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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clark v Lithgow [2004] ScotCS 191 (30 July 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/191.html Cite as: [2004] ScotCS 191 |
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OUTER HOUSE, COURT OF SESSION |
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A1626/00
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OPINION OF J GORDON REID Q.C., F.C.I.Arb, Sitting as a Temporary Judge in the cause PATRICK CLARK Pursuer; against SCOTT LITHGOW LTD Defenders:
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Act: Guinnane; Thompsons
Alt: Stacey, Q.C.; Simpson & Marwick, W.S.
30 July 2004
Introduction
[1] This is a time bar proof in a personal injuries action. I heard evidence on 23 and 24 October 2003, and 10 and 11 June 2004. Miss Guinnane appeared on behalf of the pursuer and led his evidence and the evidence of Anne Clark (the pursuer's wife), Derek Flood, a work colleague of the pursuer, David Stevenson, a solicitor and partner in the firm of Thompsons, Solicitors, Edinburgh, and John Drury PhD., F.R.C.S., a consultant general surgeon with a special interest in vascular disease. Mrs Stacey, for the defenders, led no evidence. A number of productions were allowed to be lodged late and during the course of the proof, there being no objection by either party. A short joint minute agreeing various matters was also lodged.Facts
Employment
[2] Mr Clark (the pursuer) has been employed as a Welfare Rights Officer by Inverclyde Council since 1995. He was forty seven years old when the proof commenced. Between about 1972 and 1982, he was employed by the defenders as a plater, at their Greenock yard initially as an apprentice. He spent a significant amount of time there using a variety of hand held tools. These tools vibrated. He worked on ships and within the defender's yards. During that period or at least part of it he was a member of the Boilermaker's Union. He has been a member of UNISON (formerly NALGO) since about 1987.Injuries
[3] In the late seventies and early eighties, Mr Clark's fingers in both hands (but not his thumbs) became very cold and white at times for no apparent reason. In March 1981 he consulted his General Practitioner, a Mr Anderson, about his fingers. Mr Clark's mother suffered from rheumatoid arthritis and Mr Clark had seen a programme on television or read an article which indicated that rheumatoid arthritis was hereditary. The GP indicated that Mr Clark might have touch of "rheumatics" and took a blood test which subsequently proved negative. Mr Anderson did not inform Mr Clark that his complaints were or might be related to his use of hand held vibrating tools or that his views fell to be revised following the result of the blood test. He gave Mr Clark the distinct impression that the cause might be cold conditions at work and that it was "just one of these things". Mr Clark did not consult his GP again about his hands. He believed that his problems with his hands were a genuine sensitivity to the cold . He did not believe that these problems were attributable to his employment with the defenders. That belief was reasonable in the circumstances. [4] Mr Clark has, since the early eighties, continued to suffer such symptoms. He experiences blanching, coldness, and numbness followed by a throbbing and tingling sensation. This happens about three to four times per week and more frequently in winter. These symptoms occurred even more frequently in the late seventies and early eighties when he was still in the employment of the defenders. He was and is an enthusiastic bagpipe player. The problems with his hands adversely affected his bagpipe playing skills which he has found frustrating. His general manual dexterity has also been affected impairing his ability to carry out DIY activities at home. For example, he cannot hold a screwdriver easily. However, his ability to fulfil his duties in the employment of Inverclyde Council has not been adversely affected. His symptoms are worse in winter. It did not occur to him to consult his GP again about these difficulties and his wife did not suggest that he do so.Raynaud's Phenomenon
[5] Vibration White Finger, formerly described as Raynaud's Phenomenon, and more recently as Hand Arm Vibration Syndrome, arises when the small blood vessels in the extremities, usually the fingers "clamp down", usually in response to cold. This causes blanching of the fingers; it is usually short lived; the blanching disappears when the blood supply returns. Various circumstances can cause this phenomenon although it can occur for no known reason. As a result, nerve, tendon and joint damage can occur. By the late nineteen eighties the general public was still not aware of VWF. Even the vast majority of GPs had not by then made the connection between VWF and employment. Even now it may depend upon the nature of a GP's practice and whether it is located within an area of heavy engineering, whether the connection is made. Knowledge among GPs is still "patchy".Knowledge During Employment with the Defenders
[6] Throughout the period of his employment with the defenders he was unaware of the condition known as Vibration White Finger. He was not party to and did not hear any discussion about VWF. At some stage during his employment Mr Clark was a shop steward. At some stage in the eighties Mr Clark made a claim against the defenders in respect of industrial deafness. The connection between hearing loss and working in shipyards was well established by then.History After Leaving Defender's Employment
