Michael Ambrose v Patrick Shevlin

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 05 February 2015
• Neutral Citation: [2015] IESC 10
• Court: Supreme Court
• Docket Number: [Appeal No: 13/2010]
• Date: 05 February 2015

Ambrose v Shevlin

Between/

Michael Ambrose

Plaintiff/Respondent

And

Patrick Shevlin

Defendant/Appellant

[2015] IESC 10

O'Donnell J.

Clarke J.

Charleton J.

[Appeal No: 13/2010]

THE SUPREME COURT

Tort – Nuisance – Flooding – Award of damages – Application to amend notice of appeal

Facts: The appellant and the respondent were neighbours. On two occasions flooding occurred resulting in damage to the respondent”s property. An allegation of nuisance had been made against the appellant, and the High Court had found for the respondent. The appellant now sought to challenge the resulting award of damages, and also sought permission to amend his notice of appeal

Clarke J, the other Justices concurring, considered firstly the permission to amend point, and stated that there was a spectrum of case law detailing when a notice of appeal could be amended to introduce fresh points. Clarke J was satisfied the Court could not in this case make definitive rulings on matters which had not been placed before the High Court at first instance. In respect of the challenge on the damages awarded, it would not be fair to allow a challenge on the award when the appellant had already agreed the suitable level of damages without raising the points he now sought to. The appeal would therefore be dismissed.

Mr. Justice Clarke

Judgment delivered by Clarke J [Nem diss]

2 1.1 Almost 21 years ago, on the 25^th and 26^th February, 1994, two separate but connected flooding events occurred at Carrickmacross in County Monaghan. Damage, eventually agreed as being valued at €44,757.00 occurred to the property of the plaintiff/respondent ("Mr. Ambrose"). Mr. Ambrose alleged that the flooding, which caused that damage to his property, was as a result of a nuisance on the part of the defendant/appellant ("Mr. Shevlin"). In the High Court Dunne J. found for Mr. Ambrose and made an award of damages in the agreed sum. Mr. Shevlin appealed to this Court.

3 1.2 It must be recorded that it is unfortunate that a dispute between neighbours, which occurred over 20 years ago, has given rise to such a level of dispute and acrimony. However, the Court must attempt to determine this appeal on the facts and the law. That being said, it is important to note that, when written submissions were exchanged between the parties, amongst the points made in response on behalf of Mr. Ambrose was a contention that a number of the legal issues sought to be raised on behalf of Mr. Shevlin in his written submissions related to matters which were not included as grounds in the notice of appeal. In that context, a motion seeking to amend the notice of appeal by the addition of some further grounds was brought by Mr. Shevlin, and was heard by the Court at the same time as the substantive appeal. The first issue which the Court has to determine, therefore, is as to whether it is appropriate to allow Mr. Shevlin to amend his notice of appeal. However, to properly understand the questions which arise in that context, it is necessary also to say something about the background facts and the trial in the High Court.

2 2.1 Mr. Ambrose and Mr. Shevlin own neighbouring property near Carrickmacross. On Friday the 25^th February, 1994 there was heavy rain. By 7 o'clock that evening, Mr. Ambrose noticed that water levels around his home were rising. Mr. Ambrose went onto Mr. Shevlin's nearby property and noticed that a three-inch pipe under a farm pass was blocked. That farm pass or roadway had, it would appear, been constructed the previous year. Mr. Ambrose took the view that the farm pass was, in effect, acting as a dam, which in turn was causing the build-up of water on his own property. He tried to raise the matter with Mr. Shevlin but got no substantive response. At 9.20 p.m. that evening, Mr. Ambrose noticed that water was coming through the back door of his house. He ultimately obtained help from a Mr. Mark O'Callaghan, a local county council engineer, who arranged for the pass to be breached by a JCB. As soon as that happened, the water level subsided.

3 2.2 The next day was relatively dry, but it began raining the following evening. The trench which had been dug by the JCB and which led to the water subsiding the previous evening had been filled in, and the water levels rose again, flooding Mr. Ambrose's house.

