Scottish Court of Session Decisions

Lambie v. Toffolo Jackson Ltd & Anor [2002] ScotCS 65 (11th March, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD McEWAN in the cause ALEXANDER LAMBIE Pursuer; against TOFFOLO JACKSON LIMITED (IN LIQUIDATION) AND ANOTHER Defenders:   ________________

Pursuer: Marshall, Solicitor Advocate; Thompsons, (Glasgow)

Defenders: R.N. Thomson; Simpson & Marwick, W.S., (Edinburgh)

11 March 2002

1. This is an action of reparation in which the pursuer, now an man of sixty-four years, alleges a working history of some six years with an employer which exposed him to asbestos dust. A lot of the work was in the shipbuilding industry. The last exposure was in 1962. His employers, the defenders, are now in liquidation. Many years went past before the pursuer raised the action, principally for provisional damages. The employer now claims the matter is time-barred.
2. Let me begin by setting out the provisions of the relevant legislation before turning to the facts, the argument and the cases discussed before me. The Prescription and Limitation (Scotland) Act 1973 provides inter alia:

"... 17 ... (2) Subject to subsection 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, or

(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 reasonably 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 whole or in part to an act or omission and;

(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part of the employer or principal of such a person.

... 19A(1) ... Where a person would be entitled, but for any of the provision of Section 17 ... of this Act to bring an action, the Court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision".

