England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/04/2011

Mr Justice Eder:

Introduction

1. In these proceedings, the claimant (Mr Clinton Eagle) claims damages in tort against the defendant ("Redlime") arising out of construction work done by Redlime in 2000 at Mr Eagle's property known as Hillcrest, Pear Tree Hill, Woodstock Road, Oxford (the "property"). The proceedings were commenced by issuance of a Claim Form dated 29 October 2009.
2. Redlime denies liability but says that, in any event, the claim is statute barred. (It is common ground that any claim by Mr Eagle in contract is statute barred.) In particular, Redlime says that Mr Eagle had the actual or constructive knowledge required for bringing an action for damages and a right to bring such an action within the meaning of s14A of the Limitation Act 1980 (the "Act") by, at the latest, 29 October 2006 i.e. more than 3 years before these proceedings were commenced.
3. Mr Eagle's case is that he did not have the relevant knowledge until 16 November 2006 and that accordingly his claim has been brought within the 3 year period allowed by section 14A of the Act.
4. By order of HHJ Seymour QC dated 1 March 2011, the question whether Mr Eagle's claim is statute barred was ordered to be tried as a preliminary issue. That is the issue which is the subject matter of this judgment. I set out below a summary of the relevant facts. That summary is based upon the contemporaneous documents and the evidence of Mr Eagle who was a witness at the hearing of this preliminary issue.

