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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Carnegie (AP) v Lord Rodger Of Earlsferry QC, HM Advocate As Representing The Ministry Of Defence [2000] ScotCS 7 (13 January 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/7.html
Cite as: [2000] ScotCS 7, 2000 SCLR 868
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OUTER HOUSE, COURT OF SESSION
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0294/5/95
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OPINION OF LORD OSBORNE
in the cause
ANDREW CARNEGIE (A.P.)
Pursuer;
against
THE RIGHT HONOURABLE THE LORD RODGER OF EARLSFERRY, Q.C., HER MAJESTY'S ADVOCATE, as representing THE MINISTRY OF DEFENCE
Defender:
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Pursuer: Paton, Q.C., McNeill; Shepherd & Wedderburn, W.S.
Defender: Gale, Q.C., Ferguson; Robson McLean
13 January 2000
In this action, the pursuer seeks damages from the defender, as representing the Ministry of Defence, in respect of loss, injury and damage, which the pursuer claims to have sustained as a result of deliberate wrongful acts on the part of certain named individuals and in consequence of the fault and negligence of certain other named individuals, for all of whose actings in the course of their employment it is said that the Ministry of Defence is liable. The background to the matter is that, between about 23 July 1991 and 14 July 1992, the pursuer was a recruit and a private soldier in the Army with the Royal Highland Fusiliers, based from 23 July 1991 to 28 February 1992 at Glencorse Barracks, Penicuik, from 28 February until 21 March 1992 in Northern Ireland, and thereafter at Battalion Headquarters, Cambridge. Prior to his recruitment, the pursuer was in good health and was physically fit. The pursuer alleges that, from about four weeks after he joined the Army until he left it, he was subjected to a regime of bullying, including physical abuse, brutality, violence and extortion at the hands of non-commissioned officers in a position of authority over him. Details of his allegations are to be found in Condescendence II of the closed record. The pursuer also avers that, on a number of occasions, he made complaints concerning his treatment to various commissioned and non-commissioned officers, of which he has also averred details. The legal grounds of the pursuer's action are set forth in Condescendences III and IV of the closed record. Essentially they consist in the deliberately wrongful acts of certain named persons and also the culpable failure of certain officers to respond appropriately to the pursuer's complaints concerning the conduct of others.
The summons in the present action was signetted and served on the defender on 7 March 1995. In due course, the defender tabled a plea-in-law of time bar, plea-in-law one. The defender's averments on the matter of time bar are to be found in Answer 6. The pursuer's current response to the defender's plea of time bar is set forth in Condescendence VI. It is there averred that, in the circumstances, the action is not time barred, under reference to the Prescription and Limitation (Scotland) Act 1973, section 17(2)(a) and (b). Originally, the pursuer's case included an appeal to the equitable discretion of the Court under section 19A of the Act of 1973. That was reflected in the pursuer's plea-in-law 3.
In due course, the case was sent to the procedure roll on the motion of the defender on his first and second pleas-in-law. Following upon a procedure roll debate on 20 June 1997, the Lord Ordinary allowed a preliminary proof "on the question of time bar" by interlocutor of 24 July 1997. A diet for the preliminary proof was fixed for 10 March 1998. Unfortunately, that diet of proof was discharged on account of there having emerged uncertainty as to the scope of that proof. In particular, there was uncertainty as to whether the consideration of the pursuer's case under section 19A of the Act of 1973 was or was not included in its scope. On 16 March 1998 a motion was enrolled on behalf of the defender for the correction of the Lord Ordinary's interlocutor of 24 July 1997, based upon the view that that interlocutor had not given full effect to the opinion of the Lord Ordinary associated with it. On 2 October 1998, the Lord Ordinary, being satisfied that a clerical error had occurred in the terms of the interlocutor of 24 July 1997, allowed that interlocutor to be corrected so that plea-in-law 3 for the pursuer was repelled and certain averments associated with it excluded from probation. Thereafter, a new diet of preliminary proof was fixed. The effect of the foregoing procedure was to make clear that the pursuer's case under section 19A of the Act of 1973 was excluded from further consideration.
On 6 July 1999 and the following days, the preliminary proof was heard. By that time, the evidence of Dr Robert Duncan Stevenson a consultant physician specialising in respiratory medicine, had been taken at an open commission, the report of which has been produced, 31 of process. At the outset of the preliminary proof, it was made clear that, for the purposes of that proof alone, the defender did not intend to challenge the evidence of the pursuer as to the occurrence of the incidents referred to on record. At the preliminary proof, evidence was led on behalf of the pursuer from (1) the pursuer himself, (2) Dr Pauline Susan MacAlevy, a general medical practitioner who had attended the pursuer, (3) Dr Clare Polat, a medical practitioner who had been responsible for the medical care of the Royal Highland Fusiliers at their barracks in Cambridgeshire, at a time when the pursuer was posted there; and (4) Dr Michael George Taylor, a medical practitioner and psychiatrist with the Douglas Inch Centre in Glasgow, who had become concerned with the pursuer in connection with the pursuer's claim to certain benefits following his discharge from the Army. In addition, the report of the commission, to which I have already referred, was put in evidence. No evidence was led on behalf of the defender.
Since the resolution of the issues raised at the preliminary proof depends upon, among other things, the details of the pursuer's experiences in the Army, it is appropriate that I should set forth the evidence of the pursuer on those matters, that evidence being unchallenged by the defender for the present purposes. The pursuer explained that, after leaving school, he had worked in various capacities. He had first applied to join the Army in 1987, but had failed the test then. However, in 1991, he had applied again and, on this occasion, had passed the necessary test. He had then undergone a medical examination and was passed as fit. In particular, he had no chest or breathing difficulties at that time. His Army service commenced on 23 July 1991, when he joined the Royal Highland Fusiliers as a recruit, then stationed at Glencorse Barracks, Penicuik. Thereafter, in August and September 1991, the pursuer had attended a Field Craft Camp at Castlelaw Ranges, near Penicuik. During the same period and at the same place, he had also attended a Tactics Camp. From September to October 1991, the pursuer had been involved in adventure training at either Glencoe or Glenshee; he could not remember which. From October to November 1991 the pursuer had been present at a Mini Battle Camp at the Castlelaw Ranges. From November to December 1991 he had been present at a Full Battle Camp at Otterburn in Northumberland. Following that, he had spent two weeks at the regiment's barracks at Cambridge. Thereafter from 28 February to 21 March 1992, the pursuer had been posted to Northern Ireland. Thereafter, he had returned to the Battalion Headquarters in Cambridge. Finally, on 14 July 1992, the pursuer had been discharged from the Army.
The pursuer explained that his troubles began when he went with others for the first time to the Castlelaw Ranges in August to September 1991. He said that he had been beaten up on a day to day basis, which continued. He was also subjected to what he called mental torture. At the Tactics Camp at Castlelaw Ranges, the pursuer and others had been involved in a nuclear and biological exercise, which involved the wearing of protective clothing and masks. During the course of this exercise, someone in the pursuer's unit had reacted badly to the training and had started screaming. This had upset the pursuer, who lifted his mask. He was made to suffer for having done that. He stated that he had been dragged down an embankment and booted, as a punishment. A Corporal Downie was one of those responsible for that treatment, although there were others. The pursuer said that he found it difficult to give details of such incidents because there had been so many of them and he had become quite confused in his recollection of one incident and another. He stated that the incident described was not the first occasion on which violence had been inflicted on him; it had happened in camp prior to that. Subsequently it occurred during the course of the Mini Battle Camp, already mentioned.
