Teresa Ennis v Health Service Executive and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 30 September 2014
• Neutral Citation: [2014] IEHC 440
• Court: High Court
• Date: 30 September 2014

[2014] IEHC 440

THE HIGH COURT

[No. 8425 P/2007]

Ennis v Health Service Executive & Anor

No Redaction Needed

BETWEEN/

TERESA ENNIS

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE AND JARLATH EGAN

DEFENDANTS

ACCIDENTAL FIRES ACT 1943 S1

HOME OFFICE v DORSET YACHT CO LTD 1970 AC 1004 1970 2 WLR 1140 1970 2 AER 294 1970 1 LLOYDS 453 1970 114 SJ 375

VICAR OF WRITTLE v ESSEX CO COUNCIL 1979 77 LGR 656

P PERL (EXPORTERS) LTD v CAMDEN LBC 1984 QB 342 1983 3 WLR 769 1983 3 AER 161 1980 80 LSG 2216 1980 77 LSG 2216 1983 127 SJ 581

MALOCO v LITTLEWOODS ORGANISATION LTD 1987 AC 241 1987 2 WLR 480 1987 1 AER 710 1987 SLT 425 1987 SCLR 489 1987 84 LSG 905 1987 137 NLJ 149 1987 131 SJ 226

BRESLIN v CORCORAN & MOTOR INSURERS BUREAU OF IRELAND (MIBI) 2003 2 IR 203 2003 2 ILRM 189 2003/6/1316 2001 IEHC 238

JOHN C DOHERTY TIMBER LTD v DROGHEDA HARBOUR CMSRS 1993 1 IR 315 1993 ILRM 401 1992/11/3419

FLANAGAN v HOULIHAN & KELLY 2011 3 IR 574 2012 1 ILRM 97 2011/21/5499 2011 IEHC 105

WARD v MCMASTER 1988 IR 337 1989 ILRM 400

ANNS v MERTON LBC 1978 AC 728 1977 2 WLR 1024 1977 2 AER 492 1977 243 EG 523 1977 JPL 514 1987 84 LSG 319 1987 137 NLJ 794 1977 121 SJ 377

LEIGH & SULLIVAN LTD v ALIAKMON SHIPPING CO LTD (THE ALIAKMON) 1986 AC 785 1986 2 WLR 902 1986 2 AER 145 1986 2 LLOYDS 1 1986 136 NLJ 415 1986 130 SJ 357

YUEN KUN YEU v ATTORNEY GENERAL OF HONG KONG 1988 AC 175 1987 3 WLR 776 1987 2 AER 705 1987 FLR 291 1987 84 LSG 2049 1987 137 NLJ 566 1987 131 SJ 1185

CAPARO INDUSTRIES PLC v DICKMAN 1990 2 AC 605 1990 2 WLR 358 1990 1 AER 568 1990 BCC 164 1990 BCLC 273 1990 ECC 313 1955-95 PNLR 523 1990 87 12 LSG 42 1990 140 NLJ 248 1990 134 SJ 494

MURPHY v BRENTWOOD DC 1991 1 AC 398 1990 3 WLR 414 1990 2 AER 908 1990 2 LLOYDS 467 1990 22 HLR 502 1990 87 30 LSG 15 1990 134 SJ 1076

WHELAN & LYNCH v ALLIED IRISH BANKS PLC & ORS UNREP SUPREME 30.1.2014 2014 IESC 3

MCMAHON & BINCHY LAW OF TORTS 4ED 2013 187

HANRAHAN v MERCK SHARPE & DOHME (IRL) LTD 1988 ILRM 629 1988/5/1234

SULLIVAN v BOYLAN & ORS (NO 2) UNREP HOGAN 12.3.2013 2013/49/13822 2013 IEHC 104

BATES v MIN FOR JUSTICE & ORS 1998 2 IR 81 1998/2/368

CASEY v GOVERNOR OF MIDLANDS PRISON & ORS UNREP IRVINE 27.10.2009 2009/8/1876 2009 IEHC 466

CREIGHTON v IRELAND & ORS (NO 1) UNREP SUPREME 27.10.2010 2010/9/2048 2010 IESC 50

CREIGHTON v IRELAND & ORS (NO 2) UNREP O'NEILL 14.6.2013 [TRANSCRIPT NOT AVAILABLE]

CHILD CARE ACT 1991 S45(1)

CHILD CARE ACT 1991 S45(2)

X (MINORS) v BEDFORDSHIRE CO COUNCIL 1995 2 AC 633 1995 3 WLR 152 1995 3 AER 353 1995 2 FLR 276 1995 3 FCR 337 1995] ELR 404

Negligence – Third party liability – Duty of care – Plaintiff seeking damages in respect of the loss suffered as a result of a fire – Whether defendant owed the plaintiff a duty of care

Facts: The plaintiff, Ms Ennis, is the owner of No. 11 Percy Cottages. That property was extensively damaged by a fire which spread from the adjoining premises at No. 10 during the night of 1st October, 2005. That property had in turn been leased to a troubled teenager (Ms A) who had been placed there some weeks earlier with the assistance and support of the first defendant, the Health Service Executive (HSE). The fire was started deliberately by two companions of Ms A. The lease had been terminated on the previous day and Ms A and her companions had unlawfully re-entered the property. The plaintiff sued the HSE and the second defendant, the owner of No. 10, Mr Egan, in negligence. The HSE stressed five fundamental points before the High Court: (1) there had not been any individual acts of negligence on the part of the HSE staff; (2) at the time of the fire, Ms A was of full age and the HSE could not be said to be responsible for the independent actions of herself and her acquaintances; (3) the chain of causation had been broken once the tenancy had been terminated and the key returned; (4) having regard to the principles regarding the negligent exercise of a discretionary power set out in Glencar Exploration plc v Mayo County Council [2002] 1 IR 84, the HSE could not be made liable, since it would neither be fair nor reasonable to do so; (5) the existence of any duty of care was negative by countervailing policy factors, in that it would deter the HSE and other service providers giving assistance of this kind to vulnerable young adults at a time when they needed it most.

