Sparham-Souter v Town and Country Developments (Essex) Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL,LORD JUSTICE GEOFFREY LANE
Judgment Date10 February 1976
Judgment citation (vLex)[1976] EWCA Civ J0210-3
Docket Number1971 S. No. 5105

[1976] EWCA Civ J0210-3

In The Supreme Court of Judicature

Court of Appeal

On Appeal From The High Court of Justice Queen's Bench Division

Before:

The Master of The Rolls

Lord Justice Roskill and

Lord Justice Geoffrey Lane

1971 S. No. 5105
John Henry Sparham-Souter
First Plaintiff
and
Glenda June Sparham-Souter
Second Plaintiff
and
Eugene Ryan
Third Plaintiff
and
Town And Country Developments (Essex) Limited
First Defendants
and
Benfleet Urban District Council
Second Defendants

Mr. H. Wood, Q.C. and Mr. T. Walker (instructed by Messrs Beaumont & Son, Solicitors, London) appeared on behalf of the Plaintiffs (Respondents).

Mr. J. Tackaberry (instructed by Messrs. Barlow, Lyde & Gilbert, Solicitors, London) appeared on behalf of the Second Defendants (Appellants).

THE MASTER OF THE ROLLS
1

In 1964 some developers called Town and Country Developments (Essex) Limited wished to build a new housing estate at Benfleet in Essex. It was to consist of 11 houses and a new street to be called Wincoat Close Estate. They applied to the local authority, the Benfleet Urban District Council, for planning permission. On 28th October, 1964 the Council granted permission and passed the plans, subject to the builders complying with the building bye-laws.

2

The developers were themselves the builders. On 6th May, 1965 they started work on numbers 3 and 4 Wincoat Close. The Council surveyor inspected the work and passed it. On 30th September, 1965 the two houses were completed. The Council surveyor inspected them and passed them. On 25th October, 1965 the developers agreed to sell No. 3 to Mr. and Mrs. Sparham-Souter. On 29th November, 1965, the developers agreed to sell No. 4 to Mr. Ryan. On 15th December, 1965 the local Council certified that numbers 3 and 4 had been inspected and they found no reason to question the legality of the work carried out under the building bye-laws. On 12th November, 1965 and 26th January, 1966 the conveyances were completed to the purchasers.

3

Two or three years later several cracks appeared in the brickwork of the houses and they became uninhabitable. The reason is alleged to be because the foundations were inadequate to support the load. The plaintiffs say that this was due to the negligence of the developers (who were also the builders) and also the negligence of the Surveyor of the Council in passing the work as satisfactory when he ought not to have done so.

4

On 22nd October, 1971 the plaintiffs issued the writ in this action for damages, relying on the decision of Mr. Justice Cusack in Button v. Bognor Regis U.D.C., which wasaffirmed in this court in (1972) 1 Queen's Bench 373. That decision gives the plaintiffs a cause of action against both the developers and the Council, but the question is whether or not the claim is barred, as against the Council, by the Statute of Limitations. The 1939 Act says in Section 2(1): "The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say – (a) actions founded on simple contract or on tort."

5

A preliminary issue was directed. The Judge has held that the action is not barred. The Council appeal to this court. They say that two of the acts of negligence alleged against them occurred more than six years before action brought: and that, in respect of those acts, the action is statute-barred.

6

Now for the general principle. In recent years the law of negligence has been transformed out of all recognition. This is the first case in which we have had to consider the effect of this transformation on the Statute of Limitations. One thing is quite clear. A cause of action for negligence accrues not at the date of the negligent act or omission but at the date when the damage is sustained by the plaintiff. I would emphasise "by the plaintiff", just as Lord Pearce did in Cartledge v. Jopling (1963) Appeal Cases at page 777, when speaking of the cause of action for negligence: "No cause of action arises unless and until the plaintiff can show some actual injury. Normally the injury is contemporaneous with the wrongful act. But it is not necessarily so. In the present case, therefore, the cause of action did not accrue until some actionable injury was caused to the plaintiff by the defendants' breach of duty".

