Scottish Court of Session Decisions

Agnew v. Scott Lithgow & Ors [2003] ScotCS 94 (1 April 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Marnoch Lady Cosgrove Lord Abernethy	A195/01 OPINION OF THE COURT delivered by LADY COSGROVE in RECLAIMING MOTION in the cause JOHN AGNEW Pursuer and Reclaimer; against SCOTT LITHGOW, J G KINCAID LIMITED and KVAERNER GOVAN LIMITED Defenders and Respondents: _______

 

 

Act: O'Brien, Q.C.; Balfour & Manson (Bonnar & Co., Airdrie) (Pursuer and Reclaimer)

Alt: Stacey, Q.C.; Simpson & Marwick, W.S. (Defenders and Respondents)

1 April 2003

1. The pursuer in this action claims damages at common law from three of his former employers for the loss, injury and damage said to have been suffered as a result of his working with vibrating tools in the course of his employment with them. It is not disputed that the pursuer did work with such tools and that he has now been diagnosed as suffering from Vibration White Finger ("VWF"), nor is it disputed that his exposure to vibration ceased in September 1995. The summons was served on 19 June 1999 and the defenders have pled that the action is time-barred by virtue of the limitation provisions contained in section 17(2) of the Prescription and Limitation (Scotland) Act 1973(as amended). After hearing a preliminary proof on time-bar, the Temporary Judge considered that the pursuer's case was time-barred and sustained the defenders' plea to that effect. He also refused to exercise the discretion afforded to the court in terms of section 19A of the said Act in the pursuer's favour. The pursuer has now reclaimed on the ground that the Temporary Judge erred in law in finding that the action was time-barred in terms of section 17(2)(b) of the Act.
2. At the preliminary proof, the Temporary Judge heard evidence from the pursuer. It appears that, after the raising of this action, the pursuer sustained a subarachnoid haemorrhage. A report before the Temporary Judge from a consultant clinical neuro-psychologist indicated that it was "consistent with his medical history that he should have difficulties with sustained attention or concentration, and that he should have problems with memory. He may have difficulty in recalling information and may lose track of things relatively easily." The Temporary Judge found that the pursuer became manifestly tired when giving his evidence and that there were several examples of confusion.
3. The pursuer's evidence in chief, as narrated by the Temporary Judge, was that he first noticed his hands going cold in 1985. In cross-examination he gave a date of 1982 as being the time when he knew his fingers went white and tingled. He did not know the cause of it, although it happened when working with chipping guns, and it was also happening to other men alongside him. He did not go to his doctor. He also indicated that he was restricted whilst still working in the shipyard in his pastime of bowling. He had received no information in the shipyard in relation to his hands, but said he heard the term VWF during the period 1995 to 1997 after he left the shipyard. He described conversations being held amongst his former colleagues, who had also left the shipyard, about the state of their hands and possible claims arising from having contracted Vibration White Finger. On this aspect of the pursuer's evidence the Temporary Judge noted " He was, understandably, as a result of his present condition, vague about dates but his evidence was quite clear that it was before Christmas and perhaps even in November of 1995 that these conversations took place." After leaving the shipyard the pursuer said he obtained employment in the computer industry and he knew then that vibrating tools were implicated. He did not, he said, rush off to the doctor.
4. The Temporary Judge indicated that he had an anxious task, in the light of the pursuer's subsequent incapacity, in assessing his credibility and reliability as to matters before the raising of the action. He concluded, however, that there was "sufficient in the evidence pertaining to the period before his haemorrhage to make his case based on his alleged lack of constructive knowledge lack conviction." It appears that the Temporary Judge was here referring to certain discrepancies between the evidence given by the pursuer in court and the information provided by him to the adjudicating medical officer when he applied to the Department of Social Security for benefit in 1997, the details of which need not concern us for the purposes of this appeal.
5. Evidence was also led before the Temporary Judge from three witnesses, namely the pursuer's solicitor, a Mr Patrick Clarke, and a vascular surgeon, Mr John Drury. The Temporary Judge concluded that since his firm was first contacted by the pursuer in about November 1998, the evidence of the pursuer's solicitor had little relevance to the issues arising under section 17(2). Having recorded the evidence of Mr Patrick Clarke, the Temporary Judge indicated that he was not prepared to regard his evidence on the matter of the pursuer's knowledge as persuasive. It was accepted on behalf of the pursuer that, in that situation, no regard could properly be had for the purposes of this reclaiming motion to the evidence of that witness.
6. It was a matter of agreement before us that the evidence of Mr John Drury, a consultant in general and vascular surgery, to whom the pursuer was referred by his solicitor for an opinion as to the condition of his fingers, was material to a proper consideration of the issues that arise in this reclaiming motion. The Temporary Judge recorded that evidence as follows:-