The pursuer went on to explain that he had suffered physical abuse from a Corporal Gray. He had made a practice of choking the pursuer by compressing his throat with his hands. In addition, he was accustomed to pressing the pursuer behind his ears with either the point of a bullet or a pen, which was very painful. Furthermore this officer possessed a walking stick, the top of which took the form of a white carved dog's head. He had made a practice of hitting the pursuer on the head with this stick, for no good reason. The pursuer stated that he had mentioned all these problems to Sergeant Major Rennie and Major Evans. The reaction of these officers was simply to say "Get on with it"; it had been represented that these things were just part of Army life.
The pursuer next described his experiences at the Adventure Training Camp, which was held either in Glenshee or Glencoe. Those involved had been staying at an hotel in the area. The pursuer said that he had been beaten up in the upstairs area of this hotel by four non-commissioned officers, Corporals Bradley, Gray, Fraser and Downie. He said that he had been punched by all of them for having gone to a nearby village. He said that he had not reported this incident, since he saw no point in so doing. At the Mini Battle Camp at the Castlelaw Ranges, many objectionable things had happened to the pursuer. He had been kicked and punched by Corporals Downie and Gray, mostly by the former. In the period of November to December 1991 the pursuer had attended the Full Battle Camp at Otterburn. He had been in Corporal Gray's section in a five section attack. On one occasion he had failed to hear the order to cease fire, in consequence of which he had been kicked by Corporal Gray in the temple area on the right hand side, which had caused extreme pain; he had been almost unconscious on this occasion because of the violence. In addition he had punched the pursuer while he was on the ground, having pulled his helmet up. He was so violent that he had had to be restrained by Sergeant Gilbert. Following these events Sergeant Gilbert had had a word with Corporal Gray about his behaviour, but the latter had seemed incapable of keeping his temper. The Sergeant Major had also been informed of this incident, but no official warning had been given to Corporal Gray. Sergeant Gilbert had apologised to the pursuer for Corporal Gray's behaviour; he said that he would deal with it.
The pursuer said that Corporal Downie also was hostile to him. On one occasion, on a bus and in the presence of a number of other personnel, he had grabbed the pursuer's helmet off him and had then repeatedly struck the pursuer with his helmet on the head and face. This assault caused bleeding to the pursuer's head and the appearance of a black eye. He had completely lost his temper on this occasion. Corporal Bradley had had to intervene and pull him off the pursuer. The pursuer had been so hurt and upset by this incident that he was reduced to tears. The incident was subsequently reported to the Army Special Investigation Department. The pursuer said that, at the time, he had tried to proceed with the complaint through the proper channels but, for that, he was made to suffer. He was frequently sent to guardrooms as punishment.
The pursuer explained that he had also had certain abuse inflicted on him concerning money. This had started at the Mini Battle Camp in October to November 1991. Lance Corporal Whitelaw and Corporal Reid were involved. The pursuer had been sent to the guardroom because he had defended himself. Lance Corporal Whitelaw said to the pursuer that he could get an easier time if he paid money over. He had suggested that the pursuer should buy him a watch. On several occasions the pursuer had paid this officer £25, in addition to buying him Chinese food, kebabs, etc. If one did not comply with these requests, one was sent to the guardroom. The pursuer went on to say that excessive physical training had been imposed upon him. On some occasions, so arduous had been this training that he was reduced to tears. In addition, from time to time, abuse had been shouted in the pursuer's ears. At a later stage, the Army Special Investigation Department had been informed. However the pursuer did not tell a commanding officer of these incidents, on account of his fear of Lance Corporal Whitelaw. The pursuer agreed that he had provided the information for two newspaper articles on his treatment in the Army, but that had made matters worse for him.
Between 28 February and 21 March 1992, the pursuer had been in Northern Ireland at a training camp. He found that his leg had swollen up because of a bite, which required him to attend a medical centre in a feverish condition. Thereafter he had been returned to camp in a van at or near the Maze Prison. On alighting from this van, the pursuer had forgotten to remove his rifle from it, presenting himself without the rifle to a Sergeant Major Frew, who had asked the pursuer where his rifle had gone. The pursuer had replied: "Oh! Sorry. It's in the van". The pursuer had been required to return to the van to get the rifle. When he returned with it, this officer took the rifle from him and "butt-stroked" him with it in the face. That had involved his twisting the rifle in such a way that its butt struck the pursuer in the face. The pursuer explained that for the remaining part of the 21 day period in Northern Ireland Sergeant Major Frew had taken a dislike to him. He said that he had been on a "power trip" and details were given of what that had entailed, so far as the pursuer was concerned. In consequence of this assault, the pursuer had had a mark underneath his right eye, which lasted for a week or so.
The pursuer went on to explain that, after the foregoing events, he had received notification from a hospital in Glasgow that a necessary surgical operation upon him for varicose veins was shortly to be carried out. After the operation, for a period of time the pursuer had been unfit for work and obtained a medical certificate to that effect. He had shown it to a Major Shaw in Glasgow who had indicated that the pursuer could be off duty for the period of the certificate. Despite that, the pursuer had later been arrested by the civil police for allegedly being absent without leave. However he was subsequently found not guilty of this charge; nevertheless, he spent 15 days in custody before the matter was investigated. These events occurred around May 1992.
The pursuer said that he had been seriously affected by the treatment which he had received in the Army. Panic attacks began to appear, also hyperventilation. He went to his general medical practitioner in respect of these problems. He broke down in tears in her office. Dr MacAlevy had then proceeded to give him a medical certificate authorising his being off work for a period of time. Around the same time the pursuer contacted a newspaper reporter concerning his experiences in the Army. Following that, the Army authorities had indicated that the pursuer's complaints would be investigated. Subsequently the pursuer was again arrested upon the allegation that he was absent without leave. By this stage, the pursuer felt that his mind was not his own and that he was not himself. Finally, on 14 July 1992, the pursuer was discharged from the Army. This was a great disappointment to him, since he had had an ambition to be a soldier since he had been a child. His father had been in the Army before him. He thought that he might have been able to endure the abuse which he had received, if the complaints which he had made had been properly investigated, but that was not done. The pursuer was asked whether he had contemplated making a claim against the Army while he remained in it. He said that he had never considered doing that; he had thought that that would have been impracticable.
Asked about his chest problems, the pursuer explained that, following a period in the Army, he had developed hyperventilation. This felt similar to a heart attack and involved an inability to breathe. He had gone with this problem to his general practitioner in May or June 1992. The symptoms had got worse later. He had been given a prescription for these problems, although he himself thought that the origin of the difficulties was psychological. In connection with these matters, the pursuer generally confirmed the accuracy of the contents of his general practitioner's records, 29/2 of process.
The pursuer agreed that towards the end of 1992 he had consulted a solicitor in connection with his problems in the Army. In this connection, reference was made to 26/1 and /9 of process.
At this point in his evidence, counsel for the pursuer took the witness back to the incident in Northern Ireland, in which Sergeant Major Frew had struck the pursuer with the butt of his rifle. The pursuer elaborated by saying that Sergeant Major Frew had made his life as uncomfortable as possible during the 21 day period in which he was in Northern Ireland. The pursuer was the recipient of shouted abuse from this officer and had obtained very little sleep, on account of the duties allocated to him. At this stage in the evidence, counsel for the defender objected to the line of evidence upon the ground that there were no averments in the record relating to these matters. The only averment made was that at page 11B-C of the closed record, as further amended, which dealt with the assault itself. It was contended that a reservation of this objection would prejudice the defender, who was not able to challenge the evidence now being led. In response, counsel for the pursuer said that this matter did not require to be determined, since she did not intend to proceed further with the line of evidence.
