Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 117

A5253/01

OPINION OF LORD TYRE

In the cause

WILLIAM HAINING JAMIESON

Pursuer;

against

(FIRST) SISTER ZOE O'NEILL and (SECOND) THE DAUGHTERS OF CHARITY OF ST VINCENT DE PAUL

Defenders:

Pursuer:  Jamieson;  Drummond Miller LLP

Defenders:  Duncan QC;  Simpson & Marwick

22 July 2014

Introduction

[1]        The pursuer was born on 13 March 1976.  In about November 1976 he was placed as a resident in Smyllum Park Home, Lanark, a residential care home for children that was operated by the defenders.  On 5 April 1977, when he was one year old and while in the defenders’ care, he sustained a scalding injury to his neck, chest and left arm.  In about July 1978 he was discharged from the Home into the care of his mother.  He attained the age of 16 on 13 March 1992.  On 26 November 2001, he raised the present action for damages against the defenders in respect of the injury he sustained in 1977.  In response to a plea by the defenders that the action is time-barred, the pursuer contends (a) that the action is not time-barred because it was commenced within the three-year period specified in section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973 or, alternatively, (b) that if the action is time barred, it is just and equitable that it be allowed to proceed in terms of section 19A of the Act.  The action came before me for debate of the defenders’ time bar plea.

The pursuer’s case

[2]        The pursuer has no memory of being resident in the Home or of the occurrence of the accident.  In the absence of any personal knowledge of how it happened, his case is based on transferred onus of proof, and is encapsulated in the following averments:

“It was [the defenders’] duty to exercise reasonable care to avoid the pursuer being injured and, in particular, scalded.  A properly supervised and cared-for infant does not normally sustain scalding injuries.  Had the defenders fulfilled the duties incumbent upon them, said accident would not have occurred.”

[3]  So far as time bar is concerned, the pursuer avers that he did not know that he had been resident in the Home until his mother told him in March 2001, when he was 25.  He avers that his mother had not been advised of the accident until about a week after it had occurred and was given no explanation of the circumstances.  Throughout his childhood, the pursuer was conscious of the scarring caused by the scalding accident.  He asked his mother how his injuries had occurred but she would not tell him.  He wrongly assumed that they had occurred while he was in her care.  After discovering the truth about his infancy in 2001, he contacted solicitors and a claim was intimated on his behalf in May 2001.  He later discovered that the defenders’ agents then obtained a statement from the member of staff who had been responsible for the care of children including the pursuer at the time of the accident but did not disclose it to those acting for the pursuer.  After the action was raised it was sisted to enable the pursuer to apply for legal aid.  The pursuer narrates a long history of attempting to obtain legal aid which was eventually granted in 2012.  The sist was recalled and the action has proceeded.

The defenders’ response

[4]        The defenders admit that the pursuer suffered scalding injuries on 5 April 1977 while in their care.  They aver that the member of their Order responsible for the pursuer’s care at the time of the accident, Sister Eileen Igoe, did not witness the accident, which had occurred while the pursuer and other children of mixed ages were having breakfast.  Because of Easter holidays, the Home was short-staffed and she was the only adult present.  She had gone to the kitchen to fetch more tea for the older children.  While she was away, tea from a teapot on the table was spilled on the pursuer who was in a high chair.  She believed that the teapot had been moved closer to the pursuer by one of the other children who was aged about 13 at the time.  The pursuer was taken to hospital, and his mother and the social work department were informed of the incident.  On this hypothesis of fact, the pursuer avers that the accident was caused by the fault and negligence of Sister Igoe, for whose acts and omissions the defenders were vicariously liable, on the basis that it was her duty not to leave the pursuer and other children unsupervised in the vicinity of a teapot containing hot liquid.

[5]         As regards time bar, the defenders aver that they have no records relative to the incident and very few relative to the pursuer.  Sister Igoe had not witnessed the accident.  In the course of the hearing before me it was indicated that the child thought to have been responsible for the accident had been located but had not yet been contacted.  Members of staff to whom Sister Igoe had spoken immediately after the incident were now dead.  The defenders, who are a charitable order, had been unable to identify an insurance policy covering liability for the accident.

