Dempsey & Anor -v- Waterford Corporation, [2008] IEHC 55 (2008)

Docket Number:Circuit Court 998/03
Party Name:Dempsey & Anor, Waterford Corporation
Judge:Peart J.
 
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[2008] IEHC 55 THE HIGH COURT ON CIRCUIT

Record Number: 998/03

SOUTH EASTERN CIRCUIT COUNTY OF WATERFORD

BETWEEN:

Oliver Dempsey and Elizabeth Dempsey Plaintiffs/Respondents

And

Waterford Corporation Defendant/Appellant

Judgment of Mr Justice Michael Peart delivered on the 29th day of February 2008:

The plaintiffs are the owners of an old 17th century building at 1, Dyehouse Lane in the City of Waterford, which they purchased in about 1984 and which in more recent years they have renovated and restored and now use as their home. The first named plaintiff is an architect by profession.

The plaintiffs' living room has a parquet floor which was not laid until they were absolutely certain that there was no moisture in the surface on which that was to be laid since moisture can cause the floor timbers to swell and buckle.

On the 3rd March 2000, the plaintiffs' discovered without any warning that the entire parquet floor had buckled. The room had also a noxious smell. Investigations by the first named plaintiff showed him that there had been an inflow of water beneath the floor, and that it was sewage water which had somehow entered his premises underneath this floor area. He carried out his own investigations as did the defendant local authority after the problem was brought to their attention. Mr Chris O'Sullivan, an engineer in the employment of the defendant has stated that when the complaint was received the manholes on Dyehouse Street outside the plaintiffs' house were

inspected, and no problem was identified there. Following that inspection a test referred to as a dye test was carried out. That test involved running water containing a dye through the pipe in that street in order to see whether in due course any of the dyed water could be found to have entered the plaintiffs' living room area. None was found to have done so.

The plaintiffs' arranged to excavate their own floor in order to see if there was anything beneath which could have caused the ingress of water since the examination of the defendant's drain pipes on the street has revealed no problem which could be linked to the problem within the house. That excavation revealed that there was a very old 17th century drain or culvert beneath the room and which ran out in the direction of the street outside. That culvert or drain has been referred to in the evidence as a French drain. It is not a pipe as such but rather is made of old bricks. The defendant on being informed of the existence of this culvert beneath the plaintiffs' house carried out some excavations outside the house and discovered that this structure continued out of the house and into an equally old culvert under the pavement and which in turn ran down Dyehouse Street in the direction of Grattan Quay and the river. Further investigations revealed that this old culvert was completely blocked such that a very powerful jet used by the defendant in an attempt to clear it failed completely to do so.

Everybody is agreed that the water penetration beneath the plaintiffs' living room floor resulted from water entering the premises via this old culvert. The plaintiffs have lived in this house since 1984 and have never had such an incident before, although in evidence it was stated that there had been a previous similar complaint but it is quite clear that that complaint related to an entirely problem in a different area of the house and there is no suggestion that the two incidents are in any way linked.

Of central importance is the fact that around the time of this incident the defendant was carrying out or had recently carried out major sewage renewal works on Grattan Quay. It appears that due to population increase a programme of sewage drain upgrading was undertaken and this involved the re-laying of the main sewer along Grattan Quay, and the reconnection into that new main sewer of all branch pipes or tributaries which connect into that main sewer on Grattan Quay. One of those branch sewers was on Dyehouse Street. That branch sewer on Dyehouse Street was the drain in which the dye-test had been carried out and which revealed no seepage to the plaintiffs' house. It was clear that there was no defect in that pipework which could have caused the problem in the plaintiffs' house.

Mr O'Sullivan has stated that the defendant was never aware of the existence of this old French drain beneath the pavement and which in the past must have serviced the plaintiffs' house. It does not appear on any map or any of the defendant's records. He is of the view that there are probably a very large number of these old drains beneath the surface of the city which they are completely unaware of. However, since the investigations carried out showed that the water had entered the plaintiffs' house by way of this old culvert the defendant decided that in order to assist the plaintiffs it would simply divert it into the new sewer pipe which they had laid on Dyehouse Street, and the problem disappeared completely thereafter.

The defendant however does not accept that what happened to the plaintiffs was due to any negligence or fault on the defendant's part since it was completely unaware of the existence of this old pipework and could not have foreseen that it was there. The plaintiff on the other hand submits that it was incumbent on the defendant when reconnecting all the branch sewers and drains into the new main sewer on Grattan Quay to ensure that all branches were reconnected, including that which caused the problem to the plaintiffs. Mr Bernard Harte, an engineer called on the plaintiffs' behalf has given it as his opinion also that it was the duty of the defendant to ensure that all such branch drains were properly reconnected into the new main sewer.

Nobody is quite sure why following the work carried out...

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