O'Donnell v South Dublin County Council

JurisdictionIreland
CourtHigh Court
JudgeMiss Justice Laffoy
Judgment Date22 May 2007
Neutral Citation[2007] IEHC 204
Date22 May 2007

[2007] IEHC 204

THE HIGH COURT

RECORD NO. 2006/1904 P
O'DONNELL v SOUTH DUBLIN CO COUNCIL
BETWEEN/
MARY O'DONNELL (A minor suing by her mother and next friend BRIDGET O'DONNELL) PATRICK O'DONNELL (A minor suing by his mother and next friend BRIDGET O'DONNELL) BERNARD O'DONNELL (A person of unsound mind, suing by his mother and next friend BRIDGET O'DONNELL)
PLAINTIFFS

AND

SOUTH DUBLIN COUNTY COUNCIL
DEFENDANT

HOUSING ACT 1988 S15

HOUSING (TRAVELLER ACCOMMODATION) ACT 1998

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EQUAL STATUS ACT 2000

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

DISABILITY ACT 2005

HOUSING ACTS 1966 TO 1988

HOUSING ACT 1998

HOUSING ACT 1988 S 9

HOUSING ACT 1988 S 10

HOUSING ACT 1988 S 11

HOUSING ACT 1988 S 12

HOUSING ACT 1988 S 13

HOUSING ACT 1998 S6

HOUSING ACT 1998 S7

HOUSING ACT 1998 S8

HOUSING ACT 1998 S9

HOUSING ACT 1998 S10

HOUSING ACT 1998 S11

HOUSING ACT 1998 S12

HOUSING ACT 1998 S13

HOUSING ACT 1998 S14

HOUSING ACT 1998 S15

HOUSING ACT 1998 S16

HOUSING ACT 1998 S17

HOUSING ACT 1998 S24

LOCAL GOVERNMENT ACT 2001

HOUSING ACT 1988 S9(2)

HOUSING ACT 1988 S13(2)

HOUSING ACT 1998 S29

HOUSING ACT 1998 S30

HOUSING ACT 1988 S15(1)

HUMAN RIGHTS ACT 1998 S3(1)

R v A 2001 3 AER 1

HUMAN RIGHTS ACT 1998 S3 (UK)

HUMAN RIGHTS ACT 1998 S41(3)(c) (UK)

S (MINORS) (CARE ORDER: IMPLEMENTATION OF CARE PLAN), RE 2002 2 AC 291

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

POPLAR HOUSING & REGENERATION COMMUNITY ASSOCIATION LTV v DONOGHUE 2001 3 WLR 183

EAST DONEGAL CO-OP v AG 1970 IR 317

LOCAL GOVERNMENT ACT 2001 S138(4)

LOCAL GOVERNMENT ACT 2001 S138(5)

LOCAL GOVERNMENT ACT 2001 S138(1)

LOCAL GOVERNMENT ACT 2001 S138(2)

LOCAL GOVERNMENT ACT 2001 S138(3)

LOCAL GOVERNMENT ACT 2001 S24

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

CHAPMAN v UNITED KINGDOM 2001 33 EHRR 399

R (BERNARD) v ENFIELD LONDON BOROUGH COUNCIL 2003 LGR 423

BOTTA v ITALY 1998 26 EHRR 241

HUMAN RIGHTS ACT 1998 S8 (UK)

NATIONAL ASSISTANCE ACT 1948 S21 (UK)

ANUFRIJEVA v SOUTHWARK LONDON BOROUGH COUNCIL 2004 1 AER 833

DOHERTY v SOUTH DUBLIN CO COUNCIL & ORS UNREP CHARLETON 22.1.2007 2007 IEHC 4

MOLDOVAN & ORS v ROMANIA APP NOS 41138/98 & 64320/01

IRELAND v UNITED KINGDOM 1978 EHRR 2 25

BODE v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006 IEHC 341

SISOJEVA v LATVIA ECHR UNREP 16.6.2005

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

CODONA v UNITED KINGDOM ECHR UNREP 7.2.2006

O'BRIEN & ORS v WICKLOW URBAN DISTRICT COUNCIL & WICKLOW CO COUNCIL UNREP COSTELLO (EX TEMPORE) 10.6.1994 200/13/4988

CONSTITUTION ART 40.3.1

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001 5 1050

CONSTITUTION ART 40

Abstract:

Statutory duties of the defendant - Whether plaintiff's constitutional rights infringed - Activity or inactivity on the part of the defendant - Whether failure by the defendant to perform its functions - Whether proceedings are estopped due to abuse of process - European Convention on Human Rights Act 2003 - Housing Acts - Equal Status Act, 2000.

The plaintiffs suffer from Hurler's syndrome which causes the body's inability to develop resulting in physical complications. Each of the plaintiffs had surgery performed on their hips, knees and hands. The relief sought was an order requiring the defendant to provide accommodation deemed suitable to the third named defendants' needs including a wheelchair-accessible caravan with indoor wheelchair accessible shower and toilet, adequate sanitary facilities and central heating. A mobile home was installed to accommodate the third-named plaintiff as a wheelchair user.

