Brandley v Deane

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 15 November 2017
• Neutral Citation: [2017] IESC 83
• Court: Supreme Court
• Docket Number: [Appeal Nos. 39/2016 and 40/2016],[2016 Nos. 39 & 40]
• Date: 15 November 2017

Between /

LIAM BRANDLEY

and

WJB DEVELOPMENTS LIMITED

Plaintiffs/Respondents

-and-

HUBERT DEANE trading as HUBERT DEANE & ASSOCIATES

and

JOHN LOHAN trading as JOHN LOHAN GROUNDWORKS CONTRACTOR

Defendants/Appellants

[2017] IESC 83

McKechnie J.

Clarke C.J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

[Appeal Nos. 39/2016 and 40/2016]

THE SUPREME COURT

Property damage – Negligence – Commencement date – Respondents seeking damages – When did the cause of action in negligence accrue

Facts: The appellants, Mr Deane and Mr Lohan, contended that the Court of Appeal had, in substance, applied a test of discoverability in this case, despite stating in its judgment that such was not the test. The Supreme Court certified three points upon which leave to appeal was granted, although in essence these points asked but one question: when does time run for the purposes of the Statute of Limitations in such claims? Of central importance to the determination of this appeal was when the cause of action in negligence accrued. That issue in turn hinged on what constitutes actionable 'damage' for the purposes of the law of negligence. The case arose out of alleged negligence, breach of duty, including breach of statutory duty, and breach of contract in the construction of two houses at Sycamore Court, Corrolough, Williamstown, Co. Galway.

Held by McKechnie J that it was clear from the uncontroverted testimony of the first respondent, Mr Brandley, that the cracks constituting the damage to the house occurred in December, 2005; this was therefore one of those cases where the occurrence and manifestation of the damage happened on or about the same date. McKechnie J noted that the other evidence, that of Mr Deane, was directed towards the laying of the foundations said to be defective from the start. McKechnie J held that without loss or damage attaching to such defects, no cause of action exists; that damage was completed in December, 2005. In coming to this conclusion, McKechnie J recalled that the subject matter of the proceedings sought compensation for the damage caused to the respondent's property, that is, houses 2 and 3. Given this conclusion, McKechnie J held that it was immaterial whether different legal principles should apply to the case against Mr Deane as opposed to that against Mr Lohan.

McKechnie J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 15th day of November, 2017

Introduction

1 This judgment concerns the commencement date of the six-year limitation period for property damage claims founded in the tort of negligence. The Appellants contend that the Court of Appeal has, in substance, applied a test of discoverability in this case, despite stating in its judgment that such was not the test. This Court certified three points upon which leave to appeal was granted, although in essence these points ask but one question: when does time run for the purposes of the Statute of Limitations in such claims? Of central importance to the determination of this appeal is when the cause of action in negligence accrued. That issue in turn hinges on what constitutes actionable "damage" for the purposes of the law of negligence.

Definitions and Descriptions

2 As will become clear over the course of this judgment, there would appear to be five distinct possible starting points from which the clock might run for limitation purposes. This area of the law has been bedevilled with misdescription, lack of clarity and confusion between terms which are quite different, and with their interchangeable use when it is ill-judged and inappropriate to do so. Thus, it may be worth explaining in a little more detail at the outset what each of these different commencement points means. It will be appreciated that they form a spectrum of potential starting points for the limitation clock, with the date of the wrongful act being the earliest and thus the most defendant-friendly, and the date of actual discovery being – usually – the furthest along that spectrum and therefore the most beneficial to the plaintiff. What is meant by some of these events may seem obvious, and will be on some occasions, but not always; others must be ascribed a more technical meaning, and the distinction between them, even though subtle and nuanced, can be critical. In practice some of these dates may frequently coincide with one another, but that will not always be so.

