|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH 169
|
|
PD335/05 & PD27/06
|
OPINION OF LORD
BRACADALE
in the cause
BARRY TAMBURRINI
Pursuer;
against
ADVOCATE GENERAL
FOR SCOTLAND
Defender:
ญญญญญญญญญญญญญญญญญ________________
|
Pursuer:
Pilkington;
Lefevre Litigation
Defender: K Campbell; Morton Fraser
1 November 2006
[1] Between June 1995 and
December 2003 the pursuer was a serving soldier. The defender is sued
as representing the Ministry of Defence.
The pursuer has raised two actions against the defender. In the first he
seeks damages in respect of an injury to his hand sustained in an accident on 3 March 2002 when he was a Tank
Commander with the Black Watch Regiment in Germany
("the hand injury action"). In the
second action he seeks damages in respect of hearing
loss which the pursuer avers resulted from his exposure to excessive noise
levels as a result of live firing exercises and training with grenades and
machine guns ("the deafness action").
The hand injury action was due to proceed to proof in January 2006
but the proof was discharged and the two actions were
conjoined. The proof in the conjoined
actions has been set down for 30 January
2007. I heard a preliminary
proof on the question of time-bar in relation to the deafness action only.
[2] A
substantial amount of the relevant evidence was agreed
by joint minute. It was
agreed that the triennium period in respect of the deafness action
expired on 18 October 2005
in terms of section 17 of the Prescription and Limitation (Scotland)
Act 1973. I heard evidence from one
witness, Pamela Gray, who was the senior partner of Lefevre Litigation, the
solicitors acting on behalf of the pursuer.
From the terms of the joint minute and the evidence of Mrs Gray I am satisfied that the history of the deafness action
was as follows. In the autumn of 2002 the pursuer was diagnosed with hearing impairment and
on 18 October 2002 he
was informed that he was suffering from noise-induced deafness. On 6 September
2004 the pursuer met Alistair Murray,
then the Claims Litigation Manager of Quantum Claims, Aberdeen,
to discuss two possible claims against the Ministry of Defence, namely, the
deafness claim and the hand injury claim.
On 9 September 2004 Mr Murray wrote to the Ministry of
Defence intimating the deafness claim and the hand injury claim
(production 32/2). There was
further communication between Mr Murray and the Ministry of Defence, including
a letter dated 30 November 2004
in which Mr Murray complained about the lack of action on the part of War
Pensions Enquiries, Glasgow
(production 32/5). On 18 February 2005
Mr Murray further wrote to the defender intimating a claim in respect of
occupational noise-induced deafness on behalf of the pursuer. In March 2005 the defender's insurers,
Royal Sun Alliance wrote to Quantum Claims advising them of
their interest and there followed correspondence between Mr Murray and the
Royal Sun Alliance.
[3] Thereafter,
the pursuer's legal agents Lefevre Litigation raised a summons claiming damages
as a result of the noise-induced deafness. The summons was signetted on 5 September 2005 and served by
Messengers-at-Arms on 8 September
2005 (production 32/10 is the service copy summons and
execution of service). On
9 September 2005 Morton Fraser, Solicitors, advised Lefevre Litigation
that they were instructed on behalf of the Ministry of Defence in respect of
the pursuer's noise-induced deafness claim.
On 26 September 2005 Morton Fraser wrote to Lefevre Litigation
advising them of their intention to have the pursuer medically examined by an
Ear, Nose and Throat surgeon. In the
same letter they indicated that they awaited
confirmation from the pursuer's agents of the date on which the summons would
be lodged for calling. After further
correspondence, on 5 October 2005
Morton Fraser wrote to Lefevre Litigation intimating copy defences and
indicating that these would be lodged in process when
the summons called. In terms of Rule of
Court 43.3(2) relating to personal injury actions the summons required to
be returned to court for calling no later than 6 December 2005.