7

Another thing is quite clear. A Statute of Limitationscannot begin to run unless there are two things present – "A party capable of suing and a party liable to be sued". It was so stated by Lord Justice Vaughan Williams in Thomson v. Clanmorris (Lord) (1900) 1 Chancery at pages 728-9: and there is good sense in it. It would be most unjust that time should run against a plaintiff when there is no possibility of bringing an action to enforce it.

8

Starting with these two propositions, I would now ask: When does the time start to run in actions against the manufacturer of defective goods? For this may afford a guide in seeing when it starts to run against the builder of a defective house, or the surveyor who passes it.

9

Take a case which has happened in the past. A motor manufacturer makes a motorcar so negligently that there is a latent defect in the braking system. The car is sold by one person to another down a chain of buyers. Some time later the brakes fail owing to the defect. There is an accident. Persons are injured. Property is damaged. Each person who suffers damage to person or property has a cause of action against the manufacturer under Donoghue v. Stevenson (1932) Appeal Cases 562. The cause of action accrues not at the time when the latest owner bought the car but at the time when the accident took place and the damage was sustained. A good instance is Davie v. New Merton Board Mills Limited (1959) Appeal Cases 604. In 1946 a manufacturer negligently made a tool with a latent defect. Seven years later, when a fitter was using it, a piece broke off and went into his eye. His cause of action against the manufacturer accrued at the moment when the piece went into his eye. So it was not statute-barred. In Cartledge v. Jopling (1963) Appeal Cases at page 773 Lord Reid approved this decision, saying: "Such cases as Davie v. New Merton Board Mills Limited. show that under the law as it now stands several years may elapse between thelast negligent or wrongful act of the defendant and the date when a cause of action first accrues. In Davie's case the period was seven years. That is because in those cases the danger created by the defendant only caused damage to the plaintiff at a much later date".

10

Now apply that to a case like Dutton v. Bognor Regis U.D.C. (1971) 1 Queen's Bench 373; or Higgins v. Arfon Borough Council (1975) 1 Weekly Law Reports 524, or ( Anns and others v. London Borough of Merton 24th October, 1975), and you will see that the parallel is very close. A builder negligently makes foundations for a house which are quite insufficient and in breach of the bye-laws. The Council's inspector negligently passes them as sufficient. The house is built and is sold by the builder to a purchaser, who sells it to another, and so on down a chain of purchasers. Some time later the house begins to sink and cracks appear in the structure owing to the insufficient foundations. The man who is the owner at that time has a cause of action against the builder and the Council under Dutton v. Bognor Regis U.D.C. The cause of action accrues not at the time of the negligent making or passing of the foundations, nor at the time when the latest owner bought the house, but at the time when the house began to sink and the cracks appeared. That was the first time that any damage was sustained. None of the previous owners had sustained any damage. Each had bought and sold the house at a full price ii the belief that the foundations were sound. The only person to sustain the damage was the man who owned the house at the time when the house sank and the cracks appeared. It is only at that time that he can reasonably be expected to know that he may have a cause of action. It would be most unfair that time should run against him before he knows – or has any possibility ofknowing – that he has a cause of action. Time should not begin to run against him until he knows of the defective foundations, or could, with reasonable diligence, have discovered it. That is what Lord Reid said in Cartledge v. Jopling (1963) Appeal Cases at page 772, speaking of cases governed by the common law: "It appears to me to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury, and therefore, before it is possible to raise any action … a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances". That principle underlies the Limitation Acts of 1963 and 1975: and it is, I think, the principle which we should adopt in regard to this new cause of action introduced by Dutton v. Bognor Regis U.D.C.

11

It may be asked: what about Cartledge v. Jopling itself? Yes, indeed. But there the damage to the man was in fact done when the dust was inhaled – even though it was not discovered till later. Here there was no damage to any purchaser of the house until it began to sink and cracks appeared.

12

And again: What about Bagot v. Stevens Scanlon & Co. (1966) Queen's Bench 197, when Lord Justice Diplock expressed the view that the damage occurred "when the drains were improperly built": and I followed him in Dutton v. Bognor Regis U.D.C. (1972) 1 Queen's Bench at page 396. This does make me pause. But now, having thought it over time and again – and been converted by my brethren – I have come to the conclusion that, when building-work is badly done – and covered up – the cause of action does not accrue, and timedoes...

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