1. The
Plaintiffs are husband and wife. They have three daughters aged 12, 10 and 7
years respectively.
2. In
1992 the Plaintiffs purchased a house called "Quinton" situate at Greys Lane,
Howth, County Dublin. It was a three bedroom semi-detached house with gardens.
The total area of the house and gardens is in excess of 7,000 sq ft. The
semi-detached house attached to "Quinton" was known as "Woodview".
3. The
first and second Defendants' own "Woodview". The remaining Defendants were
involved in the demolition of that house on the instructions of the first and
second Defendants. They are a building company, plant hire company, architect
and engineer respectively. All Defendants are sued as wrongdoers arising out
of their involvement in the demolition of "Woodview".
4. Howth
is a sought after location for private dwellings and Greys Lane in turn is
situate in an attractive part of that district. This pair of semi-detached
houses had a pleasant appearance, good views and attractive gardens.
5. Prior
to purchasing "Quinton" the first Plaintiff checked the planning register of
the local authority to ascertain if there were any planning permissions extant
affecting "Quinton" or its adjoining house. He discovered that there was
indeed a planning permission in existence in respect of "Woodview".
6. This
permission had been obtained in the name of C. Cinelli on the 18th January,
1991. The permission was for a "first floor domestic extension and alterations
to existing elevation to "Woodview". A building bye-law approval was obtained
in respect of this development on the 12th February, 1991.
7. The
first Plaintiff also went to see the first named Defendant at his business
premises at Parnell Street in Dublin. He did so with a view to enquiring as to
Mr Cinelli's intentions concerning "Woodview" and the planning permission which
had been granted in respect of it. It is to be noted that at that time the
Cinellis were not resident in "Woodview" nor indeed did they ever reside there
to the present day.
8. Mr
Cinelli indicated that he intended to do the work which was covered in the
planning permission when he would have the money to enable him so to do.
9. In
July 1992 the Plaintiffs bought "Quinton". They had it rewired, redecorated
and a new heating system was installed.
10. Between
1992 and 1995 "Woodview" remained unoccupied. It became run down, was
vandalised and was a source of nuisance to the Plaintiffs.
11. In
June 1995 the existing rear and side extensions of "Woodview" were removed as
were trees in its garden. The Plaintiffs became alarmed at this. When Mr
Cinelli was approached concerning this he indicated that he was merely taking
down the flat roof. He said "I know that I can't demolish the house. I would
like to but I know that I can't". The two flat roof extensions were then taken
down.
12. In
November, 1995 further demolition was carried out. However, the real mischief
which has given rise to this action occurred on the 23rd November, 1995. Total
demolition was effected to "Woodview" on that date. It was brought about by
the use of a caterpillar type Hitachi demolition machine. The evidence
satisfies me that this work was done in an entirely sub-standard way. The
demolition was completed in a few hours. The evidence of the Plaintiffs'
engineer Mr Markham and their neighbour Mr Cunningham (who also happens to be a
builder) who saw what went on, satisfies me that the method of demolition was
abnormal and entirely contrary to proper building practice. It is now accepted
by the Defendants that this constituted tortious activity on their part and
that the Plaintiffs have suffered loss and damage as a result.
13. No
notice of the Defendants' intention to carry out this hurried demolition was
given to the Plaintiffs. The excuse for not giving notice was that the
Defendants' architect did not have time to do so.
14. The
demolition was discovered in the afternoon of that day when Mrs Todd arrived
home after her work as a schoolteacher. Not surprisingly she was extremely
shocked when she saw what had happened. So also was her husband. That night
they spent the first of many miserable nights which were directly attributable
to the wrongful activity which took place on that day.
15. I
need not rehearse all of the details of what has ensued since then because my
only task here is to assess damages to which the Plaintiffs are undoubtedly
entitled. The liability issues disappeared out of the case only on the first
morning of the trial when it was accepted that the Plaintiffs were entitled to
recover damages against the Defendants in respect of the matters of which they
complained.
16. I
am satisfied that the Plaintiffs' premises were damaged and to a not
insubstantial degree by the activities of the Defendants.
17. I
accept the evidence of Mr and Mrs Todd as to the effects which these events
have had upon them, their family, their social life and their home. Apart from
the shock of the initial demolition they have had to endure a good deal of
misery, upset, embarrassment and poor living conditions.
