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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pope v. the Advocate General for Scotland [2002] ScotCS 3 (4th January, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/3.html Cite as: [2002] ScotCS 3

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Pope v. the Advocate General for Scotland [2002] ScotCS 3 (4th January, 2002)

OUTER HOUSE, COURT OF SESSION
A1905/00	OPINION OF T G COUTTS, QC, SITTING AS A TEMPORARY JUDGE in the cause JOHN HENRY POPE Pursuer; against THE ADVOCATE GENERAL FOR SCOTLAND Defenders:   ________________

 

 

Pursuer: Peebles; Russell Jones & Walker

Defenders: Mackie; Robson McLean, W.S.

4 January 2002

1. The pursuer's action is one seeking reparation for the consequences of inhalation of asbestos dust. The defenders pled that the action was time-barred having been brought on 29 June 2000. They claimed that it was reasonably practicable for the pursuer to have been aware of all the necessary facts specified in section 17(2) of the Prescription and Limitation (Scotland) Act, 1973, before 28 June 1997. The pursuer denied that the action was time-barred but alternatively sought to invoke the discretion of the Court in terms of section 19A of the said Act if the action was otherwise time-barred. A preliminary proof on that matter was held.
2. The pursuer was employed by the Ministry of Defence (Navy) at Rosyth Dockyard from 1956. During the course of his employment he was exposed to asbestos dust. There was some contact with asbestos even after he ceased working as a shipwright in about 1987. His brother had also worked at the same place doing the same work. His brother contracted asbestosis and died from the effects of mesothelioma in about 1987. He, or his family, received compensation from the defenders because of the consequences of his inhalation of asbestos dust while in the defenders' employment. The pursuer accordingly knew that he, the pursuer, had been exposed to asbestos dust and, further, that that exposure was likely to have been negligent and if it caused injury, to result in damages.
3. The pursuer, however, remained healthy. He suffered from a persistent bronchial condition in 1996-97. His general practitioner, after having obtained an x-ray, referred him to the appropriate chest physician, Dr Petrie. The pursuer saw Dr Petrie on 11 March 1997 and spent about 20 minutes with him. The doctor's first question was whether he had worked with asbestos. The pursuer was told that Dr Petrie could not say whether he had asbestosis on the available information but that he had a shadow on his lung. Further investigations were carried out by way of CT scan and the pursuer was thereafter seen on 3April 1997 by Dr Mughrabi, an assistant chest physician to Dr Petrie at that time. Dr Mughrabi told him that he did not have asbestosis although he did thereafter discuss the abnormality on the x-rays and arranged that he be followed up thereafter. He has been. Dr Mughrabi's practice, which he felt sure, and I accept, that he would have followed on this occasion, was to advise the pursuer of the features in his lung, i.e. pleural thickening and plaque. Plaque is an indicator of the presence of asbestos in the lung. I have no reason to doubt that Dr Mughrabi, who impressed me as a careful and conscientious practitioner, did in fact give that information. In any event he followed it up with a letter to the pursuer's general practitioner dated 11 April 1997 which disclosed that the pursuer had pleural thickening due to asbestos exposure and that letter was headed "pleural plaques". Pleural plaques had in fact been earlier diagnosed as was disclosed in a letter to the general practitioner on 17 March 1997.
4. The pursuer, who thought, erroneously, that his brother had died of asbestosis per se, said that he was so overjoyed to hear that he did not have asbestosis as such that none of the rest of Dr Mughrabi's conversation with him registered. That cannot have been entirely so because the arrangements were made for his follow-up visit and I have no doubt that an explanation was given for that. The pursuer also said that he found Dr Mughrabi difficult to follow because of his accent and that may well have been the case. Nonetheless, the pursuer had available to him the information that his lungs had been altered by the inhalation of asbestos, that he had pleural plaque and that accordingly he had sustained damage.
5. He said that if he had known in April 1997 that he had pleural plaque he would have been aware that he would have been entitled to seek damages.
6. The pursuer was a perfectly frank and honest witness. I concluded that when he left the meeting with Dr Mughrabi he could not have been said to be aware that he had a condition which would have justified the bringing of an action.
