Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 33
	OPINION OF LADY SMITH in the cause AMANDA SUTHERLAND CHINN Pursuer; against CYCLACEL LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: MacGregor, Advocate ; Anderson Strathern LLP

Defender: Ellis QC; bto

16 March 2010

INTRODUCTION

[1] The pursuer claims damages from the defenders in respect of injury which she says arose from the work that she carried out in their laboratory when employed by the defenders as a research assistant between 25 January 1999 and 3 March 2000. The sum sued for is £300,000. The action was signetted on 3 June 2009.

[2] The defenders deny liability. They also plead that the claim is time barred. The pursuer does not accept that it is; if she is wrong about that, she seeks to rely on the provisions of s.19A of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act") saying that, in all the circumstances, it is equitable that the action be allowed to proceed.

[3] The case came before me on the procedure roll in respect of the defenders' plea of time bar and the pursuer's plea under s.19A of the 1973 Act.

[4] At the start of the debate, Mr MacGregor made a motion that the pursuer's pleadings be amended in terms of Minute of Amendment no.17 of process and also in terms of Minute of Amendment no.18 of process. I granted his motion with regard to both Minutes of Amendment. It should, however, be noted that I did so on the basis that Mr Ellis specifically reserved his position regarding the possible need for the defenders to move, at a later stage, to amend their pleadings. Any such amendment would, in effect, be in answer to Minute of Amendment no.18. Mr MacGregor accepted that position and it was on the basis that any future motion by the defenders to amend for that purpose would not be opposed that I granted the motion.

BACKGROUND

[5] The factual case set out by the pursuer in her pleadings, insofar as relevant to the issues debated, can be summarised as follows.

Events in the period of the Pursuer's Employment with the Defenders

[6] When employed as a research assistant she spent at least 75% of her time on certain manual tasks, namely the handling of flasks and the repetitive use of a pipette gun. She used her right hand to operate the pipette gun.

[7] The pursuer avers that she experienced pain in her right wrist on or about 1 February 2000 and reported it. That was followed by her right wrist swelling and her experiencing pain in her right forearm in addition to the pain in her right wrist. On or about 24 February 2000, the pursuer having again reported her pain, the defenders' Health and Safety Officer sent her to buy wrist supports. Her pain continued and she reported it again on 1 March 2000. Her pain continued. She went on sick leave on 3 March 2000. She was seen by an occupational health physician who advised, on 29 May 2000, that she was suffering from work related tenosynovitis of both wrists. On 2 August, she was found, for social security benefit purposes to be suffering from A8- tenosynovitis. Her condition seemed to have resolved by August 2000 but she suffered a relapse in her symptoms around September 2000. Her employment with the defenders was terminated in November 2000.

The Previous Litigation

[8] In February 2003, the pursuer raised an action of damages for personal injuries against the defenders. The pleadings were debated on the procedure roll, on 15 February 2007. The defenders sought dismissal. The pursuer sought a jury trial. Lord McEwan dismissed the action by interlocutor dated 7 August 2007. The defenders had attacked the pleadings as being misconceived and totally confused both as regards the merits and as regards specification of the pursuer's injuries. Lord McEwan agreed. Regarding the merits, put shortly, the problem was that although senior counsel for the pursuer advised that the pursuer's complaints were confined to her pipetting activities, the pleadings contained references to a number of other complaints and there was no attempt to amend. Also, the averments in support of the statutory duties relied on were irrelevant and lacking in specification. Part of the problem was that it was not clear whether or not the pursuer's complaints were confined to pipetting. There was, further, criticism of the fact that four alternative common law duties were averred together with a separate duty to instruct and train yet it was wholly unclear how any of them related to the case as pled or, as was said to be the only complaint, the act of pipetting.

[9] Regarding the averments of injury, Lord McEwan said, in his opinion:

"There is a further serious problem over the specification of the injuries. In my view the pursuer has failed to specify any recognised injury .................she says what her condition was, describing it in three alternatives. One of these is Repetitive Strain Injury (R.S.I). At page 48E there is then mention of tensynovitis which is a known condition. It is wholly unclear on what the pursuer is founding."

[10] The pursuer reclaimed. A Summar Roll Hearing was fixed for 2 December 2008. On 5 November 2008, the pursuer sought leave of the Inner House, to amend her pleadings. Her motion was refused. She again sought leave to amend her pleadings on 21 November 2008 and her motion was again refused. The proposed amendment would have altered the pleadings on the merits and, in respect of the pursuer's injuries, would have introduced averments to the effect that she had been suffering from compartment syndrome and intersection syndrome since 2000 and that her condition had previously been misdiagnosed as repetitive strain injury, tendonitis and tenosynovitis. Having failed to amend her pleadings the pursuer then abandoned her reclaiming motion.

