Property — Construction work – Negligence – Claimant bringing action for damages alleging negligence by defendant in carrying out building works – Defendant denying liability but arguing claim statute-barred – Whether claimant having knowledge required to bring action within stautory time limit — Preliminary issue decided in favour of defendant
In 2000, the defendant company constructed dog kennels in connection with the claimant’s business. Subsequently, the defendant brought an action for damages in tort against the defendant; the proceedings being commenced by the issue of a claim on 29 October 2009. A preliminary issue arose as to whether the claim was statute-barred.
The defendant denied liability but argued that the claim was in any event statute-barred. It contended that the claimant had had the necessary actual or constructive knowledge for bringing an action for damages and a right to bring such an action, within section 14A of the Limitation Act 1980, by, at the latest, 29 October 2006, that is, more than three years before the proceedings were commenced.
The claimant argued that his claim in negligence was in time by virtue of section 14A(4)(b) of the 1980 Act because the date on which he first had had the relevant knowledge for bringing an action was 16 November 2006, after he received a report from a firm of civil and structural engineers that he had instructed to inspect the kennel block.
He argued that the “relevant damage” for the purposes of section 14A(5), the “damage in respect of which damages are claimed” within section 14A(6)(A) and “the damage” for the purposes of section 14A(7) were the failure of and the damage to the concrete base of the block arising from the defendant’s faulty design. The claimant did not have actual knowledge of the damage until 16 November 2006 and could not be fixed with constructive knowledge of the damage by virtue of section 14A(10). The existence and cause of the damage could have been ascertained only with the help of expert advice.
Held: The preliminary issue was decided in favour of the defendant.
The claimant’s claim in tort was statute-barred. He had had the necessary knowledge of the damage for which damages were claimed before (at the latest) 29 October 2006: see section 14A(6)(a) and (7). It was by then clear that the block had subsided and that knowledge was such as would have led a reasonable person to consider the damage sufficiently serious to justify proceedings for damages against a defendant that did not dispute liability and could satisfy a judgment within the meaning of section 14A(7).
Although the claimant had not been aware of the full extent of the damage, that was neither necessary nor relevant for the purposes of section 14A(6)(a) and (7) provided that the damage of which the claimant had been aware was sufficiently serious to satisfy the requirements of subsection (7). Further, knowledge of such damage would be sufficient to satisfy that element even if other more serious damage might exist and be discovered only at a later date: Hamlin v Edwin Evans [1996] 2 EGLR 106; [1996] 47 EG 141 and Oakes v Hopcroft [2000] Lloyd’s Rep PN 946 considered.
The question that arose was whether the claimant had known that the damage could be attributed at least in part to the act or omission that was alleged to constitute negligence. Section 14A(9) stipulated that knowledge as to whether any acts or omissions did or did not, as a matter of law, involve negligence was irrelevant. Further, knowledge did not mean certain knowledge. The claimant merely had to have known enough for it to be reasonable to undertake further investigation and that there was a real possibility that the damage had bben caused by an act or omission on the part of the defendant: Hallam-Eames v Merrett Syndicates Ltd (No 1) [1996] 7 Med LR 122 considered.
The claimant had known about the subsidence and the damage to drainage channels and to cracks to the walls prior to 29 October 2006. He had also known that: (i) the defendant had carried out the relevant groundworks; (ii) the work had not been carried out in accordance with the surveyor’s drawings; and (iii) the base had not been built with foundations but with a floating slab allegedly in accordance with the “modern method”.
Although, prior to 29 October 2006, the claimant did not have sufficient knowledge of the true cause of the damage, he did have sufficient knowledge to believe that the damage was attributable to an act or omission on the part of the defendant within the meaning of section 14A6(b) and 8(a), in the sense that it could be attributed to its work.
David Flood (instructed by Darbys, of Oxford) appeared for the claimant; Oliver Ticciati (instructed by Keoghs, of Bolton) appeared for the defendant.
Eileen O’Grady, barrister
