Gaeilge

Title:	O'Donnell & ors -v- South Dublin County Council & ors
Neutral Citation:	[2015] IESC 28
Supreme Court Record Number:	115 & 135/08
High Court Record Number:	2006 1339 JR
Date of Delivery:	03/13/2015
Court:	Supreme Court
Composition of Court:	Hardiman J., O'Donnell Donal J., McKechnie J., MacMenamin J., Dunne J.
Judgment by:	MacMenamin J.
Status:	Approved
Details:	Judgment also by Mr. Justice McKechnie
Judgments by Link to Judgment Concurring MacMenamin J. Link Hardiman J., O'Donnell Donal J., McKechnie J., Dunne J.

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Hardiman J. [Appeal No: 115/08]
O’Donnell J.
McKechnie J.
MacMenamin, J.
Dunne J.

Between/

JUDGMENT of Mr. Justice John MacMenamin dated the 13th day of March, 2015

1. As citizens of Ireland, members of the travelling community are entitled to equivalent levels of social protection as the settled community. One recurrent issue in the case law is the extent to which the level of social protection can be adjusted in order to respond to particular accommodation requirements. The need to address such requirements becomes more acute if families are living in substandard or overcrowded accommodation.

2. At the time of the proceedings, the fourth named applicant was living in very overcrowded accommodation. On 5th February, 2008 Edwards J., in the High Court, granted a declaration that the first named respondent, South Dublin County Council, had, by reason of its failure to provide adequate temporary accommodation, failed to respect the rights of the fourth named applicant, Ellen O’Donnell, under Article 8 of the European Convention on Human Rights (“the Convention”), and s.3 of the European Convention on Human Rights Act, 2003 (“the ECHR Act, 2003”). He dismissed claims brought by the applicants in the High Court.

3. Both the applicants and respondents have appealed that judgment. For ease of reference, the O’Donnell family, when appropriate, will be referred to collectively as “the applicants”. They contend that the judge erred in failing to hold that the duty to provide that the term “dwelling” under s.56 of the Housing Act, 1966, extended to the provision of what is termed a “temporary dwelling” as defined in s.10(14) of the Housing (Miscellaneous Provisions) Act, 1992. The applicants alternatively submit that the trial judge erred in failing to hold that the first named respondent, (“the County Council” or “the Council”), had a statutory duty to provide the entire O’Donnell family with adequate and suitable caravan accommodation, and submit that an order of mandamus should be made to give effect to that duty.

4. The County Council, in its cross appeal, contends that the claim, in its entirety, should have been dismissed in the High Court, and that no member of the O’Donnell family is entitled to relief.

Background
5. The O’Donnell family consisted of two adults and seven children. Mrs. Mary O’Donnell, the first named applicant, is a full-time carer for her seven children. Mr. Patrick O’Donnell, her husband, the second named applicant, is unemployed, and in receipt of disability allowance. At the time leave to seek judicial review was granted in the High Court (13th November, 2006), the applicants, who are members of the travelling community, were living in a two-bedroom adapted caravan/mobile home which the County Council had provided to the family.

6. By the time this appeal came on, a number of the older children, namely, Mary junior, Patrick junior and Michael, had moved out of the mobile home. Nonetheless, the issues which the O’Donnells seek to canvass remain live ones. They maintain that they are still living in an overcrowded situation, and have a right to have their situation remedied. The County Council submits that, in accordance with statute and the established case law, its legal duty was simply to provide the applicants with a halting site. The Council contends that, in fact, it had gone much further than its legal duty by providing two caravans (or mobile homes) for the family. It says that when it provided those two mobile homes, in the year 2003, it had complied with all its statutory duties.

7. Ellen O’Donnell is the fourth-named applicant. She is a citizen of Ireland. At the time of the High Court hearing, she was aged 15 years, and as a result of cerebral palsy, was constrained to use a wheelchair. She was educationally disadvantaged. Some measure of her situation can be gleaned from the fact that she did not have access to a toilet until she reached the age of 13 years.

A Chronology of the Interaction between the Parents and the County Council
8. The interaction between Mr. and Mrs. O’Donnell and the County Council goes back many years. In 1994 the family were provided with a house in Clondalkin under the County Council scheme of letting priorities. But less than one month later, they voluntarily vacated that house and surrendered the keys. There is a suggestion that there was garda harassment. But the correspondence also strongly suggests that, in fact, Mr. Patrick O’Donnell felt that he was unable to live in permanent settled housing accommodation. That Mr. O’Donnell has apparently long held this view is worthy of recall throughout the narrative of events which follows.

9. Having returned the keys of the house, Mr. and Mrs. O’Donnell moved to St. Maelruan’s halting site in Tallaght, which was owned and managed by the County Council. In May, 2001 the Council expended €5,625 resurfacing the caravan bay in order to facilitate Ellen’s wheelchair. Following a family bereavement, the family left St. Maelruan’s. They then moved to an un-serviced plot of land in Tallaght. There, the Council provided them with further temporary facilities.

10. December, 2003 is a key date. What the Council provided the O’Donnells then lies at the centre of the case. In addition to the temporary halting site, the family were provided with a second-hand Pemberton Sovereign mobile home, which was made wheelchair-accessible, and, additionally, a second-hand Lunar Eclipse caravan. (The terms mobile home and caravan will be used interchangeably in this judgment). The total cost of this provision came to €47,000, which was paid from State funds, by means of a disability grant made available for Ellen O’Donnell’s benefit under the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 2001. To facilitate access to the Pemberton mobile home, the Council funded the installation of a wheelchair ramp at a cost of €11,293. It is not clear now whether this latter sum was in addition to, or part of, the grant of €47,000.

