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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Airlie v. Govan [2003] ScotCS 128 (01 May 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/128.html Cite as: [2003] ScotCS 128

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Airlie v. Govan [2003] ScotCS 128 (01 May 2003)

OUTER HOUSE, COURT OF SESSION
A202/01	OPINION OF T. G. COUTTS, Q.C. (Sitting as a Temporary Judge) in the cause ANGUS AIRLIE Pursuer; against KVAERNER GOVAN LIMITED Defenders:   ________________

Pursuer: Hajducki, Q.C.; Thompsons

Defenders: R.G. Milligan; Simpson & Marwick, W.S.

1 May 2003

1. In this action the pursuer seeks damages for personal injury caused by industrial asthma. The pursuer has been accepted as suffering from industrial asthma by a Medical Appeal Tribunal. The action was not brought within three years of the pursuer ceasing to have exposure to the relevant irritant.
2. The matter appeared for preliminary proof in relation to the defenders' plea that the action was time-barred and the pursuer's counter plea that if it were, it would be equitable for him to be allowed to proceed with the action. The proof was short. The only evidence came from Dr Dorward, a consultant physician from Royal Alexandria Infirmary in Paisley, who conducted asthma clinics there at the relevant time, and from the pursuer himself.
3. By Joint Minute counsel for the parties had agreed that the pursuer was exposed to stainless steel welding fumes in the course of his employment with the defenders between November 1992 and February 1993. The summons was served on the defenders on 15 December 1998. Counsel were agreed that the records of the Royal Alexandria Infirmary, the Benefits Agency and Dr Ramage's clinical notes which were produced related to the pursuer and were true and accurate.
4. The law is to be found in section 17(2)(b) and section 19A(1) of the Prescription and Limitation (Scotland) Act 1973. By section 17 it is provided:

".... 17 ... (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 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 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 or principal of such a person."

Section 19A provides:

"...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 be equitable to do so, allow him to bring the action notwithstanding that provision."

Asthma incurred as a result of exposure to stainless steel welding fumes was recognised as an industrial disease by Statutory Instrument entitled the Social Security (Prescribed Diseases) (Amendment) Regulations 1991. It became a prescribed disease and benefit became payable for it on and after 26 September 1991.

5. The pursuer's pleadings in response to the defenders' averment in Answer 10 that in 1993 the pursuer specifically linked asthmatic symptoms to his employment are:

"Explained and averred that the first occasion the pursuer became aware or could reasonably have become aware that his asthma had been caused by exposure to stainless steel welding fume was in January, 1996. He was then advised by his Trade Union that the defenders had concluded that the fume generated by stainless steel welding which had taken place in the yard between 1992 and 1994 was a cause of asthma. Prior to that and during his period of medical treatment the pursuer had enquired of his G.P. and his treating Chest Physician what was the cause. Neither advised that stainless steel welding fume was the cause. He had no reason to question this. The pursuer had worked beside welders for years (albeit not welding stainless steel) and had suffered no respiratory symptoms. He had no knowledge of the particular risks associated with stainless steel welding. This was carried out for the first time by the defenders' welders in the 1991 order for stainless steel ships. After his period of in-patient treatment the pursuer was more concerned with getting his condition cured or stabilised. He underwent significant treatment over the following 12 to 18 months to achieve this. In the circumstances, the pursuer's case is not time-barred. In any event, in all the circumstances, it is equitable that the pursuer be allowed to proceed with his action. Reference is made to section 19A of the Prescription and Limitation (Scotland) Act 1973."

Dr Dorward's evidence was taken before that of the pursuer. This was unfortunate because Dr Dorward could not be examined on what the pursuer's account of their conversation was as given in Court. In the course of that evidence Dr Dorward confirmed a letter he had written on 14 February 1993 to Dr Ramage, the pursuer's general practitioner, (7/2/22) which reads:

"He wonders if his asthma could be due to stainless steel welding that is going on in the shipyard where he works. Certainly his asthma seems to have started about the same time."

