Colgan v Connolly Construction

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 29 February 1980
• Neutral Citation: 1980 WJSC-HC 2183
• Court: High Court
• Date: 29 February 1980

1980 WJSC-HC 2183

THE HIGH COURT

No. 2008P/1979

COLGAN v. CONNOLLY CONSTRUCTION

BETWEEN:

GERALD COLGAN

Plaintiff

and

CONNOLLY CONSTRUCTION COMPANY (IRELAND) LIMITED

Defendants

1 Judgment of Mr. Justice McMahon delivered on the 29th day of February 1980

2 This is an action brought by the owner and occupier of a dwellinghouse against a builder claiming damages for the financial loss which the plaintiff will incur in making good defects in the dwellinghouse alleged to be due to the negligent manner in which it was constructed by the builder. The plaintiff is not the first owner of the house and has no contractual relationship with the builder but he claims to be entitled to recover damages in tort on the principle of Donoghue .v. Stevenson.

3 The house No. 54 Lucan Lodge Estate, Lucan, was built by the defendants in the year 1973 under a written contract with the first owner, Mr. Eunan Murray. The site belonged to a development company named Whitewater Limited and when the house was completed the defendants procured that company to grant a lease of it to Mr. Murray for a term of 250 years. The lease was executed in December 1973 and the house was occupied by Mr. Murray and his family from that time until it was sold to the plaintiff in 1976. The plaintiff and his family have occupied it since then. The house was not professionally surveyed before the plaintiff bought it but the plaintiff and his wife inspected it several times. The only defect they observed was a crack in the plaster on the lintel over a window in the main bedroom. It is admitted that the defects now complained of would not have been apparent on examination by a lay-man in 1976 and I am satisfied that all would have been discovered had the house been professionally surveyed at that time.

4 Early in 1979 the plaintiff employed a decorator to renew the wallpaper in the house and it was then discovered that large areas of the walls had plaster which was not adhering to the blockwork. The plaintiff called in an architect who discovered other defects.

5 The duty" of care owed by the maker of an article under the principle of Donoghue .v. Stephenson relates to defects which the maker can foresee are not likely to be discovered by the kind of examination he can reasonably expect to be made before the article is put into use. I have no evidence to show the kind of examination which could reasonably be anticipated by the builder of a house in this class which cost approximately £20,000 when Mr. Colgan bought it in 1976. If I were entitled to use my own knowledge I would think that it is not usual for the buyer of a house in this price class to have it professionally surveyed. Under the Donoghue v. Stevensonprinciple in order to establish negligence I think the onus was on the plaintiff to establish that the manufacturer should have anticipated that his product would be put into use without such an examination as would have discovered the dangerous defect. Section 34(2) (f) of the Civil Liability Act 1961seems to me to have shifted the onus of proof to the defendants in product liability cases. That section provides that the fact that there has been a reasonable possibility or probability of examination after the thing had left the hands of the defendants shall not, by itself, exclude the defendants" duty but may be taken as evidence that he was not in the circumstances negligent in parting with the thing in its dangerous state. I hold that the builders liability is not excluded by the fact that the defects could have been discovered by the plaintiff if he had the house professionally surveyed before he bought it.

6 Having considered the evidence on both sides I find that the builder of this house was careless in regard to certain matters in its construction and that in consequence the roof is defective, the internal plastering is defective, the porch roof is leaking and the cavity in the external walls is not of the proper width which is a minimum of two inches. I am not satisfied that the plaintiff has established that the sittingroom window lintel is inadequate for the span or that the flashing of the chimney is defective.

7 I am satisfied that the defect in the cavity has not caused any problems to date with damp penetration and is unlikely to do so in the future. The effect of the cavity not being of adequate width is that the house is not as well insulated as it ought to be but this does not threaten the health or safety of the occupiers. In my view the width of the cavity can be regarded only as a defect in the quality of the house.

8 The trouble with the porch roof is due to an inadequate flashing which did not cause trouble until after the plaintiff had bought the house. It is now causing dampness in the sittingroom and this will spread in the course of time if not remedied and will cause physical deterioration in the fabric of the house. It is not, in my view, a defect which can be a cause of danger to health or safety.

9 There is no evidence that the internal plastering is dangerous to health or safety except in one place, that is, on the linte-1 over the arch between the dining room and the sitting room. If the loose plaster...