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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 124
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OPINION OF LORD
CARLOWAY
in causa
GUY DARRELL
MINSHULL
Pursuer
against
THE ADVOCATE
GENERAL,
Defender
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Party
Defender: Webster; Morton Fraser
10 July 2007
1. The Action
[1] On
13 February 2004, the
pursuer raised a personal injuries action against the defender. The averments on the merits are in short
compass and, as they remained at the time of the lodging of the closed record
in November 2004, are as follows:
"In or about August 2000 the
pursuer was working in the course of his employment with the Ministry of
Defence, as an Engineer with the Royal Air Force at Lossiemouth. Prior to August 2000, a decision had been
taken, at a meeting of the chief technicians at RAF Bruggen, Germany; to
suspend Cooling Standard Serviceability Tests until all test equipment were available
including pressure indicator levels. The
pursuer was required to carry out a Cooling Standard Serviceabilty Test on a
Sky Shadow ECM Pod. The test equipment
was not available. In addition, the
requirement to have pressure dials was specified in the Sky Shadow maintenance
manual. As the pursuer carried out the
test the accumulator of the cooling system ruptured without warning as a
consequence of which he was hit in the face and mouth with Coolanol 25R
dielectric transfer fluid. The pursuer
was unable to detect the defect in the cooling system owing to a lack of
pressure indicator dials. Said fluid
contains ingredients that are toxic and hazardous to health which was known to
his employers. Following said incident
the pursuer began to experience difficulties with his breathing. He did not know the cause of his
difficulties. Following a CT scan on 14 February 2001 he was advised that
his asthma was most likely related to exposure to irritants at work."
It is no doubt possible to detect a
number of faults in these averments. It
is not easy to follow from them just what the accident involved. The basic position appears to be that the
pursuer claims to have become asthmatic as a result of exposure to cooling
fluid in August 2000 following a rupture in the cooling system of a Pod. The
pursuer explained at the bar that the Pod was a large piece of under-wing radar
equipment fitted to Tornado aircraft. Foreshadowing a possible limitation plea,
the pursuer maintains that it was only "following" a scan on 14 February that
he was informed that his asthma was probably caused by that particular exposure.
[2] No
plea of limitation was tendered by the defender. However, the defender did make averments
about chest problems said to have been suffered by the pursuer over a number of
years, notably difficulties which he had experienced in mid 1997, when he was
diagnosed as asthmatic. The defender
referred to the pursuer attributing his problems to exposure to pigeon
droppings or to paints, both of which occurred during the course of his hobby
of repairing cars. The defender also
made reference to the pursuer having raised the possibility of the cause being
Coolanol 25R, or Activator (T) (another fluid), when he spoke to a consultant
on 6 November 2000. This attribution was
repeated by him at another consultation on 5 February 2001. The defender specifically quoted from a report
of a consultant physician, whom he saw on 2 March 2001, wherein the pursuer is said to have
attributed the onset of his symptoms to exposure to Coolanol during tests on
electronic equipment in August 1997. The
defender further quoted the pursuer as making a similar complaint to a senior
officer also in March 2001.
[3] The
defender's position on the pleadings is clear. The occurrence of an incident in August 2000 is
denied and the defender points to an earlier diagnosis of asthma in mid 1997. Furthermore, on 9 March 2004, prior to the lodging of defences and
shortly after the raising of the action, the defender's agents wrote to the
pursuer's agents as follows:
"In order
to assist us with the investigation of this claim, we would be grateful if you
could confirm whether the initial incident occurred in August 1997 (as
mentioned in pre-litigation correspondence) or in August 2000 (as stated in the
Summons)".
By letter dated 24
March 2004, the pursuer's agents replied:
"The
position is that the incident occurred in August 1997 as was discussed in pre
litigation correspondence. It was not,
however, until February 2001 that Mr Minshull became aware that his exposure to
the coolanol could be the cause of his asthma.
