Board of Trustees, Glen Innes Primary School v Ahead Buildings HC Auckland CIV 2006-404-1884 [2009] NZHC 2603 (21 December 2009)

Last Updated: 11 July 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2006-404-1884}

BETWEEN THE BOARD OF TRUSTEES, GLEN INNES PRIMARY SCHOOL

First-Named Plaintiffs

AND AHEAD BUILDINGS, AN OPERATING DIVISION OF ECONICORP HOLDINGS LIMITED

First Defendant

AND LHT LIMITED Second Defendant

CIV 2008-404-7268

AND BETWEEN THE MINISTER OF EDUCATION Second-Named Plaintiff

AND AHEAD BUILDINGS, AN OPERATING DIVISION OF ECONICORP HOLDINGS LIMITED

First Defendant

AND LHT LIMITED Second Defendant

Hearing: 24 September 2009

Appearances: P R Grimshaw for Plaintiffs

R J Hollyman & K E F Morrison for First Defendant

Judgment: 21 December 2009

_{JUDGMENT OF KEANE J}

THE BOARD OF TRUSTEES, GLEN INNES PRIMARY SCHOOL V AHEAD BUILDINGS AND ORS HC AK CIV 2006-404-1884 21 December 2009

This judgment was delivered by Justice Keane on 21 December 2009 at 10am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

Solicitors

Grimshaw & Co., Auckland

Morgan Coakle, Auckland

Cockcroft d’Young Moorhouse, Devonport, Auckland

[1] On 26 February 1999 the Board of Trustees of Glen Innes Primary School, a school owned by the Crown in the name of the Minister of Education, entered into a contract with Ahead Buildings Limited for the construction of a new school hall. In this the Board relied on a building consent obtained by the Minister and two-thirds funding. Ahead engaged LHT, structural engineers, to assist with the design and specifications.

[2] Ahead began work in March 1999 and, when the hall was complete, obtained on 26 November 1999 a code compliance certificate. The hall proved, however, according to the Board, not to be watertight. The concrete slab on which it rests, the Board contends, was laid by Ahead below the measured water table. Drainage proved inadequate. The joinery and flashings proved defective. The hall ceased to be usable. It poses risks to health and safety.

[3] The Board wishes to replace the hall completely and to reconstruct it on a higher slab. The cost, inclusive of GST, is estimated to be $760,000 and the Board sues Ahead in contract and tort, and the Minister sues Ahead in tort, contending that Ahead is in breach of a duty to them both to construct the hall in a workmanlike way with reasonable skill and care. Each seeks the economic loss said to have resulted, measured by the cost of repairs, $760,000, and consequential costs. Each sues LHT in tort, alleging that it too was under a duty of care when completing the design report and specification.

[4] Ahead denies that there were any defects to the hall that allowed in water and contends that it was the Board, and the Minister vicariously, that brought about any later water damage. After the hall was constructed, Ahead says, the Board carried out landscaping or earthworks that lifted the ground level, reducing the height clearance of the floor. The Board failed to maintain the drains that Ahead had put in place. Indeed it filled them and laid over them drains that were inadequate.

[5] Ahead says further that the Board has itself admitted that it saw flooding within the hall from the day that it was built and failed to mitigate then or later. It failed, in particular, to undertake remedial work allowed under a building consent given on 22 June 2008. That consent, obtained at a cost of $20,000, to give effect to

a partial settlement agreement, allowed works at an estimated cost of $73,165. Ahead was willing, in principle, to assume some share of that cost and asked the Board and the Minister to discuss this. They did not respond.

[6] These will all be matters for trial, assuming that the case goes to trial as it is presently pleaded, but Ahead applies for orders striking out the two causes of action against it. Alternatively, Ahead seeks summary judgment on its affirmative defences, and leave to apply for that remedy if need be.

[7] Ahead contends that these causes of action are time barred. The work claimed to be defective happened before the issue of the code compliance certificate on 26

November 1999. The Board brought its claim in contract and tort on 6 April 2006 and amended it as to tort in February 2009. The Ministry brought its separate claim in tort on 31 October 2008 and again amended it in February 1999. In each case that was in excess of six years after construction was completed.

[8] Ahead contends, secondly, and alternatively, that any duty of care in tort that it owed the Board did not extend beyond that owed under the contract between them, and that it did not owe the Minister any duty of care at all. If it did owe either a duty in tort, it contends, that could never have extended to one protecting them against economic loss.