Background Facts

5. In about 1998, Mr Eagle and his wife purchased the property with the specific idea to start a dog kennelling business (now known as Lakeside Kennels) for which they would need to build a kennel block. At that time - and indeed at all material times - Mr Eagle had no specialist knowledge of or any qualifications in building and had not undergone any training. His work had always been driving, very basic labouring and assisting other skilled craftsmen.
6. Mr Eagle instructed a surveyor, Mr Bowyer (now deceased), to help him get planning permission. He prepared a number of drawings to accompany the application for planning permission. Once planning permission had been obtained, Mr Eagle sought quotes from a number of companies to carry out the construction work. In the event, Redlime submitted two quotes. The first quote was dated 6 October 1999. Following discussions, there was then a second and slightly amended quote dated 7 January 2000 which Mr Eagle accepted shortly thereafter.
7. The broad scope of the work was to construct a concrete base (including drainage work and a silage tank) for dog kennels at the property. That work was carried out by Redlime between January and March 2000. Mr Eagle subsequently had the superstructure constructed in two phases by a third party contractor.
8. Mr Eagle's case is that Redlime held itself out as a civil engineering contractor with knowledge and experience in ground works and foundations. So far as the work carried out by Redlime is concerned, Mr Eagle says that the contract was to construct the base as per surveyor's drawings (the "drawings") that included a vertical section showing proposed foundations. Redlime denies that it was obliged to construct to the drawings. Rather, Redlime says that it was only obliged to construct according to the contents of a hand written sketch provided by Mr Eagle. Mr Eagle says that the sketch was provided to Redlime at its request simply to indicate the position of the drains in the base and that was all. In essence, it is Mr Eagle's case that Redlime failed to construct the concrete base in accordance with the drawings and did not place any foundations under the base. Moreover, Mr Eagle says that Redlime recommended this course of action and that he had no input into the design or construction of the base. Save as set out below, I make no findings with regard to any of the matters referred to in this paragraph; but, for present purposes, I proceed on the basis that Mr Eagle has, at least, an arguable case that the work done by Redlime was inadequate and in breach of a duty of care to Mr Eagle.
9. Mr Eagle lived in a bungalow on the property when work commenced in January 2000. When the ground works actually started he could not see any evidence of Redlime digging foundations. According to Mr Bowyer's plans, Mr Eagle understood that the "typical section" comprised of a concrete floor built on four concrete footings which would require four trenches to be dug to accommodate them. Mr Eagle asked a friend of his, Lawrence Leahy, whom he had initially wanted to build the kennels about what Redlime was doing. According to Mr Eagle's written statement, Mr Leahy told Mr Eagle that what Redlime was doing was completely wrong and that it was not following the plans (meaning Mr Bowyer's plans). Mr Eagle was cross-examined with regard to this part of his statement. His evidence, which I accept, was that when Mr Leahy told him that what Redlime was doing was completely wrong, he (Mr Eagle) understood this to mean no more than that the work being done by Redlime was not in accordance with the plans. When Mr Eagle raised this with Mr Harmsworth of Redlime, Mr Harmsworth told Mr Eagle: "that's the old – fashioned way of doing it, it's more expensive, this is the modern way of doing it, we've got massive contracts down Langford Lane and this is what we are doing down there." Mr Harmsworth explained to Mr Eagle that the "modern method" was a floating slab. Mr Eagle understood Mr Harmsworth to be saying that the "modern method" meant creating a concrete base which was effectively a raft. Mr Eagle accepted Mr Harmsworth's advice.
10. Once the ground work was finished by Redlime, Mr Eagle proceeded to get other contractors in to build the actual kennel blocks on top of the concrete slab constructed by Redlime. In about 2004, some further rendering work was done on the walls by a local plasterer, Richard Jobs. Mr Jobs did some further work in 2005. Mr Eagle's evidence was unclear as to the timing, nature and scope of this work. In his second statement (which I accept) he stated that this work had nothing to do with the kennel stocks but involved the rendering of a perimeter wall (both sides) of the property.
11. Sometime thereafter, Mr Eagle started to notice some small cracks in the render of the walls. These appeared to be just small cracks in the rendering inside and out. They were around windows and down the walls. At the time, Mr Eagle thought that this was just normal settlement in a new building which was to be expected and so all he did was to get Mr Jobs (who had done the original rendering) to come in and repair the cracks by hacking off and making good using Tetrion filler. Again, it was unclear from Mr Eagle's evidence as to when these cracks were first noticed and when this work was carried out although this does not seem to be crucial. Doing the best I can on the evidence before me, it seems to me that this probably occurred (at the latest) sometime in early 2006.
12. In about the early part of 2006, Mr Eagle then also noticed that what he referred to as the "Aco channel" (which formed part of the drainage system) was sinking and separating from the slab floor. Mr Eagle thought at the time that this was due to Redlime simply placing the Aco channels on a mix of ballast (stones) and cement and then pouring concrete into the void using the edge of the Aco channel as a shutter rather than creating a channel in the concrete for the Aco drain. In particular, he thought what had happened was that the original ballast and cement mix had become wet and water had caused it to compact and cause movement of the Aco channels. As a result, all he did was put expanding foam in the crack between the Aco channel and the floor. His evidence, which I accept, was that had he thought the problem was more widespread than simply the sinking of the Aco channel, he would not have wasted his time making this repair.
13. About six months later i.e. sometime in the late summer of 2006, Mr Eagle noticed that the render had re-cracked. This concerned Mr Eagle a bit more because he thought he could not keep paying for the plasterer to come and to make good so there must be something wrong. In addition, the gap along the Aco drain which he had filled had reappeared. He still thought that it might be that the Aco channel was sinking because Redlime had bedded that on dry mix and perhaps there might be some water ingress. The gap by the Aco channel concerned him more than the re-cracking in the render because if the Aco channel was sinking into the dry mix, then the levels on that channel would be wrong; this would prevent liquid from moving along it into the drains; and, as a result, there would be a back flow of dog urine.
14. In about September 2006, Mr Eagle rang Mr Harmsworth and told him that there was cracking and that he wanted him to come and to have a look. Mr Harmsworth made a couple of appointments to come out but failed to attend either of them. Around the same time Mr Eagle also contacted a firm of solicitors, Darbys. He also contacted his own insurers but they told him on the telephone that he was not covered for the settlement of the Aco channel caused by water ingress onto the dry mix on which it had been placed. Mr Eagle continued to try to contact Mr Harmsworth. He eventually came out in September 2006 to have a look at the kennels. Mr Eagle could not remember much about this site visit save that Mr Harmsworth was generally very "non-plussed" about the whole thing.
15. After the meeting, there was no response from Redlime. Mr Eagle chased them a couple of times without success. Mr Eagle then contacted Darbys again. At this stage, Mr Eagle was concerned that Redlime's decision to place the Aco drains on a dry mix rather than in a concrete channel had caused the drain to start to subside and he wanted some way to get a response from Redlime in relation to this. Accordingly, Mr Eagle then wrote a letter to Redlime dated 9 October 2006 as follows:

"Dear Redlime Ltd,

To whom it may concern, after your site visit three weeks ago, I am now writing to ask for your written reply to our subsidence problem.

