Scottish Court of Session Decisions

[1] In this action the pursuer avers that he was employed by the defenders over various periods extending from November 1964 (when he was first employed by the first defenders) until September 1995 (when he ceased employment with the third defenders) and that during those periods his work involved the use of vibrating tools. He maintains that as a result he suffers from Vibration White Finger ("VWF"). He seeks reparation from the defenders for the consequences of that condition.

[2] This action was commenced in June 1999. The defenders, who are jointly represented in the proceedings, have tabled a plea that the action is time-barred by virtue of the limitation provisions contained in section 17(2) of the Prescription and Limitation (Scotland) Act 1973 (as amended). Before me it was stated on their behalf that they were content for present purposes to take the last day of September 1995 as the date on which, in respect of all of the defenders, the relevant act or omission ceased. The pursuer's counsel was content to proceed on the same basis. Accordingly, it is not disputed that a period of some nine months more than three years elapsed between the date referred to in section 17(2)(a) and the date when this action was commenced.

[3] The pursuer, however, maintains that on a sound construction and application to his averments of section 17(2)(b) the action is not time-barred. He maintains that, in any event, the court should exercise its power under section 19A of the Act to allow this action to proceed. He seeks a preliminary proof, which failing a preliminary proof before answer, on both these matters of time-bar. The issue before me was whether the pursuer's averments were such as to entitle him to such an inquiry.

[4] Section 17(2) of the Act provides -

Section 19A(1) provides -

[5] The pursuer avers that he was not aware until 15 March 1999 of the matters enumerated in sub-paragraphs (i) to (iii) of section 17(2)(b) (" the relevant facts"). He identifies that date as the date of "actual" awareness by reference to his having on that date first had sight of a report prepared following a medical examination, which report confirmed in writing a diagnosis of VWF. He also makes averments directed to the date at which, he maintains, it was at the earliest reasonably practicable for him to become aware of the relevant facts. That date (of "constructive" awareness) he fixes at 20 February 1998. Both the averred date of actual awareness and the averred date of constructive awareness thus fall within the three years prior to the commencement of the action.

[6] It will be necessary to return in due course to consider the averments made in respect of the date of constructive awareness. But it is convenient first to consider an argument advanced by Miss O'Brien on behalf of the pursuer on the interpretation of section 17 (2)(b) which, if correct, renders such consideration unnecessary.

[7] Miss O'Brien submitted that for a pursuer to bring himself within

section 17(2)(b) it was unnecessary that he aver (and subsequently prove) both the date of actual awareness and the date of constructive awareness of the relevant facts. These concepts were linked by the disjunctive "or". The alternatives were not followed by the phrase "whichever is the earlier", which would have been expressed had that been the legislative intention; in section 17(2)(a) "whichever is the later" had been expressed. Reading the disjunctive "or" as if it were the conjunctive "and" rendered the statutory provision obscure or devoid of meaning, since two separate dates could not both be the trigger for the running of time. Parliament could not have intended that a pursuer, having averred himself within the statutory extension by setting out the date and circumstances of his actual awareness, should then subvert his own position by having to aver a date of constructive awareness which might simply serve to defeat his claim. Any averment and proof of constructive awareness was for the defenders. On a sound analysis section 17(2)(b) empowered the court to strike a balance between the date of actual awareness and the date of constructive awareness. A date of actual awareness within the triennium would suffice to allow the pursuer to bring his action unless (1) it could be established (by the defenders) that there was an earlier date of constructive awareness and (2) that the court in its discretion held that it was in all the circumstances fair that a date earlier than that of actual awareness should be taken as triggering the running of time. Accordingly, there was no automatic triggering at any date earlier than that of actual awareness. The terms of section 17(2)(b) were ambiguous or obscure and so justified resort to Parliamentary materials (Pepper v Hart [1993] AC 593, especially per Lord Browne-Wilkinson at p. 634). It was clear from Hansard (House of Lords, 28 June 1984) that the promoter of the Prescription and Limitations (Scotland) Bill (which on enactment amended the 1973 Act to include the present wording) had had in mind, at least primarily, actual awareness as the critical trigger. Reference was also made to the relative Scottish Law Commission Report (No. 74), especially at paragraphs 3.6 - .7. In so far as judges in the Outer House had held that a pursuer required to aver dates both of actual and of constructive awareness (as in Hamill v Newalls Insulation Co Ltd 1987 S.L.T. 478 and Webb v BP Petroleum Development Ltd 1988 S.L.T. 775) such decisions were in error.

