Scottish Court of Session Decisions

Pursuer: MacMillan; Drummond Miller LLP

Defender: K J Campbell QC; Morton Fraser LLP

19^th June 2012

Introduction

[1] The pursuer, who was born on 30 April 1981, was injured on 8 November 1999 while working as a driver in the British Army Royal Logistics Corps when the Army Land Rover which she was driving on a motorway in Germany collided with the central reservation as a result of a front tyre blowing out and her losing control of the vehicle. An investigation carried out after the accident revealed that a 5cm tear on the tyre was the principal cause of the blowout. She has brought this action against the defender as representing the Army in which she avers that her injuries were caused by the fault of the Army at common law and their breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1998. The defender pleads that the action is time-barred and that the pursuer has not advanced circumstances sufficient for the court to exercise its discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act") to allow her to bring the action.

[2] The case called before me for a preliminary proof on the issue of time-bar. I was presented with a joint minute of admissions and heard evidence from the pursuer and Lieutenant-Colonel Mark Weir of the Royal Army Medical Corps.

The relevant statutory provisions
[3] The statutory provisions which are relevant for a consideration of the issue of time-bar in this action are to be found in sections 17, 19A and 22(3) of the 1973 Act. They provide, so far as relevant, as follows:

"17-(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries ...

(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

(b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts -

(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;

(ii) that the injuries were attributable in whole or in part to an act or omission; and

(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer of such a person.

19A-(1) Where a person would be entitled, but for any of the provisions of section 17 ... of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.

22-(3) For the purposes of the said subsection (2)(b) knowledge that any act or omission was or was not, as a matter of law, actionable is irrelevant."

The averments on time-bar
[4] The defender avers that the action is time-barred as the accident occurred on 8 November 1999 and the action was signetted on 20 May 2011, eleven and a half years after the accident. (It is not averred when the action was served on the defender.) The pursuer was aware that the accident occurred in the course of her service in the Army on the day of the accident. She was aware that the cause of the accident was a tyre blowout no later than January 2001, that her condition was sufficiently serious to terminate her Army service in 2003, to justify her applying for a war pension in July 2006 and to merit the award of a war pension in October 2006.

[5] In response the pursuer avers that the content and outcome of the investigation by the Army into the accident were not made known to her until around July 2008 when she received paperwork from the Army Claims Office (North West Europe). After the accident she provided to her sergeant certain information which was used to complete an accident report. She also had to speak to the Royal Military Police about the damage caused to a metal barrier during the accident. She understood that the Royal Military Police had to report the damage to the German authorities. The statement and the accident form were the only participation which she had in the accident investigation. In summer 2000 she had to attend a hearing about the outcome of the investigation. She was marched in to her commanding officer's office and told by him that she had been found not guilty in relation to the accident. She was then turned round and marched out. She was never told what had caused the accident, only that she was found not guilty. The outcome of the investigation or of the hearing was never confirmed to her in writing until she saw the relevant paperwork in July 2008.

Evidence about time-bar
[6] The pursuer confirmed in her evidence that after the accident she gave a statement to her sergeant and assisted in the completion of an accident report. She explained that the hearing before her commanding officer lasted about four minutes. She denied that she was told anything at all about the accident and, in particular, that she was told that the cause of the accident was a front tyre blowout. She had not seen the vehicle at the time of the accident as she had been taken away in an ambulance. It was not communicated to her that it was a vehicle design or defect that was the cause of the accident. She did not discover this until July 2008, when she obtained the relevant paperwork from the Army. She had required the relevant documents because in June 2008 she had been examined by a consultant orthopaedic surgeon at Dumfries and Galloway Royal Infirmary who had told her that degenerative changes in her spine might be linked to her road traffic accident in 1999. She had seen the surgeon on 2 June 2008 and later the same month contacted a firm of solicitors in Lockerbie. That was the first occasion on which she had consulted a solicitor about her accident. She accepted that in July 2006 she had applied for a war pension, which was awarded to her in October 2006. She had not considered at the time of the accident whether it had been due to what someone had done or failed to do or if the Army was responsible. There was nothing that she could have done before July 2008 when she became aware of an act or omission on the part of the Army. She accepted that she was aware at the time of the accident that the vehicle was maintained only by the Army. She had attended an Army Medical Board in June 2000, when she was downgraded to lighter duties for a period of six months because of her back injuries. A subsequent board in January 2001 continued her downgrading. She denied that in January 2001 she knew anything about the accident having been due to mechanical failure. She did not tell Major Weir when she saw him in his capacity as her doctor at the end of January 2001 that the accident was due to mechanical failure of the tyre. Major Weir would probably have known that through her commanding officer. When she made her application for a war pension in July 2006 she did not have the assistance of a solicitor. She phoned the War Pensions Agency, received information from them and was supplied with an application form which she completed and returned. She was examined by a Dr J Weir on 18 August 2006 on behalf of the War Pensions Agency.