18. I
have had both photographic and video evidence of the damage which has been done
to their property which speaks for itself.
19. It
is clear that substantial repairs will have to be effected to the Plaintiffs'
house. That has been clear for some time but they have not yet been carried
out. This is so notwithstanding that over three years have passed since the
unauthorised and improper demolition took place. A criticism has been made of
the Plaintiffs for not having remedial works carried out before now,
particularly since they were in receipt of in excess of £28,000 on foot of
an insurance claim which they made arising from the damage to their premises.
That money has not been expended but has been held jointly with a financial
institution which holds a mortgage over "Quinton".
20. Two
reasons were given by the Plaintiffs for the delay in carrying out the repairs.
The first was that they did not wish to remove the evidence of the effects of
the Defendants's wrongdoing. I do not accept that that justified a delay in
the carrying out of the work particularly since there was extensive video and
photographic evidence available to me to demonstrate what that position was.
The second reason put forward for the delay in my view is a valid one. The
Plaintiffs' semi-detached house has had its adjoining house demolished. The
form of demolition was such as to cause damage to the Plaintiffs' property. To
this day the Cinellis have not made their minds up as to what they will do with
"Woodview". The site has remained derelict. The Cinellis obtained a planning
permission from An Bord Pleanala in August, 1996. This was for a semi-detached
house. The Plaintiffs appealed that permission to An Bord Pleanala. They did
so because of their concern as to the effects of such a construction on the
structural stability of "Quinton". It was in my view not unreasonable for the
Plaintiffs to bring that appeal and I will allow them the £500 fees which
were incurred in that regard.
21. A
second planning permission for a detached house was obtained by the Cinellis in
September 1997. If this development is to be carried out in accordance with
that permission there will be a 2.3 metre section between the new dwelling
house and the Plaintiffs' existing house. The engineering advice which has
been given to the Plaintiffs is that they should not effect repairs to their
house until they know precisely what the Defendants propose to do with the
vacant site at "Woodview". This is because of the implications of such a
development for "Quinton".
22. Given
the unhappy situation which has existed with the Cinellis, their inability to
indicate what they propose to do with "Woodview", and the advice which the
Plaintiffs had, I do not consider that the Plaintiffs can be criticised with
justification for waiting until such time as they get a firm indication as to
what the Defendants plan to do to their premises. Indeed, the Defendants
failure to even now indicate what they are proposing to do makes my already
difficult task in assessing damages more complicated.
23. Fortunately,
agreement was reached in respect of a number of matters and I will deal with
them now before turning to consider the items which remain in dispute.
26. These
have been agreed at £500. I have already indicated that the Plaintiffs
are entitled to recover this since it was not unreasonable for them in the
circumstances to oppose the planning permission which had been granted to the
Cinellis.
27. It
is agreed that the repairs will take of the order of eight weeks to complete.
Whilst there was some dispute between the two valuers as to what it would cost
to find alternative accommodation during that period, ultimately they
effectively agreed with each other that the appropriate sum is £2,500 and
I so award.
30. It
is agreed between the parties that there should be some contingency sum in
respect of the repairs but there is a dispute between the experts as to its
quantum. Having considered the evidence of the experts I have come to the
conclusion that the appropriate sum to award in respect of a contingency sum is
£5,000.
31. The
Plaintiffs contend that even when all of the repair and redecoration work is
carried out to their house it will still suffer from a diminution in value in
respect of which they are entitled to be recompensed in these proceedings. Two
valuers gave evidence. Mrs Emer Byrne of Lisneys testified for the Plaintiffs.
Mr Anthony Pain, who runs his own firm of chartered surveyors and estate
agents, gave evidence for the defence.
32. Five
different valuations were put to the Court by Mrs Byrne on behalf of the
Plaintiffs. They were as follows.
34. The
Defendants accept that the Plaintiffs have suffered a diminution in the value
of their property and that this will continue even after works of repair and
redecoration have been completed. But there is a major dispute as to the
quantum of that diminution.
35. In
general I found the evidence of Mrs Byrne more persuasive than that of Mr Pain.
Two factors influenced me in this view. First, Mrs Byrne referred to a series
of comparator houses in the area which had been sold between December, 1996 and
February, 1999. Mr Pain did not provide any evidence of comparators.
Secondly, having seen the photographic evidence I simply cannot accept his view
that there would be a difference of only £25,000 in value in respect of
"Quinton" between the positions described at (d) and (e) above.
