Leo Larkin and Others v Iqbal Joosub and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 23 February 2006
• Neutral Citation: [2006] IEHC 51
• Court: High Court
• Docket Number: [2003 No. 5972 P
• Date: 23 February 2006

[2006] IEHC 51

THE HIGH COURT

No. 5972 P/2003

LARKIN & ORS v JOOSUB & ORS

BETWEEN/

LEO LARKIN, TRAVELOWEN LIMITED (IN VOLUNTARY LIQUIDATION) AND MARGARET LARKIN

PLAINTIFFS

AND

IQBAL JOOSUB AND DUBLIN CITY COUNCIL AND BY ORDER CIARAN CALLAN

DEFENDANTS

RYLANDS v FLETCHER 1868 LR 3 HL 330

DERELICT SITES ACT 1990

RSC O.50 r4

SHELLY-MORRIS v BUS ATHA CLIATH 2003 1 IR 232

VICTOR WESTON (ÉIRE) LTD v KENNY 1954 IR 191

GLENCAR EXPLORATIONS PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84 2002 1 ILRM 481

LYNCH v BEALE UNREP HIGH COURT HAMILTON 23.11.1974

CIVIL LIABILITY ACT 1961 S11(1)

CIVIL LIABILITY ACT 1961 S11(2)(c)

SEDLEIGH-DENFILED v O'CALLAGHAN 1940 AC 880 1940 AER 349

CUNARD v ANTIFYRE 1933 1 KB 551 1933 103 LJKB 321

CIVIL LIABILITY ACT 1961 S34(2)(b)

VESEY v BUS EIREANN 2001 4 IR 192

CIVIL LIABILITY ACT 1961 S14

CIVIL LIABILITY ACT 1961 S21(2)

PATTERSON v MURPHY 1978 ILRM 85

CARROLL v CLARE CO COUNCIL 1975 IR 221

CIVIL LIABILITY ACT 1961 S34

TORT

Negligence

Nuisance - Duty of care of owner of adjoining property - Duty of care of public body - Concurrent wrongdoers - Liability for continuance of nuisance - Contributory negligence - Duty to mitigate loss -Deliberate exaggeration of loss - Shelly-Morris v Bus Átha Cliath [2003] 1 IR 232and Vesey v Bus Éireann [2001] 4 IR 192distinguished - Contribution of defendants -Whether duty to prevent property becoming dangerous - Whether duty to inspect property- Victor Weston (Éire) Limited v Kenny [1954] IR 191 applied - Whether nature of duty of care of public body differed -Glencar Explorations plc v Mayo County Council (No 2) [2002] 1 IR 84 applied -Whether defendants responsible for same damage - Lynch v Beale (Unrep, Hamilton J,25/11/1974) followed - Whether water percolating from property constituted nuisance - Sedleigh-Denfield v O'Callaghan[1940] AC 880 approved - Whether failure to repair continuance of nuisance - Whether plaintiffs' duty to repair defendants' property- Whether duty to inform defendant of nuisance - Whether duty to carry out remedial works - Apportionment of liability -Patterson v Murphy [1978] ILRM 85 and Carroll v Clare County Council [1975] IR221 followed - Civil Liability Act 1961 (No41), ss 11, 14, 21 and 34(2)(b) - Derelict Sites Act (No 14) - Rules of the Superior Courts 1986 (SI 15/1986), O 50, r 4 -Damages awarded against all defendants and apportioned between them (2003/5972P -Finlay Geoghegan J - 23/2/2006) [2006] IEHC 51, [2006] 2 ILRM 279 Larkin v Joosub

Facts: A fire occurred in an adjoining terraced residence that resulted in a hole in a roof of one property, which caused damage to the adjoining residence. The plaintiffs instituted proceedings in negligence, nuisance and under the rule in Rylands v. Fletcher. The defendants alleged that the plaintiffs had failed to mitigate their loss.

Held by Finlay Geoghegan J. that the defendants were liable in negligence and nuisance for the damage to the premises resulting from their failure to abate the nuisance and for the damage cause by water ingress to the party wall and for failing to carry out regular inspections of their property. The defendants were concurrent wrongdoers pursuant to s. 11 of the Civil Liability Act 1961. A joint contribution was to be made of 50% from the first and their defendants and 50% from the second named defendant. Judgment in the sum of Eur530,000 was made against each defendant.

Reporter: E.F.

