Morgan v Park Developments Ltd

JudgeMiss Justice Carroll
Judgment Date02 February 1983
Neutral Citation1983 WJSC-HC 700
CourtHigh Court
Docket Number4381P/1980
Date02 February 1983





1983 WJSC-HC 700




Subject Headings:

EVIDENCE: estoppel



Judgment of Miss Justice Carrolldelivered the 2nd February 1983


The plaintiff's claim is based on the tort of negligence and on breach of a building contract in respect of damage caused to his house which was erected by the defendants. The plaintiff established a prima facie case that the corner of the house was built on unsuitable foundations as a result of which the house developed a structural fault. The corner of the house cracked and remedial work which necessitated under-pinning the foundations had to be carried out.


The building contract provided in Clause 4 thereof:

"If any dispute shall arise as to any matter in relation to the completion of the said work, the same may be referred by either party hereto (with notice in writing to the other) to builders' architect, whose decision thereon, shall subject"as hereinafter provided, be final and binding on all parties PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that when the employer takes possession of the said dwellinghouse all the said work mentioned in Clause 1 hereof shall be deemed to have been completed to the satisfaction of the employer and subject to Clause 8 hereof the employer shall not thereafter have any claim against the builders in respect of the said dwellinghouse and out-houses or any materials or workmanship therein and whether any defect or alleged defect be patent or otherwise."


Clause 8 provides:-

"The builders undertake that they will at any time within 12 months ensuing from the date of the completion of the said house at their own cost and expense repair, keep and put in proper order and condition all and every structural defect which shall have been caused through defective construction of the said house."


The defendants claim that the Plaintiff's action is Statute barred.


It is provided in the Statute of Limitations 1957 ("the 1957Act") as follows:-


2 "Section 11(1) 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;


(b) etc. ..........


3 Section 11(2) (a) Subject to paragraphs (b) and (c) of this subsection, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of actionaccrued."


Paragraphs (b) and (c) are not relevant.

"Section 71(1) Where in the case of an action for which a period of limitation is fixed by this Act, either -"

(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or

(b) the right of action is concealed by the fraud of any suchperson


the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence havediscovered it."


The relevant dates are as follows:


The building contract was signed on the 30th September 1962. The premises were demised to the plaintiff by the defendants by lease executed the 12th February 1963. The plaintiff were into occupation on the 23rd June 1963. The defendants were notified in or about November/December 1963 of defects, including the crack which ultimately turned out to be a serious structural fault. The defendants effected repairs to the crack on two occasions, in 1964 and in 1965. The evidence of the plaintiff's wife was that in 1965 the defendants' foreman, Mr. O'Sullivan, told her the crack was a settlement crack; that settlement cracks appeared in all houses and that it might take years for the cracks to stop. The plaintiff did nothing further and the crack got worse. In 1975 the plaintiff had an extension built and his builder (not the defendants) did repairs to the crack. The crack reappeared. In 1979 the plaintiff consulted an architect who immediately knew the damage was serious. The proceedings were issued on the 16th May 1980.


At the conclusion of the plaintiff's case Mr. Fitzsimons for the defendants applied for a non-suit. He said the appropriate date for theaccrual of a right of action was when the damage occurred and when the breach of contract was committed. Mr. Budd for the plaintiff said the date of accrual was when the damage was discoverable and this was postponed by reason of representations made by the defendants' agent which lulled the plaintiff into a false sense of security.


The first question to be decided is whether the accrual of the right of action in negligence involving the building of a house should be the date of discoverability or some earlier date. The English Courts have been dealing with the question over a number of years, notably in Sparham-Souter .v. Town and County Developments (Essex) Limited andAnother 1976 W.L.R. 493 and Anns and others .v. Merton London Burough Council 1977 2 W.L.R. 1024 culminating in the decision of the House of Lords in Pirelli General Cable Works Limited .v. Oscar Faber and Partners (1983) 2 W.L.R.6. In the Pirelli casethe House of Lords held (applying Cartledge .v. V.E. Joplin and SonsLimited) 1963 AC 755 that the accrual of a right of action in actions for negligence in the construction or design of a building, was the date the damage came into existence and not the date when the damage was discovered or should with reasonable diligence have beendiscovered.


It was a relevant consideration in that case that the Englishlegislature had amended the Limitation Act 1939 by a Statute of 1963 following the decision of the House of Lords in Cartledge .v. V.E. Joplin and Sons Limited which held that section 26 of the Limitation Act 1939 (similar to section 71 of the 1957 Act) made it impossible to hold that a cause of action ought not to accrue until the injury is discovered. That case concerned a personal injury. As a result of this decision Parliament extended the time limits where material facts of a decisive character were outside the knowledge of the plaintiff until after the action would normally have been time-barred but it applied only to actions for damages for personal injuries. As Lord Fraser stated, it therefore had to be taken that Parliament deliberately left the law unchanged so far as actions for damages of other sorts were concerned.


Such consideration does not apply here. There has been no amending legislation similar to the 1963 Act in England. Therefore, it cannot be said that the legislature here had deliberately extended the accrual of a right of action for personal injuries in certain circumstances and left the accrual of other actions for damages unaltered.


It was acknowledged by Lord Reid in Cartledge .v. V.E. Joplin and Son Limited (which was the decision applied in the Pirellicase) that it was unreasonable and unjustifiable in principle that a cause of action should beheld to accrue before it is possible to discover any injury. But he felt constrained by the Statute to reach a decision which was whollyunreasonable.


It was acknowledged by Lord Scarman in the Pirelli case that he agreed with Lord Reid's comments and also with Lord Pierce's comment in the Cartledge case that a law which produced such a result was harsh and absurd. But nevertheless he felt constrained to come to the same decision.


The 1957 Act is a post-1937 Statute and has the benefit of the presumption of constitutionality. If there are two interpretations one of which is unconstitutional and one of which is constitutional, it must be presumed that the Oireachtas intended the interpretation which wasconstitutional.


The English Parliament do not operate within the confines of a written constitution whereas in this country the Oireachtas can only pass laws which are compatible with the Constitution. It seems to me that no law which could be described as "harsh and absurd" or which the Courts could say was unreasonable and unjustifiable in principle (as did the English Courts) could also be constitutional.


Mr. Fitzsimons took issue with the word "absurd". He said that harshness is not the test. The result may be harsh but it is necessary. He said there is nothing unconstitutional per se in a harshinterpretation.


If I interpret accrual as denoting the date of the negligent act, it may have the effect of depriving an injured party of a right of action before he knows he had one. If I interpret accrual as denoting the date of discoverability, it may operate with hardship to a defendant in that action may not be brought for many years afterwards.


This was a consideration which was an important factor in the Supreme Court decision in Moynihan .v. Greensayth ( 1977 IR 55). In the Sparham-Souter Case, one of...

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