[7] Between about 1982 and 1986, Mr Clark studied at Strathclyde University. He married in 1985. At University, he studied a variety of subjects including Industrial Relations, part of which was concerned with health and safety legislation. The symptoms described above sometimes made it difficult for him to make notes at lectures but he coped. He did not regard it as a significant problem. He devised his own form of shorthand. He worked for about two months as a plater with James Adam, Boat Builders, Gourock in the summer of 1986. After successfully completing his BA degree course in Social History, he took up employment with Inverclyde Council in their Social Work Department in about 1987. He was at that time involved with keeping "kids out of jail". In 1995 he became a Welfare Rights Officer with Inverclyde Council. His duties involved tribunal representation at Social Security Tribunals on behalf of members of the public. The general procedure was that members of the public would be seen by a duty officer or Information Worker within the Social Work Department, who would assist in the making of a claim for appropriate State Benefit. If the claim was refused then the claimant would appeal again with the assistance of an Information Worker or other official. Free representation would be offered to claimants at appeals. Mr Clark represented such claimants at a variety of tribunals such as Disability Appeal Tribunals, Social Security Appeal Tribunals and before the Social Security Commissioners. Mr Clark was generally not the first point of contact. The bulk of his work related to Incapacity Benefit and Disability Benefit. [8] Mr Clark was unaware, at the time, of the coupon campaign in 1991 in which Mr Flood was involved (see para 10 below). Mr Flood from his greater experience than his colleagues as a welfare rights officer since 1988 was aware from about 1989 that VWF could be caused through employment. At an early stage it was only necessary to establish 7% disability to obtain a gratuity. Thereafter, from 1/10/86 15% disability had to be established to entitled the claimant to benefit. Generally between 1993 and 1996 the number of claims for Industrial Injury Benefit passing through Inverclyde Council's Welfare Rights Office dropped with only about at most a dozen VWF cases during that period. Mr Clark was not involved in any of those claims.Mr Rennie's Claim
[9] In about November 1996, Mr Clark was approached by a Mrs Elizabeth Fern, the sister of a Mr Duncan Rennie. Mrs Fern was a social worker. She was assisting Mr Rennie with a Disability Living Allowance claim. She asked Mr Clark, if he could "claim for Vibration White Finger". Mr Rennie thought that was what he had. Mr Clark checked the relevant Social Security Regulations to ascertain whether that disease was a prescribed disease in respect of Mr Rennie's occupation and confirmed to her that a claim could be made. Mr Clark's office did not have the appropriate claim form. He obtained one. Mrs Fern asked him to assist her brother in completing a claim form for Industrial Injury Benefit. He did so and in his own hand completed some parts of the form e.g. a part which described the claimant's symptoms as blanching of all fingers and poor grip. Mr Rennie subsequently sued the defenders for damages. Mr Clark attributed little significance to his interview of Mr Rennie and his partial completion of the claim form on Mr Rennie's behalf which took but a short period of time. At that stage he did not realise that he himself might have a claim for Industrial Injury Benefit or a claim for damages against the defenders.Backdating of Industrial Injury Disablement Benefit and Claims Campaign
[10] At some point probably in early 1997, it became apparent to Mr Flood and Mr Clark that changes were afoot in relation to the backdating of awards of certain State Benefits. It was known that the Government intended to stop the backdating of awards of various benefits including Industrial Disablement Benefit, but it was not known when the change would take place. Normally about six months notice of such a change is given and regulations of this nature are usually promulgated in or about April or October. Mr Flood thought that there should be a publicity campaign to alert people of the impending change and to encourage potential claimants to make claims sooner rather than later. At some stage in early 1997, Mr Flood gave Mr Clark some paperwork in relation to the 1991 campaign. This related to "good cause" claims, industrial accidents and about seventy five prescribed diseases. Most responses to the 1991 campaign related to industrial accidents although Mr Flood was surprised at the number of VWF claims. [11] The 1997 campaign barely got off the ground as the change was made by statutory instrument in April 1997 with immediate effect (see Social Security (Miscellaneous Amendments) (No. 2) Regulations 1997 S.I. No. 793). By 1997, Mr Clark had become a shop steward for UNISON.Mr Clark's Involvement in Industrial Injury Disablement Benefit Appeals
[12] In about February 1997, Mr Flood asked Mr Clark to become involved in such claims. Many claimants would be from shipyards and he knew that Mr Clark had worked in a shipyard. Mr Clark was not responsible for initiating the claims although he did deal with a number of claimants as they "came through the door". Claimants suffered from a variety of injuries including bent elbow, knee problems, carpal tunnel syndrome and vibration white finger. Generally, he did not handle paperwork until a claim had been refused and was the subject of an appeal. If a claim were made in February, refused and appealed, Mr Clark would generally receive papers at some point in about May. [13] Claims for Industrial Injury Benefit were submitted to the local office of the Department of Social Security ("DSS"). The DSS had to be convinced that the claimant worked in an occupation for which the relevant disease was prescribed by the regulations. For example Vibration White Finger is referred to as Prescribed Disease No. A11. Once the DSS were so satisfied, the next stage was a medical assessment to decide whether the claimant had the disease and if so, the date of onset. [14] On 6/4/97 the above Social Security Regulations came into force. Their effect was inter alia to repeal the backdating of successful claims under the "good cause" provisions. The repeal in April 1997 of the "good cause" provision surprised Mr Clark and his colleagues. The result was that there could be no coupon campaign as there had been in 1991.Actual Awareness
