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Judgment Title: Ennis -v- HSE & Anor Neutral Citation: [2014] IEHC 440 High Court Record Number: 2007 8425 P Date of Delivery: 30/09/2014 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation No: [2014] IEHC 440 THE HIGH COURT [2007 No. 8425 P] BETWEEN/ TERESA ENNIS PLAINTIFF AND
HEALTH SERVICE EXECUTIVE AND JARLATH EGAN DEFENDANTS JUDGMENT of Mr. Justice Hogan delivered on the 30th September, 2014 Part I: Introduction 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 1st 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. 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. 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. 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 7. At the time of the events leading up to the fire Mr. Egan had been a university student who had just purchased No. 10 Percy Cottages. The house had been in poor condition and he spent the summer renovating the house in order to get ready for the rental market. As he was studying in NUI Galway at the time he set about finding a tenant for No. 10 and to this end he placed an advertisement in a local newspaper at the end of July, 2005. At this time the HSE ran a residential centre for troubled teenagers in its care at No. 6 Percy Cottages known as “Shannon Cottage”. One of the residents was Ms. A, a teenager with a troubled and disturbed history. Ms. A. had a younger sister, Ms. B., who was also in care. Ms. B. was then 15 years of age and she resided at another HSE residence in the Athlone region known as “Retreat Lodge”. 8. Ms. A. came from a dysfunctional family background and she had been in care since the age of two. She was due to attain her 18th birthday in August, 2005 and she was anxious to live independently thereafter. Having seen the advertisement for the letting of No. 10, one the social workers attached to No. 6 viewed the premises and considered it suitable. She then arranged with Mr. Egan that Ms. A. would take a letting of the premises. The lease commenced on 25th July, 2005. The monthly rent of €550 was to be paid by the HSE for the first two months and thereafter the costs were to be split between the HSE and Ms. A. in the form of rent allowance. 9. The plaintiff now sues the HSE and Mr. Egan in negligence. As I have already indicated, there is absolutely no basis upon which Mr. Egan could ever have been sued for negligence and the case against him can accordingly be dismissed. The case against the HSE is, however, a different matter and it is necessary first to consider the background facts before examining the difficult legal issues which this action presents. Part II: The Contemporary Records The Guardian Ad Litem reports
The diary entries maintained by HSE staff 14. The records for Saturday 24th recounts how, following the reports of a break-in to No. 10, staff found the property “in a complete mess” In addition to items having been stolen, the staff noted that: “every chair in the kitchen was broken, clothes were thrown everywhere, food was on walls and lipstick was used to write abuse and nicknames.” 15. The HSE social workers spoke to Ms. A. about her behaviour and attitude, her choice of friends and her attitude to alcohol and drug misuse. The social workers then started a clean-up of the premises and arranged for Ms. A and Ms. B. to help them in the process. Later that night staff received a call from Ms. A. to say that she wanted to leave No. 10 and get a new flat elsewhere in Athlone as she feared that the youth who were responsible for the break-in would return. 16. When Ms. Anne-Marie Carey, a social worker attached to the HSE, came on duty at No. 6 some time around mid morning on 29th September, she went to No. 10 Magazine Road to encourage Ms. A to get up. Ms. A ultimately got up at 2.30pm. She said that she was hungry and she was then brought down to No. 6 (Shannon Cottage) for lunch. Staff and Ms. A later returned to No. 10 in order to tidy up the premises. They met with the landlord, Mr. Egan, at around 6.00pm. Mr. Egan had received complaints from other neighbours about the noise which had emanated from No. 10. There had also been a break-in and furniture and other items of property had either been stolen or damages. 17. Mr. Egan was reported as having said that it was best that Ms. A was leaving in view of the damage that had been done to the premises and the various complaints which had been made by neighbours regarding Ms. A. Ms. A. was reported as having been “cheeky” towards Mr. Egan when she was confronted with the damage done to the property. 18. Ms. A was then brought by staff to visit her younger sister, Ms. B, at Retreat Lodge. (Ms. B was also in care). Ms. A and HSE staff returned later than evening to No. 6 Magazine Road where Ms. A had dinner. The notes record her saying that “she was glad to be back in care and [she] felt that she was not ready or able to live alone”. Ms. A then left No. 6 and was followed by staff. They tried to get her to return to No. 6 but she at first refused. She was observed purchasing cans of lager from a shop. She finally returned to No. 6 and explained to staff that she wanted to go out on the following night with a named male. The diary records:-