Reverting to the part of his evidence dealing with the involvement of a solicitor, the pursuer confirmed, by reference to 26/16 of process, that he had been advised by the first firm of solicitors whom he had instructed that it would be extremely difficult for him to prove that he had suffered asthma as a direct result of his service in the Army. Accordingly that firm of solicitors had closed their file as at 15 February 1993. The pursuer explained that he had not been satisfied with that advice and accordingly had moved to another firm of solicitors. In consequence of the pursuer's continuing respiratory problems, which, as at 16 June 1993, had been perceived to involve asthma, the pursuer had been referred to the Chest Clinic at Glasgow Royal Infirmary, as appeared from the letter from his general practitioner of that date, 23/2 of process. Towards the end of 1993, the pursuer's continuing respiratory problems had been the subject of further correspondence between medical practitioners. At that stage, the possibility that the pursuer's problems might have been caused by the bullying which he suffered in the Army had been first raised. Eventually the pursuer's advisors had received a medical report from Dr Robert Duncan Stevenson, which was 23/5 of process, in which the opinion was expressed that the pursuer suffered from hyperventilation due to panic attacks, rather than bronchial asthma, and that his symptoms were causally related to the pursuer's experiences in the Army. At a later stage, the War Pensions Agency had accepted that the pursuer suffered from panic disorder which should be accepted as attributable to his service in the Army, as appeared from their letter dated 10 December 1996, 30/3 of process. The pursuer said in addition that he had been examined by Dr Michael Taylor on behalf of the War Pensions Agency. He had reached the conclusion that the pursuer suffered from three psychiatric conditions: (1) post traumatic stress disorder; (2) panic disorder; and (3) obsessive compulsive disorder.
The pursuer was cross-examined on behalf of the defender. He agreed that his basic training had lasted until about the last day in January 1992. He had been subjected to assaults on a regular basis throughout his basic training. It had been a daily occurrence. These assaults had resulted in injuries of a physical nature, including bruising and cuts. These assaults had been inflicted upon him in the presence of other recruits, which had led to embarrassment and humiliation on his part. The pursuer had complained to Sergeant Major Rennie and Major Adams regarding these problems. The pursuer elaborated his account of the assaults which had been inflicted upon him. He explained that Corporal Gray's choking assaults had been inflicted almost every day, as had been the application of pressure behind the ears. The pursuer's complaints about Corporal Gray had come to be considered by Major Evans. He had simply said that he would have words with the perpetrator. The pursuer explained that his complaint regarding the Adventure Training Camp was related to a single occasion, on which he had been beaten up by four non-commissioned officers. So far as the two incidents at Otterburn were concerned, Corporal Gray's attack on the pursuer following the cease fire order had been mounted in the presence of about 30 people; he had found it deeply humiliating and was reduced to tears by it. Describing the attack by Corporal Downie, the pursuer explained that his helmet had been used as a weapon against him. His nose had been cut, he had received a black eye and there had been considerable loss of blood. That assault had also occurred in the presence of other recruits. As the assaults on the pursuer continued, he said that he had become depressed and lost a grip on reality. He said that it was a "living hell". He considered that the panic attacks had started near the end of his Army service. The pursuer went on to explain his motivation in approaching journalists concerning his plight. He indicated that it had not occurred to him to consult a solicitor following upon the completion of his basic training, because he was scared to do so.
In re-examination the pursuer agreed that his basic training had come to an end after his passing out at Glencorse Barracks, following the Full Battle Camp at Otterburn. He had suffered his first panic attack in Cambridge, while he was in a prison cell, after having been in Northern Ireland.
Dr Pauline Susan MacAlevy, the pursuer's general practitioner, also gave evidence concerning his medical history generally, as it appeared from his medical records, 29/2 of process. Those records revealed that in June 1992 the pursuer had been complaining of depression and received a prescription for sleeping pills. In the latter part of 1992 the pursuer had been complaining of symptoms of asthma and was furnished with an inhaler. This witness had been of the view that the pursuer had been suffering from bronchial asthma. She was quite prepared to defer to the expertise of Dr Stevenson as regards the pursuer's panic attacks. In cross-examination Dr MacAlevy agreed that the pursuer had shown some signs of anxiety prior to joining the Army.
Dr Clare Polat gave evidence concerning her contact with the pursuer as recorded in the Army medical records, 43 of process. These indicated that in May 1992 the pursuer had been suffering from depression. In July 1992, just before the pursuer's discharge from the Army, he had been suffering from insomnia and had been prescribed sleeping pills. The pursuer had been examined medically on his discharge from the Army. The records of that examination were available. At the time of that examination, it appeared to have been concluded that the pursuer was not suffering from "asthma, hay fever or wheezing", that view was based upon a declaration by the pursuer himself.
The final witness to give evidence at the preliminary proof was Dr Michael George Taylor. He had been asked in 1998 to examine the pursuer in connection with a claim for a war pension. He had set forth his findings in a letter to the pursuer's general practitioner dated 20 March 1998, 39/1 of process. In the opinion of this witness there were three psychiatric diagnoses: (1) post traumatic stress disorder; (2) panic disorder; and (3) obsessive compulsive disorder. This witness considered that these conditions could have resulted from a pattern of events or treatment over a period of time, such as a series of assaults of one kind and another. In the opinion of this witness that was the cause of the conditions which he had identified.
In addition to the evidence led at the preliminary proof itself, there was put in evidence the report of the commission to take the evidence of Dr Robert Duncan Stevenson. I do not intend to summarise this material, since it is in process.
On the basis of the foregoing evidence, which contained no areas of serious dispute, particularly having regard to the posture taken up by the defender in relation to the pursuer's evidence, submissions were made to the Court. Counsel for the pursuer said that her submissions could be categorised in three chapters. The first of these was concerned with what was argued to be a "continuing" "act or omission", within the meaning of section 17(2)(a) of the Act of 1973. The second was concerned with the issue of whether the pursuer's injuries were "sufficiently serious to justify his bringing an action of damages", under reference to section 17(2)(b)(i) of that Act. The third chapter was concerned with the date on which the pursuer had become aware that his respiratory condition was attributable in whole or in part to his experiences in the Army, under reference to section 17(2)(b)(ii) of the Act. Each chapter of the submissions was self-standing and, if sustained, would result in the allowance of a proof before answer on the whole case. The pursuer's position in relation to all these matters had been properly focused in the averments in Condescendence VI.