[9] Before passing to those two questions I should add this. In the analysis to be made the Board and the Minister are not to be equated. The Minister owns the land and buildings, including the hall. The Board occupies them and has no greater rights. Yet the Board contracted with Ahead to have the hall constructed. The Minister chose not to. Nor are their losses, if any, to be equated.

Strike out and summary judgment

[10] The overlapping abilities to give a defendant summary judgment under HCR

136(2) on the basis that ‘none of the causes of action in the plaintiff’s statement of claim can succeed’, to strike out a pleading under HCR 186(a) on the basis that it

‘discloses no reasonable cause of action’, and to grant a summary stay or dismiss a

proceeding under HCR 477(a) on the basis that ‘no reasonable cause of action is disclosed’, involve discrete considerations.

[11] An immediate contrast is that the ability to strike out, under HCR 186, can be as to part of a plaintiff’s pleadings. A cause of action may be struck out even if other causes remain. But to obtain summary judgment under HCR 136(2), as the Court of Appeal said in Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2

NZLR 298, at 313, paras [58] – [59], a defendant must show that all the plaintiff’s causes of action are unsustainable. That is clearly in issue here.

[12] More basically, the Court said in the Westpac case, at para [60], the distinction between these two remedies lies in this:

... strike-out is usually determined on the pleadings alone whereas summary judgment requires evidence. Summary judgment is a judgment between the parties on the dispute which operates as an issue estoppel, whereas if a pleading is struck out as untenable as a matter of law the plaintiff is not precluded from bringing a properly constituted claim.

[13] Where on the pleadings as they are, or could be, and on any evidence given or foreshadowed, a proposition of law advanced by the plaintiff is clearly untenable, that can be a basis for a grant of summary judgment instead of a strike out. But, whichever of these powers is for exercise, everything material must be reliably before the Court. Summary judgment will be inappropriate, the Court continued to say in the Westpac case, at para [62], where there are disputed issues of fact or where there is a novel question of law. As to the latter, that is no less so on an application to strike out: Attorney General v Prince & Gardner [1998] 1 NZLR 262, 267, CA; Couch v Attorney General [2008] NZSC 45, [43].

[14] That does not mean, however, that a strike-out is inapt in this present case. The ground has already been well marked out in Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324, CA. The order of analysis there mapped out was adhered to, if analogously, very recently in Te Mata Properties Ltd v Hastings District Council [2008] NZCA 446.

[15] Finally, as the Court of Appeal said in the Westpac case, para [66], both HCR

136 and HCR 186 are founded on the pleadings and neither power is to be exercised

if the pleadings can be recast. That is especially so in the case of summary judgment, where the defendant must satisfy the Court that none of the causes of action can succeed and where, in contrast to a strike-out, any judgment gives rise to an issue estoppel.

[16] The present application for summary judgment calls for leave under HCR

138(3). There is no strong issue as to that and leave is granted.

Limitation issue

[17] Section 4(1)(a) of the Limitation Act 1950 prohibits actions in contract and tort being brought ‘after the expiration of 6 years from the date on which the cause of action accrued’; and that immediately gives rise to the threshold issue that could well be decisive. When did the Board’s causes of action in contract and tort, and when did the Minister’s cause of action in tort, accrue?

[18] These two causes of action may be co-extensive in that each alleges indistinguishable breaches of essentially the same duty of care and the same resulting loss. They rest on quite different foundations in law. Ahead contends, however, that they are truly co-extensive, or indistinguishable for limitation purposes, and that the latest possible date from which the limitation period could have begun to run for either was the date on which the code compliance certificate was given. The two causes of action, the Board and the Minister respond equally generally, could not have begun to run until the date on which the defects were, or ought reasonably to have been, discovered.

[19] In its recent decision, Murray v Morel & Co Ltd [2007] 3 NZLR 721, the Supreme Court, by a majority, held against any general principle, informing the Limitation Act, that a cause of action accrues only when its constituent elements are reasonably discoverable. As Tipping J said at [69] in a passage that I have divided into two:

... the numerous references in the Limitation Act to accrual of a cause of action can only be construed as references to the point of time at which everything has happened entitling the plaintiff to the judgment of the Court

on the cause of action asserted. Save when the Limitation Act itself makes knowledge or reasonable discoverability relevant, the plaintiff’s state of knowledge has no bearing on limitation issues.

