High Court (On appeal from the Circuit Court, Western Circuit, County of Mayo)

Treston v Mayo County Council 

No 229/97 

6 July 1998 

MORIARTY J: 

The facts emerging in evidence upon the hearing of this appeal at Castlebar were not substantially in controversy, and may be summarised with relative brevity. 

The Plaintiff, an English national, had for many years lived and reared her family with her Mayo born husband in Islington, Greater London. In or about 1992, his long term employment with another London Local Authority was determined by reason of redundancy, and the couple resolved to fulfil Mr Treston's wish to retire to Mayo, an area the Plaintiff had also found congenial on various visits. In the course of a 1993 summer holiday, various properties were shown to the couple in the Ballyhaunis area by a Mr Campbell, a local auctioneer, including the premises at No 14 Station Rise, Ballyhaunis. This transpired, as photographs produced in evidence confirm, to be part of a reasonably spacious and pleasant local authority estate, some other houses of which had already been privately purchased from the Defendant, on foot of one of the tenant purchase schemes that by then had already become prevalent. Both the Plaintiff and her husband were impressed and interested in possible purchase, and in August or September of 1993 she made further inquiries of the Defendant by telephone from Islington. There is some controversy about the identity of the person with whom she spoke and the content of the conversation, insofar as the Plaintiff believes she then conversed with a Mr Gilbert Groarke, Housing Officer to the Defendant, whereas the Defendant's evidence suggested that neither Mr Groarke nor his deputy had spoken to the Plaintiff, and that it would not have accorded with the Defendant's policy or practice to give representations or assurances to prospective purchasers along the lines of the Plaintiff's recollection. However, having heard and assessed the evidence, I am satisfied as a probability that some servant or agent of the Defendant professing himself competent in housing matters did state to Mrs Treston in regard to the estate that the Defendant would upgrade and sell off houses wherever possible to tenants already in occupation, and that this appreciably influenced the Plaintiff's decision to proceed with purchase. Matters then moved swiftly, the Defendant consented to the proposed transfer, and the sale of the dwelling to the Plaintiff and her husband was closed in October 1993, following which they took up residence in late 1993. Approximately £3,000 was spent on renovations and decor, and the Plaintiff described a virtually idyllic first six months in County Mayo, amongst supportive and kindly neighbours. 

The first intimation of possible trouble came, she recalled, when word went round the estate that No 16 Station Rise, the then vacant dwelling two doors away from her, was being given as tenants to a family of travelling persons who were known to be trouble makers from Ballinrobe. In conjunction with her husband and neighbours by the name of McGowan, the Plaintiff drew up a petition, signed by 16 neighbouring families, calling upon the Defendant to ensure that a prospective allocation on this basis did not proceed. She also made strong representations to Mr James Higgins, one of her local TDs, and requested that he take up the matter on their behalf. In evidence she was adamant that she had no prejudice against travelling people: the estate already had a number of harmoniously integrated settled families, amongst whose members were persons represented on the tenants association. The family in question, who being unrepresented need not be named, duly arrived to No 16, and the Plaintiff stated that from the very outset the quality of life in her portion of the estate radically declined. Unruly children of the home constantly provoked her guard dog and flung stones and other missiles at the house, disposable nappies and other debris littered the garden, and nocturnal festivities until the small hours of the morning proceeded very noisily on a couple of occasions each week. When these matters and other sources of complaints such as frequent obscene language were brought to the attention of the parents, the Plaintiff was informed in the strongest possible terms that it was none of her business. Notwithstanding numerous complaints to the Defendant and to the local Gardai, these matters increased and intensified as months and years passed by, grossly disrupting the enjoyment of life of the Plaintiff and her husband, the latter of whom died on the 4 June 1996. She required medication from her general practitioner Dr Grogan, and stated that the whole matter had "aged her 20 years". When the family was belatedly moved by the Defendant to another location virtually three and one third years after their arrival, she stated that the estate very quickly reverted to its previous happy co-existence. She in any event had little remaining connection with Mayo upon her husband's death, and sought unavailingly to sell the premises to the Defendant, and also put them on the books of a local auctioneer for sale, but found that a number of intending purchasers were deterred by the neighbouring unruly family. Eventually she placed the matter in the hands of another auctioneer, who some months after the other family had moved out succeeded in the early part of this year in negotiating a sale of the premises for £25,000. There was a measure of controversy in argument and evidence of auctioneers on each side as to whether or not she was in the circumstances occasioned a downturn in value because of the matters complained of. Apart from that auctioneering evidence, and Garda evidence confirming various calls to the estate to deal with complaints against the family, the other main evidence on behalf of the Plaintiff was that of Mr James Higgins TD, who for much of the time in question was also Government Chief Whip and a Junior Minister. He referred to the numerous verbal and written representations made by him on behalf of the Trestons and McGowans, the latter of which were incorporated into an agreed booklet, both before and after the arrival of the family. He stated that he was fully sensitive to the Defendant's requirement to house travelling families and seek to settle them in Local Authority estates, and had found this to have worked broadly successfully. However in all his time as a public representative at both local and national level, he had encountered no other attempted settlement that had produced such "a constant torrent" of complaints, and he believed the course to have been misconceived, or one that should have been addressed in the first instance by some more gradual strategy. His frequent representations had been unsuccessful, he had received only "a litany of excuses", and the problems had continued unabated right until the family's belated relocation. 

