Professional Practice

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Professional Practice Case Law Report Table of Contents Case description…………………………………………………………………………….... 3
  • Images related to the case
Material facts of the case………………………………………………………………………4 Explanation of the legal areas outlined in the judgment…………………………………….. 5
  • Tort Law Overview
  • Negligence
  • Nuisance (Private and Public)
  • Duty of Care
Analysis of the decision……………………………………………………………………….7
  • In the case of Negligence
  • In the case of Duty of Care
  • In the case of Nuisance
Reflective learning……………………………………………………………………………8 Bibliography. …………………………………………………………………………………9 Case Description THE HIGH COURT ON CIRCUIT Record Number: 998/03 SOUTH EASTERN CIRCUIT COUNTY OF WATERFORD
  • Plaintiffs : Oliver Dempsey and Elizabeth Dempsey
  • Defendant : Waterford Corporation
  • Judgement Title : Dempsey & Anor –v- Waterford Corporation
  • Neutral Citation : [2008] IEHC 55
  • High Court Record Number: Circuit Court 998/03
  • Judgment by: Peart J.
  • Composition of Court: Peart J.
Images related to the case (www.google.ie/maps) (www.google.ie/maps) Grattan Quay street view Dyehouse lane street view (www.osi.ie) (www.osi.ie) Grattan Quay OSI map Dyehouse lane OSI map Material Facts of the Case In the case of Dempsey & Anor- v- Waterford Corporation [2008] IEHC 55 (29 February 2008) the first material fact presented is that the plaintiffs purchased the house in 1984which they then restored and renovated. On the 3rd of March 2000, the plaintiffs discovered that the floor which was laid in the plaintiffs’ living room had buckled without any warning and noxious smell had developed in the room. Following this discovery by the plaintiffs a dye test inspection was carried out by Mr Chris O Sullivan which involved running a dye through the pipes in the street to see if any dye entered the living room of the plaintiff. Thereafter the plaintiffs ‘excavated their floor which revealed old 17th century drains. After further investigation it was revealed that the pipes went out of the house and also that the pipe was badly blocked A fact of central importance was noted that the defendant carried out major sewer renewal works on the main sewer and branch pipes on Grattan Quay. One of these branch pipes was located on Dyehouse Street and this pipe was previously inspected using the dye test as mentioned earlier. Mr O Sullivan stated that the defendant was unaware of these drains as they did not appear on maps or records leading to the defendant denying any negligence or fault in his case. Furthermore the defendant claims that the plaintiff should have complied with building regulations and should have applied vertical damp proof course which would have joined the vertical damp proof course thus preventing any moisture or dampness. The plaintiffs in turn argued that the building regulations only applied to new houses and also that since there were no previous issues since 1984 there was no need.[1] Tort Law Overview With there being such vast amounts of information from various sources regarding Tort Law it is difficult to produce a description of what Tort Law actually is. Tort Law generally covers a broad variety of most civil lawsuits apart from contractual disputes. It is used mostly to redress an issue where a person has been wrong done. Torts can be broken down into three general Torts
  1. Negligent torts
  2. Intentional torts
  3. Strict liability
Although Tort can be broken into the three categories listed above there are other areas which fall under Tort Law including Nuisance, defamation and invasion of privacy.[2] Negligence Tort of Negligence falls under three main factors to do with careless infliction of damage or harm which are (a) the existence of legal duty of care (b) a breach of that duty of and (c) consequential damage[3]. Negligence in simpler terms is a person’s failure to behave with the same level of cautiousness shown under the same circumstances or in the same situation. This behaviour can be classed as person’s actions or equally there inactions. To further help in explaining Negligent Torts or a case of negligence where duty of care comes into play referring to the case of Donoghue v Stevenson [1932] AC 562, Lord Atkin’s description of the general concept of the duty of care breaks it down further[4] ‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour: and the lawyer’s question who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour? The answer seems to be persons who are closely affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question’[5] Although Lord Atkin’s ‘neighbour principle’ received criticism for being too broad it was eventually accepted and to this day it is generally used in understanding the tort of negligence. It has been emphasised on a number of occasions that negligence comes down to a fault based liability and in turn there must be some degree of fault on the part of the defendant. The existence of legal duty of care can also be defined as a person’s failure to ensure adequate level of care in a situation that could potentially be harmful to another person as for a breach of that duty. Donoghue v Stevenson is a good example as it was the manufacturers duty of care to ensure the product was fit for human consumption and when it was proven to not be fit this was a breach of that duty of care. Consequential damage is then defined by an injury or harm which may not have been sustained directly from such an act but rather in consequence of the act in question[6] Nuisance (Private and Public) Where Nuisance is concerned in the area of tort law is it’s widely divided into two torts the first being private nuisance and the second being public nuisance. In other words private nuisance is solely concerned with the individual whereas public nuisance concerns issues regarding the general public or a group. Private Nuisance When considering private nuisance there are certain actions which are categorised as a private nuisance such as interfering with a person’s land or even with the general enjoyment of the land in question. Basically a private nuisance is comprised of a person committing an act which is not contained within his/her own land and which is directly interfering or affecting another person’s land. For a case to be private nuisance it doesn’t just fall under interference or encroachment there are also cases where if such an interference caused damage to a person’s employment of his property this would also be considered private nuisance. In order to the accountability for a case of private nuisance there are three main factors which will be taken into account a) the defendants fault b) whether there has been substantial interference with the plaintiffs interest and c) the reasonableness of the defendants conduct. Public Nuisance In regards to public nuisance it is best defined as the protection of the public unlike private which is individual. Public nuisance which also falls under tort law is in certain cases classed as a crime it is any omission or act which in turn affects the comfort, convince, health or safety of a group people or the general public. It only becomes an offense and can be actionable if a single person is foreseeably more affected than anyone other person within the group or if such person feels as though a private right has been interfered with through this act/omission. A simple example of a public nuisance would be the sale of food/beverages that are not fit for human consumption or causing a hazardous obstruction on a main road which could potentially cause harm to the public.