Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 2

 

PD1730/14

OPINION OF LORD TYRE

In the cause

ANDREW JAMES MITCHELL AND OTHERS

Pursuers;

against

ADVOCATE GENERAL FOR SCOTLAND AND ANOTHER

Defenders:

Pursuers:  Marshall (Sol Adv);  Thompsons

Defenders:  Balfour;  BLM

9 January 2015

Introduction
[1]        The pursuers are the relatives of the late Walter Alexander Mitchell (“the deceased”), who died, as a consequence of mesothelioma, on 24 June 2013.  They seek damages from the defenders under section 4(3) of the Damages (Scotland) Act 2011 in respect of the deceased’s death.  A motion by the pursuers to allow issues has been opposed by the defenders on the ground that jury trial is precluded by section 22(4) of the Prescription and Limitation (Scotland) Act 1973.  The point raised is short but important.

 

The factual background
[2]        According to the pursuers’ averments, the deceased was employed by the defenders and their predecessors for many years in the railway industry, during which time he worked with asbestos and inhaled asbestos dust.  His employment ceased in about 1982.  From about May 2010, he suffered from increasing chest pains and breathlessness.  He was diagnosed as suffering from mesothelioma in January 2012.  During his lifetime he made and settled a claim for damages against the defenders.  The pursuers’ action was commenced on or about 1 August 2014.

[3]        In the course of argument, the defenders founded upon a passage from the opinion of Lord Phillips of Worth Matravers in Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229 at paragraph 19, where current knowledge about mesothelioma is summarised.  Lord Phillips stated inter alia:

“…There will be a lengthy period between the development of the first malignant cell and the point at which the disease can be diagnosed.  At the time of Fairchild this was thought to be ten years, but is now understood to be at least five years.”

 

For the purposes of the present opinion, I proceed upon the basis that this statement is accurate.  It follows that injury caused by the deceased’s exposure to asbestos dust, consisting of the development of the first malignant cell, must have been sustained by January 2007 at the latest.

 

The Prescription and Limitation (Scotland) Act 1973
[4]        Section 17 of the Prescription and Limitation (Scotland) Act 1973 applies to an action for damages for personal injury brought by the person who sustained the injury.  In terms of section 17(2), the action must be commenced within a period of three years after:

(a)        the date on which the injury was sustained, or, where the defender’s act or omission was a continuing one, the date on which the act or omission ceased, whichever is the later; or

(b)        the date on which the pursuer became, or on which it would have been reasonably practicable for him to have become, aware of the three “statutory facts” set out in subsection 17(2)(b).

[5]        Section 18 of the 1973 Act applies where damages are claimed following the death of the person who sustained injury.  In terms of section 18(2), the action must be commenced within a period of three years after:

(a)        the date of the deceased’s death; or

(b)        the date on which the pursuer in the action became, or on which it would have been reasonably practicable for him to have become aware that the deceased’s injuries were attributable to an act or omission, and that the defender was a person to whose act or omission the injuries were attributable, or the employer of such a person.

However, section 18(4) excludes a claim under section 18 where an action for damages has not been brought within the period specified in section 17(2) by the injured person himself, who subsequently dies.

[6]        In the present case, the defenders do not contend that the pursuers’ claim is time‑barred.  The pursuers submit that the deceased was not aware, and could not reasonably have become aware, of the statutory facts prior to the diagnosis of mesothelioma in January 2012.  Approaching the matter on that basis, any action for damages that the deceased might himself have raised would not have commenced within three years after the date when injury was sustained, but would have been prevented from being time‑barred at the time of his death by section 17(2)(b).  Accordingly, section 18(4) does not bar the pursuers’ action, which was raised within the three‑year period after the date of the deceased’s death, ie within the period specified in section 18(2)(a).

[7]        The statutory provision which lies at the heart of the present dispute is section 22(4) which states:

“An action which would not be entertained but for the said subsection (2)(b) shall not be tried by jury.”

 

The reference to “the said subsection (2)(b)” appears to be to section 22(2).  Section 22 contains various interpretative and supplementary provisions.  It was substituted in its entirety by section 3 of the Prescription and Limitation (Scotland) Act 1984, and subsection (2) was further amended by section 12(4) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.  Section 22(2) now provides as follows (with the words added or substituted in 1985 in square brackets):

“Where the pursuer in an action to which section 17 [, 18 or 18A] of this Act applies is pursuing the action by virtue of the assignation of a right of action, the reference in subsection (2)(b) of the said section 17 or [of the said section 18 or, as the case may be, subsection (4) of the said section 18A] to the pursuer in the action shall be construed as a reference to the assignor of the right of action.”

 

The purpose of the 1985 amendments was to add references to section 18A (which concerns limitation in defamation actions).  Prior to this amendment, subsection (2) read as follows:

“Where the pursuer in an action to which section 17 or 18 of this Act applies is pursuing the action by virtue of the assignation of a right of action, the reference in subsection (2)(b) of the said section 17 or, as the case may be, 18 to the pursuer in the action shall be construed as a reference to the assignor of the right of action.”

