O'Callaghan v Limerick City Council and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 12 July 2012 |
| Neutral Citation | [2012] IEHC 293 |
| Docket Number | [No. 56 P./2006] |
| Court | High Court |
| Date | 12 July 2012 |
[2012] IEHC 293
THE HIGH COURT
BETWEEN
RYLANDS & HORROCKS v FLETCHER 1868 3 LR HL 330 1861-73 AER REP 1
MUNNELLY v CALCON LTD & ORS 1978 IR 387
KELLEHER v O'CONNOR T/A DON O'CONNOR & CO 2010 4 IR 380 2010/25/6155 2010 IEHC 313
ANALOG DEVICES BV & ORS v ZURICH INSURANCE CO & ANOR 2005 1 IR 274 2005 2 ILRM 131 2005/2/242 2005 IESC 12
ROHAN CONSTRUCTION LTD & ROHAN GROUP PLC v INSURANCE CORPORATION OF IRELAND PLC 1988 ILRM 373 1987/4/1080
INSTITUTION OF ENGINEERS OF IRELAND CONDITIONS OF CONTRACT & FORMS OF TENDER AGREEMENT & BOND FOR USE IN CONNECTION WITH WORKS OF CIVIL ENGINEERING CONSTRUCTION 3ED 1980 PARA 22
HALSBURYS LAWS OF ENGLAND 5ED VOL 12 PARA 868
Tort – Negligence – Damage to property – Apportionment of liability – Assessment of damages – Conditions of Contract and Forms of Tender, Agreement and Bond, 3rd Ed. 1980 – Whether the damage was caused by the manner in which the second defendant carried out the works or was caused by certain works ordered to be carried out by the first defendant.
Facts The plaintiff claimed damages for loss, damage, inconvenience and expense suffered by him as a result of damage to his property caused by the manner in which works were carried out under the Limerick Drainage Scheme. The first named defendant appointed the second named defendant as the main contractor in respect of certain portions of those works. That appointment was made pursuant to the Institution of Engineers of Ireland Conditions of Contract for use in connection with works of civil engineering construction (Third Edition, 1980). Certain variations occurred to the original plans and disagreements arose concerning the second stage of the works and in particular regarding the use of dewatering. The plaintiff informed the first defendant of damage to his property in January 2004 and subsequently in November 2005 the third named defendant was hired by the first defendant to install a cobblelock pathway along the canal bank. It was conceded by the first and second defendants that damage was caused to the plaintiff's property during the course of the works. The first defendant claimed that the damage was caused by the manner in which the second defendant carried out the works whereas the second defendant claimed that the damage was caused by dewatering ordered by the first defendant. The plaintiff claimed damages under a number of headings, namely: (i) reconstruction, (ii) renovation, (iii) rental income lost, (iv) expert fees incurred, (v) lost development opportunity, (vi) the plaintiff's own expenses and (vii) lost property value. The parties agreed the cost of reconstruction was €300,000. An expert engineer gave evidence on behalf of the first and third defendants regarding the nature and cause of the damage to the plaintiff's property and he concluded that this was not caused by dewatering but was caused by sudden ground movement as a result of inadequate temporary support to the ground during the course of the works carried out by the second defendant. It was submitted that the work carried out by the third named defendant did not contribute to the damage and evidence was given that only light vibrating equipment was used and a 3000mm zone was left between the site of the works and the plaintiff's property. The work was carried out in two stages, the initial tunnelling work and subsequent connection works. The second defendant submitted that it had been opposed to aspects of the work but was instructed by the first defendant to carry out those works and it argued that this instruction removed any responsibility from the second defendant for those works. The second defendant relied on clause 22 of the contract to support its entitlement to an indemnity from the first defendant.