The Swap Arrangement
11. The two units which the O’Donnell family had available by December, 2003, taken together, might well have been sufficient to accommodate the family. Unfortunately, things did not turn out that way. Mr. and Mrs. O’Donnell gave away the Lunar Eclipse caravan to Mr. O’Donnell’s mother. They received Mrs. O’Donnell Senior’s own caravan in return. This older caravan was entirely unsatisfactory. It was infested with mice, and in such a state of dilapidation that, within a short time, it was uninhabitable. As a result of this swap arrangement, the entire O’Donnell family were left in the position that all of them, both parents and children, had to live in the very over crowded Pemberton Sovereign mobile home. The County Council took the view that this situation was entirely as result of Mr. and Mrs. O’Donnell’s own decision. There is no evidence that the children were involved in this arrangement which, obviously, was to their ultimate detriment.

12. The High Court judge felt that that the O’Donnells’ decision to make this swap was never adequately explained. Insofar as an explanation was given, through counsel in the High Court, it was to the effect that, even with the two caravans, the accommodation was insufficient, and that the Lunar Eclipse had been just a one-room caravan with no separate bedroom. It was said Mrs. O’Donnell senior’s caravan had two separate bedrooms, as well as some living space, and, therefore, it gave more sleeping accommodation. But this was little use when that caravan turned out to be so unfit for use. The adults never sought permission, sanction or advice from the County Council in relation to this swap arrangement. There is no information on where the Lunar Eclipse caravan went, or for how long it was used. The two original caravans were provided as part of an arrangement funded for Ellen’s benefit by reason of her disability.

Ellen O’Donnell’s Accommodation
13. It is now necessary to describe living conditions in the Pemberton mobile home. More than a year before the initiation of these judicial review proceedings, Ms. Dolores Murphy, a housing support worker with the Irish Wheelchair Association, wrote to a Senior Administrative Officer in the County Council’s housing department. This letter, written on the 19th October, 2005, specifically addressed Ellen O’Donnell’s accommodation needs, and set out how she could not manage to get into, or out of, the mobile home without assistance. Nine people, parents and children, were all living in the two-bedroom mobile home. Ellen shared a bedroom with four other family members. Her wheelchair did not fit into that bedroom, so she had no independent living space. She had to be carried to her bed from her wheelchair. An internal toilet was broken and un-repaired. To access an outside toilet at night time, Ellen O’Donnell had to be assisted out of bed, into her wheelchair, over a step in the mobile home, and then, bodily lifted up over a high door-step into the cubicle. The shower facility in an outside unit adjoining the mobile home was too small for her wheelchair. Its temperature control was defective. The water was “always scalding”. There was no air-heating in the shower unit. Ms. Murphy pointed out that this was not healthy or desirable for the fourth named applicant, because, having showered, she then had to go back outside getting to the relative heat of the mobile home. In fact, Ms. Murphy wrote, the heating in the mobile home did not work anyway. The fourth named applicant was prevented by the cramped conditions from engaging in normal teenage activities such as doing chores or preparing food. The family had told Ms. Murphy that the mobile home was infested with mice, which had built nests within the walls of the mobile home.

14. Ms. Murphy called on the Council to make an overall long-term accommodation plan for the O’Donnells. More immediately, she asked the Council to provide the family with the biggest possible mobile home with the greatest number of bedrooms available. This was to be vetted by an occupational therapist to ensure that it met Ellen’s needs. Ms. Murphy suggested buying a three-bedroom house as an alternative. She asked the Council to look at the outside shower facility to make it wheel chair accessible. She added, “whatever happened to the previous caravan, nine people sleeping in a two or even three bedroom space is just not workable.”

The Council’s Response
15. In response, the Council does not deny that these problems existed. The officials wrote that there was enough space in Whitestown Way to accommodate another small caravan. However, they took the view that, having provided two fully equipped caravans in good condition in 2003, it was now for Mr. and Mrs. O’Donnell to solve the problem they themselves had created, if necessary, by buying themselves another caravan to replace the Lunar Eclipse which they had given away. Mr. and Mrs. O’Donnell contended that they could not afford to repair the existing mobile home, and would certainly be unable to repay a loan to buy an extra one. The Council officials pointed out that an interest free loan, to a maximum value of €6,350, would be available under the Councils’ Caravan Loan Scheme. This loan would be re-payable over a five year period. The Council officials laid emphasis on the fact that the O’Donnell family had of a total income of €36,350 per annum, all from Social Welfare. If Mr. and Mrs. O’Donnell applied for a loan under the scheme the officials suggested the family could repay the loan by means of a household budget deduction involving payment of no more than €20 per week or less.

16. In fact, the O’Donnells did make a further application for grants under the Disabled Persons Grant Scheme, and the Essential Repairs Grant Scheme. They sought a loan under the Caravan Loan Repairs Scheme. The application under the Disabled Persons Grant Scheme was made in Ellen O’Donnell’s name. The other applications were made in the names of Mr. and Mrs. O’Donnell. What they requested is described below.

17. The Council wrote back saying that Ellen had already received a disabled persons grant. One Council official wrote, in a letter of 3rd June 2007 that a second grant was not normally payable to the same applicant under the Disabled Persons Grant Scheme, unless their medical circumstances had changed. However, Ellen’s O’Donnell’s medical condition had not changed. Furthermore, one official wrote, the O’Donnells were ineligible to avail of the Essential Repairs Grant Scheme because no family member had reached the age of 65 years.

The Applicant’s Requests
18. In a letter dated the 17th July, 2007, the applicants’ solicitors set out a series of requests under the various grant and loan schemes. Their clients were seeking a loan of in or around €56,000 to purchase a replacement two-bedroom disabled person’s caravan; or €20,000 to repair their current two-bedroom disabled person’s caravan; and €20,000 to purchase a second hand three-bedroom caravan. There was no mention of the family being amenable to any offer involving a house built of bricks and mortar. These were very substantial claims.

19. The Council responded on 20th July, 2007, to the effect that the sums being sought significantly exceeded the maximum loans available under the loan scheme, and that, in the circumstances, it had no power to pay out more than the €6,350 maximum available.