I would like your reply by seven working days of this dated letter.

If I get no reply I will have to get a structural engineers report

Contact another company to come and put right all of the faults.

Then pursue yourselves for the costs of such work.

Yours sincerely

(signed)

Mr C Eagle"

16. A few days later Mr Eagle received a response from Redlime in the form of a letter dated 12 October 2006 which read as follows:

"Dear Clinton,

Re Settlement issues with dog kennels January 2000

Further to our recent meeting I said I would look into the files and write back to you. Unfortunately due to the lapse in time none of the work files have been kept so my reply will be somewhat vague.

On or around January 2000 you commissioned us to install a large cess pool and to carry out some ground work for your proposed kennels.

These works were carried out despite onerous weather conditions and were completed on time and to your satisfaction.

Redlime had no input into the loading or design of the kennels.

All our works were inspected by yourself and as far as I am aware building control.

Our contract was complete with the completion of the slab and drainage and other contractors were responsible for the construction of the kennels of which we had no input.

The first contact you have made with regards the settlement was this September 2006, and I am not aware when the problems first began to manifest. From visual inspection, there has been settlement of the foundations due largely I would suspect to the dry summers causing shrinkage of the clay soils present.

I am sorry that this problem has materialised but I am afraid that for the reasons given, we can not any take responsibility for the settlement, [sic] and would suggest that you take the matter up with your architect or engineer."

17. That letter contained a number of assertions which were, at least as far as Mr Eagle was concerned, incorrect. In particular, the works had not been carried out to Mr Eagle's satisfaction; it was wrong for Redlime to say that they had no input into the loading or design of the kennels; and there had been no inspection by "building control". Further, as to the last sentence of this letter, Mr Eagle's "architect" was Mr Bowyer and his engineer was Mr Harmsworth. So far as Mr Eagle was concerned, Mr Harmsworth had not followed the design shown in Mr Bowyer's drawing.
18. Following the receipt of this letter, Mr Eagle got a local company from the yellow pages called Hannah Reed who are civil and structural engineers to come and to inspect the kennel block. Hannah Reed visited the property on 2 November 2006 to report on the general structural condition of the property. Their written report, dated 15 November 2006 addressed to Mr Eagle, sets out a description of the property, their external and internal observations and a summary of the geology of the site, followed by their conclusions and proposed remedial measures as follows:

"CONCLUSIONS

We are of the opinion that the cracking to the floor slab is a result of lack of tying between the edges of the floor slab with the central section. In addition, the shallowness of the foundation, particularly at the corner of the north west facing wing adjacent to the walnut tree, has accelerated the movement to this wing.

REMEDIAL MEASURES

Due to the lack of depth of the foundations, we would recommend that underpinning of the edges of the slab is required. This would possibly be best achieved by installing mini-piles and ground beams as indicated in the enclosed details, although we would suggest that the advice of a specialist in underpinning should be sought."

19. It was Mr Eagle's evidence (which I accept) that this was the first time anybody had said to him that the problems were caused by the fact that the base had been constructed by Redlime in three sections and those sections had not been tied together; that up until that point he had merely suspected that a problem had been caused by water ingress penetrating and then compacting the dry mix upon which the Aco drain had been placed; and that he had not even suspected that the problem was any greater or more widespread than this.
20. Thereafter, Mr Eagle got a company from Wycombe to come out and quote for underpinning. They told him that it would be cheaper to knock the kennels down and start again.
21. On 15 December 2006, Darbys wrote a letter of claim to Redlime under the pre-action protocol relating to construction claims. This was followed by some inter-party correspondence, none of which matters for present purposes. What does matter is that as noted above, the present proceedings were not issued until 29 October 2009. As set out in the Particulars of Claim (which are curiously dated 25 February 2009), it is Mr Eagle's case that the base and building are beyond economic repair and will need to be demolished and rebuilt. The total claim is in excess of £400,000 plus interest and costs.