[8] In my view Miss O'Brien's submission on this aspect of the discussion is unsound. Section 17(2)(b) provides for an extension in certain circumstances of the time within which an action to which the section applies must be brought. It does so by reference to "the date" (emphasis added) - that is, a single date - determined by reference to the particular pursuer's actual awareness or constructive awareness of the relevant facts. However, as Miss O'Brien accepted, any date of constructive awareness could never in the circumstances of this statutory provision be later than the date of actual awareness. Accordingly, it would be grammatically inept to insert the phrase "whichever is the earlier", since the date of actual awareness and the date of constructive awareness are not in this context free-standing alternatives. Nor, in my view, is there any question of the court having a discretion under this provision to choose between the date of actual awareness and the date of constructive awareness (or any date falling between them) as being the date appropriately to be taken for the purposes of section 17(2)(b). The only judgment, other than in the finding of facts, which the court will require to make for the purposes of this provision is, if it arises, the forming of an opinion as to the date of constructive awareness. The importation, for which Miss O'Brien contended, of a discretion into this provision is, in my view, inconsistent with its terms. It is also difficult to see why, given the retention of section 19A, there should be any policy reason for importing such a discretion into section 17(2)(b). In my view, section 17(2)(b), although condensedly expressed, is quite clear. The date directed to be taken is, where there is no date of constructive awareness, the date of actual awareness; but, where there is a date of constructive awareness (which will, if it arises, inevitably be earlier than that of actual awareness), the date directed to be taken is that of constructive awareness.

[9] As the test laid down in Pepper v Hart for reference to Parliamentary material is not, in my view, satisfied it is inappropriate to refer to such material. I simply observe that there is nothing in that material, properly construed, which in my opinion supports the statutory construction urged by Miss O'Brien. The observations made by the promoter of the Bill (Lord Carmichael of Kelvingrove) have to be seen in the context that the Bill being so promoted was one drafted by the Scottish Law Commission and appended in draft to its Report No. 74. It is plain from the text of the Report (particularly paragraph 3.6) that an injured person's "knowledge" might be actual or constructive. A limitation to actual knowledge was never in contemplation. "The main problem", as the Report puts it, "is whether the test of constructive knowledge should be subjective or objective". The Report offered a legislative solution to that problem. Lord Carmichael referred at column 1090 to the relative clause in the Bill as one which "restates the basic principle but more clearly". His subsequent observation in the same column about the date of the claimant "becoming aware that he is suffering from an injury" must be read as encompassing constructive awareness.

[10] This leaves unresolved the issue on whom rests the onus of averment and proof of constructive awareness. The current legislation makes no express provision in that regard. It was accepted by Miss O'Brien that the onus in respect of actual awareness rested on the pursuer. The logic of that is, first, that it is the pursuer who is invoking the extension of time and so must bring himself within it and, secondly, that he is in the best position to set out (and establish) the circumstances in which, he maintains, he first became aware of the relevant facts. A similar logic applies, in my view, to the date of constructive awareness. Section 17(2)(b) will only arise if the date fixed under section 17(2)(a) is outwith the triennium. The pursuer will be able successfully to invoke section 17(2)(b) only if any date of constructive awareness is within the triennium. Successful invocation will accordingly require him to lay a basis for excluding such a date being outwith the triennium. Additionally, the circumstances which bear upon when, if at all, it would have been reasonably practicable for him in all the circumstances first to have become aware of all the relevant facts are largely within his knowledge. Accordingly, complete silence on averment by the pursuer of matters touching on constructive awareness would not, in my view, constitute a relevant invocation of section 17(2)(b). I agree with the views of Lord Allanbridge in Hamill v Newalls Insulation Co Ltd, of Lord Weir in Webb v BP Petroleum Development Ltd and of Lord Abernethy in McArthur v Strathclyde Regional Council 1995 S.L.T. 1129 (the last cited by Mrs Stacey for the defenders), all essentially to that effect.

[11] The nature of the subject matter which calls for averment and proof may, however, bear on what is in the circumstances sufficiently relevant to warrant inquiry on it by proof before answer. The same criterion is not necessarily applicable to proof of the date of actual awareness as to the exclusion of any (prior and relevant) date of constructive awareness. The former concerns the positive establishment of a specific matter of fact; the latter concerns the laying of a basis to negative an inference from circumstances. It is against that consideration, among other factors, that the relevancy and specification of the averments made by the pursuer must be addressed.

[12] The pursuer's averments about his experience and awareness of significant matters relating to his hands include the following (in Article 2) -

In Article 5 he avers -

In response to the defenders' plea that the action is time-barred, the pursuer in Article 6 avers that he was not aware until 15 March 1999 of the relevant facts and continues-

Thereafter following an implicit reference to section 19A of the Act, the pursuer continues -