3 The following list sets out just what is meant by each of these terms for the purposes of this judgment:

i. The date of the wrongful act – this refers to the date on which the defendant committed the act or omission said to constitute the wrong, even if the consequent damage did not result on that same date. This is the date of the breach of duty.

ii. The date that the damage occurs – this refers to the date on which the loss which is sought to be recovered actually happened, even where that is subsequent in point of time to the wrong which caused it.

iii. The date that the damage is manifest – this refers to the date on which the damage was capable of being discovered and capable of being proved, even if there was no reasonable or realistic prospect of that being so.

iv. The date of discoverability – this refers to the date on which the damage could or ought with reasonable diligence to have been discovered.

v. The date on which the damage is actually discovered – this refers to the date on which the plaintiff in fact discovered the property damage.

Each of these descriptions is deliberately succinct as the same are intended as an interpretive tool to aid the reader in navigating this judgment. It should be noted, however, that such terms are more fully discussed in the rest of this judgment and are again summarised, in greater detail, in the conclusion section hereof.

Background and Procedural History

Background Facts

4 This case arises out of alleged negligence, breach of duty, including breach of statutory duty, and breach of contract in the construction of two houses at Sycamore Court, Corrolough, Williamstown, Co. Galway. Mr. Liam Brandley, operating through his company, the Second Named Plaintiff/Respondent, WJB Developments Ltd., was the developer of this project. Mr. Brandley and the company are collectively referred to in this judgment as 'the Plaintiffs' or 'the Respondents'. The First Named Defendant/Appellant, Mr. Hubert Deane, is a consulting engineer who was retained to supervise the construction of the foundations and to inspect them when they were originally laid, as well as to certify, which he did, that the foundations and the houses built thereon were in compliance with the relevant planning permission and building regulations. The Second Named Defendant/Appellant, Mr. John Lohan, was the contractor whose work included laying the foundations of the houses; this was done in March, 2004. Mr. Deane and Mr. Lohan are together referred to as 'the Defendants' or 'the Appellants.'

5 The two houses in question were part of a small terrace of three houses which were constructed on one common raft foundation. The Plaintiffs' case is that the two houses developed cracks in December, 2005. It is their contention that this happened as a result of the use of inadequate, soft and compressible materials in the foundations, in that the wrong type of stone was used. As the issue on this appeal concerns the Statute of Limitations, it is useful at the juncture to set out a timeline of the relevant dates. They are as follows:

• The foundations were completed in March, 2004.

• On the 4th September, 2004, Mr. Deane issued his Certificate of Compliance with planning permission and with the building regulations.

• The houses in question were completed some time between September, 2004 and January/February, 2005.

• In December, 2005, Mr. Brandley observed that cracks had appeared in each of the houses.

• The Plaintiffs issued their Plenary Summons on the 30th November, 2010.

The precise date of completion of the houses was the subject of some debate at trial – see paras. 15 and 17, infra.

6 It is worth pointing out as part of the lead-in that the other house on the common foundation, which was completed earlier than the other two at the behest of its prospective purchaser, was also the subject of litigation. Its owner, Mr Aidan Conneely, sued both defendants named in this case, as well as WJB Developments Limited, in respect of cracks that appeared in his house in December, 2005. In those proceedings, which did not involve a limitation issue, the High Court determined that both the engineer and contractor were negligent, although since the amount of damages had been agreed by these parties, it was not necessary to apportion liability as between them. The claim over against WJB Developments for a contribution was dismissed by judgment of the High Court delivered on the 11th November, 2011.

7 As is well known, the general limitation period for an action founded on tort (subject to several exceptions, such as personal injuries and defamation actions) is six years from the date on which the cause of action accrued (section 11(2)(a) of the Statute of Limitations 1957, as amended ('the Statute of Limitations' or 'the 1957 Act')). The Plaintiffs' case is one founded solely on common law negligence, as it is acknowledged by all that their cause of action in contract is clearly statute-barred. The critical question, therefore, is when did the cause of action accrue: if the relevant date is March or September, 2004, then the proceedings are out of time and the claim cannot proceed; on the other hand, if, as the Plaintiffs contend, the cause of action accrued when the cracks appeared in December, 2005, then their case was initiated within time. It was with this sole point that the judgments of the High Court, the Court of Appeal and now this Court are...