Accrual is an occurrence-based, not a knowledge-based, concept. The Limitation Act as a whole is structured around that fundamental starting point. The periods of time selected for various purposes must have been chosen on that understanding. The circumstances of postponement and extension have themselves been similarly framed.

Cause of action in contract

[20] The ordinary principle in contract is that a cause of action accrues when the breach occurs. Knowledge of the breach, or rather knowledge of any later resulting damage, is not a constituent. In the old case Read v Brown (1889) 22 Q.B.D. 128,

131 Lord Esher M.R. said:

The cause of action is the breach and not the actual damage (if any) resulting therefrom, for a breach of contract is actionable per se without proof of actual damage, nominal damages being recoverable in the absence of such proof. Even if resulting damage happens or is discovered after the occurrence of the breach, it will not be a new cause of action but merely an incident of the old one.

[21] This statement is to be found in White v Taupö Totara Timber Company [1960] NZLR 547, T.A. Gresson J, and has not been doubted in any case since of which I am aware, where a breach of contract only is in issue. But, as Ahead contends, where the work under a contract is said to have been performed negligently, giving rise to separate claims in contract and tort, some recent cases have suggested or said that the limitation period runs from the date on which the cause of action accrues in tort; in this class of case when the damage becomes reasonably discoverable: Day v Mead [1987] 2 NZLR 443, 450, Cooke P; Rabadan v Gale [1996] 3 NZLR 220, Salmon J; BP Oil New Zealand Limited v Ports of Auckland Limited [2004] 2 NZLR 208, Rodney Hansen J.

[22] As will be apparent, however, from the passages from Tipping J’s judgment in Morel, set out at para [19] of this decision, even though causes of action in contract and tort may be essentially indistinguishable, when they arise within a matrix of contract, they do not merge even for the purpose of limitation.

[23] Speaking of the BP Oil decision, at [63], Tipping J said that when whether the limitation period runs for discrete causes of action from a common starting point, in particular the point when damage is reasonably discoverable, depends on whether each cause of action, discretely, has as a constituent knowledge or discoverability. For as he said:

Unless the element of knowledge or discoverability can properly be regarded as forming a part of the cause of action itself, as the Privy Council did in Hamlin, it is difficult to view reasonable discoverability as affording a general extension of the period of time which the legislature has prescribed from accrual.

[24] The principle of reasonable discoverability in tort derives principally, if not exclusively, from the decision of the Privy Council in Invercargill City Council v Hamlin [1996] 1 NZLR 513. The economic loss arising from a hidden defect in a house property is the loss in market value, measured by the cost of repairs, and that loss only occurs once the defect is discovered. That case is not, however, a source of general principle even in tort; it constitutes an exception to the general principle. Though in Morel Tipping J did at [101] accept that it might apply more widely by strict analogy, he spoke only of tort. He did not suggest that, where analogous cases in contract arise, they too are to be assimilated.

[25] The result is, I consider, that the Board’s cause of action in contract accrued when the breach carrying the potential for damage and loss occurred, not when the damage eventuated or was discovered. The latest date from which the six year limitation period could have run was the date on which the code compliance certificate was given, 26 November 2009. The claim was brought on 6 April 2006, in excess of six years later. It is time barred.

Cause of action in tort

[26] The Board’s and the Minister’s causes of action in tort, though each depends on the same want of reasonable care and skill in carrying out the work contracted for, did not accrue, in contrast to that in contract, at least until damage resulted. That had to be at some date after the issue of the code compliance certificate. How much later remains an unresolved issue of fact and the Minister and the Board do not pretend to

say. They say, rather, that the damage was not reasonably discoverable until the

Board discovered it in 2003. That is when they contend time began to run.

[27] That would certainly be true if the property damaged was a house property. For as Lord Lloyd of Berwick said, speaking for the Privy Council, in Invercargill City Council v Hamlin [1996] 1 NZLR 513, PC, at 526, of the underlying principle:

A cause of action accrues when, but not before, all the elements necessary to support the plaintiff’s claim are in existence ... In the case of a latent defect in a building the element of loss or damage which is necessary to support a claim for economic loss in tort does not exist so long as the market value of the house is unaffected.

[28] The economic loss the Board and the Minister claim here, of course, is not loss of market value. The hall is a facility at a public school. But that does not seem to me to be fatal to the general discoverability principle applying analogously. The loss the Board and the Minister are pursuing is not physical damage. It is the loss to their pockets, whatever that may be, and presently they both elect to say the cost of reinstatement or replacement. That cost is the first measure of any loss of market value, when that is the loss claimed. Depreciation in market value is the second.

