SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT PETERHEAD

 

A49/06

		INTERLOCUTOR   in causa   MRS ALICE BUCHAN, 1 Gordon Street, St. Combs, Fraserburgh, Aberdeenshire.
		Pursuer
		against
		MR IAN BRUCE, 16 West Street, St. Combs, Fraserburgh, Aberdeenshire.
		Defender

 

 

 

Act: Reilly

Alt: Walker

 

 

 

PETERHEAD, 16 August 2007.

 

The sheriff, having resumed consideration of the cause, Finds the following facts admitted or proved.

 

(1) The pursuer is Mrs Alice Buchan, she is 72 years of age. She resides at 1 Gordon Street, St. Combs, Fraserburgh, Aberdeenshire. She is the heritable proprietor of that property.

 

(2) The defender is Ian Bruce. He resides at 16 West Street, St. Combs, Fraserburgh. He carries on business as a self-employed joiner.

 

(3) The Sheriff Court of Grampian Highland and Islands at Peterhead has jurisdiction.

 

(4) In 1997, the pursuer instructed the defender to carry out joinery work at her property. The work initially instructed was the replacement of two interior walls and the removal of a fireplace slab. After said work had been undertaken the pursuer instructed the defender to relay the floor.

 

(5) In 1997 the defender completed all of the work in respect of which he was instructed.

 

(6) The pursuer selected the defender to undertake the work as she knew him as a close friend, believed him to be a suitably qualified tradesman and as his family had undertaken all previous joiner work for the pursuer's family.

 

(7) In 1998 the pursuer became concerned as a result of a damp smell and apparent damage to furniture in the room. The pursuer had previously cleaned the carpet in the room and initially believed that she had used too much water and that this was the cause of the damp smell.

 

(8) As a result of this situation the pursuer lifted the carpet and removed the furniture from the room, disposing of some of it.

 

(9) In 1999 the pursuer continued to experience dampness in the room.

 

(10) On an unspecified date in 1999, the pursuer called back the defender to inspect the room. She advised him that everything in the room was wet. She sought his advice and specifically asked him if there was a problem with the work which he had undertaken.

 

(11) The defender, in response, indicated to the pursuer that he had no sense of smell and could not smell any dampness. He did not acknowledge that there was any problem with the construction of the room and mentioned a potential problem about air circulating under the furniture. He made a recommendation concerning air circulation. He suggested that the source of any dampness might be the construction of the window frame or adjacent walls in respect of which he had undertaken no work.

 

(12)      In or about September 2001, the pursuer again called the defender to inspect the room. This was at a time when he had been undertaking other work for the pursuer in her house, namely the laying of a laminated floor in her hallway. He was shown the problems in the room by the pursuer. He did not accept that there was any smell of dampness from the room and offered no explanation.

 

(13)      In or about October 2001, the pursuer purchased a saw and proceeded to tear up the floor as she believed that it was the floor that was the source of the problem. She again contacted the defender who advised her to let air circulate in the room. The defender was instructed to relay the floor and did so prior to the end of 2001. He repeated that he could not smell anything untoward and that he did not consider there was any defect with the floor.

 

(14) The dampness returned and in about 2003 the pursuer again contacted the defender who called at the property. She exhibited to him rusting carpet tacks which he declined to accept showed any problem and again raised the matter of the unpleasant smell of dampness which he again said he did not smell.

 

(15) Thereafter the defender declined to call back at the property despite a number of telephone requests by the pursuer asking him to attend. On one of these he shouted at her.

 

(16) Thereafter the pursuer made certain attempts to obtain advice from surveyors but was unable to do so.

 

(17) In late 2004 or early 2005 and on the advice and with the assistance of members of her family, the pursuer consulted a solicitor. She then obtained a survey report from Peter Cox Ltd.

 

(18) The pursuer did not then wish to return to the defender as she no longer considered him reliable and because he had shouted at her when she had last spoken to him by telephone.

 

(19) The pursuer instructed another firm to undertake remedial work.

 

(20) The present action was commenced on 10 February 2006 being the date of service.

 

(21) Until the raising of the present action, the pursuer made no relevant claim against the defender.

 

(22) The defender has at no time acknowledged any obligation to make reparation to the pursuer.

 

Finds in Fact and in Law:-

 

(1) At the point of the completion of the work, in 1997, the pursuer was not aware nor could she with reasonable diligence have become aware that loss, injury or damage had resulted from an act, neglect or default giving rise to an obligation to make reparation.