We are uncertain where the date
of August 2000 came from but this is clearly a mistake and we shall take steps
to adjust this when the case proceeds. We
apologise for any confusion which has occurred as a result of this oversight".
2. The Amendment
[4] The
error concerning the date was not corrected at the adjustment stage and, on 11 November 2004, a proof before
answer was allowed and a diet fixed for 4
October 2005. That diet was
discharged unopposed, upon the pursuer's motion, on 17 August, partly because
of unspecified changes in the pursuer's employment position and partly because
further evidence was to be obtained upon the advice of the pursuer's expert
medical witness. A new diet of proof was
set down for 20 June 2006.
[5] On
24 April 2006, the pursuer
lodged a Minute of Amendment (No 17 of process) which sought to alter date of
the accident from "2000" to "1997" and, for the first time, responded to the
defender's detailed averments in answer regarding his pre and post 1997
condition. The defender opposed receipt of the Minute partly on the basis that
the pursuer's case was "time barred".
However, it was received and Answers were lodged on 16 June. These Answers
(No 22) introduced into the pleadings, also for the first time, a plea of limitation
as follows:
"On the pursuer's hypothesis of
fact, it would have been reasonably practicable for him to have raised with his
medical advisers the alleged exposure to Coolanol immediately after it
allegedly occurred. The action was not
raised until about February 2004. The
defender contends that: (i) the action is time barred;..."
The new diet of proof was
discharged. When the pursuer's motion to
amend called on 5 October 2006,
it was dropped at the bar. The defender
explained that this was because it was perceived that a conflict of interest
had arisen, or might arise, between the pursuer and his agents because of the
failure to adjust the date. Although it
is perhaps not immediately obvious how the conflict could have arisen at that
stage, given that allowance of the amendment would have cured any difficulty, the
pursuer's agents withdrew from acting. Since
then, the pursuer has represented himself.
At a By Order hearing on 30 November, the pursuer stated that he would
be proceeding with his action and moving the Minute of Amendment. There were several further By Order
appearances in March and April 2007. Meantime,
a third diet of proof, which had been fixed for 1 May 2007, was discharged on 17 April on the defender's
motion. The reasons stated were, in part,
that a medical expert was not available and, in part, that the status of the
Minute of Amendment remained unclear (i.e. it was not known what the position
with the date of the accident and the limitation plea would be).
[6] On
26 April, a new Minute of Amendment for the pursuer (No 28) was received and
the cause appointed to the By Order roll of 14 June (continued to 20 June) to
determine further procedure, yet a further diet of proof having been fixed for 5
February 2008. This Minute incorporated
much of what had been contained in the earlier Minute; notably the change in
date. It attempted to explain the error
as "typographical" and generally expanded upon the response to the defender's
averments about the pursuer's understanding of the cause of his complaint. The Minute was adjusted to deal with what
were positive averments of limitation in the Answers to the new Minute. These Answers (apparently lodged in advance of
the Minute as No 26) repeat what had been said previously. In their adjusted form, they read:
"...the exposure founded upon
occurred in August 1997. The action was
not raised until 13 February 2004. In any event, the pursuer was aware by at
least 6 November 2000 that he had breathing difficulties of sufficient
seriousness to consult upon, that he had been exposed to Coolanol whilst at
work with the Ministry of Defence and that there might be a causal connection
between the two. Sources of advice about
claims against the Ministry were available to the pursuer during his service
with the Royal Air Force...In the circumstances he was aware, or at least it was
reasonably practicable for the pursuer to have become aware, of the facts
detailed in s. 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973
more than three years prior to the raising of the action."
The reference to 6 November 2000 is to the
consultation of that date (supra) at
which the pursuer is quoted as stating that:
"he believes his symptoms are worse when he is
at work. In particular he raised the
possibility that 2 compounds to which he is exposed, Coolanol 25R and Activator
(T), are the cause of his symptoms" (see the letter from the consultant to the
pursuer's general medical practitioner of the same date in the records, No 7/1).
