Murphy v Hurly

• Jurisdiction: Ireland
• Judgment Date: 24 November 1921
• Date: 24 November 1921
• Docket Number: (1919. Nos. 6045, 6046, 6047, 6107, 6108, 6109.)
• Court: Court of Appeal (Ireland)

K. B. Div.

Appeal.

(1919. Nos. 6045, 6046, 6047, 6107, 6108, 6109.)

Murphy v. Hurley.

MURPHY and Others

and

HURLEY (1)

Landlord and tenant - Sea wall - Landlord liable to repair wall - Negligence -

Flooding - Notice to repair.

Motion on behalf of defendant for an order that the findings and judgments of the Judge at the trial be set aside, and that judgment be entered for the defendant, or, in the alternative, for a new trial.

Six actions brought for the recovery of damages for injuries to the six plaintiffs' lands by reason, as alleged, of the defendant's breach of agreements to repair a sea wall, near Fenit, in the County of Kerry, were by order of the King's Bench Division dated 18th day of December, 1919, tried together at the Kerry Spring Assizes, 1920.

The plaintiffs are tenants to the defendant of holdings adjoining the sea. The wall in question was built by the landlord in the year 1899-1900. Since that time he has repaired or purported to repair it. His obligation to repair it was admitted at the trial, and is expressly set forth in various fair rent orders and schedules given in evidence, the terms being that the rent has been fixed"on the basis that it is a condition of the tenancy that the landlord keeps in repair as heretofore the sea wall on the western side of the townland, from A to B on the map recorded." In the order fixing the fair rent of one of the holdings of John Murphy, junior, the words "as heretofore" do not appear.

The report of the Judge of Assize, who tried the actions without a jury (O'Connor L.J.), sets out that "on the 23rd September, 1918, and following days there was a high tide, and, as I concluded, a fairly rough sea, and the wall gave way in several places, so that the plaintiffs' holdings were flooded . . . Mr. Conner K.C., while admitting the liability to repair, contended that it was to be measured according to the nature and quality of the wall, and that therefore if the breaches in the wall were occasioned by the original faulty construction as distinguished from a failure to keep it in repair, his client would be under no liability. This was the sole question as to construction raised by the defendant's counsel, and I stated in the clearest fashion that I agreed with it. . . . I came to the conclusion that the breaches were mainly caused by the non-repair . . . I was of opinion on the facts that the landlord had purported all through to effect reasonable repairs of the wall according to its nature and quality; that the circumstance that the repairs were not properly done was unknown to the plaintiffs, unless in so far as same was disclosed by occasional breaches in the wall; that contracts were based on such purported repair by him, and that accordingly the measure of his obligation was to be read, as argued on defendant's behalf, reasonable repair according to the nature and quality of the wall." . . . The wall is four feet wide at the base; it is about five feet high; it tapers from the base to the summit, where there is a concrete coping eighteen inches wide. The wall was built by means of a Board of Works loan, and the specification was put in evidence and proved by Mr. Hickson, engineer, according to whose plan it was built, and who supervised its erection. The fabric of the wall is thus described in the specification: "Wall to be dry stone masonry, built to a batter from the inside of one in four, with large stones set on their quarry beds, and where necessary bedded in the foundations in concrete, all joints to be carefully hammers-palled."The hammer-spalling was described to me by Mr. Hickson: it consists of small stones hammered between the interstices of the large stones, and pointed with cement. The object, of course, is to make the wall into a solid and practically watertight block, the weight of which would resist the tide and sea. It was obvious, as I thought, that the job, while it would be effective as long as the hammar-spalling remained perfect, or nearly so, required great care, attention, and expense; for if the hammer-spalling were allowed to go adrift, the larger stones forming the wall would be loosened, the soft core of the wall would be disintegrated, and a breach would in course of time become inevitable. Mr. Hickson thought that one year with another £50, or £60, annually would have to be spent on the wall for the purpose; it was proved by the defendant's agent, Mr. Benner, that the yearly expenditure was in fact very small. I came to the conclusion that the hammer-spalling had not been properly looked to; that the wall was, so to speak, starved; that it was getting worse every year, till 1914, when the breaches required a large expenditure; that by reason of this neglect the wall had now got into a bad condition, and that this neglect and not the original nature of the work was the main cause of the flooding. It was suggested that the breaches were caused wholly or in part by the alleged lack of proper foundation for the wall. I did not come to that conclusion. I drew the inference that if the wall always had continued to be what it was originally— a practically solid block—it would have stood the wind and weather. But, as Mr. Redmond Roche, one of the witnesses for the plaintiffs, thought that two of the breaches had occurred owing to the lack of proper foundation, I acted on his testimony and reduced the damages I would otherwise have given accordingly. I also reduced the damages I would otherwise have given, by allowing something for possible flooding that may have occurred on the occasion complained of from the south-east, where the wall ends. Certain decrees against defendant were given in evidence to show that he had previously allowed the wall to fall into disrepair; and I think it was urged that they formed some sort of an estoppel. I disregarded them entirely, however, in coming to my conclusion of the fact. I gave judgment to the several plaintiffs as follows:—John Murphy, jun., £100; Robert Parker, £15; Thomas McCarthy, £15; Timothy Moynihan, £25; John P. Murphy, £15; James O'Sullivan, £15."