"Mr Drury, who gave evidence, found that the pursuer had freezing cold hands and fingers but no other signs and in particular he found muscle power in terms of grip strength to be good. He found no alteration to fine touch in the fingers despite being given a history of trouble with manual dexterity and freezing cold hands in a warm room. He expressed the opinion that the pursuer had a moderate degree of VWF, stage 2 on the Taylor Pelmear and the Stockholm Scale. Mr Drury's diagnosis of VWF was based on a process of elimination he said."

7. The conclusion reached by the Temporary Judge on the issue that arose for consideration is expressed in the following terms:

"I hold that the pursuer was aware by the end of 1995 that he had a significant disability in his hands, that he was aware that this arose because of his employment in the shipyard, that the defenders were his employers and that the condition of his hands was due to his employment. He has not established, however, that it was not reasonably practicable for him to become aware of the material facts by a date prior to June 1996. That I would have found to be the case, whether the question of reasonable practicability for this pursuer was approached on a subjective or objective basis."

8. On behalf of the pursuer and reclaimer, Ms O'Brien, Q.C. submitted that although the Temporary Judge had narrated the evidence of the various witnesses who gave evidence at the preliminary proof, he had not fully evaluated Mr Drury's evidence. Mrs Stacey for the defenders and respondents did not demur from that submission.
9. Ms O'Brien also took issue with the passage in which the Temporary Judge expressed his conclusion insofar as he imputed actual knowledge of the nature and cause of his injuries to the pursuer by the end of 1995. She indicated that while it was accepted that he was aware by that time that the disability in his hands was sufficiently serious to warrant inquiry, it was not accepted that the Temporary Judge was entitled to find that the pursuer was by then actually aware that his disability was due to his employment. Further, it was submitted that the Temporary Judge had erred by failing to indicate the basis upon which he reached his conclusion as to the matter of constructive knowledge.
10. Our attention was drawn to several passages in the evidence of Mr Drury which were said to have a bearing on the issues arising in relation to the pursuer's state of awareness as to the cause of his condition but which were not referred to in terms by the Temporary Judge. These are mentioned later in this Opinion. More importantly, however, it does seem that the Temporary Judge to an extent combined the issues of actual and constructive knowledge so that it is not easy to discover his individual reasons for fixing both on the pursuer by a date prior to June 1996. In that situation, we agree with counsel that the appropriate course is for this court now to consider matters afresh.
11. Section 17 (2) of the Act provides-

"Subject to ... 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 or the employer or principal of such a person".

Section 19A(1) provides -

"Where a person would be entitled, but for any of the provisions 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".

