Authority Liability

Statutory Fit for Habitaton

The Housing Act 1966 provided as follows prior to 1992 amendment.

Conditions to be complied with on letting of house for habitation.

114.—(1) Subject to subsection (2) of this section, in any contract entered into after the commencement of this section for letting for habitation a house at a rent not exceeding one hundred and thirty pounds per annum there shall, notwithstanding any stipulation to the contrary, be implied a condition that the house is at the commencement of the tenancy and an undertaking that the house will be kept by the landlord during the tenancy, in all respects reasonably fit for human habitation but nothing in this section shall affect the liability of the tenant or occupier of any such house for any wilful act or default of such tenant or occupier whereby the house is rendered other than reasonably fit for human habitation.

(2) The condition and undertaking mentioned in subsection (1) of this section shall not be implied in any case in which—

(a) a house is let for a term of not less than three years upon the terms that it be put by the lessee into a condition reasonably fit for habitation, and

(b) the tenancy agreement is not determinable at the option of either the landlord or the tenant before the expiration of three years.

Lettings of Unfit House

In Siney v Dublin Corporation a flat was let with faults and dampness affecting the health of the plaintiffs. The Corporation was found liable for breach of the implied warranty in Housing Act 1966 as it then applied.

The Supreme Court upheld the decision. When the defendants as housing authority prepared and adopted a building programme and then exercised their powers under the Act to provide flats for letting, it was a necessary postulate under the statutory scheme of things that the flats would not add to the stock of houses unfit  or unsuitable for human habitation.

The defendant’s power to require uninhabitable houses to be repaired and to close and demolish them  if not repairable, are so specific and drastic that it must be deemed a necessary element of the statutory intent,  that the defendants are to use their powers under the Act to ensure that properties provided by it are fit for habitation and that the tenant of dwelling may act on the assumption that it is fit for habitation.

The letting agreement should be read as if it contained an express term warranting the flat to be habitable. The court did not accept that the statutory obligation imposed a duty by itself. However, it also found that there was liability in negligence in providing the dwelling with hidden defect.

In Burke v Dublin Corporation, the claimants sought to recover for damage caused by a heater in a house provided by the Corporation. The court emphasised that the duty of the Housing Authority is to provide suitable and fit accommodation. There was held to be an implied warranty both in favour of tenants who purchased and those to whom property was let.. Section 106 of the Housing Act imposed a duty on the housing authority before selling the dwelling, to ensure that it was in good structural condition.

The case implied a term in a contract for disposal and letting by a housing authority that the property was fit for habitation. In principle in some cases there may also be a claim for negligence.

Defective House Purchased & Negligence

In a number of cases in the 1980s and 1990s, legal action was taken against Housing Authorities for damages for negligence arising from defective properties. In Ward v McMaster and Louth County Council a person had built a house on a site, which was defective and a risk to health. They had obtained a loan from the County Council who had a duty to satisfy itself as to the value of the house under the Housing legislation.

The court applied general principles of negligence to the question of whether there was a relationship of proximity between the parties such that in the reasonable contemplation of the council, its negligence would cause loss. If so a duty of care would apply if it was just and reasonable in accordance with negligence principles.

The High Court found the Council liable to the plaintiff. The Supreme Court adopted a different test as to the limits of negligence, namely whether there was a compelling reason to exclude liability on the basis of public policy. The court indicated that a person availing of the scheme might lack the means to have his own expert examination and thereby rely on the Housing Authority’s assessment.

The Supreme Court imposed liability. This was the high-water mark of extensive liability for negligence in Ireland.

Planning Permissions & Negligence

In Sunderland v Louth County Council, the authority was sued for negligence in granting planning permission for retention of a house built on an unsuitable site. It was decided the Council had no liability because planning legislation was not designed for the purpose of protecting persons occupying buildings

In Convey v Dublin County Council it was claimed that allowing the use roads in a privately constructed estate for extensive through traffic which caused cracks in the house, should fix the County Council with liability in public nuisance by reason of the special damage caused. The court held that there was no sufficient relationship for the purpose of a duty of care nor was it possible to fix the authority with liability for public nuisance.

It indicated that the powers and duties of the County Council as planning authority and roads authority cannot be regulated by the High Court. The plaintiff did not belong to a category of persons to whom the Council in the exercise of its powers, owed a duty of care at common law.

Building Control Duties

The court considered a number of cases in the 1980s and 90s where it was sought to make the housing authority responsible for property defects.

In the UK which has a more comprehensive system of building regulations,  local authorities have been found liable for breach of duty by building inspectors. The Irish system of building byelaws applicable only in a handful of urban areas was replaced by building regulations in 1992.

The local authority has broad obligations to inspect and enforce. However, enforcement and inspection of buildings in the course of construction is not routine. 2014 reforms largely leave the responsibility with the builder and design team.

Modern Negligence Approach

Ultimately the Supreme Court in 2001 pulled back from an expansive approach to negligence. An action that is outside the powers of the authority may involve commission of a recognised tort and may thereby found liability. However unlawful administrative action outside powers will only support a duty and liability for damages where  the statutory right in question imposed on the body concerned, is for the specific protection of rights of individuals.

The courts in England and Wales drew a distinction between policy and operational matters. Broadly speaking, policy matters would not be reviewed by the courts. An authority could be liable in respect of operational matters. However, the distinction is hard to draw and has been criticised. The more expansive case law had been overruled and the courts had drawn back from it.

In Ireland, the issue was discussed again by the Supreme Court in Cromane Seafoods v  Minister for Agriculture Fisheries and Food. The plaintiff claimed thar failures on the part of the Department to carry out and monitor a harbour, led to financial loss for it.

The majority of the judges, held that the legislation was not designed to protect particular fishermen, but the public as a whole, so that that it did not create a duty of care which might be subject to an action for damages. Justice Clarke dissented indicating a duty of care might be imposed where the actions are administrative in nature and do not involve questions of policy, discretion and adjudication.

UK Developments 2010s

The UK Supreme Court has indicated itself more willing to find a duty of care on the part of public authorities in the context of actions against the Police in the 2010s. It found that there could be a duty of care when information was communicated to the defendant  such as to convey to the defendant that serious harm was likely to occur if urgent action was not taken and the defendant is a person or agency which  might reasonably be expected to provide protection in those circumstances.

In another UK case , the possibility of liability arose where the public authority had created the risk itself. In the circumstances, it indicated that the police may have a duty of care to protect an individual from a danger which they have themselves created including a danger of injury resulting from human agency. Although the police are not normally under a duty of care to protect individuals from a danger of injury which they have created, special circumstances such as an assumption of liability might change that position.

In Poole Borough Council v GN the UK Supreme Court considered the possibility of liability on the part of public authorities. Public authorities do not have a common law duty merely because they exercise statutory powers and have statutory duties. However, there may be circumstances where the duties are imposed by circumstances such as assuming responsibility or creating a danger.

Like private individuals public bodies do not generally owe a duty of care to confer benefits on individuals, for example protecting them from harm. In this context there is a distinction between causing harm and failing to confer a benefit, rather than the more traditional distinction between acts and omissions. As in the case of private individuals,   a duty to protect from harm or to confer some other benefit might arise in particular circumstances, such as for example, where  the public body had created the source of danger or assumed responsibility to protect the plaintiff from harm.The statement was adopted by the Irish Supreme Court in UCC v ESB.