O'Shea, Cork County Council on

• Jurisdiction: Ireland
• Judgment Date: 20 December 1947
• Date: 20 December 1947
• Court: Supreme Court

Supreme Court

O'Neill v. Cork Corporation

HUGH O'NEILL

Plaintiff

and

THE LORD MAYOR, ALDERMEN AND BURGESSES OF THE CITY OF CORK

Defendants.

Landlord and Tenant - Liability to repair - Landlord under statutory liability to keep premises in all respects reasonably fit for human habitation - Premises by reason of defect not "in all respects reasonably fit for human habitation" - Tenant aware of defect - No notice of defect given to landlord - Tenant injured by reason of existence of defect - Whether landlord liable to tenant for injuries, notwithstanding want of notice of defect - Housing (Miscellaneous Provisions) Act, 1931 (No. 50 of 1931), s. 31.

Case Stated by the President of the High Court sitting as a Judge of the High Court on Circuit, at Cork, on the 15th and 19th of March, 1945, on the hearing of an appeal by the plaintiff from the dismissal of his action by the Circuit Court Judge for the Cork circuit.

The Case Stated was as follows:—

"1. This is an appeal to the High Court on Circuit at Cork, from a dismiss pronounced by the Circuit Court Judge on the 28th day of July, 1943, on the hearing of a Civil Bill claiming £100 damages for personal injuries and loss sustained by the plaintiff by reason of the negligence and breach of duty of the defendants, their servants and agents. The dismiss of the learned circuit Court Judge, the pleadings and the notice of appeal are incorporated with this Case.

2. I heard the appeal at Cork on the 15th and 19th days of March, 1945. I state this Case at the request of the plaintiff in pursuance of s. 38, sub-s. 3 of the Courts of Justice Act, 1936 (No. 48 of 1936) and I have postponed judgment pending the determination of the Supreme Court upon this Case Stated.

3. The following facts were admitted or proved, viz.:—

(a) The plaintiff is tenant to the defendants of a dwelling-house at 96 Roche's Buildings, in the City of Cork, at 3s. 10d. per week. The provisions of s. 31 of the Housing (Miscellaneous Provisions) Act, 1931 (No. 50 of 1931), apply to the premises (1).

(b) When coming downstairs at 2.30 a.m. on the 25th May, 1943, the tread of one of the steps on the stairway gave way with the result that the plaintiff's foot was caught. He fell violently to the ground and suffered injury.

(c) I held that the defect in the stairway which caused the injury was due to a failure to repair same, and that by reason of the condition of the stairway, the house was not in all respects reasonably fit for human habitation.

(d) The defendants had authorised the rent collector for the time being to receive complaints from their tenants of any want of repair in the houses occupied by them.

(e) No notice of the staircase being out of repair was given by the plaintiff to the defendants. The plaintiff was aware that the step in the staircase on which he tripped was defective prior to the date of the accident.

4 I measure the damage which the plaintiff should recover, if the defendants are liable, at the sum of £50.

5. The question of law which I submit for the determination of the Supreme Court is:—

Whether the defendants, as landlords, are liable in damages to the plaintiff for the injuries sustained by him as a result of the staircase being out of repair notwithstanding the fact that no notice of this want of repair had been given to the defendants."

The Case Stated was dated the 19th day of March, 1945.

Plaintiff, who was tenant to the defendants, sued them in the Circuit Court for damages for injuries sustained by him by reason of a defect in the stairway of his house. His action was dismissed and he appealed. Maguire P. who heard the appeal, stated a Case for the opinion of the Supreme Court. It appeared from the Case Stated that the plaintiff knew of the defect in the staircase, but that he had not notified the defendants thereof. The Case Stated was silent as to whether the defendants knew, or ought to have known, of the defect. Sect. 31 of the Housing (Miscellaneous Provisions) Act, 1931, which imposes upon landlords the liability of keeping the premises in all respects reasonably fit for human habitation, applied to the premises.

Held by the Supreme Court (Sullivan C.J., Murnaghan, Geoghegan, O'Byrne and Black JJ.), that, on the facts as found and stated, the defendants were not liable.

Per Black J.:— The defendants were not liable unless they were in fact aware or in the opinion of the President, upon the evidence ought to have been aware of the defect in the staircase which caused the plaintiff's injury in time to have rectified it before the injury was sustained.

The principles set out in Morgan v. Liverpool Corporation, [1927] 2 K. B. 131,applied.