[29] The question remains whether each is entitled to claim the cost of repairs, as I shall say shortly, when dealing with the second issue that arises on this application, whether Ahead owed any duty of care to the Minister or the Board, analogous to that recognised in Hamlin; the issue that will finally determine whether the claim in tort is time barred. If such a duty is owed them in tort their claim will have been brought within time. If it is not owed at all, that will be an end of the matter.

[30] There is, however, a critical issue of fact that I am unable to resolve on this application that could still arise, and that could only be resolved at trial. It is when the damage was discovered or reasonably discoverable. The Board, and thus the Minister say, that it was not the one or the other until 2003. Ahead puts that in issue, contending that the Board admitted to being aware of flooding from the time it took possession.

Cause of action in negligence

[31] As to whether Ahead did owe a duty of care to the Minister and the Board, the one or the other or both, as Glazebrook J said in the Rolls-Royce case, at para [58], delivering the decision of the Court, depends on:

... whether, in the light of all the circumstances ...., it is just and reasonable that such a duty be imposed. The focus is on two broad fields of inquiry but these provide only a framework rather than a straitjacket. The first ... is as to the degree of proximity or relationship between the parties. The second is whether there are other wider policy considerations that tend to negative or restrict or strengthen the existence of a duty ... At this second stage, the ... inquiry is concerned with the effect of the recognition of a duty on other legal duties and, more generally on society.

[32] The inquiry into proximity, Glazebrook J said at para [59], involves ‘more than a simple question of foreseeability’; and at para [60]:

The proximity inquiry can be seen as reflecting a balancing of the plaintiff’s moral claim to compensation for avoidable harm and the defendant’s moral claim to be protected from undue restrictions on its freedom of action and from an undue burden of legal responsibility.

[33] That latter inquiry, Glazebrook J continued to say at para [60], concerns how close the nexus is between any negligence and any loss and the degree of harm. It goes to whether it would be disproportionate to impose on the defendant a duty to avoid the risk, or to meet the loss. It calls for a contrast to be made between plaintiff and defendant: para [61], [62]. Is the plaintiff vulnerable to the special expertise of the defendant? Or, is the plaintiff well able to deter or deflect any risk and to avoid shouldering any loss? This can turn on ‘bargaining power and market reality’: para [62].

[34] No less relevant to proximity is the nature of the loss. If it is economic rather than physical that may stand against a duty being imposed. A claim for economic loss may be merely a claim to a transfer in wealth: para [63]. Contextually, Glazebrook J said at para [64], statute and contract may point towards, or away from, proximity and duty:

The statutory and contractual background can raise wider policy issues and thus the boundary between proximity and policy can merge. The two-stage

approach is, however, only a framework and no presumption, rebuttable or otherwise, arises at any stage of the inquiry.

[35] The inquiry called for cannot reduce then to how far the school hall is to be categorised, in Hamlin terms, as sharing the characteristics of a residential building on the one hand, or a commercial building on the other, or some intermediate possibility; the focus in Her Majesty The Queen v Mike Barns & Associates Limited (HC ROT, CIV 2005-463-323, 1 September 2006), Abbott AJ, on which the Board and the Minister rely.

[36] One difficulty is, as is said in Rolls-Royce at para [74], that the distinction is indeterminate and can prove idiosyncratic. A building may be residential as well as commercial, and industrial as well as residential: Three Meade Street Ltd v Rotorua District Council [2005] 1 NZLR 504, para [40], Venning J; Te Mata Properties Ltd

& Ors v Hastings District Council (HC NAP CIV 2004-441-151 & 569, 17 August

2007), Williams J; Body Corporate 188529 & Ors v North Shore City Council & Ors

(HC AK, CIV 2004-404-3230, 30 April 2008), Heath J.

[37] Too great a focus on that distinction, moreover, can prove distracting. The duty affirmed in Hamlin, that owed by a local authority to a home owner, derived from six ‘distinctive and long-standing’ historical reasons: Richardson J, Hamlin (CA), 524 – 525. Though a builder can owe as extensive a duty that can only be so after an inquiry of the dimensions the Rolls-Royce case exhibits. In this case, indeed, that case is directly in point.

