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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 161
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A1399/07
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OPINION OF LADY PATON
in the cause
JAMES MURRAY SMITH
Pursuer;
against
GOLAR-NOR OFFSHORE A/S
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Cherry, Advocate; Balfour + Manson
LLP
Defenders: N.R. Mackenzie, Advocate; HBJ Gateley Wareing (Scotland) LLP
25
September 2007
Introduction
[1] In
this action, the pursuer claims damages in respect of personal injuries. He avers that in November or December 1996,
he was working offshore as a roustabout for the defenders. He was instructed to move heavy chain
hoists. He did so, and felt injury to
his back. He further avers that in
July 1997 he was instructed to move angle irons, each weighing about one
hundredweight. As he lifted one of the
irons, he felt a stabbing pain in his back. Finally he avers that in
August 1997, while working in the course of his duties, his back gave
way.
[2] In
Articles 3, 5, and 6 of Condescendence, the pursuer refers to alleged
breaches of the Manual Handling Operations Regulations 1992 and the
Offshore Installations (Operational Safety, Health and Welfare)
Regulations 1976. In Article 4,
he avers that there was an unsafe system of work at common law. In Article 7, he sets out his loss,
injury and damage, including continuing back pain, restricted working capacity,
and the loss of his job on 26 June 1998 after failing to pass an
offshore medical.
In 2007,
the defenders enrolled the following motion:
"On behalf of the defenders,
to grant decree of dismissal and award the expenses of the process in favour of
the defenders on account of the pursuer's inordinate delay in pursuing the
action".
The motion was opposed, and a debate took place.
Procedural history
[3] Counsel
for the pursuer referred to a Chronology and a document entitled "Breakdown of
periods of delay and explanation of what has been happening". Those documents, together with counsel's
submissions and a letter and fax numbers 6/1 and 6/2 of process,
revealed the following procedural history:
[4] The
summons was served on the defenders on 29 September
1999. In November 1999, the action was sisted
to enable the pursuer's legal aid application to be processed (with a Memorandum
referring to October 1997, and not August 1997, in respect of the
third incident). Legal aid was granted. Defences were lodged in April 2000. A period of adjustment followed. In July 2000, the pursuer served a
Specification of Documents on the defenders (see paragraph [11]
below). Subsequently legal aid sanction was
required for a medical expert and a work systems expert. The record closed on 1 November 2000. In December 2000, the pursuer's request
to be permitted to adjust outwith the adjustment period was refused. In May 2001, the pursuer began an
amendment procedure. At a meeting
between the pursuer's and the defenders' agents on 3 May
2001,
the defenders' agents indicated that they had investigated the circumstances
surrounding the alleged incidents and the pursuer's manual handling training
records. They had an expert medical
report and the pursuer's general practitioner's records. On the basis of their investigations
(particularly on the basis of the medical evidence), they intended to defend
the action.
[5] As at
July 2001, the defenders indicated that they did not intend to oppose the
pursuer's Minute of Amendment. The
Minute and Answers were adjusted for a period running from July 2001 until
late 2002, with the defenders' last adjustments being made in
October 2002. At a consultation on 15 December 2002, the pursuer's medical
expert Mr Ledingham advised that an MRI scan was necessary. A scan was eventually obtained. The pursuer intimated a set of adjustments to
the defenders in September 2003.
Thereafter while there was activity on the part of those acting for the
pursuer, there was no contact with the defenders until November 2006. During 2004 and 2005, the pursuer's
lawyers sought Mr Ledingham's advice about the scan and its
implications. In April 2005,
Mr Ledingham advised that the opinion of a spinal surgeon would be
required. Legal aid sanction had to be
obtained in order to instruct such a specialist (Mr Craig). During the period mid-2005 to January 2006,
Mr Craig examined the pursuer and prepared a report. Counsel then requested a consultation with
the pursuer. A consultation could not be
arranged until November 2006, as a consequence of the pursuer's off-shore
commitments.
[6] In
November 2006, there were discussions between the pursuer's and defenders'
agents about the possible involvement of an employment consultant and a
psychiatrist in relation to the pursuer's depression. Those matters required legal aid sanction. On 31 January
2007,
the defenders' agents intimated the present motion seeking dismissal of the
action due to the pursuer's inordinate delay in pursuing the action. As a decision of the Inner House on the
competency of such a motion was awaited in the case of Tonner v Reiach and Hall, the
defenders' motion was continued until that judgement became available.