7. It was, however, reasonably practicable for the pursuer in all the circumstances to have become aware of all the facts relevant to his bringing an action a matter of weeks after his interview with Dr Mughrabi and in any event before 28 June 1997. He was in fact aware that he had been exposed to asbestos, that it was a serious situation, that if he had any injuries those were attributable in whole or in part to an act or omission of the defenders, the Ministry of Defence. He was aware that if he did have pleural plaques he would be entitled to bring an action. I find that it was reasonably practicable for him to have known that he did have plaques because he was required to return for follow-up and also that his doctor would have received information about his condition. All he required to do was ask either Dr Mughrabi, or his general practitioner about his condition. He knew he had some condition in his lung but that it was not asbestosis.
8. I accordingly sustain the defenders' first plea-in-law to the extent of holding that the action is time-barred in terms of section 17(2) of the Prescription and Limitation (Scotland) Act 1973.
9. The question remains, however, whether, as it has been put in numerous authorities, the pursuer is entitled to the exercise of the unfettered discretion of the Court to allow the action to proceed under section 19A. There the only question is whether it seems equitable to allow the pursuer to proceed. Although I have found that it was reasonably practicable for the pursuer to have ascertained the extent of his injury and his condition, I also find that he did not in fact do so until about 5 August 1997 at an interview with Dr Petrie. He then realised that he did have pleural plaque but its significance was somewhat underplayed by the consultant. The pursuer remained in good health, apart from a slightly elevated blood pressure, and has so remained. He was taking adequate exercise. Indeed, he was requested to keep working with the Ministry of Defence after his normal retiring age. His evidence and that of his wife was that his wife felt that the existence of these plaques should "be on record" and it was then that he consulted his union and obtained the appropriate form to institute proceedings. He knew that proceedings could be instigated in that fashion because his union had acted for him in relation to a claim for industrial deafness which was apparently successfully negotiated. After he had consulted the union solicitors matters were progressed with expedition. The action on any view was three months out of time at worst.
10. The defenders did not suggest that in conducting any defence to the action they were in any way prejudiced by any loss of evidence or by that delay. They have of course suffered the obvious prejudice of losing a cast iron defence. The pursuer's prejudice is losing the prospect of progressing a claim on which, having regard to his brother's position, he was bound to succeed. If it is appropriate to "balance" the prejudice to either party, the pursuer would appear to be more gravely prejudiced than the defenders in respect that this is not a spurious or speculative claim on the merits. There is, indeed, no defence pled other than a formal denial and a non-admission of facts within the defenders' knowledge.
11. I consider that I am entitled to have regard to the particular circumstances of this particular pursuer. I find it wholly understandable and credible that, having been given the "good news" about his not suffering from asbestosis from which, as he thought, he had seen his brother die in extreme discomfort in a hospice, he did not consider anything other than his own intense relief at that time. By the time he had a conversation with Dr Petrie in about August 1997 he was or should have been aware of his condition of plaques. Even then he was not particularly encouraged to litigate. It was only subsequently when worries about the future began to impinge upon his wife that he did take steps to raise this action.
12. I find it was reasonable that the pursuer should have had the reaction he did and understandable that he did not take the appropriate practicable steps to ascertain his entitlement to litigate at the time when he should have done.
13. It is upon a consideration of the whole circumstances of the pursuer and his understandable reaction, coupled with the fact that in this case the defenders suffer no prejudice whatsoever in litigating apart from losing their statutory defence, that I felt able to exercise my discretion to allow the action to proceed to proof in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973. I therefore repel the pursuer's third plea-in-law, sustain the pursuer's fourth plea-in-law, repel the defenders' first plea-in-law and quoad ultra allow a proof before answer.