36. Mrs
Byrne in the course of her evidence suggested that the diminution in value to
the Plaintiffs' property was attributable to three factors. They were:
37. I
am of opinion that there is validity in all three of these propositions. I
will consider each in turn.
38. In
order to ensure that there is no question of double recovery on the part of the
Plaintiffs I must attempt to place a valuation upon their house on the
assumption that the repairs in respect of which I am awarding £25,000 to
effect will be carried out. The base figure for assessing the diminution in
value must therefore be the value of the Plaintiffs' house with the repairs
fully effected. Even in such circumstances however, I accept that there will
still remain in the mind of a prospective purchaser a doubt concerning the
structural stability of "Quinton" particularly while "Woodview" remains in its
present condition.
39. I
have already alluded to the difficulty presented to me by the fact that I have
no indication as to when, if ever, work will be carried out on "Woodview".
40. At
the outset of the hearing Mr Finnegan SC appeared on behalf of the Cinellis.
Neither of the Cinellis, nor indeed, any of the other Defendants gave evidence
before me. Mr Finnegan was careful in his choice of language in telling me
what the Cinellis propose doing. He said that it was their present intention
to construct a semi-detached premises at "Woodview". However, they were unable
to give any commitment concerning this course of action, nor could they
indicate even in a rough way the timescale within which such work might even be
started never mind finished.
41. Given
this unsatisfactory situation I have come to the conclusion that as a matter of
reasonable probability no work will be carried out on "Woodview" at least for
the next few years. Even if work is done, there is not, as a matter of
probability, a likelihood that such work will necessarily involve the
construction of a semi-detached house. If such a building was constructed it
would, of course, address in a substantial way the three elements mentioned by
Mrs Byrne as contributing to the diminution in value of the Plaintiffs' house.
As I have no evidence which would support the contention that this work will be
undertaken in a reasonable period of time I have to approach the question of
the diminution in valuation on the basis that "Woodview" will remain in its
present condition for the foreseeable future. However, I think it unlikely
that "Woodview" will forever be left as a derelict site and I must build into
my assessment of damages under this heading a factor which will take into
account that at some stage the derelict site will have a dwelling house of some
sort built upon it.
42. I
will shortly measure in terms of a sum of money the diminution in value which
the Plaintiffs' house has suffered. Before doing that I will assess in terms
of percentages the extent to which that diminution is contributed to by each of
the three factors relied upon by Mrs Byrne.
43. I
am satisfied that even with repairs carried out to it, (and bearing in mind
that "Woodview" will remain as it is for the foreseeable future), there will
still remain in the mind of a prospective purchaser of "Quinton" a question
concerning its structural stability. Even if a competent consulting engineer
certifies its stability, it seems to me that a prospective purchaser will still
have a question mark in his or her mind concerning the house and account must
be taken of that. I am of opinion that 25% of the diminution in value can be
attributed to this cause.
44. I
accept the evidence of Mrs Byrne that a financial institution will also have a
wariness about advancing money in respect of this house given its history. I
am of opinion that 25% of the diminution in value can also be attributed to
this factor.
45. The
major contributor to the diminution in value must however, undoubtedly be the
extraordinary appearance of the Plaintiffs' house in the absence of its
matching pair. It looks odd and in my view would not do anything to encourage
a prospective purchaser. I attribute 50% of the diminution in value to this
factor.
46. The
Defendants contend that the Plaintiffs are not entitled to have taken into
account in the assessment of damages any diminution in value of the Plaintiffs'
premises by reason of its changed appearance. In this regard they rely upon
the decision of the Court of Appeal in England in
Phipps
-v- Pears
[1964] 2 All ER 35. The facts in that case were that in about 1930 a house,
no. 16, one of two adjacent houses in common ownership was rebuilt. One wall
was built close against the adjacent no. 14. Thirty years later no. 14 was
demolished by its then owner, the Defendant. This left the adjoining wall of
no. 16, which was rough and unpointed, exposed to the weather. During the next
winter, frost caused cracks in the wall. The Plaintiff, who was successor in
title of the owner who built no. 16, sought to recover from the Defendant for
the damage done to the wall. He claimed an easement of protection and said
that he was entitled to protection for the wall by virtue of the general words
implied by Section 62 of the Law of Property Act, 1925 in the conveyance of no.