[7] In cross-examination the pursuer was referred to the clinical summary of a Medical Board Record dated 18 January 2001, the first paragraph of which reads as follows:

"Private Irving attended for review of her medical grading today. She has complained of chronic low back pain which she says attributes (sic) to a road traffic accident in November 99. She was a driver of a Land Rover which suffered a blowout due to mechanical failure and has had problems with her back since."

She accepted that she complained of chronic low back pain attributable to her road traffic accident, but maintained that she stated nothing about mechanical failure and that the entry so far as it related to mechanical failure must be inaccurate. Major Weir could probably have known that the accident was due to mechanical failure through her commanding officer.

[8] Lieutenant Colonel Mark Weir (46) stated that his only recollection of the pursuer was from the relevant medical notes. Two medical officers were present at the Medical Board in January 2001, himself and Captain Baptie. Captain Baptie had been looking after the pursuer and this was the first occasion on which he himself had met the pursuer. He assumed that the first paragraph of the clinical summary was based upon what he was told by the pursuer when he interviewed her. In his capacity as a clinician he saw her again on 30 January 2001 about a separate problem. He then noted the following in the medical records:

"I only recently became involved in her care when I was asked to review her medical grading with regards (sic) to her long term back problem. This she attributes to an RTA 08/11/99, when she was driving a Land Rover which suffered a blowout on one of its tyres. After the various boards of enquiry she was found to be not guilty and the accident was attributed to mechanical failure of the tyre."

All he was able to say about the content of that entry was that he had no recollection of the source of the information, and, in particular, whether it had come from the pursuer herself or from his speaking to her commanding officer. From the way he had written it he thought it came from the pursuer herself as he would probably have noted that it came from her commanding officer if that had been the case. He thought it was more likely that the information came from the pursuer than from her commanding officer, either at the Medical Board or the later consultation in January 2001. In cross-examination he conceded that it was possible that he introduced the words "mechanical failure" on the basis of his own understanding of events. He had various sources of information and his note was a synthesis of information from various sources. He could not remember the pursuer having said that there had been a tyre blowout due to mechanical failure. His impression at the time was that there had been more than one board of inquiry and that was the reason why he referred to "boards of inquiry".

Discussion and conclusion
[9] This action must be regarded as time barred unless the pursuer brings herself within the provisions of section 17(2)(b) of the 1973 Act. It was accepted on her behalf that she was aware that her injuries were sufficiently serious to justify an action for damages at the time she sustained them in November 1999, but it was submitted that she was not aware that her injuries were attributable to an act or omission and that the Army were persons to whose act or omission the injuries were attributable, and that it would not have been reasonably practicable for her in all the circumstances to be so aware, until June 2008 when she drew an inference from the paperwork which she received from the Army that there had been an omission by them in the form of a lack of maintenance of the vehicle.

[10] The submission for the defender was that awareness in the sense of section 17(2) did not require perfect knowledge: Johnston on Prescription and Limitation (1999) at paras. 10.23-10.25 and Agnew v Scott Lithgow (No. 2) Limited 2003 SC 448 at page 453F, paras 22 and 23. All that was required was modest knowledge on the part of the pursuer to cause her to begin to make an investigation. This case involved a clear and distinct event, namely, a road traffic accident. The pursuer was driving an Army vehicle which she knew was maintained by Army personnel. She associated her injuries with the accident while she was in the Army as she was downgraded in June 2000, and that position was maintained in January 2001. On a strict reading of what was said in the case of Agnew she ought to have been applying her mind to matters at that stage. There was no suggestion that a fault in the road caused the blowout. She was aware that there was a suspicion of mechanical fault in the tyre, as evidenced by the contemporaneous records in the two medical notes made by Lieutenant-Colonel Weir. On the balance of probabilities she was the source of the information about mechanical failure of the tyre which was recorded in those notes. On both occasions she was the subject of medical investigation and provided a history. According to Lieutenant-Colonel Weir it was more likely that she was the source of the information than her commanding officer. She was aware of the necessary facts within three years of the accident or, alternatively, it was reasonably practicable for her to have become so aware. The latest possible starting date for the limitation period to run was 18 January 2001. Alternatively, it would have been reasonably practicable for her to have become aware of the necessary facts by October 2006, when she was awarded a war pension. Her application for a war pension indicated that she attributed her injuries to her military service. There was no reason why it was not reasonably practicable for her to consult a solicitor at that time.

