Moran v O'Donovan
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE FEENEY |
| Judgment Date | 27 March 2007 |
| Neutral Citation | [2007] IEHC 200 |
| Date | 27 March 2007 |
| Court | High Court |
| Docket Number | [1998 No. 9756 P] |
[2007] IEHC 200
THE HIGH COURT
Negligence-Breach of statutory duty - Exemption from civil liability - Interpretation of section - Plain meaning of words - Functions of the fire authority - S 36 Fire Services Act 1981
A fire occurred at the first defendant's property which was adjoined to the plaintiff's property. The fire was dealt with that morning but in the afternoon a fire occurred at the plaintiffs' premises which the plaintiffs' allege was caused by the failure of the local fire service to adequately examine or inspect the plaintiffs' premises after the fire at the first-named defendant's premises that morning and also a failure to inquire as to previous smoke escaping into the plaintiffs' premises. The issue was whether section 36 of the Fire Services Act 1981 provided the third-named defendant's with exemption from civil liability not only on the basis of breach of statutory duty but also negligence.
Held by Mr Justice Feeney that the third-named defendant is entitled to a correct statutory interpretation of section 36 of the 1981 Act. The plaintiff's action against the third named defendant is incapable of success by reason of the immunity in section 36 of the Fire Services Act 1981and dismissed the plaintiff's action.
Reporter: E.C.
MR. JUSTICE FEENEYDELIVERED ON 27 MARCH 2007
MR. JUSTICE FEENEY: This is the trial of a preliminary issue ordered by this court on the 27 November 2000. It was ordered that the following preliminary issue be tried, namely: "Is the plaintiff's claim against the third-named defendant, (that is Cork County Council), incapable of success by reason of Section 36 of the Fire Service Act 1981". A further order was made which was dependant upon the plaintiff's delivering a reply challenging the constitutionality of Section 36 of the Fire Services Act 1981. No such reply was served and therefore there is only one issue for determination by this court.
The facts which give rise to this preliminary issue are not in dispute and are agreed by the parties to this issue.
The plaintiffs carry on a drapery business at Main Street, Charleville in County Cork. They also reside in those premises. The first and second-named defendants, the O'Donovans, are the neighbours of the Morans.
Early on the morning of Sunday, 30 April 1995 at approximately 7:45 a.m. a fire developed in the O'Donovan property. The fire was located in the chimney of that property and the chimney was located in the dividing wall between the O'Donovan and the Moran properties.
The local fire service was called to the fire and attended at the fire. They put out the fire and proceeded on the basis that it had been completely extinguished.
Later on the same day at approximately 2:30 p.m. a fire commenced in the Moran property. The claim is that the fire spread from the O'Donovan property and that the original fire in that premises had not been fully or adequately extinguished or doused. It is also claimed that there was a failure on behalf of the local fire service to adequately examine or inspect the plaintiff's premises after extinguishing the fire in the O'Donovan premises, and that there was also a failure to advise the plaintiffs. It is also claimed that the local fire services were further negligent in failing to inquire of the plaintiffs as to the circumstances indicating a risk of the spread of fire to the plaintiff's premises, including a failure to inquire as to previous smoke escape into the Moran's premises from the O'Donovan premises.
The particulars of negligence alleged against the third-named defendant also include a claim of failure to cool down, inspect, or examine the party wall, and a failure to provide a watch on the plaintiff's side of the party wall.
As a result of the second fire the plaintiff's premises including the business and home were extensively damaged and considerable loss and damage and destruction was caused to the plaintiff's premises and the contents thereof including stock and goods. It isclaimed that the third-named defendants were negligent. There is no claim for breach of statutory duty.
The third-named defendant in its defence claim, at paragraph 10 thereof, that without prejudice to the rest of the defence, that reliance upon Section 36 of the Fire Services Act 1981 is sufficient to disentitle the plaintiff to succeed. The Section in question, that is Section 36 of the Fire Services Act 1981, states:
"No action or other proceeding shall lie or be maintainable against the Minister, or against the fire authority, or sanitary authority or any officer or servant of, or person engaged by, any such authority for the recovery of damages in respect of injury to persons or property alleged to have been caused or contributed to by the failure to comply with any functions conferred by this Act."
For the purpose of this application, but not so in the event of the third-named defendant losing the preliminary issue, it is conceded that there is a common law duty of care to the plaintiff and that the third-named defendant was negligent. Both parties to this application proceed on such basis. In other words, the preliminary issue is whether Section 36 of the Fire Services Act provides the third-named defendant with exemption from civil liability, not only from a claim based in breach of statutory duty but also from a claim where the gravamen of the claim is one of the alleged negligent exercise of the powers or other functions prescribed by the 1981 Act.
The third-named defendant claims that its fire service acted in pursuance of its statutory functions under the1981 Act and that the failures alleged against it are failures in the performance of its statutory functions and therefore the effect of Section 36 is to provide immunity from this claim.
The plaintiffs contend that their claim against the third-named defendant is a claim for negligence and is therefore not a claim of failure to comply with a statutory function, but rather a claim based on common law negligence in the performance of that statutory function. It is claimed that it follows that Section 36 does not provide immunity to the third-named defendant in respect of negligence in the discharge of its functions under the Act.
For this Court to decide the issue herein, it must determine the nature and extent of the immunity provided by Section 36, and also decide whether the claim in negligence admitted for the purpose of this application is based on the failure of the third defendant to comply with its functions under the Act.
This Court must first look to the meaning or statutory interpretation of Section 36.
The Supreme Court has identified the central rule of statutory interpretation in the case of Fuller & Others -v- The Minister for Agriculture Food and Another, judgment 16 March 2003 and, in particular, the judgment of McGuinness J. at page 12 where she first quoted from a judgment of Mr. Justice Blayney in the following terms:
"The well known passage in the judgment of Blayney J. in Howard -v- Commissioner of Public Works [1994] 1 IR101. 'The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention the lawgiver' [Per Lord Blackburn in Direct United States Cable Company -v- The Anglo American Telegraph Co (1877) 2 Appeal Case 394]."
Ms. Justice McGuinness then went on to refer to the dicta of Blayney J. in that judgment. On page 17 of her judgment she stated as follows:
"Blayney J. in the Howard -v- Public Works [1994] IR101 dealt further with the interpretation of statues citing Craies on Statute Law at page 153 of the report, the learned judge said: 'In asking the Court to construe Section 84 as relieving them from having to apply for planning permission, the Commissioners are asking the Court to speculate as to the intention of the legislature in enacting Section 84, something which no court may do. To cite again Craies on Statute Law at page 66:- 'a general proposition that it is a duty of the court to find out the intention of Parliament...cannot by any means be...
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