Presho v Doohan

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 17 July 2009
• Neutral Citation: [2009] IEHC 619
• Date: 17 July 2009
• Court: High Court
• Docket Number: [2006 No. 4 P]

[2009] IEHC 619

THE HIGH COURT

[No. 4 P/2006]

Presho v Doohan & Óstan Thoraigh Comhlacht Teoranta

BETWEEN/

NEVILLE PRESHO

PLAINTIFF

AND

PATRICK DOOHAN AND ÓSTAN THORAIGH COMHLACHT TEORANTA

DEFENDANTS

KEANE THE MODERN LAW OF EVIDENCE 7ED 2008 11-19

DPP v NEVIN 2003 3 IR 321 2003/19/4217

HANRAHAN v MERCK SHARP & DOHME (IRL) LTD 1988 ILRM 629 1988/5/1234

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 1990 143

NEGLIGENCE

Res ipsa loquitur

Burden of proof - Circumstantial evidence - Cumulative weight of circumstantial evidence - Reasonable inferences - Destruction and demolition of plaintiff's house in unexplained circumstances - Whether combination of circumstances when taken together create conclusion of guilt - Whether court is entitled to infer that defendants' JCB caused injury - Motivation, capacity and opportunity of defendants - Trespass - Interference - Damages - People (DPP) v Nevin (Unrep, CCA, 14/3/2003) and Hanrahan v Merck Sharp & Dohme [1988] ILRM 629 approved - Damages awarded to open market value of comparable dwelling (2006/4P - Murphy J - 17/7/2009) [2009] IEHC 619

Presho v Doohan & Anor

Facts the plaintiff???s house had been damaged by fire in unexplained circumstances and had been subsequently altered and, ultimately, removed. The plaintiff alleged that the defendant had been responsible for the ultimate destruction of this house, in circumstances where he wished to and, ultimately did, build a hotel in close proximity thereto. He sought damages and/or reinstatement of the house.

Held by Murphy J in holding that the equitable remedy lay not in reinstatement but in the provision of a comparable dwelling on the island that, on the balance of probabilities, the cause of the fire was malicious. In assessing the evidence, the Court had to identify the circumstantial evidence of motive, capacity and opportunity, which depended on reasonable inferences. The Court was entitled to infer that and was satisfied that it was probable that the defendant was the only person who caused the injury to the plaintiff???s house given that the defendant had benefited from the demolition of the house and that there had been no evidence of lack of motive on his part. The plaintiff was therefore entitled to damages for trespass and interference.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Roderick Murphy on substantive issue delivered the 17th July, 2009.

1. Preliminary issue determined

2 On 3 ^rd April, 2009, the court ruled in favour of the plaintiff on a preliminary issue. The pleadings and complex facts of the case are referred to in that decision. The issue was whether, in the circumstance of the plaintiff's bi-polar disorder, the defendants could rely on the Statute of Limitations and delay. Further hearings were held in relation to damages and unjust enrichment including the final hearing on 13 ^th July, 2009.

2. Substantive claim

3 The plaintiff's house was damaged by fire in unexplained circumstances prior to 8.00 am on the morning of 14 ^th January, 1993. The court also accepts that the physical structure was significantly altered between 14 ^th January, 1993 and the visit of a County Council Engineer on 7 ^th October, 1993, nine months later. It would appear that the remaining structure was removed off the site by the date of the opening of the second named defendant's hotel on 11 ^th May, 1994 at which time the plaintiff's site was levelled and the septic tank destroyed or covered over. Certainly when Mr. and Mrs. Presho returned two months after the hotel had opened, on 5 ^th July 1994, there was no trace of the house.

4 Mr. Presho had been sent a photo from the County Council of the damaged house on 29 ^th April, 1994. It was unclear when the photo was taken.

5 It was alleged that an offer had been made by Mr. O'Neachtain, the manager of the co-operative for the purchase of the plaintiff's property in 1992 before the hotel site was brought on 10 ^th June, 1993 for £1,000. The plaintiff submits that the only logical basis for that was that the manager was acting for the defendants. This was denied by the manager. No other evidence was adduced. In the circumstance the court is not in a position to determine whether an offer had or had not been made.

