Sunderland v McGreavey

• Jurisdiction: Ireland
• Judgment Date: 01 January 1987
• Date: 01 January 1987
• Docket Number: [1983 No. 498P]
• Court: High Court

Sunderland v. McGreavey

Robert and Mary Sunderland

Plaintiffs

and

Michael McGreavey, Fergus Flynn-Rogers and The County Council of the County of Louth

Defendants

[1983 No. 498P]

High Court

Negligence - Duty of care - Builder - Dwelling built on land owned by builder - Whether builder owed a common law duty of care to purchaser - Defects - Defective drainage and septic tank - Dwellinghouse built below level of water table - Whether defects affecting health and safety of purchasers - Whether structural defects - Damages - Cost of remedial works disproportionate to value of property - Measure of damages.

Negligence - Duty of care - Professional negligence - Architect - Architect carrying out visual inspection of property - Scope and terms of engagement - Inspection - Survey - Extent of duty of care.

Negligence - Duty of care - Local authority - Planning authority - Whether local authority in granting planning permission owed a duty of care to avoid damage to purchaser of house due to defective siting and construction - Statutory functions and powers - Purpose of statutory powers - Whether sufficient relationship of proximity between local authority and purchaser of house - Local Government (Planning and Development) Act, 1963 (No. 28), ss. 26, 28, 86.

In 1979 the plaintiffs purchased from the first defendant a house which had been built by him at D., County Louth. The first defendant, who was not a builder by trade, had planning permission for the construction of a house on the site on which he built, but he built the house on a different part of the site: in a depression where the level of the water table was unusually high and was liable to flood. Furthermore, due to the level of the water table and to the first defendant's failure to provide a soak-away, the septic tank was unable to function properly. The first defendant gave the plaintiffs a six years "structural defects indemnity . . . such indemnity to include all services."

Before purchasing the house the plaintiffs had engaged the second defendant, an architect, to carry out an inspection and to prepare a report. At the plaintiffs' request this was done as a matter of urgency. The second defendant inspected the property and compiled a list of relatively trivial matters for the builder to attend to. At the time of the inspection the weather was cold, the ground was frozen and there was no sign of flooding. The second defendant did not investigate whether there had been compliance with planning permission.

The third defendant had granted the original planning permission for the site and after the house had been completed, had granted permission to the first defendant pursuant to s. 28 of the Local Government (Planning and Development) Act, 1963, for its retention in the position where it had been built.

For substantial periods of the year the plaintiffs' garden was seriously flooded; the lavatories and washing machine could not be used and sewerage escaped from the septic tank. The flooding might have been remedied by the construction of a drain to a nearby river but this would have required the consent of an adjoining landowner, which was not forthcoming. The only alternative remedy was to raise the level of the entire site, which would have been enormously expensive.

The plaintiff claimed damages against the first defendant for negligence and breach of contract in the construction and siting of the house; against the second defendant for negligence and breach of contract in his inspection and report and against the third defendant for negligence and breach of its statutory duty under the Local Government (Planning and Development) Acts in granting the permission to build and/or to retain the house on a site liable to flooding.

Held by Lardner J., in giving judgment for the plaintiffs against the first defendant and in dismissing the claims against the second and third defendants, 1, that when the first defendant took it upon himself to build a house which was at some time likely to be sold, he was under a duty in relation to the siting and construction of the house, including the drainage system, to exercise the care and skill which a reasonably careful and skilful builder would have shown in the circumstances.

Colgan v. Connolly Construction Co. (Ireland) Ltd. [1980] I.L.R.M. 33 and Siney v.Corporation of Dublin[1980] I.R. 400 followed.

2. That the first defendant had failed to exercise such care and skill in the siting and construction of the house.

3. That the first defendant's default also constituted a breach of the express structural defects indemnity.

4. That the defects in the plaintiffs' house were defects which were likely to affect the health and safety of the plaintiffs and in respect of which they were entitled to recover damages.

Colgan v. Connolly Construction Co. (Ireland) Ltd. [1980] I.L.R.M. 33 considered.

