FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President Lord Kingarth Lord Carloway Lord Clarke Lord Bonomy Note: I have retained the first person singular in this Opinion. I think that DRAE's views should be expressed separately. In this revised version I have sought to take into account the points made by other members of the court. If there are any further suggestions I am happy to consider them. Short concurring Opinions will be required from those who agree with me. LP 18.1.10

[2010] CSIH 9 A1609/03 and A82/05 OPINION OF THE LORD PRESIDENT in the causes JOHN AITCHISON Pursuer and Respondent; against GLASGOW CITY COUNCIL Defender and Reclaimer; and STEPHEN FINDLETON Pursuer and Reclaimer; against QUARRIERS Defender and Respondent: _______

Act (Aitchison): S O'Brien, Q.C., Stirling; Drummond Miller LLP

Act (Findleton): A Kinroy, Q.C., U Doherty; Balfour + Manson LLP

Alt (Aitchison): J A Peoples, Q.C., G J Clarke, Q.C.; G Lindsey, City of Edinburgh Council

Alt (Findleton): G J B Moynihan, Q.C., R Dunlop; Simpson & Marwick

10 February 2010

The issue

[1] The issue of principle which arises for determination at this stage in these reclaiming motions may be formulated as follows:

An individual, through fault of another, sustains injury of more than a negligible kind ("the original injury"); he does not, however, within any of the limitation periods specified in section 17 of the Prescription and Limitation (Scotland) Act 1973 (as amended) bring an action of damages in pursuit of the right to reparation so arising; subsequently there emerges an injury ("the subsequent injury") caused by the same fault but which is said to be distinct from the original injury; can that individual then as of right bring against the wrongdoer an action seeking damages for the subsequent injury?

[2] In Carnegie v Lord Advocate 2001 SC 802 an Extra Division in effect decided that he could. The primary question for this court is whether that decision was sound in law.

[3] The answer to that question is important not only for the parties to these reclaiming motions but for other parties in like circumstances. In recent times a significant number of individuals have as adults raised actions in which they claim that, while children and resident in children's homes or other institutions, they were subject to abuse - in some cases physical, in others sexual and in yet others both - at the hands of adults employed in these institutions. In some cases the abuse was of a very serious character, in others less so. A feature of at least some of these cases is that there have emerged in later life psychological symptoms which, it is claimed, are caused by the conduct to which they were subjected but are distinct from the immediate consequences of that conduct. The answer to the question is also of potential importance in a wider class of situations.

The present actions

[4] In the present cases the issue arises in this way. The first of these pursuers (Mr Aitchison) was, between the ages of about 3 and 16, resident in a children's home managed by a statutory predecessor of Glasgow City Council. He avers that in about 1974, when he was 9 years of age, he was on five occasions sexually assaulted by a member of staff. Although he reported that abuse to other members of staff, their only response was to accuse him of lying and to chastise him physically. Mr Aitchison further avers that he blocked out thoughts and memories of the above abuse and of the abuser until 2001 when, following a police inquiry into abuse at the home and an article in a newspaper, he attended a counsellor as a result of which his memories of the abuse gradually returned. Subsequently, he avers, he has suffered psychological damage (including nightmares, sleep disturbance, loss of concentration and panic attacks) which he attributes to the abuse to which he was subjected in 1974. In the present action (commenced in 2003) he seeks damages from the Council for that psychological damage. He does not seek damages for any affront or other immediate consequence of the abuse.

[5] In their pleadings the Council contend that the action is time-barred by the operation of limitation of action. Mr Aitchison disputes this but in the alternative pleads that the court should exercise in his favour the discretion conferred on it by section 19A of the Prescription and Limitation (Scotland) Act 1973. The parties were heard on Procedure Roll. The Lord Ordinary, while observing that "the assaults which, given [the pursuer's] age at the time, are serious", followed and applied Carnegie, holding in effect that the psychological damage was on averment wholly distinct from any immediate consequences of the abuse and that, the action having been raised within three years of the emergence of that damage, section 17 of the 1973 Act did not bar it. He repelled the Council's plea of time-bar and allowed a proof before answer although observing that the pursuer's plea relating to section 19A was largely now redundant. Against that interlocutor the Council has reclaimed.

[6] Mr Aitchison does not accept that in 1974 he sustained "injuries" within the meaning of section 17 but maintains that, if he did, he is, standing Carnegie, entitled as of right to pursue this action. A decision as to the soundness or otherwise of Carnegie is accordingly necessary for the disposal of his action.

[7] The second of the pursuers (Mr Findleton) was between 1965 and 1971, when he was between 7 and 13 years of age, resident in a children's home managed by Quarriers, a charitable institution. He avers that throughout that period he was "continually physically and mentally abused" by a member of the staff. His present averments include the statement - "Since his time under the care of the defenders, the pursuer has suffered and continues to suffer from depression". The Lord Ordinary in these circumstances observed that Mr Findleton did not aver a wholly distinct injury arising only within the three years prior to the raising of the action and that accordingly, on the assumption that Carnegie was good law, Mr Findleton's case was not covered by it. She in effect rejected his case in so far as based on section 17, allowing a preliminary proof in respect of his application under section 19A that the action be allowed to proceed on a discretionary basis. Mr Findleton's advisers accept that, standing his present averments, he cannot bring himself within Carnegie but are considering whether they can seek to amend in order to enable him to do so. Such amendment would be fruitless if Carnegie is not good law. Hence a decision on that issue is also important for the disposal of his case.

Carnegie v Lord Advocate

[8] In Carnegie the pursuer was a soldier who had joined the Army in July 1991. He received basic training at Penicuik in the course of which he later claimed to have been subjected to assaults and bullying by non-commissioned officers. Between late February and late March 1992 he was stationed in Northern Ireland. On a date within that period, which he was unable to identify, he was subjected, he alleged, to further assault by a Sergeant Frew. In May 1992 he developed psychological symptoms. On 7 March 1995 he commenced an action in which he sought reparation for both physical and psychological injuries.