Medical Opinions

[11] The medical reports to which I refer below are all incorporated into the pursuer's pleadings brevitatis causa.

[12] In November 2002, she was examined by David Aaron, consultant orthopaedic surgeon, who reported that:

"This is a most unusual case, in that an unusual form of suspected repetitive strain injury has caused persistent symptoms for over 2 1/2 years and is ongoing. In clinical practice this is virtually unknown. The basis for a diagnosis of repetitive strain injury or work-related upper limb disorder seems flimsy."

[13] Mr Aaron considered that the pursuer's initial presentation may have been an acute tenosynovitis but his assessment as at November 2002 was that she was suffering from a non-specific chronic pain syndrome which he seems to have attributed to psychosocial stresses.

[14] On 24 April 2003, the pursuer was examined by Dr Paul MacLoughlin, an expert on repetitive strain injury. He had been asked to advise whether or not the pursuer had developed an upper limb disorder as a result of the nature of her work at the defenders' laboratory and gave his opinion in a report dated 15 May 2003. He found no evidence of tenosynovitis or any other recognised upper limb disorder. He found that she suffered pain down the extensor surface of her forearms. His opinion referred to the pursuer suffering "overuse or non- specific pain syndrome" and he expressed the view that it was, on a balance of probabilities, work -related; it was caused by the period of intensive use of hand held pipettes when she was working for the defenders as a research assistant.

[15] In that report, Dr MacLoughlin explains the term "Non- Specific Pain Syndrome" in the following way:

"This is the most controversial - albeit one of the most common - of all the work related upper limb diagnoses and there are still members of the medical profession who deny its existence. The condition goes under many names including regional pain syndrome, the overuse syndrome, non specific diffuse forearm pain, process worker's arm, occupational overuse injury and, most controversial of all, "repetitive strain injury" (RSI)."

[16] By report dated 20 June 2007, Dr MacLoughlin answered six specific questions that were put to him by the solicitors for the pursuer regarding matters covered in his report of 15 May 2003. One of those questions asked about the difference between non-specific pain syndrome and cramp of the hand. Dr MacLoughlin answered it:

"As I have explained above some authorities identify twice as many conditions under the umbrella term of RSI as do others. There must therefore, be a good deal of overlap in the symptoms and signs and, as many musculo-skeletal conditions fluctuate in their symptoms and signs giving a diagnosis cannot always be totally accurate. Different physician or surgeons seeing the same patient, at different times, can come to different conclusions where the symptoms and signs have changed.

As you will see from the extracts from my book (Appendix 1) non specific pain syndrome has many similarities to cramp of the hand. Indeed, the symptoms and signs could be identical and one could be dealing with the same condition under two different names.

The presence of symptoms and the absence of signs ( at least in conventional clinical practice) makes the diagnosis largely dependent on the medical history."

[17] In answer to the question: "In your opinion what is the reason for her continuing and persisting pain?" he responded:

"I don't know but I do not believe she is malingering. As I have said previously I think that she could well benefit from being investigated at University College, London, where the Department of Physiology is doing extremely important work in upper limb disorders. This is a research programme but they do need patients....."

He also opined that:

"....the long periods of pipetting have provoked a chronic condition which is now irreversible."

[18] At some point, the timing of which is not clear from the narrative referred to in the report by Dr Hutson, to which I refer below, the pursuer read an account of chronic compartment syndrome in the forearms in an article in a medical journal. At an unspecified date she consulted Mr Wilmshurst, consultant surgeon, and he, having diagnosed compartment syndrome of the extensor muscles or her right forearm, agreed to carry out decompression surgery to the pursuer's forearms. Surgical decompression of her right forearm was carried out on 25 January 2008 and surgical decompression of her left forearm was carried out on or about 14 March 2008. Compartment pressure studies were carried out on her right forearm prior to surgery and they confirmed a compartment syndrome was present.