Entries in medical
records, Accident Book, and occupational health records
[7] The
general practitioner's records relating to the pursuer had been lodged in
process by the defenders. They included inter alia the following entries:
10 June 1997: back ache
awakening the pursuer at night; 21 July 1997 "strained his back offshore
lifting stuff"; 12 September 1997
"variable amount of low back pain over several years" with further detail
noted; 13 October 1997 "mainly low
back pain occasionally radiates down both legs"; and 16 October 1997 "back
pain - variable over last few years but worse in past few months since
heavy lifting in July ... offshore".
[8] In the
course of the debate before me, certain entries in the defenders' Accident Book
and occupational health records were mentioned, but it became apparent that the
pursuer's legal advisers had not seen those entries. At the court's request, counsel for the
defenders very properly provided counsel for the pursuer with copies of the relevant
entries.
[9] The
Accident Book contained an entry relating to the pursuer, with the date 28 June 1997, the place "aft landing deck", and the description
"lifting some heavy angle iron".
[10] The two
occupational health sheets relating to the pursuer, dated 9 October and 12 October 1997 respectively, stated inter alia:
"Date of call: 9.10.97
Diagnosis: Backpain
Disposal: Medevac tomorrow
This man developed a low
back pain on a scale of 5-6 at rest and increasing to 9-10 when
active. He had a previous medical
history. At the end of June, after
lifting a heavy weight, he developed low back pain. At this time he was treated with co-proxamol
and light duties. He saw a chiropractor
when he was next back onshore but there was no improvement after 2 treatments. He then consulted his GP, who arranged for
some physiotherapy but again there was little improvement. He has had an x-ray but to date there has
been no result received. He is meantime
unfit for work. I advised that he should
be given co-proxamol 2 tablets qid and diazepam 2 mgs tid for muscle
spasm and to medevac him the following day (10.10.97) when the tablets
would have made him more comfortable for the journey by helicopter. He should then be seen at Liberty
Occupational Health or by the topside [Aberdeen] doctor for assessment and
then on to his own GP who would arrange further management.
Date of call: 12.10.97
Diagnosis: Acute back injury
Medevac: X
Disposal: GP
The previous day he had been
lifting doing some heavy work after putting on his boots and developed lower backache
and was found to be in discomfort preferring to stand and walking
awkwardly. I notice the fact that he had
a history of lower backache going back to June of this year which occurred
suddenly while lifting a heavy weight and he was awaiting results of
investigations and x-rays by his GP. On
examination by the medic he was found to have a pain score between five and six
when at rest. There was no referred pain
and no problems with micturation and he was thought to have a soft tissue
injury, and he had been prescribed valium 5 mg stat and co-proxamol
2 six hourly. On examination by me
at the surgery he had no tenderness but flexion was slightly reduced although
he had a good range of movement in other directions. However he found the pain worse when he was
just bending over slightly, such as to wash his hands. I advised that he should be given over the
counter ibuprofen and he was referred on to his GP for further assessment and
given an open medical certificate for seven days, diagnosis acute back injury. I think it is probably likely that this man
is going to be off work for some weeks while his backache is investigated
further as this is a recurring problem and I think that he will need to be
managed further by his GP."
[11] As
noted above, the entries in the Accident Book and the occupational health
records had not previously been seen by those advising the pursuer. Counsel for the defenders stated that the
pursuer had served a Specification of Documents on the defenders in
July 2000. Calls 3 and 4
of the Specification number 12 of process were in the following terms:
"3. All books, medical records, medical cards, notes and other
documents relating to the pursuer held by or on behalf of the defenders in
order that excerpts may be taken therefrom at the sight of the Commissioner of
all entries therein showing or tending to show:
(a) the nature, extent and consequences of any injuries or medical
condition of which the pursuer was suffering when he consulted the offshore
medic employed or engaged by the defenders in October 1997 and the
treatment and advice tendered to the pursuer in respect thereof by or on behalf
of the said medic between said date and the date hereof; and (b) the pursuer's current state of
health and prognosis.
4. All records, reports, photographs, memoranda or other
written communications, made at or about the time of the accidents to the
defenders by any employees of the defenders present at the time of the
accidents and relative to the matters mentioned on record."
Despite the terms of those calls, the defenders'
lawyers considered that neither the Accident Book entry nor the occupational
health forms quoted above fell within the Specification. They were not therefore produced to the pursuer. However it seems to me that the Accident Book
entry and the two occupational health sheets should have been produced in
answer to Calls 3 and 4. Had
they been produced in 2000 in response to the Specification, those acting
for the pursuer would have been better placed to prepare and formulate their
client's case.
