By Ann O'Loughlin
A woman has been awarded €54,000 over a heating oil spill from her neighbour's tank which the High Court heard damaged her home and meant she had to find alternative accommodation for more than two years.
However, Tracey Davies, of Dalkey Avenue, Dublin, may have to pay the legal costs of the case since April 2018 because the award falls short of a €75,000 lodgment made by her neighbour's insurers to settle the case on that date. Where an award falls short of a lodgment, a plaintiff can be liable for her own and the defendant's costs.
Mr Justice Charles Meenan will hear arguments on the matter next week from lawyers for both sides.
Ms Davies sued her neighbour Margaret O'Leary who lives in a house on a raised area behind Ms Davies' home.
Ms O'Leary, who was represented in court by her insurer, denied she was liable for damages as there had been a settlement for the costs of repairing her home and payments for alternative accommodation for Ms Davies and her family.
Awarding her €54, 204, made up of €12,500 general damages and €41, 704 special damages, Mr Justice Meenan rejected claims by Ms Davies that Ms O'Leary had deliberately lied to to her when Ms Davies approached her about the spill.
He said while Ms O'Leary had not been called to give evidence he was satisfied she had acted responsibly when she learned the leak was coming from her tank. She got the oil removed promptly and within a week had environmental experts hired by her (O'Leary's) insurers in to examine the damage.
Emptying the tank
Ms Davies told the court the leak occurred one morning after they had been a lot of rain in January 2013. When she rang Ms O'Leary's intercom, she answered but did not open her gate.
Ms O’Leary said she did not have an oil leak but would get it checked, Ms Davies said.
Ms Davies later saw men apparently emptying the tank.
When she phoned Ms O’Leary, she said her neighbour again said there was no oil leak and the tank “is being emptied as a precaution".
Ms Davies said within five minutes she got a phone call from Ms O'Leary's son Jarlath who "reiterated there was no oil leaking and the emptying of the tank was solely precautionary".
The court heard work to repair the oil damage required the ground floor to be cut up "like a piece of fudge" so the substructure would not be damaged.
Mr Justice Meenan rejected Ms Davies' claim for aggravated damages and said there was no basis for having included them in the statement of claim
He said she was entitled to 2% interest on the special damages award.