[9] After sundry procedure, including a preliminary proof, the Lord Ordinary allowed a proof before answer on the merits of the action. The defender reclaimed. The pursuer cross-appealed on two grounds. It is the second of these which is material for present purposes. An Extra Division (comprising Lords Milligan, Marnoch and Johnston) allowed the cross-appeal on that second ground. Lord Johnston, with whom Lords Milligan and Marnoch concurred, delivered the substantive opinion in relation to that ground. He said:

"[18] Turning to the second ground of the cross-appeal it is far from clear what case the pursuer is actually making on his pleadings. In essence, however, complaint is made of a series of assaults or course of bullying which ... must be regarded as having ceased prior to the commencement of the triennium. In so far, therefore, as the pursuer makes a claim for injuries in respect of individual assaults as separate delicts, such, in my opinion, is clearly time-barred. This calls into question the averments at the start of cond 5 in relation to pain and suffering to which I shall return. The question remains, however, whether the pursuer has averred a relevant case of having sustained psychological injury within the triennium. It is well recognised, of course, that in relation to a single wrong only one action is competent, and losses, both past and future, must be claimed for in that action (Dunlop v McGowans [1980 SC (HL) 73] (per Lord Keith of Kinkel at page 81)). However, as counsel on both sides came to realise, it is an entirely different question whether, in the only action raised, the pursuer can sue for only some of his injuries, namely those which are not time-barred. For this to happen the later injuries must, of course, be distinct as, otherwise, they will fall to be seen as a simple continuation or exacerbation of those which are time-barred. Here the decision of Lord Prosser in [Shuttleton v Duncan Stewart & Co 1996 SLT 517] is highly relevant. In that case, which related to lung disease, his Lordship having heard a preliminary proof determined that various symptoms that the pursuer exhibited prior to the final development of asbestosis, which had revealed themselves outwith the triennium relating to the action that had been raised, were not sufficient to deny the pursuer the opportunity to sue, as he did within the relevant triennium, once the actual disease of asbestosis had developed.

[19] The evidence upon which his Lordship relies is summarised by him as follows: 'For what it is worth it appears to me [upon] the evidence that the plaques if [it is] to be regarded as disease or impairment at all are sufficiently distinct from either pleural thickening or asbestosis so as to qualify [as] a 'separate' disease or impairment. That being so I would not regard knowledge of plaques as barring claims based on either pleural thickening or asbestosis'.

[20] I take from that decision the recognition by his Lordship that for purposes of the 1973 Act as amended a wholly distinct injury, albeit arising from the same delict, can be sued upon in a separate claim and therefore can create a separate triennium not starting from when there was original awareness of the original symptoms which are distinguishable but rather from when at the earliest, the injury based on the action emerged to the knowledge of the pursuer.

[21] Applying that approach to the present case I reject the argument that such physical anguish and fear that the pursuer may have suffered during the bullying period up to 1991 is merely a precursor of the same type of psychological injury that developed in the spring of 1992. In my opinion, upon the averments, the psychological injuries developing in May 1992 were a separate or distinct injury. They were obviously serious and if the pursuer had not sued within three years of May 1992 he might not thereafter have been able to rely upon section 17(2)(b). However, as matters stand, he does not have to rely on that subsection because he has sued timeously for an injury, namely psychological injury, within three years of the date when it was sustained, namely May 1992, which is thus the appropriate starting point of the relevant triennium, in terms of section 17(2)(a).

[22] As far as I can see this argument is far removed from anything presented to the Lord Ordinary and I therefore have considerable sympathy with the way in which he approached the matter. The fact remains, however, that in my opinion, for the reasons that I have given, I do not consider that the claim based on psychological injury is time-barred and should therefore be allowed to go to inquiry. What, however, in my opinion is time-barred on the basis that it represents wholly separate injuries is any claim based on physical injury from the assaults either up to 1991 or in relation to the Sergeant Frew incident in March 1992, which cannot be specifically dated.

[23] In allowing an inquiry therefore I would delete certain averments in cond 5, namely the second and third sentences in the following terms: 'He underwent considerable pain and suffering when he was the victim of assault such as those condescended upon. He suffered humiliation and distress of being the victim of bullying'."

The averments which were deleted were those which related to the immediate consequences of the assaults and bullying. The averments of damage which were allowed to go to probation were those of psychological damage (bronchial hyperactivity and panic disorder causing panic attacks and hyperventilation syndromes) which first emerged in May 1992 and thus within three years prior to the commencement of the action.

The right of action

[10] Reparation is the pecuniary remedy afforded by law for loss caused by a wrong (Glegg on Reparation (4^th ed.) page 3). Reparation for personal injuries caused by a wrong is part of the general law of reparation. A right of action emerges when there is a concurrence of the wrong and damage caused by it (Watson v Fram Reinforced Concrete Co (Scotland) Ltd 1960 SC (HL) 92).

Prescription

[11] The correlative obligation to make reparation for personal injuries caused by a wrong was until 1984 subject to the general law of prescription, that is, the obligation was extinguished on the expiry of the long negative prescriptive period; but an obligation to make reparation in respect of personal injuries was excluded from the operation of that prescription by section 6 of and schedule 1 para 2 to the Prescription and Limitation (Scotland) Act 1984. A prescriptive period, where applicable, runs from the date when loss, injury or damage is first sustained (Dunlop v McGowans).

Limitation of action - the legislative history

[12] Statute also provides for the limitation of action by the expiry of time. The effect of limitation in Scotland is not to extinguish the relative obligation but to provide to the alleged wrongdoer a right, which he may or may not choose to exercise, to have the action dismissed where it has been raised against him out of time. Prior to 1954 the limitation statute of most significance for the purpose of actions for personal injuries was the Public Authorities Protection Act 1893. That statute was, with other limitation provisions, repealed by the Law Reform (Limitation of Actions etc.) Act 1954. So far as concerns actions for personal injuries it was replaced as regards Scotland by a general limitation provision. Section 6 of the 1954 Act, in so far as material, was in the following terms:

"(1) No action of damages where the damages claimed consist of or include damages or solatium in respect of personal injuries to any person shall be brought in Scotland against any person unless it is commenced -

(a) in the case of an action brought by or on behalf of a person in respect of injuries sustained by that person, before the expiration of three years from the date of the act, neglect or default giving rise to the action or, where such act, neglect or default was a continuing one, from the date on which the act, neglect or default ceased;

(b) in the case of an action brought by or on behalf of a person to whom a right of action has accrued on the death of another person in consequence of injury sustained by that other person, before the expiration of three years from the date of that death:

Provided that for the purposes of paragraph (b) of this subsection a right of action shall be deemed not to have accrued to a person on the death of another person by whom injuries have been sustained if that other person or someone on his behalf was not, immediately before his death, himself entitled to bring an action in respect of the injuries.

(2) If on the date when any right of action accrued for which a period of limitation is prescribed by the foregoing subsection the person to whom it accrued was under legal disability by reason of pupilarity or minority or unsoundness of mind and was not in the custody of a parent, the action may be brought at any time before the expiration of three years from the date when the person ceased to be under disability, notwithstanding that the period of limitation has expired.

...

(3) In this section the expression 'personal injuries' includes any disease and any impairment of a person's physical or mental condition."

