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1. The proceedings in this case consisted of claims brought by four plaintiffs for damages for breach of contract, negligence, breach of duty and breach of statutory duty, and for certain injunctions arising out of the provision and maintenance by the defendant as a housing authority for the city of Dublin, of heating units in four separate premises at Tallaght in the city of Dublin.

2. The claims of the four separate plaintiffs are closely interrelated, though by no means identical, and no objection was taken at any stage to the trial of the proceedings in a single action.

3. The matter was tried before Blayney J. in the High Court sitting without a jury and having delivered a reserved judgment on the 13th July, 1989, (see:- [1990] 1 I.R. 18) he made the following orders in each of the four separate claims.

4. The defendant appealed against both the findings of liability and the assessment of damages in respect of the second and third plaintiffs.

5. The first plaintiff appealed against the dismiss of his claim and the second and third plaintiffs appealed against the measure of damages awarded on the basis that they were inadequate. The fourth plaintiff did not prosecute any appeal.

6. The Court decided to hear and determine first the defendant’s appeal against liability in respect of the second and third plaintiffs and the first plaintiff’s appeal against the dismiss of his claim on the issue of liability, and to deal with any questions of damages at a later date.

7. I will deal with these appeals in the order in which they were submitted to the Court.

8. This plaintiff and her husband became tenants of one of the houses provided by the defendant pursuant to the Housing Act, 1966, in February, l982. The complaint of the plaintiff in these proceedings was to the effect that the heating system in the house, which in the years 1978/l979 had been converted by the defendant from an oil-fired to a solid fuel-fired heating system, (called “conserva”) was seriously defective, rendered the house unfit for human habitation and had had the particular consequence, as far as this plaintiff is concerned, of having brought on in her a condition of asthma and of having damaged her furniture, fittings and decoration. No issue arose with regard to the right of this plaintiff to claim in respect of these latter matters.

9. The claim of all the plaintiffs with regard to the heating system is accurately and economically summarised by the learned trial judge in his judgment in the following terms at p. 22:-

10. Having received the evidence given by and on behalf of the third plaintiff with regard to the operation of the conserva heating system and its effect upon both her health and the property in the house, the learned trial judge shortly summarised his findings with regard to that evidence and with regard to the evidence adduced on behalf of the defendant that such difficulties as might exist were caused by the plaintiff’s own negligent or inefficient management of the system in the following paragraph at p. 25:-

11. I am satisfied that these findings of fact were clearly supported by the evidence adduced before the learned trial judge and that, in the context of the trial and of his judgment, must be construed as a rejection by him of the assertion made on behalf of the defendant that the problems which had arisen with regard to this heating system had been caused by the plaintiff’s own negligence or inefficiency.

12. The learned trial judge held that the decision of this Court in Siney v. Corporation of Dublin [1980] I.R. 400 that the letting of one of a number of newly built flats provided by the Corporation under the provisions of the Housing Act, 1966, contained an implied warranty that the flat was fit for human habitation, applied to the letting of a house in the same way as it applied to the letting of a flat, and it also applied to the letting of a house even if it was not a new one. In my view, that decision is correct and was an inevitable consequence of the reasoning contained in the judgment, in particular, of O’Higgins C.J. in the Siney’s case.

13. The next question which, therefore, arises is as to whether on the facts as found by the learned trial judge there was a breach of the implied warranty arising in law that the premises let to the third plaintiff were fit for human habitation. The defendant in the court below and in this Court submitted that, by virtue of the provisions of s. 66, sub-s. 2 of the Housing Act, 1966, and of the second schedule to that Act the evidence in support of Mrs. Hickey’s claim could not constitute proof of a breach of an implied warranty of fitness for human habitation because it did not come precisely within any of the twelve matters contained in the second schedule.

14. The twelve matters contained in the second schedule are as follows:-

15. This contention on behalf of the defendant was rejected, in my view correctly, in the court below on the basis that it placed too narrow a construction on s. 66, sub-s. 2, seeking to construe it as preventing a housing authority from looking at any matter other than those contained in the schedule. Secondly, it was rejected upon the basis that what was relevant to this claim was not the opinion of the housing authority but the absolute question as to whether the house was fit for human habitation or not. With reference to this latter decision, with which I also agree, I find it impossible to believe that, with regard to the question of fitness for human habitation, a wholly inefficient and unhealthy system of heating could be irrelevant, having regard to the nature of the matters contained in the second schedule which are specifically deemed to be relevant.