In the event, Lefevre Litigation failed to return the summons for
calling by 6 December 2005
with the result that the instance fell.
[4] In her evidence Mrs Gray
explained that at that time Lefevre Litigation had their head office in Aberdeen
and an Edinburgh office, which had
opened in January 2004. In the Aberdeen
office there were two partners in addition to
Mrs Gray herself. The Edinburgh office was staffed by an associate solicitor, Valerie Roberts,
together with a secretary, an office junior and a receptionist. In December 2005
Valerie Roberts took ill. On 1 December 2005
she telephoned Mrs Gray to say that she was suffering from stress and was
going to see her general practitioner.
On 2 December 2005 she submitted to Mrs Gray a
certificate from her general practitioner signing her off for four weeks with
stress. 2 December 2005 was a Friday and on Monday
5 December Mrs Gray and a fellow partner, Mr Sinclair, travelled
to Edinburgh. They checked about 20 to 30 files
in filing cabinets and noted that there were many files with tapes attached
waiting for the secretary to deal with. It
was clear that Valerie Roberts had spent time over the weekend carrying
out a great deal of dictation.
[5] Mrs Gray
explained the operation of the system in the Edinburgh
office for returning summonses. Once a
summons had been served it was placed in a basket
specifically reserved for summonses to be returned for calling and a post-it
note was attached to it bearing the last date on which the summons could be
returned to the General Department of the Court of Session for calling.
[6] Throughout
the month of December 2005 one or other of the Aberdeen
partners covered the Edinburgh
office on a daily basis. During the
month of December Mrs Gray was aware that the
hand injury claim was set down for proof in January 2006. The office closed over Christmas and New Year
and on the first working day after the New Year, 5 January 2006, Mrs Gray examined the file in
the pursuer's hand injury action. In it she discovered the principal summons for the deafness
action. There was a separate file in
existence for that action. The summons
in the deafness action had not been placed in the
basket for returned summonses but had somehow found its way into the file for
the hand injury action. Mrs Gray
was unable to explain how that had come about.
[7] In the light of that discovery a
second summons in identical terms to the first noise-induced deafness action
was signetted on 6 January 2006
and served on the defender by Messenger-at-Arms on 11 January 2006.
[8] Mr Pilkington
on behalf of the pursuer accepted that the deafness action was time-barred in
terms of section 17(2) of the Prescription and Limitation (Scotland)
Act 1973. He moved me to exercise
the discretion under section 19(A) to allow the action to proceed despite
being time-barred.
[9] Mr Pilkington
recognised that the pursuer could have a case against his solicitors and that
this was a factor which weighed against the exercise
of the discretion in favour of the pursuer.
However, he submitted that there were practical difficulties in
assessing quantum in the case against the solicitors as opposed to quantifying
the claim against the defender. In
addition, he pointed out that the hand injury action would proceed in any
event. It would be desirable for both
actions to be heard at the same time. He explained that the defender's position was
that the pursuer was discharged from the army because
of his deafness while the pursuer's position was that the predominant cause of
discharge had been the hand injury. This
meant that if the hand injury action proceeded on its own, the deafness issue
would still be live in the context of the hand injury proof, and evidence in
relation to deafness would require to be led. There was also a possibility that the pursuer
might not succeed in the hand injury action, in which case he might require to pay expenses in that proof and still face a separate
proof against the agents for their failure with respect to the deafness
action. That would be harsh and would
expose him to the risk of incurring non recoverable
legal expenses. (See Hill v McAlpine, Lady Smith, unreported, 13 May 2004).
[10] Mr Pilkington submitted that the timescale was relatively
short. This was not a stale claim. The original summons had
been served five to six weeks before time-bar. The second action in identical terms was raised two and a half months after time-bar. The defender was well aware of the
claim. The defender had lodged the army
medical records of the pursuer and was arranging to have him examined by an
Ear, Nose and Throat surgeon. This had now been done.
Thus, work had already been carried out to
allow the defender to answer the action.