20. In September 2007, two members of the Council’s housing department inspected the applicants’ caravan. There is no indication that things had changed in the interim. A further letter from the applicants’ solicitors drew attention to black damp spores in the mobile home, and expressed concern that some of the children had chronic asthma while winter was approaching. The solicitors called on the local authority to invoke emergency powers, failing which they would seek relief from the courts. Matters then reached a stand off which, even now, seven years later has not been resolved. The O’Donnells made no further steps to process the loan application. The Council did, however, make a range of further counter offers, both around the time of the High Court hearing and later.

The Council’s Offers of Permanent Accommodation
21. The Council offered:

(i) on the 22nd January, 2008, a 4 bed wheelchair adapted two-storey house in Tallaght.

(ii) on the 22nd January, 2008, a four bedroom bungalow on a traveller specific site.

(iii) on the 1st August, 2008, a four bedroom house within a traveller specific development in Tallaght.

(iv) on the 22nd December, 2008, a bay for a caravan at Stocking Hill Residential Caravan Park.

(v) on the 8th June, 2009, a four bedroom house within an estate owned by a Housing Association.

(vi) at a meeting on the 29th July, 2013, a bay for a caravan at another caravan park in Tallaght.

(vii) on the 12th December, 2013, a house on its own lands at Steelstown, adapted specifically for Ellen’s needs.

(viii) on May, 2014, two four bedroom houses at Kimmage Manor in traveller specific accommodation.

22. The fact that these (housing) offers were made and not taken up is not disputed. The family have never fully answered why none of these offers was acceptable. It would appear that Mr. and Mrs. O’Donnell were insistent on additional new caravan accommodation, rather than moving into a house. Of course, to make such a choice was their entitlement. But it must be seen in the context of what had happened the Lunar Eclipse, and the fact that, as a result, the Pemberton mobile home was totally overcrowded and unfit for human habitation. But in the light of these offers it is not easy to see how the County Council had failed in its duties to the O’Donnell family as a whole, excepting Ellen.

The High Court Judgment
23. A number of the High Court judge’s findings must now be considered. He observed that a particularly regrettable feature of the overcrowding was that it effectively set at nought the custom-adaptations that had been made to the Pemberton mobile home to accommodate Ellen O’Donnell’s disability. He referred to the problems identified in Ms. Murphy’s letter. He was satisfied that both of the second-hand caravans provided in 2003 had been in good condition, when provided. The judge pointed out that the Council had engaged consultants to install the suitable access ramp to the mobile home. What had caused the disrepair within the short space of three years was not clear. This judicial review was heard on affidavit. In hindsight this was a case where a plenary hearing might have been more appropriate.

24. The judge found no evidence that either of the O’Donnell parents had made any effort either to find or employ a carpenter to fit a half-door to the shower, or to find a plumber to fix the hot water and the radiators. He thought this failure more remarkable in light of the fact that the O’Donnells were receiving such significant social welfare payments. He expressly rejected any explanation of impecuniosity. He held that there appeared to be a complete “abdication of responsibility” by the O’Donnell parents for the maintenance and upkeep of the caravan, and that the swap resulted in an “artificial” overcrowding situation.

25. As against this, however, he commented that, by 2005, the County Council were aware of, the fact, that the O’Donnell family were living in conditions which were not just substandard, but, as the officials themselves accepted, “unfit for human habitation”. In order to place other findings in some context, it is necessary now to briefly set out some elements of the County Council’s statutory powers and duties.

Section 13 Housing Act, 1988, as amended
26. Section 13 of the Housing Act, 1988, as amended by s.29 of the Housing (Traveller Accommodation) Act, 1998, provides:

“(1) This section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life.

(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of section 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.

…

(7) In this section—

‘caravan’ means any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent;

‘sites with limited facilities’ means sites which, having regard to the temporary nature of such sites or the short duration of periods of use, have sufficient water, facilities for solid and liquid waste disposal and hard surface parking area for caravans.”

27. To enable it to prepare its traveller accommodation programme for the period 2005 – 2008, the Council carried out an assessment of the O’Donnells on 7th December 2004. The judge was satisfied that Mrs. O’Donnell had indicated the family would, in fact, accept a group house as being their preferred choice of accommodation, having been told that the design of the individual group house would be modified to suit Ellen O’Donnell’s needs. To that extent, therefore, the judge considered that the Council had complied with its statutory duty identified in s. 13 of the 1988 Act.

28. The judge pointed out that the cost of repairing the broken or missing items in a mobile home would have been modest compared with the cost of replacing the mobile home, even on a second-hand basis. This finding is to be seen in the context of the sums of money sought in Mr. and Mrs. O’Donnell’s grant and loan applications, described earlier. The judge held that the necessity for repairs arose entirely as a result of Mr. and Mrs. O’Donnell’s actions; he pointed out that, rather than repairing the indoor toilet, the parents had actually removed it from the caravan altogether. He was satisfied that the Council had not received any complaint in relation to the lack of hot water. He concluded that, although the O’Donnell parents had allowed the condition of the mobile home to deteriorate, it could nonetheless be made fit for habitation, provided repair work was carried out.

29. Against this, however, the judge considered that there was no evidence that any County Council official had thought to ask the O’Donnells why they were not getting on with repairs, once they had been told that the Council itself would not be carrying out the work. He made findings adverse both to the Council, and to Mr. and Mrs. O’Donnell, in these terms:

“There may well have been a genuine difficulty but nobody enquired if that was the case. By the same token, the applicants have not provided the court with any evidence as to why they have not attempted to carry out necessary maintenance, save for asserting that they could not afford to do so. I expressly reject the explanation of impecuniosity. There is not even a scintilla of evidence that any attempt was made to even enquire about getting repairs done, much less the obtaining of an estimate”.

30. He found there was:

“also a corresponding duty on the first named respondent (the County Council) to engage with (the O’Donnells) so as to provide them with assistance, if they require(d) it, to access the necessary services. Further, the County Council should provide the (O’Donnells) with all necessary assistance to access loan finance for the purpose of effecting repairs within the parameters of the Caravan Loan Scheme.”