20. Later that evening, Ms. A left Retreat Lodge without permission in the company of Ms. B. Staff rang her about 11.15pm to say that her curfew was 12 midnight and that if she and her younger sister, Ms. B, did not return to the unit there would be serious consequences. The notes record her as having assured staff that she would be at home on time. Ms. A rang the unit at about 12.50am to request staff to come to collect her sister, Ms. B, in the Battery Heights area of Athlone. Ms. A. said that she would not be home yet and did not know what she would be doing later. At that point staff went down to the Garda station at 1.30am and accompanied two Gardaí in a squad car up to Battery Heights to look for the two girls. The Garda car drove all round Battery Heights but the girls were nowhere to be seen. The Gardaí then returned to the Garda station. 21. It appears that another social worker, Ms. Margaret Galvin, later travelled by taxi to collect Ms. A having made contact with her. Ms. A refused to get into the taxi with her. Ms. B arrived in Retreat Lodge at around 4.30am. The fire service subsequently received a telephone call at 5.01 am from Athlone Garda Station to say that No. 10 was on fire. At 5.50am Athlone Garda Station rang Retreat Lodge to inform the social workers that Ms. A had been detained in the station as No. 10 Magazine Road was on fire and Ms. A had been involved in an incident. The diary extract records Ms. A as later telling staff that the young men she had been with had broken into No. 10 Magazine Road where they then had a party. She said that having smelt smoke she went upstairs and two bedrooms were on fire, and she then escaped. There was blood on her clothes and she thought that the young men had been fighting and that the blood was from one of these young men. 22. Ms. A herself made a statement to the Gardaí on Saturday 1st October, 2005, where she explained that she had been drinking very heavily and that she had taken illegal substances. She stated that they walked back from Battery Heights towards Magazine Road. They met two other young men, Mr. C and Mr. D outside the house. Ms. A maintained that the door of the house was open and that Mr. C and Mr. D had been in there beforehand. A party went on inside and there was further drinking of cans of lager. Eight young people were present for the most of the party, including Ms. A., Ms. B., Mr. C and Mr. D and four other youths. 23. By about 4.30am the drink had been consumed and Ms. B. and three other youths (including Mr. Lennon and Mr. Lynch) left the premises. Shortly thereafter Mr. C and Mr. D went upstairs and a few minutes later one of the remaining members of the party smelt smoke. Everyone then went upstairs and where it was found that the two rooms upstairs were on fire. The house was evacuated. Ms. A. later said in her statement to the Gardaí “when we ran outside I [saw C and D] outside the house laughing. I just knew they were after doing it. Nearly five minutes after they left we smelled the smoke”. 24. Ms. A. also stated that she had no keys to No. 10 Magazine Road having given them back to Ms. Celine Casey, social worker, on either Thursday 29th or Friday 30th September 2005. 25. Mr. D. made a statement to Gardai admitting that he set the fire to mattresses along with Mr. C. He said that he had been very drunk at the time and that while the mattresses were initially slow to light, but then the smouldering mattresses turned to flame and they ran out. They then remembered that another companion and Ms. A. were downstairs. They returned, banged on the window and Ms. A. and the companion then evacuated the premises. Notes of the case conference meeting held on 3rd October 2005 Part III: The Oral Evidence Dr. Patrick Randall 29. While Dr. Randall accepted that he had not actually seen or treated Ms. A, he nonetheless insisted that he could diagnose Ms. A’s pattern of behaviour from a consideration of the documents discovered in these proceedings. From an assessment of these clinical notes and other similar evidence, Dr. Randall described Ms. A as an acutely vulnerable young woman whose placements had often broken down. She had failed to