The defender also referred to the later
consultation on 5 February 2001
at which the pursuer is quoted as being "convinced that his symptoms are
related to a work exposure" (see again No 7/1).
[7] The
pursuer's response is to say that he underwent a number of allergy tests but
that on 16 (sic) November 2000, the
consultant:
"knowing
that all the usual allegens had been eliminated during three years of testing,
asked the pursuer if he was in regular contact with any other substances not
investigated. The pursuer named Coolanol 25R and Activator (T) for the first
time and [the consultant] said he would research these items...The histories
given by the pursuer to...[the consultant] are referred to for their full terms."
In dealing specifically with the limitation plea, the
pursuer avers:
"...the
pursuer was unaware of the cause of his condition until after the CT scan on 14th February 2001 when he
was advised that his asthma was most likely related to exposure to irritants at
work. After the pursuer's exposure to
Coolanol 25R and the development of his symptoms he was diagnosed on 13th November 1997...as
having late onset asthma, an allergic reaction to avian precipitins and
extrinsic alveolitis. The pursuer's
symptoms did not improve and it was suspected that there might be a link
between his dyspeptic symptoms and his asthma.
On or about May 1999 an endoscopy was performed and this showed that his
stomach and oesophagus were normal. On
or about September 1999 specific allergen testing was carried out and these
were negative for avian precipitins and were positive for timothy grass.
Thereafter, considerable doubt was expressed by the pursuer's treating
physicians about the diagnosis of asthma...In light of this uncertainty on or
about September 2000 the pursuer was referred to [the consultant's] Clinic for
further assessment. The pursuer attended
this clinic and underwent further tests and examinations, including a CT scan
on 14th February 2001. On this date the pursuer was advised that he
had asthma and that this could have been caused by inhaling Coolanol 25R. Accordingly, immediately after developing his
symptoms the pursuer sought medical treatment and underwent all necessary tests
and examinations. His treating
physicians found it difficult to diagnosis (sic)
his condition and their diagnosis changed over time. It was reasonable for the pursuer to accept
their initial diagnosis. In such
circumstances, the pursuer was not aware, and it was not reasonably practicable
for him to have been aware, that his injuries were attributable in whole or in
part to an act or omission of those for whom the defender was liable prior to 14th February 2001. The summons...was served...within three years of 14th February 2001. Rightly or wrongly, the "accepted wisdom" in
the Royal Air Force was that an action could not be brought by a serving
member, just as a civilian would resign if suing his employer, and he wished to
avoid any possibility of conflict or bad feeling before release. Accordingly, the pursuer's right of action
has not suffered limitation. Reference
is made to section 17(2)(b) of the Prescription & Limitation (Scotland) Act
1973...Esto the pursuer's right of action has suffered limitation (which is
denied), it would be just and equitable for the court to exercise its
discretion to permit the pursuer to proceed with the present action."
The parties were also at odds in
their pleadings on whether the Pensions Appeal Tribunal had determined that the
pursuer's discharge from the service had been because of occupational asthma
and, if so, the effect of such a decision.
3. Submissions
[8] In
advance of the motion roll hearing, the defender lodged a written Note of
Argument. This refers to the statutory
provisions on limitation and to the general test on the allowance of amendment
in limitation cases (Pompa's Trs v
Magistrates of Edinburgh 1942 SC 119, Lord Justice-Clerk (Cooper) at 125). The defender contended that the Court should exercise
its discretion to refuse to allow the Closed Record to be opened up and amended
in terms of the Minute of Amendment in the whole circumstances of the case.