 

(2) The latest date by which the pursuer was aware or in any event could with reasonable diligence have been aware, that loss, injury or damage had been caused by an act, neglect or default giving rise to an obligation to make reparation, was 31 December 1999.

 

(3) In terms of Sections 6 and 11(3) of the Prescription and Limitation (Scotland) Act 1973 any obligation on the part of the defender to make reparation to the pursuer was extinguished on 1^st January 2005.

 

 

Findings in Law:-

 

Any obligation owed by the defender to the pursuer in respect of damages caused or allegedly caused as a result of his work was extinguished prior to the raising of the present action.

 

THEREFORE :-

Sustains the defender's plea-in-law No. 2 and Dismisses the action;

Reserves the question of expenses and fixes a hearing on expenses at 9.45 am on 5 October 2007.

 

 

NOTE:

[1] This is an action for reparation arising out of a contract for building work instructed and carried out in 1997. The action was raised in February 2006. After sundry procedure, including a period when sisted, the action was set out for a preliminary proof before answer in respect of the defender's second plea-in-law wherein it is stated that any right of action available to the pursuer was extinguished prior to the raising of these proceedings.

 

[2] The matter called before me on 6 August 2007 for proof. Evidence was led by the pursuer and two witnesses, namely her two daughters. No evidence was led by or on behalf of the defender. I then heard submissions from each side.

 

[3] The pursuer generally gave her evidence in a clear and straightforward manner. I was entirely satisfied that her factual evidence was truthful. She was, however, vague and uncertain on matters of detail such as precise dates and the content of conversations. Further, her evidence on her state of knowledge and suspicion of the cause of the problems was somewhat equivocal. The pursuer's evidence was that she had engaged the defender to undertake joinery work to her house of which she was the owner and which she said was in perfect condition. The work involved the replacement of two internal walls and the removal of a fireplace slab. When she saw the condition of the floor after the work had been done she instructed the defender to lay a new floor using green slabs. I took this to be a reference to floor boarding sheets. There had been no problem with dampness before the work was undertaken. She had selected the defender as he was a close friend and as his family business had undertaken all of her family's joinery requirements in the past. She was confident in him. She had arranged for the original carpet to be re-laid once the work was completed. She was, as stated, uncertain of the precise dates involved.

 

[4] In 1998, again she could give no accurate date, she detected a smell and dampness in the room. She initially attributed this to her having cleaned the carpet and over wet it in so doing. She took the furniture out of the room, disposing of some of it and removed the carpet.

 

[5] The problem persisted and, on a date in 1999, she asked the defender to come back to look at the room. She told him that everything in the room was soaking. When he came back he said that he could see nothing wrong and suggested steps be taken so that air might circulate around the furniture. He suggested the removal of the back of some furniture to let the air circulate. He indicated that he had no sense of smell. He suggested that any problem might be attributable to the window and adjacent walls and was not attributable to his work. The pursuer specifically asked him whether the problem was as a result of his work. He did not acknowledge that there was a problem with the room.

 

[6] There was no improvement. The situation was worst when the heating was on. There was heavy condensation on the window and the furnishings were wet. In September 2001, when the defender was carrying out further work by laying a laminated floor in the hallway he was asked and did look again at the room but indicated that he saw no problem. One month later the pursuer bought a mechanical saw, as she thought the floor was the cause of the problems, and proceeded to remove the floor herself. The defender was called back once more and continued to indicate that he saw nothing wrong with his work. He returned just before the end of 2001 and re-laid the floor on the instruction of the pursuer.

 

[7] The problem still persisted and there was a further meeting between the parties in 2003. At that stage the defender again indicated that he did not smell anything untoward and did not consider there to be a problem. He was shown rusting carpet tacks by the pursuer but did not accept that these indicated a problem. It was the pursuer's position that she had telephoned the defender on numerous occasions and that he had not responded and that she had also attempted to attract his attention, when he was passing, but he had avoided her. On the last occasion she had telephoned him he had shouted at her. She accepted that he had never acknowledged that there was any problem with the work he had undertaken.

