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Cite as: [2004] ScotCS 113
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Hill v McAlpine [2004] ScotCS 113(13 May 2004)
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OUTER HOUSE, COURT OF SESSION |
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A885/03
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OPINION OF LADY SMITH in the cause JULIA HILL Pursuer; against FIONA McALPINE Defender:
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Pursuer : Beardmore; Henderson Boyd Jackson, WS
Defender: Charteris; Simpson & Marwick, WS
13 May 2004
Introduction:
[1] This is an action of reparation in which the pursuer seeks damages from the defender in respect of the injuries sustained by her as a result of a road traffic accident which occurred on 17 March 2000. She was the front seat passenger in a car being driven by the defender when it collided with a motorcyclist. She claims that she sustained physical injuries to her back, neck and elbow which became apparent the day after the accident. She also avers that she sustained psychological injuries which were not immediately apparent but developed over the months after the accident, beginning with flashbacks which started about one month thereafter. [2] The pursuer's case is based on common law fault and she avers that the defender was, in February 200 , convicted of careless driving. The action is defended on both merits and quantum, with the defender averring that the accident was caused by the motorcyclist. The summons was not served until 24 March 2003. [3] The case came before me on the procedure roll for debate on the defender's first and second and the pursuer's third pleas-in-law, which were as follows:"1. The action being barred by lapse of time in terms of the Prescription and Limitation (Scotland) Act , section 17 , should be dismissed.
2. The pursuer's averments being irrelevant et separatism lacking in specification the action should be dismissed.........
3. The pursuer invites the Court to allow her to bring the action by virtue of section 19A of the Prescription and Limitation (Scotland) Act 1973, notwithstanding that the action is time barred, it being equitable to do so in the circumstances."
Limitation issue:
[4] On behalf of the defender it was, however, conceded at the outset that insofar as the pursuer sought damages for psychological injury, her case was not time barred since, on her averments, she had not become aware and could not reasonably have become aware of her psychological symptoms until a date about one month after the accident and that date was within the three year period prior to service of the action. The concession was made under reference to s.17 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act") and the cases: Mackie v Currie 1991 SLT 407 and Carnegie v Lord Advocate 2001 SC 802. Given, in particular, the decision of the Inner House in Carnegie, it seems that the concession was one which was properly made. [5] The issue between the parties was, accordingly, whether or not the discretion conferred on the court by s.19A of the 1973 Act should be exercised in the pursuer's favour so as to allow her to include in the action which would subsist, a claim in respect of the physical injuries of which she was aware within a day of the accident. The averments in respect of her physical injuries are brief:" the following day her back and neck was painful. She had a swelling and painful neck, back, left leg and right elbow. She had minor lacerations and bruising. She was diagnosed with whiplash injury. In consequence she re-attended the Hospital. She was given a soft collar and prescribed analgesia. Thereafter the pursuer took the following week off work. Her elbow was sufficiently painful to cause her to attend Ninewells Hospital in Dundee on the 27 March 2000. Her elbow pain subsequently settled. While her neck and back pain largely settled it was sufficiently painful to cause her to take time off work in February 2001. Her neck and back pain is intermittent and continuing."
"The delay in citation was due to an oversight by the pursuer's Solicitor. Following the accident the pursuer dealt directly with the defender's Insurer. She intimated her claim directly to them. On 9 May, 2002, the said Insurer obtained an Orthopaedic Report on the pursuer. On or about 14 May 2002, the Insurers entered into settlement negotiations with the pursuer. They reminded her that she was free to obtain legal advice. She consulted agents shortly thereafter. Her agents progressed her claim, obtained medical reports and attempted to negotiate settlement. They submitted the Clinical Psychological Report to the said Insurers in October 2002. Negotiations were again entered into. The pursuer rejected the defender's offer of £5,000. The pursuer's agents asked the Insurers to nominate their Solicitors with a view to commencing proceedings on or about 23 January 2003. There was a further abortive attempt to commence further negotiations. They were not concluded prior to the triennium. The defender's Solicitors were nominated on 18 February 2003. The Solicitor instructed a Summons on 21 February 2003. The draft Summons was returned by Counsel on 27 February 2003. Thereafter, the Solicitor sent a copy to the pursuer for her comments. The Solicitor thought that he had dictated letters for Signetting and service. The office had a computerised diary system. This flags up to the operator the days to the triennium on a monthly, weekly and then daily basis. In this case, the Solicitor clearly recalled dictating said letters and accordingly ticked the appropriate box on the diary system, acknowledging the reminder. Accordingly no check was made that this had in fact happened. He handed his tape of the letters to the typing pool. The said letters were not sent. On realising the error following a phone call with the pursuer, the Solicitor immediately arranged for Signetting and service."
Submissions for pursuer:
[8] It was submitted by counsel for the pursuer that, in the whole circumstances, it would be equitable to allow the action to proceed in such a way as to include the pursuer's claim for physical injury, notwithstanding that, prima facie, that aspect of her claim had suffered limitation through the operation of s.17 of the 1973 Act. He relied on s.19A of the 1973 Act which provides:"- (1) Where a person would be entitled, but for any of the provisions of section 17 or section 18 and 18A 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."