These circumstances included the history of the case, including the failure by
the pursuer to remedy what had even been pointed out, at an early stage, to his
agents as an error in relation to the date of the accident. They included also the failure by the pursuer
to plead a relevant case which would bring the action within the limitation
period in terms of sections 17(2) or 19A of the Prescription and Limitation
(Scotland) Act 1973 (c 52). Whether the
amendment ought to be allowed, and the defender's contentions on time bar
sustained or repelled, required to be determined on the Motion Roll (Jones v Lanarkshire Health Board 1991 SC
285, Lord Murray at 296-298 under reference to Greenhorn v J Smart & Co 1979 SC 427, Lord President (Emslie)
at 432). The pursuer's pleading that
"The histories given by the pursuer to...[the consultant] are referred to for
their full terms" carried with it an admission that the histories quoted by the
defender had indeed been given. The pursuer
was therefore admitting that, on 6 November, he had raised the possibility that
Coolanol 25R was the cause of his symptoms and, by 5 February 2001, he was convinced that his symptoms were
related to an exposure at work. That
being so, the pursuer was obliged to aver why it was not reasonably practicable
for him to have become aware of the necessary information until a date within
the three year limitation period (Elliot
v J & C Finney 1989 SLT 208, Lord Sutherland at 210 (affirmed 1989 SLT
605); Cowan v Toffolo Jackson & Co
1998 SLT 1000, Lord Nimmo Smith at 1002).
He had not done so. All he was
saying was that he did not positively know that his condition had been caused
by the Coolanol exposure until 14
February 2001. The averments
in relation to the Pensions Appeal Tribunal did not advance matters as that
body required to proceed on the basis that a pension was payable where the
claimant maintained that his condition was attributable to his service unless the
contrary were proved beyond reasonable doubt (The Naval, Miltary and Air Forces
Etc.(Disablement and Death) Service Pensions Order 1983 (1983 SI No. 883)
paragraph 4). In relation to section 19A of the Act, apart from the pension
averments, all that the pursuer averred was that it would not be fair if he
were not allowed to amend. But this was not a case where the pursuer would not
have an alternative remedy were amendment to be refused. He would thereby have been deprived of the
chance of proceeding against the defender and securing a compromise of his
claim. That would have occurred because
his agents had failed to have the record adjusted to alter the date, even
though, had they done so, the defender may still have tendered a plea of limitation.
He had an obvious claim against these
agents. Allowance of the amendment would deprive the defender of what would
otherwise be a complete defence to the action.
The equities favoured refusal of the motion.
[9] The
pursuer rehearsed the history of his chest troubles, dating back to his contact
with guinea pigs in 1987 and his later contact with pigeon droppings and car
paint. Some of this history was on
record. Some was not. In August 1997 he had experienced particular
breathing difficulties after contact with these droppings and had been informed
by a doctor that he had an allergy to them.
Over the next three years he had had frequent examinations, latterly at
the clinic of the consultant referred to above.
In a gloss upon his averments, he maintained at the bar that, when he
had spoken to this consultant in November 2000, he had been told that he did
not have an allergy to birds. Rather,
the consultant had asked him about his work and he had told the consultant
about the Coolanol. The consultant said
that he would research the matter and arranged a further consultation. The pursuer had himself offered to do some
research and had done so at a library on 22 January 2001. He
had undergone a CT scan on 14 February. However,
it had only been on 26 February that he had been told that the Coolanol could
have caused, and very likely did cause, his condition. It had only been on 6 June 2001 that he had received a letter from his
employers stating that he was unfit for anything other than sedentary work
because of his condition. It was this
condition that had resulted in the pursuer being discharged from the Royal Air
Force on 31 July 2003. He had since been awarded a 40% disability
pension based partly on his asthma and partly upon his hypertension.