Section 14A of the Limitation Act 1980

22. Section 14A of the Act provides in material part as follows:

(1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4) (b) below falls after the date on which the cause of action accrued.

(2) Section 2 of this Act shall not apply to an action to which this section applies.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.

(4) That period is either—

(a) six years from the date on which the cause of action accrued; or

(b) three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.

(5) For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4) (b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.

(6) In subsection (5) above "the knowledge required for bringing an action for damages in respect of the relevant damage" means knowledge both—

(a) of the material facts about the damage in respect of which damages are claimed; and

(b) of the other facts relevant to the current action mentioned in subsection (8) below.

(7) For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(8) The other facts referred to in subsection (6) (b) above are—

(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and

(b) the identity of the defendant; and

(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

(9) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.

(10) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;

but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.

Mr Eagle's case

23. In summary, it is submitted on behalf of Mr Eagle that his claim in negligence against Redlime is in time by virtue of section 14A(4)(b) of the Act on the basis that the first date on which Mr Eagle had the relevant knowledge required for bringing an action for damages in respect of the relevant damage was 16 November 2006. In particular, the following submissions are advanced on behalf of Mr Eagle:

i) The "relevant damage" for the purposes of section 14A(5), the "damage in respect of which damages are claimed" for the purposes of section 14A(6)(a) and "the damage" for the purposes of section 14A(7) is the failure of and damage to the concrete base by virtue of the faulty design of the base by Redlime.

ii) Mr Eagle did not have actual knowledge of the damage until 16 November 2006 and cannot be fixed with constructive knowledge of the damage before that date by virtue of section 14A(10). The existence and cause of the damage were facts ascertainable only with the help of expert advice. Mr Eagle had taken all reasonable steps to obtain such advice and had obtained the expert report of Hannah Reed within just over a month of his letter to Redlime dated 9 October 2006.

iii) Time does not start to run against Mr Eagle from the date when he first noticed cracking in the superstructure of the kennels as, having regard to the nature and location of the cracking, Mr Eagle had a not unreasonable belief that such cracking was caused by natural settlement and did not have any grounds for a reasonable belief that such cracking pointed towards a cause of action against Redlime.

iv) Time does not start to run against Mr Eagle from the date when he requested Redlime to inspect the building or from the date of his letter to Redlime dated 9 October 2006 because at those dates Mr Eagle did not know, and could not have known without expert evidence, that the cause of the cracking was the wholesale and fundamental failure of the base. Mr Eagle wrongly believed that the cause of the cracking was the manner in which the Aco drains had been inserted into the base rather than the design of the base itself. Reliance is placed on the decision of the Court of Appeal in Hallam-Eames v Merrett Syndicates Ltd [1995] 7 Med LR 122 for the proposition that the act or omission that Mr Eagle must have knowledge of was that which was causally relevant for the purposes of an allegation of negligence.

v) The fact that Mr Eagle noted prior to 16 November 2006 the separation of the Aco drains in the floor and his suspicion that the same was due to the manner in which the drains were inserted does not start time running against him from that earlier period. On behalf of Mr Eagle, Mr Flood submits that the present case is distinguishable from Hamlin v Edwin Eames [1996] PNLR 398. That authority related to a negligent surveyor's report where the claimant had knowledge of the negligence through the emergence of minor damage in the building only for far more serious damage that had also been missed in the report to emerge later. The court held that the single cause of action was the negligence of the surveyor for the purposes of limitation even if multiple types of damage emerged at later dates. Accordingly, the present case can be distinguished from Hamlin v Edwin Eames on two grounds:

a) The court expressly stated in its judgement that the case was to be contrasted with cases involving claims against those with responsibility for defective building work, where there may well be different causes of action against different contractors and in respect of different categories of damage to the same building and gave as an example the case of Steamship Mutual Underwriting Association v Trollope & Colls (City) Ltd 33 BLR 77 in which a number of different problems emerged in a building at different times.

b) Mr Eagle's suspicion at the time that he invited Redlime to view the building and wrote his letter to Redlime on 9 October 2006 was that Redlime had used the wrong method to insert the prefabricated drains into the completed slab. Mr Eagle did not know that the cause of the problem was not the construction of the channels in which to insert the drain but the fundamental design of the whole concrete slab.