 

[8] It was the pursuer's position that she had on occasion attempted to attain assistance from surveyors but that they had been unable to assist due to the nature of the construction of her property. Why that should be the case was never adequately explained. By 2003, she had come to the view that the defender was not genuine and did not know how to progress the matter. There had been discussions between her and her two daughters. One of her daughters, witness Wilma Smith, had been in the house on one of the occasions when the defender had inspected the work. After some discussion she had consulted with a solicitor at the end of 2004 or start of 2005. At his instigation, a survey report had been obtained from Peter Cox Ltd. That report, she claimed, had attributed blame to the work undertaken by the defender. It was not produced to the court. Her lawyer had suggested that she discuss the report with the defender but she did not wish to do so because of his attitude. She had great difficulty in obtaining any other builder or joiner to look at or undertake remedial work and had finally succeeded in doing so but only as a result of a favour she had done for that builder's wife.

 

[9] Under cross-examination, she confirmed most of her evidence. She accepted that she had not specifically requested that the defender remedy the problems which had arisen. She had not pursued the matter quickly as she had been of the view that the room would probably dry out given time. She had found it extremely difficult to obtain advice. Although she had stated that she had lost faith with the defender at a late stage she accepted that she had not thought he was genuine when, in 1999, he had refused to acknowledge that there was anything wrong. She again retracted back from this position in re examination.

 

[10] The pursuer's first witness was Wilma Smith, her daughter. Her evidence was largely consistent with that of the pursuer. She confirmed that her mother had been chasing the defender to come back and look at the work and that she had been in the house on one occasion when he had done so, she thought in September 2001. She confirmed that her mother had torn up the floor herself and that she was aware that the defender had replaced the floor again. She had heard him indicate that he could not smell dampness in the room. She confirmed that there was no doubt that the room was suffering from significant damp problems. She spoke of condensation, wetness and damage to furnishings. The family had thought that the defender would return and resolve the problem. It would have been the decent thing for him to do. Under cross-examination, she confirmed that the defender had not, to her knowledge, acknowledged that there was any fault with the work which he had undertaken.

 

[11] The second witness was the pursuer's younger daughter, Elizabeth Elrick. She again confirmed the material circumstances, that the defender had laid a floor, she thought in 1999 but accepted could have been 1997, that there had been significant damp problems, that the floor had been taken up by her mother and then re-laid again by the defender and that the problems had persisted. She was a regular attender at the house. There were a number of occasions when she smelled the damp problem but the smell was not always present. The problem persisted after the floor had been re-laid at or around Christmas 2001. She also spoke to the physical indications of the problem. She believed that her mother thought that the defender would resolve any problems and had not pursued matters too vigorously as a result. At the start of 2005, she had suggested to her mother that she consult a solicitor and matters had progressed from then. She believed that her mother thought the defender responsible. Although she did not indicate the point at which her mother had come to that view she seemed to imply that it was at an early stage. There had been no problem with dampness in the room before the defender had undertaken his work.

 

[12] The defender did not lead evidence.

 

Submissions

[13] Miss Reilly, for the pursuer, accepted that it was, in the circumstances of the case, the pursuer's onus to establish that the claim had not prescribed. She referred to Section 6 and Section 11 of the 1973 Act. She submitted that on the facts of the case the claim had not prescribed prior to the raising of proceedings. The pursuer's first concern had arisen in 1998. She was not aware of the cause and thought that it could have been the carpet. Having sought to attend to that by 1999 the smell still persisted and she then contacted the defender to come back and consider the problem. He had advised that he could smell nothing and that any problem might arise from the construction of the walls. In her submission the starting date for prescription was postponed until the point when she could have been aware with reasonable diligence that there was a problem and that it had been caused by the defender. It was not until 2005 when she had obtained the Peter Cox report that she became aware that the defender was responsible. She had then instructed an alternative builder. In her submission, the issue was whether the pursuer's actings had passed the reasonable diligence test set out in Section 11 of the Act. She submitted that they had done so. She had sought and accepted the assurances of the defender about the extent of the problem and that he had no responsibility therefore. He had pointed her to the walls as a possible cause. By the defender's attending and commenting on the position, the starting date had been postponed. The pursuer had been exercising reasonable diligence.

 

[14] Even if the view was taken that she was, or ought to have been, aware of the position by the time that she had purchased the saw to cut the floor herself, in late 2001, then taking that as the starting date for prescription the action had been raised timeously.

 

[15] The pursuer had instructed the defender as she had trusted him and relied upon him to carry out the work competently. She had continued to trust him when he had come back and looked at the work and when he had said he could not smell anything. She had accepted reassurances of the defender and had relied on these. She had thought and hoped that matters would resolve themselves or the defender would resolve matters. Her purchase of the saw in 2001 was the earliest point when it could be said that she realised that there was a serious problem and that it might be caused by the laid floor. She accepted, in submission, that the problem had not been identified for about a year and that after an unspecified period the pursuer had become aware that her carpet cleaning was not the cause. Her primary submission was that the prescription period did not commence until the point when the pursuer had lost faith with the defender and his assurances. Alternatively, it did not commence until the point of her purchasing the saw to investigate the matter.