The evidence on behalf of the Defendant commenced with that of Mr Groarke aforesaid who was followed by his Deputy or replacement in the Housing Section, Mr Padraig Flanagan. Neither had any recall of the telephone conversation referred to by the Plaintiff, each stated that representations such as were relied upon by the Plaintiff would not have accorded with Council policy at the time, and Mr Groarke stated that the Defendant did act on the matter eventually, and that to have done so earlier would have meant putting the family on the side of the road. Following auctioneering evidence which is not at this juncture relevant, testimony was given by Mr Sean Smith, who initially had been administrative officer during the time in question, and subsequently had been assigned to the Housing Department of the Defendant. He confirmed that the policy of integrating travellers in group housing schemes or halting sites had broadly proved a success, notwithstanding occasional difficulties with residents' or tenants' associations. He alluded to the difficulties that would accrue to Local Authorities if, in addition to duties to house travelling and homeless persons, they were also to be under a duty to adjoining owners or tenants. He referred to the criteria used by the Defendant in allocating housing resources, foremost amongst which would be homelessness or persons living in unfit or dangerous conditions; on this basis, the family in question, containing several young children living in an inadequate caravan, would have been a high priority. He had sought to deal with the complaints and had remonstrated with the family in question, but had been handicapped both by inadequate physical and financial resources, and also by the reluctance on the part of the Trestons or McGowans to agree to testify in support of ejectment proceedings based on unruly behaviour. That it eventually proved possible to transfer the family was largely due to resources which he became aware of as being available from the Department of the Environment, and also the fact that the family had almost constantly been substantially in arrears of rent to the Defendant. The final defence witness was Ms Mairead Cowley Social Worker to the Defendant. She had been substantially involved in dealings with travelling families, and had made several visits to the family in question with a view to assessing their suitability for the proposed move. She had had regard to several factors in making her assessment, including their previous state of accommodation, their family structure, their accommodation history, their personal preference and their motivation for settled housing. She was particularly influenced by the fact that both parents had been reared and lived in settled housing before opting to return to the travelling life. She had no reason to believe that the move would not work out, and on visits to the family when in residence had stressed to them the importance of not causing problems with neighbours. 

On behalf of the Plaintiff, Mr Maguire Senior Counsel submitted that she was entitled to succeed and recover damages on alternative grounds of breach of collateral contract, negligence and negligent misrepresentation. In both written submission and a verbal reply, (which had also been relied upon in the course of a direction application), Dr Forde Senior Counsel in essence submitted that no stateable redress arose in contract, and that, whatever the factual finding on the alleged representation, no duty of care should in the circumstances be found to be owed by the Defendant to the Plaintiff. It was also argued that, in any event, Irish authorities indicated that only in exceptional circumstances should redress be awarded for financial loss. 

In ruling on the legal issues, the least difficult is that which I already in effect intimated in the course of the hearing, namely that the Plaintiff cannot hope to succeed in any claim based on breach of collateral contract, insofar as no contractual nexus existed between her or her late husband and the Defendant. Whatever may be the relevant factors in the relationship between the parties in the context of deciding as to the existence of a duty of care, it was from their predecessors in title, not the Defendant, that the Plaintiff and her husband purchased the house, and there can be no question of any legal consideration moving from the Plaintiff to the Defendant in return for any representation made by it. Accordingly a claim based on breach of contract must clearly fail. 

The concept of negligent misrepresentation at common law was recently considered by the Supreme Court in the case of Pat O'Donnell & Company Limited v Truck and Machinery Sales Limited, in which judgments were delivered on the 1 April 1998. In page 11 of his judgment in that case, O'Flaherty J stated as follows: 

"Was there a negligent misrepresentation at common law? The duty of care expected in regard to innocent but negligent misrepresentation was crystallised in the decision of the House of Lords in Hedley Byrne & Company Limited v Heller & Partners Limited [1964] AC 465, and which decision was followed in our jurisdiction for the first time by Davitt P in Securities Trust Limited v Hugh Moore and Alexander Limited [1964] IR 417. Davitt P defined the context in which liability may arise as follows: 

"Circumstances may create a relationship between two parties in which, if one seeks information from the other, and is given it, that other is under a duty to take reasonable care to ensure that the information is correct." 

Denning MR put it thus in Esso Petroleum Company Limited v Mardon [1976] 2 All ER 5 at page 16. 

