Ward v McMaster and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-HC 1600
• Docket Number: No. 4978P/1983,[1983 No. 4978P]
• Date: 01 January 1986
• Court: High Court

1985 WJSC-HC 1600

The High Court

No. 4978P/1983

WARD v. MCMASTER

Between

Denis Ward and Anne Ward

Plaintiffs

and

Patrick McMaster, Louth County Council and Nicholas Hardy and Co. Ltd.

Defendants

Citations:

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

BOAAN V FRIERN HOSPITAL MANAGEMENT COMMITTEE 1957 1 WLR 582

BOTTOMLEY V BANNISTER 1932 1 KB 458

CARROLL V CLARE CO COUNCIL 1975 IR 221

CAVALIER V POPE 1906 AC 428

CHAMBERS V LORD MAYOR OF CORK 93 ILTR 45

CIVIL LIABILITY ACT 1961 S21

CIVIL LIABILITY ACT 1961 S21(2)

COLGAN V CONNOLLY CONSTRUCTION 1980 ILRM 33

DAVID CONTRACTORS LTD V FAREHAM UDC 1956 AC 696

DONOGHUE V STEVENSON 1932 AC 562

DORSET YACHT CO LTD V HOME OFFICE 1970 AC 1004

DUTTON V BOGNOR REGIS UDC 1972 1 QB 373

GALLAGHER V MCDOWELL LTD 1961 NI 26

GREAVES & CO V BAYNHAM MEIKLE & PTNERS 1975 1 WLR 1095

HOUSING ACT 1966 S39

HOUSING AUTHORITIES (LOANS FOR AQUISITION OR CONSTRUCTION OF HOUSES) REGS SI 29/1972

JUNIOR BOOKS LTD V VEITCHI 1982 3 WLR 477

MCGOWAN V HARRISON 1941 IR 331

MCNAMARA V ELECTRICITY SUPPLY BOARD (ESB) 1975 IR 1

O'SULLIVAN V DWYER 1971 IR 275

OTTO V BOLTON & NORRIS 1936 2 KB 46

PEABODY DONATION FUND, GOVS V PARKINSON 1984 3 WLR 953, 1985 AC 210

PURTILL V ATHLONE UDC 1968 IR 205

ROBBINS V JONES 15 CB(NS) 221

SHARPE V E T SWEETING & SON LTD 1963 1 WLR 665

SINEY V DUBLIN CORPORATION 1980 IR P400

VOLI V INGLEWOODSHIRE COUNCIL 110 CLR 74

YIANNI V EDWIN EVANS & SONS 1981 3 WLR 843

Synopsis:

NEGLIGENCE

Builder

Building defective - Occupation by builder - Sale to plaintiff - Building uninhabitable - Part of price furnished by loan from local authority - Local authority obtaining valuation of building - Valuer failing to discover defective condition of building - Local authority satisfied by valuation that building adequate security for loan - Reliance of plaintiff purchaser upon valuer's assessment - Duties of care owed by builder and local authority to plaintiff - Damages recoverable from builder and local authority - Valuer not in breach of duty of care for plaintiff - (1983 No. 4978P - Costello J. - 26/4/85).

Ward v. McMaster

1 Judgment of Mr. Justice Costello delivered the 26th April, 1985

2 Duty of care - Principle in Donoghue .v. Stevenson - Dwelling built on land owned by builder - Whether builder owed a common law duty of care to its purchaser - Whether housing authority exercising statutory power in granting loan to purchaser owed him a common law duty of care - Whether auctioneer valuing dwelling on behalf of housing authority owned the purchaser a common law duty of care.

3 Damages - Defective premises - Whether damages payable for defective workmanship and inconvenience as well as in respect of dangerous defects.

Introduction

4 In the summer of 1980 life must have seemed good and full of promise for Mr. Ward, the first-named plaintiff herein. He was planning to get married, had the prospect of new employment with a large super-market chain, and had found what he thought was an ideally suitable bungalow on the outskirts of Dundalk in which to live. He paid a £3,000 deposit on it (out of an orally agreed purchase price in July of £24,000) and obtained sanction from the Louth County Council for a loan of £12,000. His troubles then began. Difficulties in regard to the title held up the execution of a formal contract for sale until 30th March 1981 and a conveyance was not effected until some time later. But he obtained his new job, got married on the 28th November, 1981 and moved in to his new bungalow early in December. Then his troubles multiplied. A very serious level of dampness and a smoking chimney first drew the plaintiffs attention to the possibility that there were defects in his new house. In August of 1982 their true extent was ascertained. As a result of an inspection carried out by an experienced engineer the plaintiff then was told that the house was grossly sub-standard, structurally unsound, a source of danger and a risk to health and he was advised to leave it. This he did the following October, and thereafter these proceedings were instituted.