16 to him. The Court of Appeal rejected the claim. It held that there was no
right known to the law to protection from no. 14 for the wall of no. 16 against
exposure to weather. Accordingly, no such right or advantage had passed to the
Plaintiff under the relevant statutory provisions. In delivering the principal
judgment Lord Denning M.R., said:-
47. The
Master of the Rolls then went on to give other instances similar to those
already mentioned. He then said:-
48. It
seems to me that that case is far removed from the present one both on its
facts and in the underlying rationale which supports it.
49. In
the present case I am not merely dealing with adjacent houses but with a pair
of houses which were built as one. At the commencement of these proceedings by
consent, I made declarations against the first and second named Defendants as
to the right of support to which the Plaintiffs' house is entitled. That was
an acknowledgement by them of an entitlement which has been lost to the
Plaintiffs as a result of their wrongful activity.
50. Secondly,
the basis underlying the decision of the Court of Appeal in
Phipps
v. Pears
is that legitimate development would be hampered if the Plaintiff succeeded in
that case. In the instant case I am not at all dealing with legitimate
development on the part of the Defendants. In fact the converse is true. It
is accepted by the Defendants that they required a planning permission to
enable them to demolish "Woodview". They neither sought nor obtained such a
permission. Indeed, had they sought such a permission the Plaintiffs would
have had statutory rights to be heard in respect of it. They were deprived of
that right. Indeed it is almost inconceivable that the planning authority
would have given permission for a demolition of the type in question. The
Plaintiffs are now at a loss because of this activity and it appears to me that
in these circumstances they are entitled to recover in respect of the
diminution in value attributable to the loss of appearance of their house
brought about the wrongful activity of the Defendants. They are therefore, in
my view, entitled to recover in its entirety the diminution in value as a head
of damages.
51. In
order to establish the diminution in value in money terms, I must first fix
upon the current value of the Plaintiffs' house assuming that the £25,000
worth of works are carried out to it. Having considered the evidence of the
valuers I have come to the conclusion that the current open market value of the
Plaintiffs' house as it stands is £190,000. With £25,000 worth of
repairs carried out to it that value will in my view increase to a sum of
£200,000. I do not accept Mrs Byrne's view that the repairs would only
bring about what she described as a minuscule improvement in the value of the
house. Neither do I accept Mr Pain's view that the expenditure of £25,000
on repairs would bring about an improvement in value to the tune of
£20,000.
52. On
the basis that the open market value of the Plaintiffs' house in its repaired
state is £200,000 it appears to me that the Plaintiffs are entitled to the
difference between that sum and what the house would have been worth if the
adjoining property had not been demolished but remained as it was. This
approach would both accord with the facts of this case as I have found them and
also with the general rationale underlying the award of damages namely to put
the Plaintiffs in the same position as they would have been in had the wrongful
act not occurred.
53. On
the basis of the evidence that I have heard I am of opinion that the
Plaintiffs' house would be worth £280,000 were it not for the demolition
of "Woodview". The loss of value is therefore £80,000. However, account
must be taken of the fact that "Woodview" in the long term will not be left in
the state in which it now is. Both valuers accept that that is so. But I
cannot say when this change will be effected or the form that it will take. It
seems to me therefore, that I must make some deduction from this sum to
recognise these facts and I propose therefore to reduce the diminution in value
to £65,000.
54. I
therefore award the Plaintiffs £65,000 in respect of diminution in value
attributable to the wrongful activities of the Defendants.
55. Each
of the Plaintiffs have a claim in respect of general damages concerning the
upset, inconvenience, stress and general misery to which they have been
subjected. I accept their evidence concerning the effect which all of this has
had upon their lives. Their quality of life has suffered in a substantial way.
I am also satisfied that as a matter of probability the strain that was created
upon the relationship between Mr and Mrs Todd and which resulted in their
temporary separation was a direct result of the very sub-standard living
conditions which they have had to endure as a result of the activities of the
Defendants.
56. In
the case of Mr Todd I award him £10,000. In my view the strain upon Mrs
Todd was even greater. This is probably attributable to the fact that she had
to spend a greater period of time at home than did Mr Todd. Furthermore, when
he went to work at least he was away from the house and all attendant upon it.
When Mrs Todd went to work as a teacher at the school, I am satisfied from her
evidence that she was subjected to taunts and jeering at the hands of
schoolchildren of the type which she described in evidence. In her case
therefore, I propose to award her £12,000 under this heading.