[13] These provisions were the subject of interpretation in Watson v Fram Reinforced Concrete Co (Scotland) Ltd. The House of Lords, by a majority of three to two, reversing a unanimous decision of the Second Division and restoring the decision of the Lord Ordinary, held that "the date of the act, neglect or default giving rise to the action" was the date when the right to raise the action emerged, that is, when there was concurrence of fault and damage. Lord Keith of Avonholm, who was one of the majority, said at page 113:

"Applying the ratio of [Donoghue v Stevenson 1932 SC (HL) 31 and Grant v Australian Knitting Mills [1936] AC 85] there was, in my opinion, no act, neglect or default within the meaning of the statute affecting the pursuer until he was injured. A fortiori there was no act, neglect or default giving rise to his action before that date. It was then for the first time that there arose a breach of duty which made its impact on the pursuer. Time, in my opinion, commenced to run against the pursuer under the statute from that date."

[14] The Limitation Act 1963, section 8 extended the time imposed by section 6 of the 1954 Act. It provided:

"(1) Section 6(1) of the Law Reform (Limitation of Actions, etc.) Act 1954 ... shall not afford any defence to an action to which this section applies, in so far as the action relates to any right of action in respect of which the requirements of subsection (3) of this section are fulfilled.

(2) This section applies to any action of damages in Scotland where the damages claimed consist of, or include, damages or solatium in respect of personal injuries sustained by the pursuer or any other person.

(3) The requirements of this subsection are fulfilled in relation to a right of action if it is proved that the material facts relating to that right of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the pursuer until a date which -

(a) either was after the end of the three-year period relating to that right of action or was not earlier than twelve months before the end of that period, and

(b) in either case, was a date not earlier than twelve months before the date on which the action was brought.

(4) Nothing in this section shall be construed as excluding or otherwise affecting -

...

(b) the operation of any enactment or rule of law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the right of action accrued."

[15] Section 13 (which made supplementary provision) also referred to a "right of action" and to the date on which it "accrued".

[16] The Law Reform (Miscellaneous Provisions) Act 1971 extended certain time limits under the 1963 Act. Again concepts such as "right of action" and its having "accrued" are reflected in the statute (see, for example, Schedule 1 Part II).

[17] In 1970 the Scottish Law Commission addressed the law of prescription and of limitation of action in respect of personal injuries. It noticed (Scot Law Com. No.15 at para 112) that section 6(1)(a) of the 1954 Act presented problems and had led (in Watson) to divergent judicial opinions. It observed (at para 113) that further consideration of the 1954 and 1963 Acts "has reinforced our view that their provisions should be restated in a clearer form". In moving the second reading of the relative Bill the Minister (Lord Polwarth) stated:

"This Bill implements the Report of the Scottish Law Commission on Reform of the Law relating to Prescription and Limitation of Actions; and I must acknowledge the Government's debt to the Commission, not only for a very clear and comprehensive Report, but also for the major part they have played in the preparation of the Bill. In so far as the proposed legislation differs from their Report, the changes have been agreed with or, indeed, in the majority of cases, suggested by the Commission." (Hansard, 5 April 1973, col.418).

The changes are not identified but no party before us has suggested that these were relevant to the present issue and were material.

[18] The restatement was enacted as Part II of the Prescription and Limitation (Scotland) Act 1973. Section 17 (as enacted) was in the following terms:

"(1) No action of damages where the damages claimed consist of or include damages or solatium in respect of personal injuries to any person shall be brought against any person unless it is commenced -

(a) in the case of an action brought by or on behalf of a person in respect of injuries sustained by him as a result of any act, neglect or default, before the expiration of three years from the date when the injuries were sustained or, where such act, neglect or default was a continuing one, from that date or the date on which the act, neglect or default ceased, whichever is the later;

(b) in the case of an action brought by or on behalf of a person to whom a right of action has accrued on the death of another person in consequence of injuries sustained by that other person, before the expiration of three years from the date of that death;

Provided that for the purposes of paragraph (b) of this subsection a right of action shall be deemed not to have accrued to a person on the death of another person by whom injuries have been sustained if that other person or someone on his behalf was not, immediately before his death, himself entitled to bring or continue an action in respect of the injuries.

(2) If on the date when any right of action accrued for which a period of limitation is prescribed by the foregoing subsection the person to whom it accrued was under legal disability by reason of nonage, or if on that date the said person was or became under legal disability by reason of unsoundness of mind, and in either case that person was not in the custody of a parent, the action may be brought at any time before the expiration of three years from the date when the person ceased to be under disability, notwithstanding that the period of limitation has expired.

...".

"Personal injuries" were again defined as including "any disease and any impairment of a person's physical or mental condition" (section 22(1)).

[19] The language of section 17 clearly reflects section 6(1) of the 1954 Act, as interpreted in Watson. It also reflects concepts such as "right of action" and its accrual found in the 1954, 1963 and 1971 Acts. The relative provisions of these Acts were repealed by the 1973 Act (section 23 and schedule 5, Part II).

[20] The long title of the 1973 Act narrates that it was "... to re-enact with modifications certain enactments relating to the time-limits for bringing legal proceedings where damages are claimed which consist of or include damages or solatium in respect of personal injuries ...". The commentator to the Current Law edition of the statute observed that Part II "re-enacts in consolidated form the rules of limitation introduced by the Law Reform (Limitation of Actions, etc.) Act 1954 and amended by the Limitation Act 1963 and the Law Reform (Miscellaneous Provisions) Act 1971".

[21] The next development of significance was the introduction of an equitable jurisdiction to disapply the limitation provisions of section 17. This was done by section 23 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980. Subsection (2) of that section speaks of "rights of action accruing".

[22] Section 12 of the Administration of Justice Act 1982 empowered the court in certain circumstances to order that damages ("provisional damages") be awarded to an injured person and that the injured person might subsequently apply for a further award of damages. Subsection (1)(a) refers to "the act or omission which gave rise to the cause of the action".

[23] Section 2 of the Prescription and Limitation (Scotland) Act 1984 substituted new provisions for certain of the provisions of the 1973 Act. The substituted section 17 was in the following terms:

"(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action ... brought by the person who sustained the injuries or any other person.

(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 the 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.

(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind."

[24] This is the formulation, the interpretation of which is of immediate importance to the issue in these reclaiming motions. However, as I shall in due course explain, the prior statutory history is not unimportant to that interpretation.

[25] Prior to the enactment of the 1984 Act the Scottish Law Commission had again considered both prescription and limitation of action as applied to personal injuries. In April 1980 it published a consultative memorandum (Consultative Memorandum No.45, Time-Limits in Actions for Personal Injuries) and in February 1983 a report (Scot. Law Com. No.74). At paragraph 1.4 of the latter document it recorded that commentators on the consultative memorandum for the most part expressed satisfaction with the law, though not its presentation. It continued:

"There is now wide acceptance of a short limitation period, running from the date of injury, but sufficiently flexible to take account of the claimant's lack of knowledge of such matters as the existence and cause of his injury. We have therefore seen our main task as one of simplifying the law and eradicating a number of obvious defects, and this is something which we believe can be readily achieved."