The defendant appealed to the Court of Appeal (1).

The plaintiffs in these actions, which, by an order of the King's Bench Division, were tried together, were judicial tenants to the defendant of holdings situated on a peninsula on the sea coast of Kerry, portion of which was bounded and protected by a sea wall erected by the defendant in the year 1900. When the plaintiff's rents were revised for a new statutory term, the order of the Chief Commissioner in the case of each tenant was made "on the basis that the landlord keeps in repair as heretofore the sea wall on the western side of the townland from A to B on the map recorded," i.e., the sea wall originally erected by the defendant. During the month of September, 1918, the sea wall was damaged by high tides, which flooded the plaintiffs' holdings; and these actions were brought to recover damages in respect of such floodings. No notice of any want of repair of the sea wall had been given by any of the plaintiffs to either the defendant, who resided in London, or to a local employee of the defendant, whose duty it was to look after the sea wall, and who gave evidence at the trial that on the day before the damage was caused the sea wall was in good repair.

Held, by the majority of the Court of Appeal (Sir J. Campbell C., and Molony C.J., O'Connor M.R. dissenting), reversing the decision of the King's Bench Division, that, in the absence of notice to the defendant of the want of repair complained of by the plaintiffs, the actions were unsustainable.

Gibson J. :—

These consolidated actions, tried at last Tralee Assizes by Lord Justice O'Connor without a jury, relate to flooding of the several plaintiffs' holdings, alleged to have been caused by the defendant's breach of a term in the judicial tenancy orders imposing on the defendant all obligation to keep in repair a certain sea wall for a length of some three-quarters of a mile "as heretofore." There had been previously a loose stone wall which had been washed away, and the wall referred to in the Land Commission orders was built during the currency of prior fair rent orders by the defendant in 1899-1900 out of borrowed money. The exact site of the old wall and of the new wall, whether inside or outside the ambit of the holdings, was not proved, nor is there any evidence that the landlord was under any contractual or other obligation to erect or maintain either wall. The new wall ended at Slattery's adjoining holding, which was on lower ground; it was obviously designed as a protection against the sea, and notwithstanding its defective construction and the possible means of access of salt water from Slattery's side, through the boreens and otherwise, the wall fairly served its purpose for many years up to 1914. Serjeant Sullivan, for the defendant, contends: 1. That the defendant was not legally responsible in respect of any insufficiency in the original construction (which the plaintiffs' counsel admitted), and that there is no evidence of any failure to keep in repair the imperfect wall such as it was. 2. That no action was maintainable unless the tenants gave notice requiring the landlord to repair. 3. That the flooding was caused by water pouring in from Slattery's side and otherwise; that the breaches in the wall could not have added to the flooding in such a way as to enhance the plaintiffs' damage, or at least that such enhancement is speculative, and does not admit of any calculation or reasonable estimate.

The fabric, not quite what was described in the specification as reported by the Judge, was based in part on sand, and from the method of construction was of uncertain life, and obviously would require constant attention and frequent repair. No obligation to erect, maintain, or repair a sea wall is proved to have existed in the original contract of tenancy, but the duty of repairing the...