O'Donnell v Kilsaran Concrete Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 02 November 2001
• Neutral Citation: [2001] IEHC 155
• Court: High Court
• Docket Number: [1999 No. 5881 P]
• Date: 02 November 2001

[2001] IEHC 155

THE HIGH COURT

No. 5881P/1999

O'DONNELL v. KILSARAN CONCRETE LTD & TOM CURRID CONSTRUCTION LTD

BETWEEN

JOHN O'DONNELL AND SYLVIA O'DONNELL

PLAINTIFFS

AND

KILSARAN CONCRETE LIMITED AND TOM CURRID CONSTRUCTION LIMITED

DEFENDANTS

Abstract:

Practice and procedure - Statute of Limitations - Tort - Property and Construction - Negligence - Contract - Whether action statute barred - Whether cause of action accrued from date of construction of house - Statute of Limitations, 1957 (No 6) - Statute of Limitations (Amendment) Act, 1991 (No 18) - Rules of the Superior Courts, 1986 (SI 15) Order 25.

Facts: The plaintiffs instituted proceedings against the defendants in respect of the building of their dwelling house. Cracks had appeared in the house shortly after it was built and repairs had been carried out. However some years later further cracks appeared and the plaintiffs sued basing their claim on both contract and negligence. The defendants denied the claims of the plaintiffs and a preliminary issue arose as to whether the action was statute barred. Counsel for the defendants argued that any cause of action of the plaintiffs in contract accrued when the defective blocks were used in the construction of the dwelling house.

Held by Mr. Justice Finnegan in declaring that an action by the plaintiffs based on tort was not statute barred. The relevant period of limitation in tort applicable in this matter was six years from the date on which the cause of action accrued. An action in contract had become time barred by the time the plenary summons was issued. The existence of a contractual relationship between parties did not preclude the injured party from seeking a remedy in tort on the same facts. The cracks that occurred did not develop until well within the limitation period of six years. The cause of action pleaded in tort against the defendants was not time barred.

1 Mr. Justice Herbert delivered the 2nd day of November, 2001

2 On the 19th May, 1987 the Plaintiffs entered into a contract in writing, but not under seal, with the second named Defendant to build a dwelling house at Rathanoragh, Strandhill Road, Sligo. The work was carried out using a cavity wall system with solid five newton concrete blocks 100mm x 440mm supplied by Spollen Concrete Limited to the second named Defendant. It is accepted by the parties that there was no privity of contract between the Plaintiffs and Spollen Concrete Limited for whose torts, (if any), in this transaction the first named Defendant has accepted responsibility.

3 An Architects Certificate of Practical Completion was issued in March 1988 and the Plaintiffs moved into occupation the same month. A number of defects were identified in what is commonly referred to as a, "snags list" and these matters were attended to by the second named Defendant in 1989.

4 In 1991 cracks appeared in the outside walls of the house in the area of the garage wing which joins the main structure at a right angle to its long axis. This cracking was attributed, - the evidence does not indicate by whom, - to settlement of the structure. The existing plaster in this area was removed and the area was replastered, I assume by the second named Defendant or by someone on its behalf, though this is not clear by the evidence.

5 In 1997 the second named Plaintiff decided that she would like to replace the existing window in the lounge area of the house with a bay window. Mr. David Lawlor, the architect who designed the house was consulted. In the course of discussions in May 1998, the second named Plaintiff drew Mr. Lawlor's attention to cracking in the plaster of the lower section of the outside wall of the main structure of the house adjoining the garage block and in the garage itself. Mr. Lawlor consulted Mr. Roderick McLoughlin, a Civil Engineer, and he examined the walls in October 1998. Mr. McLoughlin identified the problem as due to the presence of more than 0.5% iron pyrites in the concrete blocks with which the wall was constructed. This mineral undergoes a chemical reaction if the wall becomes water saturated in the presence of oxygen and this reaction results in splitting and rust staining of the blocks. The speed with which this deterioration takes place is accelerated by increased temperature. Mr. McLoughlin when crossexamined by Counsel for the Defendants was unable to express any opinion as to the cause of the cracking in the garage area in 1991. He stated that settlement cracks can occur many years after a structure is built. He said that he had concluded after discussing the matter with the first named Plaintiff that the cracking which he had identified as due to an excess of iron pyrites in the cement blocks was of recent origin. The fact that no complaints were made to the second named Defendant by the Plaintiffs after 1991 lends support to this view. In answer to Counsel for the Defendants Mr. McLoughlin agreed that the cement blocks used in the construction of this dwelling house were unsuitable and defective from the outset and should not have been used for either the inner or outer sections of the cavity walls.

6 On the 4th June, 1999 a plenary summons was issued by Mullaneys, Solicitors for the Plaintiffs claiming damages for breach of contract, misrepresentation, negligence and breach of duty on the part of the Defendants their servants and/or agents. On the 18th November, 1999 a statement of claim was delivered claiming damages for breach of contract on the part of the second named Defendant, negligence and breach of duty on the part of both Defendants and breach of statutory duty on the part of the first named Defendant. A defence was delivered on the 3rd February, 2000 on behalf of all the Defendants. In addition to the other pleaded defences the Defendants specifically pleaded the provisions of Section 11(1)(a) and 2(a) of the Statute of Limitations, 1957, as amended and extended by the Statute of Limitations (Amendment) Act, 1991and say that the claim of the Plaintiffs is time barred. By way of a special reply delivered on 1st March, 2000 the Plaintiffs plead that their cause of action accrued within six years prior to the commencement of the action and is therefore not time barred.

7 This is a Trial of a Point of Law prior to Trial which was set down for hearing under Order 25 of the Rules of the Superior Courts, 1986 as to whether the claims of the Plaintiffs, (if any), in Contract or in Tort are time barred.

8 Subsection 11(1)(a) of the Statute of Limitations 1957 provides as follows:-

"The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued -

(a) Actions founded on simple contract."

9 Subsection 11(2)(a) of the Statute of Limitations 1957 as substituted by Section 3(2) of the Statute of Limitations (Amendment) Act, 1991provides as follows:-

"Subject to the paragraph (c) of this subsection and to Section 3(1) of the Statute of Limitations (Amendment) Act, 1991an action founded on Tort shall not be brought after the expiration of six years from the date on which the cause of action accrued."

10 Paragraph (c) relates to actions for damages for slander and Section 3(1) of the Statute of Limitations (Amendment) Act, 1991relates only to actions for personal injuries. Accordingly the relevant period of limitation in tort applicable in this matter is six years from the date on which the cause of action accrued.

11 Counsel for the Defendants, who are the Applicants in this preliminary trial of a point of law, argued that any cause of action of the Plaintiffs in contract accrued when the breach of contract occurred, that is in 1988 when the defective blocks were used by the second named Defendant in the construction of the dwelling house. Misrepresentation on the part of the Defendants their servants and/or agents is pleaded in the plenary summons in this case but is not pursued in the Statement of Claim and no argument based upon fraud or fraudulent concealment was addressed to the Court on behalf of the Plaintiffs/Respondents at the hearing of this preliminary trial of...