Scottish Court of Session Decisions

[1] A motion to allow a minute of amendment to be received in this action was opposed on the basis of its lateness but also of lack of specification. To assist me in the exercise of my discretion in this matter, I was given a full address by counsel for each party.

[2] The matter came before the court as the result of an interlocutor, pronounced by Lord Penrose on 5 December 2000 in the following terms:

[3] The pursuer's case is that he is entitled to reparation from the defenders because he contracted industrial asthma while in their employment between 1991 and May 1993 or at least that his symptoms and breathlessness after 1991 were materially contributed to by the acts and omissions by the defenders. Despite his having left the defenders' employment in May 1993, the present action was not signetted until 10 May 1996. Defences were lodged and on 20 October 1996 the pursuer had the action sisted so that he could apply for legal aid. The defenders recalled the sist on 26 May 1998 but thereafter nothing happened until 29 January 1999 when the Open Record was allowed to be received late. The case continued on the Adjustment Roll until 8 April 1999 and thereafter, when the defenders lodged minutes of amendment, those were not answered and the pursuer made no alteration to his pleadings. The Closed Record in its turn was allowed to be received late on 13 January 2000. The case was sent to Procedure Roll but, of consent, on 31 May 2000, a proof before answer was allowed to begin on Tuesday 5 December 2000. On 23 November 2000 a Lord Ordinary refused to allow the pursuer's list of witnesses to be received late and, accordingly, at the date of proof on 5 December 2000 there was neither a list of witnesses for the pursuer nor had any reports been lodged on his behalf.

[4] The Counsel who appeared before Lord Penrose also appeared before me. Counsel for the pursuer gave a full account of the progress of the claim. She stated that should the minute of amendment not be received, the pursuer could not continue with the action and it would require to be abandoned. She had tendered on 5 December a minute of amendment which differed markedly from the minute of amendment tendered on 18 January 2001 in relation to which, she frankly stated, adjustment would be required. Accordingly it could not be maintained that a fully developed proposed minute of amendment was available for the court in the specified time which had been allowed.

[5] I was informed that the pursuer, described in the Closed Record as a panel beater, had had a series of employers prior to the defenders. In the 1980s he began wheezing and was told that he had asthma, probably occupational in origin. The question of isocyanide exposure was raised at that time. In his previous employment he had worked in juxtaposition to persons engaged in processes involving isocyanate paint. He consulted solicitors in March 1996 and gave an account of his occupational history. The Record when closed in 1999 was based upon exposure to spray from paint primers and paint being applied to vehicles in the defenders' body shop. It was said that those paints included two pack paints in which toluene di-isocyanate, epoxy resin and other irritants were present and given off as fumes and fine spray during the painting process. That was the pursuer's sole and only basis for blaming the defenders for exposure to these noxious substances which, he averred caused him to sustain industrial asthma.

[6] I was informed that the pleadings had been read over to the pursuer at the Open Record stage in March 1999 but that there was no indication from the pursuer that there was any difficulty or problem then or thereafter. It should be noted that the defenders' position on pleading was that at no time were paints containing isocyanates used in their body shop and although occasional minor priming work was carried out there the primer used did not contain isocyanates. Accordingly the pursuer and his advisers were clearly put on notice that the only case made by the pursuer was said to be not only unsound as to location but also that the relevant paintwork done in the body shop did not contain isocyanates.

[7] No expert report for the pursuer was instructed in this matter until November 2000. That report was completed, I was informed, on the Sunday before the diet of proof. Counsel appreciated having seen the report that not only could the diet of proof not proceed, but that unless the case were amended, it had no basis.

[8] The amendment now proposed is to delete the above reference to two pack paints and exposure from spray painting being the source of isocyanate and instead to substitute welding and body filling and the materials used therein as a source of different forms of irritant. The suggestion is now that because the pursuer welded painted body parts from time to time, he was exposed to isocyanate from that process or that paint which was polyurethane paint.

[9] The amendment as now proposed does not deal with the question of spray painting in the body shop, traces of averments in relation to which remain throughout the pleadings, but the reference to any noxious material in that spray however has been removed. The minute of amendment now produced has the effect of rendering whole parts of the case pled irrelevant, because of its "patchwork" nature.