24. Further, Mr Flood submitted that prior to 16 November 2006 Mr Eagle did not have the requisite knowledge of all or some of the following essential matters viz (i) knowledge of relevant damage; (ii) knowledge of any relevant act or omission of Redlime; and (iii) knowledge that such relevant damage was attributable in whole or in part to such relevant act or omission of Redlime.
25. I am unable to accept the broad thrust of these submissions for the following reasons.
26. The main question in the present case is what is the "starting date" as referred to in section 14A(4)(b) of the Act. That "starting date" is, in effect, defined in section 14(5) of the Act. For the purposes of that subsection, the critical question reduces to when Mr Eagle had "the knowledge required for bringing an action for damages in respect of the relevant damage". That phrase is, in effect, defined in section 14A(6), (7) and (8). The background to and underlying statutory purpose of these provisions were considered by the House of Lords in a Haward v Fawcetts [2006] 1 WLR 684. That case raised for consideration the nature and degree of "the knowledge required" as to which there is a number of passages which are of direct relevance in the present case in particular per Lord Nicholls (paragraphs 8-11), Lord Scott (paragraphs 32-45), Lord Walker (paragraphs 55-68), Lord Brown (paragraph 90) and Lord Mance (paragraphs 106-127). For present purposes, it is probably sufficient to note the following two significant points.
27. First, at p685 paragraph 9, Lord Nicholls stated:

"Thus, as to the degree of certainty required, Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes [1991] 1 WLR 428, 443. He noted that knowledge does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of any writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence: "Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice." In other words, the claimant must know enough for it to be reasonable to begin to investigate further."

Similarly, there is the passage in the speech of Lord Brown at paragraph 90, where he said that all that is required is sufficient knowledge

"… to realise that there is a real possibility of his damage having been caused by some flaw or inadequacy in his advisers' investment advice, and enough therefore to start an investigation into that possibility which section 14A then gives them three years to complete."

At paragraph 126, Lord Mance stated:

"Actual knowledge within (a) involves knowing enough to make it reasonable to investigate whether or not there is a claim against a particular potential defendant."

Similarly, in Ministry of Defence v AB & Ors [2010] EWCA Civ 1317, the Court of Appeal had to consider: when is a belief which is not founded on medical, scientific or other expert advice sufficient to amount to knowledge? At paragraph 91, reference was made to the speech of Lord Nicholls above and, on that basis, the test was stated to be "... whether the claimant had such a degree of belief that, objectively considered it was reasonable to expect him to commence investigating whether or not he had a viable case…"

28. Second, as to the degree of detail required before a person can be said to have knowledge of a particular manner, I would refer again to the speech of Lord Nicholls at paragraphs 10 and 11:

"10….... Consistently with the underlying statutory purpose, Slade LJ observed in Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim. Where the complaint is that an employee was exposed to dangerous working conditions and his employer failed to take reasonable and proper steps to protect him it may well be sufficient to set time running if the claimant has "broad knowledge" of these matters. In the clinical negligence case of Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114, 117-118, Blofeld J said a plaintiff may have sufficient knowledge if she appreciates "in general terms" that are problems capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren Purchas LJ said that what was required was knowledge of the "essence" of the act or omission to which the injury was attributable: Nash v Eli Lilly & Co [1993] 1 WLR 782, 799. In Spargo v North Essex District Health Authority [1997] PIQR P235, P242, Brooke LJ referred to "a broad knowledge of the essence" of the relevant acts or omissions. To the same effect, Hoffmann LJ said section 14(1)(b) requires that "one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which the complaint is based": Broadley v Guy Clapham & Co [1994] 4 All ER 439, 448.