5 The first-named defendant built the bungalow and sold it to the plaintiff and the claim which I will firstly examine is that in addition or in the alternative to damages for breach of contract the plaintiff is entitled to damages for breach of a common law duty of care which the defendant owned to him as builder and vendor (arising it is claimed from the neighbour principle established in Donoghue -v- Stevenson (1932) A.C. 562). The second-named defendant is the local authority which advanced £12,000 to the plaintiff to facilitate the bungalow's purchase and I will then consider the plaintiff's claim that this defendant owed a common law duty of care (similarly arising and which they breached) to the plaintiff when exercising their statutory functions when granting the loan. Thirdly, I will examine the claim that the third-named defendant, a firm of auctioneers, instructed by the local authority to value the premises before loan sanction was granted, owed a common law duty of care (similarly arising and which they breached) to the plaintiff when carrying out the valuation. Whilst denying liability all defendants have claimed against each other for contribution or indemnity under the provisions of the Civil Liability Act, 1961, claims which I will consider in Part IV of this judgment. By agreement, I will defer to a later date giving any conclusion on the quantum of damages.

Claim against the defendant/builder

(a) The facts

6 I will here summarise my conclusions on the facts relevant to the plaintiff's claim against the first named defendant, then give my view on the legal principles applicable, and finally my conclusions on his liability to pay damages.

7 The defendant was described in the Statement of Claim as a builder. In fact, although he built the bungalow which he subsequently sold to the plaintiff, this description of him is inaccurate insofar as it may imply any professional qualifications or experience in the building trade. He had neither. In 1974 he bought the site and when he set about building a bungalow on it with the aid of his father (who he described as a "handyman") and a brother his occupation was that of a driver of mechanical equipment. He is now a taxi driver. He sought planning permission for its erection and obtained it on the 25th March 1975. This contained a condition that the "standard of material, workmanship and building practice is at least equal to that specified in Local Government Department's Outline Specification for Houses". This condition was as I will show breached by the defendant. Building began in the summer of 1975, and the defendant moved in to occupation of the bungalow when he got married in the month of May, 1977. (It has not been necessary to determine the exact date of completion as no point under the Statute of Limitations arises).

8 An oral agreement for sale was entered in to in July, 1980 between the parties. No verbal warranties express or implied were contained in this agreement, and no representations as to the fitness of the premises were made prior to it. The written contract of the 30th March, 1981 had made provision for the sale of a parcel of land, with no mention of the house erected on it. It contained no warranties relating to the building. It follows therefore that the plaintiff's claim against this defendant will fail if no liability in tort exists.

9 Before the verbal agreement (and a few times after it) Mr. Ward and his fiancee inspected the house. It contained no defects as far as they could see. He did not have it professionally examined.

10 Mr. and Mrs. Ward did not go in to occupation until December, 1981. They then discovered that there was no proper flue in the chimney and they had to pay £308 to a builder to put in a proper one. They also discovered that the house was excessively damp, and water percolated in to it. In July, 1982 they decided to put in a central heating system. When their contractor opened up the floor he declined to do any further work in the premises. Between the 19th and 23rd July a survey by a consultant engineer (Mr. Osborne) was carried out. As a result of his report and advice the plaintiffs left the house (which has since remained abandoned) and have lived since in rented accommodation costing £160 per month.

11 There has been a conflict of evidence between on the one hand the professional witnesses called on behalf of the plaintiff and on the other the professional witnesses called on behalf of the second-named defendant and the first named defendant himself. I have found the testimony of the plaintiff's witnesses more persuasive and I base my findings on the report of the 26th August, 1982 and the oral testimony of Mr. Osborne and the report of December, 1984 and oral testimony of Mr. McLoughlin (another experienced engineer) as well as on the photographic evidence to which they referred.

12 I summarise my findings as follows:

The roof

13 This consisted of asbestos cement slabs. The roof timbers were incorrectly constructed, rafters having been strutted from the ceiling joists resulting in extensive cracking of the ceiling plaster. This construction error is, however, not the major one in the building and is not a source of possible injury to occupiers.

The floors

14 All items of floor construction were sub-standard. The main item required in a floor for structural safety, namely a 4" or 6" structural concrete slab was omitted, as was a vapour barrier of a continuous P.V.C. The sub-floor filling was unacceptable, comprising uncompacted dirt, sand, decayed timber and rubble. Extensive cracking, settlement and failure of the floors throughout the house had occurred by July 1982. The only way to remedy the defective floors would be to remove...