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SCOTTISH LAW COMMISSION

Discussion Paper on Personal Injury Actions: Limitation and Prescribed Claims

February 2006

DISCUSSION PAPER No 132

This Discussion Paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission

EDINBURGH: The Stationery Office

This publication (excluding the Scottish Law Commission logo) may be re-used free of charge in any format or medium for research for non-commercial purposes, private study or for internal circulation within an organisation. This is subject to it being re-used accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the publication specified.

For any other use of this material please apply for a Click-Use Licence for core material from the Office of Public Sector Information (OPSI) website: www.opsi.gov.uk/click-use/index.htm. Telephone enquiries about Click-Use Licences should be made to OPSI, Tel: 01603 621000.

The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1965^[1] for the purpose of promoting the reform of the law of Scotland. The Commissioners currently^[2] are:

The Honourable Lord Eassie, Chairman

Professor Gerard Maher, QC

Professor Joseph M Thomson

Mr Colin J Tyre, QC.

The Chief Executive of the Commission is Mr Michael Lugton. Its offices are at 140 Causewayside, Edinburgh EH9 1PR.

The Commission would be grateful if comments on this Discussion Paper were submitted by 31 May 2006. Comments may be made (please see notes below) on all or any of the matters raised in the paper. All correspondence should be addressed to:

Mrs Susan Sutherland

Scottish Law Commission

140 Causewayside

Edinburgh EH9 1PR

Tel: 0131 668 2131

Fax: 0131 662 4900

Email: [email protected]

NOTES

1. Please note that respondents will be referred to and their responses referred to or made available in the following ways:

•    responses will be attributed and summarised on our website

•    the names of all respondents will be listed in the final report following from this consultation

•    some or all responses and the names of those who submitted them may be referred to and/or quoted in the final report following from this consultation or in other Commission publications and

•    responses will be made available to a third party on request

unless the respondent specifically asks that any of the material referred to above, or any part of it, should be treated as confidential or we otherwise consider that it should be treated as confidential. Any third party request for access to a confidential response will be determined in accordance with the Freedom of Information (Scotland) Act 2002.

2. Where possible, we would prefer electronic submission of comments. A downloadable electronic response form for this paper as well as a general comments form are available on our website. Alternatively, our general email address is [email protected].
3. The Discussion Paper is available on our website at www.scotlawcom.gov.uk or can be purchased from TSO Scotland Bookshop.
4. If you have any difficulty in reading this document, please contact us and we will do our best to assist. You may wish to note that an accessible electronic version of this document is available on our website.

Contents

	Para
Part 1 Introduction
Two references	1.1
Scope of the first reference	1.4
General background to the first reference	1.11
Scope of the second reference	1.13
General background to the second reference	1.14
Prescription and limitation: a brief comparison	1.15
History of the legislation	1.16
The purpose of rules of limitation and prescription	1.24
Structure of the Discussion Paper	1.30
Acknowledgements	1.31
Legislative competence	1.32
Part 2 Date of knowledge
Introduction	2.1
Retaining a knowledge date	2.2
The statutory facts	2.7
Sufficiently serious injury	2.8
Subjective elements	2.12
New starting date	2.14
Attributable to an act or omission	2.22
The identity of the defender	2.25
Knowledge of the wrongful quality of the act or omission	2.26
Actual awareness	2.28
Constructive awareness	2.31
Reasonably practicable	2.33
Subjective or objective test	2.38
Length of the limitation period	2.48
Unsoundness of mind	2.52
Part 3 Judicial discretion
Introduction	3.1
Background to the judicial discretion	3.2
The current provision	3.8
Issues arising	3.15
Should judicial discretion be retained?	3.16
Restriction of judicial discretion	3.27
Guidelines on the exercise of judicial discretion	3.29
Options	3.35
Part 4 Practice and procedure
Introduction	4.1
Initial onus	4.2
Onus subsequently: actual and constructive knowledge	4.3
Onus subsequently: section 19A	4.4
Pleading	4.6
Part 5 Prescribed claims
Introduction	5.1
Prescription	5.2
Cases with which the reference is concerned	5.4
Retrospectivity	5.6
Human rights issues	5.10
Scottish Parliament's power to legislate retrospectively	5.12
Application of limitation rules	5.13
A special regime?	5.14
Part 6 List of proposals and questions	Part 6
Appendix A Extract from the Prescription and Limitation (Scotland) Act 1973	A
Appendix B Extract from the Limitation Act 1980	B

Note 1   Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (SI 1999/1820).    [Back]

Note 2   The term of office of Professor Kenneth G C Reid CBE as a Commissioner expired on 31 December 2005 but he took part in discussions at Commission meetings about the draft of this Discussion Paper.    [Back]

Part 1 Introduction

"To examine the operation of sections 17(2)(b), 18(2)(b) and 19A of the Prescription and Limitation (Scotland) Act 1973 and to make any appropriate recommendations for possible reform of the law."

"To consider the position of claims for damages in respect of personal injury which were extinguished by operation of the long negative prescription prior to 26 September 1984; and to report."

Scope of the first reference

"(i) that the injuries in question were sufficiently serious to justify his [the pursuer's] 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."

"(i) that the injuries of the deceased were attributable in whole or in part to an act or omission; and

(ii) 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."

Where the deceased could himself have claimed damages for his injuries but the claim became time-barred under section 17 prior to his death, no action may be brought by any relatives or his executor in reliance on the provision of section 18(2).^[3]

General background to the first reference

Scope of the second reference

General background to the second reference

Prescription and limitation: a brief comparison

History of the legislation

The purpose of rules of limitation and prescription

Structure of the Discussion Paper

Acknowledgements

Legislative competence

Part 2 Date of knowledge

Introduction

Retaining a knowledge date

1. The legislation on limitation of actions in personal injury cases should continue to include a "date of knowledge" as a starting date for the running of the limitation period.

The statutory facts

"(i) that the injuries in question [to the pursuer] 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."

In claims where death has resulted the relevant statutory facts, listed in section 18(2)(b) are only two, namely:

"(i) that the injuries of the deceased were attributable in whole or in part to an act or omission; and

(ii) 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."

It may be noted that it is not necessary for the pursuer to have any awareness or belief that the act or omission of the defender which has caused his injury (or the injury to the deceased) was wrongful and gives rise to legal liability to make reparation. We shall return to this matter later.^[38]

Sufficiently serious injury

"However it is not possible for the definition of 'significance' to reflect accurately all the factors which would be taken into account in deciding whether or not to bring proceedings. The factors would differ for every claimant. The most important factor, in many cases, would be the chances of success of the claim. To ask the court to decide when the claimant should have known that the claim was more likely to succeed than otherwise would require a trial of the merits of the claimant's case every time the defendant raised a limitation defence. It is also hard to justify giving the claimant a longer limitation period when the defendant is in financial difficulties. Unrealistic though the assumptions undoubtedly are, they provide a measure of protection necessary for defendants.

We have also carefully considered, albeit to reject, some different tests. For example, the definition could provide that a claim is significant if the recoverable damages are (1) more than nominal; (2) more than a fixed sum; or (3) less than a set proportion of the total award. In the first case, we consider that reliance on 'nominal damages' might set too low a threshold. In any event, 'nominal damages' is a legal term of art which, strictly speaking, refers to damages being awarded where there is no loss at all.