Submissions
for the defenders
[12] Counsel
for the defenders referred to the procedural history, and submitted that there
was both inordinate and inexcusable delay, with an added element of unfairness
to the defenders specific to the particular factual context of the case. The action concerned alleged accidents which
had occurred at least ten years previously.
The action had been in court for more than seven years. There had been
inexcusable delay. Where a pursuer
raised an action at the last minute, as in the present case, the pursuer had an
obligation to proceed as expeditiously as possible: cf. Tonner
v Reiach and Hall, [2007]
CSIH 48 (12 June 2007), paragraph [133]. But in the present case, there had been
significant delays. In particular, a
period of about two and a half years had elapsed between the Minute of
Amendment in May 2001, and the adjustments by the pursuer in late 2003. Thereafter nothing had happened for some
three years, until November 2006 when the pursuer indicated that he wished
to make progress with the action. Those
were two inexcusable periods of delay.
In any event, the circumstances viewed as a whole disclosed a delay which
was both inordinate and inexcusable.
Reference was made to Tonner, cit.
sup. paragraphs [42], [54] to [55], [88], [129], [132] to [138]. Future procedure in the case might be
substantial, and might include a procedure roll about the relevancy of the
pleadings.
[13] In
relation to the added element of unfairness to the defenders specific to the
factual context of the case, counsel drew attention to the following
matters. More than ten years had passed
since the events supposed to have occurred in November or December 1996, July 1997,
and August 1997. The pursuer's
averments nevertheless remained vague and inspecific. The facts of the alleged accidents were still
unclear. The pleadings still did not
specify the precise dates and processes involved. While it might have been easy for the
defenders to investigate the accidents in 1996 and 1997, it was now
impossible for them to do so. In
relation to the defenders' past investigations, the witnesses whom the
defenders had identified as being on board at the relevant time had no
recollection of the matters complained of.
One reason for that situation was the complete lack of specification of
the dates and activities being undertaken at the time of the alleged
incidents. It was difficult for the
defenders to respond to such a case. It
was difficult for the defenders to prove a negative, in other words, that an
incident had not taken place.
[14] Further
factual context in the present case could be gathered from the medical records,
which contained references to back ache, back strain, and back pain, but at
dates which did not necessarily match the averments on record. Another source of factual information was the
Accident Book, in which there was no reference to anything in July 1997,
although there was an entry dated 28 June 1997 said to have involved
"lifting some heavy angle iron" on the aft landing deck. There was no reference to anything occurring
in November 1996 or August 1997.
Further sources of factual information were the rig medic's occupational
health records giving limited assistance in that the pursuer appeared to have
been "medevaced" (i.e. taken ashore by helicopter) at some time during 9
to 12 October 1997. The dates in
the occupational health records and the Accident Book were not echoed in the
pleadings.
[15] Summing
up, counsel emphasised that two very long periods of time had passed. The reason given for the request for late
adjustments in December 2000 had been the need to obtain expert evidence
on liability. But Article 4 of
Condescendence simply contained a general assertion of a breach of duty, which
was unsatisfactory where training had been put in issue by the defenders in
their adjusted Answers (averring that the pursuer had been trained in manual
handling in April 1997). The
averments in Article 5 of Condescendence, which referred to the Manual
Handling Operations Regulations, were similarly scanty, with no differentiation
between the individual incidents. The
defenders were entitled to fair notice of how each accident arose, and how the
defenders could be said to be in breach of duty. At this late stage, there was still no fair
notice. In all the circumstances,
including the lack of witnesses, the passage of time, and the lack of
specification on record, there was an added element of unfairness to the
defenders: cf. paragraphs [132],
[134], [136], and [150] of Tonner. The matter had to be looked at as a
whole: paragraph [138]. The pursuer might attempt a fresh amendment
(which would be opposed as time-barred);
that might well be followed by a procedure roll; a proof might not take place for several
years. For all the reasons given, the
action was moribund. In view of the two
lengthy periods of delay, and considering the matter as a whole, it was
appropriate that the action be dismissed.
Submissions
for the pursuer
[16] Counsel
for the pursuer opposed the defenders' motion, and advised that the pursuer
would indeed seek to amend the record in terms of Minute of Amendment
number 14 of process and Answers number 15 of process, all as
adjusted. Amongst other things, material
had been produced by the defenders in the course of the debate (namely the
Accident Book and the occupational health records) which had not formerly been
produced, and which the pursuer's agents were pleased to have, albeit at such a
late stage.
