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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Coll (AP) v Russell & Anor [1999] ScotCS 113 (13 May 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/113.html Cite as: 1999 SCLR 862, [1999] ScotCS 113

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In this action the pursuer seeks damages from the defenders jointly and severally or severally for personal injuries said to have been sustained by him, which are described in his averments in condescendence 4. The alleged injuries are said to have resulted from oral surgery performed on the pursuer in September 1992, in the circumstances described in condescendence 2. It is there claimed that, following a consultation with his dentist in 1992 at which he was advised that two abnormal conditions were present in his jaws and mouth, he was referred for a specialist opinion to the Victoria Infirmary, Glasgow, operated by the second defenders. He avers that initial investigations were carried out there, including x-rays and the preparation of impressions and models of his teeth. Thereafter the pursuer was seen by the first defender, who was at the material time acting in the course of his employment with the second defenders. The pursuer claims that the first defender advised him that he needed oral surgery to correct the conditions mentioned. It is said that the pursuer inquired of the first defender whether there were any likely side effects of such surgery and was advised that there were none. He inquired further whether any possible complications attached to the performance of such surgery and was advised only that there might be a transient period of slight numbness in the jaw. The pursuer avers that, on the basis of this advice by the first defender, he consented to undergo the surgery proposed.

The pursuer claims that, contrary to what he was told, it was a likely consequence of such surgery that the patient's facial appearance would be altered, often for the worse. Further, it was an established complication of such surgery that damage was apt to occur to the dental nerve, or to its main trunk, the inferior alveolar nerve, leading to permanent altered sensation. He claims that no consultant oral surgeon of ordinary competence would have failed to advise a patient of either of the foregoing matters before seeking his consent to such treatment. Further the pursuer avers that, had he been advised of either of the foregoing matters, he would not have agreed to undergo surgery. As appears from condescendence 4, it is claimed that certain deleterious consequences followed the oral surgery which the pursuer received, in respect of which he now claims damages. The pursuer's case of fault is set forth in detail in condescendence 3.

The summons in the present action was signetted on 10 December 1996 and thereafter served upon the defenders. Against this background the defenders now claim that the pursuer's right of action has been extinguished by the passage of time, by virtue of section 17 of the Prescription and Limitation (Scotland) Act 1973. Their plea-in-law 1 seeks dismissal of the action on that ground. In condescendence 5 of the Closed Record, as amended, the pursuer responds to the defenders' case of

time-bar, to which I refer for their details. He there makes a number of averments concerning the situation following upon the surgery concerned and, in particular, concerning consultations between the pursuer and the first defender at which the pursuer's ongoing symptoms were discussed. In about June 1995, the pursuer avers that he was referred by the first defender to the Dental Hospital, Sauchiehall Street, Glasgow, where he saw a Dr Still, because of his continuing pain. Thereafter the pursuer claims that he requested a further meeting with the first defender. It took place on 16 November 1995, in the presence of Dr Still. The pursuer thereafter makes the following averments:

When this action came before me in the procedure roll, counsel for the defenders moved me to dismiss the action by sustaining the defenders' pleas-in-law 1 and 2. Their plea-in-law 2 is a general relevancy plea. I was also invited to repel the pursuer's pleas-in-law. It was submitted that the action was prima facie time barred under section 17(2)(a) of the Act of 1973. It was contended that the pursuer's averments in relation to section 17(2)(b)(i) were irrelevant, as were also his averments in relation to section 19A of the Act. It was a matter of agreement that the action was prima facie time-barred. In these circumstances, it was for the pursuer to aver a relevant case under section 17(2). In this case, the pursuer appeared to rely upon the provisions of section 17(2)(b)(i). Having regard to the terms of that enactment, it was necessary for the pursuer to make averments about his actual knowledge of the subject matter of paragraph (i); it was also necessary for him to make relevant averments about reasonable practicability, in relation to the provisions of paragraph (b). The defenders' submission was, quite simply, that he had not done that. The pursuer's averments dealt with the matter of his actual knowledge, but did no more. The issue of reasonable practicability was not addressed.