[13] Mrs Stacey submitted that, although the pursuer had addressed the issue of constructive awareness, his averments were irrelevant (and at least in one respect lacking in necessary specification) to bring him within the statutory requirements. No court on proof of such averments, she argued, could find that the date of the pursuer's constructive awareness was later than June 1996. His own averments indicated that his condition had improved, albeit slightly, since he ceased using pneumatic tools on giving up his employment as a foreman welder in September 1995. He had given up that work because of his experiences with his hands. The natural inference was that as at September 1995 he recognised at least some relationship between his previous work and his symptoms. He gave no specification as to when in 1996 (in particular whether before or after June of that year) he had first heard of other shipyard workers having made DSS claims for similar symptoms. It was plain on his averments that by 1995 there was an awareness in Greenock, including among shipyard workers, of a right to make a money claim in respect of such symptoms. The pursuer had not relevantly averred why it was not reasonably practicable for him to become aware prior to June 1996 of the relevant facts. It must have been plain shortly after he ceased work in September 1995 (if not earlier) that he had suffered injuries, that these were related to his working with vibrating tools and that his employers were the persons responsible for his exposure to them. It must also have been plain that his injuries were serious, being sufficient to cause him unwillingly to give up his work. Against that background, if he was not in fact aware of the relevant facts before June 1996, it was incumbent on him to aver with candour why he did not prior to that time become constructively aware of them. He had not done so. Reference was made to Cowan v Toffolo Jackson and Co Ltd 1998 S.L.T. 1000, especially per Lord Nimmo Smith at p. 1002 E-L.

[14] In my view the pursuer's averments are sufficiently relevant and specific to entitle him to a proof before answer on this matter. He can, subject to any matter of necessary specification, properly be denied such an inquiry only if, on the basis of evidence led within the fair compass of his pleadings, the court following such an inquiry would be bound to find that the pursuer had constructive awareness of all the relevant facts on a date prior to June 1996. The usual test of irrelevancy of a pursuer's pleadings is whether, even if he succeeds in proving all that he avers (reading his averments as amply as is fair), still his case must fail. Here , the subject matter of the issue for proof is somewhat special in that the pursuer will be seeking to satisfy the court that his awareness, actual or constructive, was less at significant times than might be suggested on some possible interpretations of his averments. In such circumstances in one sense the narrowest rather than broadest fair reading of his averments should be addressed. In this case the pursuer has set out very fully (with some repetition) his position on both actual and constructive awareness. I am unable to say that, on a fair construction of them, he is bound to fail in his invocation of section 17(2)(b). Much may depend on the niceties of the pursuer's evidence, in examination and in cross-examination, as to his awareness and perception of relevant matters at various times.

[15] As I have decided that an inquiry is requisite, it is undesirable to embarrass it by expressing detailed views on what might emerge at proof. Suffice it to say that

I am satisfied that the pursuer has set out with adequate fullness a history of matters bearing on constructive awareness. He has also responded to such limited averments of fact as the defenders have made on this matter. It is not, in my view, inevitable that a court, hearing an account within the averments and applying the test of constructive awareness set out in section 17(2)(b) (as amended), which involves both subjective and objective elements, would be bound to form the opinion that the pursuer was constructively aware prior to June 1996 of all the relevant facts. Much will depend, for example, on the immediacy and extent of any contrast in symptoms experienced during as against after ceasing the relative work, as well as the significance, if any, of his awareness of the success of claims for benefit made by fellow workers. Miss O'Brien advised the court that the pursuer was unable to be more precise than that he did not become aware that a relative claim for benefit could be made until "in or about 1996 at the earliest". I cannot at this stage say that he must he in a position to be more precise on that matter. Nor am I satisfied that the defenders suffer material prejudice by such imprecision.

[16] It remains to consider the case under section 19A. As I am to allow a proof before answer on the section 17 aspect, I would be slow to deny contemporaneous inquiry into the claim for section 19A relief unless the averments in that regard were plainly irrelevant. I accept Miss O'Brien's submission that some at least of the pursuer's averments directed to lack of awareness (for example, the lack of relevant information from any Trade Union or from his employers) are potentially relevant to the section 19A case. The averment (if proved) that the pursuer did not have actual awareness of the relevant facts until March 1999, with the claim being made and the action raised very shortly thereafter, is also potentially material to the exercise of the section 19A jurisdiction. Taking these with the pursuer's averments directed specifically to section 19A I am unable to say that, if the section 17 case fails, section 19A relief (in respect of which the court has an "unfettered" discretion - Donald v Rutherford 1984 S.L.T. 70, per Lord Cameron at pp. 74-5) is bound to be refused. Cases such as Wilson v Telling (Northern) Ltd 1996 S.L.T. 380 and Cowan v Toffolo Jackson & Co Ltd, where claims for relief under section 19A were dismissed at procedure roll, proceeded on factors which were essentially not in dispute. The pursuer's averments fairly read set forth, in my view, a significantly more adequate basis for the exercise of the discretion than those discussed in Nimmo v British Railways Board 1999 S.L.T. 778, to which Mrs Stacey also referred.

[17] Issues of law still potentially arise. It would accordingly be inappropriate to allow a proof simpliciter. I shall allow to parties a preliminary proof before answer of their whole averments relative to limitation.