Cur. adv. vult.

Sullivan C.J. :—

I have read the judgment of Mr. Justice O'Byrne. I agree with it, and I have nothing to add.

Murnaghan J. :—

I have also read the judgment which Mr. Justice O'Byrne is about to deliver, and I also agree with it.

Geoghegan J. :—

I also agree with the judgment of Mr. Justice O'Byrne.

O'Byrne J. :—

This is a Case Stated by the learned President of the High Court on the hearing of an appeal from the Cork Circuit Court. The plaintiff was tenant to the defendants of certain premises in the City of Cork under a contract of tenancy, to which the provisions of s. 31 of the Housing (Miscellaneous Provisions) Act, 1931 (No. 50 of 1931), admittedly applied. On the 25th May, 1943, the tread of one of the steps of the stairway in said premises gave way, whilst the plaintiff was coming downstairs, with the result that the plaintiff fell and sustained personal injuries. He thereupon brought an action against the defendants for damages in respect of such injuries. The President held that, by reason of the condition of the stairway, the house was not in all respects reasonably fit for human habitation and that the injuries were caused thereby. He also held that no notice of the stairway being out of repair was given by the plaintiff to the defendants and, further, that the plaintiff was aware of the defective condition of the stairway prior to the date of the accident. There is no finding that the defendants were aware of the condition of the stairway. The question of law submitted for the determination of this Court is:"Whether the defendants, as landlords, are liable in damages to the plaintiff for the injuries sustained by him as a result of the staircase being out of repair, notwithstanding the fact that no notice of this want of repair had been given to the defendants."

Before considering the construction and effect of the foregoing section, it is necessary to consider the effect, apart from statute, of want of notice by a tenant to his landlord and, for this purpose, I propose to refer to some of the principal cases dealing with the matter. It was contended, on behalf of the defendants, that the service by the tenant on the landlord of notice of want of repair was a necessary condition in order to sustain a claim for damages arising out of such want of repair.

In Hugall v. M'Lean(1), the plaintiff held certain premises from the defendant under a contract of tenancy, whereby the defendant agreed to keep, inter alia, the drains and sewers in good tenantable repair and condition. The basement of the premises having become flooded with sewage in consequence of the defective condition of the drains, the plaintiff brought an action to recover damages for breach of the agreement. The jury found that the plaintiff did not know, and had not the means of knowing, that the drains were in a defective condition prior to the flooding. They also found that the defendant did not know, but that he had the means of knowing, that the drains were defective. Upon these findings, the trial Judge entered judgment for the defendant and the plaintiff appealed. The appeal came before the Court of Appeal, consisting of Brett M.R. and Baggallay and Bowen L.JJ., and was dismissed. In giving judgment, Brett M.R., with whom Baggallay and Bowen L.JJ. concurred, referred to a previous case of Makin v. Watkinson(2)and proceeded:— "We must look at the implication which the judges made in that case and which will be found at the end of the judgment of Channell, B., where he says:— 'We ought to import into the covenant, the condition that he shall have notice of the want of repair before he can be called on under the covenant to make it good:' (L.R. 6 Ex., at p. 28.) This shows that we must imply this condition as if it were written into the agreement and, if this is so, the tenant must take care that the landlord has notice of the defective state of repair. I doubt whether, if the landlord had notice aliunde, he would be liable, but it is not necessary to decide this. . . . Here the landlord, according to the finding of the jury, had the means of notice of the want of repair; but this does not help the plaintiff, so as to enable her to treat the landlord as if he had had actual notice. It is clear that, on such an agreement, the landlord is not liable until he has had notice."

Broggi v. Robins (3) was a case in which the plaintiff claimed damages in respect of personal injuries alleged to have been sustained through the defendant's breach of contract to keep a certain tenement in repair. The action was tried by Day J., without a jury, and he gave judgment for the plaintiff for £100 and the defendant appealed to the Court of Appeal, consisting of Lord Russell of Killowen C.J.

and A. L. Smith and Collins L.JJ. In the report of the judgment of the Court, allowing the appeal, delivered by Lord Russell, the following passage occurs at p. 225:—"Did he commit a breach of his contractual obligation merely because he did not repair in some case where the event proved that repairs had been necessary? Or was it necessary that his attention should be drawn to the fact that the premises were out of repair, and that repairs were needed? In his opinion, the latter was the true proposition."

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