Scottish Court of Session Decisions

The relevant facts which emerge from this proof are, in my opinion, as follows -

In the foregoing circumstances I consider that Mr Cullen Q.C., for the pursuer, was entirely well founded in his primary submission that it was not until well after 1 July 1993 that the pursuer first became aware that his injuries were "sufficiently serious to justify his bringing an action of damages" within the meaning of that phrase as it appears in Section 17(2)(b)(i) of the Prescription and Limitation (Scotland) Act 1973, as amended. Although the pursuer very frankly said that he did not himself know, or perhaps understand, why he had allowed 21/2 years to pass before getting a claim form from his trade union representative, I am satisfied that, at least in the early stages, the pursuer's only motivation was to get back to work and he expected to do that within a relatively short period. In the meantime he was, of course, being paid his normal wage.

In reaching the view above expressed I have found helpful the reasoning and decision of Lord Caplan in Blake v Lothian Health Board 1993 S.L.T. 1248 and, like him, I find it unnecessary, for purposes of the present case, to decide whether the test to be applied under Section 17(2)(b)(i) is an objective or a subjective one. I am satisfied that both would be met on the evidence which I have heard. When, however, that decision has to be made it seems to me that a comparison of the present wording of Section 17(2)(b)(i) with the original (unamended) wording of the provisions of Section 22(3) of the Act might well be instructive.

If I am wrong in holding that the present action is not time-barred through the operation of Section 17 of the 1973 Act, than it seems to me that this would then be a very clear case for the operation of Section 19A of the Act. The pursuer is faultless and so, indeed, are his legal advisers; - with the sole exception of failing to note that the Water Services function of Grampian Regional Council had been transferred, not to its Local Authority statutory successors, but to an autonomous body, in the shape of the present defenders. The accident was reported on the same day it happened and medical investigations were carried out on behalf of the defenders' predecessors within a matter of months. As it was, the summons was served on the present defenders only eight days after the expiry of the triennium, and this could have made no material difference to the evidence available to the defenders. In all these circumstances I confess that I can hardly think of a clearer case for the application of Section 19A of the 1973 Act. It was suggested by Mr McSporran, for the defenders, that an alternative remedy would be available against the solicitors and/or counsel who drafted the summons directed against Aberdeenshire Council. In that connection it may, I think, be an interesting question whether the solicitors and/or counsel could elide liability for failing to know the content and/or effect of a Public General Statute which affected an area of the law in which they practised but, even if the answer to that question were in the negative, there would remain the complication, in the present case, that liability might fall on one or other or both. In any event, the availability of even a foolproof alternative remedy would not, in my opinion, affect the overall equities of the case. It only remains to add that, as I see it, the views above expressed are in full accord with the various authorities cited to me and, in particular, Donald v Rutherford 1984 S.L.T. 70, per Lord Cameron at page 75; Kidd v Grampian Health Board 1994 S.L.T. 267, per Lord Morton of Shuna at page 269F, and Hartley v Birmingham City District Council [1992]1 W.L.R. 968.

In the result, for all the reasons given above I shall uphold the fourth, which failing the third, plea-in-law for the pursuer, repel the first plea-in-law for the defenders and quoad ultra send the case to proof before answer.