A draft Bill was annexed to the report. Clause 17 of that Bill was in substance identical to section 17 of the 1984 Act.

The "one action" rule

[26] As Lord Johnston recognised in Carnegie, a person claiming damages founded on a single wrong can bring only one action for reparation; all losses, past and prospective, must be addressed in that one action. This procedural rule goes back beyond Stevenson v Pontifex and Wood (1887) 15 R 125, where Lord President Inglis observed (at page 129) that the most familiar illustration of that rule of practice was to be found in actions for injury to the person, "in which the practice is invariable". Lord Mure and Lord Adam agreed, the latter again illustrating the rule by reference to the practice in actions of damages for personal injuries arising from fault. The rule was more recently applied (in an action not concerned with personal injuries) by the House of Lords in Dunlop v McGowans where Lord Keith at page 81 observed:

"An obligation to make reparation [for loss, injury and damage caused by an act, neglect or default] is a single and indivisible obligation, and one action only may be prosecuted for enforcing it."

[27] The pursuers in the present actions accept that this rule is firmly established but contend, consistently with Lord Johnston's opinion, that it does not answer the issue raised in these reclaiming motions. Neither of these pursuers has previously raised an action to recover damages for the wrong done to him by the defenders' respective employees. Mr Aitchison seeks in one action damages for personal injuries restricted to the psychological damage which he has experienced since 2001. Mr Findleton has raised only one action; although that includes a claim of damages for personal injuries (including psychological injury) going back to at least 1971, he is considering whether to seek to amend to restrict his claim.

[28] The pursuers' contention, in brief, is that, although a claimant may be time-barred from recovering damages for earlier non-negligible injuries, he may, on a sound construction of section 17 of the 1973 Act (as substituted by the 1984 Act), as of right sue for damages for subsequent injuries sustained, from the same wrong, within a three year period prior to the bringing of the action (or within any relevant extended period as envisaged in section 17) - provided always that the subsequent injuries are "distinct". That broad contention was developed by the pursuers' counsel in different ways.

The pursuers' submissions

[29] Miss Stirling, junior counsel for Mr Aitchison, submitted that the concepts of "cause of action" or "right of action" and the related concepts of damnum and iniuria (whatever their significance for the purposes of prescription) were irrelevant to the interpretation of section 17. Concurrence of iniuria and damnum was simply a matter of "competency" - a precondition to the bringing of an action. Lord Keith in Dunlop v McGowans at page 81 had observed that the topic of limitation of actions of damages for personal injuries had historically had entirely a different background from negative prescription. "[T]he date on which the injuries were sustained" might be, but need not be, the date of (first) concurrence of a iniuria and damnum. The relevant injuries (and accordingly the relevant date) were those in respect of which damages were claimed in the action. Carnegie had been rightly decided. Although Lord Johnston had not made a detailed analysis of section 17, the notion of a "separate triennium" was sound. Lord Prosser's analysis in Shuttleton had also been correct. Although there were dangers in looking at English statutory provisions on limitation of actions for personal injuries (which had latterly diverged from those applicable in Scotland) AB v Minister of Defence [2009] EWHC 1225 (QB) was an interesting example of a similar interpretation of limitation provisions. Miss O'Brien, senior counsel for Mr Aitchison, accepted that to found a claim of damages for personal injuries there must be a concurrence of iniuria and damnum but it did not follow, she submitted, that time began to run from the first concurrence. The effect of section 17 as originally enacted (and as substituted by the 1984 Act) was in matters of limitation to shift the terminus a quo from the initial concurrence of iniuria and damnum to the injuries for which damages were claimed in the action. That was the natural construction of section 17 read as a whole. That section did not at any point refer to the concurrence of iniuria and damnum; nor did section 18 where the relevant date was the date of death (or later). The starting point for the interpretation of section 17 was subsection (1) which spoke of "an action where the damages claimed" consisted of or included damages in respect of personal injuries. Where "the injuries" were referred to in subsection (2)(a) and "the injuries in question" in subsection (2)(b)(i) these were references back to the personal injuries referred to in subsection (1), namely, those in respect of which damages were claimed in the action. The reference was to "the" injuries, not to "any" injuries. There was no obligation on a claimant to sue in respect of all the injuries sustained by him as a result of a wrongdoing. He could be selective. The reasoning in the Scottish Law Commission's most recent paper (Report No.207 - December 2007) was unconvincing.

[30] Miss Doherty, junior counsel for Mr Findleton, submitted that prescription had no present relevance. Provided that the obligation to make reparation had not been extinguished by decree, settlement or other resolution, a claimant who had sustained late-emerging injuries could, provided all relevant limitation periods since that emergence had not expired, sue as of right for damages for these injuries. Three principles of statutory interpretation were relevant: (1) that Parliament did not intend an unfair, unreasonable or arbitrary result, (2) that Parliament did not take away or impair property or economic interests unless under clear authority of law and (3), as regards an "ongoing" statute, an "updating" construction was to be given to meet changes in social conditions, development and technology and in medical science etc. Reference was made to Bennion - Statutory Interpretation (5^th ed.) section 265 (pages 795-6) and section 288 (pages 889-90 and pages 901-7) and to R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, especially per Lord Bingham of Cornhill at paras 8-10, citing Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800. It did not matter that a Carnegie situation may not have been envisaged when the Act was passed. It was not claimed that the pursuers' interpretation was plain but it was consistent with the language used and the legislative policy underlying it. What mattered was what was contained in the summons. There was only one triennium, that which might be relevant to the injuries in respect of which the action was brought. The "injuries in question" in section 17(2)(b)(i) were those on which the claimant sought to found his claim (Dobbie v Medway Health Authority [1994] 1 WLR 1234, per Sir Thomas Bingham MR at page 1240). Reference was also made to Sniezek v Bundy (Letchworth) Ltd [2000] PIQR P 213, especially per Judge LJ at pages 231-2. The "injuries in question" envisaged that there were (or might be) other injuries which were not in question, that is, not sued in respect of in the action. Mr Kinroy, senior counsel for Mr Findleton, began by clarifying two aspects of his junior's submissions: it was not being suggested that there was no need (to avoid the time-bar) for there to be a separate and discrete injury; nor was it being suggested that the legislation operated retrospectively - only that the court, adopting a pragmatic approach, would start with the summons and work backwards. Section 17 of the 1973 Act (as re-enacted) placed emphasis on when the injuries were sustained, not on the accrual of a right of action. Thus, time began to run not from that accrual but from when the injuries in question in the action were sustained. The injuries in respect of which damages were claimed were those identified in the summons. The court required to address whether these injuries had been sustained within the three years (or any extended period). In most cases all injuries would have been sustained at the same time but this was not always the case. There might accordingly be a series of dates from which time ran. The expression in subsection (2)(a) was "the injuries" (not "any injuries"). The expression "injuries in question" in subsection (2)(b)(i) (of the substituted provision) was also significant. It was possible to detect from the legislation as it developed an increasing awareness of the emergence of, and need to cater for, "late" claims. It was difficult to see on what policy basis Parliament would have wished to exclude from the right to sue a person who, not having sued for earlier injuries, sought damages for subsequently emerging ones.