5. That having regard to the disproportionately large cost of remedial work in comparison with the value of the house, the appropriate measure of damages was the amount by which the plaintiffs' house had been devalued by reason of the first defendant's negligence.

6. That, in addition, the plaintiffs would be allowed a sum for damages in respect of their own effort and labour in attempting to abate the flooding; the inconvenience of living in dampness and flooding; additional decoration and travelling expenses incurred by reason of their being unable to sell the house.

7. That the duty owed by the second defendant, as an architect, was related to and determined by the scope of his employment.

8. That the duty of the second defendant, who had been engaged to carry out a visual inspection and report, was to inspect the house with the eye of a competent architect and to draw such inferences from what he saw as a competent architect would have drawn. In particular he was not obliged to examine ordnance survey maps or the planning application or planning permission or to check whether they had been complied with or not.

9. That at the time of the second defendant's inspection there had been no physical signs either in the building or in the septic tank which would have alerted him to the problem.

10. That the test to be applied in deciding whether the third defendant (as planning authority) owed a duty of care to the plaintiffs was to enquire, having regard to the statutory provisions under which the third defendant was acting, the purpose of those powers and whether the plaintiffs were within the class which the statute was designed to protect, firstly, whether there was a relationship of proximity between the parties such that it was within the reasonable contemplation of the third defendant that carelessness on their part might cause loss; and secondly, whether in all the circumstances it was reasonable to impose such a duty of care.

Ward v. McMaster [1985] I.R. 29 followed.

11. That the purpose and intention of the provisions of ss. 26 and 28 of the Act of 1963 was to assist in the implementation of the proper development of the third defendant's area in accordance with the development plan and did not comprehend the subject matter of the plaintiffs' complaints.

12. That, accordingly, the third defendant did not owe the plaintiffs a common law duty of care in regard to the matters complained of.

Cases mentioned in this report:—

McGowan v. Harrison [1941] I.R. 331; (1939) 75 I.L.T.R. 163.

Otto v. Bolton and Norris [1936] 2 K.B. 46; [1936] 1 All E.R. 960.

Colgan v. Connolly Construction Co. (Ireland) Ltd. [1980] I.L.R.M. 33.

Gallagher v. N. McDowell Ltd. [1961] N.I. 26.

Donoghue v. Stevenson [1932] A.C. 562; (1932) 147 L.T. 281; 48 T.L.R. 494.

Siney v. Corporation of Dublin [1980] I.R. 400.

Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373; [1972] 2 W.L.R. 299; [1972] 1 All E.R. 462.

Anns v. Merton London Borough [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492.

Batty v. Metropolitan Realisations Ltd. [1978] Q.B. 554; [1978] 2 W.L.R. 500; [1978] 2 All E.R. 445.

Munnelly v. Calcon Ltd. [1978] I.R. 387.

Ward v. McMaster [1985] I.R. 29; [1986] I.L.R.M. 43.

Plenary Summons.

In the month of February, 1979, the plaintiffs purchased from the first defendant a house which had been built by the first defendant at Mooretown, Dromiskin, County Louth for £27,000. Owing to the unsuitability of the site on which the house had been built and the manner in which the septic tank had been constructed, the house and gardens were liable to serious flooding.

The plaintiffs issued a plenary summons on the 23rd January, 1983, and on the 6th April, 1983, delivered a statement of claim claiming against the first defendant, as builder and vendor of the house, damages for negligence and breach of contract; against the second defendant, who was an architect who had carried out an inspection of the house on behalf of the plaintiffs, damages for negligence and breach of contract; and against the third defendant, as the planning authority for County Louth, damages for negligence and breach of its duty under the Local Government (Planning and Development) Acts, 1963-1976. The facts have been summarised in the headnote and are set out in the judgment of Lardner J., infra.

The plaintiffs' action was heard by Lardner J. on the 14th, 15th, 16th, 17th, 21st and 22nd May, 1985.

Cur. adv. vult.

Lardner J.

The plaintiffs, who are husband and wife, purchased for £27,000.00 their dwelling-house at Mooretown, Dromiskin, County 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 architect 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...