 

[16] For the defender, Mr Walker accepted that the start date could be postponed until the pursuer became aware that damage had occurred but not until she became aware of who had caused such damage. He accepted therefore that the start point was not the date of completion of the work. It should start at the point of which she realised that there was a problem and that it was not caused by her having over wetted the carpet. In 1999, the defender was invited back. He had not smelled anything. It was of no moment that he had agreed to come back nor what he had said. What was important was that had the pursuer exercised reasonable diligence at that point she could have come to a view about the cause of the problem.

 

[17] He referred in particular to William J Stewart on Reparation at page A574, which referred to the reported case of Glasper v Rodger 1996 SLT 44 and also commented on the reported case of Ghani v Peter T McCann & Co 2002 GWD 17-578. He submitted that the correct approach was that the time bar will be extended where the pursuer was unaware of the existence of loss, injury and damage. It might also be the case that it was extended where the pursuer was unaware that loss, injury and damage had been caused by an act of neglect and default. It should not be extended where the pursuer could not identify the individual responsible. He submitted that it was clear particularly from the evidence of the witness, Mrs Elrick that the pursuer had always attributed the dampness problem to the construction of the floor. She did consider that to be the cause otherwise, why had she asked the defender to come back. That he had said he could smell nothing did not mean that the time was being extended. The pursuer and the rest of her family continued to consider that there was a smell of damp and a problem. They had given evidence about physical signs of water on the window and damage to furniture and fittings.

 

[18] The test was one of reasonable diligence that being the actions of an ordinary person. This was set out in the case, Glasper v Rodger. He referred particularly to the passage in the judgment of Lord President Hope at page 47J.

 

[19] On any view the pursuer had not done all that was in her power to do. She had failed to exercise reasonable diligence and could not rely on the terms of Section 11(3) of the 1971 Act. The action had been raised in 2006 in respect of alleged neglect in 1997. The action was time barred as prescription had run its course. He referred finally to the reported case Greater Glasgow Health Board v Baxter, Clark & Paul 1992 SLT 35. This case, he submitted, covered the points he had taken.

 

[20] He moved that the cause be dismissed.

 

My Decision

Facts

[21] The proof of this case related to the issue of prescription only and accordingly did not go into the detail of the claim itself. I did not hear evidence about the causation of the problems experienced by the pursuer nor liability therefore. What is clear from the evidence which was presented is that the bedroom, as previously constituted, did not have a problem with dampness. Within one year of completion of work on the room there was a significant problem with dampness. The pursuer initially attributed this to her own efforts in cleaning the carpet, considering that she had perhaps over wet the carpet when so doing. She had taken steps to remedy this situation and had discovered as a result that the carpet was not the source of the problem. At that point, although she was not prepared to concede this, it does appear from her own general evidence and that of her two supporting witnesses that she did at the very least suspect that the cause of the problem was the work undertaken by the defender. She called him back and he indicated that he did not consider there was a problem but if there was it was not due to his work. I have to say that I did not fully understand the pursuer's position from this point on. She appeared to suggest that she accepted the assurances of the defender that there was not a problem although she, and her other two witnesses, her daughters, were clearly of the view that there was such a problem. What then occurred appears to have been an extended period of indecision on the part of the pursuer. It is clear that the problem persisted over a considerable period to the point when, in September 2001, she called the defender back and again received a similar response from him. On this occasion she was not satisfied and went to the trouble of purchasing and using a circular saw to remove the floor, which the defender had laid. She then had him return and relay the floor. Although not covered in evidence it appears from the Record that the defender charged the pursuer for this exercise. Accordingly, it could not be construed as any admission of liability on his part. Matters then progressed over a further sustained period to the point when the pursuer eventually obtained legal advice, a suitable report and raised proceedings in early 2006. This was almost nine years after the work was completed.

 

[22] In assessing the evidence, I was not helped by the pursuer and her witness having a poor recollection of the dates involved although they were all able to place events in a chronological sequence and to identify the years which were involved. In assessing their evidence, I considered each of the three witnesses to be truthful and generally reliable, although I was not always clear on their reasoning, particularly that of the pursuer.