Medical evidence

[6]        One important piece of contemporaneous documentary evidence is available.  Within the pursuer’s GP records was a letter of discharge dated 6 May 1977 from a surgical registrar at Law Hospital, Carluke, addressed to a Dr Allan who was presumably the pursuer’s GP.  The letter was headed “Baby William Jamieson (13.3.76)  Smyllum Park House, Lanark”, and stated:

“This one year old boy was admitted on the 5^th April with scalds of the anterior chest and left arm.  The burns were partial thickness and were treated initially with pig skin dressings.  This treatment initially was very satisfactory but unfortunately William appeared to develop some allergy to the skin and this was removed.  The burns were exposed and once dry crusts had formed William was allowed back to the Smyllum Park home.  Unfortunately the crusts became rather moist and he was readmitted on the 25^th April.  Over the next few days the crusts gradually separated and by the time he was again discharged on the 30^th April the wounds had almost healed.

He will be reviewed in the outpatient clinic in approximately       weeks.”

Section 17(2)(b): date when limitation period commenced

[7]        The effect of section 17(2)(b) of the 1973 Act is to postpone the commencement of the three-year period within which an action of damages for personal injury must be raised until the date on which the pursuer became aware, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to have become aware, of all of the following three “statutory facts”:

(i)         that his injuries 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.

[8]        In Agnew v Scott Lithgow Ltd (No 2) 2003 SC 448, it was held (at paragraph 23) that it was incumbent upon a pursuer to take all reasonably practicable steps to inform himself of all of these three facts as soon as he was put on notice of the existence of any of them, and that the onus was on the pursuer to establish that he had done so.  The test was not whether he had a reasonable excuse (such as embarrassment, or fear of being disbelieved) for not taking steps to obtain the material information, but whether it would have been reasonably practicable for him to have done so.  On the latter point reference may also be made to Elliot v J&C Finney 1989 SLT 208, Lord Sutherland at 210, and to M v O’Neill 2006 SLT 823, Lord Glennie at paragraph 36.

[9]        On behalf of the defenders it was submitted that the pursuer had failed to aver circumstances in which it would not have been reasonably practicable for him to become aware, more than three years before the raising of the action, of either the second or the third statutory facts.  It could not be disputed that the first of the facts was fulfilled and that the pursuer was or ought reasonably to have been aware of it since at least the time when he attained age 16.  The onus was on him to aver and prove that it had not been reasonably practicable for him to become aware of the others; he had failed to do so.  His mother’s reluctance to disclose to him that he had for a time been in the defenders’ care and that the accident had happened during that time, and his consequent assumption that the accident had happened due to his mother’s fault, might be regarded as a reasonable excuse for not taking the matter further, but the test of whether it would have been reasonably practicable for him to become aware of the second and third statutory facts was an objective one.  It would, for example, have been reasonably practicable for the pursuer to have consulted his own medical records, from which he would have discovered the cause of his injuries and the fact that he had been in the defenders’ care when they occurred. 

[10]      On behalf of the pursuer it was submitted that the facts averred were sufficient to establish, if proved, that it had not been reasonably practicable for the pursuer to have become aware of all of the statutory facts more than three years before the action was raised.  As regards the second fact, i.e. that his injuries were attributable to an act or omission, the essence of his claim was lack of adequate supervision.  He could not reasonably have been aware that there had been such a failure until he was told by his mother in 2001 how and where the accident had occurred.  As regards the third fact, i.e. identification of the defender, awareness of this too would not have been reasonably practicable so long as his mother refused to tell him what had happened or that he had been in the defenders’ care.  In contrast to M v O’Neill, the pursuer’s lack of knowledge was not attributable to his own shame or embarrassment, but rather to his mother’s refusal to reveal that he had not been in her care when the incident occurred.  It would not have been reasonably practicable to mount an investigation into the adequacy of his own mother’s care.

[11]      In my opinion the submissions of the defenders are to be preferred.  Despite the assertions of counsel for the pursuer to the contrary, it seems to me that the contention on behalf of the pursuer does confuse reasonable practicability with reasonable excuse.  It may be that, so long as the pursuer did not have a reason to believe that his injuries had been caused by anyone’s fault except perhaps that of his mother, he had a reasonable excuse for choosing not to take steps to investigate and pursue a claim for damages.  But as the authorities make clear, that is not the test.  The pursuer requires to aver and prove circumstances in which it was not reasonably practicable for him to have discovered, more than three years before September 2001, that his injuries were attributable to an act or omission by the defenders or by someone for whom the defenders were vicariously liable.  His reliance upon the refusal by his mother to provide information regarding the accident does not meet that objective requirement.  He does not, for example, offer to prove circumstances in which it would not have been reasonably practicable for him to obtain, more than three years before September 2001, the information contained in his own GP records which would have resulted in him becoming aware of the second and third statutory facts.  I therefore hold that the present action has not been raised within the period specified in section 17(2)(b) of the 1973 Act and, subject to the allowance of an application under section 19A, is therefore time-barred.

