O'Shaughnessy v Limerick County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 18 June 2015
• Neutral Citation: [2015] IEHC 389
• Court: High Court
• Docket Number: [2009/1681P]
• Date: 18 June 2015

[2015] IEHC 389

THE HIGH COURT

Binchy J.

[2009/1681P]

BETWEEN

BRIAN O'SHAUGHNESSY AND MARY O'SHAUGHNESSY

PLAINTIFFS

AND

LIMERICK COUNTY COUNCIL, THE NATIONAL ROADS AUTHORITY, RPS CONSULTING ENGINEERS LIMITED AND EGIS ROUTE-SCETAROUTE S.A. (BEING A JOINT VENTURE IN THE NAME OF RPS/SCETAUROUTE JV AND MIDLAND FENCING LIMITED)

DEFENDANTS

Tort – Breach of contract – Damages & Restitution – Accidental demolition of dwelling house – Novus actus interveniens – S. 11 of the Civil Liability Act, 1961

Facts: The plaintiffs in the proceedings sought an order of damages and extent of liabilities of each defendant due to the accidental demolition of the house of the plaintiffs by the acts of the defendants. The first named defendant contended that the demolition was attributable to the omission of the third named defendant to do certain acts and hence, the maxim Novus actus interveniens would be applicable and the first named defendant would not be held liable. The third named defendant contended that the demolition was due to the negligent act of the representative of the first named defendant who gave the direction to include the house of the plaintiffs for demolition.

Mr. Justice Binchy held that the first named and the third named defendants were jointly liable for the damage caused to the plaintiffs. The Court granted full indemnity to the fifth named defendant from any liability. The Court held that the fifth named defendant being the demolition contractor had fulfilled their part of the contract by familiarizing themselves with the site to be demolished and they had done so at the behest of the third named defendant. The Court opined that the rule Novus actus interveniens applied to cases where there was a breakdown of the chain of causation of any event by the acts or omission of any intervening party having knowledge of the original negligence and the damage caused was unforeseeable. The Court found that it was a series of acts of the first and third named defendants that caused the damage to the property of the plaintiffs and therefore, liability would be apportioned between them as per s. 21 of the Civil Liability Act, 1961. The Court held that it would not be plausible to discern the casual effects of the two wrongdoers when their acts or omissions were intertwined and hence, both would be held responsible for the undesired consequences that flowed from their misconduct.

JUDGMENT of Mr. Justice Binchy delivered on the 18th day of June, 2015

Facts

1 These proceedings arise out of the accidental demolition of the plaintiffs' house known as ‘the Hollows’ at Annoholty, Birdhill, Co. Tipperary on 4th September, 2006 during the advanced contracts phase of the construction of the N7 Nenagh/Limerick motorway scheme (the ‘scheme’). The case came on for hearing on the 14th of January, 2015 and concluded on the 3rd of February, 2015. Comprehensive submissions were made by counsel on the 6th of March, 2015. At the time of demolition of the plaintiffs' house, the plaintiffs were undertaking substantial works of reconstruction thereto, as a consequence of which the roof had been removed, the gable wall of one end of the house had been removed and the gable wall of an outhouse had also been removed (to the intent of joining the outhouse to the main house). Sundry other works were also underway including the digging of trenches to provide for drainage and services and the removal of plaster from the rear wall of the dwellinghouse. A current planning notice was on display on a front pier of the house, dated 20th July, 2006. The first named plaintiff commenced these works during 2005. He removed the slates on the roof in April 2006 and as late as August 2006 conducted excavations to the rear of the house with a view to creating a driveway.

2 In the course of carrying out works to the house, the first named plaintiff hurt his back during 2006 and had to cease work for a period, from August, 2006. A front porch to the house remained intact and delivery of the plaintiffs' post continued through the door of this porch notwithstanding that the remainder of the dwellinghouse was undergoing such extensive renovations. On 4th September, 2006, the second named plaintiff decided to drive by the house with a view to collecting post only to find that the structure had been demolished.