[17] Counsel
submitted that it was for the defenders to persuade the court that the tests
laid down in Tonner v Reiach and Hall, cit. sup., had been
met. The power invoked by the defenders
was draconian, and one of last resort:
paragraphs [107] and [130].
On behalf of the pursuer, counsel contended first, that when all the
facts and circumstances were considered, the delay might be regarded as
inordinate, but as excusable. Secondly,
even if the court considered that the delay had been inordinate and
inexcusable, the consequences of the delay were not such that there was the
added element of unfairness in the particular context of the case: cf. paragraph [136] of Tonner.
The action had been raised in 1999, well within the triennium,
and was not to be regarded as a "triennium-buster'. There had been difficulties obtaining legal aid
sanction for an expert (Mr Joe Hughes).
His report had not become available until after the record had
closed. At one stage the defenders
requested further time to adjust their pleadings. There had been two changes of counsel for the
pursuer. Counsel accepted that there had
been no contact with the defenders between 23 September
2003
and November 2006 (although considerable activity had been taking place on
the pursuer's behalf). In November 2006,
the defenders were advised by the pursuer's agents that the pursuer wished to
make progress with the case.
Delay possibly inordinate,
but excusable
[18] Counsel
reiterated that the delay might be regarded as inordinate, but it was excusable
(cf. the analysis in Tonner). There were five reasons why the delay should
not be characterised as inexcusable.
[19] First,
not all of the delay had been caused by events which it was in the power of the
pursuer or his legal advisers to expedite.
(a) There had been a delay of six months to allow the defenders to
produce adjustments: reference was made
to paragraph 3 of the pursuer's Breakdown.
(b) On two occasions, delays had been occasioned by the need to
obtain sanction from the Scottish Legal Aid Board: reference was made to paragraphs 4
and 8 of the Breakdown. (c) On
two occasions, delay had been caused by having to await further information
from an expert: reference was made to
paragraphs 5 and 7 of the Breakdown.
(d) On one occasion, a change of expert had proved necessary: reference was made to paragraph 8 of the
Breakdown. (e) It had not been easy
to arrange a consultation with the pursuer because of the nature of his work
and its geographic location.
[20] Secondly,
there had been delays on the part of the counsel then instructed, in making
adjustments, and in replying to the pursuer's agents. On a number of occasions, the previous
counsel had taken months to respond to the agents. Such delays could not be regarded as out of
the ordinary, as busy counsel on occasions took longer to respond than was
ideal.
[21] Thirdly,
at all stages, the Edinburgh agents had been pressing
for progress. They had sent reminders to
both counsel and the local agents.
[22] Fourthly,
this was a case where the pursuer's agents had faced a number of difficulties,
and had sought to deal with those difficulties as diligently as they could in
the circumstances. It was easy to claim
that the pursuer's solicitors should have sought to move the Minute of
Amendment at an earlier stage, or to change counsel: but it was only with the benefit of hindsight
that the need for such action had become clear.
It was apparent from the Chronology that the pursuer's agents were
pressing for progress, but kept being reassured that they were on the point of
receiving the information required. Only
with the benefit of hindsight did it become clear that a different approach
should have been taken.
[23] Fifthly,
none of the delay was caused by the fault of the pursuer. Only one delay, namely consulting in 2006,
could perhaps be attributed to him.
However his inability to attend for consultation had not arisen from
apathy, but from real difficulties caused by working off-shore. Counsel submitted therefore that the
difficulty in consulting was not the pursuer's fault, and none of the other
delays was his fault.
[24] Accordingly,
while the delay might be regarded as inordinate, it was excusable.
Esto delay inordinate and
inexcusable, no element of unfairness
[25] Counsel
then argued that, even if the court regarded the delay as inordinate and
inexcusable, the consequences of the delay had not resulted in an added element
of unfairness to the defenders specific to the factual context of the
case. Reference was made to
paragraphs [134] to [138] of Tonner. Counsel for the defenders had not
identified any concrete reason why there could be said to be an added element
of unfairness. He had simply focused
upon an alleged lack of specification in relation to dates and ways in which
accidents had occurred. But the
defenders had been in possession of the Accident Book and the occupational
health records - information given to the pursuer only in the course of
the present debate, and information which might well have assisted the pursuer
in giving the necessary specification.
It was clear from correspondence and from the meeting between the pursuer's
and defenders' agents on 3 May 2001, that by May 2001 the
defenders had investigated the circumstances of the alleged incidents. The defenders had the Accident Book, the
pursuer's manual handling training records, and his medical history (including
the general practitioner's records and the occupational health records). The existence of the Accident Book was in
fact mentioned at the meeting.
