants as a Housing Authority for the City of Dublin, of heating units in four separate premises at Tallaght in the City of Dublin.

3 The claims of the four separate Plaintiffs are closely interrelated, though by no means identical, and no objection was taken at any stage to the trial of the proceedings in a single action.

4 The matter was tried before Blayney J. in the High Court, sitting without a jury, and having delivered a reserved judgment on the 13th July 1989, he made the following Orders in each of the four separateclaims.

5 1. He dismissed the claim of the first-named Plaintiff on themerits.

6 2. He awarded damages in the sum of £21,290 in favour of the second-named Plaintiff.

7 3. He awarded damages in the sum of £41,000 in respect of the third-named Plaintiff.

8 4. He dismissed the claim of the fourth-named Plaintiff who did not appear or tender any evidence to prosecute her claim.

9 The Defendants appealed against both the findings of liability and the assessment of damages in respect ofthe second and third-named Plaintiffs.

10 The first-named Plaintiff appealed against the dismiss of his claim and the second and third-named Plaintiffs appealed against the measure of damages awarded on the basis that they were inadequate. The fourth-named Plaintiff did not prosecute any appeal.

11 The Court decided to hear and determine first the Defendant's appeal against liability in respect of the second and third-named Plaintiffs, and the first-named Plaintiff's appeal against the dismiss of his claim on the issue of liability, and to deal with any questions of damages at a later date.

12 I will deal with these appeals in the order in which they were submitted to the Court.

Claim of Celine Hickey

13 This Plaintiff and her husband became tenants of one of the houses provided by the Defendants pursuant to the Housing Act 1966, in February 1982. The complaint of the Plaintiff in these proceedings was to the effectthat the heating system in the house, which in the years 1978/1979 had been converted by the Defendants from an oil-fired to a solid fuel-fired heating system, was seriously defective, rendered the house unfit for human habitation and had had the particular consequence, as far as this Plaintiff is concerned, of having brought on in her a condition of asthma and of having damaged her furniture, fittings and decoration. No issue arose with regard to the right of this Plaintiff to claim in respect of these latter matters.

14 The claim of all the Plaintiffs with regard to the heating system is accurately and economically summarised by the learned trial Judge in his judgment in the following terms:

15 2 "1. The conservas (the solid fuel heating system) are unsatisfactory and unsafe. When they are being lit the house fills with smoke, and smuts are emitted. They cannot be regulated and as a result reach a very high temperature, and large parts of the heater become cherry red in colour.

16 2. The Defendants were negligent in choosing theconserva to replace the oil-fired units. They failed to test it adequately before deciding to order it.

17 3. The lettings to the Plaintiffs contained an implied warranty that the houses would be reasonably fit for human habitation. The defects in the conserva were such that they rendered the houses unfit.

18 4. It was also submitted that the Defendants had been negligent in not inspecting the houses before making new lettings and in not giving adequate instructions on how to operate the conserva."

19 Having reviewed the evidence given by and on behalf of the Plaintiff Celine Hickey with regard to the operation of the conserva heating system and its effect upon both her health and the property in the house, the learned trial Judge shortly summarised his findings with regard to that evidence and with regard to the evidence adduced on behalf of the Defendants that such difficulties as might exist were caused by the Plaintiff's own negligent or inefficient management of the system in the following paragraph:

"While I consider that there was some exaggeration in Mrs. Hickey's evidence — in particular regard to the frequency with which the firebricks were replaced — this is contradicted by theDefendants" records — I am satisfied that she was in the main a truthful witness, and I find as a fact that what she referred to as "blowbacks" (happened) on an average about once a week and that the effect was that dust fumes and smuts were emitted from the conserva. I also find on the evidence of Dr. Fitzgerald that this was the cause of Mrs. Hickey's developing asthma. I am satisfied also that Mrs. Hickey's carpets, furnishings and furniture were stained by the smuts and that because of this she had to redecorate more often that would otherwise have been the case."

20 I am satisfied that these findings of fact were clearly supported by the evidence adduced before the learned trial Judge and that, in the context of the trial and of his judgment, must be construed as a rejection by him of the assertion made on behalf of the Defendants that the problems which had arisen with regard to this heating system had been caused bythePlaintiff's own negligence or inefficiency.

21 The learned trial Judge held that the decision of this Court in Siney v. The Corporation of Dublin, 1980 IR, that the letting of one of a number of newly built flats provided by the Corporation under the provisions of the Housing Act 1966contained an implied warranty that the flat was fit for human habitation, applied to the letting of a house in the same way as it applied to the letting of a flat, and it also applied to the letting of a house even if it was not a new one. In my view, that decision is correct and was an inevitable consequence of the reasoning contained in the judgment, in particular, of O'Higgins C.J. in Siney'scase.

22 The next question which, therefore, arises is as to whether on the facts as found by the learned trial Judge there was a breach of the implied warranty arising in law that the premises let to Mrs. Hickey were fit for human habitation. The Defendants in the Court below and in this Court submitted that by virtue of theprovisions of Section 66, subsection (2), of the Housing Act 1966, and of the Second Schedule to that Act that the evidence in support of Mrs. Hickey's claim could not constitute proof of a breach of an implied warranty of fitness for human habitation because it did not come precisely within any of the twelve matters contained in the SecondSchedule.

23 Subsection (2) of Section 66 reads as follows:

"The Housing Authority in considering whether a house is unfit for human habitation, shall have regard to the extent (if any) to which the house is deficient as respects each of the matters set out in the Second Schedule to this Act."

24 The twelve matters contained in the Second Schedule are as follows:

25 1...