Murphy v McInerney Construction Ltd & Griffin

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 22 October 2008
• Neutral Citation: [2008] IEHC 323
• Court: High Court
• Date: 22 October 2008

[2008] IEHC 323

THE HIGH COURT

[No. 18899 P/2004]

Murphy v McInerney Construction Ltd & Griffin

BETWEEN

MICHAEL MURPHY AND MARY M. MURPHY

PLAINTIFFS

AND

McINERNEY CONSTRUCTION LIMITED AND JAMES A. GRIFFIN

DEFENDANTS

STATUTE OF LIMITATIONS 1957 S11(2)(A)

HEGARTY v O'LOUGHRAN 1990 1 IR 148

MORGAN v PARK DEVELOPMENTS LTD 1983 ILRM 156

STATUTE OF LIMITATIONS 1957 S71(1)

PIRELLI GENERAL CABLE WORKS LTD v OSCAR FABER & PARTNERS (A FIRM) 1983 2 WLR 6

CARTLEDGE & ORS v E JOPLING & SONS LTD 1963 AC 758

LIMITATION ACT 1939 S26 (UK)

STATUTE OF LIMITATIONS 1957 S11(2)(B)

CONSTITUTION

STATUTE OF LIMITATIONS 1957 S71

TUOHY v COURTNEY 1994 3 IR 1

DOYLE v C & D PROVIDERS (WEXFORD) LTD 1994 3 IR 57

O'DONNELL v KILSARAN CONCRETE LTD & ANOR 2002 1 ILRM 551

INVERCARGILL CITY COUNCIL v HAMLIN 1996 AC 624

IRISH EQUINE FOUNDATION LTD v ROBINSON & ORS 1999 2 IR 442

PRACTICE AND PROCEDURE

Limitation of actions

Latent defects - Negligence and breach of duty - Construction and repair to dwelling house - Date of accrual of cause of action - Whether statute runs from date of discovery of defects - Discoverability test - Interpretation of statute - Ordinary meaning - Suggestion that cause of defects unconscionably concealed from plaintiffs - Failure to raise issue in pleadings - Hegarty v O'Loughran [1990] 1 IR 14 and Morgan v Park Developments Limited [1983] ILRM 156 followed; Pirelli General Cable Works Ltd v Oscar Faber and Partners [1983] 2 WLR 6, Cartledge v EF Jopling and Sons Ltd [1963] AC 758, Tuohy v Courtney [1994] 3 IR 1, Doyle v C & D Providers (Wexford) Ltd [1994] 3 IR 57, O'Donnell v Kilsarin Concrete Ltd [2002] 1 ILRM 551 and Invercargill City Council v Hamlin [1996] AC 624 considered - Statute of Limitations 1957 (No 6), ss 11 and 71 - Proceedings statute barred (2004/18899P - Dunne J - 22/10/2008) [2008] IEHC 323

Murphy v McInerney Construction Ltd

1 Ms. Justice Dunne on the 22 day of October 2008

2 The plaintiffs claim damages against the first named defendant for negligence and breach of duty arising out of the construction of and repair to a dwelling house at 1 Muckross Close, Powerscourt, Co. Waterford. They also claim damages for negligence breach of duty and breach of contract arising out of an inspection and survey of 1 Muckross Close, Powerscourt, Co. Waterford prior to their purchase of that dwelling house. The inspection concerned took place on the 25 ^th of September, 1997. It is now conceded by the plaintiffs that the claim against the second named defendant arising in respect of an alleged breach of contract based on the inspection and survey of the dwelling house by the second named defendant on the 25 ^th September, 1997, is statute barred.

3 The principal complaint made by the plaintiffs against the first named defendant as set out in the statement of claim is that the first named defendant was negligent and in breach of duty in constructing the property in May 1987. In 1996 it is alleged that the first named defendant acknowledged defects in the structure of the property to it's then owner and agreed with the then owner to carry out repairs and remedial works to the property. Thus it is alleged that the first named defendant was negligent and in breach of duty in constructing the property and in effecting the said repair and remedial work thereto.

4 In insofar as the second named defendant is concerned it is pleaded that he was negligent and in breach of duty in the inspection and examination of the property and in preparation of his report on the structural condition of the property for the plaintiffs which report was furnished on the 25 ^th September 1997.

