Concurrent Wrongdoers and The Negligent Demolition of a House: O’Shaughnessy -v- Limerick County Council

Section 11 of the Civil Liability Act of 1961 provides that two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person for the same damage, whether or not judgment has been recovered against some or all of them.

Section 21 (2) of the Act provides as follows:-

(2) In any proceedings for contribution under this Part, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor's fault, and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.

The provisions of the Act were recently considered in O’Shaughnessy v Limerick County Council & Ors1.

The plaintiffs in this case were carrying out refurbishment works to their house, so that the gable wall at one end of the house had been removed, as well as the roof.  Works were suspended for a period due to illness of one of the plaintiffs.  The defendant consulting engineers, a joint venture which included RPS Consulting Engineers (in these notes, and the judgment, referred to as ‘RPS’), had been retained by Limerick County Council (‘LCC’) to provide design and related services in connection with the design and construction of a 38km stretch of dual carriageway from Nenagh to Limerick, including geotechnical and geological advice, architectural services, safety audits, property ownership searches and mapping required for design.

RPS, pursuant to its contract with LCC, prepared a map for the lands to be acquired by compulsory purchase, which referred to a plot of land that included a ‘derelict house and land’. The Council’s engineer who was tasked with photographing the lands subject to the CPO, however, could not see a derelict house on the relevant lands, and instead photographed the plaintiff’s house nearby.  The photograph was included in the demolition contract, and the house was demolished.  The court heard evidence that the demolition contractor had even sought confirmation that the house was to be demolished once they had seen a planning notice at the site, but that the Council had confirmed the order for demolition.

The Court, in determining causation, observed that the damage caused to the plaintiffs’ property was not the result of any single act, i.e. the designation of the house as derelict in the CPO, or the inclusion of the property in the demolition contract, but ‘rather was a consequence of a series of acts and omissions in which each of LCC and RPS played a part’.  He noted in this regard that the Council had failed to refer to the EIS in determining the boundaries of the sites to which the CPO applied, but that the Council engineer’s opinion that the plaintiff’s house was to be demolished was in itself based on RPS’s identification of the lands as having a ‘derelict house’.

The Court held as follows:

  • the demolition contractor was not negligent, as it is had been given a photograph of the plaintiff’s house as part of the demolition contract, and had carried out a visual inspection of the site with the Council’s engineers;
  • RPS failed in its duty to supervise the site properly, to ensure that its engineers were familiar with the boundaries of the site, and in failing to check that the premises shown in the photograph provided by the Council’s engineer was in fact located at the plot to which the CPO applied, or that it was one of the premises scheduled in the EIS for demolition.
  • LCC was negligent in instructing RPS to include the plaintiffs’ plot in the demolition contract, in incorrectly identifying the plot, and in failing to ensure that its personnel were sufficiently familiar with site boundaries.

The High Court accordingly attributed liability for the wrongful demolition of the plaintiffs’ house as to 30% to Limerick County Council and 70% to RPS.  

For further information on this topic, please contact Peter Kearney in our litigation department

1O’Shaughnessy v. Limerick County Council, the National Roads Authority, RPS Consulting Engineers and EGIS Route-Scetaroute SA [2015] IEHC 389

Keywords: Publication, Deirdre Ní­ Fhloinn, Construction, Commercial Litigation

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