[7] Duty of Care Duty of care is defined as an obligation that a person or persons in a position of care act and behave with an adequate degree of cautiousness, watchfulness and attention in the same scenario as would a ‘reasonable person’. For example if a designer carried out works which were to an adequate standard which reached the same standard as a reasonably competent designer within his discipline then he would not be considered negligent and would have maintained his duty of care. On the other hand this failure to comply with regulations may lead to potential damage to property.[8] Analysis of the Decision In the Case of Negligence In analysing the decision of the case Dempsey & Anor-v- Waterford Corporation [2008] IEHC 55 It is important to understand that negligence focuses on careless of the defendant and asks the question of asks the question whether or not the defendant should have foreseen that his/her negligence would directly relate to any damages/injury to the plaintiffs. [9] In this case the fact that the drains where not documented on any maps or other sources it would have been foolish to say that the defendant could have foreseen that the pipes could have led to the cause of the damage sustained in the plaintiffs living room given that there is to this day no evidence/records documenting these pipes nor their exact location. To establish liability/negligence it is required to find a legal responsibility on the defendant in terms of an obligation of duty. The fact that the pipes where never previously identified it is difficult to decide whether or not the defendant failed to take reasonable care in ensuring not to damage the plaintiffs property given there was no prior knowledge of such pipes. On the other hand there’s no question that the defendant had a duty of care not to damage the plaintiffs property but the fact the pipes where non-existent realistically the defendants did not break their duty of care and cannot be considered negligent. In the case of Duty of Care In terms of duty of care there is no doubt that the defendants had a duty of care to uphold but it is difficult to establish whether or not there duty of care extended as far as having knowledge of such pipes and if these pipes could have potentially caused damage to the plaintiffs property. The fact that the only way these pipes could have been discovered before the damage occurred in the plaintiff’s property would have been to excavate the majority of Grattan Quay and given there was no prior knowledge of the pipes there wouldn’t have been any justified cause which would have enticed the defendant to carry out such exploratory work in search of something which in their minds never existed. Therefore again it comes to down to the fact that the defendants had no prior knowledge of such pipes and therefore the evidence suggests that the defendants did not breach their duty of care and therefore can again not be considered negligent. In the case of Nuisance Finally the claim that the defendant committed a nuisance which lead to the damage sustained within the plaintiffs living room comes down to that the defendants where carrying out a statutory function regarding the works on Grattan Quay and therefore should held accountable in the case of committing a nuisance. With the issue of foreseeability arising again with there being no previous knowledge of the pipes by the council and no realistic reasons why the defendants would consider digging up Grattan Quay based of a ‘Sure you’d never know’ basis and in light of this un-foreseeability on the councils part and the fact that there’s no substantial evidence to support the claim that the council where to blame for the ingress of water in the plaintiffs living room they are therefore not considered to negligent and in turn have not committed an act of nuisance. Reflective learning Throughout this assignment I have learned various skills which will be of benefit in many situations in the future. I feel as though I have established the ability to look back over an experience and highlight significant aspects which in this case, affected the decision and outcome. I feel as though my general understanding on how to correctly reference a case, use footnotes as a reference tool and how to properly construct a bibliography. Lastly as a whole my general grammar in my opinion has improved due to the cautiousness of how I structured my essay. Overall I felt this assignment benefited me in many areas and hopefully this experience will stand to me in the future. Bibliography Textbooks -
  • Connolly, U and Quinlivan, S. (2006). Negligence. In: Connolly, U and Quinlivan, S Tort Cases and Materials. 4th ed. Dublin: Thomson Round Hall. p29, p41.
  • Speaight, A & Stone, G. (1996). The English Law of Tort. In: Speaight, A & Stone, G Architects Legal Handbook. 6th ed. Great Britain: Reed Educational & Professional Publishing Ltd 1996. p17-23.
Websites - Report/Journal - Table of Cases –
  • Dempsey & Anor -v- Waterford Corporation [2008] IEHC 55 (29 February 2008) Cite as: [2008] IEHC 55
  • Donoghue v Stevenson [1932]AC 562
  • Rylands v Fletcher [1866] LR 1 Ex 265 at 279

[1] Dempsey & Anor- v- Waterford Corporation [2008] IEHC 55 [2] Three general torts, http://www.law.cornell.edu/wex/tort, Legal Information Institute [3] Architects Legal Handbook, Chapter 3, The English Law of Tort, Negligence [4] Donoghue v Stevenson [1932] AC 562 [5] Architects Legal Handbook, Chapter 3, The English Law of Tort, The Legal Duty of Care, Lord Atkins ‘Neighbour principle ‘ Donoghue v Stevenson [1932] AC 562 [6] Donoghue v Stevenson [1932] AC 562 [7] Public nuisance, http://www.britannica.com/EBchecked/topic/482431/public-nuisance [8] Construction dispute avoidance newsletter http://www.herbertsmithfreehills.com/-/media/HS/T21121146.pdf [9] Dempsey & Anor- v- Waterford Corporation [2008] IEHC 55
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