The Court of Appeal recently overturned a decision of the High Court in which negligence proceedings were held to be statute barred and clarified when the clock begins to run on negligence claims.
- The foundations in the development were completed in March 2004.
- A certificate of compliance with planning permission and building regulations was furnished in September 2004.
- The plaintiffs observed cracks in the houses in December 2005.
- Proceedings were commenced against the consulting engineer and the contractor in November 2010.
Proceedings for negligence must be commenced within 6 years from the date on which the cause of action accrued. These proceedings were commenced in excess of six years from both the laying of the foundations and the certification by the engineer. However, the commencement date was less than six years from the date upon which the damage became apparent to the plaintiffs.
High Court Decision
The High Court dismissed the claim as being statute barred, on the basis that the cause of action accrued on the date the foundations were laid. The High Court took this view on the basis that there is no discoverability test applicable in non-personal injury cases. A discoverability test is the date upon which a plaintiff discovers damage has occurred. In light of this, the High Court found that there was a full cause of action from the date of the laying of the defective foundations. As the plaintiffs commenced their proceedings in excess of six years from the laying of these defective foundations, the Plaintiffs’ claim failed on the grounds that it was statute barred.
Court of Appeal Decision
The Court of Appeal overturned this decision and held that the proceedings were issued within the time period allowed by the statute of limitations. It held that damage is an essential element of any negligence/tort case as negligence without damage is not actionable.
The Court found that the Plaintiffs had not suffered damage as of the date the foundations were laid, even though they were defective. The fact that they were defective was not a cause of action in tort, and so the statute of limitations could not start to run until damage had actually occurred.
This case is significant in that it reaffirms the position that a cause of action accrues when the damage is suffered, not when the negligent action giving rise to it occurs.
Brandley and WJB Developments Limited v Hubert Deane trading as Hubert Deane & Associates and John Lohan trading as John Lohan Ground Works Contractors  IECA 54