Held by Hedigan J. in awarding the plaintiff damages in the sum of €404,800: That it was agreed between all parties that the plaintiff was entitled to compensation for the damage caused to his house. The evidence before the court established that the third named defendant had no liability for any of the damage caused to the plaintiff's property. The expert evidence given on behalf of the first and third named defendants was more convincing. The second named defendant was responsible for the damage caused by the initial tunnelling works. However, it was not possible to determine the extent to which responsibility for the damage could be allocated between the two distinct phases of work, namely the initial tunnelling and the connection works. Consequently, the court was forced to the conclusion that the cause of the damage ought to be allocated on a fifty/fifty basis between the two distinct phases of work. It was necessary to divide liability between those two phases owing to the deterioration in the relationship between the parties prior to the second phase of the works. The first and second defendants were jointly responsible for the breakdown of mutual confidence and this amounted to an act or neglect on the part of the first named defendant as provided for in clause 22 of the contract that contributed to the damage to the plaintiff's property. The damage caused was not the unavoidable result of the construction done by the second named defendant in accordance with the contract and consequently both defendants were equally liable for the damage caused. Therefore, liability in respect of the damage caused to the plaintiff's property was apportioned on the basis overall of seventy five per cent to the second defendant and twenty five per cent to the first defendant. In order to put the plaintiff back in the position he would have been in had the incident herein not occurred he was entitled to an award encompassing the agreed cost of demolition and rebuilding together with an amount of €64,800 to compensate for loss of use in the intervening years and an amount of €40,000 by way of general damages for the plaintiff's distress, inconvenience and loss of time. The plaintiff was not entitled to any other compensation.
The plaintiff resides at 8 Palmerstown Court, Mungret Street, Limerick. The first named defendant is the city council for the limerick city functional area and has its offices at City Hall, Limerick. The second named defendant is a limited liability company and has its registered offices at Dock Road, Bunlicky, Limerick. The third named defendant is a limited liability company and has its registered offices at Hiview House, Highgate Road, London, NW5 1TN.
(a) Damages for loss, damage, inconvenience and expense suffered and sustained by the Plaintiff owing to the negligence and breach of duty (including breach of statutory duty) and/or nuisance and/or breach of the Rule inRylands v Fletcher and/or for trespass and/or interference with the Plaintiff's property rights and/ or for breach of the Plaintiff's rights of support and/or such other or further basis as is deemed fit arising out of works being carried out by the Defendants at or near the canal bank, Clare Street, Limerick and which caused interference and damage to the Plaintiff's property adjacent thereto.
(b) If necessary, an Injunction or Order requiring the Defendants to restore the Plaintiff's property to its condition prior to the matters complained of herein.
(c) Such interim and/or interlocutory relief as is deemed fit.
2 3.1 The plaintiff in these proceedings seeks damages arising out of the manner in which works were carried out under the Limerick Drainage Scheme. The plaintiff is the owner of a dwellinghouse and associated outhouses at Canal Bank, Clare Street, Limerick. The plaintiff's property is located approximately 10 metres from the canal wall. Extensive works took place on the canal in the course of the Limerick Drainage Scheme. Limerick City Council ("the Council") appointed Roadbridge Limited ("Roadbridge") as the main contractor in respect of contract number 3.2 Interceptor Sewers ISU Southern on the Limerick Main Drainage Scheme. These were the works which took place in the vicinity of the plaintiff's property. The appointment was made pursuant to the Institution of Engineers of Ireland Conditions of Contract for use in connection with works of civil engineering construction (Third Edition, 1980 Revised and Reprinted October, 1990). The original plans for contract 3.2 envisaged a tunnelled drive along Clare Street, Limerick which would join the two sections between ISU 4 and Manhole 10. However due to issues such as traffic disruption, a variation was ordered by the Council whereby a new drive was directed running directly from ISU 4 to Manhole 10. The proposal for this was a tunnel drive adjacent to the canal along the canal bank. There were difficulties laying the sewer between ISU 4 and MH10 in the proposed fashion and this drive was discontinued in early 2003. This necessitated proposals for alternatives as to how to connect the sewer between ISU 4 and Manhole 10. Roadbridge proposed a form of construction which effectively ran in an open cut down the canal bed itself in a straight line between the two points. Representations were made by Waterways Ireland who were concerned that a straight drive would result in damage to a Waterways Ireland Lock. The engineer having charge of the contract decided to choose a route which would avoid any possible damage to the lock. The engineer appointed was White Young Green and its representative was the resident engineer Russell Naylor. It was decided that the work to be carried out was partly to be by way of open cut within the bed of the canal itself from structures known as ISU 1.03 A and ISU 1.03B and thereafter by...
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