Monday 11 December 2017

Homeowner entitled to claim for flood damage 21 years ago

Tim Healy

A man is entitled to €44,757 for flood damage to his home caused 21 years ago by a roadway built by a neighbour without planning permission, the Supreme Court ruled.

Michael Ambrose, Aghalile Road, Carrickmacross, Co Monaghan, successfully sued neighbour Patrick Shevlin in the High Court over damage to his home from the flooding in 1994.  

Mr Shevlin appealed that decision and the Supreme Court Thursday dismissed the appeal.

In a judgment on behalf of the three judge court, Mr Justice Frank Clarke said the case arose out of a period of heavy rainfall on February 25 and 26, 1994.

The previous year, Mr Shevlin had built a roadway, or farmtrack, on a field along the boundary with Mr. Ambrose’s bungalow which is at a lower level.  The farmtrack required planning permission and the local authority brought enforcement proceedings against Mr Shevlin over it, the judge said.

Mr Ambrose also contended the construction of the farmtrack was defective as it provided inadequate piping to allow water pass under it. 

On February 25, there was heavy rainfall and Mr Ambrose, concerned about water levels rising around his home, contacted his neighbour but got "no substantive response", the judge said.

With the help of a county council engineer, a JCB was brought in to dig a trench in the farmtrack allowing the water levels to subside.

However, the next day, the trench had been filled in.  It started raining again and this time Mr Ambrose's home was flooded.

Mr Ambrose brought an action for damages in which Mr Shevlin denied the farmtrack caused the flooding to the Ambrose property.

The High Court's Ms Justice Elizabeth Dunne ruled the damage was caused by the way the farmtrack was built. 

She found, while the build-up of water on the first night was not foreseeable, the damage caused on the second night  was.  She also found that despite Mr Shevlin's denials, he had filled in the trench on the second day.

In the Supreme Court, Mr Justice Clarke refused Mr Shevlin's application to raise new grounds in his appeal which had not been raised in the High Court.  

That court was  "not a dress rehearsal" and it would be wholly unjust to allow a case to be "radically reinvented on appeal", he said.

He also rejected Mr Shevlin's alternative application for a re-trial in the High Court as this would "itself be a recipe for further injustice".

Mr Shevlin could also not succeed in relation's to his claim that Mr Ambrose had failed to discharge the onus of proof to demonstrate the the damage resulted from the second day's rainfall.  

To allow this would amount to a serious injustice, he said.

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