cooperate with various therapies, had engaged in substance misuse, had engaged in sexually promiscuous activity at a young age and had frequently absconded from secure environments. Dr. Randall saw a pattern of self harm, threats, assaults and substance misuse had left her with a negative influence and a wish to engage in destructive activities. This sort of “acting out” behaviour was indicative of internal turmoil, distress and destructive behaviour. He noted that she had engaged in this activity at a very young age. 30. Dr. Randall was not greatly surprised by the depiction of the incidents which had taken place from the time when Ms. A. moved into No. 10 Percy Cottages on 7th September, 2005, onwards. He noted that the house had been left in a state of disarray and that there had been complaints from the neighbours. There was no evidence that Ms. A was capable of discipline and that she needed support with living skills. Dr. Randall noted that social security payments had been spent on alcohol and that Ms. A. saw no reason why items which were damaged in the house should not immediately be replaced by the HSE. Dr. Randall said that had he been called upon to advise on the steps to be taken, he would have devised a behavioural care programme. He would have certainly advised that Ms. A. should not be left out of sight. He would further have advised the HSE to engage Ms. A in conversation and to return to a place of safety. 31. While Dr. Randall’s capacity to offer an opinion in his capacity as a forensic psychologist to offer a clinical diagnosis in respect of a patient he had never treated or even see, I found him to be a highly distinguished witness whose evidence I entirely accept. Teresa Ennis Geraldine Conway 34. It was fortunate that Ms. Conway was not present in her house on the night of the 30th September/1st October. Her house had also suffered some minor smoke damage but she is not maintaining a claim against the HSE. John Lennon Lee Lynch 37. Mr. Lynch rejected the suggestion that he himself had broken in by the back of the house and had opened the door. He insisted that Ms. A had let them into the premises, but he admitted that it was not the first time he was in the house. While he accepted that he had been drinking with others on the night of the fire, he said he was not there at the time of the fire. Jarlath Egan 39. At some stage in mid-September Mr. Egan said that he had received complaints from neighbours about the loud noise emanating from his property. He said that he had rung No. 6 and asked them to see to it that Ms. A. turned down the music. A few days later he had been requested by the HSE to come to fix a light bulb. He found the premises in an untidy condition and he went down to No. 6 to request them to arrange for the property to be tidied. 40. Some time around 28th September Mr. Egan received a telephone call from Ms. Celine Casey, social worker, to say that there had been a break-in in the premises, that a wardrobe had been taken and other damage was done to the property. Mr. Egan met two HSE social workers along with his brother, Joseph, and his father, Brendan, which meeting I think on the balance of the evidence took place on the following evening, September 29th. The members of the Egan family looked over the property and could see that there had been considerable damage to the house, and that it was agreed that this was unacceptable. There was, for example, tomato ketchup spread over the table, crockery was damaged, items were missing, wallpaper had been removed from one of the bedroom walls and one of the walls had been disfigured with lipstick and crayons. 41. In his statement to Gardaí, Mr. Egan said that he had found a name written with lipstick on the wall. When he confronted Ms. A about this name she said that the individual in question came from Battery Heights. The HSE social workers agreed that the condition of the property was unacceptable. They asked Mr. Egan to do up a bill in respect of the damage which had been done and it was agreed that Ms. A would then leave the property immediately. He had understood the HSE staff would arrange to clean up the property and give up the key. 42. While Mr. Egan thought that there had been just one meeting with the HSE social workers in the premises which was held on September 30th, I think that having regard to the HSE diary extracts and the evidence of Ms. Casey that there probably was two meetings, on the 29th and the 30th September. This, however, is not a matter of any real moment, because so far as Mr. Egan was concerned the property had been vacated by Ms. A. on the evening of September 30th. Ms. Barbara Geraghty 44. She explained that although Ms. A. was a