[15] By about June 1997 a number of individuals who had submitted claims in about February through the Welfare Rights Unit had been refused Benefit. As part of his job Mr Clark prepared a number of cases for appeal. As part of that preparation process he had to read various medical reports and medical texts relating to the appeals. Some of these appeals related to VWF. He eventually realised that the problems he had with his hands were similar to the claimants seeking Industrial Injury Disablement Benefit for VWF. He accordingly decided to make a claim on his own behalf, which he did on or about 23/6/97 (7/1 page 34 of process). The claim was processed. Mr Clark was medically examined on behalf of the DSS on 15/12/97. The diagnosis was "VWF PDA11" (see 7/1 page 10 of process) and was said to be due to Mr Clark's employment as a plater. The date of onset was stated to be 1/1/80 (ibid). The diagnosis was intimated in writing to Mr Clark by letter dated 24/12/97 (6/12 of process). The letter informed Mr Clark that he had been assessed as 15% disabled for life from 1/4/85. VWF became a prescribed disease with effect from 1/4/85. The letter explained that the Industrial Injuries Disablement Benefit would not be backdated to 1/4/85 because the claim was not made within the time limit for claiming which was three months. He was entitled to Benefit from 26/3/97 which was three months prior to the date of receipt of his claim. Backdating could until the April 1997 amending Regulations, be extended if good cause is shown, which is usually ignorance of the condition or its relationship with employment. The 1997 Regulations eliminated backdating beyond the three month period. Mr Clark's claim was thus affected by the 1997 Regulations. Had he submitted a claim before the 1997 Regulations came into force his backdating entitlement would have amounted to something in the order of £10,000. Mr Clark did not make a timeous claim ( i.e. one entitling a successful claim to be backdated to 1/4/85) because he was not aware until about June 1997 that his problems with his hands, described above, were attributable to his employment with the defenders. Had he been so aware, he would have made a claim prior to April 1997. Had he done so, he would have been entitled to Industrial Disablement Benefit backdated to 1/4/85. He remarked to his wife that if he had claimed earlier he would have received a much larger award. [16] Of the claims passing through the Welfare Rights Office where Mr Clark was employed relatively few related to Industrial Injury Benefit until 1998. In 1995 there were only about a dozen such claims; in the latter part of 1997 there were about 40 such claims; in 1998 there were about 100.Further Consultation with GP
[17] In 1998 Mr Clark began to suffer from paraesthesia in the upper left shoulder and neck. This too can cause tingling down the arm (see 6/6 of process page 2). He was concerned about his heart. He consulted his GP In June 1998, who diagnosed cervical spondylosis {see GP records, which were for unknown reasons, incomplete, (6/13 of process)} and told him there was nothing wrong with his heart. No mention was made of rheumatoid arthritis or vibration white finger. An X-ray was also taken during June 1998.Mr Clark's Claim for Compensation
[18] Although it is not clear what precisely caused him to do so, Mr Clark contacted his Union UNISON in 1999. He was sent Union legal assistance forms to complete which he did on or about 23/11/99 (6/1 of process). In the UNISON form (6/1) he stated under the heading "Details of Your Claim" inter alia the following:- "I claimed Disablement Benefit in 1997 when I learned that I had symptoms of this disease. My GP had previously diagnosed Cervical Spondylosis and had attributed my digital paraesthesia to this". He subsequently received a letter from Messrs Thompsons, solicitors, Edinburgh dated 13/12/99, sent out by Mr Stevenson's personal assistant (6/2 of process), informing him that they had been instructed by UNISON to assist him in a possible Vibration White Finger claim. Two questionnaires were enclosed for completion and return. Mr Clark returned the questionnaires duly completed. By letter to Mr Clark dated 22/12/99 (6/3 of process), Mr Stevenson indicated concern about time bar and asked further questions about Mr Clark's state of knowledge. By letter in reply dated 29/12/99 (6/4 of process), he stated inter alia that (i) he was asked by his line manager ( Mr Flood) in around March 1997 to accept responsibility for Industrial Injury Benefit claims and appeals; Mr Clark was asked because it was anticipated that the bulk of such claims would come from shipbuilding and engineering workers and he was the only Welfare Rights Officer in the "team" with such a background. There were, in spite of the lack of publicity, numerous claims; (ii) in the course of assisting clients and studying relevant medical texts, he eventually realised that he suffered similar symptoms. Until then he believed that his fingers were simply sensitive to the cold. [19] Mr Stevenson replied by letter dated 7/1/00 (6/5 of process) that he was satisfied that time bar was likely to run from June 1997. By letter dated 2/3/00 Mr Stevenson requested Mr Durie an experienced vascular surgeon, to examine Mr Clark, which he did, on 17/4/00. Mr Drury produced a report dated 27/4/00, which he sent to Mr Stevenson. That report confirmed that Mr Clark was suffering from VWF and that the VWF was attributable to Mr Clark's employment with the defenders. Mr Drury concluded that Mr Clark had (and has) Hand Arm Vibration Syndrome which is attributable to his exposure to significant amounts of vibration over the years while using various tools in the course of his employment with the defenders. [20] Mr Drury normally examines patients within about four weeks of receiving instructions to do so. [21] The summons in the present action, drafted by Mr Stevenson, was signeted on 29 May 2000 and served on 30 May 2000. This was because Mr Stevenson thought it prudent, in light of the terms of Mr Clark's letter dated 29/12/97, to raise proceedings before the end of May 2000.Evidence in Mr Rennie's Action
[22] In January 2002, Mr Clark gave evidence in the proof in Mr Rennie's action at Hamilton Sheriff Court. 7/2 of process is an accurate transcript of part of the evidence of Mr Rennie and Mr Clark. Mr Rennie gave evidence that he submitted a claim for Industrial Injury Benefit; that the relevant claim form was completed partly by him and partly by Mr Clark on his behalf (see page 17 of the Transcript). The Transcript records the terms of part of the completed form as follows:-"2 About Your Job and Disease ... 'In what way has your disease affected you?' 'Blanching of all fingers and thumbs bilaterally throughout year. Sore and pins and needles when heated following blanching. Poor grip and numbness' ......"
