High Court of Ireland Decisions

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:-

5. The former Chief Justice then observes 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:-

9. On the other hand at p.157 of the judgment he comes to the following conclusion:-

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.