"11 A similar approach is applicable to the expression "attributable" in section 14A(8)(a). The statutory provisions do not require merely knowledge of the acts or omissions alleged to constitute negligence. They require knowledge that the damage was "attributable" in whole or in part to those acts or omissions. Consistently with the underlying statutory purpose, "attributable" has been interpreted by the courts to mean a real possibility and not a fanciful one, a possible cause of the damage as opposed to a probable one: Nash v Eli Lilly & Co [1993] 1 WLR 782, 797-798. Thus, paraphrasing, time does not begin to run against the claimant until he knows there is a real possibility his damage was caused by the act or omission in question."

See also per Lord Walker at paragraph 66, Lord Brown at paragraph 90 and Lord Mance at paragraph 112 and also paragraph 122 where he emphasised that the authorities establish that the word "attributable" means here "capable of being attributed" rather than "caused by".

29. In Shore v Sedgwick Financial Services [2008] PNLR 244, Beatson J summarised these principles at paragraphs 225-226 of his Judgment, in terms approved by the Court of Appeal at [2009] Bus LR 42, 59-60.

Knowledge of the damage

30. Taking each of the statutory elements in turn, the first question is if and when Mr Eagle had knowledge of the material facts about the damage in respect of which damages are claim: see section 14A(6)(a) which has, of course, to be read together with sub-section (7). As to that, it seems plain that Mr Eagle had the necessary knowledge of the material facts about the damage in respect of which damages are claimed prior to (at the latest) 29 October 2006. By that stage, he certainly knew that there had been subsidence causing the Aco channels to sink and to separate from the concrete slab and that there had been cracking to the windows and walls. In my judgment, those are facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment within the meaning of subsection (7).
31. As Mr Flood submitted, I fully accept that Mr Eagle did not have knowledge about the full extent of the damage. In particular, he was not aware of the full extent or precise cause of the subsidence. However, consistent with the authorities referred to above, it does not seem to me that this is necessary or relevant for the purposes of s14A(6)(a) and (7) provided, of course, that the damage of which the claimant has knowledge is "sufficiently serious" so as to satisfy the requirements of subsection (7). Further, as the authorities make plain, knowledge of such damage will be sufficient to satisfy this element even if other more serious damage may exist and only be discovered at a later date: see, for example, Hamlin v Edwin Evans [1996] PNLR 398; Oakes v Hopcroft [2000] Lloyd's Rep BN 946.

Knowledge that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence

32. This element derives from a combination of subsections (6)(b) and 8(a). In particular, subsection 8(a) is concerned with knowledge "…that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence." As submitted by Mr Flood, that definition has two limbs viz first, knowledge of a relevant act or omission and, second, knowledge that the damage was "attributable" to such act or omission. However, these two limbs form part of a single definition and it is convenient to consider them together.
33. In considering this element, it is, of course, also important to bear in mind that subsection (9) expressly stipulates that knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant.
34. In this context, Mr Flood relies upon the passage in Hallam-Eames v Merrett Syndicates Ltd [1995] 7 Med LR 122 at p126:

"In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence……It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know "the essence of the act or omission to which the injury is attributable (Purchas LJ in Nash v Eli Lilly & Co [1993] 1 WLR 782, 799) or "the essential thrust of the case" (Sir Thomas Bingham MR in Dobbie [1994] 1 WLR 1238) or that one should

"…look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which complaint is based."

(Hoffman LJ in Broadley [1993] 4 Med LR 328, 332.)"

Relying on this passage, Mr Flood submits that, so far as Mr Eagle's knowledge is concerned, the "causally relevant" test was not satisfied until after he (Mr Eagle) received the report from Hannah Reed. In particular, Mr Flood submits that prior to receipt of that report, Mr Eagle did not know that the damage in question was "attributable" to or caused by any relevant negligent act or omission on the part of Redlime. I fully accept the importance of the "causally relevant" test. However, in my judgment, Mr Flood's submission begs the question as to the degree of knowledge that is required for the purposes of subsection (8). In that context, the authorities cited above make plain that knowledge does not mean knowing for certain. Adopting Lord Nicholl's paraphrasing, Mr Eagle must know enough for it to be reasonable to begin to investigate further; and that there is a real possibility that the damage was caused by an act or omission by Redlime.