"But what you are explaining in that document [this is a reference to the Mr Rennie's claim form for Industrial Injury Benefit] - you don't need to look at it particularly, is on his [i.e. Mr Rennie's] behalf that you are making a claim about Vibration White Finger; using vibrating tools that has caused this whilst working in Scott Lithgow. That has been presented. I take it you would discuss with Mr Rennie what it was you were trying to do and claim for? Indeed. You would have to have a chat with him to find out what he was doing in Scott Lithgow?- As I indicated earlier, I simply wrote the thing down in the course of an interview."
Submissions
[24] Miss Guinnane invited me to repel the defender's first and second pleas-in-law (relevancy and time bar). [25] For the purposes of section 17(2)(b) of the Prescription & Limitation (Scotland) Act 1973 Mr Clark became aware the he was suffering from Vibration White Finger in December 1997. However, the issue related to his constructive awareness. She recited Mr Clark's work history, which is largely reflected in my findings of fact. Mr Clark submitted a claim for Industrial Injury Disablement Benefit on or about 23/6/97 (7/1 of process page 34). Given the evidence about his visits to his GP, there was no reason to return to him. There was no reason to mention his hands when visiting his GP in 1998. At that stage therefore Mr Clark was justifiably ignorant of the fact that the problems with his hands were attributable to his employment with the defenders. If Mr Clark had gone to Thompsons in June 1997 there would have been a medical examination within eight weeks. There was nothing in March 1997 which put him on notice to consult solicitors. She referred me to Agnew v Scott Lithgow Ltd 2003 S.C. 448 and submitted that the logic of that case suggested that Mr Clark should have been put on inquiry by about May 1997. [26] After the conclusion of her address, I observed that Miss Guinnane had made no submissions under section 19A of the 1973 Act. Miss Guinnane informed me that she was departing from her third plea in law (section 19A). I was surprised at this and observed that I thought she should make such a submission. Miss Guinnane then sought and obtained a short adjournment. On resuming, she indicated her intention to make such a submission. In the event, she made only a formal submission. [27] Mrs Stacey, at the outset of her submissions, stated that she had been informed on the previous day by Miss Guinnane that no section 19A submission would be made (Miss Guinnane subsequently confirmed this). Although Mrs Stacey indicated that she was not prejudiced in relation to the evidence, she said that she was prejudiced in relation to the presentation of her submissions. She also submitted, correctly on reflection, that I was wrong to indicate after Miss Guinnane had closed her submissions, or indeed at all, that I thought she should present argument in support of her section 19A case. Mrs Stacey referred to LA v Johnstone 1983 S.L.T. 290 at page 292 and Gibson v SRC 1992 S.C.L.R. 902, 1993 S.L.T. 1243. [28] In view of what was in effect an undertaking not to proceed with a branch of the pursuer's case, and the fact that Miss Guinnane only made the section 19A submission following upon my observation, I thereupon indicated to parties that, in the circumstances, it was no longer open to the court to sustain her third plea-in-law and I have therefore repelled it. In case I am wrong to do so, I should indicate briefly my views in relation to section 19A. Miss Guinnane made only a formal submission and Mrs Stacey made no submission at all, in the light of my ruling. All that I can say at this stage is that I recollect nothing in the evidence which would have inclined me to hold that the defender would suffer any relevant prejudice were I to exercise my discretion under section 19A in favour of the pursuer. [29] Mrs Stacey then turned to the merits and invited me to sustain the defender's second plea-in-law (time bar) and to dismiss the action. She submitted that Miss Guinnane's submissions were misconceived. The issue was the pursuer's constructive awareness of the three factual matters specified in section 17(2)(b) of the 1973 Act as amended. She accepted that if the pursuer raised the action within three years after the date on which the Court finds it would have been reasonably practicable to become aware of one of those matters, then the action is not time barred. There must be symptoms sufficiently serious to warrant litigation; but this was qualified by the assumption that liability would be admitted in any such litigation. Negligence on the part of the defender was not one of those matters (section 22(3) of the 1973 Act). It is sufficient that the pursuer was merely aware or ought reasonably to have been aware that his condition was capable of being attributable to an act or omission of the defender. "Attributable" meant capable of being attributed. Moreover "aware" was less definite than "know". While caution was required before applying English authorities on the equivalent but by no means identical statutory limitation provisions some assistance could be derived from Spargo v North Essex District Health Authority 1997 P.I.Q.R. 235 where "attributable" was held to mean a real possibility. She also referred to Carnegie v LA 2001 S.C. 802 at 812 paras 14 & 15 for the view that the statutory test was partly subjective and partly objection. She relied on the fact that the pursuer was an educated man and better informed than many others. It was not necessary for there to be a formal diagnosis. She relied on the evidence that the pursuer had assisted Rennie in November 1996. Rennie described his symptom and the pursuer, who had similar symptoms, wrote down these details on the relevant form. She drew attention to the fact that the blood test in 1981 was negative. This was a man who was concerned and annoyed at the