"If a man who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another/be it advice information or opinion/with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice information or opinion is reliable. If he negligently gives unsound advice or misleading information or expresses an erroneous opinion, and thereby induces the other side into a contract with him, he is liable in damages". 

The old law was that the only remedy for an innocent misrepresentation was recission of the contract. It seems to me that the concept of negligent common law misrepresentation is much more relevant to a situation where the parties involved do not enter into contractual relations with each other but that the party to whom the representation has been made perhaps enters into contractual relations with someone else, or alters his position to his detriment in some other way. 

Was there either in general terms, or in the specific context of the dealings had between the parties, a duty of care owed by the Defendant to the Plaintiff? If so what was the degree or extent of that duty of care, and what injury or losses suffered by the Plaintiff would be recoupable as damages? Just as a particular duty of care may be limited through the exercise of reconciling conflicting objectives of public policy, as in Dunne v National Maternity Hospital [1989] IR 91, so may a different type of duty of care be heightened, as with a motorists need of vigilance in respect of children playing in built-up residential areas. 

Obvious conflicting objectives here also arise. I believe I am entitled to take notice of my own experience both in Court and as former Chairman of the Lord Mayor's Commission on Crime in Dublin (December 1994) in noting that harassment and intimidation of vulnerable residents in local authority estates is a significant and probably underestimated social evil, and that it is desirable that some measure of legal protection and redress be accorded to such victims. But it must also be accepted that local housing authorities are bound by law to make provision for the homeless, for travelling persons, and for other disadvantaged groups, and if correlative obligations so arduous and far-reaching were to be imposed on such authorities as to make them tantamount to insurers against every arguable grievance or complaint advanced by an owner or tenant householder, the discharge of their basic duties and functions could be rendered unmanageable, apart from encouraging the bringing of large numbers of spurious and unmeritorious claims. Nor should it be forgotten that the syndrome of quarrelsome or unruly neighbours is by no means peculiar to persons residing in local authority estates. 

Having considered ail the evidence and submissions, I conclude as follows: 

1. Although the findings that I have made as to the facts of the present case relieve me from the task of deciding whether or not a general duty of care binds a local housing authority to an incoming purchaser in one of its estates in a context of housing inordinately disruptive or unruly tenants in close proximity, I incline to the view that such a duty, given the core functions and duties of such authorities, would be inordinately far reaching and depressive, or at most should be found only in the most coercive and flagrant instances. 

2. The position of the Plaintiff is here significantly relieved by the fact that she sought specific assurances and advice as to the management of the estate from the defendant when contemplating purchase, and was assured, as I have found, as to a policy of upgrading the estate and selling off to tenants already in occupation. Although not contractually bound, the connection between the parties was inherently significant and close, requiring the consent of the Defendant to the sale to the Plaintiff and her husband, and I am satisfied that the content of the telephone conversation in question significantly affected the Plaintiffs resolve to proceed to purchase. 

3. I accept that the conduct of the neighbouring family was and continued to be for ten days short of three and one third years of a disruptive and offensive nature to an extent that significantly diminished the Plaintiffs enjoyment and quality of life in her retirement, and required attention and medication from her doctor. The Defendant could not legally or morally abandon the offending family, and in particular its several young children, and whilst the benefit of hindsight suggests their allocation to Station Rise may have been sanguine, I acknowledge it was based on a bona fide professional evaluation. However, even if bringing the family to Station Rise was warranted at the outset, I cannot accept that permitting so fraught a situation as promptly resulted to endure for so lengthy a period was acceptable or reasonable, given the frequency and intensity of complaints made by and on behalf of local residents, the somewhat torpid response by the Defendant thereto, and the fact that the complaint of rent arrears that ultimately formed the legal basis for moving the family was one that seems to have been applicable at an early stage. 

4. In these circumstances I am of opinion, applying the principles set forth by the Supreme Court (Supra) that the Plaintiff is entitled to recover some measure of damages for negligent misrepresentation at common law. In assessing what seems to me an appropriate amount, I am taking into account as a relevant factor, all be it not formally discounting her entitlement on a contributory basis as provided for by the Civil Liability Acts, her unwillingness to testify against the family in support of District Court ejectment proceedings when so requested by the Defendant. This may not have been a palatable course for her, but it has not been seriously suggested that circumstances of intimidation or threatened reprisals existed to deter her, and assistance from her in this regard could materially have alleviated or at least truncated her period of disruption. 

I award a sum of £5,000 on a basis of £2,000 per annum for two and a half years of the period in question, as compensation for what the Plaintiff experienced. The auctioneering evidence on both sides was somewhat inconclusive, but it seems to me probable overall that some rather marginal shortfall in the house value was occasioned, and I assess £1,500 in this regard, giving rise to an aggregate decree in favour of the Plaintiff of £6,500. It may be that in addressing issues of damages, I have taken some liberties with both the Equity Civil Bill and defence as pleaded, but I am satisfied having regard to the manner in which the case was conducted and argued on both sides at hearing, that I should exercise an appropriate discretion.