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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pacetta v Clydesdale Bank Plc [2000] ScotCS 290 (20 November 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/290.html Cite as: [2000] ScotCS 290

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[1] This is an action of reparation in which the pursuer claims damages from her former employers as a result of being exposed to passive smoking. The case called before me on procedure roll in respect of two preliminary pleas at the instance of the defenders relating firstly to time bar and secondly to relevancy and also in respect of the pursuer's first plea-in-law claiming relief under section 19A of the Prescription and Limitation Act 1973 ("the Act") if the view was taken that the action was time barred in terms of section 17 of the Act.

[2] The pursuer's averments disclosed that she was in the employment of the defenders for approximately 10 years up to August 1996, most of which time she worked in the defenders' branch at Springburn, Glasgow. The present action was served on 9 August 1996 and there is no question of time bar applying if the relevant starting point is the date of the pursuer's retirement. The pursuer makes detailed averments of the extent to which she was exposed to the smoking of other employees, she herself being a non-smoker, over the period from her commencement of employment at the various branches in which she worked and particularly in the Springburn branch where she maintained she was confined to a small room and exposed to the smoking of other employees, the room lacking ventilation. However she also avers that in 1992 the defenders introduced a smoking ban and the attack upon the pursuer's position in respect of time bar is based upon that averment and certain additional averments made by the pursuer by amendment now to be found on page 7 of the Closed Record as follows.

[3] Mr Stephenson's, who appeared for the defenders, basic position was that whatever may have been the position up to 1992 once the ban was imposed a changed situation existed and the pursuer's averments which I have just quoted were not sufficient in either specification or substance to suggest that exposure which may have existed prior to 1992 continued right up to 1996 so as to create the presence of a continuing act or omission in terms of section 17 of the Act. Even if, he submitted, the averments that have been quoted were an attempt to base the notion of continuation, they were far too inspecific to allow a proof on the preliminary question of time bar.

[4] Mr H H Campbell, Q.C., for the pursuer countered this by pointing to the general state of the pursuer's averments which were to the effect that she was continually exposed to passive smoking throughout her employment period and while there may have been a change of policy in 1992 the pursuer's position on averment was that nothing in fact changed. The averments in question which I have quoted were simply designed to reinforce that position. At the very least he submitted the matter should be sent forward to proof with the averments in their entirety and if necessary the defenders' plea as to time bar standing. He accepted that the defenders should at least retain the opportunity to try and argue that there was no exposure to the noxious substance to any material extent beyond 1992.

[5] With this latter position I agree in as much that it seems to me that as presently advised it would be premature to determine the issue of time bar as a matter of relevancy of the averments in question when the pursuer's essential case at least admits the proposition of exposure throughout her employment to passive smoking notwithstanding the change of policy in 1992. I am reinforced in this approach by the case of Mather v British Telecommunications plc, (unreported 30 May 2000) where the facts disclose that the pursuer in fact went off work some four months before actually retiring which period unless included in the computation of the three year period would have rendered the action time barred. The argument in that case was that since the pursuer was no longer exposed to the stressful conditions at work because she was off work, the exposure had thus ceased when she went off work and that was the relevant date. However Lord Osborne held that during the ensuing period when she was still employed, the failure on the part of the employers to address her illness amounted to a continuing omission on their part, thus extending the relevant period for the computation of a time bar question. It is immediately apparent this case is a fortiori the present one where the pursuer avers a continuing exposure of the same problem.

[6] In these circumstances I am not prepared to sustain the defenders' plea-in-law in respect of time bar at this stage but will allow it to go to general proof before answer.

[7] I should say at this stage that the pursuer drew my attention to an averment in Condescendence 8 alleging ignorance on the part of the pursuer as to the cause of her illness until she was medically examined upon retirement. Counsel accepted this was a maverick averment and that it required to be deleted, being inconsistent with the case generally disclosed on record that she had been exposed over a number of years to passive smoking which she knew had aggravated her illness, hence her complaints. I am prepared to comply with this request and ignore the averment which will be deleted.

[8] Since counsel for the defenders put in issue the question of section 17A assuming that I had agreed with him that the case was prima facie time barred, I am required also to deal with this matter. Counsel for the defenders submitted as a matter of general law under reference to Cowan v Toffolo Jackson 1998 S.L.T.1000 and Nimmo v British Railways Board 1999 S.L.T.778, that parties seeking to invoke the discretion on equitable grounds must aver sufficient facts in order to base or justify such an exercise. In the present case the position of counsel for the defenders was very simple, namely there were no averments whatsoever other than the fact that in essence if the pursuer lost the claim she would be prejudiced. This it was submitted is nothing to the point since it is countered by the fact that if the case proceeds the defenders will suffer prejudice by that reason.

