1. This
is a preliminary issue directed to be tried by Order of Mr. Justice Johnson of
2nd March, 1998. The issue is whether the action against the First to Sixth
named Defendants ("RK&D"), who practised together as a firm of Architects,
and against the Seventh named Defendant which carries on an engineering
practice, is statute barred. In the month of December 1979, the Plaintiff
retained the services of the said Architects for the purpose of designing and
supervising the construction of the Irish Equine Centre at Johnstown, Co.
Kildare and retained the Seventh named Defendant, Ove Arup, as structural
engineers for the purposes of designing and supervising the engineering aspects
of the construction of the premises. Although separate listed complaints are
contained in the Statement of Claim and in an elaborate reply to a Notice for
Particulars, essentially the Plaintiff is suing these Defendants for damages by
reason of an alleged faulty design of the roof. The action has been framed in
contract and in tort. The breaches of contract which are alleged are also
claimed to be headings of negligence for which these Defendants are liable.
2. The
following facts are not seriously disputed. At any rate they are the facts
alleged by the Plaintiff and I must therefore treat them as the facts for the
purposes of considering whether the action is statute barred or not.
3. It
is obvious from those dates that the action in contract is clearly statute
barred. It is trite law that the limitation period commences on the date of
the breach of contract and not on the date when the damage is caused. In other
words, a breach of contract per se gives rise to a cause of action. The only
question which I have to consider, therefore, is whether the action in so far
as it is founded on tort, i.e. the tort of negligence is likewise statute
barred. The contention of the Plaintiff is that there was no damage or at
least no damage manifested itself until the ingress of water through the
ceiling of the Centre in late 1991. If the period commenced on that date then,
quite obviously, the action in so far as it is founded on tort is not statute
barred.
4. It
is common case that discoverability, as such, cannot be relevant in considering
what is the appropriate commencement date in respect of the limitation period.
On this point at least, the view of the House of Lords taken in
Pirelli
-v- Oscar Faber & Partners
,
1983, 2 A.C. 1 represents Irish law also. This is quite clear from the
decision of the Supreme Court in
Hegarty
-v- O'Loughran
,
1990, 1 I.R. 148 even though that particular case dealt with personal injuries
and not damage to a building. The reasoning contained in the several judgments
in
Hegarty
-v- O'Loughran
and the criticism voiced of the decision of Carroll J. in
Morgan
-v- Park Developments
,
1983, I.L.R.M. 156 indicate beyond doubt that the Supreme Court rejects the
discoverability test no matter what the nature of the damage claimed is. At
p.155 Finlay C.J. cites Section 71 of the Statute of Limitations, 1957 which
reads as follows:-
6. Finlay
C.J. goes on to point out that similar considerations would appear to apply to
the provisions of Section 48 of the Statute of 1957 dealing with disability
certainly in so far as such disability consists of unsoundness of mind. The
view has been expressed that in the absence of a discoverability test, the
limitation law is unjust to the Plaintiff. However, any constitutional
challenge on this account was rejected by the Supreme Court in
Tuohy
-v- Courtney
,
1994, 3 I.R. 1. It was pointed out in that case that the Oireachtas had to
achieve a balance between being fair to a plaintiff and being fair to a
defendant who should not have to meet a stale claim. I need not elaborate on
this matter any further because it is accepted that discoverability is
irrelevant.
7. Counsel
for the Plaintiff, Mr. Fitzsimons, however, while conceding that the period is
not delayed until discoverability nevertheless asserts that there must be some
manifestation of the damage before the period can commence. He can undoubtedly
find some apparent support for this proposition in some important decisions of
the House of Lords where it seems to be suggested that it would only be in rare
cases where, for instance, in the case of a claim for faulty construction of a
foundation, the damage could be said to arise immediately upon the
construction. Lord Fraser of Tullybelton in the
Pirelli
case has famously used the phrase, "doomed from the start" in relation to these
hypothetical exceptional cases and it seems clear that other law Lords have
doubted whether any such instance could ever arise. But it may be noted that I
have used the expression, "apparent support" because for reasons which I will
be indicating later on in this judgment, I do not consider that these English
House of Lords decisions afford any real or actual support for Mr. Fitzsimons'
"damage becoming manifest" argument. Where Mr. Fitzsimons can draw real and
solid support for his proposition is in the judgments of Finlay C.J. and
Griffin J. (particularly the latter) in
Hegarty
-v- O'Loughran
.