There was no prejudice to the defender.
[11] Mr Campbell on behalf of the defender submitted that there
was prejudice to the defender. First,
the defender lost the statutory right to the claim being time-barred. Second, there was real prejudice to the
defender because, while there would still require to be a proof between the
parties, the inclusion of the deafness action would render the proof more complex
and more expensive. The deafness action was based on the failure to have a safe system of hearing
protection, monitoring and assessment of risk.
While preliminary work had been done, further
investigation would be required both in relation to medical issues and to the
question of system. He estimated that
this would be likely to add one to one and a half days to the length of the
proof. As to any prejudice to the
pursuer, Mr Campbell submitted that the pursuer had an alternative remedy
in that he had a reasonable prospect of success in an action against his
solicitors.
[12] Section 19(A), so far as relevant for present purposes,
provides:
"(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 it equitable to do so, allow him to bring the action
notwithstanding that position."
The section provides for the
exercise of discretion, informed by equitable considerations, to allow a time
barred case to be brought. Each case must turn on its own circumstances.
[13] The starting point is to have regard to the conduct of the
pursuer and his explanation for failing to raise the action within the time
limit (Carson v Howard Dorris Ltd 1981 SLT 273). Both sides were agreed
that the pursuer himself was personally blameless. However, a pursuer is answerable for the acts
of his agents (Forsyth v A. F. Stoddart & Co 1985 SLT 51). As Mr Pilkington recognised, the fact
that the pursuer may be able to bring a case against his solicitors is a factor which weighs against my exercising the discretion
under section 19A. While it may be the case that it will generally be more
difficult to quantify a case against solicitors than against the original
defenders, no specific difficulties were advanced before me.
[14] I note that the period which elapsed between
the expiry of the triennium and the raising of the new summons was
short. I agree that this could not be said to be a stale case. Furthermore, the Ministry of Defence were
well aware of the allegations. They had
received the summons. They had prepared
defences. They had arranged to have the
pursuer examined by an Ear, Nose and Throat expert and they had lodged his army
medical records. It is clear that their
investigations were not hampered.
[15] The hand injury action is proceeding to proof, in any event, in
January 2007. It appears likely
that there will be some investigation in that proof of the evidence relating to
the pursuer's discharge from the Army.
This is likely to touch on the issue of his deafness. The actions have already
been conjoined. It seems to me to
be harsh to expect the pursuer to proceed to proof in the hand injury action,
taking the risk that he may fail in that action and then require to rely on his
action against the solicitors with respect to his deafness claim.
[16] It is true that in the event of the exercise of discretion
under section 19A the defender would lose the statutory right under
section 17 to a complete defence to the action. The limitation imposed by section 17
provides an important defence and gives defenders a mark beyond which they know
that they may be free from an action.
However, in any case in which the discretion under section 19A is exercised the defence is lost. I am not persuaded
in this case that there is significant practical prejudice to the
defender. Given the likelihood
that evidence in relation to the deafness issue would be led in the context of
the hand injury claim, then some investigation, and preparation, in relation to
the deafness issue would be required in any event. It is clear that the defender has already
carried out a significant amount of work.
In these circumstances, while I accept that some additional evidence
would require to be led in the event of both actions
proceeding to proof together, it does not seem to me that the hearing of the
conjoined proofs would significantly add to the length or complexity of the
proof.
[17] In these circumstances, taking the various
competing considerations into account, I am persuaded that I should
exercise the discretion under section 19A of the 1973 Act and allow
the pursuer to bring the action notwithstanding that it is time barred under
section 17. It
seems to me that the considerations, firstly, that there is to be, in early
course, a diet of proof between the parties on the hand injury action, and,
secondly, that there is a likelihood that some evidence in relation to the
issue of deafness will be included in that proof, when taken along with the
other considerations, do tend to tip the balance in favour of exercising the
discretion in favour of the pursuer.