Discussion - the approach

[31] The issue in these cases is one of statutory interpretation but, it cannot, in my view, be resolved by looking solely at the language used in the current version of section 17 of the 1973 Act. The prior legislative history is important to a proper understanding of why that language came to be used. Certain rules of the common law are also germane.

The common law

[32] It is accepted on all hands that as regards a claim for damages in respect of personal injuries, as of any other claim for damages, only one action can be pursued to decree. Thus, if an individual having sustained injuries through the fault of another sues the wrongdoer to decree (or settles with him), the obligation to make reparation is superseded (and extinguished) by the decree or the settlement agreement. He cannot sue a second or further time for damages in respect of injuries which subsequently emerge caused by the same wrong, even if he neither knew nor had the means of knowing at the time of his original claim of the likely or even possible emergence of these later injuries. That rule, which is a rule of practice, may seem in some circumstances harsh; but it is firmly established in our law (Stevenson v Pontifex and Wood, per Lord President Inglis at page 129 and per Lord Adam at page 130). The observation by Lord Keith in Dunlop v McGowans at page 81 that "only one action may be prosecuted for enforcing [the obligation]", while made in the context of a different class of obligation and when considering the application of prescription rather than limitation of action, is equally applicable to actions in respect of personal injuries. In the Court of Session Lord Justice Clerk Wheatley at 1979 SC 22 page 33 observed that the dictum of Lord President Inglis in Stevenson v Pontifex and Wood "covers the situation where the breach of duty founds an action either on negligence or on breach of contract" - see also Lord Thomson at page 39. The applicability of the "one action" rule to claims for personal injuries had earlier been confirmed in Rieley v Kingslaw Riding School 1975 SC 28 at page 41. The potential harshness of that rule is alleviated to some extent by the statutory provision (section 12 of the Administration of Justice Act 1982) in respect of provisional damages.

[33] There is another relevant rule of the common law, in this case substantive rather than procedural. It is that a right of action for damages emerges when there is concurrence of iniuria and damnum - that is, the point when injury is first sustained as a result of the wrong in question. In Dunlop v McGowans Lord Keith said at page 81: "The right to raise ... an action accrues when iniuria concurs with damnum". Viscount Dilhorne, Lord Edmund-Davies and Lord Fraser of Tullybelton all agreed with the reasoning of Lord Keith. In Cartledge v E Jopling & Sons Ltd [1963] AC 758 Lord Reid observed at pages 771-2:

"It is now too late for the courts to question or modify the rules that a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible, even when the injury is unknown to and cannot be discovered by the sufferer ...".

The harsh consequences of that rule were subsequently addressed by the provisions of the Limitation Act 1963, which introduced modifications to the 1954 Act. These statutory provisions, however, proceed on the basis that the common law is preserved.

The competing constructions

[34] Although the knowledge provisions now contained in section 17(2)(b) of the 1973 Act (as substituted) have potential relevance to Mr Findleton's case, the essential issue of interpretation in both actions is the phrase "the date on which the injuries were sustained" in section 17(2)(a). It is to be noted in limine that there and elsewhere the reference is to "the date" (or "that date"), namely, a single date. The statutory provisions do not envisage multiple dates. The competing constructions, it seems to me, are that "the date on which the injuries were sustained" means either the date on which there were sustained the injuries which gave a right of action (by reason then of the concurrence of iniuria and damnum) or the date on which the injuries in respect of which damages are claimed in the action in question were (first) sustained. The inclusion of "first" is necessary since the statute envisages only one date and there seems no basis for selecting any date other than the earliest.

[35] Either construction is, in my opinion, open as a matter of interpretation of the language of the section but, when the legislative history is taken into account, the choice is plain.

Discussion of the history

[36] In Watson v Fram Reinforced Concrete Co (Scotland) Ltd the interpretation of section 6 of the 1954 Act was in issue. The Lord Ordinary (Lord Wheatley) had held (1960 SC 100 at pages 102-3) that -

"... Parliament intended, and by the wording of the section enacted, that the time is to run from the time when a right to raise an action emerges, in other words, in an action, such as this, when there was a conjunction between the negligence on the part of the defenders and the beginning of the damage to the pursuer as a result thereof."

That judgment was reversed by the Second Division but reinstated by the House of Lords. Lord Reid noted that in the interpretation of an earlier limitation provision, similarly worded, it had been held (Brownlie & Son v Magistrates of Barrhead 1923 SC 915) that the punctum temporis "must be one at which iniuria and damnum concur". Lord Reid was prepared to assume that that case had authoritatively defined the meaning of the earlier statutory provision. He noted that it was clear that under the provisions of the 1954 Act applicable to England the period of limitation "only begins to run when a right of action accrues" (pages 106-7.) He found that persuasive in construing the Scottish legislation to the same effect. Lord Keith, in the passage (at page 113) cited earlier, opined that time commenced to run against the pursuer under the statute from the date when there first arose a breach of duty which made its impact on the pursuer. He subsequently (at page 114) speaks of the statutory wording pointing "to something which is a cause of action". Lord Denning, the remaining member of the majority, held (at page 119) that "in as much as the action was commenced within three years from when the damage was done, it is not barred by the statute".

[37] The competition in Watson was between on the one hand the date of the concurrence of iniuria and damnum and on the other an earlier date. Here it is between the former and a later date. The importance of Watson is that it related the commencement of running of time to the date of accrual of the right of action arising from the wrong. It went significantly further than re-affirming the obvious proposition that no action can be brought until there is concurrence.