8. At
page 155 of the judgment, Finlay C.J. in a reference to
Morgan
-v- Park Developments
cited above says the following:-
10. That
last passage might seem to suggest that the time ran in the case of a personal
injury from the moment the injury first existed even if it was entirely latent
and symptomless. Having regard to the earlier passage which I have cited and
to the general tenor of the judgment, I do not think that that is what the
former Chief Justice intended to convey. I am strengthened in that view by the
fact that Griffin J. delivered a concurring judgment in which he made it quite
clear that in personal injury cases the damage may sometimes be taken to have
occurred long after the accident. In this connection, he said the following at
p.158:-
11. It
is perfectly clear from the judgment of Griffin J. and particularly from the
passage in it immediately following the passage which I have just cited that he
considered himself to be in complete agreement with the then Chief Justice. I
think, therefore, that
Hegarty
-v- O'Loughran
must be taken as authority for the view that prior to the 1991 Act, the cause
of action for personal injury did not arise until the injury was manifest but
it did then arise irrespective of whether it ever occurred to the party injured
or could ever have reasonably occurred to the party injured that it resulted
from the negligence of somebody else. Personal injury cases, of course, are
now governed by the 1991 Act and the views of the Supreme Court in
Hegarty
-v- O'Loughran
are only relevant in so far as they can and should be adapted to actions for
property damage.
12. In
my view, it is at least arguable that the nature of personal injury damage is
so different from the nature of damage resulting from defects in a building
that the concept of an injury becoming manifest as being relevant to the
commencement of the limitation period may only be applicable to personal injury
cases but I accept that the opposite can also be argued. I find it quite
unnecessary to decide this point and that being so, I do not think that I
should decide it. It would seem to me that if the roof, the subject matter of
this action, was defectively designed for the reasons suggested by the
Plaintiff, this would have been manifest at any time to any expert who examined
it. I agree with the submission in this regard made by Mr. Gordon, Counsel for
RK&D, that if experts with the same qualifications as these Defendants had
been retained just after the roof was constructed to inspect and report and,
assuming that the Plaintiff's allegations are correct, they could and would
have reported that the roof was defectively designed. I am satisfied,
therefore, that in so far as this action is founded on negligence in the design
of the roof, it is clearly stature barred.
13. Strictly
speaking, I need not go any further. But as various English authorities have
been either opened or submitted to me, I think that I should say something
about them.
14. This
action is for the recovery of £208,500, being the alleged cost of removing
existing slating, retaining existing roof structure and sheeting with metal
decking with counter batons and slating over (estimated). That, in my view, is
the primary claim. Admittedly, in paragraph 8 of the Statement of Claim, there
is a vague hint of a claim for general damages also. But it would seem to me
that if such a claim was sustainable at all, it would be for a nominal sum.
For all practicable purposes, this is a claim for what is known in the English
authorities as "pure economic loss". It would seem clear from the House of
Lords' decisions in
D&F
Estates Limited -v- Church Commissioners for England
,
1988, 2 All E.R. 992 and
Murphy
-v- Brentwood District Council
,
1990, 2 All E.R. 908, that there is no duty of care in law to prevent pure
economic loss arising from careless conduct or omission. An exception to this
is where the case can be brought within the principles of
Hedley
Byrne & Co. Limited -v- Heller & Partners Limited
,
1963, 2 All E.R. 575 and possibly one or two other situations. Mr. Fitzsimons
of course argues that Hedley Byrne can be invoked in this case as it is a claim
against two firms of professionals and not against the builder. But at any
rate, the law relating to the recovery of pure economic loss in a negligence
action would appear to be different in Ireland having regard to
Ward
-v- McMaster
,
1989 I.L.R.M. 400. But even if I thought that the law in Ireland and the law
in England was the same, I would still have to approach this case, not by
reference to my understanding of what the law was, but by reference to the
Statement of Claim and there is no doubt that the Statement of Claim is
alleging a cause of action in the form of a breach of a duty of care not to
cause pure economic loss. There is no preliminary issue before me as to
whether such a cause of action exists or not. The preliminary issue is
confined only to the Statute of Limitations. I, therefore, must assume that
such a cause of action does exist for the purposes of my judgment. But if that
is so, it is quite clear that the economic loss arose immediately the
defectively designed roof was constructed and possibly even at an earlier stage
for the reasons which I have indicated. Any suggestions to the contrary in the
English cases arise out of the assumption that a cause of action in negligence
for a defective building cannot arise until there is damage of a nature which
is either injurious to a person or is causing damage to property other than the
building itself. In cases decided in England between
Anns
-v- Merton London Borough
,
1977, 2 All E.R. 492 and
Murphy
-v- Brentwood District Council
,
cited above, damage which was likely to cause danger in the future might also
be sufficient to ground a cause of action but it would still have to be
physical damage. That being the perceived understanding of the law, it follows
that it would only be in the rarest of cases that the cause of action would
commence upon the construction of the building. But, if as is pleaded in this
Statement of Claim, damages can be recoverable in negligence quite apart from
contract for the pure economic loss involved in making good defective design of
workmanship, then quite clearly the loss arises from the beginning.
15. I
must, therefore, find in favour of the Defendants on this preliminary issue and
hold that the action as against them is statute barred. Let me add that I
think that this is entirely in line with the decision of O'Hanlon J. in
Doyle
-v- C&D Providers (Wexford)
,
1994, 3 I.R. 57.