Statutory context

[38] There are two statutory regimes that have a part to play and may point towards or away from a duty of care on Ahead’s part to the Board or the Minister. The first was very generally identified in the contract between Ahead and the Board. Under cl 5.11 Ahead was to comply with ‘the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Contract Works’.

[39] That Ahead was subject to that duty independent of the contract and that the purpose of the duty might be to protect owners, occupiers, invitees, or the public generally, goes without saying. It does not assist as to questions of proximity or policy. Nor are the Building Acts of 1991 and 1994, to the extent that each applied, any more prescriptive or telling. Each may have required Ahead to comply with the Building Code, when constructing the hall, but that does not assist as to whether Ahead owed a duty of care to the Minister or the Board.

[40] As to those issues the law governing the construction of buildings is neutral, as it was in the Rolls Royce case, para [15]. The most that can be said is that by imposing a ten year limit s 91 of the 1991 Act, or s 393 of the Building Act 2004, if that applies, made any claim determinate, not indeterminate, as to time.

[41] The second statutory regime that applies, that in the Education Act 1989, is by contrast, I consider, very telling. The Act says nothing about the relationship between Ahead and the Minister and the Board. It does make clear that the Minister and the Board are not to be assimilated one with the other. They differ in status. They do not share the same rights and remedies.

[42] It is common ground that the Crown and therefore nominally the Minister, owned the school, both the land and the buildings, and does so still, and the 1989 Act certainly assumes that to be so. Under s 46, for instance, the Minister may establish schools by Gazette notice, and presumably this school is as subject to just such a designation as any other. Where the Act becomes most telling, however, is where it delineates the status of the Board, its function and such rights as it has to school property.

[43] The Board is a body corporate, a legal entity separate from the Crown: s 117 schedule 6 paragraph 1. Its role is to control the management of the school: s 75. It is not entitled to acquire any interest in land or any licence to occupy land or premises without the Minister’s consent: s 69. The terms on which it occupies both the land and buildings can be circumscribed by the Chief Executive by notice it the Gazette: s 70. The Board’s ability to allow others to use the land by lease, licence or agreement is equally curtailed: s 70B – 70C.

[44] For the purpose of this application, and in the absence of any pleading that assists, the Minister must be assumed to remain the owner of the school, and the Board must be assumed to be merely an occupier. In that basic sense their rights and remedies unavoidably differ.

Relation in contract

[45] In asserting that it was owed a duty of care, the Board has this advantage, that it contracted with Ahead for the construction of the hall and, under cl 5.9.2, Ahead undertook to carry out the work in a ‘tradesmanlike manner’. Under cl 5.1.1 it undertook to remedy any defects and, under cl 7.1.1, to indemnify the Board for any loss suffered subject to a three month limit imposed by cl 11.

[46] The Board is able to rely equally on the now ordinary principle that a duty in tort will arise concurrently with a duty in contract that is both concurrent and co- extensive, so long as the facts on which each depends are also co-extensive and the contract does not negate a duty in tort: R M Turton & Co Ltd (in liq) v Kerslake & Partners [2000] 3 NZLR 406, 9, 10; Frost & Sutcliffe v Tuiara [2004] 1 NZLR 782,

22; Rowlands v Collow [1992] 1 NZLR 178, 191. In this case there is no suggestion, apart the limitation point, that the duty Ahead assumed in contract to the Board is incapable of founding such a co-extensive duty.

[47] None of these advantages is available to the Minister. Quite the contrary. Even though the hall to be constructed was to belong to the Crown and it provided two-thirds of the funds, the Minister elected not to enter the contract with Ahead. That points away from Ahead assuming any duty of care to the Minister concurrent with, or analogous to, that assumed contractually to the Board.

Relative vulnerabilities

[48] Ahead was a building contractor on whom the Board relied, as certainly at a remove did the Minister. Ahead was obliged to comply with Building Code standards safeguarding function, health and safety. The Board most directly, but

indirectly the Minister, was vulnerable to any lack of care on Ahead’s part, as were any occupants of the hall, conceivably, whose health or safety might have been compromised.

[49] Also, the Board could notionally have been thought at a disadvantage contractually. Ahead was in the business of contracting to carry out building projects and was aware of the intricacies. It was no part of the Board’s usual function to enter into construction contracts. Its statutory functions point rather the opposite way. That might seem to point towards a duty of care in tort as well as contract.