Turning to the first of her chapters of submissions, counsel for the pursuer drew attention to the terms of section 17(2)(a) of the Act of 1973. She also drew attention to the definition of "personal injuries" provided by section 22(1) of the Act, where they were said to include "any disease and any impairment of a person's physical or mental condition". It was submitted that, in this case, the Court was concerned, not only with the unlawful actions of non-commissioned officers, but also with an omission on the part of the Army itself, as personified by commissioned officers, which omission, at best for the defender, ceased when the pursuer left the Army on 14 July 1992. The pursuer's position was that he had been subjected to a regime of bullying, abuse, brutality, violence and extortion by non-commissioned officers, who were in a position of authority over him. It was submitted that this regime comprised, not only a pattern of physical acts and mental oppression, but also a continuous failure on the part of the Army to provide appropriate investigations of and disciplinary responses to the objectionable conduct. The pursuer's case was that, had appropriate responses been forthcoming, it would have been likely that he would have been able to continue in the Army. In any event, the pursuer was complaining of the continuous and cumulative pattern of treatment to which he had been exposed, including the condoning of an unacceptable degree of physical abuse and violence. That included the frequent application of pressure behind his ear on many occasions, the choking inflicted upon him, being struck with a stick on the head and being exposed to punching and kicking. Several particular episodes were founded upon. These were (1) the gas mask episode; (2) the Glenshee/Glencoe episode; and (3) the two Otterburn episodes: (a) being assaulted in the firing position, and (b) being assaulted on the bus by the use of an Army helmet. Also, there was the butt stroking incident perpetrated by Sergeant Major Frew in Northern Ireland. In addition to these causes of complaint, there was mental oppression, including the extortion of money from the pursuer. The position was that the pursuer's complaints to the Army authorities had not been followed up by effective disciplinary measures. It was submitted that all of this was part of a continuing pattern, which endured until near or at the end of the pursuer's career in the Army. On this basis, the triennium commenced on 14 July 1992. The action had been raised within the triennium, since the summons was served on the defender on 7 March 1995. The result of the pattern of behaviour referred to was that the pursuer contracted mental illness, as shown by the evidence of Dr Michael George Taylor. That illness took the form of (1) post traumatic stress disorder; (2) panic disorder; and (3) obsessive compulsive disorder, as explained in Dr Taylor's letter to the pursuer's general practitioner, dated 30 March 1998. Signs of this mental illness had begun to be shown prior to the pursuer's discharge from the Army. The first panic attack had taken place in the prison cell in Cambridge after the pursuer had returned from Northern Ireland, around May 1992. The pursuer's case was presented as one involving a continuous course of unacceptable conduct, albeit that that was manifest in a series of individual acts of brutality or oppression.
Counsel for the pursuer turned next to the second chapter of her submissions. These were related to the issue raised by the terms of section 17(2)(b)(i) of the Act of 1973. They were concerned with the issue of whether "the injuries in question were sufficiently serious to justify (the pursuer) bringing an action of damages" on the assumptions set forth in the statutory provision. In connection with this facet of the case, there had been material changes since the time when the Lord Ordinary had allowed the present preliminary proof; the state of matters then was disclosed in the judgment concerned, reported at 1998 S.L.T. 872. In particular, the averments now appearing at page 11B-C of the closed record, as further amended, relating to the incident in Northern Ireland, had been added subsequently by amendment. Furthermore, the averments at page 25A-B of the same version of the closed record, relating to the pursuer's development of panic attacks and hyperventilation syndrome, post traumatic stress disorder and obsessive compulsive disorder, had also been added by subsequent amendment.
Counsel for the pursuer next referred to the relevant case law. In Blake v Lothian Health Board 1993 S.L.T. 1248, at page 1250J-1251K, certain important observations were made concerning the effect of the statutory provision in question. In particular, it was there said that the fact that injuries could not be described as minimal or trivial did not necessarily mean that they were sufficiently serious to justify the pursuer raising an action. Furthermore, it was emphasised that the issue was whether the injuries in question were sufficiently serious to justify the particular pursuer concerned bring an action of damages on the statutory assumptions. The same view was taken in Shuttleton v Duncan Stewart & Co Ltd 1996 S.L.T. 517, at pages 518-519. There Lord Prosser recognised that a claim, although not de minimis, might not be sufficiently serious to justify a pursuer raising an action. In the present case, the Court should recognise that there were considerations affecting the pursuer to discourage him from raising legal proceedings. In particular, in joining the Army, he had realised a long-standing career ambition; he had not considered that it would have been practicable to sue the Ministry of Defence and at the same time remain in the Army. In addition, it had to be recognised that the pursuer had tried to deal with the problems affecting him through what might be called the normal channels, although that approach was ultimately shown to be ineffective. The evidence showed that he had not given up hope of obtaining satisfaction through normal channels until near the end of his military career.
Finally, counsel for the pursuer dealt with the third chapter of her submissions. These were related to the provisions of section 17(2)(b)(ii) of the Act of 1973. In this connection, it was argued that the relevant date could be taken to be 14 July 1992, the date on which the pursuer left the Army. This submission was made upon the basis that it was after that date that the pursuer became aware that his respiratory condition was in whole or in part attributable to the unlawful treatment which he had received in the Army. In connection with this submission, counsel for the pursuer traced the history of the diagnosis of attributability in the relevant correspondence and documentation. She submitted that the pursuer had become aware and that it had been reasonably practicable for him to have become aware of attributability only on the receipt of the report from Dr Robert Duncan Stevenson, dated 4 July 1994, 23/5 of process, as expanded in his evidence given on commission. Until Dr Stevenson's advice was available, the pursuer had been given to understand that his condition was asthma, which was not attributable to the treatment which he received in the Army. On this basis, the triennium would only begin on 4 July 1994. In any event, the very first manifestation of a panic attack occurred around May 1992, well after 7 March 1992, the start of the triennium based upon the raising of the action on 7 March 1995. In all of these circumstances counsel for the pursuer moved me to repel plea-in-law one for the defender and to allow a proof before answer on the merits of the case.
Counsel for the defender began his submissions by pointing out that there were two issues for determination in the preliminary proof. These were (1) whether the action was preserved by the provisions of section 17(2)(a) of the Act of 1973, and (2) whether it was preserved by the operation of the provisions of section 17(2)(b)(i) of that Act, as appeared from the observations of the Lord Ordinary at page 875H of the report of her judgment following upon the debate. It was plain from the observations of the Lord Ordinary that she had identified two issues for the preliminary proof. These were firstly the ascertainment of the date on which the alleged continuing act or omission relied upon had ceased, for the purposes of section 17(2)(a) of the Act and secondly the "seriousness point" raised by section 17(2)(b)(i) of that Act. Indeed, at the debate, the Lord Ordinary had not been addressed upon the possible effect of the provision of section 17(2)(b)(ii) of the Act. While it was recognised that the hearing of evidence on commission had involved a consideration of issues raised by the latter statutory provision, in reality, it might not be necessary to deal separately with these, since there was in fact no distinction between the injuries referred to in section 17(2)(b)(i) and (ii), in the circumstances of this case.
The defender's submission was that the injuries in question were those attributable to the physical assaults relied upon and the extortion averred. The period of subjection to that regime, it was submitted, had come to an end at the conclusion of the pursuer's basic training, the end of January 1992, or the end of February 1992, immediately prior to his being posted to Northern Ireland.