16. The duty of a housing authority under the Act of 1966, as is pointed out in Siney v. Corporation of Dublin [1980] I.R. 400, is to provide suitable and fit accommodation, either for those who have got no accommodation or for those who are living in sub-standard or inadequate accommodation and who have not got the capacity out of their own resources to provide fit and proper accommodation for themselves.

17. I am quite satisfied that such a statutory duty must necessarily involve the provision of accommodation capable of being healthily, safely and properly heated and that such a fundamental series of faults in a heating system as have been found as a matter of fact by the trial judge in this case, must lead to the conclusion that the defendant was in breach of the implied warranty of fitness for human habitation.

18. I would, therefore, dismiss the appeal of the defendant on the issue of liability in regard to the claim of the third plaintiff.

19. This plaintiff became tenant of a house in Tallaght provided by the defendant pursuant to the Act of 1966 in 1970. She was the first tenant of the house. In April, 1978, she applied to buy her house from the defendant and the house was vested in her pursuant to the provisions of the Act of 1966 by a transfer order made pursuant to s. 90 of that Act in June, 1980.

20. At the stage when this plaintiff had become a tenant of her house the house had been heated by an oil burning unit in a system similar to the one dealt with in the case of the third plaintiff’s house. This had been altered by the defendant in December, 1978, with the agreement of the second plaintiff to the conserva type heater. The alteration was, as was the alteration in the case of the third plaintiff, due to a rise in the price of oil at that time, which made it impossible for persons who were the occupiers of these houses to maintain reasonable heating, having regard to the cost of an oil supply.

21. The learned trial judge found as a fact, on evidence which supported that finding, that this plaintiff suffered from a condition of bronchitis and bronchiolitis which were caused by emissions of smoke and fumes from the conserva heater. Having so done, he identified, in my view, correctly, the position with regard to liability in this case, having regard to the decision already reached by him in his judgment in the case of the third plaintiff in the following paragraph at p. 28:-

22. I am satisfied that the learned trial judge was correct in reaching this decision. In his judgment in Siney v. Corporation of Dublin [1980] I.R. 400 O’Higgins C.J. at p. 407, having referred to the cases submitted indicating that no warranty of fitness for habitation could be implied into the letting of an unfurnished flat or dwelling, stated at p. 408 as follows:-

23. It was that line of authority which the decision in Siney v. Corporation of Dublin [1980] I.R. 400 held to he superseded by the necessarily implied warranty of fitness arising from the provisions of the Housing Act, 1966. It would, therefore, in my view, be quite illogical to imply such a warranty into the case of a letting and to leave the rule of caveat emptor applicable to the case of a transfer effected under the same Act and apparently for the same purposes and with the same objective as the letting.

24. This latter consideration, of course, confines the principle which I am now discussing to the case of the sale of a house pursuant to the provisions of the Act of 1966 to a person who is by virtue of that Act entitled to he housed by the housing authority.

25. The Act of 1966 contains an apparent power on the part of the housing authority under certain circumstances to dispose by sale of houses originally provided under that Act to persons who are not in need of assisted housing accommodation. I express no view with regard to the principles that may apply to a sale in that instance, since the sale to the second plaintiff was to a person who had originally been made a tenant of a house within the scope of the Act and who clearly required in the circumstances existing in 1980 a continuation of housing accommodation from the housing authority.

26. Quite apart from that general principle, the provisions of the Act of 1966 dealing with the power of a housing authority to transfer to a tenant byway of purchase by instalment, which is what occurred in this case, greatly strengthen the similarity between that transaction and the transaction of a letting.

27. The special conditions provided for in s. 89 of the Act of 1966 include an obligation upon the housing authority to ensure that the dwelling is only occupied by the purchaser or the purchaser’s successor in title or by a member of his family or the family of his successor in tithe. Such a special condition is consistent with the continued discharge by the housing authority of its obligation to house a particular category of persons. A special condition can furthermore consist of a prohibition of alienation otherwise than by devise or operation of law, again consistent with the maintenance of a stock of what might be described as social housing. This general objective is again reflected in the restriction contained at s. 90, sub-s. I on a transfer by sale of a house occupied by a tenant to the tenant himself.

28. The provisions of s. 106, sub-s. 1 of the Act of 1966, imposing on a housing authority before selling a dwelling under s. 90 to the tenant thereof an obligation to ensure that it is in good structural condition, are quite inconsistent with the application to such a transaction of the ordinary rule of caveat emptor and are quite consistent with the existence of the implied warranty of fitness for human habitation.