Held by Hogan J that, as Mr Egan had simply leased the property to Ms A and had terminated the lease once it became clear that Ms A was either unable or unwilling to look after the property, and since the fire took place after Ms A had (with others) unlawfully re-entered the property and deliberately started the fire, there is absolutely no basis on which a claim of negligence could ever have been made out against Mr Egan. Having reviewed the contemporary records and oral evidence of witnesses, Hogan J summarised his findings of fact, considering Dorset Yacht Co. Ltd. v Home Office [1964] AC 1004 and Irish case-law dealing with the deliberate destruction of property and injuries caused to others by the actions of third parties, including John C. Doherty Timber Ltd. v Drogheda Harbour Commissioners [1993] 1 IR 315. Considering the test in Glencar Exploration plc v Mayo County Council [2002] 1 IR 84 and Whelan v Allied Irish Banks [2014] IESC 3, Hogan J held that while proximity and foreseeability remain the touchstones of the existence of a common law duty of care in negligence, these ingredients, while essential, are not in themselves sufficient; it must be fair and reasonable to impose such a duty of care, which test also embraces broader policy considerations. Considering whether the HSE should be made responsible for the conduct of third parties, he held that there was a special relationship between the HSE and Ms A such as gave rise to a duty of care; the HSE had concluded that Ms A was suitable for independent living, it was HSE staff who had identified the premises as suitable and it was the HSE which endeavoured to monitor Ms A during the short period when she stayed in the premises. Hogan J concluded that there was negligence on the part of the HSE, consisting essentially in concluding that Ms A was suitable for independent living, when she patently was not and in failing to tell Mr Egan of her background and propensities prior to entering into the tenancy agreement. Hogan J held that it was entirely foreseeable that the property was likely to be damaged by both Ms A and her circle of friends once she went into possession of the premises. He did not consider the chain of causation broken once the tenancy was terminated.

Hogan J held that the HSE did owe the plaintiff a duty of care by reason of its special relationship with Ms A. Therefore it was negligent to conclude that Ms A was suitable for independent living. Hogan J held that it was entirely foreseeable that the property would be damaged. Hogan J held that the plaintiff is entitled to damages as against the HSE in respect of the loss and damage which she has suffered as a result of this fire.

Application granted in part.

Part I: Introduction

1 1. Where a statutory body exercises a statutory power to provide assistance to a vulnerable young adult, can that body be held liable in negligence where it creates a situation where that young person is likely to engage in reckless behaviour which causes damage to a third party? This is the essential question which arises in the present proceedings.

2 2. The plaintiff is the owner of No. 11 Percy Cottages, Magazine Road, Athlone, Co. Westmeath. That property was extensively damaged by a fire which spread from the adjoining premises at No.10 Percy Cottages during the night of 1 ^st October, 2005. That property had in turn been leased to a troubled teenager (whom I shall describe as Ms. A) who had been placed there some weeks earlier with the assistance and support of the Health Service Executive. The fire was started deliberately by two companions of Ms. A. following an all-night party which was held in the premises on the evening in question. The lease had been terminated on the previous day and Ms. A. and her companions had unlawfully re-entered the property, probably as a result of breaking a window to the rear of the premises.

3 3. The records of Athlone Fire Department show that it took one hour to bring the fire under control. No. 10 was all but destroyed and there was significant damage to No. 11. No. 6, No. 7, No. 8, No. 9, No. 12 and No. 13 all suffered smoke damage.

4 4. The plaintiff now sues the HSE and the owner of No. 10 Percy Cottages, Jarlath Egan, in negligence. Given that the fire was started deliberately, it is now agreed that what ever be the scope of the immunity conferred in respect of accidental fires by s. 1 of the Accidental Fires Act 1943, that Act has no application to the present case.

5 5. At the outset it is only appropriate to record that both Ms. Ennis and Mr. Egan are totally innocent parties so far as these proceedings are concerned. Ms. Ennis' house was all but totally destroyed by the fire and she has been forced to live in rented accommodation ever since. For his part, Mr. Egan had simply leased the property to Ms. A. As we shall shortly see in more detail, Mr. Egan terminated the lease once it became clear that Ms. A. was either unable or unwilling to look after the property and the fire took place after Ms. A. had (with others) unlawfully re-entered the property. The fire was deliberately started by two individuals who Ms. A. had apparently befriended. There is absolutely no basis on which a claim of negligence could ever have been made out against Mr. Egan. Both Mr. Egan and Ms. Ennis are simply innocent victims of circumstances.

The events from late July, 2005 to early October, 2005

6 6. While I will revert shortly to the facts in more...