 

The Law

[22] The decision in this case relates to the interpretation and application of the terms of the Prescription and Limitation (Scotland) Act 1973 and in particular Sections 6 and 11 thereof. Section 6 of the Act sets out, with reference to Schedule 1, that specified obligations will expire after a period of five years where there has been no relevant claim or relevant acknowledgement. It was not disputed that this section applied to the present case nor was it suggested that there had been any relevant claim or acknowledgment other than service of the initial writ. There was certainly no evidence led of any relevant claim or anything which could amount to a relevant acknowledgement.

 

[23] Section 11 of the Act then sets out, with regard to claims for reparation, such as this claim, the correct approach to assessing the date on which the prescriptive period will commence. Section 11, subsection 1 sets out the date as being that on which the loss, injury or damage occurred. That is then qualified in subsection 3 to the date when the creditor first became, or could with reasonable diligence have become, aware that loss, injury or damage caused by an act, neglect or default had occurred.

 

[24] There has been much debate about the appropriate interpretation of this section. There is a detailed discussion on the point set out in Prescription and Limitation by David Johnston and commencing on page 154. I was not referred to this work but was referred to certain of the reported cases quoted therein.

 

[25] It does appear clear from the authorities quoted that the approach which has been adopted by successive courts, and in particular in Greater Glasgow Health Board v Baxter, Clark & Paul, and Glasper v Rodger, is that the commencement of the prescriptive period is postponed by a lack of awareness that a loss has occurred and that this loss has been caused by negligence or default giving rise to an obligation to make reparation. In making my decision in this case, I respectfully follow that approach.

 

[26] As I understood the pursuer's submission it was that the interpretation of Section 11(3) should go further and include a lack of awareness of the identity of the individual whose neglect or default has caused the loss. I do not accept that submission to be well founded on the basis of the authorities available and quoted to me.

 

Application of law to facts

[27] In this case, it appears to me to be clear that the pursuer first became aware of the dampness in her room in 1998. She initially attributed this to a fault on her own part and carried out a reasonable process by removing the carpet which she believed to be the cause. At this point therefore she was aware of a loss but was not aware that it had been caused by neglect or default on the part of a third party.

 

[28] Once, however, she had established that the cause of the problem had not been caused by her own actions in cleaning the carpet, the position became different. At that point, she appears to suspect that it has been caused by the work of the defender although somewhat strangely then accepts his assurance that it has not. It is at this point that she could, or should, have exercised reasonable diligence to establish the cause of the problem. It is clear that she did not do so. When she did finally instruct a solicitor and expert report she quickly received information which resulted in the raising of these proceedings. Whether it could or could not be established that the defender was responsible for the damage remains an open question. It is not the identity of the defender that requires to be known but the cause of the action. It is not the case that until that question is judicially resolved the pursuer can be deemed to be unaware that her loss was caused by neglect or default. At this point the pursuer's awareness of fault on the part of the defender is no better than it was or could have been in 1999.

 

[29] The pursuer's evidence about the detailed dates does not help a proper assessment in this case. However, it seems to me from her evidence that during 1998 she had adequate time to establish that her initial view on the cause on dampness was incorrect and to obtain, by the exercise of reasonable diligence, information on the cause or potential cause of the problem. I consider therefore that, on the evidence which I have heard, it is appropriate to take the view that, on a proper application of Section 11(3) of the Act, and on a generous view of the evidence, the pursuer could have become aware of the second element, at the very latest, by the end of 1999. Accordingly 1 January 2000 is the appropriate date on which the obligation became enforceable. That being the case the obligation would prescribe and be extinguished by a failure to make a relevant claim on or before 31^st December 2004.

 

[30] Put differently, for the pursuer's action to have been raised in time the start date for prescription running in terms of the Act would have to fall after February 2001. The evidence led on her behalf was wholly insufficient to establish such a date and could make no such finding.

 

[31] It is clear therefore that any obligation that the defender may have had has expired in advance of the raising of the present action and that accordingly the defender's plea to prescription falls to be upheld and the action dismissed.

 

[32] It is always somewhat unsatisfactory when disputes of this nature are resolved on what might be viewed as a technical basis particularly where, as in this case, the pursuer appears to have relied upon the defender to an extent which was inappropriate although perhaps understandable. Her action was, however, raised almost nine years after the work was completed.

 

Expenses

[33] I was not addressed on the question of expenses and have accordingly put the case out for the hearing on that point.

 

 

 

Sheriff of Grampian Highlands and Islands at Peterhead.