[11] On the basis of the documentary and oral evidence I am not satisfied that the pursuer has brought herself within section 17(2) of the 1973 Act. I accept that, on the balance of probabilities, the notes in the medical records in January 2001 about "a blowout due to mechanical failure" and "the accident was attributed to mechanical failure of the tyre" record information which she provided. She was therefore aware by 18 January 2001 at the latest that her injuries had been caused by a blowout of the tyre which was not her fault. That was sufficient knowledge for her to make inquiries about the possibility of an action of damages against the Army. Even if that were not so, I am of the opinion that it would have been reasonably practicable for her to have become aware of the necessary facts when she was awarded a war pension on 2 October 2006. Although the standard of proof for the award of a war pension is even lower than the balance of probabilities, the fact that the pursuer applied for a war pension indicates that she attributed her injuries to her military service. I accept the submission for the defender that there is no reason why it was not reasonably practicable for her to consult a solicitor about an action of damages at that time. Accordingly, on either view, the pursuer has failed to bring herself within section 17(2) of the 1973 Act.

[12] I must also consider whether it would be equitable to allow the pursuer to bring this action notwithstanding that it is time-barred by virtue of section 19A of the 1973 Act. Her case under section 19A was founded upon the same factual matrix as her case under section 17(2). Reference was made to Clark v McLean 1994 SC 410 and Donald v Rutherford 1984 SLT 70, per Lord Cameron at page 75. It was for the pursuer to satisfy the court of the equity of her claim to be allowed to proceed. So far as the balance of equities was concerned, it was submitted that the pursuer would lose her claim it she were not allowed to bring her action and the defender would lose the protection of section 17 of the 1973 Act if she were allowed to bring it. The Army had carried out a full and thorough investigation into the accident at the time and had the relevant records to consult. Any prejudice to the defender would be slight. The balance of equities lay firmly in favour of the pursuer due to the unique and special circumstances. The spotlight was on her responsibility immediately after the accident until she was cleared of blame in June 2000. There had been no disclosure made to her about the tear in the tyre at that time. She had not sought advice from an adviser until June 2008, never having considered the possibility of a claim before that. It became obvious to her in June 2008 that she might have a claim when she read that there had been a tear in the tyre.

[13] The submission for the defender invited me to follow the approach of Lord Ross in Carson v Howard Doris 1981 SC 278 at page 282. It was unclear how good the recollection of witnesses would be and it might be that maintenance staff would have little recollection of what they had done. The pursuer had been aware of sufficient facts which would have enabled her to consult a lawyer earlier. There was no compelling reason offered in evidence for her not having done so. It crossed her mind to do so only when she consulted an orthopaedic surgeon in 2008, but he had not provided any new information about the condition of the tyre.

[14] I have concluded that it would not be equitable in all the circumstances to allow the pursue to bring this action notwithstanding that it is time-barred under section 17 of the 1973 Act. I base that view on the conduct of the pursuer since the accident up to the time she sought the exercise of the power under section 19A, including any explanation for not raising the action timeously. It seems to me that this is a case in which the pursuer, for no good reason, delayed in consulting a solicitor about bringing a claim against the Army for her injuries. There is really no explanation whatsoever for her not having done so in January 2001 and in any event at the very latest by October 2006, when she was awarded a war pension. So far as the balance of equities is concerned, I am satisfied that these are equally balanced in that the pursuer would lose her right of action if not allowed to bring the action out of time and the defender would lose the protection of the time bar provision in section 17 of the 1973 Act. I therefore decline to exercise my discretion in favour of the pursuer by allowing her to bring the action out of time.

Decision
[15] As I am satisfied that this action is time barred and that it would not be equitable to allow the pursuer to bring it out of time I shall dismiss it.