Section 19A: court’s discretion to allow action to proceed

[12]      Section 19A of the 1973 Act empowers the court to allow a person to bring an action which would otherwise be time-barred by virtue of, inter alia, section 17, if it seems to the court to be just and equitable to do so.

[13]      The factors that may be relevant to the exercise of the court’s discretion to allow an application under section 19A have been the subject of much judicial commentary.  In the course of the hearing before me, senior counsel for the defenders founded particularly upon the detailed analysis by Lord Drummond Young in B v Murray (No 2) 2005 SLT 982, a decision upheld by the Inner House (2007 SC 688) and by the House of Lords (2008 SC (HL) 146, sub nom AS v Poor Sisters of Nazareth).  In the course of that analysis, Lord Drummond Young referred to the conclusion of McHugh J in Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541, a decision of the High Court of Australia, that the discretion to extend the time limit for raising an action should be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by enforcing the limitation period in question.  Limitation is the general rule: extension is the exception.  Among the reasons given for this approach are loss of evidence, the effect of delay on the quality of justice, and the need for people to be able to organise their affairs on the basis that claims may no longer be made against them.  A particularly important aspect is prejudice to the defender in allowing a claim to proceed.  Where a defender can show actual prejudice in defending the action, or the real possibility of significant prejudice, it will not normally be appropriate to grant an extension: B v Murray at paragraph 27;  AS v Poor Sisters of Nazareth at pages 155-6 (Lord Hope of Craighead). 

[14]      Senior counsel for the defenders submitted that application of these principles indicated that in the exercise of its discretion, the court should not allow the action to proceed.  Prejudice to the defenders would be real and substantial.  It would be very difficult to prove the standard of supervision of children required in 1977.  The court would be unable to assess the credibility and reliability of Sister Igoe with any confidence: she was elderly, and her memory of events would inevitably have diminished with the passage of time.  In any event she had not seen what happened.  The defenders were inherently prejudiced by having to defend an action in which the onus of proof was said to have transferred to them.  They would also be financially prejudiced, given the apparent lack of insurance cover.  Moreover, the pursuer’s explanation of his failure to raise an action timeously was wholly inadequate: to say that he had been unaware that he was in the defenders’ care was not a sufficient excuse for doing nothing at all.  As the requirements for the court to exercise its discretion in the pursuer’s favour had not been met, the action should be dismissed without the need for a preliminary proof on the time bar issue.

[15]      Counsel for the pursuer invited me, if I were against him on the section 17(2)(b) argument, to allow a preliminary proof on the exercise of the court’s discretion under section 19A.  It was not clear without such preliminary proof what, if any, prejudice would be suffered by the defenders if the action were allowed to proceed.  The person responsible for supervising the children was available as a witness, and it appeared that the individual said to have caused the accident might also be available.  The pursuer’s case could be defended on the basis of Sister Igoe’s evidence.  There would be no need to inquire into normal standards in 1977, because on the defenders’ own account the circumstances on the day of the accident were unusual.  Financial prejudice to the defenders was overstated; in any event it was for the defenders to bear the consequences of a failure to keep records of insurance cover.  There would be serious prejudice to the pursuer in refusing to allow the action to proceed.  In the peculiar circumstances of the case it had not been unreasonable for him to make an incorrect assumption regarding responsibility for his injuries.  The pursuer bore no personal responsibility for the further delay that had occurred since the action was raised in 2001.

[16]      In my opinion, it is appropriate to order a preliminary proof on time bar before the court is called upon to decide whether, in exercise of its discretion, to allow the case to proceed to proof on its merits.  I note that this was the course of action taken in, for example, B v Murray.  In the present case, there may be force in the defenders’ submission that they would suffer prejudice if the action is allowed to proceed.  This is particularly so where the pursuer’s case proceeds on the basis of a transferred onus of proof, and I have considered whether this feature is in itself sufficient to require me to exercise my discretion in the defenders’ favour.  I have concluded that it is not.  The defenders admit that the accident occurred, and that it occurred while the pursuer was in their care.  Whether the quality of Sister Igoe’s evidence as to how it happened has been diminished by the passage of time remains to be tested.  It appears to be possible that evidence will be available from a witness to the accident.  In these circumstances, I am of the view that the issues of (a) whether there would be actual prejudice to the defenders and, (b) in any event, whether it is just and equitable to allow the action to be brought, will be best resolved after a preliminary proof. 

Disposal

[17]      I shall accordingly allow a preliminary proof, with all pleas-in-law left standing.