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GAZETTE
APRIL 1986
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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