In connection with the foregoing submission, counsel for the defenders referred to a number of authorities, the first of which was Hamill v Newalls Insulation Company Limited 1987 S.L.T.478. This was a death case, to which the provisions of section 18(2) of the Act of 1973 applied. It was there held that it was for a person seeking to rely on the provisions of that section to aver, and if necessary, prove facts and circumstances relating not only to the date when he first became aware that the death was attributable to the act or omission of the defenders, but also to the date when it would have been reasonably practicable for him to have become aware of the necessary facts. A similar issue arose in Webb v B.P. Petroleum Development Limited 1988 S.L.T.775, the Court holding that it was essential for the pursuer to make averments explaining why it was not reasonably practicable for him to know the crucial fact by a date three years before the date of a Minute of Amendment. The most recent case in which such issues were discussed was Cowan v Toffolo Jackson & Company Limited 1998 S.L.T.1000. A similar approach was followed in that case.

Turning to examine the pursuer's averments in this case, counsel for the defenders submitted that there were no averments related to the issue of reasonable practicability; the pleadings had been framed with only the issue of actual knowledge in mind. In condescendence 5, no date was averred in relation to the matter of the pursuer's belief that his symptoms were temporary; furthermore, no dates were mentioned in connection with the history of the pursuer's symptoms or the advice which he had received. There were no averments at all relating to the issue of the pursuer's appearance following the operation. In addition, there was no attempt in averment to relate the pursuer's experience of symptoms following the operation to the "transient period" referred to in condescendence 2 as one during which, according to the advice given to the pursuer before the operation, he might experience slight numbness in the jaw. It was plain from Cowan v Toffolo Jackson & Company Limited that a person was not entitled to go on relying on reassurances given regarding a condition by others. In Elliot v J. & C. Finney 1989 S.L.T.208, a definition was furnished of the words "reasonably practicable" used in the context of the Act of 1973. It was there said at page 210L that it would be reasonably practicable for a pursuer to become aware of the necessary information if he would be able to do so without excessive expenditure of time, effort or money. The issue was not whether a pursuer had a reasonable excuse for not asking material questions. In the whole circumstances, there were no relevant averments of a case under section 17(2)(b)(i) of the Act of 1973.

Counsel for the defenders went on to argue that, if the submission just made by her were correct, then the pursuer had to rely upon the provisions of section 19A of the same Act. That section empowered the Court to exercise a discretion to allow a pursuer to bring an action which would otherwise be time-barred, if it seemed to it equitable to do so. That involved the necessity of looking at the whole circumstances of the case. It was submitted that that power ought to be used sparingly. In that connection reference was made to Carson v Howard Doris Limited 1981 S.C.278 at 282. The onus was on the pursuer to satisfy the Court that it was equitable to allow him to proceed with the action. In that connection reference was made to Munro v Anderson-Grice Engineering Company Limited 1983 S.L.T.295, at page 298. It was obvious from Wilson v Telling (Northern) Limited 1996 S.L.T.380 at page 382 that a balancing exercise had to be carried out. Before that could be done, there had to be material in the pursuer's averments upon the basis of which that could be done. Looking at the averments made here in condescendence 5 by the pursuer in this regard, very little was averred. There was a gap in the narrative of the pursuer's actions between 1992 and 1995. Only in 1996 did the pursuer aver that he had consulted a solicitor. If the discretion were exercised in the pursuer's favour, the defenders would lose a cast iron defence to the action. Upon the basis of what the pursuer had averred, there was insufficient to entitle the Court to exercise its discretion in his favour. Accordingly, in the whole circumstances the action should be dismissed.

Counsel for the pursuer invited me to refuse the defenders' motion and on the contrary to allow a proof before answer, leaving all pleas standing; alternatively, a preliminary proof on time bar might be allowed. However, he made clear that he did not prefer the latter possibility; the holding of a limited proof was not attractive in the circumstances of the present case, since it might be necessary to hold a proof on the merits of the claim subsequently, which would cover very much of the same ground.