3. The action was raised on or about 14 May 1999 and the question of whether it was by then time-barred was first raised in Answer 8 for the defenders to which the pursuer made extensive counter averments. The gravamen of the defenders' complaint was that in December 1995 the pursuer had the necessary awareness to have raised proceedings then or at least before 13 May 1996. I heard the case in Procedure Roll on 23 May 2001 when the pursuer was granted leave to amend. He did so and No. 16 of Process is the Minute of Amendment. It alters the response in Condescendence 8 and at the hearing before me on 19 and 20 December 2001, the pursuer moved me to allow the record to be amended in terms. The defenders' opposed the amendment and renewed their arguments on time-bar. They maintained the case was time-barred and there was no room to allow equitable relief under the Act or at worst for them, Proof Before Answer on the last point only should be allowed. The pursuer said the case was not time-barred and Proof should be allowed, failing that, before answer, Proof should be allowed on both the question of time-bar and equitable relief.
4. The amendment before me is lengthy but it's material parts may be summarised thus. In 1995 at various times, the pursuer consulted his GP complaining of chest problems. An x-ray was carried out at Stobhill Hospital on 1 December 1995. The report on that indicated inter alia evidence of "... bilateral mid zone pleural thickening ...". The GP was sent that report and on 1 March 1996 the pursuer saw him and was told he had pleural plaques. A month later he consulted Clydeside Action on Asbestos and applied for benefits on the basis of diffuse bilateral pleural thickening. On 9 April a further x-ray at Stobhill reported that he had "... a small amount of pleural thickening ...". On 20 May he was again x-rayed for the Medical Board. Pleural plaques were found and he was told this. Some ten days later his claim for benefit was refused, the reason given to him was that he did not have diffuse bilateral pleural thickening.
5. The amendment thereafter goes on to detail the various efforts made on his behalf to get further medical advice and to sue with the benefit of Legal Aid. It is clear that his experts differed in opinion from the Medical Board doctor. There were many delays in spite of Clydeside Action urging upon his advisors in February 1998 that he had been told he had pleural plaques. For some time the file of the agents was closed and it was not really until 12 April 1999 that the pursuer's expert firmed up on pleural plaques; prompt action was taken and proceedings raised. It seems that all the various x-rays were not uniformly interpreted as revealing pleural plaques by those who saw and reported on them and thus no asbestos related disease was in evidence.
6. I was referred to the following authorities viz. Shuttleton v Duncan Stewart 1996 SLT 517; Carnegie v Lord Advocate 2001 SC 802; Donald v Rutherford 1984 SLT 70; Agnew v Scott Lithgow 2001 SC 516; Comer v Scott 1978 SLT 235; Halford v Brooks [1991] 1 WLR 428; Spargo v North Essex District Health Board [1997] P.I.Q.R. 235; and Nimmo v British Railways Board 1999 SLT 778.
7. In moving me to dismiss the action Mr Thomson did not renew the argument presented in May on the former Record. What he said this time can be summarised thus. He began with the negative proposition that the pursuer had not said that he did not know what pleural plaques were, yet he went to the action group.
8. Counsel's next and main point merits close scrutiny and it all turns on what the pursuer avers he was told by his doctor on 1 March 1996. It is averred that the doctor told him he had pleural plaques. The argument was that it did not matter that the x-ray report did not mention plaques since at the end of the day that advice was correct, even if the doctor misinterpreted the report and even if this (correct) advice was unreliable. The point was that he took action on it.
9. This argument was further developed to this effect. Counsel said that pleural thickening is the same as plaques, or changes in the lung to include plaques, or a specific condition known as diffuse bilateral pleural thickening (nowhere does the pursuer aver this). He then posed this double and awkward alternative question; did the radiologist think he saw plaques and the GP correctly interpreted this; or thought that there were no plaques and the GP misunderstood but yet made a correct diagnosis. The pursuer does not offer to say which is the correct view and on the first alternative his case must fail. It could not be said he got the wrong advice in March. He took action and any complication in advice after that did not matter. A pursuer did not get an indefinite period to investigate then three years to sue. He referred me to the cases of Comer; Halford and Spargo. Absolute knowledge was not needed and knowledge was stronger than awareness.
10. Nothing was pled to say that it was not reasonably practicable for him to be aware. His action on the advice was enough.
11. On the question of equitable relief, the burden was on the pursuer. Nimmo was referred to. On the assumption that he was aware in March 1996, there had to be an explanation for a delay to May 1999. Mr Thomson listed some twenty-three criticisms or questions arising out of the amendment and out of deference to his industry and his argument, I list them as he stated them. It is possible of course to categorise and reduce them. What he said was this viz. (1) Why not get a report from the GP about plaques; (2) why not ask the radiologist who reported in December 1995 to expand his report; (3) what advice did Clydeside Action on Asbestos give; (4) why claim Industrial Injury Benefit for diffuse bilateral pleural thickening when no such condition was diagnosed; (5) when did he first consult his solicitor; (6) what did he tell them about plaques; (7) what did he tell them about other alleged conditions if any; (8) what instructions did he give them and what advice was he given; (9) why not inquire more quickly on the April 1996 x-ray; (10) why did nobody inquire about what was meant by pleural thickening in that report; (11) did the pursuer tell his solicitors that the Benefits Agency doctor in May 1996, told him he had pleural plaques and could make a civil claim and if he told him so, when; (12) did he instruct his solicitors to make such a claim; (13) if they were told why not tell their expert at the outset as they did so later; (14) if he did not tell them about the D.S.S. advice, why not; (15) why did the pursuer take three months to give his solicitors sufficient information to make an application for legal advice and assistance; (16) why did the solicitors not ask for the increase in authorised expenditure which was clearly needed; (17) why did it take four months from receipt of his information to obtain legal advice and assistance and instruct Doctor Henderson; (18) why did the agents delay three months between being told a C.T. scan was needed (April) and applying in July for authorisation to carry it out; (19) Doctor Henderson deferred to Doctor Moule as a radiologist. Moule saw nothing on the C.T. scan, why was it not mentioned that the D.S.S. had found plaques; (20) after Clydeside Action on Asbestos had suggested it, why did the agents delay for seven months (February to September) to ask Moule to reconsider; (21) why delay four months after then in telling the pursuer they were reopening his file to progress matters; (22) why did the agents not seek emergency cover earlier; (23) why wait for Doctor Henderson when in October 1998 Moule had said there were plaques.