pleasant young lady, she was a very vulnerable individual who had been damaged in her life experience and who posed a threat to herself and to others. Ms. Geraghty described the extensive steps taken by social work staff to engage with Ms. A., often involving actions over and above the call of duty. Ms. Celine Casey 46. Ms. A. began to reside in Shannon Cottage in August 2004. She was anxious to live independently and the HSE sought to assist her in this regard as her eighteenth birthday approached. The prospect of her being able to stay in rented premises close to Shannon Cottage seemed an appealing one. Shortly after her 18th birthday steps were taken to have Ms. A. move into the premises on a phased basis. 47. Ms. Casey described received a telephone call from Ms.A. on 24th September to say that there had been a break-in. When she arrived in the house it was in a state of disarray: there was graffiti on the walls, the coffee table was broken and there was other damage to the furniture and the crockery. Ms. A. was quite upset and scared, but she also expected that items which had been stolen or damaged would be quickly replaced by the HSE. In addition, the house was in a messy state and the washing up had not been done. 48. Ms. A. wanted to vacate the premises as she was afraid. Ms. Casey then sought to liaise with management about where Ms. A. would go if she vacated the premises. Ms. Casey described the clean-up of the property on 29th September and on the 30th. She thought that there was only one meeting with Mr. Egan and that this took place on Friday 30th and that Mr. Egan’s father and brother were also present. 49. At all events, she agreed that the property was vacated by Ms.A. on that Friday, 30th September. All her belongings were moved back to Retreat Lodge and the keys were returned to Mr. Egan. As Ms. Casey was then going on duty at Retreat Lodge, she brought Ms. A. with her by taxi. At 8.20 pm Ms. A and Ms. B. left Retreat Lodge and the social workers endeavoured to stay in contact with them and, failing that, to follow them. She recounted the efforts (already summarised above) to liaise with the Gardaí to find them at various stages through the night. Ms. B. arrived back to Retreat Lodge on her own and Retreat Lodge subsequently received a telephone call some time after 5am to say that there had been a fire at No. 10. She then received another telephone call from the Gardaí to say that the fire alarm, at No. 6 was going off. She had to go down to No. 6 and de-activate the alarm. 50. Ms. Casey observed that that the entire team had been working towards the goal of independent living for Ms. A. for the best part of a year. There were, in truth, few other options available. She thought that Ms. A. was “a really nice person” who was capable of independent living. Ms. Casey acknowledged that Ms. A. had frequently absconded in the past and that at least some of the various Guardian Ad Litem reports had expressed deep concerns regarding the prospect of independent living. Part IV: Findings of Fact 52. First, at the time of the fire, Ms. A. was a highly vulnerable young person with a troubled history. She was associating with a rough crowd and she showed almost no regard for discipline or good order. She was drinking heavily and she was also resorting to drug taking. Her conduct at this time was impetuous, reckless, promiscuous and ill-disciplined, with almost no sense of personal responsibility. 53. This attitude manifested itself in various ways. She was entirely indifferent to the damage which had been done to the premises immediately prior to her departure, as she expected that items which had been damaged or broken or stolen would be simply replaced by the HSE. She came and went from both Shannon Cottage and Retreat Lodge as she pleased and was prepared to associate with persons who posed a real threat to her and others. I accept the evidence of Dr. Randall that Ms. A. was simply unsuitable for independent living. 54. Second, the individual social workers endeavoured to use their very best efforts to protect Ms. A.’s welfare in extremely difficult and challenging circumstances. Their dedication to duty - which went far beyond the call of duty - was most impressive and must be hugely commended and appropriately acknowledged. 55. Third, Ms. A’s unsuitability as a tenant had become crystal clear in the few short weeks she had resided in No. 10. She was simply unable to manage the premises. Property had been extensively damaged and walls had been defaced by ketchup and make-up. The HSE further had been made aware of the fact that the neighbours had complained of the loud music and raucous behaviour associated with late night parties, given, that, for example, Ms. Conway had telephoned Retreat Lodge to complain. 