The other two possibilities attempt to set a tariff. However it would be extremely difficult to quantify a 'significant' amount which would be considered to be fair. If a sum was identified, it would need to be constantly reviewed (or perhaps index linked). Further it would require the court to ascertain precisely the probable quantum of damages and costs which the claimant might recover at a particular date. This would not necessarily increase the certainty of the definition.

The same objection applies to any attempt to define the significance of the claim by reference to a proportion of the damages recoverable (so that the claim would be insignificant until the claimant knew of at least, for example, loss giving rise to ten per cent of the damages ultimately recoverable). Any percentage chosen would be arbitrary. The court would again be required to calculate the damages which would have been awarded at two different points in time. A more fundamental objection is the fact that, where the claimant has a very large claim, even a small proportion of that claim (such as five per cent) may be a large amount.

We have concluded that there is no alternative to defining 'significance' by reference to the point when the facts establish that it is worth making a claim in civil proceedings. We are, therefore, following the approach of the current law on this issue." ^[44]

2. Should the current statutory assumption of admitted liability be replaced by an assumption that the action had a reasonable prospect of success?

"However, I do not consider that subjectivity can be left out of the matter if there are factors present which weigh upon the gravity of the particular injury to the particular pursuer. Thus, while a sturdy rugby player may ignore, to all intents and purposes, the effect of a bruise, to a haemophiliac it would be of the utmost gravity. Equally it may be that a particular injury which may have a particular bearing on a particular career, such as damage to a finger to a potential or actual surgeon, may also bear upon the question of gravity or seriousness. I am, however, satisfied that it is not appropriate to go beyond these physical characteristics or personal relevant characteristics in relation to the actual injury to look at the context of the environment upon which the injury was sustained and it is certainly not relevant to take into account such factors as whether or not it was reasonable not to sue for fear of losing one's job." ^[47]

We consider that it is right that in deciding whether injuries sustained were sufficiently serious to warrant suing, the personal circumstances of the particular pursuer should be taken into account only in so far as they would affect the quantum of damages and that other circumstances which might act to inhibit the injured person from suing – such as a wish to maintain a good relationship with the potential defender for personal or occupational reasons – should be left out of account. It would be inappropriate that the limitation period be extended perhaps for many years, simply on the ground that the pursuer had continued during that time to work for the defender.

"It appears to me that if one can identify two separate diseases or impairments of physical condition, even if caused by the same delict, relevant knowledge, or imputed knowledge, of the one will not bar one from pursuing a claim in respect of the other. There may therefore be circumstances in which one must decide whether the particular changes in physical condition are to be regarded as separate diseases or impairments, or merely features of a single disease or impairment. While that may be necessary, it appears to me that it may also be quite unreal. For what it is worth, it appears to me upon the evidence that the plaques, if to be regarded as a disease or impairment at all, are sufficiently distinct from either pleural thickening or asbestosis as to qualify as a 'separate' disease or impairment. That being so, I would not regard knowledge of plaques as barring claims based on either thickening or asbestosis." ^[53]

"I take from that decision the recognition by his Lordship that for the purposes of the 1973 Act as amended a wholly distinct injury, albeit arising from the same delict, can be sued upon in a separate claim and therefore can create a separate triennium not starting from when there was original awareness of the original symptoms which are distinguishable but rather from when at the earliest, the injury basing the action emerged to the knowledge of the pursuer.

Applying that approach to the present case I reject the argument that such physical anguish and fear that the pursuer may have suffered during the bullying period up to 1991 is merely a precursor of the same type of psychological injury that developed in the spring of 1992. In my opinion, upon the averments, the psychological injuries developing in May 1992 were a separate or distinct injury. They were obviously serious and if the pursuer had not sued within three years of May 1992 he might not thereafter have been able to rely upon sec 17(2)(b). However, as matters stand, he does not have to rely on that subsection because he has sued timeously for an injury, namely psychological injury, within three years of the date when it was sustained, namely May 1992, which is thus the appropriate starting point of the relevant triennium, in terms of sec 17(2)(a)." ^[56]

"... section 14, depending on the circumstances, may preserve or bar the recoverability of damages for the later of two injuries however late the date of knowledge of it, or enable recovery for the earlier of two injuries which, but for the claim for the second, would have been statute-barred.

Thus, here, if the judge correctly found in the case of any claimant that he or she had the requisite knowledge within three years after majority, that knowledge would operate to bar not only the claim for damages for the immediate injuries caused by the abuse, but also the long term psychiatric injury of which he or she first acquired knowledge much later. If the judge was wrong in that finding, the operative date of knowledge would be that of the long term psychiatric abuse which, if within the limitation period, would enable the claim for both the earlier immediate injuries caused by the abuse and the long term psychiatric injury." ^[60]

3. If a claim for sufficiently serious injury is not pursued timeously, the subsequent emergence of additional injury, even if distinct, should not give rise to a fresh date of knowledge and a further consequential limitation period for a claim for that additional injury.

Attributable to an act or omission

"It seems to me obvious that injuries can only be said to be attributable to an act or omission if they were caused by such an act or omission. An act or omission not causally connected in some way with the injuries could have no relevance to the claims of the injured party. It may, in some circumstances, be possible to say, in a particular case, that injuries must have been caused by some act or omission, even though it is not possible to say precisely what the act or omission was or what precise mechanism connected it to the accident." ^[64]

"(1) The knowledge required to satisfy section 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2) 'Attributable' in this context means 'capable of being attributed to', in the sense of being a real possibility;

(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4) On the other hand, a plaintiff will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was."^[68]

It does not appear that those principles are in any way dependent on or affected by the fact that the English legislation does not leave to implication that the act or omission in question is the one founded on in the action.

The identity of the defender

Knowledge of the wrongful quality of the act or omission

"Nevertheless, to make ignorance of fault or liability a relevant fact in all cases would in our view go too far. It would also create undue uncertainty in the law and would increase the incidence of stale claims. It was the view of most commentators that such a change in the law would be undesirable. We do not, therefore, recommend any change in the present law, though we consider that the legislation should contain a specific provision on this point."

Hence, when the 1973 Act was amended in 1984, there was included in section 22(3) a provision that for the purposes of section 17(2)(b), or section 18(2)(b), "knowledge that any act or omission was or was not, as a matter of law, actionable, is irrelevant."

4. Knowledge that any act or omission was or was not as a matter of law actionable should continue to be irrelevant in the date of knowledge test.

Actual awareness

"... whether a person 'knows' a fact seems to me to involve a question of degree. I do not consider it advisable to attempt to define it, but at least I think it involves something approximating more to certainty than mere suspicion or guess. Moreover, in my opinion ... some information, suspicion or belief falling short of knowledge is not transformed into knowledge if it happens to be correct. I accept that a person cannot be said to 'know' a fact if the thing which he believes with whatever conviction is not in accordance with the truth. But I do not think that the converse is correct. I do not think that any information or belief, however uncertain, necessarily amounts to knowledge within the meaning of para (a) merely because it happens to coincide with the truth." ^[79]

In Halford v Brookes and Another^[80] Lord Donaldson of Lymington, MR said of the equivalent English provision that:

"In this context [of the purpose of the section] 'knowledge' clearly does not mean 'know for certain and beyond possibility of contradiction.' It does, however, mean 'know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.' Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice."^[81]

The New Shorter Oxford English Dictionary (1993) gives as one of the definitions of "aware" the following:

"Conscious, sensible, not ignorant, having knowledge,...well-informed, responsive to conditions etc."

