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McShane Wholesale Fruit and Vegetables Ltd. v. Johnston Haulage Company Ltd. [1996] IEHC 57 (19th January, 1996)
High
Court
McShane
Wholesale Fruit and Vegetables Limited
(Plaintiffs)
v.
Johnston
Haulage Company Limited and Carbrook Chemicals Limited
(Defendants)
No.
32ca of 1994
[19th
of January, 1996]
Status:
Reported at [1997] 1 ILRM 86
Flood
J.
1.
This matter comes before this Court by way of notice of appeal from the whole
of the judgment of the Circuit Court given on 14 December 1993.
2. The
plaintiff’s complaint in the indorsement of claim on the civil bill
herein is:-
4. The
plaintiff was at all material times the occupier and carrying on business from
the premises 106 Castleforbes Industrial Estate, East Wall, Dublin 1 which said
premises adjoins the premises situated at No. 2 Castleforbes Industrial Estate
which at all material times was under the occupational control of the
defendants herein in each one or other of them their servants and agents.
5. On
or about 18 February 1991 a serious fire occurred on the defendants’ said
premises as a result of which the plaintiff’s premises suffered a loss of
electrical power in consequence of which it suffered loss and damage in
carrying out its wholesale fruit and vegetable business.
6. The
said fire and consequent loss of power to the plaintiff’s said premises
was occasioned by reason of the negligence and breach of duty, including
statutory duty and/or a nuisance of the defendants, their servants or agents.
Particulars
(a) Causing
or permitting a fire to take place on their said premises.
(b) Causing
or permitting dangerous and inflammable substances to be stored on their said
premises.
(c) Storing
the said substances in close proximity to bales of paper and other combustible
materials.
(d) Failing
to take any or any adequate measures whether by way of periodic or other
examination, inspection, test or otherwise to ensure that a fire would not
occur on their said premises.
(e) Failing
to take any or any adequate precaution to ensure that the said fire would not
spread to and cause damage to the plaintiff and its said premises.
And
finally,
7.
Further or in the alternative, the defendants their servants or agents failed
to adequately ensure that the said premises would not constitute a fire hazard
having regard in particular to the storage of dangerous inflammable substances
whereof they thereby maintained a public nuisance by reason whereof the said
fire occurred thereby causing damage and expense to the plaintiffs company.
3. The
defendants and each of them filed defences which may be generally described as
being traverses of the allegations of fact, a plea that the loss or damage was
not reasonably foreseeable and was too remote and a plea by way of estoppel on
the premises that the said fire was an accidental fire and that in consequence
no cause of action arose therefrom and there is an estoppel from maintaining
the claim pursuant to s. l (l)(a) of the Accidental Fires Act 1943.
4. On
the matter being opened in this Court, I was advised that the plaintiff and
defendants had agreed that I should try a preliminary issue as to whether
economic loss consequent on a negligent act is recoverable as damages, within
this jurisdiction.
5. In
Ireland since the Supreme Court decision in
Ward
v. McMaster
[1988]
IR 337; [1989] ILRM 400, the test for actionable negligence is:-
(a)
A sufficient relationship of proximity between the alleged wrongdoer and the
person who has suffered damage.
(b)
Such relationship that in the reasonable contemplation of the former
carelessness on his part may be likely to cause damage to the latter – in
which case a
prima
facie
duty
of care arises.
- Subject
always to any compelling exemption based on public policy.
6. McCarthy
J stated the position as follows at pp. 349/409:-
.
. . I prefer to express the duty as arising from the proximity of the parties,
the foreseeability of the damage and the absence of any compelling exemption
based on public policy. I do not in any fashion seek to exclude the latter
consideration although I confess that such a consideration must be a very
powerful one if it is to be used to deny any injured party his right to redress
at the expense of the person or body that injured him.
7. The
quality of the damage does not arise. It can be damage to property, to the
person, financial or economic – see
Sweeney
v. Duggan
[1991] 2 IR 274. The question as to whether the damage (of whatever type) is
recoverable is dependent on proximity and foreseeability subject to the caveat
of compelling exemption on public policy.
8. In
short, the proximity of the parties giving rise to the duty of care must be
such, as a matter of probability to be causal of the damage. If it is not, the
damage is too remote and the action will fail. It will fail not because the
damage is of a particular type but because the relationship between the
wrongdoer and the person who suffers the damage does not have the essential of
sufficient relationship of proximity or neighbourhood.
9. It
therefore follows that the fact that the damage is economic is not in itself a
bar to recovery where the other elements above stated are present.
10. Whether
the damage in this instance is or is not too remote is a question of fact to be
determined on evidence.
© 1996 Irish High Court
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