fact that his problems with his hands were affecting his bagpipe playing which had been a hobby of his since he was a boy. It would have been reasonable for the pursuer to find out that his symptoms were connected with his employment with the defenders, particularly as his hands had caused him difficulty at University and at work. She also submitted that the pursuer should not be regarded as credible or reliable unless his evidence had independent support. He was using the fact that he failed to make a claim for Industrial Injury Disablement Benefit until June 1997 to justify his position, whereas the true position was that he thought he would not need to make a claim until October 1997 so he simply refrained from doing so until it was too late to secure backdating (to 1985). She invited me to reject the pursuer's evidence that he was ignorant of the connection between the condition of his hands and his employment with the defenders in April 1997. She pointed to the fact that some parts of the terms of his UNISON form (6/1 of process) under the heading Details of Your Claim were incorrect; the timing was wrong. She also founded upon the averment at page 13E of the Closed Record and its inconsistency with the chapter of evidence relating to the pursuer assisting Rennie. The pursuer had enough knowledge to make enquiries and take advice by November 1996. It was not necessary to obtain formal medical opinion. The concession she made on this point as counsel in Agnew was wrong. While each case was fact specific, some assistance could be derived from Mackay v Lothian Health Board 2002 S.L.T. 581.Discussion of the Evidence
[30] My conclusion, on the evidence is that by some point in June 1997 (I cannot be more precise), Mr Clark became aware that he had VWF, that this condition was sufficiently serious to justify 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, and that the injuries were attributable to acts or omissions by the defenders. [31] My findings of fact constitute my assessment of the relevant evidence. I found Mr Clark to be an intelligent man, articulate and quick witted. He gave his evidence with care and precision. I was impressed by his demeanour, particularly the robust manner in which he responded to Mrs Stacey's cross examination. I found him to be generally reliable and credible. Mr Clark's view, expressed in cross examination, was that he became aware in December 1997 that he suffered from VWF through working with hand held tools in his employment with the defenders. He based this view on the fact that there was no formal medical diagnosis until December 1997. He also expressed such a view in his letter dated 29/12/99 to Mr Stevenson (6/4 of process page) by stating that he had identified his symptoms by June 1997 and was aware that he had VWF in December 1997 when he was so diagnosed. Mrs Stacey sought to make much of the precise terms of this letter analysing it as if it were a contract or even a conveyancing deed. She founded in particular upon the phrase "Until then" on page 2 arguing that it showed that Mr Clark had actual knowledge by April 1997 which would render the action time-barred. I reject that approach. In my view, the terms of the letter and the phrase in question should not be construed so narrowly. It would be unfair to do so. In any event, the analysis is unsound. It is plain from the letter read as a whole, as one reads a contract, that Mr Clark is explaining that it was not until June 1997 that he thought he might be suffering from VWF. His conclusion that he did not actually know that he had VWF is based upon the need for some form of medical diagnosis. That is a reasonable stance given the concession in Agnew v Scott Lithgow Ltd (No 2) 2003 S.C. 448 at 452A. [32] Had Mr Clark been aware in November 1996 that he too had or even possibly had a good claim for Industrial Injury Disablement Benefit, it is likely that he would have made such a claim. At that stage and up to April these claims could be backdated to the onset of the injury but no earlier than 1 April 1985 when the VWF became a prescribed disease. Even after April 1997 the claims were backdated by three months. There is no reason to suppose that Mr Clark would deliberately refrain from making a claim at the earliest possible moment i.e. when it dawned on him that his symptoms were attributable to VWF, caused by working with vibrating tools in the course of his employment with the defenders. Why would he give up a substantial backdated claim; why would he delay making a claim as soon as he became aware of the connection between his employment and the problems with his hands? The answer is that he is unlikely to have intentionally delayed making a claim if he were aware of the connection. It makes no sense for him to have knowingly delayed making a claim particularly after early April from which point claims could only be backdated three months. The longer he delayed after April 1997 the more benefit he was losing. The true explanation is the one he gave in evidence, namely that he did not realise that he had a claim for Industrial Injuries Disablement Benefit until June 1997. Likewise, he did not realise he had a possible claim against the defenders until at least about June 1997. According to Mrs Clark, he told her that if he had claimed earlier he could have received a larger rewarded. She said in evidence that she asked him why he did not do so and that he replied that he did not know he had a claim. I should indicate that I found Mrs Clark to be credible but she was vague and generally unreliable on dates. However, it seems to me that this chapter of her evidence is consistent with Mr Clark's evidence and the conclusion I reach on the state of his "knowledge" or more accurately the state of his awareness. [33] Mrs Stacey was correct in her submission about the inaccuracy of part of the UNISON form (6/1 of process). However, I do not consider this to be