12. It was common ground that the date on which the pursuer's exposure to vibration ended was September 1995, and that being a date outwith the triennium, the court must move immediately to subsection (b) of section 17(2). The matters enumerated in sub-paragraphs (i) to (iii) of section 17(2)(b) are the relevant facts of which the pursuer is to be aware before the calculation of the three year period commences. As it was a matter of concession that the pursuer's injuries were sufficiently serious by the end of 1995 to justify his bringing an action, it follows that we can find ourselves satisfied as to the pursuer's awareness by that date of the relevant fact enumerated in sub-paragraph (i). The relevant fact in sub-paragraph (iii), awareness of the appropriate person to sue, is not an issue in this case.
13. It follows that the issue focused in this reclaiming motion is the relevant fact to which reference is made in sub-paragraph (ii). Ms O'Brien submitted that the pursuer could not have "actual" awareness of the matter with which that sub-paragraph is concerned, namely that the injuries were attributable in whole or in part to an act or omission, before he had received a medical diagnosis confirming both that he was suffering from VWF and that that was caused by exposure to vibrating tools. Until he had such a diagnosis, he could do no more than suspect or guess that his condition might be due to VWF; and he also had to know for certain that his condition was due to his employment. In the event, Mrs Stacey conceded that a medical diagnosis was required in order to establish actual awareness.
14. The date on which the pursuer was informed that following a medical examination he had been awarded benefit in respect of a prescribed disease, namely VWF, was 20 February 1998, and it follows that that is the date of his actual awareness of the matter enumerated in sub-paragraph (ii). However, in a case such as the present in which there is also an issue regarding the date of "constructive" awareness, it is clear that that date will inevitably be earlier than the date of actual awareness. It follows that the real question to be determined by this court is the date of the pursuer's constructive awareness that his injuries were attributable in whole or in part to his employers' act or acts in exposing him to vibrating machinery. Since the pursuer will be able successfully to invoke section 17(2)(b) only if he can establish a date of constructive awareness that is within the triennium, it follows that he requires to exclude such a date being prior to June 1996.
15. It was conceded by Ms O'Brien that the conversations with his former colleagues to which the Temporary Judge refers ought to have put the pursuer on notice that the problems he was experiencing with his fingers might be attributable to the conditions of his employment. She conceded further that it would have been reasonably practicable for him to do something at that stage. The question to be considered was what should the pursuer have done? There were, it was submitted, three possible answers to that question. Firstly, the pursuer could have put in a claim to the Department of Social Security as VWF is a prescribed disease for the purpose of claiming Industrial Injuries Disablement Benefit. Had he done so, he would have been medically examined and would have received a diagnosis of his condition. On the evidence, the pursuer did put in such a claim but only after delaying until about August 1997. While it was conceded that it would have been reasonably practicable for him to submit that claim earlier, the processing of it appeared to have taken about six months. It followed that even if the pursuer had taken this step by the end of 1995, he would not have received the result of his claim prior to June 1996.
16. Mrs Stacey did not accept that an approach to the Department of Social Security was the appropriate course for the pursuer to take. She conceded however that had he taken that course he probably would not have received the necessary information by June 1996.
17. The second possible course of action for the pursuer suggested by Ms O'Brien was that he should have gone to his general practitioner. In this connection, it was submitted that, on a balance of probabilities, had he done so, he would have been none the wiser. Ms O'Brien founded in this connection on various passages in the evidence given by Mr Drury as to the widespread lack of knowledge about VWF amongst general practitioners in 1996. It is not necessary for us to examine that evidence in detail since in the end Mrs Stacey conceded that that was the weight of the evidence.
18. The third suggested course of action was that the pursuer should have consulted a solicitor. It was accepted that when he did eventually do so, a medico- legal report from Mr Drury was instructed. The evidence disclosed that the pursuer first went to see his solicitor on 24 November 1998. Mr Drury saw him on 15 March 1999 and his report is dated that day. It follows that the pursuer received a diagnosis of his condition within four months of first consulting a solicitor.
