Burke v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-HC 939
• Court: High Court
• Docket Number: Record No. 11144p/1988,[1988 No. 11144P]
• Date: 01 January 1990

BURKE v. DUBLIN CORPORATION

BETWEEN/

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

PLAINTIFFS

AND

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN

DEFENDANTS

1989 WJSC-HC 939

Record No. 11144p/1988

THE HIGH COURT

Synopsis:

DAMAGES

Assessment

Personal injuries - Bronchitis - Stove - Defect - Emission of fumes - Dwelling - House provided by housing authority - Damage to furnishings - ~See~ Contract, terms - (1988/11144 P - Blayney J. - 13/7/89) [1990] 1 I.R. 18

|Burke v. Corporation of Dublin|

LOCAL GOVERNMENT

Housing

Housing authority - Dwelling - Provision - Statutory duty - Letting and sale - Implied warranty - Fitness for human habitation - ~See~ Contract, terms - (1988/11144 P - Blayney J. - 13/7/89) - [1990] 1 I.R. 18

|Burke v. Corporation of Dublin|

NEGLIGENCE

Damage

Risk - Foresight - Housing authority - Dwelling - Provision - Statutory duty - Installation of heating unit - Defective stove - Emission of dust and fumes - Occupier's health impaired - Liability of housing authority - ~See~ Contract, terms - (1988/11144 P - Blayney J. - 13/7/89) - [1990] 1 I.R. 18

|Burke v. Corporation of Dublin|

REAL PROPERTY

Alienation

Dwelling - Warranty - Implication - House provided by housing authority - Defective heating unit - Occupier's health damaged - Warranty that house fit for human habitation - Warranty implied - ~See~ Contract, terms - (1988/11144 P - Blayney J. - 13/7/89)

|Burke v. Corporation of Dublin |

CONTRACT

Terms

Implied term - Dwelling - Fitness - Habitation - Housing authority - Dwellings provided by authority pursuant to statutory powers - Letting and sale of houses - Defective stoves installed - Implied warranty that dwellings fit for human habitation - Held that the claim of the first plaintiff failed since he had not proved that the defendants could have reasonably foreseen that the use of a replacement stove in his parents" house would create a danger to the health of persons living in that house: ~Donoghue v. Stevenson~ [1932] A.C. 562 and ~O'Mahony v. Henry Ford & Sons~ [1962] I.R. 146 considered - Held that the letting agreement of the third plaintiff contained an implied warranty by the defendants that the house let by them to the third plaintiff and her husband was fit for human habitation: ~Siney v. Corporation of Dublin~ [1980] I.R. 400 followed - Held, for the same reasons, that the conveyance to the second plaintiff contained an implied warranty by the defendants that the house conveyed was fit for human habitation - Housing Act, 1966, ss. 58, 66, 90 - (1988/11144 P - Blayney J. - 13/7/89) - [1990] 1 I.R. 18

|Burke v. Corporation of Dublin|

Citations:

HOUSING ACT 1966 S90(3)

SINEY V DUBLIN CORPORATION 1980 IR 400

HOUSING ACT 1966 S66(2)

MCCOY V CORK CORPORATION 1934 IR 779

DALY V ELSTREE UDC 1948 2 AER 13

HOUSING ACT 1966 S90(2)

HOUSING ACT 1966 S58(1)

HOUSING ACT 1966 S58(3

HOUSING ACT 1966 S90(1)

DONOGHUE V STEVENSON 1932 AC 562

O'MAHONY V HENRY FORD & SONS 1962 IR 146

1 Judgement of Mr. Justice Blayney delivered the 13th day of July 1989.

2 This case involves four separate claims for an injunction and damages of which there were pursued at the hearing, the last not having been pursued as Lorraine madde did not give any evidence in support of her claim. While certain background facts are common to each of the claims, they must nontheless be dealt with separately as each has distinctive features which make it impossible to consider them together. I propose to start by setting out the common background facts and I will then go on to deal separately with each of the claims.