It is, we think, clear that in this particular context one is not talking of knowledge which is definite or certain. Indeed it may be that in a given case one or more of the statutory facts may be in dispute: for example, the back injury which the pursuer attributes to lifting a heavy weight at work may in truth be attributable to weekend gardening. In our view what one is concerned with is belief or understanding held with a certain degree of confidence or conviction, sufficient to prompt the initiation of the prosecution of a claim for damages, or, in the words of Lord Donaldson, providing "sufficient confidence to justify embarking on the preliminaries to the issue of a writ".^[82] Insofar as there may be a semantic difference between "knowledge" and "awareness" we believe that the term "awareness" better expresses the notions which the judicial observations on knowledge were seeking to convey.

5. In formulating any amended provisions relating to a pursuer's state of knowledge it remains appropriate to continue to use the terminology of "awareness".

Constructive awareness

6. The legislation on date of knowledge should continue to contain a constructive awareness test.

Reasonably practicable

"In the consultative memorandum we invited comment whether the legislation should refer specifically to the seeking of advice. There was general approval for the view that it should not. One judge considered that references to seeking 'appropriate advice' were unnecessary and served only to complicate matters, and that the test of constructive knowledge might reasonably be expected to be developed judicially. We agree with this view. Moreover, the Court of Session judges urged us to adopt a test which allowed the court

'... a modicum of discretion directly related to the pursuer's state of knowledge at a critical time'

and suggested that one way to achieve this result would be to refer in legislation, not to the date on which the injured person could reasonably have become aware of the relevant facts but to the date on which, in the opinion of the court, it was reasonable for him in all the circumstances to have become so aware - in other words, a formula of the kind which already appears in the statute. A formula along these lines would seem to afford the courts the desired degree of flexibility, and would have the further merit of not attempting to regulate the test of knowledge in too much detail. It would enable the court to take account of the differing circumstances of individuals and the differing nature of their injuries. It would enable the court, where appropriate, to attribute to an injured person facts in the possession of an adviser, such as a solicitor or a trade union official. Accordingly we endorse the judges' suggestion, and recommend:

4. The date of the injured person's knowledge should be the date on which he became aware, 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 the relevant facts. The legislation should not contain any references to seeking 'appropriate advice'." ^[84]

"The question that has to be decided is not whether the pursuer had a reasonable excuse for not asking the material questions but whether it would have been reasonably practicable for him to do so. In my opinion 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." ^[86]

The defenders in due course reclaimed the Lord Ordinary's decision to allow the action to proceed under section 19A of the 1973 Act but when the case came to be heard before the Second Division the pursuer did not insist in his cross appeal regarding the decision on section 17(2). ^[87]

"It is incumbent on a pursuer to take all reasonably practicable steps to inform himself of all the material facts as soon as he is put on notice of the existence of any of these. And the onus is on the pursuer to establish that he has done so. The question is not whether he had 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 (Elliot v J & C Finney, Lord Sutherland at p 210)." ^[94]

7. The current statutory test of whether it was "reasonably practicable" for the pursuer to become aware of a relevant fact is not a satisfactory test.

Subjective or objective test

"Taken to either extreme, the provision degenerates into meaninglessness. Suppose, for example, that the pursuer is of limited intelligence and therefore is not actually aware of one of the statutory facts. Apply a purely subjective test. If constructive and actual awareness are assessed according to precisely the same standard – a pursuer of limited intelligence – then the constructive awareness test adds nothing to the actual awareness test. The pursuer of limited intelligence is neither aware, nor is it reasonably practicable for him or her to become aware, of the statutory fact.

Conversely, if a purely objective test is applied, which takes no account of the pursuer's limited intelligence, then the constructive awareness test destroys the whole point of the actual awareness test. Lip service is paid to the fact that this pursuer of limited intelligence did not know the statutory fact. But on an objective test of what was reasonably practicable for a person of ordinary intelligence, it can be said that it was reasonably practicable for the pursuer to become aware of the statutory fact. An approach of this sort risks undermining the policy of the section, which is to prevent time starting to run before the actual pursuer knew the facts."^[95]

"You have to ask yourself: At what date was it reasonable for him – for the sick man himself – to have taken advice and found out that his illness was due to his employers' negligence or breach of duty. You do not ask: At what date would a reasonable person have taken advice? You ask: At what date was it reasonable for this man to take it. In other words, at what date ought he to have taken advice and found out that he had a worthwhile action?" ^[99]

That approach was again followed by the Court of Appeal in Smith and Others v Central Asbestos Co Ltd and Another^[100] and was approved when the case reached the House of Lords.^[101] In his speech Lord Reid said:

"I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with 'the reasonable man'. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience."^[102]

"... the proper approach is to determine what this plaintiff should have observed or ascertained, while asking no more of him than is reasonable. The standard of reasonableness in connection with the observations and/or the effort to ascertain are therefore finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff."^[105]

However, in Forbes v Wandsworth Health Authority^[106] a majority of the Court of Appeal^[107] took a different view. The plaintiff in that case, a man with a history of circulatory problems, had two bypass operations carried out on his leg on two succeeding days but in the event the operations were not successful and the limb was amputated. It was alleged that the second operation was delayed to an extent that was negligent. The action was commenced some 10 years later, following the plaintiff having consulted a solicitor about his financial position, when a report from a vascular surgeon was obtained. Reversing the decision at first instance to the effect that the plaintiff had neither actual nor constructive knowledge of the relevant fact until that report was obtained, Stuart-Smith LJ found that a reasonable man in the plaintiff's position, knowing the operation to have been unsuccessful and to have resulted in a major injury, should and would take advice reasonably promptly if he was minded to make a claim at all. He observed in relation to the passage from the judgment in Nash and Others v Eli Lilly & Co and Others^[108] that he had difficulty in seeing how the individual character and intelligence of the plaintiff could be relevant in an objective test.^[109] In a later passage he stated that "[i]t does not seem to me that the fact that a plaintiff is more trusting, incurious, indolent, resigned or uncomplaining by nature can be a relevant characteristic, since this too undermines any objective approach".^[110] Earlier in his judgment Stuart-Smith LJ noted that any other construction would make the 1980 Act unworkable by effectively giving a plaintiff in such a case a right indefinitely to delay seeking expert advice and thus an absolute right to sue without any question of control by means of judicial discretion being involved. By contrast, section 33 of the 1980 Act (discretion to disapply time-bar) was designed to give the court the ultimate discretion. Evans LJ stated:

"I agree with Stuart-Smith LJ that it is relevant to consider the scheme of the Act, taking account both of the postponed start of the limitation period under section 11 and the discretionary power to extend it under section 33. Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally so that in respect of constructive knowledge under section 14(3) an objective standard applies." ^[111]

"As it is fairer to plaintiffs and would not create significant extra uncertainty, we also consider that the test for constructive knowledge should contain a large subjective element: what ought the plaintiff, in his circumstances and with his abilities, to have known had he acted reasonably? The question should not be what a reasonable person would have discovered, but what the plaintiff himself would have discovered if he had acted reasonably. The personal characteristics of the plaintiff, such as his or her level of education and intelligence, and the plaintiff's resources, would therefore be relevant to the question whether the plaintiff acted reasonably, in contrast to what now appears to be the position under the current law ...".^[114]

The Law Commission also noted^[115] that law reform agencies in New Zealand, Western Australia and Ontario had favoured a subjective standard. In its subsequent Report on Limitation of Actions,^[116] the Law Commission rejected an entirely objective test stating inter alia that the purpose of a constructive knowledge test was "…to fix the claimant with the knowledge he or she would have had if he or she had acted reasonably, not to fix the claimant with knowledge which he or she could not possibly have."^[117] The Law Commission then went on to say:

"The circumstances of the claimant will be relevant to his or her constructive knowledge. The circumstances of the claimant will include the claimant's financial resources, if information could not reasonably be available to the claimant unless expensive expert or other investigations have been carried out. The abilities of the claimant will also be relevant. 'Abilities' for this purpose encompasses any capacity of the claimant which might affect the date on which he or she could be expected to know the relevant facts. Most obviously, the claimant's intellectual abilities will be relevant.

