AN CHÚIRT UACHTARACH
THE SUPREME COURT
O‘Flaherty J..
Murphy J.,
Barron J..
(247/98)

BETWEEN:

ROSEANNA HEENEY, ELAINE BERAGAN, CARMEL GUINETY-SMITH, LILLIAN BRENNAN, CAROLINE O’LEARY, WILLIAM MEREDITH, JUILE McNEVIN, BETTY COLLINS, MAURICE COLLINS AND SEAN O’CIONNAITH
Plaintiffs/Appellants
.V.

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSES OF DUBLIN

Defendants/Respondents

Judgment (ex-tempore) delivered on the 17th day of August, 1998, by O’Flaherty J.

This is an appeal brought by the plaintiffs from the judgment and order of the High Court (Smith J.) of the 14th August last refusing the plaintiffs interlocutory relief by way of an injunction to command Dublin Corporation to take certain steps in relation to the breakdown in the elevator (or lift) services in the Ballymun flats complex, in the City of Dublin.

The background to the matter is well set forth in the affidavit sworn by Mr. Joseph Morrissey, who is a senior engineer in the Electrical Services Division of Dublin Corporation, and who says in his capacity as senior engineer that he has responsibility in relation to the maintenance of lifts in

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Dublin Corporation properties. The position is that all of the lift maintenance requirements of Dublin Corporation are contracted out to outside contractors and that this has always been the case.

In Ballymum, the responsibility for lift maintenance is contracted out to Pickerings Lifts Limited (hereinafter “Pickerings”). There is no formal written contract in place between Dublin Corporation and Pickerings; however, the services provided by Pickerings cover a three year period on foot of a detailed specification. The provision of lift maintenance services is monitored by Mr. Des Feeney, who is a lift inspector in the employ of Dublin Corporation. Mr. Feeney does not himself carry out repairs to lifts or lift maintenance work and, indeed, the requirements of the Corporation in relation to lift maintenance would far exceed that which could be met by a single employee. His role is of a supervisory nature and is intended to ensure that the various contractors engaged by Dublin Corporation carry out their contractual responsibilities in a proper manner.

In relation to the Ballymun apartments, 18 employees of Pickerings are engaged in the provision of lift repair or lift maintenance services, Of these, 10 are assigned to the carrying out of lift maintenance functions. The other eight are engaged in refurbishment works which are being carried out to four lifts in Ballymun.

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It appears that the Ballymun fiat complex comprises 2,814 flats. There are a total of seven tower blocks which are sixteen storeys high (including the basement and around floor). There are two lifts in each of the tower blocks. which operate on a “skip stop” basis, that is to say that they stop on every other floor. One lift stops on floors having even numbers and the other stops on floors having odd numbers. There are 59 blocks, eight storeys high, arranged in clusters of three or four, called “spine blocks” from their appearance in the original drawings. The 59 individual blocks are physically contiguous within the various “spine blocks” but have no communicating connections between them. Each of these 59 individual blocks is serviced by a single lift.

The maintenance service has been interrupted as a result of industrial action on the part of employees of Pickerings, who are members of the trade union, the Technical, Engineering and Electrical Union (“T.E.E.U.”). It seems the strike is part of a countrywide strike of employees of lift maintenance contractors. It does not only affect the Ballymun housing estate, it also affects other places. However, it affects the Ballymun housing estate very severely because of the height of some of these apartment blocks. The strike has been in force since the 13th July, 1998. There was a local strike affecting Pickerings’ employees only from 30th June, 1998. All of the lifts in the Ballymun complex which are out of service and unrepaired are in this condition

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as a result of the strike of the employees of the contractor. Some four of the lifts were undergoing refurbishment when the strike began. These four lifts were stripped out. The repair works were not completed before the strike was called and these lifts remain out of service.

Mr. Morrissey deposes that the current position is that of the total of 73 lifts, some 54 are out of service as of the morning of 11th August, 1998. He accepts that this of course involves serious inconvenience to tenants and is a matter of the utmost concern to Dublin Corporation. It is said that the T.E.E.U. members concerned rejected a Labour Court recommendation; the dispute essentially is about pay. A strike ballot took place and Dublin Corporation received notice that the lift engineers engaged by the contractors would be on strike from l3th July, 1998.

Mr. Morrissey deposes that he has arranged with the union that they will provide emergency services. He says that he went out to Ballymun on several occasions to assess the situation and had a number of conversations with the representatives of T.E.E.U. members, in particular Dick Roche, who was acting as a shop steward for the Ballymun lift maintenance engineers. Mr. Morrissey deposes:-

“I conveyed to Mr. Roche the serious concern of Dublin Corporation in relation to the situation at Ballymun, of which, 

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indeed, he was already fully aware. It was agreed by Mr. Roche that in addition to the provision of emergency services:

(i)	That in each of the seven tower blocks, one lift per block would be maintained in operation by the union’s members

(ii)	That in relation to blocks where there were wheelchair users, that the lift used by the wheelchair user would be maintained”

He goes on to depose:-

“While the situation remains entirely unsatisfactory, from the point of view of Dublin Corporation and of the tenants, I believe that the union members have abided by the foregoing agreement;

(i)	One lift is maintained operational in each of the 7 tower blocks (although a difficulty can arise when the operational lift requires maintenance or repair work, in that there is no lift servicing the block itself until the repairs or maintenance has been effected)

(ii)	In relation to wheelchair users, the position is that four lifts have been maintained in operation on that account.”