4 2.3 It is also worth recording at this stage that the farm pass in question was constructed without planning permission. It would appear that, in the view of the relevant local authority, Monaghan County Council, planning permission was required, for that council served an Enforcement Notice on Mr. Shevlin on the basis of a contention that the construction of the farm pass amounted to unauthorised development. It was also said by Mr. Ambrose that the construction of the farm pass was defective in that it provided inadequate means of allowing water to pass under it (the pipe, of which mention has been made, was said to have been far too small, and no other means of water passage was said to have been included).

2 3.1 A number of features of the way in which the trial was approached in the High Court are, in my view, highly material to the issues which now fall for this Court to decide. First, it is necessary to recall that damages were agreed. Mr. Ambrose had claimed more than the sum ultimately agreed. However, prior to the commencement of the proceedings, the parties agreed on the quantum of damages without, of course, agreeing that there was any liability on the part of Mr. Shevlin to pay those damages. As counsel for Mr. Ambrose said during this appeal, it can frequently be the case that a judgement call has to be made by parties to litigation on whether it is worth fighting over the detail of damages in circumstances where that course of action is likely to significantly lengthen a trial, and thus expose the parties to much greater costs. However, of particular importance to one of the issues on this appeal, to which it will be necessary to return, it is necessary to note that no attempt was made by the parties, either in the agreement on quantum reached or in the evidence tendered before the High Court, in any way to distinguish between damage which might have been caused respectively by the flooding which occurred on the Friday night and that which resulted from the second bout of flooding on the Saturday.

3 3.2 Next, it is important to note that the defence raised by Mr. Shevlin before the High Court was based entirely on a denial by him of some of the central facts asserted by Mr. Ambrose. In particular, it was denied that the existence of the farm pass had actually caused the flooding to Mr. Ambrose's property. In addition, it was denied that Mr. Shevlin had been responsible for the filling of the breach between Friday night and Saturday night. No serious legal issues appear to have been raised. Indeed, as the trial judge noted at p. 6 of her judgment "the central issue … is whether the flooding to the Ambrose home is attributable to the farm pass on the Shevlin land". Having reviewed that evidence, the trial judge came to the following conclusion, at p.11:-

"I am satisfied that construction works took place on the farm pass in 1993. I am also satisfied that the result of that work was to raise the level of the farm pass with the result that on that weekend in February 1994, it acted like a dam, impeding the natural flow of the overflow from the stream and causing the flooding of the house."

4 3.3 The only mention of a legal issue in the judgment is to be found on p. 12, where Dunne J. notes that the question of foreseeability was raised. The trial judge took the view that the damage had been caused by the existence of the farm pass and the way in which it had been constructed. However, she took the view that the adverse consequences for Mr. Ambrose which resulted from the construction of the farm pass were not foreseeable in respect of the events which occurred on the Friday night. However, in the light of those events, the trial judge held that it was foreseeable that, were the breach which had been made by Mr. O'Callaghan on the Friday night to be filled in, the consequence of further heavy rains would be to cause renewed flooding. The trial judge found as a fact that Mr. Shevlin had, despite his denials, filled in the breach some time on the Saturday. She further held that he did so without taking any appropriate steps to put in drainpipes or other measures which would have allowed floodwater to dissipate. On that basis, Mr. Shevlin was found liable in respect of the Saturday night flooding but not in respect of the Friday.

5 3.4 Having noted the agreement of the parties on the quantum of damages, the trial judge indicated that it was not possible for her to make any distinction between the damage which had been caused on each respective occasion and, therefore, gave a decree in the agreed sum. Against that background, it is next necessary to turn to the appeal as originally brought.

2 4.1 The original appeal sought either a reversal of the trial judge's finding against Mr. Shevlin or, alternatively, a retrial on the question of the extent to which any additional damage was caused by the flooding on the Saturday night over and above that which had already been caused on the Friday night. That latter point arose in the context of the trial judge's finding that Mr. Shevlin was only liable in respect of the Saturday night flooding.

3 4.2 That issue is before the Court, and it will be necessary to turn to it in due course. In substance, the case made by Mr. Shevlin is that, in circumstances where he can, as a consequence of the trial judge's findings, only be liable for damages arising from the Saturday night flooding, it is necessary to distinguish between the damage caused by the two respective...