We recommend that the claimant should be considered to have constructive knowledge of the relevant facts when the claimant in his or her circumstances and with his or her abilities ought reasonably to have known of the relevant facts." ^[118]

"I find this reasoning persuasive. The Court of Appeal did not refer to the decisions on the 1963 Act which had taken a more subjective view. While it is true that the language of section 7(5) of the 1963 Act was not materially different from that of section 14(3) of the 1980 Act, I think that the Court of Appeal in Forbes was right in saying that the introduction of the discretion under section 33 had altered the balance. As I said earlier, the assumptions which one makes about the hypothetical person to whom a standard of reasonableness is applied will be very much affected by the policy of the law in applying such a standard. Since the 1975 Act, the postponement of the commencement of the limitation period by reference to the date of knowledge is no longer the sole mechanism for avoiding injustice to a plaintiff who could not reasonably be expected to have known that he had a cause of action. It is therefore possible to interpret section 14(3) with a greater regard to the potential injustice to defendants if the limitation period should be indefinitely extended."^[121]

Having disapproved the dicta of Lord Reid in Central Asbestos^[122] and Purchas LJ in Nash and Others v Eli Lilly & Co and Others^[123] which we have quoted above, Lord Hoffmann went on to say:

"It is true that the plaintiff must be assumed to be a person who has suffered the injury in question and not some other person. But, like Roch LJ in Forbes [1997] QB 402, 425 I do not see how his particular character or intelligence can be relevant. In my opinion, section 14(3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate." ^[124]

Lords Philips of Worth, Scott of Foscote and Walker of Gestingthorpe were either wholly or in substantial agreement with Lord Hoffmann. Baroness Hale of Richmond was more in favour of some element of subjectivity.

8. As a matter of general approach, should an awareness test incline towards subjectivity rather than objectivity?

Length of the limitation period

"We do not find it easy to justify the distinction made between cases of personal injury and cases of loss of or damage to property, and we considered recommending a uniform period applying to all actions based on delict. The reason for our not so recommending is that the legislature recently (1954 and 1963) curtailed the English six-year period for all actions founded on inter alia tort to three years where the damage caused consisted of personal injuries, and also applied this rule to Scotland; and in view of this legislation which, we think, rightly applies the same period of limitation on each side of the Border, we feel precluded from recommending at this time a change in the period which would apply to Scotland only. If, however, it were thought fit to amend the law so as to assimilate the limitation periods for claims in respect of personal injuries and other claims for damages, we should welcome such assimilation."^[130]

Having a five year limitation period also for personal injuries would remove the current anomaly that a claim confined to damage to property may be pursued within five years, whereas if the same claim includes any element of damages for personal injury it must be raised within three years.^[131] And while retaining a period of three years as the limitation period in personal injury actions would continue the existing harmonised rules throughout Great Britain, we would observe that the risk of "forum shopping", were Scotland to have a different personal injury limitation period, is now diminished by section 23A of the 1973 Act, which was inserted in 1984^[132] and which would oblige a Scottish court to apply English limitation rules to a claim governed by English law. However, we recognise that if the current three year period is appropriate for the large majority of personal injury claims, increasing the period simply to assist in a small minority may be inexpedient since it might result in increased delay in the prosecution of many of the claims falling within that large majority.

9. To what extent are significant practical difficulties commonly encountered in investigating and commencing claims within the current three year limitation period?

Unsoundness of mind

"(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind."

The reference to nonage means, in terms of section 1(2) of the Age of Legal Capacity (Scotland) Act 1991, those under the age of 16 years and we do not consider any issue to arise under this branch of subsection (3). As respects the second branch of the subsection, namely suspension of the running of time on the basis of "unsoundness of mind", it has been suggested to us by our advisory group that the term "unsoundness of mind" is now outdated; potentially offensive to those to whom it might be applied; and may present possible difficulties to mental health practitioners who operate in the context of different, more modern statutory provisions.

"incapable" means incapable of-

(a) acting; or

(b) making decisions; or

(c) communicating decisions; or

(d) understanding decisions; or

(e) retaining the memory of decisions,

as mentioned in any provision of this Act, by reason of mental disorder^[136] or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise); and

"incapacity" shall be construed accordingly."

Since the justification for the suspension of the running of time for limitation purposes by reason of mental incapacity must, in our view, be a mental disorder rendering the pursuer incapable of taking a decision to proceed with a claim there is an obvious attraction to replacing the current reference to "unsoundness of mind" with a reference to the pursuer's having been "incapable" within the terms of section 1(6) of the 2000 Act. However, that definition of incapacity refers to the making, communicating, understanding, or retaining memory of decisions as a generality and it may be for consideration whether, in importing the incapacity definition provided by the 2000 Act, the decision in issue should be specified as the decision to pursue a claim for damages. On the whole we would not favour such a restriction. The general test of incapacity, by reason of mental disorder, should suffice for limitation purposes. We would add that there is Outer House authority for the view that no causal relationship between the mental incapacity and the delay in raising the action need be established.^[137]

10. (a) The reference in the 1973 Act to legal disability by reason of unsoundness of mind should be replaced by a reference to the pursuer's being an adult with incapacity within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000;

And we ask the following questions:

(b) Should the reference to incapacity be qualified by its being confined to the adult concerned being incapable (by reason of mental disorder or physical disability) of making, communicating, or understanding decisions respecting the making of a claim for damages for the personal injury in question?

(c) Should the appointment of a guardian lift the suspension of the running of time by reason of the incapacity of the adult in question?

Part 3 Judicial discretion

Introduction

Background to the judicial discretion

The current provision

"Section 19A has been the subject of considerable judicial discussion. The same is true of its English equivalent, s 33 of the Limitation Act 1980; s 33 is framed differently from s 19A, but it fulfils the same essential function and the authorities on its interpretation are accordingly of assistance in Scotland: Donald v Rutherford, 1984 SLT 70. A number of matters have been clearly established. First, the court has a general discretion under section 19A; the crucial question that must be considered has been stated to be 'where do the equities lie?': Forsyth v AF Stoddard & Co Ltd, 1985 SLT 51 at 55, per Lord Justice Clerk Wheatley; Elliot v J & C Finney, 1989 SLT 605 at 608F per Lord Justice Clerk Ross. Secondly, the onus is on the pursuer to satisfy the court that it would be equitable to allow his claim to proceed: Thompson v Brown, [1981] 1 WLR 744, at 753 per Lord Diplock. Thirdly, the conduct of a pursuer's solicitor may be relevant to the exercise of the court's discretion, and the pursuer must take the consequences of his solicitor's actings: Forsyth, supra, at 1985 SLT 54. Fourthly, relevant factors that the court may take into account include, but are not restricted to, three matters identified by Lord Ross in Carson v Howard Doris Ltd, 1981 SC 278, at 282; these are '(1) the conduct of the pursuer since the accident and up to the time of his seeking the Court's authority to bring the action out of time, including any explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action out of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time'. Fifthly, each case ultimately turns on its own facts, a principle which applies even if a number of claimants present similar claims against the same person."^[159]

Issues arising

Should judicial discretion be retained?