He deposes that:-

“Both the elected members of Dublin Corporation and its officers and personnel have been extremely concerned to ensure that

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whatever lift maintenance service can be provided is provided to the Ballymun Housing Estate. Arising out of the meeting of Dublin Corporation’s Special Committee on Ballymun. the Corporation wrote on 20th July, 1998 to

(i) The T.E.E.U.
(ii) I.B.E.C.
(iii) Pickerings Lifts Limited

requesting that Ballymun be recognised as a special case, ‘given the dreadful inconvenience and hardship being suffered by young mothers with children and senior citizens, who depend so much on the lift service’, and that Ballymun Estate be exempted from the strike.

No intimation has been made to the Corporation that the T.E.E.U. is prepared to accede to the request made on behalf of the Special Committee on Ballymun to exempt Ballymun from the strike.”

So that broadly is the picture in relation to these lifts. I do not intend to go through all the affidavits: many have been filed on behalf of the plaintiffs. However, I will take the first plaintiff Mrs. Roseanna Heeney’s case as it is accepted on all sides that hers is the worst case.

Mrs Heeney deposes that she is 76 years of age. She lives alone on the 7th floor (8th storey) of Balcurris Road, Ballymun (one of the tower blocks).

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She has been a tenant of the Corporation for about ten years. About two years ago she had a hip replacement operation and then she had another operation. She has to take medication in respect of various problems that she experiences including a heart condition and high blood pressure. Her flat is serviced by one lift which has not been working since the 30th June, 1998.  Since that date she has been unable to leave her flat except to go out onto the balcony. She deposes:-

"I have not left the seventh floor of my building since the 30th June, 1998. I cannot go out onto the balcony when it’s raining because the roof above the balcony has a leak. I walk up and down the balcony with my stick. Before the lift stopped working, I would go to the Eastern Health Board Clinic on a daily basis, but now I am unable to do so.  Young nurses do come to visit me but the doctors will not come up because of security concerns.”

She goes on:-

“A lot of people who used to visit me cannot do so now because the lift does not work. I am worried that if I take a turn, it will be difficult for me to get help.”

She regards herself as a prisoner in her house. Other affidavits set forth the hardship that is being suffered by the various plaintiffs and other people in the flats complex. I take it to be common case that the Corporation does prima

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facie have an obligation under the general law, see Siney v. Dublin Corporation [1980] IR 400 and other related cases, as well as under the tenancy agreements, to provide a reasonably efficient lift service. That point is conceded by Mr. Ryan SC, very fairly.

It is beyond debate that there is a hierarchy of constitutional rights and at the top of the list is the right to life, followed by the right to health and with that the right to the integrity of one’s dwellinghouse.  The Constitution expressly provides that the dwelling of every citizen is inviolable and cannot be forcibly entered save in accordance with law. In my judgment, the corollary of that guarantee must be that a person should be entitled to the freedom to come and go from his dwelling provided he keeps to the law. So there is here a very serious situation from the point of view of the plaintiffs.

Mr. Ryan SC in the course of his very able and frank submission, accepts the validity of all of this.  However, he asks: what more can his clients do? He says they have done everything they could to alleviate the situation of those who are enduring hardship and, for example, that they provide a senior citizens’ service for those in a bad state. 

Mr. Walsh SC for his part says that perhaps the Corporation has not done enough. There may be other steps that could be taken.  Just because there is a dispute between these particular lift service maintenance operators, Pickerings, 

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on the one hand and the union on the other hand, are his clients to suffer to this degree?

So after a process of debate we have reached the stage, I think, where Dublin Corporation, through Mr. Ryan SC, are prepared to comply with the following order: -

ON CONSENT IT IS ORDERED that the defendants (Dublin Corporation) take all reasonable steps within their power and authority to explore every means so as to repair or have repaired and when repaired to keep maintained the lifts in the Ballymun complex so that the plaintiffs and each of them may enjoy the use thereof in accordance with their rights under the law and their tenancy agreements pending the hearing of the action.

All persons with knowledge of this ORDER are restrained from acting directly or indirectly in any manner calculated to frustrate the operation of this order.

Liberty to any affected person to apply.

The order of the High Court is reversed to the extent necessary to give effect to this order. The other requirements of the High Court order in regard to the expedition of the delivery of pleadings and so forth are to stand.