Submissions for defender:
[10] On behalf of the defender, counsel submitted, under reference to Carson v Howard Doris 1981 SC 278, Cowan v Toffolo Jackson & Co Ltd 1998 SLT 1000 and Morrice v Martin Retail Group Ltd 2003 SCLR 289, that the pursuer's averments were not sufficient to support the exercise of the discretion afforded by s.19A. She said that there was no specification of what had happened between the date of the accident and May 2002, no explanation of why the summons was not instructed until 23 January 2003 and insufficient explanation of how the solicitor had come to miss the time bar. The pursuer would have an alternative remedy, of suing her solicitor and so would not be prejudiced. The defender would, however, lose the immunity conferred by s.17.Decision:
[11] I have reached the conclusion that I should exercise the discretion afforded by s.19A of the 1973 Act in favour of the pursuer and allow the part of her action concerning her claim for physical injury to proceed notwithstanding that she would, otherwise, have been barred from doing so by the operation of the provisions of s.17(2)(a). I do so recognising that it is unusual for the court to allow an action to proceed out of time where the lateness of the raising of the action can be attributed to negligence on the part of the pursuer's advisers and in full agreement with the comments made by Lord Clarke in the case of Morrice v Martin Retail Group Ltd to the effect that the s.19A power is not to be regarded as simply providing an automatic release from the consequences of a pursuer's representative's negligence. [12] However, the determination of all applications under s.19A depends on their individual facts and circumstances and whether, looking at all those particular facts, it seems equitable to allow the action to proceed. Since s.19A was enacted, the starting point for any potential defender is not that the triennium operates as an absolute bar in all cases. Rather, the effect of the introduction of s.19A is that it may do so but not if the pursuer is successful in an application under that section to proceed with an action out of time. It does, accordingly, appear to be misleading to use terms such as loss of the defender's immunity as that might be thought to imply the deprivation of an absolute right in circumstances where, because of s.19A, a defender or potential defender cannot regard the protection afforded by s.17 as absolute. Indeed, since the provisions of s.17 itself allow for start dates for the triennium being, in certain circumstances, later than the date of the negligent act, defenders have always been subjected to the risk that the passing of the third anniversary of such an act without the raising of an action would not relieve them of liability for its consequences.In this case the defender has carried out investigations and clearly prepared to meet the pursuer's claim. An offer was made and it is to be inferred from that the defender had reached the stage of being able to assess the strengths and weaknesses of her own position in the litigation and to value the pursuer's claim. The defender will require to carry on in litigation with the pursuer. The issues on the merits will be the same irrespective of whether the present application is granted. It does not seem likely that any significant further work will be occasioned by the inclusion in the continuing action of the claim for physical injuries. It does not seem likely that its inclusion will add significantly to the time taken at proof. Whilst it is possible that, if the pursuer had to sue her solicitor in respect of the loss of her claim for physical injuries, she might receive settlement of that claim earlier than the main action, that cannot be assured. In particular, this is a case where there is a defence on the merits that is being persisted in and the pursuer's solicitor could, equally, decide to await the outcome of the present case rather than seek to negotiate an early settlement. In that event, even if the action did succeed on the merits, damages in respect of her physical injuries would be delayed.
[13] It is appropriate that I consider the conduct of the pursuer and her agents in this matter. Some criticism seemed to be made of the pursuer for not having had dealings with the insurers earlier than May 2002 but it is averred that she intimated the claim directly to them following the accident. It can be inferred that intimation must have been earlier than 9 May 2002, the date that they obtained a medical report. She then seems to have instructed agents who had commenced dealings with the insurers in October 2002 and sought to progress negotiation of the claim. Whilst prudence might have dictated that the agent instruct the summons to be drafted sooner than 21 February 2003, there was, at that stage, still some three weeks in hand and the case involved a straightforward road traffic accident giving rise to injuries which do not seem to be particularly complex. Drafting and service of a summons in an action of this nature ought to have been capable of achievement comfortably within that time scale. I note that, in the event, despite the fact that the solicitor had a system designed to prevent him missing the triennium in such actions, he did not operate it as he should have done. He made the fatal error of relying on assumption, the assumption that an instruction he thought that he had given had been followed through. Assumptions can be dangerous and this was such a case. Clearly, the assumption was not well founded and the summons was not timeously served. However, the mistake was quickly realised and rectified. In all these circumstances, I do not see that any criticism can be levelled at the pursuer herself. As far as her solicitor is concerned, it is difficult to see how he could avoid a finding of negligence but it is far from being serious, it happened against a background of, it seems, proper and efficient attention being given to the pursuer's claim and he sought to rectify it promptly. Contrary to the submission on behalf of the defender, a full explanation is given in the summons of how it came to be that the triennium was missed. I would add that, in the absence of submission to the contrary, given the extent of negotiation that appears to have occurred prior to the expiry of the triennium, it seems that nothing in the summons would have come as any surprise to the defender. Accordingly, whilst the conduct of the pursuer's solicitor can be criticised, it is not heavy criticism that is called for and it did not, in fact, cause any difficulties for the defender. [14] To force the pursuer to raise a separate action against her solicitor in respect of the loss to her of, as I have already noted, what appears to be the lesser part of her claim would, in my view, be harsh. It would not only be a matter of inconvenience and possible delay but since it is normal for pursuers to incur non- recoverable legal expense, she could be put in the position of incurring not just one but two such accounts with the risk that if she succeeds on the merits, her ultimate net recovery of damages could be less than if her claims were included in a single action. [15] Accordingly, in all these circumstances, I am satisfied that this is a case where, nothwithstanding the apparent negligence of the pursuer's solicitor, the discretion afforded by s.19A of the 1973 Act should be exercised in her favour. [16] I will, accordingly, sustain the third plea-in-law for the pursuer, repel the defender's first plea-in-law and allow a proof before answer.