Ennis v Child and Family Agency

JudgeIrvine JJ.,Peart
Judgment Date18 May 2015
Neutral Citation[2015] IECA 105
CourtCourt of Appeal (Ireland)
Docket NumberNo. 15COA/2014
Date18 May 2015

[2015] IECA 105


Kelly J.

Peart J.

Irvine J.

No. 15COA/2014

Teresa Ennis
The Child and Family Agency


Jarlath Egan

Damages – Liability – Criminal damage – Damage caused to neighbouring house by deliberate fire – Whether Appellant liable for actions of others

Facts: The appellant agency (as successor to the HSE) had been found liable for damages in respect of criminal damage caused to the respondent”s house. The house had been damaged by a fire set in a neighbouring property, by a resident of the HSE”s nearby care facility (Ms A) and two others. The resident had recently moved into the neighbouring property as part of her care plan but had been asked to leave. The appellant now sought to challenge the finding of liability.

Held by Mr Justice Kelly that notwithstanding his sympathy for the respondent, the finding of liability would be set aside. The facts in the case demonstrated that the fire was set by persons who were not under the care of the HSE. The HSE had taken every appropriate action in terms of the care of Ms A, and the setting of the fire was not so reasonably foreseeable that it was appropriate to find the HSE liable. Glencar Exploration plc v Mayo County Council (No 2.) [2001] 1 I.R. 84 considered.

Mr. Justice Kelly

In the small hours of the morning of Saturday the 1st October, 2005, three persons were unlawfully in No. 10 Percy Cottages, Magazine Road, Athlone, Co. Westmeath. They were (to use the nomenclature applied in the High Court) Mr. C, Mr. D and Ms. A. Entry to the premises was made by breaking a window at the back of the house. That was done by Mr. C and Mr. D.


At about 4.30 am on that day Mr. C and Mr. D went upstairs in No. 10, piled up mattresses in one room and set them alight. The fire that ensued caused major damage to No. 10 but also damaged the neighbouring house at No. 11.


The plaintiff is the owner of No. 11. She brought proceedings against the Health Service Executive (HSE) (to which the Child and Family Agency (CFA) is successor) and Jarlath Egan, (Mr. Egan). Mr Egan is the owner of No. 10 Percy Cottages. In the High Court, Hogan J., held that there was no basis on which a claim could be made out against Mr. Egan and, presumably, dismissed the case against him, although that fact is not recorded in the formal order made on the 23rd October, 2014 and perfected on the 3rd November, 2014. No appeal has been taken against that determination by the High Court.


The judge did however find in favour of the plaintiff against the CFA and awarded damages of €75,414 against it. It is against that order that this appeal is brought.


In order to understand how the CFA was found liable to the plaintiff in respect of the criminal wrongdoing of individuals who were not its servants or agents and over which it


Ms. A was born on the 13th August, 1987. She had the misfortune to be born into a very dysfunctional family and was placed in care at two years of age.


In August 1998, she was committed to the care of the HSE by order of the District Court.


In August 2004, Ms. A began to reside in a HSE residence, known as Shannon Cottage which was situated at 6 Percy Cottages. The HSE personnel dealing with her were conscious of the approach of her eighteenth birthday in August 2005. She herself was anxious to live independently and the HSE thought that the prospect of her being able to stay in rented premises close to Shannon Cottage a desirable one.


A number of detailed reports were prepared by Ms. A's guardian ad litem in the last year of her minority. Those reports set out her many difficulties and described the various occasions on which she had absconded from care, often in unsuitable male company.


In December 2004, her guardian ad litem prepared a report for the High Court expressing concern in respect of plans for independent living on the part of Ms. A upon attaining her majority. The guardian thought that such a plan was ‘contra indicated by (Ms. A's) past history and will, I believe, lead to a personal crisis … it would be more likely that (Ms. A) would quickly revert to volatile substance abuse to manage her feelings of anxiety, any attempt to fast track independent living without her having received sustained therapeutic intervention and support will set her back’.


While those reservations were expressed by the guardian ad litem in December 2004, no such concerns were contained in the guardian's report of May 2005. So, it was decided to proceed with the endeavour to have Ms. A live independently. This was not done until she became an adult.


In the early part of 2005, Mr. Egan purchased No. 10. It was not in good condition.


