A FAMILY who claimed that Dublin Corporation was negligent in installing an unsatisfactory heating unit yesterday lost its case in the High Court.
The action was taken by Mr Eamonn Howard, now deceased, Mrs Anne Howard and their son Jonathan Howard, a minor, of St Dominic's Avenue, Tallaght, Dublin.
Mr Justice Lavan said this case differed from others as the family were tenant purchasers by virtue of a transfer in January 1976 from Dublin Corporation.
The family lived at a dwelling provided by Dublin Corporation in its capacity as housing authority. The proceedings related to the circumstances surrounding the installation of a unit known as the "conserva heater" in 1979. The unit gave off smoke and smuts and gave rise to "blow backs".
The proceedings initially came before him on the basis that Dublin Corporation had installed the unit in the family's residence and were liable for negligence, breach of contract and breach of statutory duty.
But it was agreed the court should first decide if the corporation installed defective heating units in the dwelling. He determined that it had not.
He accepted the evidence as establishing on the balance of probabilities that the family made the application as purchasers and received the grant and loan which they paid to an independent building contractor.
Thus, the family themselves were responsible for the heater's installation by an independent building contractor, albeit with the benefit of a loan from the housing authority.
After this preliminary decision, the Howards sought to bring a case for negligence. They argued that a duty of care arose on the part of Dublin Corporation since it made a loan to them for the unit's installation. They lacked the means and resources to carry out independent tests.
The legal test in this case was whether the housing authority was negligent in making the loan and not if it was negligent in the installation. On either standard, the family had not established a breach of duty of care in the making of the loan.
There was no breach of continuing duty, as in the case of a letting agreement, which could give rise to negligence because of the status of the family as tenant purchasers.