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Lambie v. Toffolo Jackson Ltd & Anor [2003] ScotCS 282 (11 November 2003)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Kirkwood

Lord Macfadyen

A920/01

OPINION OF THE COURT

delivered by LORD MACFADYEN

RECLAIMING MOTION

ALEXANDER LAMBIE,-

Pursuer and Reclaimer;

against

TOFFOLO JACKSON LIMITED (In Liquidation) and ANOTHER,-

Defenders and Respondents

_______

Act: Marshall, solicitor advocate; Thompsons (Pursuer and Reclaimer)

Alt: R.N. Thomson; Simpson & Marwick (Defenders and Respondents)

11 November 2003

Introduction
[1] This is an action of damages for personal injuries in which the pursuer concludes primarily for provisional damages on the basis that as a result of exposure to asbestos in the employment of the defenders in 1954 to 1959 and 1961 to 1962 he has developed bilateral pleural plaques. He avers that there is a risk of serious deterioration of his health through the contraction of asbestosis, diffuse bilateral pleural thickening, asbestos related lung cancer or mesothelioma. The action was raised on 14 May 1999. The defenders plead that the action is time barred. In response the pursuer in his pleadings argues (1) that in terms of section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973 ("the Act") the action is not time barred because it was raised within three years of his becoming aware that he was suffering from pleural plaques, and (2) that if the action is time barred in terms of section 17, he should be afforded discretionary relief under section 19A of the Act.

[2] The case called on the procedure roll on 23 May 2001 when the Lord Ordinary granted the pursuer's motion for leave to lodge a minute of amendment. The minute of amendment (No. 16 of process) was duly lodged. The defenders elected not to lodge answers. The motion to amend came before the court on 23 November 2001, when, without dealing with that motion, the Lord Ordinary appointed the cause to the procedure roll for a continued hearing.

[3] The interlocutor pronounced on 11 March 2002 following the continued hearing was in the following terms:

"The Lord Ordinary, having resumed consideration of the cause, repels Plea-In-Law No. 6 for the Pursuer; dismisses the action, and decerns."

That interlocutor was defective in two respects. First, it neither granted not refused the pursuer's motion to amend. We understand, however, that the debate on the issues of time bar proceeded on the basis of the averments proposed in the minute of amendment (see paragraph [28] of the Lord Ordinary's Opinion). Secondly, it failed to record the Lord Ordinary's decision (see again paragraph [28] of his Opinion) to sustain the defenders' first plea-in-law (that the action was time barred) and repel the pursuer's fifth plea-in-law (that it was not). In the event, however, nothing turns on those defects.

Chronology
[4] The sequence of relevant events, as they are set out in the pursuer's pleadings, including the minute of amendment, may be summarised as follows:

1954-1959 and 1961-1962.	The pursuer was exposed to asbestos while working in the employment of the defenders.
16 March 1995.	The pursuer consulted his general medical practitioner complaining of breathlessness on exertion.
1 December 1995.	The pursuer was x-rayed at Stobhill Hospital. The x-ray report stated inter alia "There is evidence of bilateral mid-zone pleural thickening to suggest past asbestos exposure. There is no evidence of active pulmonary disease".
1 March 1996.	The pursuer saw his GP who discussed with him the report of the x-ray and advised him that he had pleural plaques.
9 April 1996.	Further x-rays were taken at Stobhill Hospital. The report mentioned a small amount of pleural thickening, but not pleural plaques.
20 May 1996.	The pursuer was examined in connection with his application for Industrial Injury Disablement Benefit. Fresh x-rays were taken. The doctor told the pursuer that he did not have the prescribed disease, diffuse bilateral pleural thickening, but that he did have pleural plaques, and could make a civil claim.
31 May 1996	The pursuer received formal notification that his application for benefit had been refused. The letter stated inter alia that there was radiological evidence of pleural plaques.
14 May 1999	The present action was raised.

The statutory provision

[5] Section 17 of the Act provides inter alia as follows:

"(2)	Subject to subsection (3) below and section 19A of this Act, no action [of damages for personal injuries] 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 or the employer or principal of such a person."

[6] The issue in the present case arises under section 17(2)(b). The pursuer's contention is that he became aware of the fact that he was suffering from pleural plaques on 20 May 1996, when he was so advised by the Benefit Agency doctor. Moreover, it would not have been reasonably practicable for him to become aware of that fact earlier. What he was told by his doctor on 1 March 1996 could not make him "aware" that he was suffering from pleural plaques, because at that date there was no foundation in the radiological evidence for that conclusion. The radiological evidence was of a different condition, namely bilateral pleural thickening. His GP was in error in informing him that he had pleural plaques. The action was raised within three years of the true date of awareness, namely 20 May 1996, and is accordingly not time barred. The defenders' contention, on the other hand, is that the pursuer should be regarded as having become aware that he was suffering from pleural plaques on 1 March 1996, when he was so advised by his GP. The action was not raised within three years after that date and is therefore time barred.