Mr. Egan was a university student and he spent much of the summer renovating the house in order to prepare it for letting. At the end of July 2005, the work was completed and he placed an advertisement in a local newspaper advertising the premises for letting.


One of the social workers attached to Shannon Cottage saw the advertisement for the letting of No. 10 and viewed the premises. She was of opinion that it would a suitable residence for Ms. A. She arranged with Mr. Egan that Ms. A would take a letting of the premises.


The lease commenced on the 25th July, 2005. The monthly rent of €550 was to be paid by the HSE for the first two months and thereafter the costs were to be split between the HSE and Ms. A in the form of rent allowance. The lease arrangement was very informal and unwritten.


Ms. A attained her eighteenth year on the 13th August 2005. Shortly afterwards steps were taken to have her move into No. 10 on a phased basis. All of that was completed by the 2nd September, 2005.


In the middle of September 2005, Mr. Egan received complaints from neighbours about loud noise emanating from No. 10. He telephoned the HSE personnel in No. 6 and asked them to see to it that Ms. A would turn down the music. Some days later he was requested by the HSE to fix a light bulb in No. 10. On that occasion he found the premises in an untidy condition and he went down to the HSE personnel in No. 6 and requested them to arrange for the property to be tidied.


At about the same time, Ms. C, the owner of No. 12 Percy Cottages complained to the gardaí and to the HSE about loud noise emanating from No. 10. She was visited by a representative of the HSE who told her that Ms. A would no longer be regarded as a suitable tenant in No. 10.


On the 24th September, 2005, there were reports of a break-in to No. 10. The HSE staff found the property ‘in acomplete mess’. In addition to items having been stolen the staff noted that ‘every chair in the kitchen was broken, clothes were thrown everywhere, food was on walls and lipstick was used to write abuse and nicknames’.


The HSE social workers spoke to Ms. A about her behaviour, her choice of friends and her attitude to alcohol and drug misuse. The social workers cleaned up the premises and arranged for Ms. A and her sister (who was also in care) to help them in the process. That night the HSE staff received a call from Ms. A to say that she wanted to leave No. 10 and move to a new flat elsewhere in Athlone. She feared that the youth responsible for the break-in on the 24th September would return.


On the 29th September, in mid-morning, a social worker attached to the HSE went to No. 10 to encourage Ms. A to get up out of bed. She did so, but not until 2.30 pm. She was taken to Shannon Cottage for lunch. After lunch she returned to No. 10 in order to tidy up the premises along with HSE personnel.


That evening a meeting took place with the landlord Mr. Egan at about 6.00 pm. Ms. A was present at that meeting.


Mr. Egan outlined complaints that he had received from other neighbours and referred to the break-in and the property that was damaged or stolen. He expressed the view that it wasbest that Ms. A leave the premises. She was ‘cheeky’ towards Mr. Egan when confronted with the damage done to his property.


Later Mr. Egan met two HSE social workers along with members of his family and the HSE personnel agreed that the condition of the property was unacceptable. They asked Mr. Egan to provide a bill in respect of the damage which had been done and agreed that Ms. A would leave the property immediately.


Meanwhile, Ms. A had been brought by staff to visit her sister at another HSE residence known as Retreat Lodge. Ms. A and a staff member returned that evening to No. 6 where she was provided with her dinner. A note taken on that occasion said that Ms. A‘was glad to be back in care and she felt that she was not ready or able to live alone’. However in the later evening Ms. A left No. 6 and was followed by staff. They tried to persuade her to return, but she refused. She was observed purchasing cans of lager from a shop. She finally returned to No. 6 and told staff she wanted to go out the following night with a named male. The staff explained to her that that person was a convicted rapist, but she paid no heed to their warnings and said that she thought he was ‘ok’.


The following day, Friday the 30th September, 2005, Ms. A and HSE's social workers met with Mr. Egan in No. 10 to assess the damage to his property. At that time the tenancy was terminated and the key was returned to Mr. Egan. The HSE staff and Ms. A returned to Retreat Lodge.


It is clear from the evidence given by Mr. Egan that the property had been vacated by Ms. A on the evening of the 30th September following his meeting at about 6.45 pm. The keys had been returned to him and Ms. A was no longer legitimately entitled to be on his premises. The HSE staff who gave evidence agreed that the property was vacated on the 30th September....

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