[50] However, the Board did not stand alone. As the evidence shows, it had recourse within the Ministry. It would be surprising if the Board did not have recourse to the Ministry when entering the contract and, as is evident, it did have recourse when the damage, and the loss potential, was identified. That might suggest that the Board was not as vulnerable as it might otherwise seem.

[51] That can be said even more emphatically of the Minister. The Ministry is large, well resourced, and no stranger to property transactions. The Minister, moreover, whom the Ministry serves, as owner of the school and the hall once it was constructed, and the source of two-thirds of the funds, could readily have chosen to contract with Ahead to set the terms on which the hall was to be constructed and to protect the Crown from any want of care on Ahead’s part and any resulting damage and loss. That the Minister elected not to do so, here too, must point against any compensating duty of care being imposed on Ahead in negligence.

[52] In these respects I agree with the similar remarks Asher J made when striking out the claim of a school board of trustees against a local authority in Mt Albert Grammar School Board of Trustees v Auckland City Council (HC AK, CIV 2007-

404-4090; CIV 2008-404-4551; CIV 2008-404-6356; CIV 2009-404-1776, 25 June

2009), [54], [58].

[53] The Board and the Minister contend that Ahead must have owed them a duty of care to safeguard health and safety, and the evidence presently uncontested is that there are high levels of fungal spore within the hall, in the cupboards especially, attributed to constant moisture deriving from trapped water. The hall, it has been recommended, ought only to be used for short periods with a high level of ventilation.

[54] In Murphy v Brentwood District Council [1991] 1 AC 398, 475 Lord Bridge said, however, that even where a structure contains a latent defect rendering it dangerous to persons or property liability for injury will only accrue when the injury results. Otherwise the defect is economic in the sense already described. The question will then be whether in the absence of a contractual duty a special relationship of proximity exists rendering them recoverable in tort.

[55] In Te Mata Properties Limited v Hastings District Council [2009] 1 NZLR

460, a case concerning the liability of a local authority carrying a responsibility for health and safety, Baragwanath J considered Te Mata ought to have the chance to plead that as a distinct cause of action. The view of the majority, however, was that there was no call in the interests of justice to allow that to happen. On the pleadings as they were Te Mata had no cause of action against the Council in respect of commercial premises.

[56] Also, as Asher J held in the Mt Albert Grammar case at [50], where health and safety is in issue, the true claimants will be whoever suffers injury. Also, as he said in that case, at [64], the Board and the Minister would surely have intervened to ensure that nobody was ever put at risk. The risk is more notional than real:

It is inconceivable that the Minister or any board of trustees would allow children to occupy school rooms that were unsafe or a danger to health.

[57] Finally, there is this issue, which may or may not go to proximity and on which I did not hear any submission. That is as to whether the loss the Minister and the Board each claim to have suffered, the economic loss, the cost of repair of the hall, $760,000, was a loss they actually shared.

[58] The Minister, as owner, can certainly claim that loss even though the hall was constructed as a result of a contract entered into between Ahead and the Board and it is the Board that has enjoyed the use of the hall. The Board cannot make the same claim because it merely occupies the hall and, under the Act and on the pleadings, has no duty to repair or even right without consent of the Minister or Chief Executive. The Board’s only loss as an occupier must be related in some fashion to its inability to use the hall as and when it has wished. Also perhaps, if it were accorded the right to rent out the hall, and that is not pleaded, the loss of the revenue stream. But that is a quite different order of loss.

[59] To the extent that this factor may favour a duty being imposed on Ahead it favours the Minister, where every other consideration tells against such a duty of care in the Minister’s favour. Though it may not be critical to whether Ahead owes a duty of care in favour of the Board, it does not favour the Board as to proximity and it may be complicating independently. Because, however, I have not heard submissions on the point that is as much as I will say.

Orders and directions

[60] For these reasons the Board’s cause of action in contract against Ahead is struck out as time barred. The Minister’s cause of action in negligence is struck out for want of a duty of care. It will need to be re-pleaded to identify the loss the Board has actually suffered. Whether it will then be viable, and within time, might well then be susceptible of a second look. These rulings make Ahead’s application for summary judgment irrelevant except as to this last cause of action and as to that it cannot be sustained on the papers as they are. It is dismissed.

[61] Ahead having succeeded as to two of the three causes of action advanced is entitled, I consider, to costs at scale 2B and disbursements as fixed. But if there is any issue about that, the Board and the Minister are to file their memorandum by 28

_{January 2010 and Ahead within ten working days after.}

P.J. Keane J