35. As I have already stated, it is plain that prior to 29 October 2006, Mr Eagle certainly knew of the subsidence and the damage to both the Aco drainage channels and the cracks to the walls. Mr Eagle also knew (i) that the relevant ground works had been carried out by Redlime; (ii) that that work had not been carried out in accordance with Mr Bowyer's drawings; and (iii) that the slab had not been built with foundations but rather in accordance with what Mr Harmsworth had told him was the "modern method".
36. I do not accept the submission that Mr Eagle had a not unreasonable belief that the cracking was caused by "natural settlement" if by that is meant that he did not consider something had gone wrong. That was not Mr Eagle's evidence. Nor do I accept that he did not have any grounds for a reasonable belief that such cracking at least pointed towards a cause of action against Redlime. On the contrary, in my judgment, prior to 29 October 2006, the position was that Mr Eagle thought that the damage was caused by something that Redlime had done wrong albeit (i) he wrongly believed that the cause of the problem with regard at least to sinking of the Aco channels was that Redlime had used a dry mix and (ii) he only became aware of the real cause after he received the report from Hannah Reed.
37. Although I therefore accept that prior to 29 October 2006, Mr Eagle did not have sufficient knowledge of the true cause of the damage, he did, in my judgment, have sufficient knowledge that the damage was attributable to an act or omission of Redlime within the meaning of subsection 6(b) and 8(a) of the Act in the sense (at the very least) of being capable of being attributed to the work which they had carried out.
38. The fact that Mr Eagle had such knowledge is, in my judgment, further confirmed by (i) the fact that he contacted Darbys for advice on at least two occasions prior to 29 October 2006; and (ii) the terms of his letter dated 9 October 2006. As to the latter, it is true that the letter does not in terms hold Redlime liable but it seeks in plain terms a written response from them with regard to what he described in the letter as "our subsidence problem" and the need to put right "all of the faults". Moreover, adopting the words of Lord Nicholls, it is plain that by 29 October 2006 if not before, Mr Eagle knew enough for it to be reasonable to begin to investigate further and that is exactly what Mr Eagle did by instructing Hannah Reed shortly after receipt of the letter from Redlime dated 12 October which he knew contained a number of errors including the fact that, at least as far as Mr Eagle was concerned, Mr Harmsworth was his engineer.
39. So far as Redlime's letter dated 12 October is concerned, I was initially troubled by the fact that the overall thrust of the letter was to deny any failure on their part and to suggest in effect that the problem was natural settlement for which they had no responsibility. (I should record that Mr Ticciati on behalf of Redline accepted that the letter was not in truth "without prejudice" despite the heading and was to be regarded as an "open letter".) In particular, I initially wondered whether it was open for Redlime to assert that Mr Eagle knew that the damage was attributable (i.e. capable of being attributed) to an act or omission of Redlime which is alleged to constitute negligence in circumstances when they themselves were in effect telling Mr Eagle that this was not the case. That point might have been relevant if Mr Eagle had been persuaded and relied on what Redlime said in the letter and had, for example, refrained from investigating the matter further. But this was not the case; and this point was, in any event, expressly disavowed by Mr Flood.

Constructive Knowledge

40. Redlime's primary case was that Mr Eagle had sufficient actual knowledge prior to 29 October 2006 for the purposes s14(A)(4)(b) of the Act. I have dealt with that case above. In the alternative, relying upon s14A(10) of the Act, Redlime also said that if Mr Eagle did not have sufficient actual knowledge until he received the Hannah Reed report, he did (at the very least) have constructive knowledge well before that date because he ought reasonably to have commissioned such a report when the need for the earlier repair occurred at the latest in the late summer of 2006. In the event, this point does not arise. However, in my judgment, Mr Eagle acted entirely reasonably at least prior to 29 October 2006. As soon as he thought there was a real problem, he called in Mr Harmsworth. Once Mr Eagle received the letter dated 12 October 2006, he contacted Hannah Reed and obtained their report just over a month later. Accordingly, I do not accept this alternative case based on alleged constructive knowledge.

Conclusion

41. I have much sympathy with Mr Eagle but in my judgment his claim in tort in these proceedings is statute barred. Counsel are requested to seek to agree and to draw up an order including costs. In the absence of agreement, I will deal with any outstanding issues.