56. Fourth, the meeting between the HSE social workers, Ms. A and Mr. Egan whereby it was agreed to terminate the tenancy took place on the evening of Thursday 29th. A further meeting was held on the evening of Friday 30th. 57. Fifth, at the first meeting it was agreed that the tenancy would be terminated immediately and that the HSE would re-imburse Mr. Egan for the damage done to the property. It was further understood that the Ms. A. and HSE staff would tidy up the property and remove Ms. A.’s belongings. 58. Sixth, the property was vacated at some stage by early Friday evening at the latest. I think that the keys were probably handed back to Mr. Egan at that juncture. Certainly, so far as Mr. Egan was concerned, Ms. A. had by that stage finally vacated the premises. 59. Seventh, Ms. A. left Retreat Lodge with her sister Ms. B. later on that Friday evening and went to meet some of her friends. She rebuffed all entreaties from social workers to return to Retreat Lodge. The social workers contacted Gardaí and sought unsuccessfully to locate her at various stages during that night. Even when she was located by Ms. Galvin, Ms. A. refused to get into the taxi to be brought back to Retreat Lodge. 60. Eight, Ms. A drank heavily that evening and had taken drugs. In the early hours of the morning of Saturday 1st October she either suggested to her friends that they repair back to No. 10 Percy Cottages for a further drinking party or she agreed to a suggestion to this effect which had been made by others. 61. Ninth, entry to the Cottage was most probably effected by the simple expedient of going around the back and breaking a back window. This was probably done by Mr. C and Mr. D. Ms. A was at all events quite indifferent to the fact that she and others were unlawfully in the premises. 62. Tenth, the fire was deliberately started at around 4.30am in the early morning of 1st October by certain persons - most likely Mr. C. and Mr. D. - who had entered the property unlawfully along with Ms.A and who were present at the party. They went upstairs, piled up mattresses in one room and set the mattresses alight. The others (including Ms. A.) evacuated the premises once they had smelt smoke and discovered that the property was ablaze. Part V: The Legal Issues In what circumstances can a third party be liable the actions of another? 64. In this context the seminal decision of the House of Lords in Dorset Yacht Co. Ltd. v. Home Office [1964] A.C. 1004 may be considered a useful starting point for an examination of how these principles have been applied in practice. In that case young offenders were working under the supervision of three prison officers on an island near Poole Harbour in Dorset. In breach of their instructions the officers simply went to bed at night leaving the trainees to their own devices. Not surprisingly, seven offenders escaped during the night and went aboard a yacht which they had found nearby. They then launched this yacht which then collided with the plaintiff’s yacht which was moored in the vicinity. Then they boarded the plaintiff’s yacht and did further damage to it. The plaintiff company then sued the Home Office in negligence in respect of this damage. 65. The House of Lords found for the plaintiff. In a celebrated judgment, Lord Reid noted that there had been negligence on the part of the prison officers concerned ([1970] AC 1004, 1026):
69. Forbes J. held (77 L.G.R. 636, 673-674) that there had been negligence on the part of the defendants:
72. The Court of Appeal held that there was no duty of care. Waller L.J. stated ([1984] 1 Q.B. 342, 352) that “the foreseeability required to impose a liability for the acts of some independent third parties requires a high degree of foreseeability.” 73. Robert Goff L.J. observed ([1984] 1 Q.B. 342, 359-360) that he knew of no case where:
75. The House of Lords rejected the claim that the defendants should be held liable in negligence. The various speeches of the Law Lords stressed that there was nothing inherently dangerous in the abandoned building and the defendants had no advance knowledge of the potential fire. As Lord Griffiths explained ([1987] 1 A.C. 241, 251):
the premises. In short, so far as Littlewoods knew, there was nothing significantly different about these empty premises from the tens of thousands of such premises up and down the country. People do not mount 24-hour guards on empty properties and the law would impose an intolerable burden if it required them to do so save in the most exceptional circumstances. I find no such exceptional circumstances in this case and I would accordingly dismiss the appeals.”