31. He concluded that:

“The present overcrowding situation is exceptional in the circumstances of the present case. It is exceptional because, in this particular case, it goes beyond creating the sort of discomfort that is only to be expected in an overcrowding situation … [A] particularly regrettable feature of the present overcrowding situation is that effectively it sets at nought the custom adaptations that were made to the mobile home to accommodate Ellen’s disability. What is the point in having a wheelchair adapted mobile home if it is so crowded with people that the wheelchair bound occupant who it was intended to benefit cannot move around? The first named respondent has been aware of this problem since 2005 and has allowed it to continue. They should not have done so.”

32. He said:

“I believe that Ellen’s rights under article 8 are not currently being vindicated in so far as the overcrowding situation is concerned, and I so hold. I am therefore prepared to make a declaration to that effect and I am prepared to order the first named respondent to exercise its statutory powers under the Housing Acts 1966-2004 requiring it to provide the applicants, with whom the fourth named applicant dwells as part of a family unit, with adequate temporary accommodation pending their placement in permanent accommodation under the Traveller Accommodation Programme 2005-2008. I am not prepared to specifically order the provision of another caravan.”

33. But, despite this apparent finding in favour of the entire family, the High Court held that any relief should be confined to Ellen O’Donnell:

“As the breach of rights that I have found relates only to the fourth named applicant, there is no question of an award of damages to anybody except her. Moreover, although her rights have been breached and she is entitled to some damages for that, that breach has not, to date, continued long enough to have caused her lasting physical or psychological prejudice. The damages which she will receive are therefore likely to be modest …”

34. At first sight it might be thought there is some inconsistency between some of the passages of the judgment quoted earlier, and the declaration actually granted. There is no doubt that the declaration granted only concerns Ellen O’Donnell. While the Court may have indicated it was prepared to order the County Council to exercise its statutory powers requiring it to provide all the O’Donnells with adequate temporary accommodation pending their placement in permanent accommodation, the final quotation, and the order, is confined to finding a breach of Ellen O’Donnell’s ECHR rights.

The Appeal
35. The first part of this appeal involves a relatively simple task of statutory construction. The applicants say that the High Court failed to interpret the term “dwelling” contained in the Housing Act 1966, in accordance with the ECHR Act, 2003.

36. S. 2 and s.3 of the ECHR Act, 2003, insofar as relevant, provide:

“2(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.

(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”

3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions. …”

37. Article 3 of the Convention itself provides:

“3. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

38. Article 8 of the Convention addresses private and family life in the following terms:

“8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

39. Clearly, s.2(1) provides that “statutory provisions” or “a rule of law” are subject to the general rules of law governing interpretation. Even accepting that the statute here may be remedial in nature and entails a purposive interpretation, a court is not entitled to interpret in such a manner so as to legislate. A statute can be interpreted only in a manner consistent with clear and constant ECtHR jurisprudence. It is not open to a Court to engage in a “free-standing” process of interpretation, or application, by simply comparing the statute with the provisions of the Convention.

40. Section 56(1) of the Housing Act, 1966 enables a housing authority to “provide dwellings (including houses, flats, maisonettes and hostels). Such dwellings may be temporary or permanent”.

41. A “temporary dwelling” is defined in the Housing (Miscellaneous Provisions) Act, 1992 as:

“any tent, caravan, mobile home, vehicle or other structure … which is capable of being moved from one place to another, and …was used for human habitation …”

42. A caravan is in terms defined in s.13(6) of the 1988 Act:

“In this section “caravan” means any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent.”

43. The O’Donnells contend that the trial judge erred in failing to hold that the power to provide a “dwelling”, under s.56 of the Housing Act, 1966, should, by application of s.2 ECHR Act, 2003, have the same meaning as what is termed “a temporary dwelling” as defined in s.10(14) of the Housing (Miscellaneous Provisions) Act, 1992.

44. I do not think there is substance to this point. While, s.56 of the Housing Act, 166 falls to be interpreted in accordance with s.2 of the ECHR Act, 2003, in a manner consistent with the State’s convention obligations, in fact, the provisions of s.56(1) are explicit and unambiguous. The power provided therein is to provide permanent accommodation, although the duration of such accommodation may be temporary or permanent. However the definition contained in s.10 of the 1992 Act arises in the entirely different context of local authorities’ powers to remove unauthorised temporary dwellings from certain locations. Both the context and nature of the definitions are entirely distinct and arise in quite different situations. To interpret the term “dwelling” in s.56 of the 1966 Act so as to include caravans or mobile homes, would be to impermissibly legislate. It would radically alter the nature of the duty, in a way not consistent with any ECtHR jurisprudence. It would not be consistent, either, with the manner in which statutes fall to be interpreted in accordance with national law. The interpretation urged would, in fact, have a far reaching effect, entitling an applicant to a caravan on the same basis as an applicant would be entitled to a dwelling house. As citizens they have the same level of entitlement to housing as any other citizen. No judgment of the ECtHR assists Mr. and Mrs. O’Donnell on this issue, and therefore it is not possible to engage in the process of interpretation which is urged (see generally the judgments of Murray C.J., Denham J. (as she then was) and Fennelly J. in JMcD v. EL [2009] IESC 81). In fact, in Chapman v. UK (Application no. 27238/95) (2001) 33 E.H.R.R. 442, the ECtHR expressly states that member states of the Council of Europe are not under a duty to provide accommodation of a claimant’s own choosing.