Turning to the substance of the argument, he said that the pursuer sought to rely on section 17(2)(b)(i) of the Act of 1973, in the first instance. In connection with that position, the pursuer's case was that time did not begin to run until 16 November 1995, in consequence of which the action was not time-barred. In that connection, it was plain from the averments in condescendence 5 that the pursuer was offering to prove that he was in fact unaware of the considerations set forth in paragraph (i) of the enactment relied upon. The submission made in relation to the second requirement of paragraph (b) was that a "reasonably practicable" case was implicit in the pursuer's pleadings. In connection with these submissions, counsel for the pursuer referred to Mackie v Currie 1991 S.L.T.407, at page 409. That case made clear that the issue was whether injuries sustained were de minimis. However, in Shuttleton v Duncan Stewart & Company Limited 1996 S.L.T.517 at page 518, the view was expressed that the words in subparagraph (i) of the section were not simply equivalent to something greater than the de minimis level. A similar view was taken in Blake v Lothian Health Board 1993 S.L.T.1248, where it was explained that the question was whether a reasonable claimant in all the circumstances would consider that the facts about the injury which were known or could be ascertained rendered it worthwhile to raise an action. In the present case, the pursuer was saying that he had been reassured following the operation that he would recover and that his symptoms were not likely to be permanent; that advice was maintained until 16 November 1995. That was a circumstance of importance here, which the Court should be able to examine at an inquiry. The pursuer averred that he had attended for out-patient review following the operation on several occasions, when he was informed that a normal recovery would take time. It had been complained that these averments lacked dates. While that was true, it ought to be recognised that they were based upon the pursuer's recollection of events. What these averments amounted to was that the pursuer was saying that, between the date of the operation and 16 November 1995, he was told by the first defender that he would recover. On the latter date, for the first time, he was told otherwise. On being pressed about the "reasonably practicable" criterion, counsel for the pursuer submitted that the pursuer had averred circumstances from which the Court could infer that it had not been "reasonably practicable" for him to have become aware of the relevant fact before 16 November 1995. While it was accepted that Elliot v J & C Finney contained an exposition of the words "reasonably practicable". It had to be realised that that exposition was given against the background of a case which did not involve a medical question. In Cowan v Toffolo Jackson & Company Limited, at page 1002, it was recognised that there might be a reference in pleadings to "reasonable practicability" by inference. In the present case, there was a basis for the inference that it was not "reasonably practicable" for the pursuer to have become aware of the matters referred to in paragraph (i) before 16 November 1995. The pursuer was founding upon that date in connection with both actual knowledge and as to when it was "reasonably practicable" for him to become aware of the relevant fact. On the assumption that the Court could not accept that contention, then the alternative date to which the "reasonably practicable" criterion applied was June 1995, when the pursuer was first referred to the Glasgow Dental Hospital, where he saw Dr Still. Lowe v Grampian Health Board 1998 S.L.T.731 showed th

Turning to the criticisms made of the pursuer's case under section 19A of the Act of 1973, it was submitted that that part of the pursuer's case also was worthy of inquiry. Reliance had been placed by the defenders on observations in Carson v Howard Doris Limited to the effect that the Court's power under section 19A should be used "sparingly". It was submitted that no such qualification should be read into the provisions of that section; the only question in such cases was whether it was equitable to allow a pursuer to bring an action notwithstanding the time bar provisions. The circumstances relied on by the pursuer here for the operation of section 19A in his favour were these. Firstly, the explanation for the delay of the pursuer in raising an action and, on this assumption, that delay running beyond the triennium, lay in the fact that, throughout, the first defender had been reassuring the pursuer. Secondly, no prejudice had been averred by the defenders as likely to flow from the operation of the section in the pursuer's favour, save for the loss by them of a cast iron defence of time-bar. No averments were made of what might be called evidential prejudice. In the third place, the pursuer would be prejudiced if the section was not operated in his favour, in respect that he had no alternative remedy, if his remedy against the defenders was held to have been extinguished by the passage of time. He had no opportunity of claiming his loss from a solicitor, as was a possibility in some kinds of case. In the fourth place, it was averred by the pursuer that he had been ignorant of the existence of the triennium. In connection with this part of his submissions, counsel for the pursuer referred to a number of authorities. In Comber v Greater Glasgow Health Board 1989 S.L.T.639 the Court had recognised that the pursuer's ignorance of legal matters should be taken into account. In Kane v Argyll & Clyde Health Board 1997 S.L.T.965, there had been a preliminary proof in relation to the possible operation of section 19A. It was obvious from what was said in that case that ignorance of the law was not to be regarded as fatal to a pursuer's claim. In Ferla v The Secretary of State for Scotland 1995 S.L.T.662, a pursuer's case under section 17(2)(b) had been rejected; however, his case for relief under section 19A was sustained after a preliminary proof. A circumstance considered relevant was the fact that the pursuer had received unsatisfactory medical advice.