4. Decision
[10] The Court will generally not permit an amendment which introduces
averments altering the basis of a pursuer's case after the expiry of a time
limit which would operate as a bar to pursuing the amended case in the form of
a new action (Pompa's Trs v Edinburgh
Magistrates (supra), Lord
Justice-Clerk (Cooper) at 125). It does
so under its discretionary power to allow or disallow amendment and not on any
ground of competency (Greenhorn v J Smart
& Co (supra), Lord President
(Emslie) at 432; see also Lord Ordinary (Prosser) in Jones v Lanarkshire Health Board (supra) at 288). In many
cases, where a defender raises limitation in this context, the Court's decision
on whether the amendment should be allowed will be determinative of the
limitation issue. That is because, once
the pleadings have been amended, the averments form the basis of the action and
that action is still deemed to have been raised when it was served on the
defender and not when a particular amendment was allowed (see also Lord Prosser
(supra)). Just as if the pleadings had been adjusted in
a radical manner (to which there can be no objection), the case will still have
been raised within the relevant time limit if, no matter what its original
form, the summons was served within the limit. No plea of limitation as such can therefore be
sustained in that type of situation since section 17 (and hence section 19A) can
have no application. This is, however,
not such a situation.
[11] The pursuer's case in its existing form is that he was involved
in an incident in August 2000. He did
not raise his action until February 2004 and thus his claim was always potentially
subject to the limitation provisions.
However, unless and until the defender chose to raise that issue, the
action could proceed to a determination of its merits, possibly in the
pursuer's favour. The defender did not plead
limitation prior to the record closing. The
pursuer seeks to change the date of the accident to August 1997. That is primarily what the pursuer requires to
do, if his case is to be pled on the basis of the facts as known to him. His detailed averments on his medical history are
a response to the defender's introduction of a limitation plea in the Answers. The pursuer's new case is, like the old one,
still potentially barred by the limitation provisions but the defender has now elected
to found upon these provisions. If the
present amendment is allowed, the issue of limitation is not determined by
incorporation of the new averments into the pleadings. Rather, for the first time, the issue becomes
a live one on the pleadings, standing the content of the Answers. In short, amendment in a case such as this does
not preclude consideration of a limitation plea in due course. Rather, if amendment
is allowed, that plea falls to be argued in the normal way, either after a
debate or a proof, just as if the pleadings had been adjusted in an identical
manner to that proposed in the Minute and Answers. The defender does not lose any right to argue
limitation, and potentially to succeed on that ground, as a result of an
allowance of amendment.
[12] There remains the question of whether the Amendment should be
allowed. Although the procedure so far
has been plagued by delays of one sort or another, and has seen several proof
diets fixed and discharged, there is little problem with the timing of the
amendment, since the proof is more than six months away. The primary issue is, of course, whether the
pursuer should be allowed to alter the date of the accident. In analysing that issue, there are a number
of factors to be considered. These
include whether any material prejudice will arise to the parties if the
amendment were to be allowed. It seems
clear on the one hand that, if the pursuer is not allowed to amend, his action
must ultimately fail. On the other hand,
the manner in which the defender seeks to characterise the amendment is as one
which substitutes an entirely new accident for the one averred on record. Put
another way, the defender maintains that the fundamentals of the pursuer's case
are being altered. However, that is not what the pursuer is attempting to
achieve. The accident is the same one as
he has always averred; involving exposure to Coolanol on a particular occasion
when the pursuer was servicing a Pod. What the pursuer is doing is seeking to change
the date of that accident, since the one included in the summons is a drafting
error of some kind.
[13] It appears from the correspondence (supra) that the defender recognised, at an early stage in the
litigation, that the pursuer had averred a date different from that which had
been discussed in the pre-litigation correspondence. The defender questioned that date and the
pursuer's agents made it clear that the date averred was indeed erroneous and that
it would be changed at adjustment. They
failed to do that but, in such circumstances, it cannot be contended that the
defender was under any delusion about the nature and extent of the pursuer's
case; or at least of what that case ought to have been, and what it was
predicted to become in due course. The
attempt to change the date came later than it should have, but it must have
been anticipated. In short, the pursuer
is neither changing the basis of his case nor introducing a case where the
defender's investigations and preparations have been hampered as a result of a
late change in tack. The defender has
always been aware that there has been only one particular alleged incident and
that, despite the terms of the pleadings, it occurred in August 1997. In these circumstances, it is, on the face of
things, in the interests of justice to allow the amendment of the date in order
properly to focus the issue between the parties in the pleadings.
