O'Reilly v Neville

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] IEHC 554
• Docket Number: Record No. 2011/ 7987P
• Court: High Court
• Date: 31 July 2017

[2017] IEHC 554

THE HIGH COURT

Binchy J.

Record No. 2011/ 7987P

SHANE

AND

ANTOINETTE O'REILLY

PLAINTIFFS

AND

SEAMUS NEVILLE, LIAM NEVILLE, COLM NEVILLE, ANTHONY NEVILLE, BRENDAN NEVILLE,

and

WILLIAM NEVILLE

AND

SONS CONSTRUCTION trading as THE NEVILLE DEVELOPMENT PARTNERSHIP

DEFENDANTS

Contract – Quantum of damages – Negligence – Breach of duty-Defects in thehouse – Failure to maintain the property – Growth of mould in attic.

Facts: The plaintiffs sought damages from the defendants for breach of contract and negligence for defect in the maintenance of the dwelling house. The plaintiffs contended that defendants had failed to carry out the remedial work regarding ventilation, moulds and other maintenance work in the premises as promised. The plaintiffs further contended that due to the condition of the dwelling house, they had to rent an alternative accommodation. The defendants had denied all the allegations. In the alternative, the defendant submitted that it would be appropriate if the Court had made an order for specific performance of the Building Agreement.

Mr. Justice Binchy awarded special damages in favour of the plaintiffs. The Court observed that the defendants had acknowledged that there were defects in the premises where repair was required. The Court also held that the plaintiffs deserved an award of costs as they had to look for an alternative accommodation. The Court granted an order for the specific performance of the Building Agreement by the defendants subject to certain directions.

JUDGMENT of Mr. Justice Binchy delivered on the 31st day of July, 2017.

Introduction

1 This is an action for damages for breach of contract, negligence and breach of duty arising out of the purchase by the plaintiffs, from the defendants of a dwelling house known as 19 Millrace Crescent, Saggart, Co. Dublin (the ‘dwellinghouse’), pursuant to a building contract entered into between the parties on 30th March, 2005 and which contact was completed on 22nd September, 2005 (the ‘Building Agreement’), meaning that the transaction closed on that date. The Building Agreement was in the form of an agreement combining the standard Law Society Contract for sale, 2001 Edition and the standard form Building Agreement issued jointly by the Law Society of Ireland and Construction Industry Federation, also stated to be a 2001 Edition. At the conclusion of the transaction the defendants also furnished to the plaintiffs the standard form of home bond documentation as security against defects in the construction of the dwellinghouse. In these proceedings, the defendants in particular placed some reliance on the terms of the Building Agreement, to which I will return later. In the proceedings as originally issued, the plaintiffs sought an order rescinding the Building Agreement. However, at the conclusion of the trial, the plaintiffs abandoned that claim and confined their claim to one for damages, quantified in the total amount of €97,000.00.

2 Mrs. O'Reilly, the second named plaintiff, gave evidence on behalf of both plaintiffs. She stated that very soon after they took possession of the dwelling house the plaintiffs started to experience problems. They were not unduly concerned and indeed expected to have some ‘teething’ problems in a newly constructed house. Any time a problem would manifest itself, they would make contact with the site foreman of the defendants (the plaintiffs' house was in Phase 1 of a much larger development, and so the defendants' representatives were always readily accessible) and the problem would be addressed, although according to Mrs. O'Reilly, not necessary fully resolved. Eventually, on 3rd March, 2009 frustrated by the continuing problems, the plaintiffs sent an email to Mr. Shane Clancy of the defendants summarising the various problems they had experienced and were continuing to experience since moving into the dwelling house. These can be summarised as follows:-

(i) the front door: the plaintiff complained of issues with a draft coming from the door and issues with the front door locking; every time the plaintiff left the house the alarm would go off; she maintained that the door was faulty and the defendant accepted that there was a problem with the door. The plaintiffs replaced the front door at a the cost of €1700 of which they were reimbursed €800 by the defendant;

(ii) the attic: Items were water damaged in the attic, including baby items and clothes due to mould and damp. The plaintiffs were told this was due to condensation and it was a common problem. Remedial work was undertaken by he defendant, but the problem persisted;

(iii) sewage smell: the plaintiffs noticed a smell in the bathroom, following remedial works in the attic, but this was subsequently rectified by the defendants;

