latent damage

damage that is not immediately obvious. The phenomenon is important in relation to tort and delict and, indeed, contract, where a loss is suffered some time after the conduct or omission (or breach of contract) that brings it about. It is important because although in theory once there is damage in breach of duty there is liability; in the case of latent damage, the period of time between the defendant's conduct and the damage may be so long that justice suggests that the plaintiff should be relieved. Accordingly, the issue becomes one of prescription or limitation.

In relation to personal injuries in both England and Scotland, the three-year limitation does not begin to run until it can be said that the plaintiff had real and sufficient knowledge (as defined separately and in detail in both jurisdictions) that he had a legal claim for injuries. See Limitation Act 198 0 (as amended); Prescriptions and Limitation (Scotland) Act 1973 (as amended).

So far as claims that are not for personal injuries are concerned (that is, cases for damage to property or economic losses) there are important differences between England and Scotland. In England the period is six years. The Latent Damage Act 1986 amended the principal Act to apply a time limited of six years from the date when the action accrued (perhaps the day when a chimney begins to crack) or three years from the time when the plaintiff knew or ought to have known about the damage (perhaps the day when smoke stopped coming out of the chimney or parts of the chimney began to fall into the garden), whichever is the later. There is, however, a 'long-stop' period of 15 years from the breach of duty to prevent very stale claims coming to court.

In Scotland, the general period in question is five years. Scots law does incorporate a provision for discoverability and a long-stop of 20 years.

In both England and Scotland the long-stop period in respect of claims relating to damage caused by defective products in terms of the Consumer Protection Act 1987 is only ten years.