material. It is very easy to make mistakes about the dates of events in the past unless one keeps a careful record or diary. There was no evidence that Mr Clark did so. In any event, by the time he submitted that form he had long since acquired actual knowledge that his condition was attributable to his employment with the defenders. [34] Mr Flood has been a Welfare Rights Development Officer with Inverclyde Council since 1993. Between 1988 and 1993 he was a Welfare Rights Officer with the council. He spoke to the set up at Inverclyde and to the fact that specialisation within the Welfare Rights Office began in about 1998 or thereby. Mr Flood was responsible for allocation of work within the office. He gave general evidence of the number and type of claims processed by the Council's Welfare Rights Office. He spoke to the "good cause" provisions, their impending repeal in 1997 and the proposed campaign. Neither counsel addressed me on the Social Security Regulations. I have therefore assumed that both were content with the explanations given in evidence as to their operation and effect. [35] Mr Stevenson spoke to the correspondence passing between him and Mr Clark and to the general procedures in his office for handling claims with emphasis on claims that were about to become time barred. It goes without saying that I found Mr Stevenson, who is one of the most experienced solicitors in Scotland in the field of personal injuries, to be credible and reliable. As one might expect, he gave his evidence in a clear, articulate and concise manner. He stated in evidence that, in his experience, a DSS diagnosis could be incorrect and that it was therefore his firm's practice to obtain a medical report before raising an action. In cross examination, he acknowledged that he was unaware that Mr Clark had assisted Mr Rennie in the completion of the form mentioned above. In this connection, much was made in cross examination of both Mr Clark and Mr Stevenson of the averment in article 8 of the Condescendence page 13 E ("He had never heard of vibration white finger nor had he any reason to suspect that the problem of his hands had anything to do with his employment with the defenders"). However, the averment is somewhat ambiguous as to the period or date to which it is referring. In these circumstances, I am not prepared to draw any unfavourable inference in relation to Mr Clark's reliability or credibility arising out of any discrepancy between the averment and the evidence, and in particular, the evidence relating to Mr Rennie. [36] Mr Drury is an experienced vascular surgeon; he spoke to his examination of Mr Clark in April 2000 and his report thereon (6/6 of process). Not surprisingly, his credibility and reliability were not challenged although there are one or two background factual inaccuracies in his report. He was not cross-examined. In relation to Mr Clark's visit to his GP in 1981, he observed that it would not be unusual for someone like Mr Clark not to visit his GP again in relation to his hands as he had "an answer". No one suggested that the GP or GPs were negligent in their dealings with Mr Clark. [37] Paragraph five is based upon Mr Drury's unchallenged evidence. For what it is worth, these findings are consistent with the evidence Mr Drury appears to have given in Agnew v Scott Lithgow Ltd (No 2) 2003 S.C. 448 at para 17 (see below at para 49).Decision
[38] I have already concluded on the evidence that, as a matter of fact, Mr Clark did not actually become aware that his injuries were (to adopt and adapt Lord Johnston's phraseology in Carnegie v LA 2001 S.C. 802 at 812B) sufficiently serious to warrant him pursuing an action of damages against his employers until some point in June 1997. This action, having been raised in May 2000 was therefore commenced within a period of three years after, even the first day of June 1997. However, that conclusion does not win the day for the pursuer. He must also establish that the action has been commenced within a period of three years after the date (again, adopting Lord Johnston's phraseology) at which he should have considered that the condition of his hands of which he was aware were sufficiently serious to warrant him bringing an action of damages against his employers. The statutory provisions (section 17(2)(b) of the 1973) Act require the court to consider whether it would have been reasonably practicable for the pursuer in all the circumstances to become aware of three specific facts. The structure of the provisions is such that if the action is raised within three years after the date on which the court concludes it would have been reasonably practicable for the pursuer to become aware of any one of the specified facts, then the action is not time barred. [39] The authorities establish that the court's assessment is both subjective and objective (Carnegie para 15 and 16). The subjective element must be derived from the statutory phrase "in all the circumstances" which must mean all the facts relevant to the case in hand. The statutory phrase "reasonably practicable for him" enables the court to assess matters objectively, i.e. in its opinion, what was reasonably practicable in the light of those relevant facts. The words "for him" provide the link between the subjective and objective elements. [40] The first statutory fact to be considered is that "the 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" (section 17(2)(b)(i)). Putting to one side, but bearing in mind the statutory assumption, it seems plain from the facts which I have found that Mr Clark's problems with his hands were sufficiently serious to justify his bringing an action of damages. He has been aware of the difficulties he has had for many years. It would have been reasonably practicable for him to have become aware of this statutory fact many years ago. [41] The second statutory fact is that "the injuries were attributable in whole or in