45. Insofar as special provision exists, a local authority’s duty is to provide travelling people with halting sites, but not caravans. Both the case law and the statutory provisions in this regard, are explicit. As long ago as University of Limerick v. Ryan (Unreported, High Court, 21st February, 1991), Barron J. pointed out that, absent a wish to live in permanent accommodation, a local authority’s duty to a traveller family was to provide halting sites. This duty is now embodied in statute. In s.13 of the Housing Act, 1988, as substituted by s.29 of the Housing (Traveller Accommodation) Act, 1998 provides that the duty of a local authority towards persons pursuing “a nomadic way of life” is expressed in the following terms:

“…(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of section 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.” (emphasis added)

46. Sub-section (3) provides:

“(3) Section 56(2) of the Principal Act shall apply in connection with the provision of sites under this section as it applies in connection with the provision of dwellings under that section.”

47. The emphasised words “may provide” in s.13(2) are significant. It is now well settled that those words in the 1988 Act, as in its 1998 successor, are to be construed in a mandatory way; and, that in the particular context of the statute, the natural and ordinary meaning of the word “may provide” implies a duty, not a discretion, which, in the absence of any countervailing reason or principle, is to be interpreted as giving rise to a right. That duty, then, is to provide halting sites for travelling people (see Ryan case above).

48. The history of the enactment is relevant. Prior to its amendment, s.13 of the 1988 Act, in its un-amended form, specifically recognised that travellers might require housing in the form of serviced halting sites, rather than permanent dwellings. Section 13(2) in its original form provided:

“(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.” (emphasis added)

49. On this provision, Barron J. stated in Ryan’s Case:

“The position of a traveller family which becomes entitled to be provided with a dwelling must be considered. It is uncontested that such a family must be offered a dwelling. If this is refused because the family belongs to the class of persons who traditionally pursue, or have pursued, a nomadic way of life, does this mean that the Council now has a discretion whether or not to provide that family with a caravan site? The answer to the question is no. It would not be a proper construction to be placed upon the relevant provisions of the Act. Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends in the case of those to whom s.13 applies to the provision not of dwellings but of caravan sites”.

50. He confirmed:

“In my view, s.13 imposes on the local authority an obligation to provide serviced halting sites to those who require them instead of conventional dwellings, in the same way as s.56(1) requires them to provide the latter.”

51. Barron J., therefore, treated the term “may” contained in s.13 of the 1988 Act, as imposing a statutory duty to provide a caravan site for travellers, just as there was a statutory obligation to provide dwellings for those in the settled community. The only difference in the obligation lay in the nature of the facility to be provided in the case of those who wished to live in caravans. This was not judicial legislation. As a matter of natural construction, the meaning flowed from the context of the section itself.

52. In its present amended form, and as now substituted by s.29 of the Housing (Traveller Accommodation) Act, 1998, s.13(1) of the 1988 Act contains much the same phraseology in the words “may provide, etc.”. The effect of the amendment is simply to extend its ambit, so that such sites may include limited facilities for the use of travelling people, otherwise than as a normal place of residence, or pending the provision of permanent accommodation under an accommodation programme within the meaning of s.10 of the Housing (Traveller Accommodation) Act, 1988. (See generally O’Brien v. Wicklow County Council (Unreported, 10th June, 1994); County Meath VEC v. Joyce [1994] 2 ILRM 210 and Ward v. South Dublin County Council [1996] 3 I.R. 195); as considering the 1998 Act, to O’Donoghue v. Limerick Corporation [2003] 4 I.R. 93 and O’Reilly v. Limerick County Council [2006] IEHC 174.

53. Apart from the obligation to provide halting sites, housing authorities, also have power to grant loans for the repair and acquisition of caravans. This is provided for under s.25(1) of the Act of 1988. This power is, however, subject to a delimitation, contained in s.25(2) of the 1988 Act, which provides that the Minister shall, with the consent of the Minister for Finance, specify terms and conditions for loans made under sub-section (1). As the Council pointed out to the O’Donnells’ solicitors, this limited the maximum loan available under the Scheme to €6,350. Clearly, the grants the O’Donnells requested in the 2007 correspondence were very considerably in excess of what could be provided, unless there had been a change in Ellen O’Donnell’s medical condition.

Sections 6, 9 and 10 Housing Act, 1988
54. I move now to consider sections 6, 9, and 10 of the Housing Act, 1988.

55. Section 6 of the 1988 Act may simply be summarised as allowing County Councils to employ or engage social workers to assess travelling people’s housing needs. By virtue of s.9, a housing authority is to “assess” the need for provision of adequate and suitable housing accommodation of persons:

“(a) whom the authority have reason to believe require, or are likely to require, accommodation from the authority, and

(b) who, in the opinion of the authority, are in need of such accommodation and are unable to provide it from their own resources.”

(See s.9(1)(a) and (b))

56. To understand other references contained in s.9(2)(6) of the Act, it is necessary, first, to again refer to s.13 of the 1988 Act, quoted earlier, which refers to “the class of persons who traditionally pursue or have pursued a nomadic way of life”.

57. The 1988 Act provides in s.9(2):

“(2) Without prejudice to the generality of subsection (1), a housing authority in making an assessment under this section shall have regard to the need for housing of persons who -are homeless,

(a) are persons to whom section 13 applies,

(b) are living in accommodation that is unfit for human habitation or is materially unsuitable for their adequate housing,

(c) are living in overcrowded accommodation,

(d) are sharing accommodation with another person or persons and who, in the opinion of the housing authority, have a reasonable requirement for separate accommodation,

(e) are young persons leaving institutional care or without family accommodation,

(f) are in need of accommodation for medical or compassionate reasons,

(g) are elderly,

(h) are disabled or handicapped, or

(i) are, in the opinion of the housing authority, not reasonably able to meet the cost of the accommodation which they are occupying or to obtain suitable alternative accommodation.”

58. The section, therefore, provides that a Council shall have regard to the need for housing, homeless members of the travelling community, that is, those who are living in conditions which are unfit for human habitation, or materially unsuitable. These provisions are to be seen in the context of the definition of “homelessness” set out in s.2 of the same Act, which provides:

“2. A person shall be regarded by a housing authority as being homeless for the purposes of this Act if -

(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of, or

(b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a), and he is, in the opinion of the authority, unable to provide accommodation from his own resources.”

