Scottish Court of Session Decisions

[1] This case came to procedure roll on the defenders' pleas. A note of argument for the defenders indicated that three separate arguments were to be advanced. The first of these was to the effect that the action was time barred. Reference is made in the note of argument to alleged deficiencies in the pleadings. However Mr Hanretty, who appeared for the defenders, accepted that the pleadings had been altered since that document was prepared and he was now prepared to accept that the pleadings were sufficient for enquiry. In these circumstances he asked me to reserve the second plea-in-law for the defenders. That motion was not opposed. Accordingly I shall take that course.

[2] The note of argument presents two other grounds of argument. It is convenient to deal with the third point first. That is an assertion that the pursuer's averments in Article 9 of the Condescendence relating to housework are irrelevant and lacking in specification. The averment appears on page 16 and in the context of a general description of the effects of the pursuer's severe breathlessness upon his ability to live and work it is averred, "He cannot assist with housework". Mr Hanretty submitted that it was far from clear what this averment was doing there. He asked rhetorically if this was an averment in support of a claim for services. For myself I have difficulty in seeing how it could be in support of such a claim because it is not supported by any averments in relation to loss. Mr Allardice confirmed that he is making no claim on behalf of the pursuer under Section 8 or Section 9 of the Administration of Justice Act 1982. He also explained that, properly read, the averment quoted was merely one additional indication of the effects upon the pursuer of the condition which he attributes to the defenders' fault. In my view that is the correct way and a fair way to read the pursuer's averment and I reject the argument advanced for the defenders in relation to this matter.

[3] A more substantial point was raised in the second paragraph of the note of argument and I quote that in the following terms:

[4] In advancing that argument Mr Hanretty drew attention to the pursuer's pleadings and the reply by Mr Allardice contained reference to virtually the same passages. It is convenient then just to look at the relevant averments. In Article 4 of the Condescendence, following upon a general narrative that the pursuer was exposed to fumes of a particular character in his employment with both defenders, it is averred:

[5] Article 5 refers to the general knowledge in the industry of the causal relationship between such damage to the lungs and the working conditions condescended upon. In Article 9 the pursuer avers in terms: "As a result of contracting said condition the pursuer has suffered loss, injury and damage .... He suffers from severe breathlessness ... He has suffered from increasing breathlessness since the mid-1980s. He was diagnosed as suffering from chronic obstructive airways disease or bronchitis. He is significantly disabled." There follow averments of the character of the disability and it is stated, "this disability has persisted for about two years". In response to certain averments by the defenders the pursuer says:

The defenders' averments to which these averments respond is in the following terms:

Reference was also made in the note of argument to the pursuer's averment in Article 10 of the Condescendence. Initially Mr Hanretty did not refer to these pleadings. Mr Allardice submitted that what is averred there about the history of the pursuer's knowledge of his condition was related essentially to the matter of the application of the statutory provisions about limitation and prescription. I accept that that is so and it appears to me that these averments have no real relevancy to the argument which Mr Hanretty has advanced.

[6] In essence against the background of these pleadings Mr Hanretty argued that the pursuer simply fails to aver how much of his present disability is caused by the inhaling of fumes in the employment of the defenders. The pursuer, he submitted, did not make it plain to what extent he was disabled as a result of inhaling such fumes. He had difficulty reading these pleadings as suggesting that the pursuer's emphysema was caused by inhaling fumes, particular in the light of the defenders' express averment quoted earlier as to the cause of the emphysema. It was difficult to see what the pursuer was offering to prove and it was quite impossible to determine what the pursuer was saying in relation to the causal relationship between the inhaling of fumes and the pursuer's condition. In particular it was appropriate for the pursuer to aver the extent to which the defenders were responsible for the pursuer's present condition and the extent to which the pursuer's present condition was properly attributable to other factors. There was thus no fair notice of what the pursuer was seeking to prove. However he did accept that both sides would have access to medical expertise and that the medical examiners instructed on behalf of the defenders would be able to examine the pursuer so he made no point in relation to actual prejudice but submitted there was a risk of prejudice because of the lack of clarity in the pursuer's case.

[7] In reply Mr Allardice submitted that the pleadings already quoted from the pursuer's Condescendence gave adequate notice of the case that the pursuer was making. On the record the pursuer was seeking to attribute the whole of his condition of severe disability to the chronic obstructive airways disease, otherwise described as severe chronic obstructive pulmonary disease. The defenders appear to be taking a diametrically opposed position. The resolution of this dispute was something that fell to be determined by evidence. In particular he advanced the proposition based upon McMenemy v James Dougal & Sons Limited in 1960 S.L.T. (Notes) 84, that in determining whether or not fair notice of the case had been given the record should not be subjected to a careful and meticulous scrutiny of the kind appropriate to a conveyancing deed. He also submitted that there was nothing to suggest that the defenders would be prejudiced by lack of fair notice. In this type of case both sides had access to the pursuer for the conducting of medical examinations and indeed the doctors would have the opportunity to see each other's reports and to criticise them. He referred to other authorities in support of his submission that the specification which was deciderated here by Mr Hanretty for the defenders was excessive. In short, the pleadings gave fair and adequate notice of the case to be made.

[8] It is in my experience very common for parties on both sides of a litigation to make averments in relation to the subject matter which averments are mutually and entirely contradictory one of another. It may be that in certain situations a pursuer or a defender will condescend upon an apportionment of liability or an apportionment of the alleged injurious consequences in the light of the facts averred. It is by no means, however, unusual to find that neither party condescends in detail upon such an apportionment. In my view there is no need to do so, particularly in a case of this kind where both sides have access to medical expertise. Ultimately the question of the extent to which the pursuer's disability is attributable to the conditions at work, if it is proved to be attributable in any significant respect, is a question of fact to be determined on the basis of the evidence. I do not think that the defenders will be prejudiced by the absence from these averments of any further specification of the kind which is deciderated. In all the circumstances I consider that the attack upon the relevancy of the pursuer's averments is not one which can succeed at this stage and I think it would be appropriate simply to reserve the pursuer's plea to the relevancy.

[9] The pursuer moved for the expenses of the procedure roll hearing and that motion was not opposed. The pursuer will therefore be granted his expenses.