[19] The pursuer's pain was considerably relieved by surgery although, as at July 2008, she was not wholly asymptomatic. At that point she was seen by Dr Michael Hutson, consultant orthopaedic and sports physician, a consultant who she had approached on the advice of an occupational health physician colleague of her father (who is a medical epidemiologist). His report is dated 20 October 2008. At page 12, in the opinion section of his report, he states:

"Of note, the symptoms have been described as being somewhat "neuropathic" in nature over recent years. This suggests that as a consequence of persistent symptoms neurosensitisation (within the central nervous system) has occurred, giving rise to reduced tolerance of physical stresses on the forearms and pain amplification. I believe that neurosensitisation has made a minor contribution to the pain described by Miss Chin.

Of equal interest is the fact that on my examination there is evidence of intersection syndrome (otherwise know as peritendinitis crepitans, an inflammation of the lining of tendons) in the distal forearm. This appears not to have been diagnosed by any clinician consulted by Miss Chin since the onset of her symptoms.

This condition of intersection syndrome is well described in numerous textbooks including my own (M A Hutson "Work related upper limb disorders" Butterworth Heinemann 1997)

My opinion regarding the medical condition causing her symptoms, derived from the history of the symptoms given by Miss Chin and my clinical examination, is that she developed intersection syndrome which is (always) the consequence of repetitive manual activities and undoubtedly, in my view, a consequence of the repetitive manual activities described to me and recorded in this report."

[20] The repetitive manual activities to which Dr Hutson refers are those averred by the pursuer as being involved in her daily work in the defender's laboratory and as having been the cause of her injuries.

[21] In the light, no doubt, of Dr Hutson's views and Mr Wilmshurst's findings, the pursuer's averments of injury now state:

"She has been diagnosed as suffering from chronic compartment syndrome of the forearm extensor muscles and intersection syndrome (peritendinitis crepitans) in both arms."

[22] The progress of the pursuer's knowledge about her condition can, accordingly, be summarised as follows:

[23] Firstly, as at May and August 2000, the pursuer was advised that she was suffering from tenosynovitis.

[24] Secondly, as at November 2002, the pursuer was advised that she may have had an acute tenosynovitis but was, by that time, suffering from a non-specific chronic pain syndrome which was attributable to psychosocial stresses.

[25] Thirdly, as at April 2003, she was advised that she was suffering from an over-use or non-specific pain syndrome.

[26] Fourthly, as at June 2007, whilst the over- use or non specific pain syndrome diagnosis does not seem to have been departed from, no answer could be given to the question of why she was still suffering continuing pain; Dr McLoughlin did not know why.

[27] Fifthly, at about the end of 2007, the pursuer was advised she was suffering from compartment syndrome.

[28] Sixthly, the diagnosis of compartment syndrome was confirmed at surgery to relieve it in January and March 2008.

[29] Seventhly, as at July 2008, she was advised that she was suffering from intersection syndrome.

Ergonomist's Opinion

[30] By report dated 29 September 2003, Professor Peter Buckle, Director of the Robens Centre for Health Ergonomics at the University of Surrey, advised that the pursuer's injury was:

"...consistent with our current understanding of work-related soft tissue disorders of the upper limb. The major risk factors present in the plaintiff's work appear to be the undertaking of repetitive work, requiring forceful exertions at the hand/fingers coupled with awkward postures held for prolonged periods. In the absence of any significant confounding factors, I am of the view that the most likely cause of the plaintiff's injury was the period of increasingly intense pipetting that she undertook immediately prior to the onset."

[31] That opinion was formed after having met with the pursuer and having seen what he refers to as a substantial amount of data relating to the case including a video in which the tasks carried out by the pursuer were simulated. He was also provided with Dr MacLoughlin's report of 24 April 2003.

THE DELAY IN DIAGNOSIS AND ITS SIGNIFICANCE

[32] The pursuer avers that prior to 2008 it was not reasonably practicable for her to have been aware of the diagnosis of her condition, namely the compartment syndrome referred to. The averments added by Minute of Amendment no.18 of process are to the effect that throughout the period from the receipt of Dr MacLoughlin's report of 15 May 2003 until "the dismissal of her previous action" which I take to be a reference to 7 August 2007, she was led to believe that she suffered from a recognisable medical condition; that belief was, it is said, based on the advice of counsel then acting on her behalf. She seems, accordingly, to be saying that she did not take any steps to find out any more about her diagnosis during that period because she believed, on the basis of legal advice, that she had a particular condition.

[33] In Article 9 of Condescendence, at p. 42B-C of the up to date Closed Record (as amended), having rehearsed the history of medical opinion referred to above, the pursuer avers:

"Accordingly until 2008, the pursuer was unaware not only of the diagnosis of her condition but also whether such a diagnosis was causally linked to the defenders' acts and omissions."