[9] Counsel for the pursuer frankly admitted that he had said very little if anything in this context and I have no hesitation in reaching the view that if the issue turned on the exercise of discretion under section 17A, it would not be appropriate in the absence of the necessary averments for such a discretion to be exercised in this case. If therefore it was relevant to my decision I would have so found in favour of the defenders, and in that context sustained the plea of time bar.

[10] I turn now to deal with the defenders' attack upon the relevancy of the pursuer's case, in particular relating to the grounds of fault.

[11] Counsel first of all attacked the relevancy of the statutory case under the Office, Shops and Railway Premises Act 1963, section 7. He submitted that the words "effective and suitable" which are to be found in that section implied or inferred an essence of foreseeability of risk, an issue which the pursuer by averment totally failed to address. With regard to the common law position in Condescendence 5 he submitted that once the pursuer had averred a duty to maintain ventilation by the opening of windows or doors the further provisions called for by the pursuer in the averments that followed on page 23 in Condescendence 5 were superfluous and therefore irrelevant.

[12] I was referred to the case of Rae v Strathclyde Joint Police Board initially reported in 1998 .S.L.T.292 and subsequently at a further procedure roll reported in an unreported judgment dated 9 March 1999. That case has very similar characteristics to the present and apparently has been to the Division twice before ultimately a proof before answer was allowed after amendment. It is to be noted that in the first decision Lord Bonomy, albeit obiter, affirmed the notion that foreseeability was relevant to the issues raised by section 7 of the statute, although I have to note that by the time he finally allowed a proof before answer generally that issue seems to have disappeared. It seems there is little authority on the point although reference was made to Mortimer v Safeway plc 1998 S.L.T.885 where a provision in the legislation relating to lighting was considered and found to be absolute.

[13] I have to say at once that I do not accept there is any element of foreseeability to be found within the confines of section 7 of the 1963 Act. In my opinion that section is looking at a result which requires to be achieved and if it is not there is a breach of the section even if no harm is done in itself. That issue is to be determined by reference to causation. In these circumstances I am entirely satisfied that the pursuer's averments in Condescendence 6 are relevant for inquiry upon the basis that they simply aver that nothing was done to achieve ventilation and thus the section was breached.

[14] I am also satisfied it is perfectly appropriate for the pursuer in addition to averring simple remedies like the opening of a window or door to go on to aver more detailed requirements upon the basis that any pursuer is entitled to make a number of averments of duty in the hope that at least one will stick. Furthermore the closing averments in Condescendence 5 are merely an attempt to particularise the case in relation to the pursuer because she made complaints against the general background that in any event even if she had not so complained the defenders were still breaching their common law duties of care by failing to take precautions in respect of passive smoking. Since no attempt is made at this stage to suggest the pursuer has not made sufficient averments to justify the general risk and a requirement to take precautions it seems to me the pursuer's case is more than adequate to go to inquiry on these issues.

[15] Finally, the defenders' counsel made an attack upon the pursuer's averments of loss on the basis they failed to give adequate notice as to whether the pursuer's case was one of her illness being caused by exposure to passive smoking or was rather merely an exacerbation of an existing or latent condition.

[16] I have to say that on the face of the pursuer's own averments there might be a question under this issue but looking at the matter across the board and also considering the detailed allegations made by the defenders themselves as to the pursuer's medical history and at least a possibility, if not higher, that her problems were caused by other allergies, there can be little doubt to my mind that the defenders had adequate notice against the pursuer's general denial of those averments that the pursuer is making a case of actual causation. In any event it seems to me the matter is immaterial because the real issue before the Court at proof will be the extent to which, if at all, the doctors can assert that the pursuer's problems would have occurred in any event without reference to passive smoking. As soon as that phenomenon is found as a medical factor featured in the pursuer's case history it seems to me not to matter whether it was initial cause or made in exacerbation. So long as there was a material contribution the pursuer would succeed and if she fails to establish that she will of course fail.

[17] In all these circumstances with the exception of the issue under section 17A of the Act, I consider the defenders' attack upon the pursuer's case at this stage fails and that the pursuer is entitled to a proof before answer, all pleas standing.

[18] In these circumstances I shall repel the pursuer's first plea-in-law and quoad ultra allow a proof before answer under deletion of the averment to which I have made reference.