79. At this juncture it may be convenient to consider some of the Irish case-law dealing with the deliberate destruction of property and injuries caused to others by the actions of third parties. We may start with John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners [1993] 1 I.R. 315. That was a case where the defendant harbour authority had permitted consignees of shipments (including the plaintiff) to Drogheda port to unload and leave goods on the harbour quayside. The quayside was unenclosed, no security was provided and the general public used the quayside as a form of thoroughfare. The plaintiff unloaded a cargo of timber and paid the harbour dues, but several days later the timber was deliberately set on fire by a group of children and the consignment was virtually entirely destroyed. 80. While Flood J. accepted that whilst exposed in that position the goods “could be liable to damage by third parties, either deliberate or accidental”, this fact alone was not sufficient in itself to give rise to a duty of care ([1993] 1 I.R. 315, 320-321):
82. While the Supreme Court acknowledged that the theft of the vehicle was in these circumstances foreseeable, the Court held that it was not foreseeable that the car would be driven in a negligent manner by the thief. Having reviewed the authorities, Fennelly J. said ([2002] 3 I.R. 303, 214):
84. In Flanagan v. Houlihan [2011] IEHC 105, [2011] 3 IR 574 Feeney J. rejected the argument that a publican owed a duty of care to road users in respect of the supply of alcohol to patrons who were thereafter likely to drive. Feeney J. held that the imposition of a duty of care in such circumstances would be impractical and place an impossible burden on publicans, since there was no effective means whereby such publicans could ascertain whether patrons would later drive while under the influence of intoxicants. 85. How, then, should the Dorset Yacht principles be applied to the present case? In this regard, counsel for the HSE, Mr. Bland, stressed five fundamental points. First, he observed that there had not been any individual acts of negligence on the part of the HSE staff. Second, he emphasised that at the time of the fire, Ms. A. was of full age and that the HSE could not be said to be responsible for the independent actions of herself and her acquaintances. Third, he said that the chain of causation had, in any event, been broken once the tenancy had been terminated and the key returned. Fourth, he submitted that, 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. Fifth, he said that 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. 86. These arguments may now be considered in turn, starting with an examination of Glencar Exploration. The test in Glencar Exploration 88. It is perhaps unnecessary at this remove to subject the judgment of McCarthy J. in Ward to minute analysis in order to determine whether in fact his endorsement of the Anns principle formed part of the ratio of the Supreme Court’s decision. It is, perhaps, sufficient to say that even by the date of the Supreme Court’s decision in Ward in 1988, important voices in the common law world had expressed unease at many of these developments. This was particularly true in respect of any suggestion that the two stage test represented a universally applicable test governing the existence of a duty of care. Lord Brandon had expressed such a warning in Leigh and Sullivan Ltd. v. Aliakmon Shipping Co. Ltd. [1986] AC 785 and Lord Keith’s speech for the Privy Council in Yuen Kun-yeu v. Attorney General of Hong Kong [1988] A.C. 175 may be regarded as having presaged the demise of this test. The end came quickly thereafter with the two major judgments of the House of Lords in Caparo Industries plc v. Dickman [1990] 2 AC 605 and Murphy v. Brentwood DC [1991] 1 AC 398. 89. This was the general backdrop to the Supreme Court’s judgment in Glencar. Here the question was whether Mayo County Council owed the plaintiff a duty of care in the manner in which the Council had imposed a ban on gold mining, even if that ban had previously been held to be ultra vires. The Supreme Court answered this question in the negative. 90. Having traced the development of the law of negligence, both in England and elsewhere, Keane C.J. stated ([2002] 1 IR 84, 139):