The Council itself accepted that the mobile home was unfit for human habitation.

59. The criteria for assessment under s.9 are to be seen in light of the fact they are to be used in assessing the medium and long term accommodation needs of travelling people. The obligation placed on the housing authority under s.9(1) is to carry out such an assessment not less frequently than every three years.

60. But those same statutory criteria are very revealing when one looks at Ellen O’Donnell’s position from 2005 onwards. There is no dispute but that she was “living in accommodation that was unfit for human habitation” (see s.9(2)(c) above; that she was “living in overcrowded accommodation” (see s.9(2)(d) above; that she was “sharing accommodation with another person or persons and [had], in the opinion of the housing authority, …. a reasonable requirement for separate accommodation” (s.9(2)(e); that she was “in need of accommodation for medical or compassionate reasons” (s.9(2)(g); that she was “disabled or handicapped”; s.9(2)(i) and that she personally was:

“not reasonably able to meet the cost of the accommodation which they are occupying or to obtain suitable alternative accommodation.”

61. The Council knew and accepted that the mobile home was unfit for human habitation, Ellen O’Donnell was therefore a person who could not “reasonably occupy or remain in occupation of” the mobile home. Not only was she “homeless”, but she fulfilled seven of the other criteria identified under section 9.

62. With these considerations in mind, s.10 of the 1988 Act provides:

“10.-(1) A housing authority may, subject to such regulations as may be made by the Minister under this section -

(a) make arrangements, including financial arrangements, with a body approved of by the Minister … for the provision by that body of accommodation for a homeless person,

(b) provide a homeless person with such assistance, including financial assistance, as the authority consider appropriate, or

(c) rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodgings for a homeless person.


2. A request for accommodation may be made to a housing authority by or on behalf of a homeless person ...” (emphasis added)

A duty devolves on a housing authority to act when a “request for accommodation has been made to it” (s.10(2)). Dolores Murphy’s letter had made such request. Can it then be said that the Council did not owe special duty to Ellen O’Donnell when they had specific notice of all of her problems?

63. Unfortunately, the loan application for €6,350 did not progress. There was a stand off. Such a loan would have improved the mobile home, and reduced a substantial degree of the day by day and night by night degradation and indignity to which Ellen O’Donnell was subject. It would have allowed her to function as a more autonomous, non-dependent young person, although not eliminating the over-crowding. The County Council was aware of the situation, and its impact on Ellen O’Donnell. But it took no further steps to process the loan or to initiate the repairs, or to ascertain why the O’Donnells themselves were not repairing the caravan. The Council had, however, made offers of permanent housing to Mr. and Mrs. O’Donnell.

64. How should the statutes be interpreted and applied in the case of Ellen O’Donnell? The process of statutory interpretation, in the first instance, must be informed by the Constitution.

65. In East Donegal Co-operative Livestock Mart Limited v. Attorney General [1970] I.R. 317 at 343, Walsh J. pointed out that:

“… an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.”

Clearly, the established jurisprudence of this Court makes clear that, to interpret s.13(2) as mandating a housing authority to provide a mobile home for a travelling person would be to usurp the functions of the Oireachtas. But Acts of the Oireachtas are to be read and interpreted in the light of the Constitution. If, in an exceptional case such as this, statutory powers are given to assist in the realisation of constitutionally protected rights or values, and if powers are given to relieve from the effects of deprivation of such constitutionally protected rights, and if there are no reasons, constitutional or otherwise, why such statutory powers should not be exercised, then I think such powers may be seen as being mandatory. In so finding I do no more than reiterate a statement of interpretation in cases of this exceptional category expressed by Costello J in the High Court, in O’Brien v Wicklow Urban District Council (Unreported, High Court, 10th June, 1994)

66. Both Mr. and Mrs. O’Donnell were repeatedly offered housing. It is not possible to conclude that the County Council failed in its statutory duty to them. The extent and range of the offers is sufficient to negative any finding in their favour. The parents must be taken as having spoken for the other children. The Council cannot be fixed with notice of sufficient information as to the other children’s position, which would have placed them under a duty. The courts must apply the law on the evidence in the case.

The Statutory Duty owed to Ellen O’Donnell
67. But Ellen’s situation is distinct. The terms of s.10 of the Housing Act, 1988 are that a housing authority “may … provide a homeless person with such assistance as the authority would consider appropriate”; or “… may … rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodgings for a homeless person”. There is a distinction between paragraph (b) and paragraph (c) of s.10, in that the words “as the authority consider appropriate” do not arise in paragraph (c). Did the County Council’s duty to Ellen end with these offers?

68. The preamble to the Constitution outlines the values of promoting the common good with due observance of prudence, justice and charity, so that “the dignity and freedom of the individual may be assured”. It is clear that constitutional values established by our jurisprudence, specifically those of autonomy, bodily integrity and privacy, are engaged here (In the matter of A Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 75, and Ryan v AG [1965] I.R. 294). The position of Ellen O’Donnell is distinct by virtue of the evidence. Of course, in every family situation, and in all forms of accommodation, the constitutional values just identified are compromised by the inevitable activities of other family members, or economics, or lack of space. But because of the exceptional overcrowding, and the destruction of the sanitation facilities, and in light of Ellen O’Donnell’s disability, her capacity to live to an acceptable human standard of dignity was gravely compromised. Her integrity as a person was undermined. Her rights to autonomy, bodily integrity and privacy were substantially diminished. The Council was aware of the issue.

69. The situation, as known to the County Council in 2005, was truly, exceptional. That situation was, to my mind, sufficient as to impose a special duty upon the County Council towards Ellen O’Donnell. The County Council says in this appeal that it complied with its duties to her. Insofar as privacy rights might arise under Article 8 of the Convention, the Council assessed her long term accommodation needs; provided temporary accommodation in 2003; upgraded and specially adapted the service unit and facilities on the bay; provided a wheelchair accessible caravan; offered a loan to the first and second named applicants for the purchase of a second-hand caravan to alleviate overcrowding, and made provision in its Traveller Accommodation Programme for the provision of a purpose built specially adapted group house designed to meet Ellen O’Donnell’s long term accommodation needs, having regard to her disability. There is considerable strength in each submission.