5 Each of the defendants herein has pleaded that these proceedings are statute barred under and by virtue of the Statute of Limitations 1957. The reply to the defence in each case is similar and I will quote expressly from that furnished to the defence of the first named defendant, where it is pleaded as follows:-

"It is denied the plaintiffs' claim is barred by the provisions of s. 11(2)(a) of the Statute of Limitations Act (sic) 1957, or at all. The plaintiffs will contend their cause of action accrued upon the discovery of the first named defendant's negligence and breach of duty when the latent defects in the property became manifest and within six years prior to the issue of the within proceedings."

6 Section 11(2)(a) of the Statute of Limitations 1957, as amended, provides:

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

8 An order was made on the 26 ^th November, 2007 directing the trial of a preliminary issue as to whether or not the plaintiffs' claim is statute barred. Certain facts have been agreed by the parties for the purpose of the trial of this preliminary issue. They are as follows:

9 1. That the first named defendant constructed No. 1 Muckross Close, Powerscourt, Co. Waterford in 1987 and that in 1996 the first named defendant acknowledged defects in the structure of the property to its then owner, George McDonald and agreed with Mr. McDonald to carry out repairs and remedial works to the property.

10 2. That in or about the month of September 1997, the plaintiffs were desirous of purchasing a property known as No. 1 Muckross Close, Powerscourt, Co. Waterford.

11 3. That in September 1997, the plaintiffs retained the second named defendant to inspect the aforesaid property and to advise on its structural condition prior to the completion of negotiations with the purchase of the property in consideration of the sum of €145.20.

12 4. That on the 25 ^th September, 1997, the second named defendant furnished his report of that date to the plaintiffs' solicitor which concluded that the principle structural elements of the property were deemed to be in good structural order with no apparent defects.

13 5. That it was a term or condition of the contract of retainer between the plaintiffs and the second named defendant and/or the second named defendant warranted and represented that he had and would exercise all reasonable care, skill and diligence as a consultant engineering the inspection and examination of the property and in furnishing his report on the structural condition of the property.

14 6. That the second named defendant acted in breach of contract, negligently and in breach of duty in failing to exercise all due care, skill and diligence in the inspection and examination of the property and in the preparation of his report.

15 7. That the first named defendant was negligent and in breach of duty in constructing the property and in affecting the said repair and remedial work thereto.

16 8. That the particulars of loss are as pleaded.

17 9. That these proceedings commenced by issue of plenary summons on the 30 ^th September, 2004.

18 So far as those agreed facts are concerned, those in relation to the alleged breach of contract of the second named defendant are no longer of any relevance, given the acceptance that the claim against the second named defendant in respect of breach of contract is statute barred.

19 The principal point made on behalf of the defendants herein is that the house in question was constructed in 1987, remedial works were carried out in 1996 and any defects now complained of in the structure or indeed in relation to the remedial works carried out were in existence at that time and indeed in 1997, when the property was purchased by the plaintiffs. Thus, they say, the period of six years had expired since the cause of action accrued and that the proceedings were issued more than six years after the cause of action accrued. The plaintiffs contend that the cause of action against the first and second named defendants in negligence accrued when the latent defects in the property became manifest or as it was put in the affidavit of Rory O'Connor, solicitor, sworn herein on the 19 ^th November, 2007, on behalf of the plaintiffs referring to the plea contained in the Reply to Defence:

"Therein the plaintiffs rely on the contention that their cause of action accrued upon discovery of the first named defendant's negligence and breach of duty, when the latent defects in the property became apparent and when they became aware of the first named defendant's negligence and breach of duty which discovery occurred within six years prior to the issue of the within proceedings."

20 Thus, it can be seen that the plaintiffs contend that the statute does not run until the date of the discovery of the defects alleged. Each of the defendants in their respective submissions have rejected this contention and have relied on the Supreme Court decision in the case of Hegarty v. O'Loughran [1990] 1 I.R. 14, in which the Supreme Court rejected the concept of a discoverability test and held that the Statute of Limitations runs from the date on which damage happens or occurs and not on the date that the damage or defect was discoverable.

21 Prior to the decision of the Supreme Court in the case of Hegarty v. O'Loughran, the interpretation of s. 11(2)(a) of the Statute of Limitations was considered in the case of Morgan v. Park Developments Limited [1983] I.L.R.M. 156. The facts of that case are not dissimilar from those of the present case. In that case the plaintiff had purchased a house from the defendants in 1962. Shortly after moving into the house, the plaintiff notified the defendants of defects which had occurred in the premises. The defendants repaired the defects including a large crack in the corner of the house which reappeared and required further repairs by the defendants in 1965. The plaintiff was informed...