Siney v Corporation of Dublin

JudgeO'HIGGINS C.J.,Henchy J.
Judgment Date01 January 1980
Neutral Citation1980 WJSC-SC 482
CourtSupreme Court
Docket Number(73/78),[S.C. No. 73 of 1978]
Date01 January 1980

1980 WJSC-SC 482


O'Higgins C.J.

Henchy J.

Kenny J.

Siney v Dublin Corporation
Case stated on 18/10/79



JUDGMENT delivered the 10th day of December 1979by O'HIGGINS C.J.


This is a Case Stated pursuant to the provisions of Section 16 of the Courts of Justice Act 1947. The Case has been stated by His Honour Judge G. Clarke of the Circuit Court and he seeks the opinion of the Supreme Court on certain questions of law which arise on the facts as he has found them. It is necessary at the outset to set out these facts very generally.


Patrick Siney, the Plaintiff, being in need of housing accommodation had applied to the Defendants (hereinafter referred to as the Corporation) for a house. On the 23rd August 1973 he was allotted by the Defendants a flat at 56 Avonbeg Gardens, Tallaght. This flat was intended for the accommodation of himselfhis wife and two children. On the same day he signed a form which was stamped "First Letting". This form contained what were called the standard letting conditions of the Corporation and description of the flat as "a dwelling provided by the Corporation under the Housing Act 1966". The undertaking in the form which was signed by the Plaintiff was an undertaking by him to observe these standard letting conditions. The flat in question was one of a number built at Avonbeg, Tallaght, and which were so built and provided for the Corporation through the National Building Agency. The designs for these flats were prepared by the principal architect for the National Building Agency in consultation with the Engineering and Administrative staff of the Corporation. The work of building was carried out by a private contractor under the supervision of the National Building Agency architect. Upon completion and handing over to the Corporation the flats were inspected by the Corporation's officials. The Plaintiff and his family were the first family to livein the flat in question. When they moved in, water appeared under the floor covering in the bedroom. Later, a putty-like fungus appeared on the bedroom wall under the window. This then spread to other walls and to the skirting in the bedroom and later to the sittingroom and kitchen. This fungus was accompanied with a heavy damp smell and a cold feeling to anyone on entering the rooms. Efforts to eliminate this problem were made but did not prove successful. The cause, as found by the learned Circuit Court Judge, on the evidence he heard, was, insufficient ventilation. This defect was such, as he so found, that, despite a reasonable and proper use of both the heating and ventilation system by the Plaintiff and his family, dampness and humidity in the flat could not be overcome. This defect in the ventilation system could have been discovered prior to the letting to the Plaintiff if, what was termed, a relative humidity test, had been carried out Such test was, in fact, not carried out, either by the National Building Agency architect nor by anybody else.By reason of the inadequacy of the ventilation system the learned Circuit Court Judge found that the flat was unsuitable to the tenant and his family. He also found that as a consequence thereof the Plaintiff had suffered certain damage. On the facts as found by him he has submitted the following questions for determination by this Court.


(a) Do the facts as found constitute a breach by the Defendants of their contract with the Plaintiff herein?


If the answer is Yes, is the Plaintiff entitled to damages?


(b) Do the facts as found by me constitute a breach by the Defendants of their statutory duty under the Housing Act 1966and the regulations made thereunder?


If the answer to (b) is Yes, is the Plaintiff entitled to damages?


(c) Do the facts as found constitute negligence on the part of the Defendants their servants or agents?


If the answer to (c) is Yes, is the Plaintiff entitled to damages?


(d) Do the facts as found by me constitute a nuisance created by or maintained by the Defendants their servants or agents?


If the answer to (d) is Yes, is the Plaintiff entitled to damages?

First Question - Was there a breach of Contract by the Corporation?

