Dalkey woman awarded €54,000 over heating oil spill as neighbour cleared of lying
Tracey Davies may have to pay legal costs as award lower than insurer’s settlement offer
Tracey Davies, from Dalkey, may have to pay the legal costs of her action despite being awarded €54,000 in the High Court on Wednesday. Photograph: Collins Courts
A woman has been awarded €54,000 damages 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 costs and the defendant’s costs.
Mr Justice Charles Meenan will hear arguments on costs issues 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, represented in court by her insurer, denied she was liable for damages as there had been an earlier settlement for the costs of repairing her home and payments for alternative accommodation for Ms Davies and her family.
Mr Justice Meenan awarded a total €54,204 damages, made up of €12,500 general damages and €41,704 special damages. Two per cent interest applies to the special damages award.
He rejected claims by Ms Davies that Ms O’Leary had deliberately lied to to her when Ms Davies approached her about the spill.
Although 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, the judge said.
Ms O’Leary got the oil removed promptly and, within a week, had environmental experts hired by her own insurers in to examine the damage, he said.
He rejected Ms Davies’ claim for aggravated damages and said there was no basis for having included them in the statement of claim.
Ms Davies had told the court the leak occurred one morning in January 2013 after there had been a lot of rain.
She said, when she rang Ms O’Leary’s intercom, she answered but did not open her gate.
She said Ms O’Leary said she did not have an oil leak but would get it checked.
Ms Davies said she 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.