11. Judicial discretion to allow a time-barred action to proceed should be retained.

Restriction of judicial discretion

12. Should the exercise of judicial discretion be subject to a time limit and if so, what should the time limit be?

Guidelines on the exercise of judicial discretion

"(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

"In England under section 33(3)(b) of the Limitation Act 1980, critical importance is given to the cogency of the evidence available for trial [See Hartley v Birmingham City Council 1992 2 All ER 213, a decision of the Court of Appeal].

What this means is that in England the question of evidential prejudice is considered principally insofar as it has arisen since the expiry of the primary limitation period (ie the date of [actual or constructive] knowledge). Judges in England are obliged to consider this in terms of the statute." ^[190]

13. (a) Assuming judicial discretion to disapply the time-bar is retained, should the legislation include a non-exhaustive list of matters to which the court should give consideration when asked to exercise its discretion?

(b) If so, should the guidelines-

(i) include any factor additional to those listed in section 33(3) of the Limitation Act 1980?

(ii) omit any factor listed in section 33(3)?

Options

14. Which of the following options is preferred, and why?

[A] Subjective test:

An awareness test which provides for a subjective test of constructive knowledge(along the lines expressed in Smith and Others v Central Asbestos Co Ltd)^[195] with -

Option (1) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) no judicial discretion to disapply that time-bar.

Option (2) -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) no judicial discretion to disapply that time-bar.

Option (3) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) temporally unlimited judicial discretion to disapply that time-bar.

Option (4) -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) temporally unlimited judicial discretion to disapply that time-bar.

Options (5) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) judicial discretion limited to a period of time (say five years) after the action became time-barred.

Option (6) -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) judicial discretion limited to a period of time (say five years) after the action became time-barred.

[B] Objective test

An objective test of constructive awareness with-

Option (7) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) temporally unlimited judicial discretion to disapply the time-bar.

Option (8) -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings.

(b) temporally unlimited judicial discretion to disapply the time-bar.

Options (9) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) judicial discretion limited to a period of time (say five years) after the action became time-barred.

Option 10 -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings.

(b) judicial discretion limited to a period of time (say five years) after the action became time-barred.

We do not claim that the foregoing is an exhaustive list of options but we hope that it may be helpful in focussing the issues which we have raised in this and the preceding Parts of this Discussion Paper.

Part 4 Practice and procedure

Introduction

Initial onus

Onus subsequently: actual and constructive knowledge

Onus subsequently: section 19A

15. No statutory alteration to the present law on onus of averment and proof in relation to limitation issues should be made.

Pleading

"The onus being on the pursuer to satisfy the court that the terms of s 19A(1) should be applied, the court must first determine whether the pursuer's case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on material facts for it to decide upon the application of the section."^[204]

Although that approach was set in the context of a section 19A application it is simply an exemplification of the Scottish approach to pleading and would likewise apply to a case made under the awareness provisions of section 17(2)(b) and 18(2)(b). We would observe that the desirability of resolving time-bar issues as a preliminary matter has also been stressed in England.^[205] We think that the approach decided in Clark v McLean is sound and that whether it is necessary to hear evidence in order to determine a limitation argument should properly be left to the court to decide according to the circumstances of the individual case and the state of the pleadings and the other materials before it.

16. Should any changes be made to the procedure in personal injury actions in the Court of Session to facilitate resolution of limitation issues as a preliminary matter?

Part 5 Prescribed claims

Introduction

"To consider the position of claims for damages in respect of personal injury which were extinguished by operation of the long negative prescription prior to 26 September 1984; and to report."

Prescription

Cases with which the reference is concerned

Retrospectivity

"…takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past."^[217]

Any imposition of a new liability – even if mirroring the liability extinguished by the operation of the long negative prescription – comes within that definition since it must necessarily reverse the extinguishing effect, in the past, of the law of negative prescription.

"Retrospective laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law."^[221]

The presumption against retrospective legislation is clearly stated by Bennion:

"It is a principle of legal policy that, except in relation to procedural matters, changes in the law should not take effect retrospectively."^[222]

Craies on Legislation^[223] observes that successive governments have accepted the principle that retrospective legislation should be avoided and quotes the statement in the House of Lords of Baroness Hollis of Heigham:

"It is a general principle of English and Scottish law that retrospective legislation should be avoided wherever possible".^[224]

Human rights issues

Scottish Parliament's power to legislate retrospectively

Application of limitation rules

A special regime?

(i) Any legislation undoing retrospectively the extinguishing effect of the negative prescription on claims for damages for personal injury which accrued prior to 26 September 1964 would be objectionable on account of that retrospectivity.

(ii) Any such legislation might be incompatible with the European Convention on Human Rights.

(iii) Legislation re-creating obligations in respect only of claims arising out of sexual abuse during childhood presents definitional problems but, more importantly, may be unfair to other categories of potential claimant (and objectionable on that discriminatory ground).

(iv) Simply removing the extinguishing effect of the negative prescription, on the view that only the law of limitation of actions should apply, would not produce practical benefit for most claimants with prescribed claims since it is clear that the prescribed claims are almost certainly claims which were time-barred a long time ago and could only proceed by virtue of a favourable exercise of judicial discretion. The very antiquity of the claims means that normally the court could not, in the proper exercise of that function, make that favourable exercise.

17. Claims in respect of personal injury which have been extinguished by negative prescription before 1984 should not be revived.

(Paragraph 2.5)

(Paragraph 2.11)

(Paragraph 2.21)

(Paragraph 2.27)

(Paragraph 2.30)

(Paragraph 2.32)

(Paragraph 2.37)

(Paragraph 2.47)

(Paragraph 2.50)

(b) Should the reference to incapacity be qualified by its being confined to the adult concerned being incapable (by reason of mental disorder or physical disability) of making, communicating, or understanding decisions respecting the making of a claim for damages for the personal injury in question?

(c) Should the appointment of a guardian lift the suspension of the running of time by reason of the incapacity of the adult in question?

(Paragraph 2.57)

(Paragraph 3.26)

(Paragraph 3.28)

(b) If so, should such guidelines-

(i) include any factor additional to those currently listed in section 33(3) of the Limitation Act 1980?

(ii) omit any factor listed in section 33(3)?

(Paragraph 3.34)

[A] Subjective test:

An awareness test which provides for a subjective test of constructive knowledge (along the lines expressed in Smith and Others v Central Asbestos Co Ltd^[250]) with-

Option (1) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) no judicial discretion to disapply that time-bar.

Option (2) -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) no judicial discretion to disapply that time-bar.

Option (3) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) temporally unlimited judicial discretion to disapply that time-bar.

Option (4) -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) temporally unlimited judicial discretion to disapply that time-bar.

Options (5) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) judicial discretion limited to a period of time (say five years) after the action became time-barred.

Option (6) -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) judicial discretion limited to a period of time (say five years) after the action became time-barred.

[B] Objective test

An objective test of constructive awareness with-

Option (7) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) temporally unlimited judicial discretion to disapply the time-bar.

Option (8) -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings.