19. Mrs Stacey contended that it would have been reasonably practicable for the pursuer to take the step of seeking legal advice by about the time that he finished work at the end of September 1995, but that even if he had delayed until the end of 1995, the probabilities were that he would still have received his diagnosis before June 1996. Ms O'Brien, on the other hand, submitted that the court ought to allow a pursuer a "fairly lengthy" period of time between becoming aware that he ought to do something and actually taking the next step. In the circumstances of this case a "reaction" time of about a year, it was argued, was appropriate and, thereafter, an additional six months ought to be allowed for obtaining a diagnosis. Reference was made in this connection to the approach of the Court of Appeal in Allen v British Rail Engineering Limited [2001] ICR 942, where the claimant was allowed a period of twelve months from the date he was first put on his enquiry that he should take the necessary expert advice as to his condition before time ran against him.
20. It was common ground that the test to be applied by the court in determining the question that arises in this case under section 17(2)(b)(ii) is partly a subjective test and partly an objective one (Carnegie v Lord Advocate, 2001SC802, Lord Johnston at 812).
21. On behalf of the pursuer, we were urged to take into account several subjective factors including the following: he had never heard the term VWF while he worked in the shipyards and had never received any information about it; he was not a man of any particular intelligence; he believed his symptoms had something to do with ageing; he ascribed his problem in part to cold weather as he experienced more frequent attacks in winter; blanching attacks happened at times when he was not using vibrating tools and continued after he had stopped working with these; and he was a man who had to be persuaded to make a DSS claim and was generally hesitant about asserting his rights.
22. Taking, as we must, this pursuer in his particular circumstances, the question we have to address is whether on an objective basis it would have been reasonably practicable for him to become aware of the relevant fact before June 1996. We are not persuaded that the pursuer ought to have taken expert advice by the time he gave up working in the shipyards at the end of September 1995. He had then had symptoms for about thirteen years and there was, on the evidence, nothing new or urgent about these at that time. We consider, however, that the pursuer ought to have been aware that he should make enquiry about his condition once he heard talk from his former colleagues about making claims arising out of having contracted VWF. The Temporary Judge fixed that at about the end of 1995, and that was the date contended for by Ms O'Brien. The pursuer said in evidence that he went to work in the computer industry in about October 1995 and that he heard "after a couple of weeks" about claims being made by former colleagues. In our view it would have been reasonably practicable for the pursuer to go to see a solicitor very soon thereafter. In this connection, we are not persuaded to follow the approach of the Court of Appeal in Allen, supra. It is clear to us that the English statutory provisions are couched in quite different terms and in particular make no reference to "reasonably practicable" as being the relevant test. The English authorities thus require to be approached with considerable caution.
23. There is no room, in our view, for interpreting the provisions of section 17(2) as allowing any additional unspecified period for what was described by Ms O'Brien as "dithering time." The language of the section does not support such an approach. It is incumbent on a pursuer to take all reasonably practicable steps to inform himself of all the material facts as soon as he is put on notice of the existence of any of these. And the onus is on the pursuer to establish that he has done so. The question is not whether he had a reasonable excuse for not taking steps to obtain the material information but whether it would have been reasonably practicable for him to do so (Elliot v J&C Finney 1989 SLT 208, Lord Sutherland at 210). The fact that the pursuer did not like approaching officialdom or that he was a man who frequently had to be prompted by his relatives and friends to take action is not conclusive because an objective test must also be applied. The hypothetical pursuer can, of course, also rely on the provisions of section 19A of the Act. That section affords the court a power to override the time limits in section 17 where it seems in the view of the court equitable to do so.
24. When the pursuer did eventually go to see a solicitor he obtained a definitive diagnosis within four months. It follows in our view that, had he taken the necessary steps when he ought reasonably to have done so, he would in all probability have been aware of the material facts prior to June 1996; and that would have been the case even if he had delayed until early January of that year. We consider therefore that the pursuer has failed to satisfy the onus on him to establish that it was not in the circumstances reasonably practicable for him to become aware of all the relevant facts prior to 19 June 1996.
25. No appeal has been taken in this case against the Temporary Judge's decision under section 19A of the Act. It follows from what has been said that we will refuse this reclaiming motion and adhere to the interlocutor of the Temporary Judge.