D'arcy v Buckley and Lynch

• Jurisdiction: Ireland
• Judge: FINLAY P.
• Judgment Date: 01 January 1978
• Neutral Citation: 1977 WJSC-HC 531
• Court: High Court
• Docket Number: 1974/1404 P,[1974 No. 1404 P.]
• Date: 01 January 1978

1977 WJSC-HC 531A

THE HIGH COURT

1974/1404 P

D'ARCY v. BUCKLEY and LYNCH

PATRICK DARCY

Plaintiff

and

THOMAS P. BUCKLEY

Defendant

and

HENRY LYNCH

Third Party

1 JUDGMENT FINLAY P. DELIVERED 29.6.1977

2 This is an application on behalf of the third party for a non-suit of the claim by the defendant Thomas Buckley against him upon the grounds that that claim which is for contribution is barred by the provisions of the Statute of Limitations Act 1957and on no other grounds.

3 The facts out of which this matter arises so far established prima facie are as follows. The defendant and claimant for contribution (the claimant) in August 1970 entered into a contract with the developers of an estate at Coolock in the County of Dublin whereby he acquired the tenants interest in four sites for houses coupled with an obligation to build houses according to certain plans andspecifications upon those sites. The purpose and intention of the claimant at that time was to build the four houses to sell three of them and to live in one of them with his family. The third party was the architect engaged by the developers of the estate for the purpose of preparing plans and specifications and for the purpose of certain other functions in connection with certifying the adequacy and propriety of the building of the houses concerned. It has been prima facie established to my satisfaction that in this context he owed a duty in tort to the claimant to take reasonable care with regard to the functions which were imposed upon him. He owed a like duty to any person who might subsequently become a leasee or purchaser of the houses built on this estate.

4 A prima facie case has at this stage been established that notwithstanding the fact that the third party knew or ought to have known that the particular site which was acquired by the claimant had originally running throught it a ditch and mound which created special problems with regard to the laying of foundations for the type of house specified in the contract, he failed either to disclose that fact to the claimant, or warn him of it, or to make a special request or design provisions for the appropriate foundations. As a result of that failure the claimantbuilt four houses one of which was built with inadequate foundations. That particular house now known as 111 Tonlegee Road, Coolock was subsequently in effect purchased by the plaintiff Patrick Darcy in August 1971 pursuant to an agreement of the 3rd of August, 1971 which was in the form of a building contract coupled with the provision for the granting of a lease. Patrick Darcy went into occupation of that house on the 20th of August, 1971 and within approximately three weeks of that date noticed cracks in one of the walls of the house. He shortly afterwards notified the claimant of the existence of these cracks and within the period stipulated in his contract, that is to say, within eighteen months of the completion of the house formally called upon the claimant to make good the damage. The claimant did not take any steps to make good the damage or repair the situation and the cracks in effect caused by a subsidence of the foundations continued and becameworse.

5 By Plenary Summons issued on the 17th day of April 1974 Patrick Darcy instituted proceedings for damages against the claimant for breach of contract and negligence but did not institute any proceedings against the third party. By third party Notice issued on the 3rd day ofDecember 1976 the claimant claimed contribution against the third party in respect of any liability he might have to Patrick Darcy.

6 The proceedings then commenced before me and after some evidence had been given by Patrick Darcy the claimant announced that he had settled the claim of Patrick Darcy upon the basis of an admission of liability and a formula for the assessment of damages with the details of which on this application I am not concerned. The claim of the claimant against the third party then continued.

7 The grounds on which Mr. Morris on behalf of the third party submits that he is entitled to a non-suit may be shortly summarised as follows. He asserts that the cause of action consisting of this claim against the third party originated when the foundations of the house were poured by the claimant. He makes that contention upon the grounds that the only tort alleged against his client was a failure to specify appropriate foundations or an omission to correct inappropriate footings when dug and that the damage flowed to the claimant from that act of negligence as soon as the claimant had a foundation which was bad or inadequate where he should have-had a foundation which was sound and adequate. On the evidence before me, Mr. Morris contends, that occurred not later than the monthof September, 1970 and that that being so and the claim for contribution having been for the first time made against the third party more than six years after that date the claim is barred by virtue of the provisions of...