(b) temporally unlimited judicial discretion to disapply the time-bar.

Options (9) -

(a) a three year period following the date of acquisition of constructive awareness in which to institute proceedings and

(b) judicial discretion limited to a period of time (say five years) after the action became time-barred.

Option 10 -

(a) a five year period following the date of acquisition of constructive awareness in which to institute proceedings.

(b) judicial discretion limited to a period of time (say five years) after the action became time-barred.

(Paragraph 3.35)

(Paragraph 4.5))

(Paragraph 4.8)

(Paragraph 5.24)

Note 1   As defined in s 22(1) of the 1973 Act.    [Back]

Note 2   Under the Age of Legal Capacity (Scotland) Act 1991, s 1, this is at the age of 16.    [Back]

Note 3   1973 Act, s 18(4).    [Back]

Note 4   It also applies where an action for defamation or an action of harassment has become time-barred.    [Back]

Note 5   Scottish Parliament Public Petition PE 535.    [Back]

Note 6   Walker, Prescription and Limitation of Actions (6th edn, 2002), p 5; Macphail, Sheriff Court Practice (2nd edn, 1998) Vol 1, para 2.114.    [Back]

Note 7   Prior to the enactment of the 1973 Act the long negative prescription was based on the Prescription Act 1469 (c 4), the Prescription Act 1474 (c 9) and the Prescription Act 1617 (c 12). The period was reduced from 40 years to 20 years by the Conveyancing (Scotland) Act 1924, s 17.    [Back]

Note 8   Final Report of the Departmental Committee onAlternative Remedies, Cmd 6860 (1946).    [Back]

Note 9   Report of the Committee onThe Limitation of Actions, Cmd 7740 (1949).    [Back]

Note 10   Limitation Act 1939.    [Back]

Note 11   1954 Act, s 6(1)(a).    [Back]

Note 12   Watson v Fram Reinforced Concrete Co (Scotland) Ltd and Another 1960 SC (HL) 92.    [Back]

Note 13   [1963] AC 758.    [Back]

Note 14   Report of the Committee onLimitation of Actions in Cases of Personal Injury, Cmnd 1829 (1962).    [Back]

Note 15   1963 Act, s 8(3).    [Back]

Note 16   Scot Law Com No 15 (1970).    [Back]

Note 17   Ibid at para 113.    [Back]

Note 18   Central Asbestos Co Ltd v Dodd [1973] AC 518 at 529 E-F (Lord Reid) commenting on the 1963 Act provisions; Kerr v JA Stewart (Plant) Ltd and Another 1976 SC 120 at 131 (Lord Cameron).    [Back]

Note 19   Law Reform Committee Twentieth Report – Interim Report onLimitation of Actions in Personal Injury Claims, Cmnd 5630 (1974).    [Back]

Note 20   Ibid at recommendation (5) and para 53.    [Back]

Note 21   Ibid at recommendation (6) and paras 56 to 58 and 69(2)(b) and (5).    [Back]

Note 22   See Appendix B.    [Back]

Note 23   Memorandum No 45 (1980).    [Back]

Note 24   Scot Law Com No 74 (1983).    [Back]

Note 25   Section 2 of the 1984 Act substituted new ss 17-18 in place of ss 17-19 of the 1973 Act. The principal changes involved replacing the heavily-criticised phrase "material facts … of a decisive character" and specifying the relevant facts of which knowledge on the part of the pursuer would start the running of the limitation period.    [Back]

Note 26   Schedule 1, para 2 amended s 7 of the 1973 Act.    [Back]

Note 27   David Johnston, Prescription and Limitation (1999) paras 1.31 to 1.63.    [Back]

Note 28   [1996] 186 CLR 541. The relevant passages are quoted at length by Lord Drummond Young in B v Murray (No 2) [2005] CSOH 70; 2005 SLT 982 at para [21].    [Back]

Note 29   Cf Alan Rodger, "A Time for Everything Under the Law: Some Reflections on Retrospectivity" (2005) 121 LQR 57 at 63.    [Back]

Note 30   That is to say knowledge or awareness which the pursuer did not in fact have but which he is deemed to have had or ought to have had.    [Back]

Note 31   Robert Carr (Anderson Strathern WS); David Johnston QC; Ranald Macdonald (NHS Scotland Central Legal Office); Robert Milligan (Advocate) and Fiona Moore (Drummond Miller WS).    [Back]

Note 32   Stubbings v UK [1996] 23 EHRR 213.    [Back]

Note 33   Paras 5.10 and 5.11.    [Back]

Note 34   [1963] AC 758.    [Back]

Note 35   Limitation Act 1980, ss 11 and 14.    [Back]

Note 36   Law Com No 270 (2001).    [Back]

Note 37   Alberta, British Columbia and Saskatchewan.    [Back]

Note 38   See below, para 2.26.    [Back]

Note 39   Stevenson v Pontifex & Wood (1887) 15 R 125; Dunlop v McGowans and Others 1980 SC (HL) 73.    [Back]

Note 40   The Small Claims (Scotland) Order 1988 (SI 1988/1999).    [Back]

Note 41   Blake v Lothian Health Board 1993 SLT 1248.    [Back]

Note 42   Law Com No 151 (1998).    [Back]

Note 43   Law Com No 270 (2001).    [Back]

Note 44   Law Com No 270 (2001), paras 3.27-3.31.    [Back]

Note 45   Eg The Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000/2333).    [Back]

Note 46   2001 SC 802.    [Back]

Note 47   Ibid at 812 F-G.    [Back]

Note 48   Cf KR and Others v Bryn Alyn Community (Holdings) Ltd (in liquidation) and Another [2003] QB 1441.    [Back]

Note 49   1973 Act, ss 17(3) and 18(3); Age of Legal Capacity (Scotland) Act 1991, s 1.    [Back]

Note 50   Alan Rodger, "A Time for Everything Under the Law: Some Reflections on Retrospectivity" (2005) 121 LQR 57.    [Back]

Note 51   [2003] QB 1441.    [Back]

Note 52   1996 SLT 517.    [Back]

Note 53   1996 SLT 517 at 518 F-H.    [Back]

Note 54   2001 SC 802.    [Back]

Note 55   Ibid at 809.    [Back]

Note 56   Ibid at 813 G-814 A.    [Back]

Note 57   Hill v McAlpine 2004 SLT 736.    [Back]

Note 58   2001 SC 802.    [Back]

Note 59   KR and Others v Bryn Alyn Community (Holdings) Ltd (in liquidation) and Another [2003] QB 1441.    [Back]

Note 60   Ibid at paras 57-58 B-D.    [Back]

Note 61   [1963] AC 758.    [Back]

Note 62   2004 SC 784.    [Back]

Note 63   1992 SLT 141.    [Back]

Note 64   Ibid at 144 C.    [Back]

Note 65   Limitation Act 1980, s 14(1)(b).    [Back]

Note 66   Halford v Brookes and Another [1991] 1 WLR 428; Nash and Others v Eli Lilly & Co and Others [1993] 1 WLR 782; Broadley v Guy Clapham & Co [1994] 4 All ER 439; Dobbie v Medway Health Authority [1994] 1 WLR 1234; Smith v Lancashire Health Authority [1995] PIQR 514 and Forbes v Wandsworth Health Authority [1996] 4 All ER 881.    [Back]

Note 67   [1997] PIQR 235 at 242.    [Back]

Note 68   Ibid.    [Back]

