Commencement of Time Running in Defective Building Cases and The Statute of Limitations
The issue as to the appropriate date, when a cause of action accrues, to a Plaintiff, has been the subject of a significant number of cases, over the past 25 years. In cases of professional negligence, a professional may be sued for breach of duty of care, in negligence, provided that the negligence is actionable, and that the cause of action, accrued within a period of six years, prior to the commencement of proceedings. One of the key issues, which has been the subject matter of debate, in the Superior Courts, in the past number of years, is the issue of the determination, as to when a cause of action accrues.
In a typical defective building case, a defect may have occurred, during the pouring of foundations, which may not materialise itself, in a visual defect in the property, for a considerable number of years.
The question which often arises, in such cases, is when the six year time limitation commences. Is it the date upon which the work was started, the date upon which the work was completed, or the date upon which the defect commences causing loss? This issue came before the Court of Appeal, in the case of Liam Brandley and W.J.B. Developments Limited –v- Hubert Dean and John Lohan.
The Judgment of the Court was delivered on the 2nd of March, 2016.
The case involved the construction of two dwelling houses, at Williamstown, in County Galway. The First Defendant, was a Supervising Consulting Engineer, and the Second Defendant was the groundworks contractor, whose work included the foundations of the houses.
In the High Court, the claim of the Plaintiffs was dismissed, on the basis that it was statute barred. The primary issue, which arose in this particular case, was the date upon which the cause of action accrued. In this particular case, the foundations were completed in March, 2004, and certified in September, 2004. The properties were completed in January/February, 2005 and cracks began to appear in December, 2005.
The Court of Appeal held that negligence, by itself, without the accompaniment of damage, or loss, is not actionable, and that the Plaintiffs in this case, did not suffer damage, at the time when the defective foundations were installed.
It was submitted, on behalf of the Plaintiff, that albeit that the negligent installation of the foundation, and negligence certification were outside the six year limitation period, the damage, which occurred as a result, came about within the previous six years, prior to the institution of the proceedings.
The Court of Appeal referred to the case of Hegarty –v- O’Loughran, a decision of then Chief Justice Finlay, in which the then Chief Justice Finlay stated that:-
“A Tort is not completed until such time as damage has been caused by a wrong, a wrong which does not cause damage not being actionable in the context with which we are dealing. It must necessarily follow that a cause of action in Tort has not accrued until at least such time as the two necessary component parts of the Tort have occurred, namely the wrong and the damage”.
The Court of Appeal concluded that the evidence was that the damage was first caused to the properties, in December 2005, and it was, at this time, that a cause of action accrued, on the basis that a loss had then been incurred, by the Plaintiffs.
The Court of Appeal reversed the decision of the High Court, and held that the Plaintiff’s claim was not statute barred.
In this particular case, the Court held, that the Plaintiffs were entitled, to wait until the damage had accrued, for time to run against the Plaintiffs, in relation to the six year time limit, within which proceedings could be instituted, seeking damages for professional negligence against the Defendants, in this case.
Patrick Mullins Solicitor
Partner
BDM Boylan Solicitors
Clarke’s Bridge House
Hanover Street
Cork
Ph: 021 4313333
pmullins@bdmboylan.ie