The first question involves a consideration as to whether, in the particular letting of this flat to the Plaintiff, a warranty, as to its fitness or suitability for habitation by himself and his family, can be implied. This is so because the document signed on the 23rd August 1973 contains thirty-two conditions, all of which, either define the rights of the Corporation, or specify the obligations of the tenant. There is no express warranty on the part of the Corporation as to the suitability of the premises let for any particular purpose, nor is such a warranty expressly excluded. It therefore becomes a question as to whether such awarranty can, in the circumstances of this case, be implied in this particular letting. The law as to the circumstances under which a warranty may be implied in a contract was thus stated many years ago by Bowen L.J. in a well-known passage from his Judgment in the Moorcock 1889 14 P.D. 64 as follows:

"Now, an implied warranty, or as it is called, a covenant in law, as distinguished from an express warranty, really is in all cases founded upon the presumed intention of the parties, and upon reason. The implication which the law draws from what must obviously have been the intention of the parties, the law draws with the object of giving efficacy to the transaction and preventing such a failure of consideration as cannot have been within the contemplation of either side; and I believe if one were to take all the cases, and there are many, of implied warranties or covenants in law, it will be found that in all of them the law is raising an implication of the presumed intention of the parties with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have."


The question at once arises as to whether this principleof law has any application or relevance in a case such as the present. Counsel for the Corporation submit very strongly that it has not. They assert that as this was a letting of an unfurnished flat or dwelling no such warranty can be implied. In this respect they relied on a long line of authorities illustrated by cases such as Sutton v. Temple 12M & W. 52, Hart v. Windsor 12 M. & W. 68, Brown v.Norton 1954 I.R. 34, Chambers v. Cork Corporation 93I.L.T.R.45, which established the proposition that the mere letting of land, with or without an unfurnished dwellinghouse upon it, carried no such implication of a warranty with regard to fitness for any particular purpose. These cases applied the rule of caveat emptor to all lettings of land, with or without a house thereon, in the same way as it was applied to contracts for the sale of land. An exception, irrelevant to this case, was recognised where a furnished house was let for occupation. In such a case a covenant on the part of the landlord that the premises would be fit for such occupation at thecommencement of the tenancy is implied. ( Smith v. Marrable 11 M & W 5, Wilson v. Finch Hatton 2 Ex.D.336, Collins v.Hopkins 1923 2 K.B.617, and Brown v. Norton 1954 I.R.34). A further exception was also recognised where a lessor sells by way of lease a house under construction. In such circumstances terms could be implied with regard to the completion of the house, the suitability of the materials used, the quality of the workmanship and its fitness for habitation. ( Norris v. Staps Hobart 210, Pearce v.Tucker 3 F. & F. 136, Myers and Co. v. Brent Cross ServiceCo. 1934 1 K.B. 46, Hall v. Burke 3 T.L.R. 165, Brownv. Norton 1954 I.R. 34). There can be no doubt that the authorities referred to, and many others too numerous to cite, do establish the proposition that a mere letting of land, with or without an unfurnished house thereon, carried with it no implication that, either, the land, or the house would be fit for any particular purpose. This rule probably grew up when the main object of conveyances and leases was land and when buildings and houses were often ofsecondary importance in a society that was thinly urbanised. To-day the application of such a rule in a society which is becoming more and more urbanised and in which the building and sale of houses has become a major industry, may appear somewhat harsh and inappropriate. However, whether the rule has or has not survived changes in society is not in issue in this case. That is in issue is, whether it can be applied, or ought to be applied, in the particular circumstances of this letting by the Corporation to this Plaintiff.

Position of Corporation under Housing Act 1966

To answer this question regard must be had to the Housing Act 1966, under which this letting was made, and to the position, powers and obligations of the Corporation under that Act. This Act is a major piece of social legislation aimed at dealing with the distressing problem of families unable to provide for themselves and being either homeless or living in overcrowded, unhealthy and unfit houses. It sought to establish administrative machinery under which such conditions couldgraduallybe eliminated throughout the country and, by means of which new and suitable dwellings could be provided for those in need. Under its provisions the Corporation became a Housing Authority. As such it was given the statutory duty of inspecting and assessing the adequacy of the supply and the condition of houses in its functional area, having regard to unfitness or unsuitability for human habitation, and, overcrowding (Section 53). It was also obliged to prepare and to...

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