29. In the course of his judgment on this part of the claim, Blayney J. stated as follows at p. 30:-

30. I am satisfied that this consideration of latent or patent defect is not material to the question of the breach of a statutorily implied warranty of fitness for habitation. The essence of that warranty is that it is an absolute guarantee by the housing authority of the condition of the house, and it is not dependent upon proof that some defect in the house was discoverable by them.

31. I would therefore affirm the finding of the learned trial judge with regard to the claim of the second plaintiff and would dismiss the defendant’s appeal against the finding of liability in that case also.

32. Ian Burke is a son of Michael and Gloria Burke who on the 11th March, 1986, became tenants of a house at Tallaght in the city of Dublin provided by the defendant pursuant to the Act of 1966. This plaintiff was born on the 22nd July, 1986, and from that time forward, up to the date of the trial, he and his parents lived in that house. They continued as tenants of it over the whole of that period. Having heard the evidence of Mrs. Burke and the evidence from a number of medical witnesses, the learned trial judge made the following finding of fact at p. 31:-

33. In the course of the judgment the learned trial judge records that it was conceded on behalf of this plaintiff that he was not a party to the tenancy agreement and that he could not rely on the implied warranty of reasonable fitness for human habitation. Counsel for the first plaintiff states that this was in error and that a contention was made that he was a party to the tenancy agreement in the sense that it was made for his benefit.

34. In this regard counsel not only sought to argue that point which apparently had been submitted, according to the recollection of counsel, to some extent in the court below on the basis of the possibility of inferring from the nature of the contract that it was made for the benefit of the first plaintiff as well as for the benefit of his parents, but permission was also sought to argue the point which had certainly not been raised in the court below that by virtue of the provisions of the Married Women’s Status Act, 1957, it was possible to construe an interest of this plaintiff in the contract.

35. Whilst ordinarily this court should not entertain an argument on a point of law that had not been raised and determined in the High Court, in the particular circumstances of this case counsel was permitted to develop the argument under the provisions of the Married Women’s Status Act, 1957, because counsel for the defendant did not object and because they were anxious, since this was possibly a test case, to have the question of law determined.

36. I have come to the conclusion that the argument of an entitlement pursuant to the provisions of the Act of 1957 is unsustainable and I have also reached the conclusion that the alternative submission put forward, an entitlement pursuant to the contract on more general principles of benefit, must also fail.

37. The statutory provision relied upon is s. 8, sub-s. 1 of the Act of 1957, which reads:

38. Section 7, mentioned in s. 8, sub-s. 1, deals with policies of life assurance or endowment and is irrelevant to the questions raised in this case.

39. Briefly, the submission made in reliance upon this section was that by reason of the fact that the rent payable on foot of the contract of tenancy into which the first plaintiff’s parents entered before he was born was a differential rent which would from time to time he calculated by the defendant on the basis of regulations and conditions which included consideration or the number of children dependent on the tenant or tenants at any given time, that it could be said that the contract was expressed to he for the benefit of, or by its express terms, purported to confer a benefit upon the first plaintiff, born after the letting was made. In my view, such a submission would place upon s. 8, sub–s. I of the Act of 1957, which is clearly and carefully restricted to contracts which are expressed to be for, or whose express terms confer benefits upon third persons, a much wider implied effect than the terms of the section would warrant. In the terms of the written letting agreement there is nothing which confines it to a case in which a family has children or which deals with any particular category or child or children in regard to the rights vested in the occupiers of the house by the letting agreement. In these circumstances, I would reject the argument pursuant to the Act of 1957.

40. With regard to the broader submission on the alternative ground, particular reliance was placed on the decision of the Court of Appeal in England in the case of Jackson v. Horizon Holidays Ltd. [1975] 1 WLR 1468. In that case it was held that a man who entered into a contract for the provision of a holiday for himself, his wife and two children, making specific requirements as to what was to be contracted for in relation not only to himself but also to his wife and children, was entitled to sue upon breach of that contract, for damages in respect of his own discomfort, vexation and disappointment and the diminution of the value of the holiday, but also, although he was not held to he a trustee, in respect of the same damages suffered by his wife and two children. It seems to me, first, that the facts of that case and above all else the fact that the other contracting party was expressly aware of the persons for whose benefit the contract was being made and whose position was at risk if the contract was broken, make it entirely distinguishable from the present contract of tenancy entered into at a time when this plaintiff had not been born. I am also impressed by the submission made on behalf of the defendant in this case that the decision of the Court of Appeal in Jackson v. Horizon Holidays Ltd. has already been the subject matter of persuasive adverse comment in a judgment of Lord Wilberforce in Woodar Investment v. Wimpey Construction [1980] 1 WLR 277 at p. 283 suggesting that it should he confined in effect to a decision on the measure of damages or possibly as an example of a type of contract, examples of which are persons contracting for family holidays, ordering meals in restaurants and hiring a taxi for a group, calling for special treatment.

