Sunderland v McGreavey

• Jurisdiction: Ireland
• Judge: Mr. Justice Lardner
• Judgment Date: 24 July 1985
• Neutral Citation: 1987 WJSC-HC 1165
• Docket Number: No. 498p/1983
• Court: High Court
• Date: 24 July 1985

1987 WJSC-HC 1165

THE HIGH COURT

No. 498p/1983

SUNDERLAND v. MCGREAVEY

BETWEEN

ROBERT AND MARY SUNDERLAND

PLAINTIFFS

AND

MICHAEL McGREAVEY, FERGUS FLYNN-ROGERS AND THE COUNTY COUNCIL OF THE COUNTY OF LOUTH

DEFENDANTS

Citations:

MCGOWAN V HARRISON 1941 IR 331

OTTO V BOLTON & NORRIS 1936 2 KB 46

COLGAN V CONNOLLY CONSTRUCTION 1980 ILRM 33

GALLAGHER V MCDOWELL LTD 1961 NI 26

SINEY V DUBLIN CORPORATION 1980 IR 400

DONOGHUE V STEVENSON 1932 AC 562

DUTTON V BOGNOR REGIS UDC 1972 1 QB 373

ANNS V MERTON LONDON BOROUGH COUNCIL 1978 AC 728, 1977 2 WLR 1024, 1977 2 AER 492

BATTY V METROPOLITAN REALISATIONS LTD 1978 QB 554

MUNNELLY V CALCON LTD 1978 IR 387

WARD V MCMASTER 1985 IR 29 1986 ILRM 43

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S28

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

Synopsis:

DAMAGES

Assessment

House - Value - Decrease - Floods - House built by defendant - House built in hollow and liable to severe intermittent flooding - Plaintiff purchased house from defendant - Defendant held to have been negligent and in breach of contract - Value of house, if unaffected by flooding, was #45,000 - Only remedies would have been drastic ones which would have been inordinately expensive in relation to the value of the house - Held that the proper measure of the plaintiff's damages was the difference between #45,000 and the value of the house in the existing circumstances (#21,000) and that, accordingly, the plaintiff was entitled to #24,000 damages - (1983/498 P - Lardner J. - 24/7/85) [1987] IR 372

|Sunderland v. McGreavey|

NEGLIGENCE

Architect

Building - Inspection - Report - Urgency - Purchaser requested immediate inspection of house - Visual inspection made by architect immediately - Report of architect made no reference to danger from floodwater - Property's value halved by subsequent flooding - Held that, in the circumstances, there was no evidence which established negligence or breach of contract by the architect - (1983/498 P - Lardner J. - 24/7/85) [1987] IR 372

|Sunderland v. McGreavey|

NEGLIGENCE

Builder

Site - Defect - Depression - Floods - Liabilities of architect and planning authority - The plaintiff purchased from the first defendant a house which had been built by that defendant - The house and its garden were subject to flooding because the site was in a hollow where the water table was near the surface of the ground - The plaintiff claimed damages from the defendant builder, the defendant architect and the defendant planning authority - The house had been built without planning authority but the first defendant had obtained from the third defendant permission to retain the building pursuant to s.28 of the Act of 1963 - Shortly before the purchase the plaintiff had called on the defendant architect on a certain day, when the ground was dry and hard, and had asked him to inspect the property and to furnish a report to the plaintiff as a matter of urgency - On the same day the architect made a visual inspection of the property and furnished to the plaintiff a report which did not reveal any serious defects in the property and did not state that the structure had been built without planning permission - Held that there was no evidence which established negligence or a breach of contract by the architect - Held that the defendant planning authority, as such authority, were not in breach of any duty owed to the plaintiff - Held that the defendant builder had been negligent in siting the house in the hollow and in breach of an indemnity, in regard to structural defects, contained in his contract with the plaintiff - Held that the measure of the damages to be awarded to the plaintiff against the defendant builder was the difference between the value of the property unaffected by flooding (#45,000) and its value in its present condition (#21,000) and that the plaintiff was entitled to #24,000 damages under that heading - Held that, as the plaintiff's place of employment had been changed and he had been unable to sell his house due to the said defects, the plaintiff was also entitled to #3,000 damages for extra travelling expenses - ~Donoghue v. Stevenson~ [1932] A.C. 562 considered - Local Government (Planning & Development) Act, 1963, ss.26, 28, 86 - (1983/498 P - Lardner J. - 24/7/85) [1987] IR 372