Dr Ramage did not give evidence but it appears from the reasons agreed that he also received a letter from Dr Findlay, consultant physician, Royal Alexandria Hospital in which it was stated that the pursuer had been admitted with a severe asthma attack. The pursuer ascribed his wheeze and breathlessness to changing to a new job in which he was using new welding techniques and Dr Findlay noted that he did not give any history of similar symptoms in the past. The hospital records 7/1/27 also note that the pursuer, "works in a fume filled environment with no previous history of asthma".

6. In his evidence Dr Dorward said that his prime objective was to persuade the pursuer that he had asthma. He said that he thought the pursuer had mentioned welding fumes to his GP but there is no record of that. No referral letter was produced, nor does the excerpt from the GP notes indicate anything beyond an entry on 11/12/92 which reads "working with welders fumes".
7. Dr Dorward said that he could not remember the details exactly. He did not take a detailed history which he said he would have done if he thought it was industrial asthma. In evidence he thought it not likely that there was a connection (between the stainless steel welding fumes and asthma) as at 1993. He expressed the view that it was difficult to find out in the textbooks about these matters. The records and his evidence did not indicate whether he did or did not assent to the proposition that the asthma might have been work related. He did not raise it again but said that the pursuer might have thought that it was not related. He never saw the pursuer again and the matter of work related asthma was not, apparently, mentioned to any of his colleagues.
8. This respiratory physician also stated that he did not know that occupational asthma was a prescribed disease in 1993.
9. The pursuer's evidence was that his own doctor did not comment when he said he had been working in a lot of fumes. The pursuer said that he asked Dr Dorward what had caused his asthma and wondered "could it be fumes?". The pursuer said his reactionwas to say "No". He dismissed the idea. It was not until 1996 that the convenor of the yard told him that there was a notice up about stainless steel welding. That, he said, was the first time he had realised that there was a connection. He made application to a tribunal and ultimately received benefit.
10. From the records, it is apparent that he was seen at a Medical Appeal Tribunal in which there were two distinguished consultant respiratory physicians, Drs Moran and Pasqual, who recognised (1) that exposure to stainless steel welding fumes was prescribed; (2) that the pursuer had been exposed to them and that accordingly he was entitled to industrial injury benefit. In letters in relation to his claim for benefit, the pursuer said 7/7/22,

"After coming out of hospital in 1993 I did not understand the severity of my condition. I thought if I was not working in close connection with the substance or substances which caused my asthma, I would never be bothered with it again."

In a letter previously dated 24 May 1996, he said,

"It was not until Kvaerner Govan introduced stainless steel welding that I found myself becoming short of breath to the point that I actually collapsed and was admitted to hospital where I was diagnosed as having asthma."

Further, the letter continues;

"Your report stated although Mr Airlie worked near welders he himself did not in fact do any welding. These welders are protected against the fumes. I was frequently required to work on the roof of the welding bay where I was in direct contact with the fumes and I had no protective clothing".

In cross-examination when asked when he thought there was a connection between the fumes and his asthma, he said, "I never suggested it. I did think that there was a possible connection". He denied saying to Dr Dorward that he felt that they may be related. In answer to a question from the Court as to how he thought that entry appeared on the hospital records, he then said "I was asking could it have caused it." The pursuer said that Dr Dorward never suggested any cause of asthma, but accepted that Dr Dorward did not say that the exposure to fumes was not a cause. He repeated, that he asked if his work caused the asthma and then the doctor had said "No". He then said that he had been told that only welders would have it and it could cause lung disease to welders.