[38] The legislature then, in my view, gave statutory effect to the majority decision in Watson. First, in section 8 of the Limitation Act 1963, in extending the time limit to take account of lack of knowledge, it in four places referred to a "right of action". The last of these references (in subsection (3)(a)) was to a date which was after the end of the three-year period "relating to that right of action". In the absence of any indication to the contrary, Parliament must be taken to have had in mind that three-year period under the 1954 Act as construed in Watson. In the same context it for the first time set forth in a separate subsection (subsection (2)) the class of action to which the section applied, namely, "any action of damages in Scotland where the damages claimed consist of, or include, damages or solatium in respect of personal injuries ...". There is nothing in this section to suggest that, where damages were claimed in respect of personal injuries, time was to run solely from the date when the injuries pleaded were sustained. Secondly, and more importantly, the legislature enacted section 17 of the 1973 Act. It is clear that in the course of the consultation exercise carried out by the Scottish Law Commission there was general satisfaction with the law as interpreted by the House of Lords in Watson. What was required was a statutory re-statement "in a clearer form". The Minister's observations in Parliament are to the effect that the Bill was intended to implement the Commission's report. Although there appear to have been some changes (now not readily identifiable), there is nothing to suggest that these were, as regards limitation of action, in any sense radical. The long title to the Act is to the same effect.

[39] Section 17 as enacted had built into subsection (1) the scope of application provision ("where the damages claimed consist of or include damages or solatium in respect of personal injuries ..."). When by the substitution in 1984 the section as a whole became more elaborate, the draftsman placed the application provision in a separate subsection (subsection (1)) - as had been done by section 8(2) of the 1963 Act. But the existence, either earlier in the same subsection or in an earlier subsection, of a reference to "damages claimed ... in respect of personal injuries" does not, in my view, warrant the inference that, when "the injuries" are subsequently referred to, that is a reference to (restricted) injuries in respect of which damages are claimed in the action. This interpretation would, in my view, import that Parliament had (intentionally or unintentionally) made a radical departure from the process of principled reasoning which had informed Watson.

[40] There is no proper basis for concluding that such a departure was made either in 1973 or in 1984. In the 1973 version there is reference elsewhere in subsection (1) and also in subsection (2) to a "right of action" and its having "accrued". The Watson concept is thus reiterated. These words are not repeated in the 1984 formulation but as the Scottish Law Commission observed in its 1983 report "... the consensus on consultation was that the general principles of the law relating to the limitation period are mostly sound, and that relatively few alterations are needed to the substance of the law (as opposed to its presentation)" (para 3.1). There is no hint in the remainder of that paragraph (or elsewhere in the report) that the Commission was minded to recommend a significant change of the kind which the pursuers suggest. It was submitted that there was an increasing awareness over the decades in question of the problems occasioned by late-emerging injuries. But these problems were not new. Pneumoconiosis and other respiratory diseases which emerge well after the relevant delictual exposure were a feature of personal injury litigation long before (see, for example, Brown v North British Steel Foundry Ltd 1968 SC 51, referred to by Lord Rodger of Earlsferry in Rothwell v Chemical and Insulating Co Ltd [2008] 1 AC 281 at para 86). It is acknowledged by the pursuers that a late-emerging condition which is a sequela of earlier injuries (for example, of arthritis consequent upon significant bony injury) would not be "wholly distinct" and that accordingly the limitation provision applicable to the bony injury would also apply to it. Quite apart from the practical difficulty in many cases of deciding whether a later-emerging condition (which must ex hypothesi be causally related to the same wrong) was wholly distinct, there seems no reason in principle why damages in the one case should be irrecoverable as of right but in the other be recoverable.

[41] There will, of course, be hard cases, however the line is drawn, but the discretionary remedy provided by section 19A of the 1973 Act goes at least some distance to cater for these. When that jurisdiction is invoked it will, of course, be necessary to have regard to the interests of the defender as well as to those of the pursuer, regard being had to the principles enunciated by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25 - see AS v Poor Sisters of Nazareth 2008 SC (HL) 146. But in a situation where prejudice may be caused on either hand the administration of justice rightly demands a balanced approach.

Shuttleton

[42] The genesis of the notion of separate conditions which may give rise to distinct limitation provisions appears to be certain observations of Lord Prosser in Shuttleton v Duncan Stewart & Co Ltd (reported as a Note at 1996 SLT 517). The Note is abbreviated. The full Opinion dated 2 August 1995 was put before us. The pursuer in that case averred that as a result of exposure to asbestos during his employment he had developed (i) pleural plaques, (ii) pleural thickening and (iii) asbestosis. Pleural plaques, which form on the outside of the lung, are, Lord Prosser observed (page 5), asymptomatic and not, in any general or material sense, disabling or even harmful. (They have subsequently been judicially held not to constitute "injury" capable of giving rise to a claim for damages - Rothwell v Chemical and Insulation Co Ltd.) Only the asbestosis was founded on as a condition sufficiently serious to justify bringing the action (page 5). The case turned on the application of section 17(2)(b)(i) of the 1973 Act (as substituted), that is, the knowledge provisions. Lord Prosser held, after a preliminary proof, that throughout the whole period in question the pursuer was not aware and could not reasonably practicably have become aware of any disease or impairment of his physical condition sufficiently serious to justify his bringing an action of damages. He accordingly repelled the defender's pleas based on limitation. In relation to two other matters he made "brief comment". In relation to the first of these Lord Prosser said (at page 29):

"It appears to me that if one can identify two separate diseases or impairments of physical condition, even if caused by the same delict, relevant knowledge, or imputed knowledge, of the one will not bar one from pursuing a claim in respect of the other. There may therefore be circumstances in which one must decide whether the particular changes in physical condition are to be regarded as separate diseases or impairments, or merely features of a single disease or impairment. While that may be necessary, it appears to me that it may also be quite unreal. For what it is worth, it appears to me upon the evidence that the plaques, if to be regarded as a disease or impairment at all, are sufficiently distinct from either pleural thickening or asbestosis as to qualify as a 'separate' disease or impairment. That being so, I would not regard knowledge of plaques as barring claims based on either thickening or asbestosis. While I have had rather more hesitation over the separation of thickening from asbestosis, and while I note that at least diffuse bilateral pleural thickening is now treated for other purposes as a form of pneumoconiosis, on the evidence available to me I would again regard it as separate from asbestosis. I would note that while there may be separate diseases or impairments, and consequentially separate time-bar periods, it might well be impossible to raise separate actions for separate matters flowing from the same delict."

These comments were plainly obiter, and so far as appears from the Opinion, were not made after a full citation of authority of the kind with which we were favoured. They involved no analysis of section 17 and of the prior legislative and other history. No authority is cited. There is, in my view, no warrant for identifying for limitation purposes "two separate diseases or impairments of physical condition" or "consequentially separate time bar periods". These observations are not, in my view, well-founded in law.

Carnegie

[43] They were, however, very influential in leading the court in Carnegie to the conclusion which on this aspect it reached. There is an adoption of Lord Prosser's approach, again without analysis of the relevant section or of the prior history. No other authority is cited. The views there expressed are not obiter (they were the basis for allowing the pursuer's cross-appeal) but are, for the reasons earlier expressed, equally unsound. That aspect of the decision must accordingly, in my opinion, be disapproved.