|Sunderland v. McGreavey|

NEGLIGENCE

Local authority

Planning - Permission - Building - Site - Defect - Flooding - House built without planning permission - Builder obtained retention permission from defendant planning authority - House sold by builder to plaintiff - Value of house halved by site being liable to severe flooding - Held that the defendant authority, as such planning authority, was not in breach of any duty owed to the plaintiff - Local Government (Planning & Development) Act, 1963, ss.26, 28, 86 - (1983/498 P - Lardner J. - 24/7/85) [1987] IR 372

|Sunderland v. McGreavey|

SALE OF LAND

Property

Condition - Vendor - Negligence - Flooding - Plaintiff purchased house built by defendant - House was built in a hollow and was subject to severe intermittent flooding - Held that the defendant vendor was in breach of a duty of care which he had owed to the plaintiff in regard to the siting and construction of the house - ~Donoghue v. Stevenson~ [1932] A.C. 562 considered - (1983/498 P - Lardner J. - 24/7/85) [1987] IR 372

|Sunderland v. McGreavey|

1 Judgment of Mr. Justice Lardner delivered the 24th day of July 1985.

2 The Plaintiffs, who are husband and wife, purchased for £27,000.00 their dwelling-house at Mooretown, Dromiskin, Co. Louth, in February 1979 from the first Defendant, Michael McGreavey, who was the builder, after having had it inspected by the second Defendant, Fergus Flynn-Rogers, who is an architeet and received from him a report on its condition. Louth County Council are joined as the third Defendant because of a planning permission and a permission for retention given by them, as planning authority, in respect of this house. The Plaintiffs principal allegations are firstly that the dwellinghouse was built on a site, in a depression, where the level of the water-table was unusually high and close to the surface for much of the year and which was liable to flood, and secondly that the type of drainage, by a septic tank, which was provided, was unsuitable and incapable, for periods of the year, of functioning because of the level of the surrounding water-table and because of the absence of any provision for a soak-away. The claims against the first and second Defendants are laid in breach of contract and negligence. And the claim against the third Defendant is laid in negligence and breach of statutory duty.

3 The Plaintiffs had previously lived with their children at a house in Blackrock near Dundalk. In 1978 and early 1979 they were looking for a new house further out in the country and on an afternoon in February 1979 went with Mr. Matthews, an auctioneer, to view this house at Mooretown, Dromiskin, about 5 miles from Dundalk. It was a new house but had lain vacant for two years. They liked its appearance but noticed that the ceiling between the hall and the bathroom was bulging and was not right and there were marks of water on the wall of one livingroom and an electric radiator was operating in the sittingroom. The auctioneer told them that a waterpipe in the roof space had burst and cause some flooding which had affected the ceiling and wall. Mr. and Mrs. Sunderland decided to get an architect to inspect it. Shortly afterwards, probably on the following morning, Mr. and Mrs. Sunderland called at the second Defendant's office in Dundalk and asked him "to come out and look at the house as they were thinking of buying it". Mr. Sunderland says he asked Mr. Flynn-Rogers to come out and do a survey of the house urgently that same day as he believed another party was interested in buying it and he asked for an immediate report. Mr. Flynn-Rogers says he was asked to inspect it and look at certain faults and defects which had come to Mr. Sunderland's notice. There is a clear distinction between a survey and an inspection. A survey involves a much more detailed examination and a measurement of the fabric which could not be completed in a day. I find from the evidence that what Mr. Sunderland asked for was a visual inspection and a report to be prepared as quickly as possible. Mr. Flynn-Rogers agreed to do this and to provide a report, and, for an immediate inspection and report, said his fee would be £35.

4 The Plaintiffs and Mr. Flynn-Rogers then drove to the house. The Plaintiffs pointed out the defective ceiling and water marks on the wall and Mr. Flynn-Rogers went from room to room and into the attic and the roof space. He tested the floors by jumping, tapped the walls for soundness of plaster. He looked at the skirtings and windows and ceilings. He made what he described as "a walk through" visual inspection without making checks or inspections which interfered with the fabric, while the plaintiffs remained in the sittingroom. And as he went about he made a list of the matters which he thought the builder should attend to. These were matters which, he said, showed a certain carelessness by the builder. He thought the general appearance of the house was "ok" and that it looked impressive outside. Then he went outside and walked over the garden area which was uncultivated and covered with thick, rough herbage. The Plaintiffs and Mr. Flynn-Rogers, all thought the day was cold and dry. The weather had been very cold for some time and the ground was described as rock hard. There was no sign of water or of flooding. Mr. Flynn-Rogers said there was no sign of anything that alerted him to the presence of any serious...