12. There were thus significant unexplained gaps. It was in any event not a strong case on the merits. The experts had to be pressed to find the condition. Pleural plaques were asymptomatic and did not cause other diseases. He had other unrelated lung problems. Any award made would be at the lower end of a low scale (not more than £5,000 on the Judicial Studies Board Guidelines). If he lost this case he could sue for any other lung conditions due to asbestos. There was limited prejudice to him. He had alternative remedies. The defenders would be prejudiced in having to pay damages.
13. Before dealing with the response I have two observations to make. In the earlier argument on the unamended record, the defenders argued that the pursuer had actual knowledge once the x-ray was taken in December 1995; not awareness but knowledge. The defenders also argued then that pleural plaques were not to be equated with pleural thickening.
14. Mr Marshall said that the case was not time-barred. As at the date three years before raising the action, the pursuer did not have the requisite knowledge and could not have become aware of the matters in Section 17(2). It was firstly important to notice what was the disease complained of. It was bilateral pleural plaques. Now both parties had referred to the three x-rays taken between December 1995 and May 1996, together with the radiologist's reports. These mentioned pleural thickening not plaques. The conditions were not the same nor could they be. He referred me to Shuttleton at 517. They were distinct see Carnegie at 813. It was interesting to observe that on this point the defenders had no pleadings at all.
15. This was not a record where the pursuer had any alternative cases. Although the G.P. was correct in saying what he did, he had no proper basis for his opinion as he had not seen the x-rays. The matter had to be judged at the time not with hindsight. The doctor's statement and view had no factual or analytical basis and if he was not properly aware, how could he the pursuer be. The pursuer's awareness could only arise from expert advice. If someone discovered he had the condition and did not tell him then he could not be aware. Equally, if no test had been conducted, there could be no knowledge or awareness. How could he be aware in law by being told he had a condition the tests did not reveal. Nor could he be deemed to be aware just because he took some action. Seeking further advice was not the same as fulfilling the tests under Section 17(2)(b). In any event the pursuer acted, if he did act, on advice from a consultant and radiologist which differed and was then reversed. That situation sat uneasily with any awareness. Counsel referred me to Comer and Halford and stressed (correctly in my opinion) that the English authorities had to be looked at with care as the Statutory wording was different.
16. Seeking advice from whatever source was not the same as being aware. Also he had to be aware he had the disease in issue, not a number of diseases; and also be aware of the other matters in Section 17. His application to Clydeside merely put him on the path to find out more. He got benefits and a second opinion. It was easy now with hindsight to say what should have been done between 1 March and 13 May 1996. The real question was whether any of that was reasonably practicable at the time and given what he did do, was it reasonably practicable for him to become aware. The pursuer should not be worse off for taking advice nor should he be criticised for not doing enough. He only became aware on 20 May 1996.
17. In relation to the many detailed criticisms, Mr Marshall argued that, with a few exceptions, there was no substance in the arguments individually or collectively. Nothing would have been achieved by performing many of the desiderated inquiries. He was entitled to consult anyone he wished and obtain another view on his condition. It was also clear that he told his solicitors all that he could and could not sue anyone until he had proper prospects. He needed an expert not merely a radiologist and the unbiased opinion of an expert was best given without foreknowledge of what any other expert had found. It was accepted as unfortunate that the solicitors file was closed in January 1998 and papers had gone missing by the time it was reopened. It is accepted that there were failures by others to act and there was no explanation to offer on points 18, 20, 21 and 22.
18. Not enough had been said to rule out an inquiry before answer on these matters. The pursuer had had to put up with conflicting advice, some of it correct, but only by accident and coincidence. It was unsurprising that there had been delays. At one time even his experts were against him. He had to make the best of all of this.
19. If the case was truly of low value, that was as much prejudicial to the pursuer as it was to the defenders. The equities were balanced.
20. I now deal briefly with the cases cited to me beginning with those on prescription. Comer was a case where proof before answer was allowed. It dealt with the old legislation before the 1973 Act was amended and in particular with "knowledge" with which I am not concerned. What the Lord Ordinary (Lord Maxwell, and a much respected Judge) said there, was that knowledge approximated more to certainty than mere suspicion (240) and that a state of mind is to be discovered by inference from conduct. To this extent the case is of assistance.
21. Shuttleton was decided after a preliminary proof on time-bar. It was cited to me as authority for the view that pleural plaques differed from two other asbestos related conditions. I have not heard proof and so can make no such conclusion in this case. For its value it may be authority for the proposition that knowledge of one condition may not bar action based on a separate and distinct condition. Carnegie was a case where there were separable claims and the test of how to assess "awareness" was said to be an objective one.
22. The English cases on this area have to be looked at with care since they concern "knowledge" and not "awareness".
23. Halford v Brooks is a most unusual case arising, as it did, out of a murder trial and a subsequent civil action. The facts cannot be in any sense equated with the present case. It also related to disapplication of the time-bar but was not cited to me for this purpose. The Master of the Rolls at 443 dealing with "knowledge" said that while it did not mean to know for certain, it did mean (443F):