95. It is against that general background that we can now consider whether the HSE should be made responsible for the conduct of third parties. Should the HSE be made responsible for the conduct of third parties? 97. This is the principle which, after all, lies at the heart of the prison cases where it is clear that the prison authorities may be liable in negligence in respect of their failure to take appropriate precautions to protect prisoners from their fellow prisoners, especially if this could have been anticipated in a particular case: see, e.g., Bates v. Minister for Justice [1998] 2 I.R. 81, Casey v. Governor of Midland Prison [2009] IEHC 466, Creighton v. Ireland (No. 1) [2010] IESC 50 and Creighton v. Ireland (No.2) (2013). As Fennelly J. said in Creighton (No.1), “prisoners are entitled to expect that the authorities will take reasonable care to protect them from attack by fellow prisoners.” 98. This also provides the explanation of the Supreme Court’s reasoning in Breslin where there was assuredly no such relationship between the car owner and the thief. Breslin may also be said to exemplify a wider principle, namely, that the courts are naturally anxious, where it is possible to do so, to limit the consequences of a simple individual act of carelessness. 99. It is true that the HSE is not generally responsible for the conduct of those young adults who are have been - but are not now - under its care. Yet there may well be circumstances where there is a special relationship between the parties giving rise to such a duty of care. It must be recalled that the assistance given to Ms. A. was given not simply gratuitously, but was provided pursuant to an express statutory power. Section 45(1) of the Child Care Act 1991 provides that:
(d) by arranging hostel or other forms of accommodation for him; (e) by co-operating with housing authorities in planning accommodation for children leaving care on reaching the age of 18 years.” 102. In this respect the present case can be distinguished from English decisions such as P. Perl and Smith. Those cases can all be explained by saying that, absent a special relationship, landowners owe no duty of care to neighbours or others to ensure that their property is not a likely prospect for thieves or vandals. The decision of Flood J. in James C. Doherty and that of Feeney J. in Flanagan are much in the same vein. 103. Next, painful as it is to say so, I am driven to the conclusion that there was, objectively speaking, negligence on the part of the HSE. That negligence consisted 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. Very little in Ms. A.’s troubled background suggested that she had either the sense of responsibility, discipline or the essential skill sets which made her suitable for independent living. She had a very long history of absconding from care homes and of engaging in personally reckless and promiscuous behaviour. Ms. A. furthermore associated with young males of a highly disreputable kind who themselves engaged in reckless and anti-social behaviour and who clearly had a negative influence on her. 104. One might add that her conduct in the days leading up to the fire was such as might well have put the professionals dealing with her on their guard. She had shown no insight into the vandalism (including the scrawling of graffiti on the walls) to the property in which she was at least complicit. She was also cheeky towards Mr. Egan when he remonstrated with her about this vandalism and she had consistently shown little regard for the property, as evidenced by the graffiti, the late night parties and loud music and general disrespect to the neighbours. Given her past record of impulsive behaviour - which was well documented - the fact that she went out drinking on the night she had been evicted from the property with the youths who had had a consistently negative influence on her, some of whom at least had already done damage to the property, might well have been regarded as a warning signal. 105. While one must always guard against the dangers of assessing events with the benefit of hindsight, it is nonetheless difficult to disagree with Dr. Randall’s conclusions in his expert report of May 16th, 2014 that it was reasonable to assume that the house which Ms. A. had just “vacated and recently defaced might well be a likely target of this impulsive behaviour.” 106. These were circumstances which, taken in the round, were not altogether different to those of the Vicar of Writtle. It was accordingly entirely foreseeable that the property was likely to be damaged by both Ms A. and her circle of friends once Ms. A. went into possession of the premises. Reverting to the language of Lord Reid in Dorset Yacht, this was the “very kind of thing” which was likely to happen once Ms. A. was placed in a property of her own. This was especially so given that there were no responsible adults present who could place appropriate boundaries on their behaviour. 107. Nor do I consider that the chain of causation was broken once the tenancy was terminated and the keys to No. 10 Percy Place returned early that Friday evening. At the very least Ms. A. acquiesced in the suggestion that the party should return to No. 10 Percy Cottages in the early hours of Saturday morning. The very reason why Ms. A and her friends went back to No. 10 Percy Cottages was because they knew that the property was vacant and available. Some of them had already attended parties and drinking sessions in No. 10 in the previous week and, even if they had not, they knew that No. 10 was a place where they could engage in drinking sessions free from the control and supervision of a responsible adult. Even if Ms. A. no longer had the key to the premises, those who returned to No. 10 knew that they could easily gain access through the back window to an otherwise vacant property. 