Professional negligence – Structural engineer – Design of foundations for building extension – Movement in floor of extension – Defendant indicating no cause for concern – Cracks later appearing in walls – Action for negligent design of foundations – Section 14A of Limitation Act 1980 – Date when claimant having requisite knowledge to bring action in respect of inadequate foundations – Whether claim statute-barred – Preliminary issue determined in favour of claimant
The defendant consultant structural engineer was engaged by an architect to design the foundation for an extension to the claimant’s manufacturing premises. The works were carried out in 1994. In August 1995, the claimant’s works manager noticed a potential problem with the floor, where a gap forming the perimeter expansion joint had widened. After inspecting the premises, the defendant recommended that the concrete slabs should be monitored for three months. Further movement occurred during that period. The defendant merely recommended further monitoring. In February 1996, he wrote to the architect suggesting that any movement had been caused by seasonal variations in the moisture content of the soil and had not rendered the building unstable.
In 1998, the claimant’s works manager noticed cracking in the brickwork of the walls. On inspecting the area the defendant again expressed no concern but advised that the monitoring should continue. In 2001, when the claimant attempted to find a new insurer, the defendant again reported that the degree of movement to that date was not significant. He wrote to the proposed insurer reassuring it that there was no cause for concern, and the claimant consequently received cover.
In 2003, a crack appeared in the floor. Following an inspection, the defendant reported movement and rotation of the foundations, and recommended that investigative work be carried out with a view to identifying the remedial works necessary to restore stability.
In July 2006, the claimant began proceedings against the defendant, alleging that the foundations were inadequate for their purpose owing to the defendant’s negligence in failing to take sufficient note of the particular soil conditions of the site. A preliminary issue was tried as to whether the claimant had had the requisite knowledge three years earlier to bring an action for damages, within the meaning of section 14A(5) to (10) of the Limitation Act 1980, such that the action was statute-barred.
Held: The preliminary issue was determined in favour of the claimant.
For the purpose of section 14A(8)(a), the claimant was required to know that the foundations were inadequate and the damage was attributable to this. The Act referred to “knowledge” not “suspicion”. It required knowledge of more than a “real possibility” of the existence of facts that constituted the essence of negligence. Accordingly, if the claimant had merely suspected that there might be something wrong with the foundations that would not constitute actual knowledge for the purposes of the Act. Nor would the claimant have actual knowledge if it knew only that: (i) there was a real possibility of a problem with the foundations; (ii) damage might have resulted; and (iii) it needed the further help of an expert before coming to a more definite view. The question would then arise as to whether it was reasonable, in all the circumstances, for the claimant to take further steps to obtain the requisite knowledge: Haward v Fawcetts (a firm) [2006] UKHL 9; [2006] 1 WLR 682 considered.
On the facts of the case, the claimant neither knew nor suspected that there might be a problem with the foundations at any time prior to the crack in the floor appeared in 2003. Even if knowledge of the 1996 letter to the architect could be imputed to the claimant, it would not have communicated sufficient knowledge to justify the investigation of a claim against the defendant since not even the defendant had regarded the movement as significant at that stage. Nor could the claimant have reasonably been expected to seek expert engineering advice from someone other than the defendant prior to becoming aware of the cracked floor in 2003. The claimant had relied upon the advice of the defendant as a structural engineer at all times before then, and it had been reasonable for it to do so. Since the defendant had not seen the pre-2003 movement as significant, the claimant could not reasonably have been expected to take a different view or to question his advice. Consequently, the claimant did not have the knowledge required, under section 14A, within the period of three years prior to July 2006, and its claim was not statute-barred.
Timothy Trotman (instructed by Berrymans Lace Mawer) appeared for the claimant; John Whitting (instructed by Beale & Co) appeared for the defendant.
Sally Dobson, barrister
