Our legal department, made up of lawyers specialising in construction defects, explains the concept of continuing damage and cites a number of illustrative judgments on the subject.
Continuing damage is damage that occurs successively and over a prolonged period, so that a period of time must be allowed to pass before the consequences of the causal event or act can be assessed financially. Therefore, the limitation period will not start to run until the final outcome has occurred. This may be, for example, differential settlement that has not stopped, or water ingress in a home that keeps appearing and affecting the property, where the loss cannot be determined until it ends.
It is at that point that the claimant can assess the loss suffered, normally by means of an expert report, and weigh up the compensation to be claimed. This is the position of the Supreme Court in its judgments of 30 November 2011 and 14 July 2010, among many others.
On the determination of loss in an expert assessment, the Audiencia Provincial de La Rioja (Provincial Court), in its judgment of 1 March 1999, states that:
It is settled doctrine that the awareness or knowledge of the injured party (article 1968.2 of the Civil Code) must extend to the effects produced by the event when there is a lapse of time between its occurrence and its outcome; moreover, such knowledge can only be obtained through technical reports or opinions, in which case it is their issue or delivery that determines the start of the limitation period. In this regard, case law has repeatedly held that the limitation period does not begin to run until the full extent of the damage is quantitatively known to the injured party. Indeed, as long as the damage continues to occur and the cause of the unlawful outcome has not disappeared, the limitation period does not begin.
The claimant’s knowledge of the damage must be dated to the report accompanying the lawsuit (dated 1 May 1996); since it took a month to prepare that report, which is when the claimant received it, that delivery may be considered to have occurred afterwards. (….).
It should be noted, however, that this applies «where it is not possible to divide the ongoing series into different stages or separate events» (Supreme Court judgments of 20 November 2007). In other words, where the consequences of the damage have had different effects over time and can be distinguished by periods.
Moreover, the doctrine of continuing damage is limited to cases in which the cause of the damage continues to operate effectively and progressively, preventing its final results from being known, so that the limitation period only begins when the final result occurs. This differs from permanent damage, where the damage is caused at a specific moment by the defendant’s conduct but persists over time and may even worsen due to factors wholly unrelated to the defendant’s acts or omissions; in that case the limitation period starts to run “from when the injured party became aware of it”, as provided in article 1968.2 of the Civil Code (LEG 1889, 27), that is, from when they had full knowledge of it and could gauge its significance through a reasonable prognosis. Consequently, the period cannot always be counted from the first manifestation of the defect through any damage, but nor can it be claimed in every case that the period has not started on the grounds that the damage recurs or continues.
In this respect, it is very important to be able to identify and prove that a building defect constitutes continuing damage, since whether the limitation period has expired, and therefore whether the claim is viable, depends on proving this.
Below are extracts from some judgments in which the limitation defence was dismissed because the damage was continuing:
AP Madrid, Section 12, 14/2019, of 22 January
The lack of perimeter drainage and the defective installation of the waterproofing cause damp that penetrates the home, which must be regarded as continuing damage, meaning that the limitation period has not begun.
AP Madrid, Section 18, 227/2018, of 18 June
The damage to the irrigation system is regarded as continuing damage because pipes continue to burst, so the limitation period had not begun.
AP Toledo, Section 2, 451/2016, of 28 June
The defects affected habitability, so their guarantee period is three years; they were also continuing damage, so the limitation period does not begin until the final damage occurs.
If you have any questions about whether the damage you are suffering can be classed as continuing damage, meaning that the limitation period has not expired, get in touch with us.
DPcon Reclamación Daños Constructivos.
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