Note 69   And also other road traffic accidents – see for instance Elliot v J & C Finney 1989 SLT 208.    [Back]

Note 70   Comer v James Scott & Co (Electrical Engineers) Ltd 1978 SLT 235; cf McClelland v Stuart Building Services 2004 SLT 1011.    [Back]

Note 71   By the Limitation Act 1963.    [Back]

Note 72   The provision is currently to be found in s 14 of the Limitation Act 1980.    [Back]

Note 73   1980 SC (HL) 46.    [Back]

Note 74   Scot Law Com No 74 (1983), para 3.14.    [Back]

Note 75   Law Com No 270 (2001), para 3.35 ff.    [Back]

Note 76   All Australian states and the Canadian provinces of Alberta, British Columbia and Saskatchewan.    [Back]

Note 77   Scot Law Com No 74 (1983), Recommendation 4 and Draft Bill.    [Back]

Note 78   1978 SLT 235.    [Back]

Note 79   Ibid at 240.    [Back]

Note 80   [1991] 1 WLR 428.    [Back]

Note 81   Ibid at 443 E-F.    [Back]

Note 82   [1991] 1 WLR 428 at 443 E-F.    [Back]

Note 83   Report on Prescription and the Limitation of Actions (Scot Law Com No 74) (1983), pp 40 and 49.    [Back]

Note 84   Ibid at para 3.7.    [Back]

Note 85   1989 SLT 208.    [Back]

Note 86   Ibid at 210 L-211 A.    [Back]

Note 87   1989 SLT 605.    [Back]

Note 88   1995 SLT 1129.    [Back]

Note 89   1995 SLT 1129 at 1134.    [Back]

Note 90   1998 SCLR 520.    [Back]

Note 91   1998 SLT 1000 at 1002.    [Back]

Note 92   1999 SLT 778 at 781.    [Back]

Note 93   2003 SC 448.    [Back]

Note 94   Ibid at 454 A-B.    [Back]

Note 95   David Johnston, Prescription and Limitation (1999) paras 10.30 and 10.31.    [Back]

Note 96   Scot Law Com No 74 (1983), para 3.6.    [Back]

Note 97   Limitation Act 1963, ss 1 and 7.    [Back]

Note 98   [1969] 1 WLR 415.    [Back]

Note 99   Ibid at 419 C-D.    [Back]

Note 100   [1972] 1 QB 244.     [Back]

Note 101   Sub nom Central Asbestos Co Ltd v Dodd [1973] AC 518.    [Back]

Note 102   Ibid at para 530.    [Back]

Note 103   See above, para 1.21.    [Back]

Note 104   [1993] 1 WLR 782; see also Ali v Courtaulds Textiles Ltd (2000) 52 BMLR 129.    [Back]

Note 105   [1993] 1 WLR 782 at 799 F-G.    [Back]

Note 106   [1997] QB 402.    [Back]

Note 107   Stuart-Smith LJ, Evans LJ, with Roch LJ dissenting on the basis that Nash was binding.    [Back]

Note 108   [1993] 1 WLR 782 at 799.    [Back]

Note 109   [1997] QB 402 at 414 C.    [Back]

Note 110   Ibid at 414 F.    [Back]

Note 111   Ibid at 422 F-G.    [Back]

Note 112   Law Com No 151 (1998).    [Back]

Note 113   Ibid at para 12.57.    [Back]

Note 114   Ibid at para 12.54.    [Back]

Note 115   Ibid at para 12.53.    [Back]

Note 116   Law Com No 270 (2001).    [Back]

Note 117   Law Com No 270 (2001), para 3.48.    [Back]

Note 118   Law Com No 270 (2001), para 3.49.    [Back]

Note 119   [2005] 1 AC 76.    [Back]

Note 120   [1996] 4 All ER 881.    [Back]

Note 121   [2005] 1 AC 76 at 89, para 45.    [Back]

Note 122   [1973] AC 518 at 528-534.    [Back]

Note 123   [1993] 1 WLR 782.    [Back]

Note 124   [2005] 1 AC 76 at 89-90, para 47.    [Back]

Note 125   For example, the State of Victoria now has a six year period running from the date of discoverability and a 12 year "long-stop" period running from the date of accrual of the cause of action.    [Back]

Note 126   Lord Denning MR in Newton v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1969] 1 WLR 415 at 419 C (cf para 2.40 above).    [Back]

Note 127   Final Report of the Departmental Committee onAlternative Remedies, Cmd 6860 (1946).    [Back]

Note 128   Report of the Committee onThe Limitation of Actions, Cmd 7740 (1949).    [Back]

Note 129   In Scotland the period was six months.    [Back]

Note 130   Report on Reform of the Law Relating to Prescription and Limitation of Actions (Scot Law Com No 15) (1970), para 114.    [Back]

Note 131   For a recent example of the difficulties which the existence of dual time limits may present see Thomson v Newey & Eyre Ltd [2005] CSIH 21, 2005 SLT 439.     [Back]

Note 132   Prescription and Limitation (Scotland) Act 1984, s 4.    [Back]

Note 133   Defined by s 6 of the 1960 Act as meaning "mental illness or mental deficiency however caused or manifested".    [Back]

Note 134   Bogan's Curator Bonis v Graham 1992 SCLR 920 at 924-925.    [Back]

Note 135   2000 Act, s 80.    [Back]

Note 136   "mental disorder" is defined in section 87(1) of the 2000 Act.    [Back]

Note 137   Sellwood's Curator Bonis v Lord Advocate 1998 SLT 1438, following Paton v Loffland Brothers North Sea Inc 1994 SLT 784 in preference to Brogan's Curator Bonis v Graham 1992 SCLR 920.    [Back]

Note 138   Sellwood's Curator Bonis v Lord Advocate 1998 SLT 1438 may be an exception.    [Back]

Note 139   Law Com No 270 (2001).    [Back]

Note 140   Ibid, para 3.123.    [Back]

Note 141   Law Com No 231 (1995), paras 12.123-12.125. The definition is in these terms: A person is without capacity if at the material time: (a) he or she is unable by reason of mental disability to make a decision for himself on the matter in question or (b) he or she is unable to communicate his [or her] decision on that matter because he or she is unconscious or for any other reason."    [Back]

Note 142   Law Com No 151 (1998).    [Back]

Note 143   Law Com No 270 (2001), para 3.125.    [Back]

Note 144   Report of the Committee onLimitation of Actions in Cases of Personal Injury, Cmnd 1829 (1962).    [Back]

Note 145   Ibid at para 32.    [Back]

Note 146   See above, para 1.19.    [Back]

Note 147   Scot Law Com No 15 (1970).    [Back]

Note 148   Law Reform Committee Twentieth Report – Interim Report on Limitation of Actions in Personal Injury Claims, Cmnd 5630 (1974).    [Back]

Note 149   See above, para 1.21.    [Back]

Note 150   Consultative Memorandum No 45 (1980).    [Back]

Note 151   Ibid at para 2.24.    [Back]

Note 152   Scot Law Com No 74 (1983).    [Back]

Note 153   Ibid at para 4.9.    [Back]

Note 154   Ibid at para 4.10.    [Back]

Note 155   Section 19A also applies to actions under ss 18A (defamation and related actions) and 18B (actions of harassment) which are outwith the scope of the Commission's current remit.    [Back]

Note 156   Limitation Act 1980, s 33(3); see below, Appendix B.    [Back]

Note 157   By the Prescription and Limitation (Scotland) Act 1984, s 6(1), Sch 1, para 8(b).    [Back]