70. Arguably the situation was, partially, at least, the responsibility of Mr. and Mrs. O’Donnell. It can be said that, under Article 42 of the Constitution, the parents, as her guardians, were entitled to make decisions as to her education, upbringing and welfare; and that consequently the County Council was entitled, perhaps under a duty, to accept what the parents decided, in the words of Article 42, as “educators” of the children. But, insofar as Ellen O’Donnell is concerned, this is not only a case about parental choices, rights and duties (though these arise), but also about the duty of the Council, when faced with clear evidence of inhuman and degrading conditions, to ensure that it carried out its statutory duty. This was to vindicate, insofar as was practicable, in the words of Article 40.3 of the Constitution, the rights of one young woman with incapacities to whom, by virtue of the evidence, the Council owed a discrete and special duty under Article 40 of the Constitution. That statutory duty is to be informed with due regard to Ellen O’Donnell’s capacity as a human person (Article 40.1 Constitution of Ireland).

71. There are abundant examples in our jurisprudence as to the approach applied by the courts when considering socially “remedial” legislation such as this. Such statutes allow for a purposive interpretation, and are to be constructed as widely as can fairly be done, subject to the Constitution itself, and within the constitutional limits of the courts interpretive role. See: Bank of Ireland v. Purcell [1989] I.R. 327 and Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617. Is there a difference in principle between a council being fixed with knowledge and therefore a duty, in the context of a defectively repaired pavement creating a hazard to pedestrians, and the knowledge which it had in this case insofar as Ellen O’Donnell is concerned? I am not persuaded there is. Of course the extent of a duty, (if it exists), must be gauged against the degree of incursion into the constitutional and statutory rights engaged. A mere letter will not fix an authority with liability. It was the truly exceptional nature of what was in the letter, and its acceptance, which viewed in the circumstances, gave rise to the duty to interpret and apply “may” as “must”.

72. I do not seek to entirely absolve Mr. and Mrs. O’Donnell from potential liability for what occurred. But the degree of such liability is a matter which requires to be ascertained in a plenary hearing, affording an opportunity to examine and cross-examine. Speaking generally, as a matter of justice, adult persons who make negligent choices with legal consequences may be made answerable for those choices. A parent who is a defendant in a tort claim brought by a child in a car accident cannot seek the protection of Article 42 of the Constitution, if that child’s injuries occurred because the parent neglected to ensure that a child wore a seat belt. It is self-evident that Mr. & Mrs. O’Donnell were very aware of Ellen’s situation.

73. The exceptional evidence, and the acknowledgment of its truth, is sufficient to lead to the consequence of fixing the County Council with a duty under s.10 to take practicable steps on foot of the request for accommodation which was made to it (see s.10(2)). At its highest, that duty was, then, to “provide a homeless person with such assistance (including financial assistance) as the authority considered appropriate” (see s.10(1)(a)), or to “rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodging for this young person who was homeless” (see s.10(c)).

74. I appreciate that, if offered lodgings or accommodation, Ellen O’Donnell might well have responded that she would not, or could not, move without her family. This consideration does not absolve the County Council from taking such ‘practicable’ steps as might be taken to vindicate her position. Without being overly prescriptive, and without in any way trespassing into “judicial legislation”, or transgressing constitutional boundaries as to the separation of powers, the County Council, in compliance with its statutory duty under s.10(1)(b) of the 1988 Act quoted earlier, could, at minimum, have written in the clearest possible terms offering “financial assistance”, that is to say, that workers would be available on a specified date and time to carry out repairs to the caravan, and, if necessary, making arrangements to ensure repayment of the cost afterwards. This message could have been reinforced by a social worker visit explaining the contents of the letter, again in the clearest possible terms, together with a written acknowledgment of its contents. Even in light of the unfortunate experience with the Lunar Eclipse, the Council might, too, have contemplated lending a second caravan so as to make available temporary accommodation space for Ellen, her brothers and sisters. None of this happened. The evidence, therefore, does not show that the County Council performed its statutory duty, towards Ellen, “insofar as it was practicable” as the Constitution provides.

The ECHR Claim
75. As there is no basis, thus far, under the statutes or the Constitution, for a finding in favour of Mr, and Mrs. O’Donnell in their claim for a second caravan, I move to a consideration of potential ECHR rights. Many of the issues explored in this appeal bear resemblance to judgments by Laffoy J. in O’Donnell & Others v. South Dublin County Council [2007] IEHC 204 and Charleton J. in Doherty v. South Dublin County Council [2007] IEHC 4. While much may be gleaned from these prior authorities, the observations therein as to rights and duties under the Convention must now be seen in light of the more recent jurisprudence of this Court, specifically in the judgments in JMcD v. PL [2009] I.R.

76. The County Council is “an organ of State”. It is “established by law”. Through it, the “executive … powers of the State are exercised”. (see s.1 ECHR Act 2003). However, in order to establish that it has committed a wrong, it is necessary, by virtue of s.1 ECHR Act 2003, that a Council defaulted in its “functions” which include powers and duties. In engaging in the process of interpretation, pursuant to ECHR jurisprudence, a court is to take notice of any declaration, decision, advisory opinion or judgment of the ECtHR (s.4 ECHR Act, 2003). The courts are, subject to the Constitution to take “due account” of clear and consistent principles laid down in Strasbourg jurisprudence. This is to be seen in the context of the function of the ECtHR to adjudicate within its own powers, as identified under the its Treaty of establishment (see the judgments of Murray C.J., Denham J. and Fennelly J. in JMcD v. PL; and the references therein to R.(Ullah) v. Special Adjudicator [2004] 2 A.C. 323).