Upon the basis of the foregoing approach to the case, counsel for the defender considered firstly the issues relating to section 17(2)(a) of the Act. It was claimed that the pursuer's case was not pled as one of a simple assault leading to injury. What was relied upon was a continuing course of conduct, but the reality was that that course of conduct had emerged only in relation to the pursuer's basic training. That training had come to an end around the end of January or, at the latest, the end of February 1992, when the pursuer was posted to Northern Ireland. What the pursuer had described in evidence was a regime of assaults carried out, with one exception, during his basic training, by non-commissioned officers. The pursuer had also described in evidence extortion by such officers, during that period. While there were some averments concerning the problems which the pursuer encountered in connection with his absence from duty on account of his need to attend for surgical treatment at Glasgow Royal Infirmary, the fact was that no averments of fault were stated in relation to those matters, as appeared from Condescendence IV. Accordingly the date of the end of February 1992 was significant, because it was then that the pursuer was posted to his regiment, following training. While it was true that the pursuer had given general evidence of daily assaults during basic training, the last specific assault to which he had referred was the second incident at Otterburn, when it was alleged that Corporal Downie had struck him in the face on the bus with his helmet. The only later incident of violence was that involving the use of a rifle butt by Sergeant Major Frew in Northern Ireland, at some time following 28 February 1992, the precise date being unknown. As regards that incident, it was submitted that it was different in a number of respects from any earlier incident. In particular, it was claimed that it was an isolated incident, which did not form part of any continuing act or omission. The locus of the incident was different from the others and the unit was also different. It had not occurred during basic training. There was no other specific evidence of similar incidents following that in Northern Ireland. In these circumstances the pursuer was left with the alleged failure of senior officers to deal appropriately with the situation, which it was said had endured throughout. Such a failure could be established only in relation to a complaint made by or on behalf of the pursuer. That was the nature of the case made by the pursuer in Condescendence IV. The pursuer had given evidence concerning the reporting to senior officers of certain incidents. The first complaint mentioned by him was said to have been made to Sergeant Major Rennie relating to the behaviour of Corporal Gray, taking the form of his choking grip, his infliction of pain by means of a pen or bullet behind the ear and assaults with his stick. It was clear from the context of that complaint in the evidence of the pursuer that it must have been made before the end of 1991. What had happened on that occasion was that the matter went as far as Major Evans, whose handling of it did not satisfy the pursuer. The second complaint referred to specifically by the pursuer was one to Sergeant Gilbert concerning Corporal Gray's assault upon him at Otterburn during November and December 1991. That had resulted in a "quiet word" in the ear of Corporal Gray. Those were the only relevant instances of complaints of violence made by the pursuer which he described in his evidence. It was submitted on behalf of the defender that those complaints were made and the recipients' handling of them was completed before or at least by the end of 1991. The pursuer had also indicated that he had made certain complaints about the alleged extortion by Lance Corporals Reid and Whitelaw, which had started at the Mini
Counsel for the defender next proceeded to make submissions in relation to section 17(2)(b) of the Act of 1973. Under reference to the pursuer's pleadings at pages 26-27 of the closed record, as further amended, he maintained that no case was made by the pursuer under sub-paragraph (ii) of that provision; the only case made was that under sub-paragraph (i). The pursuer's case appeared to be that he had not been aware, nor would it have been reasonably practicable for him in all the circumstances to have become aware of the fact that his injuries were sufficiently serious to justify his bringing an action of damages, on the assumptions stated, until he had become aware of the diagnosis that his respiratory difficulties were causally connected to the treatment which he had received during his Army service. It was submitted that that approach was unsound and ignored the existence of the injuries which the pursuer had sustained during the course of his service and long before the making of that diagnosis, in particular, the injuries sustained by him in consequence of assaults upon him by non-commissioned officers. Assuming that those injuries were "sufficiently serious to justify his bringing an action", then the triennium began to run at the time of their infliction; it did not matter that, it might be, more serious consequences of those injuries developed at a later stage. In that connection reference was made to Cartledge v E. Jopling & Sons Ltd [1963] A.C. 758, at pages 771-772 and 780-781. In connection with the interpretation of section 17(2)(b)(i), counsel for the defender relied upon Blake v Lothian Health Board, Shuttleton v Duncan Stewart & Co Ltd and also Ferla v Secretary of State for Scotland 1995 S.L.T. 662, at page 664. There Lord Johnston had considered that the test was based upon the objective judgement of a reasonable claimant in all the circumstances. A similar approach was taken by Lord Philip in Lowe v Grampian Health Board 1998 S.L.T. 731.
The facts of the present case and, in particular, the pursuer's evidence that he had not considered that suing the Ministry of Defence, while remaining in the Army, was a real option, made necessary the examination of the question of whether the test in section 17(2)(b)(i) was objective and related to what a reasonable pursuer would decide, or involved subjective considerations personal to the particular pursuer in question. In Blake v Lothian Health Board, Lord Caplan had suggested that the appearance of the word "his" in the statutory provision might import the need to take subjective personal considerations into account. On behalf of the defender, it was submitted that that would not be an appropriate approach. In particular, it was not appropriate, on a proper interpretation of the provision, to take into account the pursuer's reluctance to sue the Ministry of Defence, his employers. While there was no doubt that the wording of the section made reference to the particular pursuer in question, it had to be recognised that that was done in the context of an issue concerning the seriousness of the injuries in question. The provision was focused upon the level of seriousness of the injuries; that excluded from consideration factors other than those relating to the injuries and, in particular, excluded from consideration the possibility that a pursuer's employer might be offended by the raising of an action against him. To take the wider view contended for on behalf of the pursuer would result in absurdities in the application of the statutory provisions. If it was relevant to look at the effect of litigation upon the employer of the pursuer, a claim might never be time barred until after the pursuer retired from employment; that would plainly be ridiculous. However, it might be permissible to undertake what might be called a cost benefit analysis in relation to a particular litigation, which would embrace a consideration of the particular pursuer's financial circumstances, the costs of the litigation and the level of damages likely to be recovered.
Against this background of law, counsel for the defender proceeded to examine the pursuer's position. The pursuer had testified that, during the course of his basic training, he was frequently assaulted and beaten. These problems commenced after the Field Craft Camp in August and September 1991. He had described how the assaults left him bruised on a number of occasions. The assault involving the use of a helmet as a weapon on the bus at Otterburn left the pursuer cut and bleeding. As an aggravation, it had to be recognised that the attacks upon the pursuer had taken place in the presence of other recruits, leading to embarrassment and humiliation. The pursuer himself had described the regime to which he had been subjected as "a living hell". He said that he had difficulty in recalling days when such things did not happen. Among the more prominent examples of assaults was the occasion at the Tactics Camp at Castlelaw Ranges when the pursuer said that he had been kicked in the stomach and the face by Corporal Downie in the presence of others. He had testified that he had been the victim of gratuitous abuse by Corporal Gray, involving the choking procedure and the infliction of pain by the use of a pen or bullet behind the ear. Furthermore, a conspicuous assault was that which the pursuer had described as taking place at either Glencoe or Glenshee, on the occasion of the Adventure Training Course, inflicted by four non-commissioned officers. On any view, that was a serious incident. In addition, at Otterburn, the pursuer had been punched and kicked by Corporal Gray on the right side of his head, an experience which he had described as very painful. When taking all these matters together, it was obvious that the pursuer had been subjected to a brutal regime. Ill treatment of a different kind had been meted out to the pursuer in the form of extortion by Corporals Whitelaw and Reid. It was submitted on behalf of the Defender that the pursuer had been clearly aware that these injuries inflicted upon him were sufficiently serious to justify his bringing an action of damages on the statutory assumptions. All of these things had happened to the pursuer before he was posted to Northern Ireland. While it might not have been appreciated until the advice of Dr Stevenson was available that the ill treatment accorded to the pursuer had had certain more subtle consequences upon the pursuer's well-being, that was nothing to the point. Section 17(2)(b) of the Act of 1973 came into operation only if it produced a date later than that produced by sub-paragraph (a). In the circumstances of this case it did not. The defender's plea-in-law one should be sustained and the action dismissed.
Counsel for the pursuer replied. She commented that counsel for the defender had not made clear what terminus a quo was contended for. The conduct of Sergeant Major Frew in Northern Ireland was a manifestation of an on-going course of unlawful assaults. It was simply a continuation of unacceptable disciplinary techniques. There was no difference in nature between that assault and the assaults to which the pursuer had been subjected at an earlier stage. During the course of the remaining part of the pursuer's service in Northern Ireland, Sergeant Major Frew's conduct continued to be unacceptable. The two week period which the pursuer had spent at Cambridge before going to Northern Ireland did not interrupt the continuing course of wrongful conduct.
Dealing with the issue of complaints and the inadequate responses to them, it was submitted that the pursuer had complained throughout 1992 with unsatisfactory responses. It had to be borne in mind that the pursuer had felt obliged to ventilate his grievances in the press in certain newspaper articles. As a result of his having done that, it was indicated that the matter would be investigated. That occurred in or about June 1992.