Accordingly by May 2001, the defenders had reached a view about the
case, and were not prepared to make an offer to the pursuer. Further from the content of a fax dated 2 July 2001 (number 6/2 of process) it could be seen that
the defenders had carried out extensive investigations into liability,
causation, and loss; had formed a view; and had no objection to the pursuer's proposed
amendment of the record. The defenders
were, by July 2001, ready to proceed to proof. That situation had not changed. The issues remained the same. There was nothing new to investigate. Although therefore it was regrettable that
considerable time had passed since July 2001, there was no added element
of unfairness. The present case was very
different from the cases of Tonner v Reiach and Hall, cit. sup., and McKie v MacRae, 2006 S.L.T. 43. Reference was made to
paragraphs [137] and [151] in Tonner,
and paragraphs [2] and [6] to [8] in McKie. This was not a case where ten years had passed before the
raising of the action, only to have the action sisted for five years. This was not a case where further extensive
procedure was required. In all the
circumstances, the defenders' motion should be refused.
Final reply
for the defenders
[26] Counsel
for the defenders referred to the fact that the existence of the Accident Book
had been mentioned at the agents' meeting on 3 May
2001. In effect, an unofficial process of
disclosure had taken place. Had the
pursuer's agents been curious about the content of the Accident Book, they
could have organised a commission to recover documents, including the Accident
Book. When therefore the issue of the
Accident Book was examined in the context of what was claimed to be excusable
delay, the pursuer's argument was undermined, not supported. The defenders' motion should be granted, and
the action dismissed.
Discussion
[27] I
accept that the court has the power to dismiss the action where there has been
inordinate and inexcusable delay, resulting in an added element of unfairness
to the defenders specific to the factual context of the case, all as set out in
Tonner v Reiach and Hall, Extra Division [2007] CSIH 48 (12 June
2007).
[28] Viewing
matters in this case as a whole, as I was invited to do, I have concluded that
the only period during which there could be said to have been "inordinate"
delay was the period of approximately three years between September 2003
and November 2006. At all other
stages in the case, the pace of the litigation, while not always entirely
satisfactory, could not in my view be said to amount to "inordinate"
delay.
[29] Focusing
therefore on events during that period of inordinate delay, the question arises
whether the delay was inexcusable. As
can be seen from the Chronology and the Breakdown provided by counsel for the
pursuer, difficulties were encountered because of the time taken by busy
medical professionals to respond to inquiries;
the need for legal aid sanction for a new medical expert; and the fact that the pursuer was working
off-shore. Those matters in my view
provide a sufficient explanation for the passage of time, such that the delay
occurring during those three years cannot be regarded as inexcusable.
[30] It will
be seen therefore that I am not persuaded that there has been a delay which is
both inordinate and inexcusable, as desiderated in Tonner, cit. sup.
[31] In any
event, I am not satisfied that the delay has caused any additional element of
unfairness to the defenders in the factual context of this case. The incidents described by the pursuer
occurred in 1996 and 1997. His
action for damages was raised in 1999.
On receipt of the summons, the defenders took steps to investigate the
incidents. As can be seen from the
pursuer's agents' letter dated 8 May 2001 (number 6/1 of process),
the defenders had by that stage made inquiries sufficient to enable them to
form a view that the case should be defended, and that no offer in settlement
should be made. The defenders were
assisted in their investigations by records, including an entry in the Accident
Book, two occupational health forms, the pursuer's general practitioner's
records, and the pursuer's manual handling training records. The pursuer, by contrast, despite having
served an appropriate Specification of Documents upon the defenders, did not
have the Accident Book or the occupational health records, and any criticism by
the defenders concerning lack of specification in the pursuer's pleadings must
be viewed against that background. In
relation to witnesses, counsel for the defenders advised the court in the course
of the debate that, as at May 2001, any witnesses identified by the
defenders as being on board at the relevant time had no recollection of the
matters complained of. That situation
has presumably not altered over the years (in contrast with cases where the
passage of time has resulted in loss of recollection, or the death or
disappearance of a valuable eye-witness).
In all the circumstances, nothing in the submissions made on behalf of
the defenders persuaded me that any delay has altered matters to such an extent
that it would be unfair to expect the defenders to proceed with their
defence. The circumstances in the
present case are significantly different from those in Tonner and McKie, cit. sup.
[32] In the
result therefore I am not prepared to exercise the draconian power of last
resort to dismiss the action for inordinate and inexcusable delay.
Decision
[33] For the
reasons given above, I refuse the defenders' motion. I reserve the question of expenses to enable
parties to address me on that matter.
