The Court of Appeal has allowed an appeal by the Child and Family Agency (CFA) and overturned a €75,414 damages award to the owner of a house damaged by a fire at a neighbouring property in Athlone.
The judgment, delivered by Mr Justice Kelly on 18 May 2015, found no basis for holding the CFA liable for the actions of two men who broke into No. 10 Percy Cottages and set fire to mattresses. The fire also damaged No. 11, owned by Teresa Ennis, who had sued the agency and landlord Jarlath Egan.
The fire occurred in the early hours of 1 October 2005. The men, referred to in the judgment as Mr C and Mr D, admitted setting the mattresses alight. The court said Ms A, a former care leaver who had lived at No. 10, did not start the fire and was not responsible for the break-in.
The CFA’s predecessor, the Health Service Executive (HSE), had arranged the tenancy for Ms A under section 45 of the Child Care Act 1991. She had turned 18 in August 2005. The court said the tenancy had ended and the keys been returned on 30 September, before the property was broken into. Ms A had no right to be at the house when the fire happened.
At trial, the High Court found the HSE owed Ennis a duty of care because of its relationship with Ms A. It considered her unsuitable for independent living and awarded damages against the agency. The Court of Appeal disagreed, concluding that the damage was not reasonably foreseeable by the HSE. It noted that Ms A was an adult, the agency had no power to detain or compel her to live anywhere, and the two men were strangers over whom it had no control or dealings.
The appeal court also described the efforts by HSE staff to find Ms A and persuade her to return to care that night, with Garda assistance. It said the trial judge had made no finding of negligence against the individual staff members. The court considered that imposing liability on the CFA for the intruders’ criminal acts would not be fair, just or reasonable.
The court allowed the appeal. It did not disturb the High Court’s determination that there was no basis for a claim against Egan; no appeal had been brought against that determination. Peart and Irvine JJ agreed with Kelly J.