41. It is attractive to view as a disturbing disparity and unnecessary discrimination a significant difference between the parties entering into a tenancy agreement of a house provided by a housing authority and other members of the family enjoying the same de facto rights and privileges who are not parties to that agreement. An argument based on this wider problem of equality before the law was not made in

42. I would therefore conclude, as did the learned trial judge, though apparently based on his belief that a concession to that effect had been made, that the issue of liability in the case of the first plaintiff depends upon his successfully establishing negligence on the part of the defendant.

43. The learned trial judge rejected this claim for negligence in the following passage contained in his judgment at p. 32:-

44. Could the defendant reasonably have foreseen that its choice of the conserva would he likely to injure any of the occupants of its houses in Tallaght? In my opinion there is no evidence that it could reasonably have foreseen this. It was not suggested there was anything in the report of the Institute for Industrial Research and Standards or in the demonstration of the conserva in Cork, or in the pilot period during which two conservas were installed in houses in Tallaght which would have led it to foresee the possibility of injury. But since it could not reasonably have foreseen any injury it had no duty to take care to avoid it, and in the absence of such a duty there could be no breach of duty and so no negligence.”

45. I am satisfied that the findings of fact included in this portion of the judgment on which the decision in law is based are supported by the evidence before the learned trial judge and that it cannot be disturbed on appeal to this Court. This leads, however, to a single conclusion which is that this plaintiff has failed to establish negligence by the defendant in the original installation of the conserva heater. In para. 10, clause (i) of the statement of claim in this case, the following claim is made:-

46. The determination of the issue raised by this plea necessarily involves, in my view, a consideration of whether the principles applicable as a result of the decision of this Court in Siney v. Corporation of Dublin [1980] I.R. 400, in so far as they deal with the question of negligence as distinct from an implied warranty, apply to a continuing duty on the part of the housing authority to keep premises fit for human habitation. Siney v. Corporation of Dublin came before this Court as a case stated pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947, by His Honour Judge G. A. Clarke of the Circuit Court seeking the opinion of the Supreme Court on certain questions of law which arose on the facts as he found them. The facts as found by the learned Circuit Court judge are set out in the judgment of O’Higgins C.J., and at p. 406 he recites the material ones on the issue now under consideration as follows:-

47. Amongst the questions of law stated by the learned Circuit Court judge was one as to whether the facts as found constituted negligence on the part of the defendant, their servants or agents. Ruling that negligence had been established in that case, O’Higgins C.J. at p.414 stated as follows:-

48. Henchy J. in the only other judgment delivered in Siney v. Corporation of Dublin [1980] I.R. 400 came to the same conclusion, holding that the defendant owed a duty to the plaintiff to see the flat he was getting was fit for habitation and that it was negligent in failing to observe that duty.

49. The question obviously arises in this case as to whether in the case of a dwelling having been provided for a tenant under the Act of 1966 without negligence, which is in fact unfit for human habitation, there is a continuing obligation on the housing authority if the fact of unfitness is established to it or it ought to have discovered it, to render it fit.

50. In my view, there is. The judgments in Siney v. Corporation of Dublin [1980] I. R. 400 are entirely dependent on the broad scope of the objectives identified by and the obligations imposed by the Housing Act, 1966, in regard to unfit or uninhabitable housing accommodation. The housing authorities are, under the broad terms of that Act, obliged to eradicate such housing in their areas and to substitute for it habitable housing. I am satisfied that that is a duty they owe to the inhabitants of a house who are lawfully in occupation under a letting agreement from them. It is not a single or once-off duty imposed upon the authority at the commencement of a letting, but is one which, in my view, must as a matter of law he taken to continue during the course of the letting.

51. In the instant case, this question of a continuing obligation and the issue as to whether there had been any breach of it on the part of the defendant, does not appear to have been dealt with in the judgment of the learned trial judge.