[44] Lord Marnoch was a party to the decision in Carnegie. In McE v De La Salle Brothers 2007 SC 556 he appears to have had second thoughts. He recognised (page 628) that the approach of the court in Carnegie did involve "some measure of purposive construction" of section 17. He also noticed that some disquiet over Carnegie had been expressed in the Outer House, including by Lady Smith in Jordan v Quarriers [2006] CSOH 155, a case decided along with Mr Findleton's case - see her Ladyship's Opinion at para [52]. While it is understandable that the court in Carnegie may have been sympathetic to the pursuer in that case, the true purpose and intent of the section were, in my opinion, not there identified. The anomalies which Carnegie can create have been noticed by the Scottish Law Commission which concluded, rightly in my view, that that decision could not be reconciled with principle (Report No.207 - December 2007).

Other cases

[45] A number of other cases must be noticed. In M v O'Neill 2006 SLT 823 Lord Glennie addressed the construction of the phrase "the injuries in question" in section 17(2)(b)(i). He did so in the context of Carnegie being binding upon him. At page 829 he said:

"[27] ... To my mind 'the injuries in question', the expression used in the subsection, is free of ambiguity. It points to the injuries, not the cause of the injuries. And by the use of the phrase 'in question', it points to the injuries in issue in the proceedings, i.e. those in respect of which the pursuer advances the claim for damages. The point is put clearly by Sir Thomas Bingham MR in Dobbie, to which I was referred by counsel for the defenders, when he said (at [1994] 1 WLR, p. 1240) of the comparable wording ('the injury in question') in the English statue: 'This test is not in my judgment hard to apply. It involves ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it.' Later in the same passage he says: 'Time does not begin to run against a claimant until he knows that the personal injury on which he founds his claim is significant ...' (my emphasis in both passages).

In the present case the pursuer now claims damages only for psychological injuries. I accept counsel for the pursuer's submission that the psychological injuries are 'the injuries in question' to which the subsection refers. To my mind it matters not that she may have suffered other, perhaps physical, injuries or that the assaults are themselves actionable without proof of damage. Nor does it matter that at one point she may have included other injuries within her claim; the rules of pleading allow adjustment or (with leave) amendment to identify the real issues in dispute between the parties. The pursuer took advantage of the adjustment period to confine her claims to psychological injuries. These are 'the injuries in question'.

[28] This approach is consistent with a decision of the Inner House in Carnegie v Lord Advocate ...".

[46] "The injuries in question" is clearly an expression of reference but I am unable to agree that it refers to such (restricted) injuries in respect of which a pursuer chooses to sue. In my opinion it refers, consistently with the expression "the injuries were sustained" in subsection (2)(a), to the injuries in respect of which a right of action had accrued. I reject the contention advanced by counsel before us that the expression "the injuries in question" imports that there are other injuries which are not in question. The person invoking section 17(2)(b) may not have been aware of any injuries until the date postulated in that paragraph. It is simply an expression of reference. The true issue is to what it refers. Lord Glennie's view can perhaps be regarded as obiter since in the event he held on the evidence that, long before the crucial year in terms of time-bar, the pursuer in that action was well aware that she was suffering psychological problems which she associated with the abuse which she claimed she had been subjected to many years earlier. Moreover, a construction that "the injuries in question" means the injuries in respect of which the pursuer advances the claim for damages goes further than Carnegie in that it seems not to require that these injuries be distinct from earlier injuries. In the end neither pursuer in these reclaiming motions contended that that was right. I do not find Sir Thomas Bingham's construction of section 14(1) of the Limitation Act 1980 helpful for the purposes of construing section 17(2) of the 1973 Act. The Master of the Rolls was, in the passages relied on, addressing a quite different issue (the test of knowledge) in which no question arose of successive injuries. Nor do I find the tentative conclusion by Foskett J in AB v Ministry of Defence at paras 488-496 on the construction of section 14(1) to be useful for present purposes. Again the judge was faced with a situation in which much sympathy might reasonably be afforded to the plaintiffs. On any view the conclusion there reached concerned statutory provisions which are in different terms from those in the Scottish legislation.

[47] In the end little was made of the principles of statutory interpretation cited from Bennion. None of these, in my view, assists in interpreting the provisions here in issue.

Conclusion

[48] On the whole matter I move your Lordships that we should overrule the decision in Carnegie (in so far as it concerned the pursuer's second ground of cross-appeal) and disapprove of the observations of Lord Prosser on the matter of separate diseases or impairments in Shuttleton. Parties were agreed that once the decision of the court on the matter of principle was available, the cases should be put out By Order so that disposals could be made in each as appropriate in light of the views expressed. I move your Lordships that that course be adopted.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Kingarth Lord Carloway Lord Clarke Lord Bonomy	[2010] CSIH 9 A1609/03 and A82/05 OPINION OF LORD KINGARTH in the causes JOHN AITCHISON Pursuer and Respondent; against GLASGOW CITY COUNCIL Defender and Reclaimer; and STEPHEN FINDLETON Pursuer and Reclaimer; against QUARRIERS Defender and Respondent: _______

Act (Aitchison): S O'Brien, Q.C., Stirling; Drummond Miller LLP

Act (Findleton): A Kinroy, Q.C., U Doherty; Balfour + Manson LLP

Alt (Aitchison): J A Peoples, Q.C., G J Clarke, Q.C.; G Lindsey, City of Edinburgh Council

Alt (Findleton): G J B Moynihan, Q.C., R Dunlop; Simpson & Marwick

10 February 2010

[49] I have had the advantage of reading the opinion of your Lordship in the chair in draft and entirely agree that, for the reasons given, the issue argued before this court should be resolved as proposed.

[50] I would wish only to make two short additional observations.

[51] First, it is important, in my opinion, to notice in any consideration of section 17 of the 1973 Act, not only that subsection (2) seeks to define the circumstances in which an action (not individual claims which might be made within an action) may be said to be barred by the passage of time ("no action to which this section applies shall be brought unless ...") but also that it is provided that the starting point for the running of the triennium is a single date, the earliest potential such date being "the date on which the injuries were sustained ..." (subsection (2)(a)). The significance of these two elements is that even if the latter phrase was to be interpreted as referring to the date on which the injuries in respect of which damages are claimed in the action in question were (first) sustained (one possible interpretation as discussed by your Lordship in the chair (at para [34] above), this, on the face of it, would not have availed the pursuer in Carnegie who sued both for physical injuries and, in addition, for psychiatric injuries.

[52] Secondly, and with particular reference to the decision of the Lord Ordinary in M v O'Neill, two additional matters can perhaps be stressed.