11. Counsel for the pursuer submitted that the pursuer having been told that there was no connection by a consultant on whom he relied it was not reasonably practicable for him to have raised his action until he did discover the connection. Although he took no other steps he did not need to it was asserted.
12. Plainly the reliability of the pursuer is essential to that submission.
13. Counsel for the defenders said that the question for the Court was how Dr Dorward's evidence should be interpreted. The onus is on the pursuer to establish that it was not reasonably practicable for him to become aware of the essential facts. Counsel cited Elliot v J & C Finnie 1989 SLT 208; Cowan v Toffolo Jackson 1998 SLT 1000; McArthur v Strathclyde Regional Council 1995 SLT 1129 and an unreported decision of Lord McEwan, Lambie v Toffolo Jackson Ltd and Another, 11 March 2002. All these Outer House cases depended on particular facts. In any event, argued counsel, there were no circumstances entitling the pursuer to invoke 19A given the timing of the action being raised.
14. My findings on the facts adduced are that the pursuer did think that his asthma had some connection with the stainless steel welding fumes at work. He raised the matter with his chest physician on the one occasion he saw him. He was not told that the condition and the work environment were not related. The pursuer was aware that welders could suffer lung disease as a result of inhalation of fumes and he worked in close proximity to welders. Dr Dorward did not advise the pursuer whether or not his condition was caused by work. The pursuer took no steps to ascertain whether or not he could raise an action or claim benefits. He received a decision from a Medical Appeal Tribunal in September 1996 where he was represented by a union official. He did not however take any steps even then to raise proceedings until 15 December 1998.
15. I did not find the pursuer a reliable or credible witness. His evidence was given with the plain intention of attempting to establish his ignorance to suit his possible action. I did not believe him when he said that he was told that there was no connection by Dr Dorward. Dr Dorward himself did have no particular recollection of the event but did say that he thought that the pursuer might have been left with the impression that the matters were not connected. I found it astonishing that a chest physician could give evidence to the effect that in 1993 he was unaware of industrial asthma. The law had by then permitted the diagnosis to be made and benefit could be obtained for asthma caused by stainless steel welding fumes. I cannot understand how a physician in Paisley could profess to be generally unaware of industrial asthma or could not have noted that other exposures had been added to the classic dusts, such as cotton, not unknown in Paisley. The impression I gained from Dr Dorward's evidence was that he was attempting to assist the pursuer to establish his ignorance without going so far as to affirm that he told the pursuer that the two things were connected.
16. The pursuer consulted nobody, no solicitor and no union representative when he began to suffer. There was no evidence about the matters at the workshop which could support the pursuer's averments to the effect that the first occasion the pursuer could reasonably have become aware that exposure caused his asthma was in January 1996. He could have taken advice long before then. A solicitor would have known the law about prescribed diseases. Stainless steel welding fumes were specifically added to the list of prescribed diseases in 1991. I do not find it likely that his union would not have been able to provide assistance. Finally, I note that in his averments above quoted, the pursuer did not go as far as he did in evidence when he said that he had been told that there was no connection between the fume and the asthma. What he said in his pleadings were that neither his GP nor the treating chest physician advised that stainless steel welding fume were the cause, not that they denied it. Accordingly I am not satisfied that the pursuer has established, as he must, that it was not reasonably practicable for him to have discovered the relevant facts during the three year period after he ceased exposure. The question is not, as has been said by the Inner House in a case advised after the debate in this case, whether the pursuer has a reasonable excuse for not taking steps to obtain the material information but whether it would have been reasonably practicable for him to do so - Agnew v Scott Lithgow 1/4/03.
17. In view of the fact that the action was not raised until 15 December 1998 albeit a clear and favourable decision was given to him by the Medical Appeal Tribunal on 4 September 1996, I am not disposed to exercise my discretion under 19A. Had the pursuer raised an action within a few months of that decision, it might have been possible for him to persuade the Court that discretion should be exercised in his favour. However, waiting over a year after he was in full knowledge of the fact that he had industrial asthma, the prescribed disease caused by stainless steel welding fumes does not persuade me that the Court's discretion should be exercised to allow the action to continue.
18. Accordingly I shall sustain the defenders' second plea-in-law, repel the pursuer's fourth plea-in-law and dismiss the action.