The Gazette 1986

APRIL 1986

GAZETTE

The facts were that it had been shown by virtue of the provisions of a testator's will that his widow had become entitled to ownership of a portion of the testator's farm. However, by reason of acts of ownership such as grazing cattle on it and by paying the rates and making improvements to it, her son had been in adverse possession within the meaning of sl8 of the Statute of Limitations 1957 of her portion of the farm. It was found as a fact that neither the widow nor the son were aware of the rights of the widow to the land during this period. Finally, it was found as a consequence that the right of action of the widow had become barred and her title to her portion of the farm had been extinguished by virtue of the provisions of si3 and s24 of the Statute of Limitations 1957. These deal with the fact that no action for recovery of land shall be .brought after the expiration of 12 years from the date in which the right of action accrued to the person bringing it and that on the expiration of the period of 12 years fixed by this Act the title of that person to the land shall be extinguished. Although no direct comparisons can be made with negligence cases the Statute of Limitations in this area has been upheld. The fact that a person can lose a right of action before they know they have one is seemingly of no effect in an action to recover what was their own land although the consequences for this plaintiff could easily be as serious as for the plaintiff who suffers loss through latent defects to buildings. The argument in the future in relation to whether or not the inherent provisions of the Constitution allow a person to have their action barred before they know they have one will be fascinating. The requirement of striking a balance between competing rights in a constitutional setting will ensure great interest in any attempt to shake the "discoverability" principle of Morgan in the Supreme Court. It may be that the judgment of Carroll J in Morgan v. Park Developments has no wider application than to negligence in the building of a house. It may be that a house owner is in a worse position than the owner of commercial/industrial premises with regard to his ability to discover defects or to become aware of them, and as a result the test of discoverability might be interpreted narrowly. Again in accordance with the judgement in Morgan v. Park Developments, it is clear that there is no breach of inherent constitutional rights in holding that time begins to run in contract from the date of breach. With this formula (the usual one) for fixing the accrual of the cause of action it would be easily possible for a plaintiff to have his action barred by the Statute of Limitations before he knows he has one. Indeed, the contrast of the precise words used in s l l of the Statute of Limitations 1957 insofar as they relate to tort and contract are worth making. They reveal that precisely the same operative words are used for contract and tort although in different sub-sections of the Act. Thus "actions founded on simple contract" per si 1(1 )(a) and " an action founded on t o r t" per si l(2)a "shall not be brought after the expiration of six years from the date on which the cause of action accrued". There is a legal presumption that the same phrase should bear the same meaning throughout the same

statute, especially where no conflict of common sense or logic arises by so doing. The meaning of the words, "the date on which the cause of action accrued" can be to take as unshakeable law in contract cases as the day on which the contract is breached. If we now equate the date of breach of contract with the date of damage caused by negligence we can say that breach of contract on one hand equates with damage inflicted in negligence. Because the date of accrual of the cause of action in contract is settled and since the limitation period in contract and tort is precisely the same per the Statute, then the accrual of the cause of action in negligence would be the date of actual damage. This would give a rational interpretation of the precise words of the Statute and give a point in time - the date of actual damage - on which technical evidence could be adduced. The effect of this would be to give the same test as Pirelli but by a different route. The consequence would be that the six year limitation period for negligence would begin on the day of damage, whether discoverable or not. Breach of Contract An interesting case arises where there is no negligence but there is breach of contract. This situation arose in the Court of Appeal case of Hancock -v- Brazier (Anerley) Ltd . 9 . In that case a builder failed to appreciate the presence of a dangerous substance in stone hardcore infill which eventually damaged the ground floor slab. Diplock L. J. held that the plaintiff had not succeeded in establishing negligence on the part of the builders, but there had been a breach of contract. If it is accepted that a breach of contract with no negligence can occur in the building of a house it is a small second step to assume that the breach might not be discovered until more than six years had elapsed. This would be the case again where a plaintiff is barred from his action by the six year period of the Statute of Limitations although suffering damage. It would do violence to the law to suggest that time began to run only from the discovery of the breach of contract. It should be noted that the provisions of the Statute of Limitations 1957 regarding fraud or mistake provide another route by which the running of time can be delayed. It is possible that a second "discoverability" test could be applied to such fraud or mistake and is equally applicable to contract and negligence. It means therefore that in certain circumstances of fraud or mistake that the time does not begin to run in any event until the impugned act became apparent. The strongest argument for legislation to control latent damage claims arises in the lack of statutory defences to negligence claims regardless of when they are brought at present. For instance the 1982 LRC Bill makes no provision for the effects of wear and tear or the durability of the materials of construction. Neither does it suggest requirements to make repairs in the legal sense of restoring any part of the premises or its installations to its original condition after long periods of use or poor maintenance. In this way it precludes the possibility of statutory defences to a breach of duty under the Bill. A statutory defence based on the durability of the materials ol construction would undoubtedly be demanded in any legislation on latent defects. Designers point to the fact

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