52. Mrs. Burke in her evidence gave significant detailed evidence of numerous complaints on her part to officials of the defendant, informing them that the heater was overheating and smoking and in particular in one portion of her evidence, gave evidence of a specific complaint arising from the admission of the first plaintiff to hospital in 1987, suffering from conditions which she then ascribed to the condition of the heater and its smokiness.

53. If the learned trial judge accepted that these complaints were made in the manner in which Mrs. Burke deposed to them, I am satisfied that such a finding, coupled with the finding already made by him, to which I have referred, that the conserva was very smoky and that its smokiness affected the first plaintiff so as to aggravate his chest condition, as a matter of law would entitle him to damages. The controversy on the evidence contained in the transcript of the trial as to whether these complaints were made, the times at which they were made, and the manner in which they were made, exists and it is not possible, in my view, for this Court to determine that controversy.

54. With regard to this appeal, therefore, I would allow the appeal and, in accordance with the principles of law laid down in this judgment, would direct a re-trial by the learned trial judge of the issue as to whether these complaints were made or not and, if as a result of that re-trial he concludes that they were made and that in accordance with those principles the defendant was negligent, an assessment of damages incurred by this plaintiff.

55. In respect of the claims of the second and third plaintiffs, I wholly agree with the judgment of the Chief Justice.

56. It appears to be an accepted principle of the common law that it is only the parties to the contract who themselves obtain rights and incur reciprocal obligations. (See Price v. Easton (1833) 4 B. & Ad. 433). The doctrine of privity means, and means only, that a person cannot acquire rights, or be subjected to liabilities, arising under a contract to which he is not a party. (See Tweddle v. Atkinson (1861) 1 B. & S. 393). This principle of the common law is not challenged. The written submission of the plaintiffs states “Should it be necessary, the plaintiffs may wish to argue that the strict common law privity rules are (as a matter of modern Irish law) inapplicable to family contracts of this kind.” This part of the submission was not pursued in argument on the hearing of this appeal.

57. I confine my views to echoing the observations of the Chief Justice in his judgment just read where he adverts to “An argument based on this wider problem of equality before the law. . .”.

58. The contract, contained in a document of the 11th March, 1986, signed by Michael and Gloria Burke, the first plaintiff’s parents, is not expressed to be for the benefit of any third person, nor does it by its express terms purport to confer a benefit upon any third person. The section, accordingly, does not apply.

59. Here the claim was based upon the family holiday argument. Jackson v. Horizon Holidays Ltd. [1975] 1 WLR 1468 was a case in which the graphic language of the judgments of the Court of Appeal in England emphasises its being part of the “crying shame” jurisprudence. I would think s. 8 of the Act of 1957 would give a ready remedy to the person not a party to the holiday contract, enabling him to sue in his own name. Mr. Jackson, who was the consumer party, sued in his own name; the holiday firm admitted liability; the appeal was against the amount of the damages, not, expressly, on the right to sue as such. This is clear from the judgment of James, L.J.. Though the action was brought by the father in his own name; the damages were measured in part by the discomfort of the children. Here, the child sues in his own name although by his mother who is one of the joint tenants. In Woodar Investment v. Wimpey Construction [1980] 1 W.L.R. 277, the Court of Appeal in England had followed the decision in the Jackson case. In the House of Lords, Lord Wilberforce in referring to the Jackson case said at p. 283:-

60. In his judgment, Blayney J. states that it was conceded that the first plaintiff not being party to the tenancy agreement could not rely on the implied warranty. In this Court, his counsel has stated that this was an error on the part of the trial judge in that it was contended that the tenancy agreement was made for his benefit.

61. As I have sought to explain, neither the statutory argument nor the holiday case supports a claim by the first plaintiff himself. It has not been contended that one maybe permitted to obtain the benefits (the warranty) of the contract whilst not being liable for its obligations - the payment of rent, the proper maintenance of fences of the gardens, keeping the dwelling in a clean and proper state, making good any damage resulting from the deposit of refuse, which are some of the express responsibilities of the tenant. The relevant section of the Housing Act, 1966, extends to all the community in need of housing, including the children of the tenants of housing authorities. There is no limitation related to date of birth. Such right of action of the named tenant or tenants may derive from the combined effect of the contract of tenancy and the operation of the Act of 1966. Such a contention may enter the equation if and when this Court has to consider an argument such as that to which the Chief Justice refers to as “an argument based on this wider problem of equality before the law. . .”

62. I agree with the judgment of the Chief Justice on this issue.

63. I concur with the judgment of the Chief Justice.