The High Court dismissed a restaurant tenant’s claim for damages over persistent roof leaks, finding that their effects did not materially affect the carrying on of the restaurant business as required by the lease.
In a judgment delivered on 31 January 2006, O’Neill J. said the first defendant had previously been held liable under the lease’s repair covenant for a flat roof over the wash-up area at Da Pinos restaurant, at the junction of Parliament Street and Cork Hill in Dublin. The proceedings concerned the consequences of the leaks and the damages claimed.
The judge accepted that rainwater had leaked into the wash-up area, run down pipes into basement staff toilets and changing facilities, and invaded a lobby. The water had damaged ceilings, the wash-up floor and tiled stud partitions; some tiles fell or lifted. After heavy rain, buckets, cardboard and mopping were sometimes needed to deal with water. The court found no evidence that washing up had been disrupted or that staff use of the basement facilities had been affected.
The court accepted the first defendant’s account that complaints began in January 1998, with none made between 1999 and 2001. It also found that repairs carried out on the roof in 2002 did not replace defective flashing around pipes and ducts, and that the plaintiff had not engaged in efforts to agree a solution at that time. The judgment said the plaintiff’s and his wife’s description of the severity was exaggerated, while accepting that leaks had persisted for several years.
The judge held that the lease required proof, on the balance of probabilities, that disrepair materially affected the business, meaning that it affected it in a substantial way. That test was not met: the evidence showed no effect on commercial success and no disruption to the activities in the affected areas. Annoyance and inconvenience alone were insufficient to trigger liability.
The judgment discussed competing repair estimates: €175,000 for a more extensive scheme proposed for the plaintiff and €23,304 for a more limited scheme recommended by the first defendant’s experts. The judge preferred the latter approach and said that, if damages had been payable, he would have been disposed to award €23,304 for repairs. He also said €10,000 would have been appropriate general damages for annoyance and discomfort over the period considered. Those were hypothetical assessments only. Because the lease threshold was not met, the court made no award of damages.