Returning to the issue of the application of section 17(2)(b)(i), it was contended that it would be artificial for the Court to restrict itself to consideration of certain personal circumstances of the pursuer only. The matter required to be dealt with in a reasonable way. It would be ludicrous to argue that a pursuer would be justified in not suing the Ministry of Defence in respect of certain wrongful acts over the whole period of an Army career. An alternative approach to the matter was to recognise the importance of the first panic attack which the pursuer had suffered in or about May 1992. That was a significant event which might be seen as transforming the nature of the pursuer's remedy to one involving serious injuries. Yet another approach to the matter might be to exclude from probation certain parts of the pursuer's case, but to allow the claim to proceed in relation to what might be called the mental injuries.
Counsel for the defender also replied. He reiterated the point that the incident involving Sergeant Major Frew in Northern Ireland had to be seen as an isolated incident different from those to which the pursuer had been subjected during the course of basic training. It occurred in different circumstances and in a different location.
The pursuer now seemed to be attempting to make a case of continuing failure to investigate complaints in relation to the Army's Special Investigation Branch. That approach was not open to the pursuer, since it was not in any way comprised in the case made in Condescendence IV. In relation to the complaints there founded upon, any failure that there might have been on the part of officers had to be seen as having occurred by the time at which a reasonable recipient of a complaint ought to have acted in the proper manner. There was no evidence whatsoever concerning that matter.
Finally, counsel for the defender emphasised that the word "his" in section 17(2)(b)(i) did not justify the introduction of the whole range of the pursuer's personal circumstances into the assessment of the matter. The Court ought to confine itself to what had been called the cost benefit approach.
In the present action, a plea of time bar having been taken on behalf of the defender, the pursuer relies upon the provisions of section 17(2)(a) and (b) to obviate that plea, as appears from his averments in Condescendence VI and, in particular, in the last sentence of that Condescendence. I understood that it was a matter of agreement between the parties that, in such a situation, the onus lay upon the pursuer, whose action was challenged on this ground, to demonstrate that his action had been commenced within a period of three years after one of the dates specified in section 17(2) of the Act of 1973. That appears to me to be a correct appreciation of the situation and to be in accordance with the observations of Lord Abernethy in McArthur v Strathclyde Regional Council at pages 1133-1134, with which I respectfully agree.
In these circumstances, I propose to consider, first of all, that part of the pursuer's case, in which reliance in placed upon section 17(2)(a) of the Act of 1973. That enactment provides as follows:
"17(2) Subject to sub-section (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after- (a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; ...".
It was of course recognised on behalf of the pursuer that, in the present case, the injuries upon which the action is founded were not sustained on one particular date. The pursuer's position was that the act or omission to which the injuries were attributable was a continuing one; the submission was that that act or omission had continued until after 7 March 1992, the date three years before the commencement of the present action.
In order to judge of the validity of the pursuer's submissions in this regard, it appears to me to be necessary to identify carefully what "act or omission" is founded upon by him. It is plain from the terms of Condescendences III and IV that two kinds of continuing act or omission are involved. The case advanced in Condescendence III is as follows:
"The pursuer's said loss, injury and damage was caused by the deliberate acts of the said Corporals Gray, Fraser, Downie and Bradley and the said Lance Corporals Reid and Whitelaw, and the said Sergeant Major Frew, for whose acts in the course of their employment the Ministry are liable. Said Corporals and Lance Corporals and Sergeant Major knew or ought to have known that they were not entitled to bully, assault or extort money from any soldier in their unit, including the pursuer. They knew or ought to have known that the unit should be administered according to the Queen's Regulations 1975, more fully referred to below. They knew or ought to have known that if they assaulted, bullied or extorted money from a soldier such as the pursuer, that soldier would suffer injury, physical or mental or both. It was accordingly their duty not to bully, assault or extort money from the pursuer. It was their duty to apply the Queen's Regulation. It was their duty to adopt methods of command and treatment which would ensure respect for authority and foster feelings of self-respect and personal honour. It was their duty not to adopt an offensive manner towards the pursuer. It was their duty not to assault the pursuer, or to inflict physical or mental degradation upon him. It was their duty not to ill-treat the pursuer. In these duties the said Corporals and Lance Corporals and Sergeant Major failed and so caused or materially contributed to the pursuer's said loss, injury and damage. Bur for their failures in duty said loss, injury and damage would not have occurred. ... The acts of said soldiers were committed in the course of their employment with the army. They were committed as part of an inappropriate method of exercising authority and maintaining discipline over the pursuer and other soldiers under their charge. ..."
Thus this part of the pursuer's case is founded upon alleged bullying, physical assaults and the extortion of money from soldiers, including the pursuer. It is important, in my opinion, to recognise that this ground of action is not confined to the infliction of physical assaults, or extortion of money, but embraces bullying. The second branch of the pursuer's case is set forth in Condescendence IV. It is of a different nature. It is there averred that:
"Further and in any event, the pursuer's said loss, injury and damage was caused by the fault and negligence of the commissioned and non-commissioned officers to whom the pursuer reported instances of bullying, for whose acts and omissions in the course of their employment the Ministry are responsible. Said officers were, as condescended upon above, Sergeant Gilbert, Sergeant Major Rennie, Major Evans and the unit's chaplain. Said officers knew or ought to have know that the unit should be administered according to the Queen's Regulations for the Army 1975."
There then follows and extensive quotation from those Regulation, which, in the circumstances, I need not reproduce here. The pursuer's averments of fault continue in this way:
"Said Sergeant Gilbert, Sergeant Major Rennie, Major Evans and the unit's chaplain knew or ought to have known that if bullying and extortion were permitted to occur within the unit, morale and discipline would deteriorate and the victim or victims would be likely to suffer injury, physical or mental or both. They knew or ought to have known that a common feature of bullying and extortion is that perpetrators often carry out their attacks on victims outwith the presence of other persons in authority. It was accordingly their duty to institute and enforce a system of instruction and training within the unit whereby all officers and soldiers were made aware of and encouraged to follow the Queen's Regulations. It was their duty to institute and enforce a system of instruction and training which actively discouraged bullying and extortion. In particular it was their duty to make it known what deterrents and punishments would apply if bullying or extortion took place. It was their duty to institute and maintain a system of unannounced, unexpected and if necessary concealed spot checks on the unit's activities, in order that the existence or extent of any bullying or extortion could be ascertained, monitored and dealt with. In the event of Sergeant Gilbert, Sergeant Major Rennie, Major Evans and said chaplain receiving reports of bullying, it was their duty to take reasonable steps to ascertain the nature and extent of any bullying by investigations including interviewing other soldiers and setting up a system of spot checks on the alleged perpetrators. In the event of bullying being discovered, it was their duty to discipline the perpetrators, by for example, issuing written warnings, or reports in accordance with the Manual of Army Security, or periods of detention, or by ordering transfers to another unit, or court-martial, and further to make said disciplinary measures and the cause thereof public knowledge within the unit in order to enhance morale and discipline. It was their duty thereafter to monitor the effectiveness of their disciplinary measures upon the perpetrators, by further spot checks and if necessary further disciplinary measures. In the event of any investigations into alleged bullying being inconclusive, it was their duty to offer a complainer such as the pursuer a transfer to another unit. In these duties said officers failed, and so caused or materially contributed to the pursuer's loss, injury and damage. But for their failure in duty, said loss, injury and damage would not have occurred."