In reply, counsel for the defenders said, in relation to the suggestion that the pursuer should be allowed to give his explanations, that it was not averred by him that he had been continually reassured by the first defender. There appeared to be a gap in the history of the matter. The pursuer's pleadings had already been amended, in the face of a note of argument on behalf of the defenders, from which it could be inferred that the pursuer had averred all that was possible. In relation to the pursuer's case under section 19A, it was submitted that the pursuer's averments were completely skeletal. They did not justify a proof. Clark v McLean 1994 S.C.410, at page 413, showed that, in appropriate circumstances, a decision on a case under section 19A of the Act would be taken without inquiry.

I deal, first of all, with the issues which were debated in relation to section 17(2)(b)(i) of the Act of 1973. The starting point of the debate was the recognition by all parties that the provisions of section 17(2)(a), the fact that the pursuer's operation, about the consequences of which he complains, was performed in September 1992, and the fact that this action was not raised until 10 December 1996 entailed that the action would be time-barred, unless the pursuer could rely upon the provisions of subparagraph (b) of section 17(2). In these circumstances, the question comes to be whether the pursuer has averred a relevant case under that provision. The provision itself refers to "the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the Court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts - (i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;". The assumption upon which the debate took place was that, if the symptoms suffered by the pursuer following his operation were temporary and would have therefore resolved, they would not be sufficiently serious to justify his bringing an action of damages on the assumption mentioned in the provision; however, if those symptoms were permanent, they would be sufficiently serious to justify the pursuer bringing an action of damages on the assumption stated. Accordingly, attention was focused upon the issue of knowledge of the permanent nature of the symptoms from which the pursuer is said to suffer. As regards the pursuer's actual knowledge of that matter, he avers and offers to prove that "it was not until November 1995 that the pursuer realised his symptoms were permanent. It was not until about November 1995 that the pursuer became aware that his condition was sufficiently serious to justify bringing an action of damages". Having regard to that plain averment, no issue arises in relation to the relevance of his pleadings as to the date when he acquired actual knowledge of the material circumstances. Thus, controversy surrounded the matter of the adequacy of the pursuer's averments in relation to "the date .... on which, in the opinion of the Court, it would have been reasonably practicable for him in all the circumstances to become, aware of" those facts.

In Hamill v Newalls Insulation Company Limited, Lord Allanbridge made clear that in a situation where reliance was being placed upon the similar provisions of section 18(2) of the Act of 1973, a party relying on those provisions "will require to aver the particular circumstances in his pleadings upon which he relies to establish the earliest date when it would have been reasonably practicable for him to have become aware of the necessary facts". (See page 479L). A similar view was taken by Lord Weir in Webb v B.P. Petroleum Development Limited, at page 776J-L. Referring to an argument by the pursuer in that case, he said:

More recently, in Cowan v Toffolo Jackson & Company Limited, Lord Nimmo Smith addressed the same problems. At page 1002F he said:

In the passage which I have quoted, Lord Nimmo Smith appears to accept that it might be sufficient if a pursuer, in a situation such as this, made reference to the question of reasonable practicability by inference. I am prepared to accept that such a reference might be considered sufficient.

An issue arises, in the light of the arguments, as to what is meant, in the present context, by the words "reasonably practicable". Counsel for the pursuer relied upon the observations of Lord Sutherland in Elliot v J. & C. Finney. In relation to those words, in the context of section 17(2) of the Act of 1973, Lord Sutherland said:

I respectfully accept that approach to the language used in section 17(2)(a). I was not impressed by counsel for the pursuer's attempt to argue that that approach was inappropriate in the context of what might be described as medical facts.

