Howard v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 31 July 1996
• Neutral Citation: 1996 WJSC-HC 3798
• Docket Number: [1989 No. 14577P],RECORD NO. 14577P/1989
• Court: High Court
• Date: 31 July 1996

1996 WJSC-HC 3798

THE HIGH COURT

RECORD NO. 14577P/1989

HOWARD v. DUBLIN CORPORATION

BETWEEN

EAMONN HOWARD ANNE HOWARD JONATHAN HOWARD (A MINOR SUINGTHROUGH HIS FATHER AND NEXT FRIEND EAMONN HOWARD)

PLAINTIFFS

AND

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OFDUBLIN

DEFENDANTS

Citations:

BURKE V DUBLIN CORPORATION 1991 1 IR 341

HOUSING ACT 1966 S39

WARD V MCMASTER 1988 IR 337 1989 ILRM 400

HOUSING ACT 1966 S40

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1979 S40

SINEY V DUBLIN CORPORATION 1980 IR 400

BURKE V DUBLIN CORPORATION 1990 1 IR 18

Synopsis:

NEGLIGENCE

Lender

Loan - Purpose - Equipment - Purchase - Defective heating system installed in dwelling by former tenant of housing authority - System purchased by plaintiff with money advanced by defendant authority - Failure to prove that defendants were negligent in lending money - Implied continual warranty concerning condition of house did not survive plaintiff's acquisition of ownership of house - (1989/14577 P - Lavan J. - 31/7/96) - [1996] 2 IR 235

|Howard v. Corporation of Dublin|

NEGLIGENCE

Local authority

Loan - Purpose - Equipment - Purchase - Defective heating system installed in dwelling by former tenant of housing authority - System purchased by plaintiff with money advanced by defendant authority - Failure to prove that defendants were negligent in lending money - Implied continual warranty concerning condition of house did not survive plaintiff's acquisition of ownership of house - (1989/14577 P - Lavan J. - 31/7/96) - [1996] 2 IR 235

|Howard v. Corporation of Dublin|

1 Judgment of Mr. Justice Lavandelivered the 31st day of July, 1996

2 The plaintiffs herein reside in Tallaght at a dwelling provided by the defendants in their capacity as housing authority. These proceedings relate to the circumstances surrounding the installation of a new heating unit known as the "conserva heater" in this residence of the plaintiffs. The installation of the conserva took place in or about the year 1979. Unfortunately for the plaintiffs the conserva proved to be most unsatisfactory in a number of respect - giving off smoke and smuts and giving rise to "blow backs". The saga of the installation of such conservas in local authority housing has been the subject of much litigation and has been considered in great detail by the Supreme Court in Burke (A Minor) v. Dublin Corporation [1991] 1 I.R. 341. The current proceedings initially came before me (on the 8th and 9th November, 1994) on the basis that the defendants herein had, as housing authority, installed the said heating unit in theplaintiffs" residence, and were framed in negligence, breach ofcontract and breach of statutory duty. However, it was agreed by the parties at that hearing that the court should first decide the followingquestion:

"Did the defendants their servants or agents or someone acting on their behalf install defective heating units in the plaintiffs"dwelling?"

3 I determined this preliminary issue in the negative, delivering judgment ex tempore on 10th November, 1994, holding as follows:

" accept that [the defendants" evidence and I accept the exhibits produced in court as establishing on the balance of probabilities that Mr. and Mrs. Howard made the application as purchasers and received the grant and loan which they caused to be paid to a Mr. Higgins, an independent building contractor."

4 Thus, this case is distinguishable from the facts of Burke (A Minor) v. Dublin Corporation [1991] 1 I.R. 341 in that the plaintiffs themselves were responsible for the actual installation of the defective heating system by an independent building contractor, albeit with the benefit of a loan from the defendants as housing authority. The instant case differs also in that the first and second named plaintiffs herein are tenant-purchasers by virtue of a transfer in or about January, 1976 from the defendants pursuant to the Housing Act, 1966 whereas in the Burke decision, certain of the plaintiffs were mere tenants, and such as were tenant-purchasers had obtained a transfer subsequent to the installation of the defective heatingsystem.

5 In view of the unfavourable outcome, from their viewpoint, on the preliminary issue, the plaintiffs now seek to found their case solely on negligence relying, in particular, on the Supreme Court decision in Ward v. McMaster [1989] I.L.R.M. 400.

Duty of care

6 The plaintiffs argue that a duty of care arises on the part of the defendants by virtue of their making a loan to the plaintiffs with respect to the installation of the defective conserva: the plaintiffs, it is further submitted, lacked the means and resources to carry out independent tests and the aid of a statutory loan was sufficient to lead them to believe that their investment wore a badge of quality.

7 The correctness or otherwise of this submission must be measured against the judgment in Ward v. McMaster. There, the defendant housing authority was held to owe a duty of care to a purchaser qualifying for a loan under section 39, Housing Act, 1966.

"The consequences to the plaintiffs of a failure on their part to value the house properly should have been anticipated by the Council in view of factors such as that, in order to qualify for the loan, the plaintiff had to show that he was unable to obtain the loan from a commercial...