PRESCRIPTION AND LIMITATION (SCOTLAND) ACT 1973 ('The 1973 Act')

[34] The provisions of section 17 of the 1973 Act include:

"(2)............no action to which this section applied shall be brought unless it is commenced within a period of 3 years after-

(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later or

(b) the date (if later than any date mentioned in paragraph (a) above) on which, 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 or part or the employer or principal of such a person."

[35] It is important, for the purposes of the present case, to note that the relevant facts include that the pursuer's "injuries" were wholly or partly "attributable to" an act or omission of the defender. Two issues are raised thereby:

1 whether or not a pursuer can have knowledge of an injury prior to receiving an accurate diagnosis?

2 what a pursuer requires to know before it can be said that she knew or ought to have known to what her injuries were attributable?

I address these questions later in this opinion.

Section 19A of the 1973 Act provides:

"(1) Where a person would be entitled but for any of the provisions of section 17, 18, or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision."

[36] The policy that lies behind these statutory provisions has often and consistently been commented on to the effect that, as a generality, it is in the public interest that disputes be resolved without delay. A discussion by McHugh J in a decision of the High Court of Australia, Brisbane South Regional Health Authority v Taylor [1996] HCA 25, was referred to with approval by the First Division in the case of AS v Poor Sisters of Nazareth 2007 SC 688, at 705:

"The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even cruel, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period..."

[37] Thus, limitation periods are not to be seen as arbitrary cut off points but rather as considered judgments of the legislature, bearing in mind the interests of society as a whole.

RELEVANT AUTHORITIES

Section 17 of the 1973 Act:

[38] The defenders relied on the case of Cowan v Toffolo Jackson & Co Ltd 1998 SLT 1000 as being comparable to the present case. I can see why they did so. There, the pursuer was aware, when he retired in 1986, that he was suffering from breathlessness but was not diagnosed as suffering from asbestosis until January 1992. He raised an action in 1993. His claim was found to have been time barred, the triennium being said by Lord Nimmo Smith to have expired in 1989. That appears to have been indicative of his view being that the pursuer's breathlessness was his "injury" for the purposes of s.17. It did not matter that, at that stage, he was not aware that his breathlessness was a symptom of an asbestos related condition. The status of "injury" was not deferred until the correct diagnosis was arrived at years later.

[39] For the pursuer, Mr McGregor referred to the case of Agnew v Scott Lithgow (No 2) 2003 SC 448 and the acceptance there that the triennium did not start to run until the pursuer obtained a definitive diagnosis. That, however, was in circumstances where the pursuer's ability to attribute his cold hands to his working conditions did not arise until he received a diagnosis in which the industrial cause of his condition was implicit, namely the condition then referred to as 'vibration white finger'. There is no indication that he had, prior thereto, any inkling of what was causing his cold hands. It is not support for the proposition that accurate diagnosis is a pre-requisite to a pursuer being regarded as having an "injury" in terms of section 17.

Section 19A:

[40] Whilst it was initially thought that the discretion conferred by s.19A of the 1973 Act was one which should be exercised sparingly and with restraint (Carson v Howard Doris Ltd 1981 SC 278), the Inner House have repeatedly made it clear that the discretion is an unfettered one which involves a balancing of the facts and circumstances of the particular case and the interests of both parties (Donald v Rutherford 1984 SLT 70; Clark v McLean 1994 SC410). The provisions of the section have also been discussed more recently, in the House of Lords in the case of AS v Poor Sisters of Nazareth [2008] UKHL 32, where Lord Hope of Craighead observed, at paragraph 25:

"In Carson v Howard Doris Ltd ( p 282) Lord Ross said, shortly after the provision was enacted, that the power conferred by the section should be exercised sparingly and with restraint. There is a risk that if that approach were to be adopted the court will fail to do what the section requires, which is to determine what would be equitable in all the circumstances. But the context in which that discretion is to be exercised is plain enough. Its effect will be to reimpose a liability on the defender which has been removed by the expiry of the limitation period. The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p.255) it seems more in accord with the legislative policy that the pursuer's lost right should not be revived than that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy."

[41] The latter comment reflects the approach set out by the Inner House in the case of Clark v McLean at p.413 where it is made clear that the onus rests on the pursuer to satisfy the court that section 19A should be applied.

[42] So far as procedure is concerned, if the relevant facts are not disputed, the decision whether or not to exercise the s.19A discretion may be made without hearing evidence. If, however, the facts are disputed, it will normally be necessary to hear evidence before a decision can be reached (A v N 2009 SC 449).