[10] I have come to the view that the amendment proposed is a radical and fundamental alteration to the pursuer's case. Instead of the defenders being blamed for where they located the pursuer in relation to work carried out in his presence, it is now proposed that they be blamed (assuming the averments are relevant), for the results of an accumulation of alleged irritants produced as part of his welding activity and also by some new and entirely different alleged irritants in primer paint. It is clear that if any duties were incumbent on the defenders in this regard, they would be significantly different from those incumbent upon them in a situation involving exposure to spray from another employee's work. Counsel for the pursuer directed my attention to the observations of the Inner House in Cork v Greater Glasgow Health Board 1997 S.L.T. 740. In that case the Inner House, reversing the Lord Ordinary, held that certain proposed amendments did not make a radical alteration to the case previously pled. That was a case based upon the inappropriateness of a type of hoist in moving patients. That generality was not radically departed from. There is no analogy with the present situation. Here, although the new case is based upon irritants, these are not all the same irritants and are not the irritants which were alleged to have been negligently within the pursuer's breathing zone in the case as pled.

[11] Having determined that the amendment is from the pursuer's point of view necessary and that it makes a radical alteration to his case, the third consideration is whether it should in the exercise of discretion be allowed at this late stage. This is a new case. It could not have been brought if the pursuer had abandoned the present action and attempted to raise another action without his requiring to attempt to avoid the limitation period. It is now more than seven years since the alleged negligence occurred. One test might be whether there are circumstances whereby the pursuer could successfully invoke the provisions of Section 19A of the Prescription and Limitation Act. In my opinion, he could not do so. His occupation was within his own knowledge at all times. The pleadings in the case were read over to him and he approved them. He knew the defenders' factual contentions from their Answer 2 and in any event he had waited until the last days of the triennium before raising this action in the first place. Had this matter come before me on a debate about whether the action should be allowed to proceed invoking Section 19A, I would not have allowed it.

[12] Counsel for both parties argued, at length, on the matter of prejudice. While no doubt the pursuer is prejudiced if he is not allowed to amend, in that his counsel has indicated that the action will be lost, that argument is no stronger than it would have been under a limitation plea. For the defenders, it was argued that because the pursuer was legally aided with a nil contribution, there was no effective sanction which the court could impose to compensate the defenders for the wasted expenditure incurred in the action to date which by amendment was to be rendered entirely different. The discharge of the diet of proof in December was something for which the pursuer would require to pay but, unless the pursuer were to succeed in the action and the defenders be allowed to offset their expenses against an award of expenses to the pursuer, the pursuer would have had an unfair advantage by virtue of his legal aid certificate. The defenders' counsel also argued that in any event the claim was not one of great materiality in the events which had happened to the pursuer. The pursuer would not obtain any significant sum for wage loss since he would have to repay the benefits paid to him over the course of five years from the date of his cessation of work. The pursuer's case was in any event one of aggravation rather than causation and by the time that the expenses which the defenders were entitled to offset were taken into account, very little would be left of his solatium.

[13] I agree with counsel for the defender that it is a factor that the assisted litigant might obtain an unfair advantage from a legal aid certificate. In my view the circumstances in an individual case might warrant some consideration being paid to that matter. A case of substantial value and importance might be treated differently, in the exercise of discretion in this matter, from one in which the sum at issue is not particularly substantial. Some pursuers might be more prejudiced than the present pursuer if their action had to be abandoned.

[14] While I think a court could legitimately take these matters into consideration, I do not require to do so in the present case. It is sufficient that the pursuer without his amendment has no case at all and that he cannot raise a new action. In my opinion he has no excuse for the present situation, the blame for which must lie either squarely upon his own shoulders or have been compounded by the action or inaction of the solicitors he instructed. That the Record could be allowed to close without having had the benefit of an expert view upon any irritants to which the pursuer might have been exposed which could have caused his asthma was not satisfactorily explained. The pursuer delayed in commencing his action for 3 years and the Record did not close until 28 April 1999. The pursuer also was consulted about the pleadings and confirmed them. No doubt had this been a simple case of spraying isocyanate paints within the breathing zone of the pursuer, not much required to be done in order to establish liability but since that is not and never was the case the said inaction cannot be satisfactorily explained. Nor indeed was it satisfactorily explained why the relevant expert was not instructed until the year 2000 and even then at such a time as meant that his report was not available until two days before the diet of proof, that no witness list had been lodged and no other reports lodged.

[15] I accordingly refuse to allow the minute of amendment the pursuer was directed to lodge within 6 weeks of 5 December 2000 to be received.