In the light of these authorities, the question for me is whether there are to be found in the pursuer's pleadings averments, either direct or by inference, as to reasonable practicability in the context of the pursuer's situation. I have come to the conclusion that there are not. I agree with the contention made by counsel for the pursuer that the pleadings in this case relating to this aspect of the litigation appear to have been framed only with the issue of the pursuer's actual knowledge in mind. I can find nothing in the pursuer's averments to suggest that it would not have been reasonably practicable for him to have become aware of the relevant facts at any time following his operation had he sought information from an appropriate source. It appears to me that the pursuer's averments in condescendence 5, at best for him, come to no more than a suggestion that he had a reasonable excuse for not having become aware of those facts. That view of the pursuer's case was confirmed in my mind by the way in which the position of the pursuer was explained in argument by his counsel. The essence of what was said was that, having regard to the fact that the pursuer continued to receive post-operative treatment and advice from the first defender, it was not surprising that he had not sought advice from any other source. In all these circumstances I hold that the pursuer has not averred a relevant case in relation to reasonable practicability in the context of section 17(2)(b), an essential requirement for successful reliance on that provision. It follows from that conclusion that the present action must be seen as time-barred unless the pursuer is able to demonstrate that he has averred a relevant case under section 19A of the Act of 1973. To that question I now turn.

During the course of the debate, reference was made to the observations of Lord Ross, in the Outer House, in Carson v Howard Doris Limited, where he expressed the opinion that "the power conferred by section 19A should be exercised sparingly and with restraint". With great respect to his Lordship's observation, I doubt whether it is appropriate to attempt to give effect to any such policy objective in considering a case sought to be brought under section 19A. In my opinion, the only question which arises in such cases is that reflected in the statutory provisions themselves. Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of the Act, to bring an action the Court may allow him to do so, "if it seems to it equitable to do so". When the matter arises as a question of relevance, it appears to me that the observations of Lord Grieve in Munro v Anderson-Grice Engineering Company Limited at page 298 are of assistance. His Lordship there made clear that there had to be an adequate basis in averment of circumstances which would entitle the Court to exercise its discretion under section 19A. In Wilson v Telling (Northern) Limited, Lord McCluskey at page 382 made it clear that what had to be undertaken in such cases was in the nature of a balancing exercise. Factors in favour of the pursuer had to be weighed against the loss to the defenders which they would suffer if the power under section 19A was exercised, depriving them of a cast iron defence. As was made plain in Clark v McLean, at page 413, the onus was on a pursuer to satisfy the Court in terms of section 19A(1); the first question which the Court had to determine in such cases was whether the pursuer's case in relation to the application of that section was relevant. If it was relevant, the Court had to go on to consider whether inquiry was necessary or whether there might be sufficient agreement between the parties on the material facts for it to decide upon the applicability of the section without inquiry.

Addressing the question of relevance in this case, one finds that the pursuer's averments relevant to the matter are exiguous in the extreme. They are to the following effect:

I have come to the conclusion that these averments, even in the context of the other averments concerning the history of the pursuer's problems to be found in the earlier part of condescendence 5, do not amount to a relevant case for the exercise of the Court's discretion under section 19A of the Act. It would probably be possible, in very many cases in which reliance requires to be placed on this section, for a pursuer to say that he was not aware of the application of a three year time limitation period to personal injuries actions. If a pursuer was aware of that consideration, then one would suppose that he would ordinarily have taken action in order to avoid its impact on his particular case. As regards the issue of consulting a solicitor, the pursuer's averments here contain no explanation whatever as to why he did not consult a solicitor until after the expiry of the triennium. Furthermore, it is not made clear when in 1996 he did in fact consult a solicitor, or what circumstances precipitated that course of action. In addition, I am bound to observe that the pursuer's averments in relation to the progress of his problems between the time of his operation and the critical meeting between the pursuer and the first defender, in the presence of Dr Still, on 16 November 1995, are unspecific as to the dates on which consultations were held with the first defender and advice tendered to the pursuer. While it is true that in condescendence 5 the pursuer avers that he has no right of action against any other party, it has to be recognised that, if the discretion conferred in section 19A of the Act were exercised in his favour, the defenders would be deprived of a cast iron defence.

In the light of the conclusions which I have reached, it follows that the action must be dismissed. Accordingly I shall sustain pleas-in-law 1 and 2 for the defenders, repel pleas-in-law 3 and 4 for the pursuer and dismiss the action.