Mulholland & Anor -v- Murtagh, [2008] IEHC 165 (2008)

Docket Number:2002 1694 P
Party Name:Mulholland & Anor, Murtagh
Judge:McMahon J.
 
FREE EXCERPT

THE HIGH COURT 2002 No. 1694 P

BETWEEN

FINTAN MULHOLLAND AND MARGARET MULHOLLAND

PLAINTIFFS

AND

PETER MURTAGHDEFENDANT

Judgment of Mr. Justice Bryan McMahon dated the7th day of May 2008.

The plaintiffs are a married couple who reside and own property in Ravensdale, Dundalk, Co. Louth. The defendant is the resident and owner of property immediately adjacent to the plaintiffs. In or about February, 2000, oil leaked from the defendant's central heating tank and spread onto the plaintiffs' property where it contaminated the plaintiffs' domestic well. The defendant admits liability and the case before the Court is for the assessment of damages only. The plaintiffs claim damages under two headings:-

(a) General

(b) Special

I will consider the special damages first.

It is not contested by the defendant that some special damages are due to the plaintiffs for the damage suffered. The plaintiffs gave uncontroverted evidence that they first became aware of the effects of the spill when their daughter complained of an oily smell and unusual colour in the water in the bath in or about the 14th February, 2000. Not too much attention was paid to the daughter's complaint, however, since she was using some new bubble foam for the first time on that occasion. Shortly thereafter, however, another daughter, Nicola, complained of an unusual taste and some days later had to be removed from school with stomach problems which necessitated hospitalisation for some days. Nicola's complaint was the subject of separate legal proceedings which were settled out of court and because she was an infant at the time these were ruled by the Court. The plaintiffs also began to notice at this time, a strong kerosene odour when the central heating was operating. When Mr. Mulholland learned that his next door neighbour had an oil spill from his central heating tank, he set about assessing and addressing the problem in his home. It very soon became clear that the supply well on his property had been contaminated by the spill. He then consulted various people as to what he should do. He concluded that the existing well would have to be abandoned and a new well would have to be opened nearer to his house. The defendant concedes that this was necessary. Since they owned some five acres around the house, locating another well on his property was not a problem. After further consultation and advice, the plaintiffs decided that the entire water supply to the house, including the central heating system, had to be taken out and replaced with new pipes throughout the house. Needless to say, this was an expensive operation costing in the region of 56,000 in all, and it now forms a major part of the plaintiffs' claim.

The defendant resists this part of the claim saying that a less drastic solution was available, namely, to drain the entire water system in the house and flush it out, several times if necessary, with an appropriate degreasing detergent. The defendant claimed that this would have eliminated the odour problems and rendered the water safe for consumption. Such a procedure would be a fully effective solution and should have been the method adopted by the plaintiffs in addressing the problem. The cost of this alternative was calculated by the defendant as costing somewhere in the region of 22,000.

Before I address this issue, I will first outline the evidence of the plaintiffs as to the effect which the spill had on their domestic life after it occurred, as well as their immediate response to what they perceived was a very disturbing situation.

Margaret Mulholland, the second named plaintiff, gave evidence that they had the bungalow built in 1990 and were 10 years living in it when the events the subject of these proceedings took place. The couple had three daughters, they had their own well on the property and in January, 2000 the quality of the water was tested. The result indicated that the water quality was impeccable and no filter was required.

The plaintiffs first became aware of the problems with the water on Monday the 14th February, 2000, when the eldest daughter, then 16 years of age, claimed that there was a strange taste from the water. The plaintiffs did not pay much attention since they had recently tested the quality of the water. The next evening another daughter, took a bath and detected a smell. The following day Nicola was sent home from school complaining of headache and pains in her stomach. The doctor prescribed medication. It was then that Mrs. Mulholland became seriously concerned. On Friday of that week "unreal fumes" were detected when a bath was drawn once more. The cold water was checked and a greasy film could be detected on the surface. The family then stopped using the water.

As a new pump had been installed the previous month, Mr. Mulholland contacted the installer but was reassured that the oil could not have come from the pump. On the 21st February, Mr. Mulholland learned from his next door neighbour, Mr. Murtagh, that there had been a leak from his central heating tank and that his insurers were looking after the problem.

For the next couple of weeks the plaintiffs had to bring in all of their drinking and washing water in containers from outside. Cooking and washing became very difficult and the family had to go to relatives in the area whenever they required a shower or a bath.

There followed a period when the plaintiffs sought advice. They consulted an architect, a plumber and a consultant who was a specialist in the area of water contamination. Mrs. Mulholland wanted to be sure that in selecting a solution she could be fully secure that the matter was fully resolved and that any threat to the health and safety of the family was totally eliminated. There was a suggestion that the system should be flushed out, but Mrs. Mulholland did not think that this was sufficient and did not want to take any risks. The plaintiffs decided that the only way they could get peace of mind would be to replace all of the water piping in the house and the central heating piping as well. Mrs. Mulholland stated that she did not want to do this but felt that she was compelled to do so in the circumstances. The plaintiffs had replaced the radiators in the house in the previous year and were reluctant to undertake more disruption in the house. The only reason she opted for this drastic remedy was to ensure peace of mind.

The replacement work commenced and inevitably it involved a great deal of disruption. The concrete floors had to be dug up and the kitchen units had to be removed and stored. During this period the family sought alternative accommodation. Mrs. Mulholland went to great lengths to secure reasonable and convenient short term lettings but since short term leases were difficult to get they booked into the Ballymascanlon Hotel and remained there from the 29th February, 2000 to the 2nd April, 2000. The family shared two interconnecting bedrooms. Living in the hotel for this period was not easy as the children had to do their homework and participate in normal social activities at the same time. During this period Mrs. Mulholland continued to search for more suitable accommodation and eventually secured a part of a house where they stayed until the 16th June, 2000, when they returned home.

When it was put to her in cross-examination that the "flushing method" would have been sufficient to solve the problem, Mrs. Mulholland said that she wanted to be sure and said that when she enquired at that time, what would happen if the testing subsequent to the first flushing out exercise still indicated some oil residue, she was told that the exercise could be repeated several times. She said she had a child who had become sick and that the safest and...

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