3 While some efforts were made to resolve the plaintiffs' claim for the damages occasioned to them, these efforts were unsuccessful owing to the fact that the defendants could not agree amongst themselves either which of them was responsible in law for the demolition of the structure or any apportionment of responsibility. However, on the second day of the trial, agreement was reached between the plaintiffs and the defendants as to the amount of damages to be paid to the plaintiffs (the terms of which are confidential as between the parties) and it was further agreed that that amount, together with the cost of the proceedings, should be paid by whichever of the defendants are found liable in the proportions to be determined by the court, following the conclusion of the proceedings. In addition, it was agreed that whichever of the defendants are found to be liable shall also pay to the plaintiffs a further sum in respect of rent payable by the plaintiffs at a rate of €700 per month (or part thereof) from the date of the settlement agreement (15th January, 2015) until the payment date as defined in the settlement agreement. Subsequent to the demolition of their property, and pending the trial of these proceedings, the plaintiffs had been paid, ex gratia, the total sum of €20,000 by the first named defendant.

Background

4 Pursuant to the provisions of a multiple framework contract dated 25th July, 2000 and entered into between Limerick County Council (which together with the second named defendant is hereinafter referred to as ‘LCC.’) and a number of other contracting local authorities (all together therein referred to as the ‘Contracting Authority’) and a number of firms of consulting engineers including MC O'Sullivan & Co. Ltd and Scetauroute (the former of which was later taken over or reorganised and had joined with the latter to become a joint venture enterprise comprising the third and fourth named defendants herein and which are herein after together referred to as ‘RPS’), the various firms of consulting engineers agreed with the Contracting Authority to provide certain services in connection with the construction of certain roads including the N7 Nenagh/Limerick road scheme. Under the terms of the multiple framework contract, services were to be provided by the firms of consulting engineers pursuant to a ‘call off’ procedure whereby the Contracting Authority would nominate a given firm of engineers to provide services in accordance with the framework agreement. The call off procedure involved a request to provide services pursuant to task orders issued by the Contracting Authority to the firms of consulting engineers under the framework agreement, and in the case of RPS, 6 task orders were issued by the Contracting Authority relating to the design, and services relating to the design of a 38km stretch of high quality dual carriageway between Nenagh and Limerick. Clause 2.1 of the framework agreement defined different categories of services being provided i.e. Normal Services, PSDS Services (Project Supervisor, design stage), EIS Services and Additional Services, as defined. Clause 2.1.1 defined ‘Normal Services’ as being the services described in clause 2 of the model form of agreement between a client and consulting engineers for the design and supervision of works of civil engineering construction published by the Institute of Engineers of Ireland, 1986. Clause 2.1.1 further provided that ‘Normal Services for the purposes of the model form of agreement were to include those services set out in part 1, schedule 2, of the framework agreement.

5 In general terms it may be said that RPS were appointed as consulting engineers to provide, and/or assist in the procurement of all services required by LCC in connection with the design and construction of a high quality dual carriageway between Limerick and Nenagh, (‘the scheme’) and to supervise the performance of contractors appointed by LCC in connection with each element of the scheme. This included geotechnical and geological advice, architectural services, safety audits, traffic surveys, traffic modelling, attendance at all meetings, preparation of all necessary tender documentation, property ownership searches and mapping required for design, including accommodation works and attendance at public meetings.

6 The model form of contract requires the consulting engineer, at design stage, to prepare designs and tender drawings and specifications and schedules and bills of quantities as well as forms of tender and invitations to tender as may be necessary to enable the works (as defined in the model form of contract) to be tendered for or otherwise ordered by the client.

7 Task Order Number 1, which issued from LCC to RPS in May, 2005 stated that it related to the various duties in relation to the design of National Primary Route, N7, Nenagh to Limerick and required the consulting engineers to provide the various services relating to the design of the N7, road in accordance with the provisions of the task order. Clause 2.2 of the task order stated that the consulting engineer was to operate under the direction of the design office project manager to oversee the design of the improvement works. That person was Mr. Ciaran Hegarty of LCC and, in turn, he was stated to be responsible to the Limerick Director of Service, Transport and Infrastructure, namely, Mr. Tim Fitzgerald.

8 The works undertaken by RPS in connection with the scheme in accordance with the...