High Court of Ireland Decisions

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.

24. These costs have been agreed in the sum of £25,000.

25. These have been agreed at a sum of £800.

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.

28. These have now been agreed at £11,000.

29. I now turn to the areas of controversy.

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.

33. For the Defendants Mr Pain gave the following evidence.

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.

67. The total award to be made in favour of the Plaintiffs jointly is therefore as follows:

68. Costs of repairs £25,000.00

69. Miscellaneous expenses £800.00

70. Planning appeal fees £500.00

71. Cost of rental accommodation £2,500.00

72. Professional fees £11,000.00

73. Contingency money £5,000.00

74. Diminution in value of Plaintiffs' home £65,000.00

75. Aggravated damages £7,500.00

76. Damages payable to Mr Todd severally

77. Damages payable to Mrs Todd severally for

78. Personal injuries to Mrs Todd