SUBMISSIONS OF PARTIES

[43] Put shortly, the defender's case was that the pursuer plainly knew she was injured in 2000 and by the time her agents received Professor Buckle's report in September 2003, she knew that her injuries were attributable to the working practices which she had had to engage in as a laboratory assistant in the defender's employment. That was enough for the purposes of s.17 of the 1973 Act and the action was, manifestly, time barred.

[44] The response for the pursuer was, ultimately, that the focus required to be on attribution and it was not until the pursuer received Dr Hutson's report that she had the requisite knowledge in that respect. The key word was "attributable" and she was not aware that her injuries were attributable to the defenders' acts/omissions until she had received an accurate diagnosis. That was not so much because she could not be said to be aware of her injuries until then but because the earlier medical reports did not, in Mr MacGregor's submission, contain an adequate analysis of how it was that her work had caused her injuries. Dr MacLoughlin's report did not, he submitted, provide a sufficient basis. Without a diagnosis there could be no aetiology. It was only when Dr Hutson's report was received that it was possible to confirm that injuries suffered by the pursuer were attributable to actions performed at work. Until then it could only be said that the pursuer thought that her injuries were due to her pipetting work; that was not the same as knowing that they were.

[45] As regards s.19A, Mr Ellis submitted that the pursuer had failed to make any relevant averments to support her assertion that it was just and equitable to proceed in the event that the action was found to be time barred. The starting point was, in his submission, that there was a presumption that the time limit would apply. It was then for the pursuer to overcome it. That, she failed to do. Given the extent of her knowledge in 2003, she required to make out a strong case but she did not do so. The delay in diagnosis was no bar to her raising the action. Further, she had raised an action, persisted in it for some time, but, ultimately, abandoned it. She was, in effect, seeking to have a "second bite at the cherry". The legislation required the court to look for excusability. There was no adequate explanation of how or why the pursuer missed the time bar, not that she had really done so; she had raised an action. His primary position was that it was possible to decide the issue without proof; it was really a matter of the history of the diagnosis of the pursuer's condition and it was not disputed that she received the information contained in the various reports on the dates that she said she received it.

[46] If, however, I was not persuaded that the pursuer's averments in support of her s.19A application were irrelevant, Mr Ellis referred to the averments for the defenders in Answer 9. There they state that the first action caused them to sustain considerable expense, estimated at £51,000, that there have been major changes in their work practices over the last four years and that four of their witnesses are no longer in their employment. Further, as regards the expenses incurred, they had been irrecoverable as the pursuer had the benefit of legal aid. Then, consistent with his stated position as regards the pursuer's Minute of Amendment no.18, he added that there would be other factors which, in response to the pursuer's position as there stated, he would wish to have taken into account and he , accordingly , sought an evidential hearing in the event that I was satisfied that the pursuer's averment in support of her application under s.19A were relevant.

[47] The pursuer's case under s.19A was that she had done all that she could have done to make the diagnosis relevant. There was, it was submitted, no way she was going to succeed in her action until Dr Hutson's diagnosis was made in 2008. She did all that she could in herself seeking out further medical advice. She did not dither. The delays were not her fault. She was advised of successive, differing diagnoses and when her previous action was dismissed she did not have any better or clearer diagnosis to offer by way of averment. It was well into 2008 by the time she had Dr Hutson's views and she tried but failed to amend her action to aver the correct diagnosis. She had raised a fresh action shortly thereafter. She could not have done more. So far as the defender's prior liability for expenses was concerned that was, he said, a matter which would be able to be taken into account if questions as to expenses arose in the present action.

Discussion and Decision

Section 17 of the 1973 Act : Limitation

[48] The pursuer knew, as at February 2000, that she had contracted pain and swelling in her wrist and forearm. That is, at that point, she knew she was injured and, as I understand Mr MacGregor's submissions, it was accepted that as from that point, she knew the injury was sufficiently serious to justify bringing an action. The requirements of s.17(2)(b)(i) were, he accepted, satisfied. Although Mr Ellis had anticipated that the argument might be that the pursuer was not aware of her injuries until they were correctly diagnosed, that was not actually pursued; that was, in my opinion, the correct approach. It cannot be the case that the fact that a pursuer does not have the correct diagnosis of an injury of which he is well aware delays the start of the triennium. It is not unusual for it to take some time for a correct diagnosis to be made though an injury has clearly been sustained. A common example arises in cases of back injuries; pain is immediate upon and persists after , say, performing a lifting activity, yet the precise nature of the damage done may require complex investigation and my not be identified for many months. That does not mean that the start of the triennium is postponed. The use of the word ' injury' , in section 17, is not indicative of a pursuer requiring to have the right 'label' for an injury of which he is well aware before time starts to run. In any event, in 2000, the pursuer was aware not only that she had an injury but that the diagnosis of it was that it was tenosynovitis. The fact that in the years that followed differing diagnoses were made does not alter that.

