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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v Shaw & McInnes Ltd [2001] ScotCS 96 (24 April 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/96.html Cite as: [2001] ScotCS 96

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[1] In this case the pursuer sues the defenders in reparation for injuries sustained to his hands whilst working for them as a dresser and air arc burner since 1984. It is alleged that because of working with pneumatic tools, grinders and chipping hammers against metal he acquired a condition known as Vibration White Finger. Its effects range from tingling and numbness to coldness, loss of sensation and gripping power. It is alleged to be a condition which gets worse the longer the exposure.

[2] In 1990 it is averred and accepted that the pursuer received compensation under a scheme and signed a form of discharge. Its relevant terms are as follows:

[3] The defenders also aver in terms of their third plea that in part some of the claim is subject to time bar.

[4] The Prescription and Limitation (Scotland) Act, 1973 provides inter alia by section 17:

[5] The matter appeared before me on Procedure Roll when the defenders asked me to dismiss the case on their first plea or otherwise to grant absolvitor on their fourth plea. The argument on limitation (plea 3) became an argument on relevancy as it was said, rightly, that the record could not be separated out.

[6] What Mr Lake said was to this effect. In general terms the case concerned allegations of negligent exposure to vibration and the onset of a condition known as vibration white finger. In 1990 the pursuer received compensation under a scheme which he learned about. Upon a payment he signed a discharge which is number 6/5 of process. This was done on the advice of his Trade Union. Although the pursuer continued in his employment and alleged that his condition worsened the discharge properly construed covered subsequent events.

[7] It was expressed to be for claims past, present and future. The words "....to the date hereof..." related not to vibration white finger but to "any other injury disability loss or expense". It was important that there was no comma after the word "manifest".

[8] It was clear that future claims were to be included and this was reinforced by the use of permissive and conditional terms and the mention of executors. It would have been perfectly easy to make it clear that the payment was only for vibration white finger as it stood at the date of signature. That had not been done when it was obvious that there could be future claims even in 1990. What was discharged were certain general claims as defined in the document. There was no offer to prove any factual matrix for any other meaning. The averments showed that the employers and the Union considered it.

[9] Counsel went on to argue further, that as a matter of relevancy the pursuer could not claim for any condition he had in 1990. The question was whether he had averred any margin of deterioration since. The pleadings did not make it clear what had happened since 1990, or how the condition had worsened. The defenders did not have enough notice to investigate, prepare and, if appropriate, tender. There was such lack of specification that the case was irrelevant.

[10] Finally Mr Lake dealt with his limitation point. He referred me to section 17(2)(a) of the Statute and maintained that any losses three years before the action was raised could not be recovered. He accepted that this argument would fail if the breach of duty and loss were "continuing" but, he said there was no clarity about this either in the averments of fact (Article 2) or of duty (Article 4). Again he invited me to dismiss the case.

[11] In reply Mr Campbell invited me to allow proof before answer on the whole case.

[12] He began by referring to the Scheme and accepted the discharge was granted on Union advice. He said that it would have been extraordinary for the Union to have agreed to discharge barring future claims for what was a progressive condition. The condition only failed to progress when the source of vibration was removed. The interpretation sought to be placed on the discharge was unreasonable and in any case failed to take proper account of the words "to the date hereof". These words could not be separated from all the conjoined injuries. That would lead to the absurd result that he might never recover for VWF but might for other injuries.

[13] Content could be given to the future tenses as relating to what had happened up to 1990. A claim might be forgotten; different symptoms could arise. The discharge was only meant to end claims due to negligence before the date of its signature.

[14] Secondly, he said, the pleadings clearly disclosed what was the deterioration. The two scales referred to were well known and used constantly in practice by vascular surgeons. They had well known meanings, concepts, signs and symptoms. The pursuer had lodged old and new medical reports and in any event the one dated 1990 would have been available to the defenders when the discharge was signed. They should have no problem in investigating the facts.

[15] Finally on the limitation point, the proper test to apply was to ask, are the pursuer's averments capable of amounting to a case of a continuing omission and exposure. It was clearly said what changes had been made after 1990 and how they had not been successful. Whatever steps were taken or proposed had not reduced the risk.

[16] I have come to the conclusion that the proper course for this case is to allow proof before answer.

[17] I will deal with what I regard as the minor points first.

[18] In my view the pursuer has clearly averred a case where the act or default is a continuing one and so the terms of section 17(2)(a) apply. On the Jamieson test

(1952 S.C. (H.L.) 44) it could not be said that this case "must necessarily fail". In the Record at page 6E and under reference to the Taylor-Pelmear scale his condition in 1990 is specified. Between pages 7A and 9D the pursuer goes on to aver how in a ten year period some changes were made. Detailed mention is made of new castings, new tools and new failures in equipment. On page 8 there are detailed averments about a monitoring scheme, and an offer to prove how it was not properly carried out. These and other failures are said to have progressed his condition well beyond its 1990 severity. Reference is made to an increase of level on the Taylor-Pelmear scale and to the Stockholm scale.

[19] On the second minor point which is one of specification, I consider the averments made in Article 7 page 23 are a complete answer. A great deal of detail is given to show what is the margin of deterioration since 1990, until 2000 when due to this the pursuer lost his job. There are very clear averments (23 D/E and 24 C/D) how his condition has worsened. The two well known scales are again specified. In my view this provides clear notice of the case which the defenders have to investigate. None of these later symptoms are said to have existed in 1990.

[20] I come now to the argument on the discharge. I am satisfied that I can only look to the words and construe the intention from these alone. If there is any ambiguity then before answer it would be best to allow enquiry.

[21] The document which I have already quoted is not very happily framed. However, in my opinion the critical and governing words are "...resulting from my exposure to vibration to the date hereof...". In my view that means that any subsequent exposure to vibration and consequent deterioration is not struck down by the discharge. Read in that way content can be given to the words governing claims and conditions in the past and the future. Such claims due to negligence up to 1990 would be cut down as Mr Campbell agreed.

[22] That in my view is the proper construction of No.6/5 of process.

[23] In the result, before answer, I will allow a proof but in view of what I have said I will repel the defenders' third and fourth pleas-in-law leaving the first plea intact.