6 The court accepts the evidence that the property was a 19 ^th Century stone building of a strong and durable nature and that it had before 14 ^th January, 1993 lost part of its roof. The first named defendant's assertion that the property simply collapsed on 19 ^th January, 1994 whether by reason of the stormy conditions on or about that date or by reason of unnamed persons removing the stones lacks credibility. The evidence that he was the only person on the island with a JCB was not controverted. There was no evidence adduced to support the assertion that the building collapsed.

7 Photographic evidence of the size of part of the rubble being on the seashore is consistent with the use of a JCB to clear the site. The photographic evidence of the levelled site where the plaintiff's house once stood points to the use of levelling equipment rather than storm collapse and removal by unidentified persons of the remains of the house.

8 The septic tank serving the hotel appears to run across the path of the plaintiff's septic tank. The court accepts the evidence of the plaintiff and of Mr. Hyde, Architect, in this regard.

9 Mr. John McGinty, who had acted as a building contractor or subcontractor employed by the defendants in relation to the building of the hotel. He asserted that he had been asked by Mr. Doohan to demolish the plaintiff's house and offered £1,000 to do so. This was contradicted by Mr. Doohan in his evidence. Mr. McGinty refused to demolish the house, without, as he said, having written proof of ownership. The court cannot make a finding of fact in relation thereto.

10 The statement of claim pleaded that Mr. Doohan, the first named defendant and the principal of the second named company, placed his workmen in the plaintiff's house from 1992 to 1993. Mr. McGinty, who was a building contractor employed by the defendants to build Óstan Thoraigh, the hotel, says that he stayed in the plaintiff's house with the approval of the caretaker, Mary Meenan. Ms. Meenan did not give evidence. I accept the evidence of Mr. Presho that she had no authority to allow the defendants' contractors to occupy the premises. The court accepts that the defendants' contractor and the defendants benefited.

11 It was alleged that Mr. Doohan took sheeting off the roof and hindered repairs. One of Mr. McGinty's workmen gave specific evidence that the sheet came off in what he described as "a hurricane". The court accepts that there was no evidence that Mr. Doohan removed the sheeting. It was pleaded that Mr. Doohan stopped/hindered repairs. The court is not satisfied that this was so. The evidence given was that he assisted with repairs but that the replacement sheet was broken while being replaced by Mr. Doohan's JCB in weather conditions described as blowing "around like a parachute". The court accepts that Mr. Doohan helped weigh the roof down with sandbags and ropes in difficult conditions and did not hinder the attempted repair.

12 It was alleged that the fire was malicious and was allegedly caused by an electrical fault. Mr. McGinty had stored some combustibles in the house. Mr. McGinty believed but gave no reason for his belief that the fire was malicious other than that the fuses had been removed before the fire. The court, on the balance of probability, accepts that the fire was malicious and was exacerbated by the presence of combustibles.

13 No evidence was offered for the allegation that two persons acting as agents for the defendants had set the fire. The allegation was withdrawn against Mr. O'Neachtain in open court. Nobody gave evidence that the fire was started by the defendant or his agents. Mr. Doohan gave evidence to the contrary and said that he was not on the island at the time. I accept the evidence of the defendants.

14 It was suggested in the statement of claim that the gardaí did not investigate the fire and destruction of the house. The evidence given by Superintendent Eugene McGovern was that once Mr. McGinty complained on 15 ^th January, 1993, the Garda investigation was delayed by bad weather and was then inconclusive. When Mr. Presho complained over a year later in July 1994 a further investigation took place. No evidence was forthcoming to the Gardaí which would warrant a prosecution. The absence of statements from the many inhabitants regarding what should have been obvious to all, is significant. The delay in investigation is not adequately explained by adverse weather.

15 It was alleged that the building was subsequently demolished by degrees by the defendants. No evidence was given that anyone demolished the building. In particular there was no evidence that it was done by the defendants. The workmen gave evidence that they never saw the first named defendant taking any steps to demolish the house. It is common case that some years later in 2001, Mr. Doohan had accidentally reversed his JCB into the plaintiff's then roofless house when he cleared the roadway of rubble between the hotel and the plaintiff's house on behalf of the local authority.

16 It was accepted that the first named defendant proceeded through the normal legal channels with Donegal County Council to clear the rocks, stones and debris from Presho's house to make the road passable.

17 Mr. Doohan wrote to Mr. Presho in reply to the latter's request to remove two white stones from his house site which were there without his permission as follows:

"Dear Neville,

Further to our conversation in the clubhouse last night I regret that I didn't come across the copy fax from Donegal County Council, but I can...