[53] In the first place, Lord Marnoch, who of course was a member of the bench in Carnegie, plainly recognised in McE v De La Salle Brothers that the Lord Ordinary in M v O'Neill at para [27] (in the passage already quoted by your Lordship in the chair) was prepared (albeit obiter) to interpret the section more widely than was envisaged by the court in Carnegie - an extension with which he could not agree. In particular at para [193] Lord Marnoch said:

"In this connection, however, I must take note of the obiter remarks of Lord Glennie in the recent case of M v O'Neill (paras 27-30). Lord Glennie there construes the phrase 'injuries in question' where it appears in section 17(2)(b) of the 1973 Act as meaning the 'injuries in issue in the proceedings' to the effect, it would seem, that separate trienniums might apply to different types of injury irrespective of whether or not these different types of injury manifested themselves at the same time or over the same period of time. In expressing that view he drew on certain observations of Sir Thomas Bingham MR in Dobbie v Medway Health Authority. As to these, I simply make the point that the Master of the Rolls' observations in that case were made in the context of a different statutory background, as discussed above, and one in which the wording said to be comparable is in fact expressed in the singular, 'injury in question', as opposed to the plural in the 1973 Act. For the rest, I must respectfully disagree with Lord Glennie. In my opinion the phrase 'injuries in question' where it appears in section 17(2)(b) is a reference back to the word 'injuries' in section 17(2)(a) where it is clear that only one date for the running of a triennium is contemplated. Accordingly, where it is evident that under the provisions of section 17 an action in respect of certain personal injuries should have been raised within a given triennium, that same triennium will apply to all types of injury actually sustained at the same time or over the same period. The specialty thought to be present in Carnegie v Lord Advocate was that the psychiatric injuries were unexpected and did not develop or emerge, even in embryo, until a considerably later date with the result that they could not have been included in any earlier action. If, however, this leads to overfine distinctions being drawn (vide, eg Hill v McAlpine) it may be that that decision should one day be reviewed by a larger court."

[54] Further, even Lord Glennie himself observed in M v O'Neill (at para [29]):

"As the decision in Carnegie v Lord Advocate makes clear, one action may contain claims, arising from the same delict, in respect of different injuries. The claims in respect of some of those injuries may be time barred while the claims in respect of others will not be ... I note that, on this important issue, the position in Scotland appears to differ from that in England, where, as is made clear by the Court of Appeal in Bryn Alyn (at pp 1457-1458, paras 37-39, pp 1461-1463, paras 47-56, and p 1464, para 58), the first knowledge of a significant or sufficiently serious injury will start time running for all claims. This seems to me, if I may respectfully say so, to be more consonant with the principle that one can have only one action in respect of the one wrong. I am, of course, bound by the decision in Carnegie v Lord Advocate; and counsel for the defenders did not seek to persuade me that the pursuer's claim was time barred on the basis that the time started to run for all claims in respect of all injuries from the date when she was first aware of significant injuries (albeit non-psychological) resulting from her treatment at the home."

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Kingarth Lord Carloway Lord Clarke Lord Bonomy	[2010] CSIH 9 A1609/03 and A82/05 OPINION OF LORD CARLOWAY in the causes JOHN AITCHISON Pursuer and Respondent; against GLASGOW CITY COUNCIL Defender and Reclaimer; and STEPHEN FINDLETON Pursuer and Reclaimer; against QUARRIERS Defender and Respondent: _______

Act (Aitchison): S O'Brien, Q.C., Stirling; Drummond Miller LLP

Act (Findleton): A Kinroy, Q.C., U Doherty; Balfour + Manson LLP

Alt (Aitchison): J A Peoples, Q.C., G J Clarke, Q.C.; G Lindsey, City of Edinburgh Council

Alt (Findleton): G J B Moynihan, Q.C., R Dunlop; Simpson & Marwick

10 February 2010

[55] I concur with your Lordship in the chair and have nothing useful to add.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Kingarth Lord Carloway Lord Clarke Lord Bonomy	[2010] CSIH 9 A1609/03 and A82/05 OPINION OF LORD CLARKE in the causes JOHN AITCHISON Pursuer and Respondent; against GLASGOW CITY COUNCIL Defender and Reclaimer; and STEPHEN FINDLETON Pursuer and Reclaimer; against QUARRIERS Defender and Respondent: _______

Act (Aitchison): S O'Brien, Q.C., Stirling; Drummond Miller LLP

Act (Findleton): A Kinroy, Q.C., U Doherty; Balfour + Manson LLP

Alt (Aitchison): J A Peoples, Q.C., G J Clarke, Q.C.; G Lindsey, City of Edinburgh Council

Alt (Findleton): G J B Moynihan, Q.C., R Dunlop; Simpson & Marwick

10 February 2010

[56] I agree, for the reasons set out in the opinion of your Lordship in the chair, that the decision in Carnegie should be overruled and the observations of Lord Prosser on the matter of separate diseases or impairments in Shuttleton should be disapproved. The views of the Scottish Law Commission in their most recent paper (Report No.207 - December 2007) must command great respect in this area of law having regard to their role in its development over the years in informing the legislature on principle and policy. As your Lordship in the chair has observed their clear view was that the decision in Carnegie could not be reconciled with principle. The policy considerations justifying limitation periods are set out by Lord Hope in AS v Poor Sisters of Nazareth 2008 SC (HL) 146 at 149 (para 5). As Lord Hope went on to observe, in relation to the provisions of the 1973 Act, "A judgment has been made by the legislature where the balance lies between the demands of justice and the general welfare of society. The responsibility of the courts is to give effect to that judgment". It appears to me that the construction placed upon the relevant provisions by the court in Carnegie, and in the submissions made on behalf of the pursuers in the present cases involves significantly re-adjusting the balance beyond the intention of the legislature as revealed by the relevant statutory language.

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Kingarth Lord Carloway Lord Clarke Lord Bonomy	[2010] CSIH 9 A1609/03 and A82/05 OPINION OF LORD BONOMY in the causes JOHN AITCHISON Pursuer and Respondent; against GLASGOW CITY COUNCIL Defender and Reclaimer; and STEPHEN FINDLETON Pursuer and Reclaimer; against QUARRIERS Defender and Respondent: _______

Act (Aitchison): S O'Brien, Q.C., Stirling; Drummond Miller LLP

Act (Findleton): A Kinroy, Q.C., U Doherty; Balfour + Manson LLP

Alt (Aitchison): J A Peoples, Q.C., G J Clarke, Q.C.; G Lindsey, City of Edinburgh Council

Alt (Findleton): G J B Moynihan, Q.C., R Dunlop; Simpson & Marwick

10 February 2010

[57] I agree with the views expressed by your Lordship in the chair and would deal with issue as you propose.