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A
loss adjuster appointed by a claimant's insurers in a subrogated claim
has knowledge attributable to the claimant for the purposes of s.14
Limitation Act 1980
This was
an appeal from the decision of HH Judge Alton on 24 January 2003 on
a preliminary issue that a negligence claim was time-barred under s.14A
Limitation Act 1980.
In July
2000 proceedings were brought by an insurer in the name of the appellant,
Graham, ("G") alleging that the respondent firm of geotechnical
engineers, Entec, had negligently advised on both the causes of subsidence
and recommended remedial works in relation to G's bungalow. Between
July 1991 and August 1992 Entec made reports and gave advice on works
to remedy cracks in the bungalow. The remedial works were completed
in August 1992, having been approved and financed by G's insurer. Further
cracking in the bungalow's structure was evident in September 1992.
A loss adjuster appointed by the insurer then carried out further investigations
into the adequacy and suitability of the remedial works. He instructed
a civil/structural engineer, who in turn sought the advice of an arboriculturist
and a geotechnical engineer. The structural engineer finally reported
to the loss adjuster on 30 July 1997. G's insurer felt that the costs
of subsequent necessary rectification works could not be justified.
The bungalow was therefore "written-off", giving rise to the
claim for the wasted costs of the original remedial work.
The judge's
key findings were that:
· The loss adjuster had the requisite knowledge well before July
1997, having been made aware of the contents of the report of the geotechnical
engineer as far back as November 1996; and
· The loss adjuster's knowledge was to be imputed to the claimant
for the purposes of s.14A of the Limitation Act 1980 because he was
an investigator appointed as agent of the insurers.
It followed
that the claim was statute-barred.
The appeal
to reinstate the claim was dismissed. The knowledge of a loss adjuster,
investigating and advising on a claim on behalf of insurers for the
purpose of pursuing a subrogated claim by the insurers, was to be treated
as the knowledge of the insurers for the purposes of s.14A(5) ( which
treats the starting date for reckoning the period of limitation as the
earliest date on which the claimant "or any person in whom the
cause of action was vested before him" first had the requisite
knowledge).
It was
also held that s.14A(10) of the 1980 Act, which states that a person's
knowledge includes knowledge he might reasonably be expected to have
acquired with the help of appropriate expert advice which it is reasonable
to seek (although it does not include knowledge which is only ascertainable
with expert advice provided all reasonable steps to obtain advice have
been taken), was not relevant to the issues in this case. It was decided
that the loss adjuster, who was an experienced loss adjuster, had the
requisite actual knowledge. It was therefore unnecessary to look at
the
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