77. With regard to Mr. and Mrs. O’Donnell and the other children, the questions to be asked are the following:

1. Is there any statutory duty on the County Council, in the context the evidence regarding the other applicants, which, insofar as the claims for a second caravan are concerned, falls to be interpreted and applied in this case?

2. If so, can those statutory duties be interpreted in light of principles laid down in clear and constant Strasbourg jurisprudence?

3. In the absence of such principles, can any power or duty be interpreted or applied on the facts of this exceptional case, which might benefit the other applicants insofar as there is evidence?

78. For such duties to exist there must be an ECHR right, arising either under Article 3 or Article 8 of the Convention, cited earlier. As Murray C.J. pointed out in JMcD v. PL [2009], the ECHR may only become part of domestic law through what he described as the “narrow portal” of Article 29.6 of the Constitution; and then only to the extent determined by the Oireachtas and subject to the Constitution itself. The Convention does not in itself provide a remedy at national level to victims whose rights may have been breached by reference to the provisions of the Convention. Section 8 of the ECHR Act, 2003 permits a claimant, if there is no other remedy, to recover damages where an organ of State has failed to perform its functions in a manner compatible with the State’s obligations under the ECHR.

79. In Doherty Charleton J. pointed out that there is no positive obligation on a court to intervene to uphold the private and family life rights to be found in Article 8, and that, expressly, the text of Article 8 itself forbids “interference by a public authority with the exercise of this right”. The judgment points out that both the courts of England and Wales, and the European Court of Human Rights had attempted to address the issue in respect of housing or welfare conditions without formulating a principle as to when State welfare provision may be necessary in order to allow for the meaningful exercise of the rights protected. He observed:

“It may be that there is a positive duty cast upon public authorities to intervene under Article 8, consistent with the proper disposal of available resources, where special circumstances cause a direct interference of a serious kind in family life and where the subject of that interference has no available means to alleviate the absence of that right.”

80. In general, I consider that this expresses the hypothetical legal position correctly; but the existence and extent of such a duty would have to be discerned from clear and consistent Strasbourg jurisprudence.

81. Doherty pre-dated JMcD v. PL, and must be read subject to the later decision of this Court. Charleton J. (then a judge of the High Court) considered a number of authorities from England and Wales, where, on the basis of U.K. law as applied, the English courts had hypothesised on where situations potentially, a positive obligation of intervention might exist. He concluded it would be hard to conceive of a situation in which the predicament of an individual would be such that Article 8 would require that person to be provided with welfare support, where his/her predicament was not sufficiently severe also to engage Article 3. However, he thought Article 8 would be more readily engaged where a family unit is involved, or where the welfare of children was at stake. The Article might also be engaged where a family life was seriously inhibited by what are termed the “degrading conditions” prevailing in a claimant’s home.

82. However, it is clear that before an act or failure to act can amount to a lack of respect for private and family life, there must be some ground for criticising a failure to act. There must be an element of culpability. At the very least there must be knowledge that a claimant’s private and family life were at risk. Next, there must be a clear statement of principle to that effect discernible from the ECtHR jurisprudence. I would observe, the application of the principle must be subject to the conditions identified by this Court in JMcD v. PL.

83. A consideration of ECtHR case law demonstrates that, in fact, no judgment confers a right to be provided with a home of one’s choice, nor are there any positive obligations to provide alternative accommodation of an applicant’s choosing (see Chapman v. UK (Application no. 27238/95) (2001) 33 E.H.R.R. 442. However, an observation of the ECtHR in Marzari v. Italy [1999] 28 E.H.R.R. CD 175 is not without interest:

“The Court considers that, although Article 8 does not guarantee the right to have one’s housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such refusal on the private life of the individual.”

The decision in relation to the appellants other than Ellen O’Donnell
84. The difficulty here is that, in the case of Mr. and Mrs. O’Donnell, it is impossible to identify any right, however interpreted, which was not forgone, by their own actions in disposing of a usable caravan, and in refusing the range of housing solutions offered to them and their family. This was sufficient in law to discharge the County Council’s statutory duties. The same considerations also apply insofar as a claim could be said to arise deriving from consideration of ECtHR case law.

The order now proposed
85. There are passages in the High Court judgment herein where it might appear that the judge in fact gave “direct effect” to provisions of the ECHR. This would be at variance from the sub-constitutional status of the Convention. It is true that legislation is to be interpreted pursuant to s.2 of the ECHR Act, 2003. The judgment pre-dates the decision of this Court in JMcD v. PL. But this must be in a manner compatible with the State’s obligations. The interpretative obligation is limited, in that the Convention-compatible construction contended for, must be possible in accordance with existing legal rules concerning the interpretation and application of legislation. The interpretative obligation under s.2 cannot be relied on to support an interpretation which is manifestly inconsistent with the legislative intention behind the provisions. Moreover, a correct interpretation of a provision is irrelevant, unless there is actually some right of a claimant which is protected by the Convention and which has been breached by the manner in which the provision has been applied (see JMcD v. PL). Consequently, I would not alter the judgment insofar as concerns the other appellants.

86. I would vary the order of the learned High Court judge insofar as it concerns the fourth named applicant only. She is entitled to a declaration that she is entitled to damages (which may be moderate) by reason of the County Council’s breach of statutory duty toward her. I would remit her claim for damages for plenary hearing back to the High Court. I would add that the circumstances of the case pre-date the inception of the Charter of Fundamental Rights and Freedoms of the European Union, or the accession of the European Union to the United Nations Convention for the Protection of Persons with Disabilities. These instruments did not arise in the pleadings could not form part of the case.

87. The claim for damages for breach of statutory duty is of a quasi tortious nature. Therefore, it is one to which the Civil Liability Act, 1961, as amended, applies. While I express no view on this, issues may arise as to whether, in the assessment of damages to which Ellen O’Donnell is entitled, the question of the parents’ potential legal liability or part liability for what occurred may also arise. That question falls to be determined on facts as established at plenary hearing, and having regard to all the circumstances of the case.