Background Facts

3 In or about the year 1970 the Defendants, in exercise of their powers under the Housing Act, 1966, built a number of houses in Tallaght, in four of which the Plaintiffs are now living. The heating in the houses was provided by an oil burning unit housed in a chamber situated in the centre of each house. This number is approximately 23 inches wide by 32.5 inches in depth and has a height of about 8 feet. It is constructed of concrete blocks. Air is drawn into the chamber through vents situate close to floor level and warm air leaves the chamber through vents placed near the ceiling. In addition to providing central heating for the house, the oil burning unit also heated the domestic water.

4 When the price of oil rose sharply in the first half of the 1970's, the tenants of the houses could no longer afford to pay for the oil needed to run the system and as a result many had their supply of oil cut off. It became clear to the Defendants in these circumstances that the oil burning units would have to be replaced and they at once set about finding a replacement. After making extensive inquiries, they heard of a stove which seemed suitable- the conserva warm air heater, which operated on solid fuel and was designed to function in a chamber similar to that in which the oil burning unit had been housed.

5 The conserva had been assessed by the Institute for Industrial Research and Standards in 1976 and a copy of their report was furnished to Mr. Anthony John Mills, the Architect who was the maintenance officer of the Defendants' housing department at the time, and he found it very impressive. Mr. Mills attended a demonstration in Cork by the manufacturers at a place where a conserve had been installed, and a pilot scheme was tried for between a month and six weeks with conservas installed in two houses in Tallaght. Following this, Mr. Mills decided that the standard model of the conserva needed to be reduced in size if it was to be suitable for the size of chamber in the Tallaght houses. At the request of the Defendants, the manufacturers reduced the size by two inches all round. 960 units of this size were then purchased by the Defendants and installed throughout the city, 188 being installed in Tallaght.

6 This took place about 1978/1979. The conserva incorporated a boiler so that it heated the water as well as heating the house. It was designed to operate on any type of solid fuel, coal, turf, briquettes or wood. The manner in which it functioned was different from the conventional stove. In the latter, the air comes in under the fire box and the draft is always upwards through the fire. In the conserva, this is the position only when the fire is being lit. Once this has been done, a draft diverter is activated by pulling a lever at the side and this has the effect of altering the direction of the draft so that it goes down through the fuel to the fire and thence makes its way to the flue at the back of the heater. This is called the down firing conserva system. The advantage claimed for it by the manufacturer is that a greater measure of combustion is achieved.

7 The claims of the Plaintiffs are based on alleged defects in the conserva and before examining their separate claims it is necessary to set out briefly the case being made on their behalf. It might be summarised as follows:-

8 1. The conservas 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.

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

10 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.

11 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.

12 I will consider these submissions more fully when dealing with each of the claims to which I now proceed.

Claim of Celine Hickey

13 Mrs. Hickey and her husband David became tenants of 23 Avonbeg Road, Tallaght, on the 26th February 1982. She signed a letting agreement which commenced with the following paragraph:-

"In consideration of being allotted a dwelling provided by the Corporation under the Housing Act 1966, I hereby agree to observe, perform and comply with the standard letting conditions of the Corporation endorsed hereon, which I have read and understand, and I hereby acknowledge receipt of the key of the dwelling mentioned hereunder."

14 Mrs. Hickey said she was given the keys and she moved in. She described the conserva as being in a box in the kitchen. She had never seen a heater like that before. For about six months she did not use it. Instead she used a Super Ser and an electric blow heater. Then a neighbour came in and showed her how to use it. This was the same way as is set out in the booklet containing users" instructions which she was given in November 1988. She was also given instructions for lighting the stove by a man from the Defendants.

15 The first day she lit the stove it made a banging sound. Smuts blew out into the kitchen and hall. She panicked and ran out. Her neighbour said it was normal and for two years came in every day when Mrs. Hickey was lighting the stove.

16 Mrs. Hickey complained to the Defendants about the smoke and smuts. They came and took the flue down and cleaned it. It worked all right for a couple of days after that. She said she contacted the Defendants regularly. Sometimes as often as four times in two weeks. About three weeks before the hearing a man from the Defendants came and watched her lighting the fire. Smoke and smuts came out. He did not know why this was happening. Mrs. Hickey also said that she could not regulate her conserva. It gets extremely hot. The flue and the whole front so cherry red. Fire bricks burn out twice a year, they crumble...