[14] That leaves the argument about whether the pursuer's new case
is a relevant one. Since the pleadings
now, and in their proposed amended form, involve an incident apparently outwith
the limitation period, it is incumbent upon the pursuer to make specific
relevant averments which warrant the progress of the action outwith that
period. Were the new averments, which
are designed to avoid the effects of limitation, to be regarded as manifestly
irrelevant, then that would be a strong, if not conclusive, factor against
allowing the amendment. However, they do
not appear to fall into that category. The
defender may have a sound case on the facts, standing the terms of the medical
reports quoted. However, on the section
17(2) aspect, it cannot be asserted that, were he to prove all his averments, the
pursuer would necessarily fail to bring his case within the limits provided by
that section. In examining this, regard
must be had to the pleadings and not to any additional facts and circumstances
which the pursuer asserted orally at the bar, but which have not found their way
onto the record. The pursuer does make a
general averment that, in terms of the statutory provision, he was not aware,
and it was not reasonably practicable for him to have been aware, that his
injuries were attributable in whole or in part to an act or omission of his
employers prior to 14th
February 2001. He avers that,
before then, although one possibility might have been that he had asthma caused
by exposure to work related products, his medical advisers had been uncertain
in their diagnoses and it had only been on that latter date (although the
pursuer stated orally that it was later) that Coolanol was the likely culprit. If that state of affairs is established, then
it cannot be asserted with any degree of confidence that the pursuer is still
bound to fail.
[15] The defender points to certain statements made by the pursuer at
medical consultations. The pursuer accepts the accuracy of these statements in
his pleadings by referring to them for their terms. But the fact that he raised the possibility
that two compounds to which he had been exposed might have been the cause of
his symptoms and that he had become convinced that his symptoms were related to
"a work exposure" of some description may not, against a background of varied
diagnoses, merit the conclusion that the pursuer was thereby aware, or might
reasonably have become aware, that his condition had been caused by exposure to
Coolanol during an isolated episode for which his employers were to blame.
[16] In relation to the section 19A case, if the proven facts were
to reveal a history of varied diagnoses, sundry investigations by the parties
into the pursuer's condition, a disablement pension claim, pre-litigation
correspondence involving the August 1997 episode and an eventual case, which
the defender did not initially seek to exclude as time barred, then it would be
open to the Court to decide that, in all the circumstances, it is equitable to
allow the cause to proceed even if it were otherwise subject to the limitation
provisions. At this stage, the case may thus
be seen as falling into the Elliot v J
& C Finney (supra) category,
where the decision was make after a preliminary enquiry into the facts, rather
than into the Cowan v Toffolo Jackson
& Co (supra) type, where the
Lord Ordinary felt sufficiently confident of the state of the pursuer's
pleadings to deal with the issue purely as a matter of relevancy.
[17] In all the circumstances, it is in the interests of justice
that the closed record should be opened up and amended in terms of the Minute
of Amendment and Answers Nos. 28 and 26 of process (as adjusted). That leaves two further considerations. First, as matters stand, the proof before
answer set down for February will deal with all matters on record, including the
defender's new limitation plea. However,
it will be open to the defender to seek to have that allowance of proof
withdrawn and the case sent either to Procedure Roll for a debate on the
relevancy of the limitation averments or to have the allowance of proof restricted
to limitation as a preliminary issue. If
that is desired then the defender should enrol a motion accordingly. Secondly, the current saga appears to have
been caused by the pursuer (and/or his law agents). The procedure from the date of the closing of
the record appears to have been largely unnecessary and caused primarily by a
failure to adjust properly (although the fact that the defender did not raise limitation
until Answers to the Minute were lodged should not be left out of account). There is then the question of the expenses of that
procedure, including two Minutes of Amendment, and what, if any, conditions
should be attached to any award.
Expenses will therefore be reserved expressly meantime.