The Lord Ordinary's Opinion

[7] The Lord Ordinary dealt with the section 17(2)(b) issue in the following passages in his Opinion:

"[26] ... 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 section 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 Halford [v Brooks [1991] 1 WLR 428]. 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 that 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."

The pursuer's submissions
[8] Mr Marshall, who appeared for the pursuer, submitted that the information given to the pursuer by his doctor on 1 March 1996 to the effect that he was suffering from pleural plaques could not be regarded as making the pursuer aware that he suffered from that condition. That was because there was no foundation at that date for what the doctor said. The radiological report of the x-rays taken on 1 December 1995 supported the view that the pursuer was then suffering from bilateral pleural thickening, but not the view that he was suffering from pleural plaques, which was a separate condition. The pursuer could not be made "aware" of suffering from a particular condition when there was at the material time no basis for saying that he was suffering from that condition. The fact that it later turned out, in May 1996, that he was then suffering from pleural plaques did not retrospectively validate what was said by his doctor on 1 March. The Lord Ordinary appeared to assume that the findings made on x-ray examination on 20 May 1996 demonstrated that the pursuer was in fact suffering from pleural plaques on 1 March, but that was not so. The effects of asbestos exposure are progressive, and the fact that there were plaques in May did not demonstrate the truth of the assertion that there were plaques in March.

[9] In support of his submission, Mr Marshall cited Comer v James Scott & Co (Electrical Engineers) Ltd 1978 SLT 235, and in particular the following passage from the Opinion of Lord Maxwell at 240:

"... whether a person 'knows' a fact seems to me to involve a question of degree. I do not consider it advisible to attempt to define it, but at least I think it involves something approximating more to certainty than mere suspicion or guess. Moreover, in my opinion, and I think this important for the present case, some information, suspicion or belief falling short of knowledge is not transformed into knowledge if it happens to be correct. I accept that a person cannot be said to 'know' a fact if the thing which he believes with whatever conviction is not in accordance with the truth. But I do not think that the converse is correct. I do not think that any information or belief, however uncertain, necessarily amounts to knowledge within the meaning of para. (a) [of section 22(4) of the then current version of the Act] merely because it happens to coincide with the truth."

Reference was also made to Shuttleton v Duncan Stewart & Co Ltd 1996 SLT 517 and Carnegie v Lord Advocate 2001 SC 802 per Lord Johnston at 813 (paragraph 18) in support of the view that pleural plaques and diffuse bilateral pleural thickening were distinct conditions, and that knowledge of one did not set time running in respect of the other.

[10] Mr Marshall further submitted that the Lord Ordinary went too far in treating the fact that the pursuer took action on what his doctor told him on 1 March 1996 as demonstrating that the pursuer was aware on 1 March that he had pleural plaques. The action which the pursuer took, in contacting Clydeside Action on Asbestos and making a claim for Industrial Injury Disability Benefit, was as consistent with his having a mistaken belief, induced by the unfounded advice given by his doctor, as with his having awareness that he was suffering from pleural plaques. In any event, as Mr Marshall pointed out, the action which he took - making a claim for benefit for the prescribed disease, diffuse bilateral pleural thickening - could scarcely be interpreted as evidencing knowledge that he had pleural plaques.

The defenders' submissions

[11] Mr Thomson, for the defenders, began by pointing out that it was not accepted by them that pleural plaques was a condition wholly distinct from pleural thickening. Their position appeared to be that pleural plaques might be a sub-category of pleural thickening. If the pursuer's case depended on the proposition that the two conditions were wholly distinct, the issue could not be resolved in the pursuer's favour without proof.