[49] It was also accepted by Mr Macgregor that the requirements of s,17(2)(b)(iii) were satisfied.

[50] That leaves s.17(2)(b)(ii) and the contention that the pursuer could not be said to have become aware that her injuries were attributable to an act or omission of the defenders until she received Dr Hutson's report. I am not persuaded that the factual history supports that proposition. Dr MacLoughlin's report of 24 April 2003 was instructed for the purpose of obtaining his opinion as to whether or not she had developed an upper limb disorder as a result of the nature of her work. He appears, in that report, to have carefully considered a large bundle of documents and the video of the nature of the work carried out by the pursuer. Having done so, he expressed the view that the pursuer's condition was, on a balance of probabilities caused by her use of hand held pipettes when working for the defenders. It is not arguable that that does not amount to advice that her injury was attributable to pipetting. Advice to the same effect was contained in Professor Buckle's report dated 29 September 2003. Further, senior counsel for the pursuer advised Lord McEwan, at the debate in the earlier action, in February 2007, still long before Dr Hutson's views were obtained, that:

"The claim was for pipetting and nothing else." (see paragraph 6 of Lord McEwan's opinion).

[51] The picture is clear. The pursuer was made aware in 2003 that her injuries were attributable to her pipetting activities. It may well be the case that it was only once Dr Hutson's report that the fine detail of precisely how the particular movements involved in the pipetting activities put the strains on the structures within the pursuer's wrist and forearm that led to the compartment and intersection syndromes referred to but that is beside the point. It does not show that she was not aware of what, for the purposes of s.17(2)(b)(ii) of the 1973 Act, she required to be aware, namely that she had a sufficiently serious injury which had been caused by an activity that she had had to carry out at work.

[52] I am, accordingly, satisfied that the pursuer's action is prima facie time barred by reason of the operation of s.17 of the 1973 Act. To that extent only, I will sustain the defenders' first plea in law.

[53] I turn to the question of whether the pursuer's plea that it is equitable to allow the action to proceed notwithstanding the operation of s.17 is supported by relevant averments. I am satisfied that it is. Whilst the history is unusual, particularly in the light of the previous action and its whole circumstances, I do not consider that it could be said that her case for having the available discretion exercised in her favour is irrelevant. Contrary to what was suggested she does deal with the issue of why she did not take steps to investigate her diagnosis between 2003 and 2007. She does so in the latest Minute of Amendment. She also explains fully, under reference to the various medical reports, what the diagnoses were that she received at each stage. Further, whilst it is fair to say that it was not only the problems with specification of the nature of her injuries that led Lord McEwan to dismiss the action, there being real and significant problems with the merits, it seems to be equally clear that he would have found the action irrelevant on the basis of the criticisms of the averments of injury alone. By the time of the eve of the reclaiming motion, it was known that the pursuer's injuries had not been correctly described in the pleadings, an attempt was made to amend them so as to incorporate the new diagnosis set out in Dr Hutson's report but it was too late; the amendment was refused. Whilst it seems at least questionable that the attempt to amend the pleadings was made so late in the day, when Mr Wilmshurst's surgery had identified the pursuer's compartment syndrome at the beginning of 2008, I do not consider that it can be said that the circumstances could not, on any view, support an exercise of the s.19A discretion in the pursuer's favour. I will, accordingly, repel the defenders' second plea in law.

[54] That is not, of course, to say that it should be so exercised. To reach a decision as to whether or not it is appropriate to do so, the court needs to have regard to all the circumstances including those on which the defenders would wish to rely. Mr Ellis made it clear that not only would he wish to lead evidence in support of the averments he currently makes in that regard but that it is possible that there are other factors which, as I have previously discussed, the defenders would seek to have taken into account.

[55] In these circumstances I conclude that the issue raised in the pursuer's third plea in law is one which requires evidence to be heard at a preliminary proof and, as discussed with counsel, I will put the case out By Order to discuss further procedure in that regard.