57. Although
a suggestion was made to the effect that Mr Todd sustained some stomach illness
as a result of strain, that claim was, in my view quite properly, not pursued
in any serious way.
58. In
the case of Mrs Todd however the position is quite different. I am quite
satisfied on the uncontroverted evidence of Dr Rosemary Coleman, Consultant
Dermatologist, that Mrs Todd began to complain of atopic eczema in April, 1997.
I am satisfied on the basis of her evidence that Mrs Todd had a genetic
pre-disposition to this condition. However, prior to the activities in suit
she was asymptomatic. The triggering of her symptoms were, as a matter of
probability, brought about by the stress sustained by Mrs Todd to which mould
allergy may have been a contributing factor. The Plaintiffs' condition has
gradually improved and she is now free from the condition and indeed has been
for the past six months. I have seen photographic evidence of the skin
condition and I accept the evidence given by Mrs Todd and the doctor concerning
it. It was an unpleasant and embarrassing condition and I propose to award Mrs
Todd £15,000 damages in respect of it. The condition is now cleared but
Mrs Todd is required to continue with the type of skin care regime which was
described by the doctor in the course of her evidence. This involves daily
oily baths, the use of soap substitutes and creams. The condition could flare
up in the future particularly if there is stress or infection. It seems to me
therefore that the Plaintiff is entitled to an award of damages into the future
in respect of these personal injuries to take account of the daily skin care
regime which she has to conduct and the prospect of a flare-up of the condition
in future. I therefore propose to award a further £7,500 to Mrs Todd
under this heading.
59. The
Plaintiffs suggest that they are entitled to an award of aggravated damages to
take account of the circumstances in which they sustained the injuries in suit.
60. The
law on this topic in this jurisdiction is set forth in the decision of the
Supreme Court in
Conway
-v- Irish National Teachers Organisation
[1991] 2 IR 305. Dealing with the question of aggravated damages the Chief
Justice summarises the principles applicable in respect thereof as follows:-
61. I
have come to the conclusion that a number of the factors referred to by the
Chief Justice in the passage which I have just quoted are present in this case.
The Plaintiffs are in my view entitled to a modest sum by way of aggravated
damages in recognition of the added hurt or insult to them as a result of the
conduct of the Defendants.
62. Amongst
those factors are: (a) The demolition was carried out suddenly, without
warning and in violation of all of the appropriate safeguards. (b) The
demolition was carried out at a time when Mr Cinelli clearly knew that he had
no entitlement to do it. His professional advisers must also have been aware
of this fact yet nonetheless proceeded with the demolition in such a way as to
entirely deny the Plaintiffs their rights under the planning legislation. (c)
The demolition was carried out notwithstanding the prior representation that
the demolition would be only partial and that the works of reconstruction would
be completed by Christmas of that year. (d) The site has been left as a
wilderness since the time of destruction. This has inconvenienced the
Plaintiffs much more than was necessary. Whilst none of the Defendants gave
evidence Mr Cinelli's Solicitor did so. On the basis of the evidence which he
gave me I am satisfied that the Cinellis' financial position was such that had
they wished to they could have carried out reconstruction works on "Woodview".
63. Looking
at the circumstances of the case overall, I am of the view that the Plaintiffs
are entitled to have awarded to them an additional £7,500 by way of
aggravated damages in recognition of the additional hurt and insult caused to
them by the outrageous conduct of the Defendants.
64. The
Plaintiffs also seek to have an award of punitive damages made in their favour.
That topic was also dealt with in
Conway's
case by Finlay C.J. as follows:
65. I
do not find in this case the circumstances which would warrant the grant of an
award
of
punitive damages. Even if I had come to the conclusion that such circumstances
did exist, such damages would not be payable by reason of the general principle
concerning them which is referred to by Finlay C.J. in
Conway's
case where he said
"as
a general principle they should not be awarded if in the opinion of the Court
the amount necessarily payable by the wrongdoer in the form of compensatory
damages constituted a sufficient public disapproval of and punishment for the
particular form of his wrong-doing".
66. In
my opinion the award of damages made in favour of the Plaintiffs in
compensatory and aggravated damages constitutes a sufficient public disapproval
of the activities which were engaged in by the Defendants on the occasion in
question.