part to an act or omission"(section 17(2)(b)(ii)). The third statutory fact is 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 17(2)(b) (iii)). For present purposes, these two statutory facts may be considered together. [42] In order to form the basis of somewhat extensive common law duties of care, elaborate averments are made on behalf of Mr Clark in article four of the Condescendence to show that VWF was well known by the time he came to be employed by the defenders (1972). Although the historical development of Raynaud's Phenomenon was touched on by Mr Drury in his evidence, the averments were largely unproved, no doubt because they relate primarily to questions of liability rather than time bar. However, such evidence as there was suggested that the ability of GPs generally in the nineties to identify VWF and relate it to a patient's employment was questionable. [43] The averments of breach of duty made on behalf of Mr Clark, in summary assert a duty (1) to have him regularly medically examined with a view to detecting Raynaud's Phenomenon, (2) to instruct the best methods of handling tools to minimise vibration, (3) to inform employees of the signs and symptoms and consequences of Raynaud's Phenomenon and the need to seek medical advice, (4) to provide equipment which vibrated less, (5) to provide, instruct and enforce the use of padded gloves, (6) to make provision for rest periods, and (6) to instruct the rotation of tasks and the use of different machinery. In spite of these elaborate duties, it seems to me that it would be sufficient for the defenders, if it were to be concluded that it was reasonably practicable for Mr Clark to have become aware prior to June 1997 that the condition of his hands was attributable to the use by him of vibrating hand held tools in the course of his employment with the defenders. Constructive or actual awareness of negligence on the part of the defenders is not relevant (1973 Act section 22(3)). [44] The meaning of "attributable" was discussed in the course of submissions. In my opinion it means more than a real possibility. Thus, in the well known case of Davie v Magistrates of Edinburgh 1953 S.C. 34, the court considered whether the pursuer had proved that blasting operations associated with the construction of a sewer tunnel caused damage to his house; this issue turned largely upon expert evidence; the decision of the First Division is best known for Lord President Cooper's dictum on the function and duties of expert witnesses (at page 40). In the opening paragraph of his opinion Lord President states that the "the defender's liability depends wholly upon the answer to the question whether it has been sufficiently proved that the damage to the pursuer's house was attributable to the blasting conducted by the defenders' contractors...". No doubt, further examples of the use of "attributable" in similar vein could be found. It is frequently used interchangeably in legal parlance with "caused". In a non legal context, the word is generally interchangeable with "ascribable". Here, "attributable" seems to mean directly connected with or the result of something done or omitted by the defenders without necessarily having knowledge of all the facts and circumstances required to establish "legal" causation although the word has the flavour of legal causation. I find support for this view in the opinion of Lord Coulsfied in Nicol v British Steel Corporation (General Steels) Ltd 1992 S.L.T. 141 at 144C-F, and in the opinion of Lord Philip in Stephen v NOSWA 1999 S.L.T. 342 at 345. I did not find the case of Spargo to be of assistance. The case was concerned with a differently structured Limitation Act and with actual rather than constructive knowledge (see pages 244 and 245). The acts and omissions in the present case, at their most basic, are the instruction to use hand held tools without any safeguards or consideration of the consequences. I have already held that Mr Clark did not actually make the connection between his injuries and his employment until June 1997. The issue is therefore whether it would have been reasonably practicable for him in all the circumstances to become so aware. [45] It was not suggested that the advice the pursuer received over the years from his GP was so obviously unsound that Mr Clark should have appreciated this and sought further advice. This is significant because Mr Clark was content to assume that the state and condition of his hands was just one of these things based upon the ex facie reasonably expressed opinion of his GP. Why should he review that advice or insist on a second opinion? Some individuals might do so, but it seems to me to be quite reasonable to refrain from doing so. I therefore consider that Mr Clark was acting reasonably by not doing so. [46] It would certainly have been possible and indeed practicable for him to become so aware at an earlier date. He could have consulted his GP again and told him he was not satisfied with the diagnosis in 1981. He could have consulted a solicitor or a Union official. He could have arranged to have been medically examined privately rather than through the National Health Service. He could have reviewed the state of his hands annually with his GP who eventually might have made the correct diagnosis or referred him to a consultant who would have done so. All these matters are practicable. However in my opinion, none of these lines of enquiry is reasonably practicable in all the circumstances. Mr Clark had no reason to question his GP's views in 1981. It was not suggested that he should have regarded his GP's views as manifestly unconvincing. His hands had not become significantly worse. The matter was not raised by his GP in 1998. The connection with his employers did not dawn on him in 1996 when interviewing Mr Rennie. There was no reason for it do so. Mr Clark had lived with the problems with his hands for many years after