Held by Miss Justice Laffoy, that the plaintiffs did not establish an entitlement to a declaration that the defendant acted in breach of any of its duties under the Housing Acts. The court was not satisfied that the plaintiffs made out a case for a breach of section 3 of the Human Rights Act 2003. The plaintiffs have made no case that there was different treatment under a Convention right nor has any question as to discrimination been made out. The court did not find there was any breach of constitutional rights. The court found there was a breach of article 8 o f the Convention and the only evidence adduced which would go towards the cost of the mobile home required is €58,000. The matter was adjourned to allow parties to consider how to proceed inn light of the judgment.

Reporter:E.C

1

Judgment of Miss Justice Laffoy delivered on 22nd May, 2007 .

Factual background
2

The plaintiffs are siblings. They are members of a traveller family and they reside with their parents Bridget O'Donnell (Mrs. O'Donnell) and Simon O'Donnell (Mr. O'Donnell) and other members of their family in a mobile home at Lynch's Lane temporary halting site in Clondalkin, County Dublin. The facilities at Lynch's Lane are provided by the defendant, which is the housing authority for the area in which it is located.

3

The three plaintiffs suffer from a condition known as Hurler's syndrome, sometimes called gargoylism. The condition is caused by the body's inability to produce specific enzymes and leads to severe abnormalities in development resulting in orthopaedic complications with pain and immobility, obstructive airways disease with repeated respiratory infections, cardiac complications, visual impairment, loss of hearing and learning disability. Each of the plaintiffs has had a bone marrow transplant, aimed at halting the disease process and prolonging life. Each has had corrective surgery for joint contractures and other skeletal deformities. Functional performance across the range of personal activities of daily living is limited in each case.

4

The first plaintiff (Mary) has just turned eighteen years of age, although she was a minor when the proceedings were commenced and at the date of the hearing. She attends St. Michael's School in Chapelizod. She has had corrective surgery to her hips and knees. She has carpal tunnel syndrome in her right hand and poor manual dexterity bilaterally. Her vision is poor and she is awaiting a cornea transplant in both eyes. Her hearing is very bad and she underwent an operation some time prior to the hearing. She has a learning disability and her speech is unclear. On examination by Mary Patterson, occupational therapist, in January, 2006, Mary was found to be mobile without a walking aid. However, she had difficulty ascending and descending steps. Mary and her mother reported poor walking time and distance with frequent falls. Her knees and ankles were prone to swelling and were painful and she was constantly fatigued. She was found to have a limited range of movement in her upper limbs. As a result, she needs help in washing and drying and combing her hair and in dressing. She needs assistance in showering and needs to sit in the shower. She also suffers from nocturea.

5

The second plaintiff (Patrick) is fourteen years of age. He also attends St. Michael's School. He has undergone surgery to his knees, hips and wrists. He had a cornea transplant at the end of 2006 and at the date of the hearing was awaiting another. His hearing is very bad and he has a hearing aid in each ear. Ms. Patterson found that he was fully mobile without an aid, but he had a history of falls. Mrs. O'Donnell reported to the physiotherapist that he complained constantly of pain in his knees and that, following a period of inactivity, he had difficulty in moving from sit to stand because of stiffness and pain in the joints of his lower limbs. At the hearing, Mrs. O'Donnell testified that he can still walk without help, but that she is worried about the future. Patrick needs help putting on his socks and shoes because he is unable to bend and stoop. He is unable to reach over his head due to reduced range of movement at his shoulders. He needs assistance in washing his hair and showering. His manual dexterity and grip is reduced and he is unable to flex his fingers fully to form fists.

6

The third plaintiff (Bernard) is of full age. He is now over twenty-one. He has had surgery to his hips, knees and hands. He has pronounced kypho-scoliosis, which causes persistent back pain. He has severe learning disability and his speech is indistinct. He has not been made a ward of court. His mother brings these proceedings as his next friend. He had a cornea transplant at the end of 2006 and at the time of the hearing was awaiting another. His hearing is poor. Mrs. O'Donnell testified that he is on antibiotic medication for life. Ms. Patterson found Bernard's mobility to be limited. She found that he was poorly mobile in or around his home with a walking frame or pushing a wheelchair. He used the wheelchair for longer distances. He requires contact assistance from one person in order to negotiate a single step. Ms. Patterson found that within his home he became breathless on walking a short distance. Bernard requires help in dressing. He has reduced power and range of movement in his shoulders and has difficulty in bending and stooping. His father assists him to shower. Bernard attends Stewart's Hospital Training Centre.

7

In 2002 Bernard, suing by his next friend, Mrs. O'Donnell, brought proceedings against the defendant in this Court (Record No. 2002/3138P) in which he sought relief largely in the same terms as the relief sought in these proceedings, including an...

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