[12] The defenders' contention was that the Lord Ordinary had been right to regard it as immaterial whether, at the time when the pursuer's doctor told him that he had pleural plaques, there was an insufficient basis for such a conclusion. The doctor was a reputable source of information on such matters, and the pursuer was entitled to accept what he told him. It was clear that the pursuer did accept what his doctor told him, because he acted upon it, and did not suggest that he did not believe that it was true. There was no assertion in the pursuer's pleadings that, at the time when he was told by his doctor that he had pleural plaques, he did not in fact suffer from that condition. All that the pursuer offered to prove was that the doctor did not have a proper basis for saying that the pursuer had pleural plaques. That stopped short of saying that he did not in fact have that condition at that time. Since the pursuer came into court on the basis that he suffers from pleural plaques, if he was to defeat the assertion that he was aware of that in March 1996, he must say not merely that the information that he was given then was inadequately based, but that it was false. He did not do that. The situation thus was that it could be taken that it was in fact correct that the pursuer had pleural plaques in December 1995/March 1996. The pursuer was informed by his doctor of that fact. He believed it and acted upon it. He was therefore aware of it, even if his doctor had an inadequate basis in the radiological report for making such a statement. Mr Thomson further submitted that, even if it was accepted that what his doctor told him on 1 March 1996 did not make the pursuer "aware" on that date that he had pleural plaques, the pursuer still had to aver that it was not then reasonably practicable for him to have become aware of that fact. He suggested that there were various things that the pursuer could have done at that stage to verify the situation. He had not properly excluded the possibility of constructive knowledge.

Discussion
[13] If it be the case, as the pursuer contends, and as was accepted on the evidence in Shuttleton, that pleural plaques and pleural thickening are distinct conditions, it appears that the pursuer's doctor was not justified in telling him, on the basis of the December 1995 radiological report, that he had pleural plaques. If, at the time the pursuer was told that he had pleural plaques, there was no evidential basis for that statement, we do not consider that it can be said that the pursuer was thereby made "aware" that he had pleural plaques. He was led to believe that he had, but the belief, although reasonably based on the medical advice he had received, can be categorised as mistaken. The basis on which the Lord Ordinary concluded that the pursuer was "aware" of the "fact" that he was suffering from pleural plaques is to be found in paragraph [26] of his Opinion, where he said:

"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".

In our view the Lord Ordinary went too far in determining the issue in the defenders' favour on that basis without proof. All that is known from the pleadings is that the pursuer was subsequently, in May 1996, found to have pleural plaques. That does not necessarily show that it was true that he had them in March, when his doctor told him that he did. We do not consider that the fact that the pursuer believed what his doctor told him and acted upon it (if indeed he can be regarded as having acted on the information that he had pleural plaques when he made the claim in respect of the industrial disease, diffuse bilateral pleural thickening), can be viewed as supporting the conclusion that he was "aware" of having pleural plaques in March. The action in question seems equally capable of being attributed to a mistaken belief. Nor do we consider that the pursuer can be held, without proof, to have failed to exclude constructive knowledge. If the situation was that he believed (albeit mistakenly) on the advice of his doctor that he had pleural plaques, we do not see what further steps it can be said he ought reasonably to have taken to confirm the position.

[14] For these reasons we have come to the conclusion that the section 17(2)(b) issue should not have been disposed of in the defenders' favour at debate. The pursuer has in our view made a potentially relevant case under that section, but given the extent to which the defenders dispute matters of fact which bear upon the issue, it cannot be resolved in his favour without proof. We therefore do not propose to engage at this stage in any more detailed discussion of the authorities on "knowledge" or "awareness". We consider that the issue should be remitted to proof before answer.

Future procedure
[15] In the light of our decision to allow a proof before answer on the section 17(2)(b) issue, it is necessary to consider certain other aspects of future procedure. It is, in our view, necessary to deal with the question of amendment. Mr Thomson did not, ultimately, dispute that it was appropriate that the pursuer's pleadings, at least so far as relating to the section 17(2)(b) issue, should be amended as proposed in the minute of amendment. However, Mr Marshall did not seek to challenge the Lord Ordinary's decision on the section 19A issue. In so far as the minute of amendment contains averments which bear only on that issue, it was agreed that those averments should be excluded from the amendment. It was ultimately a matter of agreement that the averments which should be excluded were those identified in paragraph [16](3) below. Finally, it was matter of agreement between counsel, and we also agree, that if there is to be a proof before answer, it should not be a preliminary proof on the issue of time bar alone, but should be a proof at large encompassing the merits as well as time bar. That is the more convenient course, since there will clearly be a considerable overlap between the evidence which bears on the time bar issue and the evidence which bears on the merits.

Result
[16] We shall accordingly -

allow the reclaiming motion;

recall the Lord Ordinary's interlocutor of 11 March 2002;

allow the Closed Record (as amended) to be further amended in terms of the minute of amendment, No. 16 of process, but subject to exclusion therefrom of -

the averments beginning with the words "The pursuer's agents instructed

Dr Henderson ..." and ending with the words " ... served on 14 May 1999" at pages 33C to 36C of the reclaiming print; and

the averments beginning with the words "As hereinbefore condescended ... "

and ending with the words " ... Dr Moule's stated views" at pages 37C to 38C of the reclaiming print;

of new, and of consent, repel the pursuer's sixth plea-in-law; and

quoad ultra allow a proof before answer.