Having thus identified the nature of the pursuer's allegations concerning the continuing acts or omissions upon which he founds, I now consider the evidence relating to them. Dealing first with the matters identified in Condescendence III, there was considerable evidence from the pursuer of what might be described as physical assaults and abuse during the course of his basic training at Castlelaw Ranges, Glencoe/Glenshee and Otterburn. It was a matter of agreement, based upon the document, 33 of process, which sets forth the timetable of the pursuer's service, that all of that particular physical abuse occurred between the pursuer's joining the Army on 23 July 1991 and the end of December 1991. On or about 28 February 1992, the pursuer was sent for a period of three weeks for service in Northern Ireland. The pursuer gave evidence about his experiences there, which I have already narrated. He described an instance of physical assault committed by Sergeant Major Frew by the use of the butt of the pursuer's own rifle which he had inadvertently left in a motor van, in which he had been transported. This assault appeared to the pursuer to be and I accept that it was a disciplinary act inflicted upon him on account of his having forgotten to remove his rifle from the vehicle. The pursuer was however unable to place a date upon this event. In these circumstances, I am unable to hold that it occurred on or after 7 March 1992, the date on which the triennium commenced. Accordingly I find it impossible to conclude that a continuing course of assaults ended within the triennium. That, however, is not the end of the matter, in my opinion. In his evidence, the pursuer went on to describe other experiences which he had had during the three week period concerned in Northern Ireland. The pursuer said that during the remaining part of the 21 days there, Sergeant Major Frew took a dislike to him; he was on a "power trip"; he abused his position of power. The pursuer went on to elaborate what he meant by that evidence; he said that this non-commissioned officer had made his life as uncomfortable as possible. He had attached the pursuer to those having duties in relation to radio communication. In consequence, the pursuer got little or no sleep. Sergeant Major Frew was always shouting and swearing at him, which he regarded as mental abuse.
At this point in the pursuer's evidence, as I have narrated, counsel for the defender took objection to the line of evidence upon the ground that there was no record for it, the only record relating to the acting of Sergeant Major Frew being found at page 11B-C of the closed record, as further amended. The averments there to be found related only to the assault with the rifle butt. There followed certain discussion concerning this objection, but it became unnecessary for me to make a determination upon it, because counsel for the pursuer indicated that she intended to carry that particular line of evidence no further. However, in the circumstances concerned, I consider that I am entitled to take into account the pursuer's evidence given before the point at which objection was taken.
The conclusion which I have reached is that the pursuer's evidence relating to his treatment in Northern Ireland does demonstrate a continuing act or omission of a kind averred by him extending into the triennium. It appears to me that what the pursuer described as having happened to him in Northern Ireland, leaving aside the assault with the rifle butt which I consider cannot be dated, amounted to a regime of bullying. There was no evidence to show that this kind of activity continued after the pursuer's return to Great Britain from Northern Ireland, but that is not a matter of importance in the context. For these reasons I consider that the pursuer has shown that, to the extent that I have mentioned, a continuing act or omission extended into the triennium. Accordingly, my conclusion is that the pursuer has brought himself within the provisions of section 17(2)(a) of the Act of 1973 and that his action is therefore not time barred, even though other elements in the pursuer's allegations of wrongful conduct cannot be said to have continued into the triennium. No authority was put before me nor was any argument addressed to me on behalf of the defender to the effect that the defender's plea of time bar could be partially sustained and partially repelled in relation to some particular part of the pursuer's case and I do not therefore think it necessary to consider that possibility.
Despite the conclusion which I have reached, it is plainly right for me to express my opinion on the other aspects of the case which were ventilated in evidence and the subject of argument. Turning then to the subject matter focused in Condescendence IV, there was evidence from the pursuer that, on occasions, he did complain about the treatment which he was receiving. The first complaint which the pursuer mentioned in evidence was to Sergeant Major Rennie relating to the actings of Corporal Gray and, in particular, his habit of choking the pursuer and prodding him with a pen or bullet behind the ear. While the date of that complaint was not precisely stated, as I understood it, it was at or shortly after the period of the Tactics Camp at Castlelaw Ranges, in August and September 1991. The complaint was taken as far as consideration by Major Evans, but was not resolved to the satisfaction of the pursuer. The second complaint to which reference was made concerned the behaviour of Corporal Gray at the Full Battle Camp at Otterburn. Sergeant Gilbert had intervened in an assault perpetrated upon the pursuer and thereafter had a "quiet word" with the perpetrator. Sergeant Gilbert apologised to the pursuer concerning what had happened, saying that he would deal with the matter. That issue was never resolved to the satisfaction of the pursuer. The third complaint of which mention was made related to the behaviour of Corporals Reid and Whitelaw in relation to extortion. Those problems had occurred at the time of the Mini Battle Camp at Castlelaw Ranges in October and November 1991. That complaint also was not resolved to the satisfaction of the purser.
As I understood the pursuer's submission, it was contended that the omission founded upon in relation to these complaints was of a continuing nature and endured until the end of the pursuer's Army service, well within the triennium. The reasoning underlying that submission appeared to be that, if a complaint was the subject of inaction or, in any event, inadequate action, it constituted an on-going omission. It appears to me that that submission is unsound. If such an approach were taken, it would follow that such an omission endured as long as the pursuer and the Ministry of Defence were in a relationship in which the latter had duties towards the former, which could have been a period of many years. Such an approach would plainly undermine the law of limitation of actions. I prefer the approach to this matter advanced on behalf of the defender, which was to the effect that an omission, in the context concerned, should be seen as having come to an end at a time when, had reasonable care been adopted, the complaint concerned should have been resolved. Adopting that approach to the matter, I find it impossible to reach a conclusion as to when the omissions concerned came to an end, for the reason that there was no evidence to indicate the period of time within which reasonable officers exercising reasonable care could have been expected to have dealt with the complaints concerned. Accordingly, in relation to this part of the pursuer's case, I am unable to hold that the continuing omission said to be involved here extended into the period of the triennium. Before parting with this element in the pursuer's case, I should explain that there was evidence that the pursuer had complained to the Army Special Investigation Department, within the triennium, concerning a number of his grievances, following the involvement of that organisation in his case, in consequence of the pursuer having described his experiences to the press. In my judgement, in the context of the pursuer's case as it is pled, that evidence has no bearing upon the issue with which I am currently concerned, since no case is made in Condescendence IV as to omissions by personnel of that department to act appropriately. Condescendence IV is related only to the alleged shortcomings of those named in it, who do not include any member of the staff of that department.
I propose next to deal with the pursuer's case, so far as it is sought to be brought under the provisions of section 17(2)(b) of the Act of 1973. That enactment provides:
"17(2) Subject to sub-section (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after- (b) 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 reasonable 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; (ii) that the injuries were attributable in full or in part to an act or omission; ..."
During the course of the argument before me, an issue arose as to whether the pursuer was entitled to rely on the provisions of sub-paragraph (ii), just quoted. The defender's contention that the pursuer was not so entitled appeared to be based on the observations of the Lord Ordinary who dealt with this case on 2 October 1998 on the defender's motion for the correction of her interlocutor of 24 July 1997. In her opinion, issued in connection with her decision to correct the interlocutor concerned, reported as Carnegie v The Lord Advocate (No 2) 1999 S.L.T. 521, at page 523, Lady Cosgrove refers to the pursuer's case as one involving the contention that the provisions of section 17(2)(a) and (b)(i) obviate the defender's plea of time bar. I have reached the conclusion that the defender's position on this matter is unsound. In Condescendence VI of his pleadings, which deals with issues related to time bar, reference is made to section 17(2)(a) and (b), without qualification. Furthermore, the interlocutor of 24 July 1997, as corrected, allowed the parties a Preliminary Proof on the question of time bar, again without qualification. In these circumstances, I am persuaded that I am not disabled from considering any case which the pursuer might advance under section 17(2)(b)(ii).