1 Judgment of Ms. Justice Finlay Geoghegan delivered 23rd February, 2006.

2 The plaintiffs are the owners of No. 17 Upper Leeson Street in the city of Dublin. It is held as an investment property and let in units. The first named defendant and his late uncle, Ismail Joosub, were the owners of No. 16 Upper Leeson Street until it was vested in the second named defendant, the Dublin City Council, on the 22nd September, 2000, following procedures taken by the City Council pursuant to the provisions of the Derelict Sites Act, 1990. The third named defendant is joined as representative of the estate of the late Mr. Ismail Joosub. In this judgment I will refer, as necessary, to the first named defendant and the interest represented by the third named defendant collectively as "The Joosub Defendants". Nos. 16 and 17 Upper Leeson Street are adjoining terraced houses. In August, 1998 a fire occurred in No. 16 Upper Leeson Street, which left what was initially a small hole in its roof. It is undisputed that the hole in the roof got bigger with time and was not repaired until February, 2001.

3 The plaintiffs" claim is for loss and damage which they suffered by reason of damage alleged to have occurred to No. 17 as a result of water falling through the hole in the roof of No. 16 and its percolation along and through the party wall between Nos. 16 and 17 with resultant damage to No. 17. The losses claimed are the costs of repair of the damage to No. 17 and loss of rent.

4 The plaintiffs" claim against the Joosub defendants and Dublin City Council was put forward on the following grounds:

5 (i) A claim in negligence against each defendant for the respective periods for which they were the owners of No. 16 Upper Leeson Street.

6 (ii) A claim in nuisance against each of the defendants for the respective period in which they were the owners and occupiers of No. 16.

7 (iii) A claim pursuant to the rule in Rylands v. Fletcher against each of the defendants for the same respective periods.

8 (iv) A claim against the City Council for negligence and breach of duty in the exercise of its statutory powers and duties under the Derelict Sites Act, 1990.

9 In the course of the hearing it became apparent that many of the issues relating to the quantum of damages depended on whether or not active dry rot was present in Nos. 16 and 17 Upper Leeson Street. Further, it appeared that there was substantial agreement that Dr. Brian Ridout was an appropriate expert to carry out an inspection on both properties and report. Accordingly, on the 12th July, 2005, the Court made orders pursuant to O. 50, r. 4 of the Rules of the Superior Courts for the entry of the persons named therein to Nos. 16 and 17 Upper Leeson Street and, for the carrying out of an inspection, the taking of samples and the furnishing of a written report to all the parties including recommendations as to the necessary treatment and works to be carried out to affected areas (if any). The Court also made on the same day orders that the plaintiffs, following Dr. Ridout's report, furnish details of the remedial works required having regard to the contents of the report and the cost of same and ordered a response from the defendants.

10 Following the provision of the report by Dr. Ridout and the further exchanges directed between the parties, the Court was informed that agreement had been reached, without admission of liability by the defendants, that the cost of the remedial works to No. 17 resulting from the penetration of water is €275,000 (inclusive of VAT) and that further agreement had been reached (again without admission of liability) that the loss of rental income of the plaintiffs for the periods (both past and future) during which the plaintiffs were or will be unable to let all or part of No. 17 Upper Leeson Street by reason of water percolation and repair works was agreed at €255,000.

11 The report of Dr. Ridout of August, 2005 and subsequent reports from the relevant architects, structural engineer, quantity surveyor and comments of a consultant timber technologist were handed in to court to form part of the evidence in the case by agreement of the parties. Having regard to the agreement reached on quantum, nothing turns on the detailed content of those reports and no oral evidence was called from the persons preparing same.

12 The parties each prepared outline closing submissions in writing and closing oral submissions were made in November, 2005 by counsel on behalf of all the parties. Whilst the defendants each deny liability for the losses claimed in the agreed amounts no submission was made that any defendant was not liable for any specified portion of the losses.

13 The plaintiffs, in opening the case and in their closing submissions, claimed damages also by reason of the alleged state of dereliction of No. 16 Upper Leeson Street as a consequence of which it became occupied by squatters and allegedly infested with rats. As the two heads of damages in respect of which the quantum has been agreed (without prejudice to the issue of liability) are agreed as the quantum caused by water penetration, it is unnecessary for the Court to consider this additional claim. There is no separate amount of damages claimed to have resulted from the alleged state of general dereliction of No. 16 Upper Leeson Street.

14 The defendants each contend that the plaintiffs failed to mitigate their loss.

15 The City Council also contends that, on the authority of the decision of the Supreme Court in Shelly-Morris v. Bus Átha Clíath [2003] 1 I.R. 232 and an alleged exaggeration by the plaintiffs of their claim and an alleged intention to deceive the court, to which I will refer in more detail below, that the plaintiffs are not entitled to recover damages from the defendants.

Claim in negligence against first and third defendants

16 The plaintiffs" claim in negligence against the first and third named defendants is that as owners of the adjoining property they owe a duty of care to the plaintiffs to take reasonable care of the premises of which they are owners so as to prevent it from becoming dangerous and a nuisance and causing damage to the property of the plaintiffs. The plaintiffs rely upon the judgment of Davitt P. in Victor Weston (Éire) Limited v. Kenny [1954] I.R. 191 in relation to the nature of the duty of care owed by...