consulting his GP. His working life had changed significantly since his days with the defenders. He had been to University, obtained a degree and had a demanding office job. His days of working on the tools had long since passed. His problems with his hands did not impede his ability to perform his duties as a welfare rights officer. [47] I do not consider that Mr Clark should suffer because he worked in an industrial claims environment or because he is more astute than the ordinary reasonable man. Whatever the evidence may have been in other cases, there is no evidence in this case that it was widely known in the mid-nineties that VWF was a disease which could be acquired through working in the shipyards or that problems of the type suffered by Mr Clark should be attributed to working with hand held vibrating machinery. If the feckless and lazy cannot rely on their personal attributes to show that it was not reasonably practicable to become aware that injuries were attributable to a particular wrongdoer by a particular date, it must also be the case that a pursuer who is smarter than the average claimant should not suffer because of his higher intelligence. This must be the consequences of the objective approach to constructive awareness. The more intelligent may acquire actual knowledge at an earlier stage, but I have already considered when Mr Clark actually became aware that his injuries were attributable to acts or omissions of the defenders. [48] The subjective aspect is to consider all the actual circumstances known to the pursuer, and then to apply an objective approach to determine what a reasonable man would have done in those circumstances. In my view, the reasonable man, in the light of the facts which I have found, would not have taken any steps in November 1996 or earlier, or in 1997 until about June when a reasonable person in the position of the Mr Clark would have realised, as he did, that there was a connection between his symptoms and his use of hand held tools while in the employment of the defenders. [49] Are the conclusions I have reached contrary to the authorities cited to me? Agnew was a vibration white finger time bar case. Exposure to vibration ceased in September 1995; the action was raised in June 1999. The pursuer was awarded Industrial Injury Disablement Benefit on 20/2/98 which was taken as the date of actual awareness (para 14). Mr Clark gave evidence in that case as did Mr Drury, but that is of no moment. The facts are distinguishable because the pursuer did not consult his GP while still working for the defenders (para 3); he became aware of his disability relatively soon after ceasing to work with hand held vibrating machinery (paras 4 and 7). The basis upon which the court decided the case against the pursuer appears to have been that he should have made "enquiry about his condition once he heard talk from his former colleagues about making claims arising out of having contracted VWF" and consulted a solicitor very soon thereafter (para 22). That conclusion on the facts in Agnew cannot be applied to the materially different facts in the present case. Agnew is therefore no bar to Mr Clark in this case. [50] In Carnegie, the leading opinion on the cross appeal which concerned time bar was given by Lord Johnston; the facts there were unusual. I have already attempted to apply the partly subjective and partly objective approach set forth at paragraph 15 on page 812. Mackay was decided after a preliminary proof, the report incorrectly referring to a Procedure Roll (2002 S.L.T. 581G). The case confirmed the view previously expressed that the issue was not whether a pursuer had a reasonable excuse for not raising his action sooner but whether it would have been reasonably practicable to become aware of the necessary statutory facts set forth in section 17(2)(b) of the 1973 Act. I agree. It was further observed that it would be reasonably practicable for a pursuer to become aware of necessary information if he would be able to do so without excessive expenditure of time effort or money (at 584D-E). I reserve my opinion on whether that is a correct formulation. In any event, what is excessive expenditure of time effort or money will vary from case to case and these matters were not explored in detail in the present proof. [51] The overall result is that there is, in reality, no date of "constructive awareness" in this case, which I note is a result envisaged by Lord Hamilton in his Opinion following the Procedure Roll Discussion in the Agnew case (2001 S.L.T. 876 para 8). [52] In the foregoing circumstances, I am satisfied that it was not reasonably practicable for the pursuer, in all the circumstances, to become aware before June 1997 that the injuries for which he seeks damages were attributable in whole or in part to acts or omissions on the part of the defenders. [53] Summary1 The pursuer became aware that the injuries for which he seeks damages in this action were attributable to acts or omissions on the part of the defenders in June 1997.
2 It would not have been reasonably practicable for the pursuer, in all the circumstances, to have become aware, before June 1997, that the injuries for which he seeks damages in this action were attributable to acts or omissions on the part of the defender.
3 The present action was commenced on 29th May 2000. It was therefore commenced within three years after the date on which the pursuer became or on which it would have been reasonably practicable for him, in all the circumstances to become, aware of the facts specified in section 17(2)(b)(ii) and (iii) of the Prescription & Limitation (Scotland) Act 1973 (as amended).
4 The action is not time barred.
Disposal
[54] I shall repel the defender's second plea-in-law (time bar) and the pursuer's third plea-in-law (section 19A), and reserve, meantime, all questions of expenses. Parties will no doubt enrol for further procedure as appropriate.