Before coming to deal with the submissions made on behalf of the pursuer, it is appropriate that I set out my understanding of the law as to the interpretation of section 17(2)(b)(i). In Blake v Lothian Health Board, at page 1251, Lord Caplan expressed the view that "the fact that injuries cannot be described as minimal or trivial, does not necessarily meet the test that they are sufficiently serious to justify an action". Leaving aside the significance of the word "his" in the enactment, he considered that "the proper question in this case seems to me to be whether a reasonably claimant would in all the circumstances consider that the facts about the injury which were known (or could have been ascertained) rendered it worthwhile to raise an action ..." In Shettleton v Duncan Stewart & Co Ltd, Lord Prosser at pages 518-519 said that:
"I think it is clear that the expression 'sufficiently serious to justify ... bringing an action of damages' means at least that the claim would have to sound in damages above the de minimis level. But in my opinion the terminology adopted for the section indicates a broader criterion, enabling one to say that a claim, although not de minimis, was not sufficiently serious to justify raising an action".
In the light of these observations, I take it to be that, although a claim may not be de minimis, it may yet not be sufficiently serious to justify the raising of an action.
In the argument before me there was considerable discussion as to the significance of the word "his" in sub-paragraph (i) of the enactment; in other words, as to the extent to which the criterion embodied in the enactment was objective or subjective. It will be apparent from my narrative of the arguments what the positions of the parties were. In my opinion, there appears to be a degree of uncertainty in the interpretations of the enactment hitherto arrived at in relation to this point. In Blake v Lothian Health Board at page 1251, Lord Caplan expressly reserved his opinion as to the extent to which it would be legitimate to consider the personal situation of the claimant, since it was not necessary for him to decide that point in the context of that case. He proceeded to consider the question as to whether a reasonable claimant would in all the circumstances consider that the facts about the injury which were known, or could have been ascertained, rendered it worthwhile to raise an action. The matter was again considered in Ferla v The Secretary of State for Scotland. There, at page 664, Lord Johnston said:
"I consider that the test to be applied in relation to section 17(2)(b) is whether or not a reasonable claimant in all the circumstances would consider that the facts known to him, or capable of being ascertained by him about his injuries, could be regarded as sufficiently serious, that is to say something more than trivial, to warrant raising an action ...".
Once again an objective approach appears to have been desiderated, although it is not apparent to me that there was any feature in the case in question which rendered the issue a controversial one. In Lowe v Grampian Health Board, at page 734 Lord Philip adopted a similar approach. However, in the report of the decision of the Lord Ordinary following the procedure roll debate in the present case, reported in 1998 S.L.T. 872, at page 877, a different view is taken; there the Lord Ordinary said this:
"In this respect I observe Lord Caplan's suggestion in Blake v Lothian Health Board that the word 'his' in the statute may be significant since it may relate to the personal situation of the claimant (in contradistinction to a phrase such as 'the bringing of an action'). Lord Caplan did not need to decide that point because in Blake it was not suggested that there were circumstances peculiar to the pursuer, but in the present case the pursuer finds himself in a situation in which he was a new recruit in an established regime and where the making of a complaint about that regime outwith the internal complaints procedure would, at best, have placed him in an invidious position and may well have been perceived by him as being inconsistent with remaining as a recruit. I am of the opinion that, as Lord Caplan suggests, significance ought to be attached to the use of the word 'his' in the statute and that the appropriate test to be applied is not an objective one defined by reference to the ordinary reasonable man but one which takes into consideration the particular circumstances of the individual pursuer. I consider that in assessing whether the injuries sustained were 'sufficiently serious to justify his bringing an action', the pursuer's specific situation as a young recruit anxious to remain in the Army ought therefore to be taken into account. It seems to me that since it may well be that the pursuer could establish that it was only in May 1992 when he realised that it was going to be impossible to do so, or more specifically after he had left in July 1992, that it could be considered that the circumstances were such that it was 'worthwhile' for him to raise an action. It follows that this matter is also one in which enquiry is appropriate."
In this passage, Lady Cosgrove therefore adopts a subjective approach to the criterion.
Against this background of authority and having regard to the circumstances of this case and arguments addressed to me, had I not reached the conclusion which I have, it would have been necessary for me to reach a conclusion as to the proper interpretation of the enactment concerned and, in particular, the significance of the word "his" in it. The opinion which I have formed is that the unqualified subjective approach expressed by Lady Cosgrove is one which cannot be properly followed. It respectfully appears to me that the adoption of such an approach could have absurd consequences. A pursuer could argue that, if he could show that his employment might be jeopardised by his raising legal proceedings against his employer, he could inhibit the operation of the time bar until such time, it might be far in the future, when he relinquished his employment. In my opinion, such an approach cannot have been intended by Parliament. Nevertheless, I do consider that some content has to be given to the word "his" in the context. It appears to me that sub-paragraph (i) requires that an assessment must be carried out of the benefit, in the form of damages, to be obtained from the bringing of the action, in comparison with the time, trouble and expense which the claimant would require to expend in the conduct of such an action. These considerations, in my opinion, might differ in significance, as between one claimant and another, and, to that extent, but only to that extent, there is an element of subjectivity in the criterion.
Against this background, I now consider the application of the statutory provision to the circumstances of this case. The evidence of the pursuer was to the effect that he was assaulted and beaten frequently during the course of his basic training. Some of the incidents which he described appeared to me to be of a very serious nature. In saying that, I have in mind particularly the incident which he described as having occurred in Glencoe/Glenshee and also the incidents which were described as having taken place at Full Battle Camp in Otterburn in November and December 1991. The incidents at Otterburn were aggravated by the fact that they occurred in the presence of other recruits. In the case of the incident which occurred on the bus, when the pursuer was beaten on the head with a helmet, he was quite significantly injured. Taking all these incidents together, along with the more minor assaults which the pursuer said that he suffered, one can readily agree with the pursuer's description of his life at this time as a "living hell". In my opinion, on the basis of what had happened to him before the end of 1991, the pursuer must have become aware or, in any event, it would have been reasonably practicable for him in all the circumstances to become aware, that the injuries in question were sufficiently serious to justify his bringing an action of damages on the statutory assumptions. Making the best assessment of the value of such a claim that I can, having regard to the evidence led, it appears to me that the pursuer would have had available to him by the end of 1991 a claim which could be valued in thousands rather than hundreds of pounds. Ignoring, as I think I must, the consideration relating to a possible jeopardy to the pursuer's career in the Army from raising proceedings against the Ministry of Defence, it appears to me that section 17(2)(b)(i) could not produce a date later than the commencement of the triennium in this case.
Finally, I consider the argument presented under section 17(2)(b)(ii). Essentially the contention was that it was only with the receipt of Dr Stevenson's report dated 4 July 1994, which dealt with the nature and causation of the pursuer's respiratory problems, that the triennium began to run. In my opinion, this submission cannot be sustained because it proceeds upon the assumption that no worthwhile cause of action had accrued to the pursuer prior to that date. In my opinion, that assumption is not justified having regard to the conclusion which I have already reached in relation to the operation of section 17(2)(b)(i). It may be that, after receiving Dr Stevenson's report dated 4 July 1994, the pursuer appreciated that the value of his claim might be substantially greater than he had previously thought, but that appears to me to be nothing to the point.
In the whole circumstances I shall repel the defender's plea-in-law one and allow to the pursuer a proof before answer.