"... to know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim ... taking legal and other advice and collecting evidence ...".

Spargo was a case of medical negligence and again the facts were unusual. Again at 242 guidance is given on to the interpretation of the word "knowledge" which is perfectly consistent with what was said in Halford.

24. Next are the cases on what is called in England the disapplication of the time limit or more familiarly here the equitable relief under see 19A. In Donald there was a preliminary proof and the action was allowed to proceed. However, on appeal that result was not upheld. Lord Cameron explained the tests of how all the factors had to be balanced including the interests of the parties. Agnew again was a decision on its own facts after proof as was Nimmo where there were a large number of unexplained delays.
25. I have come to the final opinion that the action is time-barred. In argument, the pursuer accepted that the clock began to run against him on 20 May 1996 when the Benefits Agency doctor told him he had pleural plaques. The question is whether on the averments there is a date earlier than that and before 13 May 1996.
26. In my view there is only one answer to this. The pursuer avers that on 1 March 1996 he was told he had pleural plaques (now the subject of this action). He was told it by his doctor. He plainly believed what he was told since he took action on that advice. It is known that the doctor's advice was correct; and in my view it is nothing to the point that it may have been based on inadequate information. By taking the action he did, it is impossible to conclude that the pursuer was not actually aware of the matters set out in see 17(2)(b)(i). The fact that many difficulties were later encountered is in my view irrelevant and at best only a matter involving some sympathy for the way the case was handled.
27. I refer again to what was said in the case of Halford cit sup. If knowledge does not require a meaning of "know for certain", then in my opinion awareness dictates a much lesser informed mind. It cannot be overlooked that his doctor told him he had the very condition for which he now sues, and that he was told this on 1 March 1996. Whatever, the basis of that opinion it is incontrovertible that the pursuer took the kind of action upon it mentioned by the Master of the Rolls - he took other advice from people whose job it was to advise on asbestos related matters. Indeed their involvement proved to be crucial and helpful.
28. Accordingly in my view the action is, on the averments made in the proposed amendment, time-barred and for that reason the defenders' first plea-in-law should be sustained and the pursuer's fifth plea-in-law repelled.
29. What of sec 19A and the equities. The burden of establishing that the equities are in his favour, rests on the pursuer. I have to balance two things; firstly all the various factors which are averred and secondly, the respective interests of the parties (Donald). I have come to be of the opinion that the equities are against the pursuer and no preliminary proof could cure the many defects which have occurred.
30. There are really three crucial areas; and the concession made that no evidence could be led to explain any of them, is in my opinion fatal to the pursuer's position. As was said earlier the pursuer does not get an indefinite time to focus his claim then three years to sue. The more omissions in his preparation, the less he can rely on equity to help him. Equity is a double sided coin.
31. On 11 April 1997 Doctor Henderson recommended a C.T. Scan. The agents took until September to obtain Legal Aid and the report was received in October. There was an even larger delay between February and September 1998 when the solicitors apparently failed to act on the (correct) advice from Clydeside Action on Asbestos. When they finally did so, Doctor Henderson found plaques. Then more than four months elapsed before the solicitors reopened the file and sought Legal Aid. This is a period of sixteen months, and almost half the three year period set down in the Act.
32. Placing these factors in the scales, I find that they weigh very heavily against the pursuer especially where the defenders have ceased to trade. No criticisms have been made of any conduct on behalf of the defenders or their insurers which has frustrated the pursuer's claim or investigations. That negative factor is important. I do not attach any great significance to the alleged low value of the claim as it seems to me that, in the scales, the equities are equal on this point.
33. Accordingly, I am of the opinion that it would not be proper to allow proof on this question and I will repel the pursuer's sixth plea-in-law.
34. In the result the action is dismissed.