(iv) main bathroom: the plaintiffs complained of a smell remaining in the bathroom, as well as a leak in the roof over the window; the sink was dripping and had to be repaired on a number of occasions. The plaintiffs stated that the sink was tilted, resulting in an overflow of water. In her evidence, Mrs. O'Reilly also stated that upon moving into the house, the bath came away from the wall, by ‘a couple of inches’ when she took a bath and she expressed concern that this occurred over an electricity box;

(v) en suite: there were leakages in the en suite bathroom on four occasions, over a period of 2 years, resulting in damage to the sitting room walls and ceiling; the shower was not properly sealed. The plaintiffs also complained of mould growing in the en suite bathroom; Mrs O'Reilly said that she would have to clean the windows and the shower following the use of the shower to avoid the growth of black mould; the extractor fan did not extract air;

(vi) box room: the plaintiffs moved their eldest son into this room when he was 7 or 8 weeks old. Mrs. O'Reilly gave evidence that the rear wall of the room was very cold and the room took a long time to heat up. The plaintiffs had to manually manage the temperature of the room and remove the child if the room became too cold.

(vii) back bedroom: there was a draft resulting from a gap between the wall and the window resulting in a draft and noise;

(viii) main bedroom: mould would form due to condensation when the shower was in use; Mrs. O'Reilly gave evidence she was told by the defendants that this was due to the plaintiffs breathing; the plaintiffs have to clean this on a regular basis;

(ix) landing: there was a gap in the steps and the banisters were wobbly;

(x) kitchen: full length crack and split in the floor tiles; plaster falling from the ceiling; water was coming through the wall and across the roof, this issue is still occurring; the bathroom balcony has leaked into the kitchen three times;

(xi) Windows: handles falling off the window, handles are since discontinued;

(xii) Settling cracks: settling cracks in house were never repaired;

(xiii) Noise issue: neighbours on both sides could be heard through the walls and

(xiv) Heating system: the hot water function does not work; the heating system had to be operated from the hot press through the movement of a handle.

3 Following upon this email, Mrs. O'Reilly met with the fifth named defendant, Mr. Brendan Neville and subsequently received an email of 1st April, 2009 from Mr. Clancy, in which he promised, on behalf of the defendants, to carry out remedial works on 21st April, 2009. There appears to have been some confusion between the parties about precisely what was agreed at around this time and remedial works were not in fact undertaken. There was then a lull in activity until the plaintiffs wrote to the first named defendant on 15th June 2010. Mrs. O'Reilly explained that the plaintiffs have two sons, Zac born on 29th September, 2007 and Leon born in November 2009. She said that it was in part measure owing to the arrival of Leon that the plaintiffs did not have time to deal with the problems in the dwelling house at this time as they were extremely busy with two infant children during this period. They did not find time to address the problems with the house again until June 2010. However, and significantly, in the intervening period, the plaintiffs had become concerned about the health of their sons, who they constantly had to bring to the doctor on account of respiratory problems. The plaintiffs' general practitioner, a Dr. James Clarke, gave evidence as to his attendance upon the plaintiffs' children. Between 19th November 2009 and 27th April 2010, Mrs. O'Reilly brought Zac on eight occasions to see Dr. Clarke. His records indicated that Zac was suffering from some kind of viral infections which manifested itself in coughing and respiratory difficulties. Between 16th December 2009 and 31st May 2010, Dr. Clarke attended Leon on nine occasions, for similar symptoms. On a number of occasions, he referred each of Leon and Zac to A&E in Tallaght Hospital. Dr. Clarke said the overall picture that he had of the children at this time was they were attending with him very frequently with chest infections, and at some stage the plaintiffs informed Dr. Clarke that they had been advised by a person in Tallaght Hospital that they should consider if the environment in which they were living might be responsible for the childrens' ongoing problems. Dr. Clarke said he had himself independently formed the conclusion that the children should be moved from their home in order to establish whether or not their environment might be the cause of their ailments.

4 Mrs. O'Reilly said that as a result of these discussions, the family moved out of the home on 18th May 2010, on an experimental basis, to see if the boys' health would improve. They remained out of the house for twelve days and had Dr. Clarke examine the children both immediately before they left the house, and immediately upon their return. During this...