108. I likewise consider that it is just and reasonable in the Glencar sense that a duty of care be imposed in such circumstances. One cannot but commend the entirely laudable actions of the HSE in endeavouring to care for such a troubled individual as Ms. A. But the State must also act in a fair and even-handed way towards all its citizens. If no such duty of care were to be imposed in these particular type of circumstances, it would expose innocent and absolutely blameless citizens such as Ms. Ennis and Mr. Egan to the risk of serious damage to their property in respect of which they had no right of recourse. 109. Take the position of Ms. Ennis. She has lost her house and has been forced to live in rented accommodation for the last nine years. She can justly say that none of this would have come about but for the actions of the HSE in placing a vulnerable teenager with a propensity for reckless and damaging behaviour in the house next door. Are her rights and interests to be disregarded in this equation? 110. Moreover, adopting the analysis of the just and reasonableness test so recently set forth by O’Donnell J. in Whelan, it can be said that the imposition of a duty of care in this type of situation is not novel and it finds expression in the English case-law in a series of cases from Dorset Yacht and Vicar of Writtle onwards. Clear analogies are to be found in our own prison cases, ranging from Bates to Creighton (No.2). Nor can it be said that what happened here was like the facts of Breslin where there was a single act of carelessness which enabled a third party to commit the tortuous acts which injured the plaintiff and where (unlike the present case) there was no special relationship between the ultimate tortfeasor and the careless citizen. 111. So far as the policy considerations are concerned, it must be recalled that, as O’Donnell J. pointed out in Whelan, the just and reasonable test itself encompasses policy considerations. It is sufficient to say in this context that if a duty of care can be imposed on the State in supervising and caring for prisoners, the same can be applied by analogy in respect of HSE staff charged with the equally demanding and difficult task of supervising troubled teenagers. 112. In this respect, the present case is very different from cases such as X (minors) v. Bedfordshire County Council [1995] 2 AC 633 on which Mr. Bland SC relied. In that case the House of Lords declined, on policy grounds, to impose a duty of care on local authorities who either use (or, as the case may be, failed to use) statutory powers to take children into care. Lord Browne-Wilkinson reasoned that, given the invariably fraught nature of these cases, there was a real risk that local authorities would be dissuaded by external factors (such as the risks and costs of litigation) from giving proper consideration to the exercise of their statutory powers. These were considered to be sufficiently powerful public policy factors in their own right which dissuaded the House of Lords from imposing such a duty of care: see especially [1995] 2 AC 633, 750-751, per Lord Browne-Wilkinson. 113. That type of consideration simply does not obtain in a case of this kind. It must be recalled that, as O’Donnell J. pointed out in Whelan, the just and reasonable test itself encompasses policy considerations. It is sufficient to say in this context that if (as has been made clear by a series of decisions of this Court and the Supreme Court) a duty of care can be imposed on the State in supervising and caring for prisoners, the same can be applied by analogy in respect of HSE staff charged with the equally demanding and difficult task of supervising troubled teenagers. Part VI: Conclusions Conclusions 114. In conclusion, therefore, I would hold that the HSE did owe the plaintiff a duty of care by reason of its special relationship with Ms. A. Although the individual social workers showed huge commitment and dedication to the welfare of Ms. A., viewed objectively, it was negligent to conclude that Ms. A. was suitable for independent living when she plainly unsuited to this. 115. Against this background it can be said that it was entirely foreseeable that the property would be damaged once Ms. A. was left to her own devices essentially unsupervised in the property. It was further just and reasonable and in line with established precedent that a duty of care should be imposed. It follows 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.
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