 

There is also a reference to “the said subsection (2)(b)” in section 22(3), which provides that knowledge that any act or omission was or was not actionable as a matter of law is irrelevant.

Argument for the pursuers
[8]        On behalf of the pursuers it was submitted that section 22(4) did not apply to this case.  In the context of a section 18 claim, the words “the said subsection (2)(b)” in section 22(4) fell to be construed as references to section 18(2)(b).  The present action was a section 18 claim which had been raised within the three-year period specified in section 18(2)(a).  It was not therefore one “which would not be entertained but for the said subsection (2)(b)”.  In any event, section 22(4) should be construed purposively.  The solicitor advocate for the pursuers sought to demonstrate, under reference to the legislative history of what is now contained in sections 18, 19 and 22, together with contemporaneous judicial dicta (Haddow v Lord Advocate 1959 SLT (Notes) 48) and academic comment (DM Walker, “The Limitation Act 1963” 1963 SLT (News) 185), that the purpose of section 22(4) was to exclude from jury trial cases in which time-bar remained a live issue at the time of hearing of evidence.  A purposive approach required it to be construed as excluding only such cases;  no mischief could be identified that would justify construing it more broadly.  Accordingly, as no question arose of the present claims being time‑barred, the subsection did not apply.

 

Argument for the defenders
[9]        On behalf of the defenders it was submitted that if a claim depended in any way upon the application of either section 17(2)(b) or section 18(2)(b), it was excluded from jury trial by section 22(4).  The pursuers’ claim could not have been entertained if a claim by the deceased had been time‑barred.  A claim by the deceased would have had to rely on section 17(2)(b).  This was therefore an action which would not be entertained “but for the said subsection (2)(b)”, and fell within section 22(4).  A claim by the deceased himself under section 17 would have been excluded from jury trial;  it would be curious if a claim by his relatives under section 18 was not.  As regards the pursuers’ argument based on purposive construction, the subsection simply would not bear the interpretation that the pursuers sought to attribute to it.  Its wording was clear and unambiguous, and the court was not entitled to search its legislative history for a meaning other than that expressed in the words used by Parliament:  Cora Foundation v East Dunbartonshire Council 2014 SC 665 at paragraph 32, applying the well‑known dictum of Lord Diplock in Fothergill v Monarch Airlines Ltd [1981] AC 251 at 279.  In any event it was not accepted that the only identifiable purpose was exclusion from jury trial of cases with a live time‑bar issue;  there could also be a purpose of excluding stale claims.

Decision
[10]      In my opinion, the primary argument for the pursuers is to be preferred.  It seems to me that the most natural construction of section 22 is that the words “the said subsection (2)(b)”, which appear in both subsections (3) and (4), refer to section 17(2)(b) in a case brought by an injured person under section 17 and to section 18(2)(b) in a case brought by the relatives of a deceased person under section 18.  I find support for this interpretation in the use of the words “or, as the case may be” in subsection (2).  It is easier to see the relationship between the expression “the said subsection (2)(b)” and these words in the language of section 22(2) as it stood prior to its amendment in 1985.  They appear to me to confirm that the reference in subsection (4) to “the said subsection (2)(b)” should be read as a reference to “whichever subsection (2)(b) is applicable”.  That reading also makes good sense with regard to the same words where they appear in subsection (3).  If the intention of Parliament had been to exclude from jury trial a claim under section 18 which did not depend upon the application of section 18(2)(b), but where a claim by the deceased would have required to rely upon section 17(2)(b), one would have expected subsection (4) to make this clear, for example by referring to “the said subsections (2)(b)” in the plural.

[11]      I would not have been inclined to accept the pursuers’ alternative argument based upon a purposive construction of subsection (4).  I accept that exclusion from jury trial of cases in which time‑bar remains a live issue would be a coherent and readily understandable legislative policy, and one which would accord with the authorities to which I was referred.  I am not persuaded, however, that the contention rises above the level of conjecture.  In any event, the application of the pursuers’ proposed construction would, in my view, amount to a re‑writing of the subsection and would stray beyond what is permissible by way of purposive statutory interpretation.  I also acknowledge that it is difficult, as the defenders submit, to identify any reason why Parliament might have wished to allow trial by jury of a claim under section 18 in circumstances where a claim by the deceased himself under section 17 would have been excluded.  This is a case in which each side can, without too much difficulty, identify anomalies arising from the opposing contention.  In my view the correct approach is to read the words used by Parliament, in the context of section 22 and the remainder of Part II of the 1973 Act, and not to speculate as to the intention that may have lain behind them.

[12]      It was not contended on behalf of the defenders that there was any feature of mesothelioma cases generally that rendered them unsuitable for jury trial.  I shall grant the pursuers’ motion and allow issues.