Note 158   [2005] CSOH 70; 2005 SLT 982.    [Back]

Note 159   Ibid at para [29].    [Back]

Note 160   See eg Donald v Rutherford 1984 SLT 70; Forsyth v AF Stoddard & Co Ltd 1985 SLT 51; Morrice v Martin Retail Group Limited 2003 SCLR 289.    [Back]

Note 161   See Thompson v Brown and Another [1981] 1 WLR 744.    [Back]

Note 162   Comber v Greater Glasgow Health Board 1989 SLT 639; B v Murray (No 2) [2005] CSOH 70, 2005 SLT 982, Lord Drummond Young at para [30].    [Back]

Note 163   See eg Ferguson v McFadyen 1992 SLT 44 (defender incorrectly described with his father's first name); Nicol v British Steel Corporation (General Steels) Ltd 1992 SLT 141 (action two days late as a result of "oversight"); Stephen v North of Scotland Water Authority 1999 SLT 342 (action raised timeously against employers at the time of the incident, but in ignorance of the statutory transfer to the water authority of their liability).    [Back]

Note 164   McCluskey v Sir Robert McAlpine & Sons Ltd 1994 SCLR 650.    [Back]

Note 165   See above, para 1.22.    [Back]

Note 166   In Australia, only Victoria and the Australian Capital Territory have such an unrestricted power. In New South Wales the power is restricted to cases of latent disease and in Tasmania the power may only be exercised within six years of the date of accrual of the cause of action. Of the Canadian provinces whose legislation we examined (Alberta, British Columbia and Saskatchewan) none had a judicial discretion to extend the limitation period.    [Back]

Note 167   See for example the discussion in David Johnston, Prescription and Limitation (1999) paras 12.31-12.34.    [Back]

Note 168   [2005] 1 AC 76.    [Back]

Note 169   Ferguson v McFadyen 1992 SLT 44.    [Back]

Note 170   Comer v James Scott & Co (Electrical Engineers) Ltd 1978 SLT 235.    [Back]

Note 171   McClelland v Stuart Building Services 2004 SLT 1011.    [Back]

Note 172   Erskine III VI 3; Smith v Stewart & Co Limited 1960 SC 329 at 334; Barclay v Chief Constable, Northern Constabulary 1986 SLT 562.    [Back]

Note 173   Law Com No 270 (2001).    [Back]

Note 174   Law Com No 151 (1998), para 12.196.    [Back]

Note 175   Law Com No 270 (2001), para 3.161.    [Back]

Note 176   Ibid, para 3.160.    [Back]

Note 177   Law Com No 270 (2001), para 3.162.    [Back]

Note 178   B v Murray (No 2) [2005] CSOH 70; 2005 SLT 982 at paras [59]-[92].    [Back]

Note 179   For example, Alberta, British Columbia and Saskatchewan.    [Back]

Note 180   For example, contraventions of the Road Traffic Act 1991 and the Health and Safety at Work etc Act 1974.    [Back]

Note 181   Cf AM v Hendron and Others [2005] CSOH 121.    [Back]

Note 182   Law Com No 151 (1998), paras 3.19-3.25.    [Back]

Note 183   Law Com No 270 (2001), paras 4.25-4.32.    [Back]

Note 184   See above, para 2.20.    [Back]

Note 185   See above, para 3.18.    [Back]

Note 186   Limitation Act 1980, s 33(1).    [Back]

Note 187   Thompson v Brown and Another [1981] 1 WLR 744; Conry v Simpson and Others [1983] 3 All ER 369; Donovan v Gwentoys Limited [1990] 1 WLR 472 and Halford v Brookes and Another [1991] 1 WLR 428.    [Back]

Note 188   Law Com No 270 (2001), para 3.169.    [Back]

Note 189   Ronald E Conway, "Time out of Joint: Limitation in Industrial Disease Cases" 2000 SLT (News) 31, 35; Scottish Parliament Public Petition PE 836.    [Back]

Note 190   Scottish Parliament Public Petition PE 836, p 12.    [Back]

Note 191   As an example of a case in which evidential prejudice was extensively considered, see B v Murray (No 2) [2005] CSOH 70; 2005 SLT 982.    [Back]

Note 192   Law Com No 270 (2001), paras 3.167.    [Back]

Note 193   Ibid at para 3.167.    [Back]

Note 194   See above, paras 1.23-1.26.    [Back]

Note 195   Smith and Others v Central Asbestos Co Ltd [1972] 1 QB 244; Central Asbestos v Dodd [1973] AC 518; cf para 2.40 above.    [Back]

Note 196   By Act of Sederunt (Rules of the Court of Session Amendment No 2) (Personal Injury Actions) 2002 (SSI 2002/570).    [Back]

Note 197   "The requirements of this subsection are fulfilled in relation to a right of action if it is proved that the material facts relating to that right of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the pursuer until a date which was not earlier than three years before the date on which the action was brought." (1973 Act, section 18(3), as enacted) (emphasis added).    [Back]

Note 198   See below, Appendix A, ss 17 and 18.    [Back]

Note 199   Hamill v Newalls Insulation Co Ltd 1987 SLT 478; Webb v BP Petroleum Development Ltd 1988 SLT 775; McArthur v Strathclyde Regional Council 1995 SLT 1129; Agnew v Scott Lithgow Ltd 2001 SC 516.    [Back]

Note 200   Bennion, Statutory Interpretation (4th edn, 2002) p 938.    [Back]

Note 201   Agnew v Scott Lithgow Ltd 2001 SC 516 at 520.    [Back]

Note 202   Clark v McLean 1995 SLT 235; Thomson v Brown and Another [1981] 1 WLR 744; KR and Others v Bryn Alyn Community (Holdings) Ltd (in liquidation) and Another [2003] QB 1441, para 74.    [Back]

Note 203   1995 SLT 235.    [Back]

Note 204   Ibid at 237 J.    [Back]

Note 205   KR and Others v Bryn Alyn Community (Holdings) Ltd (in liquidation) and Another [2003] QB 1441, paras 19 and 74(vi).    [Back]

Note 206   By Act of Sederunt (Rules of the Court of Session Amendment No 2) (Personal Injury Actions) 2002 (SSI 2002/570).    [Back]

Note 207   Alexander v Metbro Ltd 2004 SLT 963.    [Back]

Note 208   See above, para 1.13.    [Back]

Note 209   But in a case in which the cause of action accrued before 4 June 1954 only prescription applied. See s 7 of the Law Reform (Limitation of Actions &c.) Act 1954.    [Back]

Note 210   The plea of non valens agere cum effectu ("unable to sue effectively") in so far as it might suspend the running of time, would require very exceptional circumstances cfAbernethy v Sister Bernard Mary Murray & Others, Temporary Judge T G Coutts QC, Outer House, 20 August 2004, unreported.    [Back]

Note 211   Report on Prescription and the Limitation of Actions (Scot Law Com No 74) (1983), para 2.6.    [Back]

Note 212   By way of example, under s 50C(1)(b) of the New South Wales Limitation Act 1969, a 12 year long-stop limitation period applies and a similar position obtains in Victoria. In addition to a three year period running from the date of discoverability, German law also provides for a 30 year prescription of personal injury claims, irrespective of the pursuer's state of knowledge – see BGB art 199(2) – although in sexual abuse cases the start of the running time is delayed until the pursuer achieves the age of 21 years.    [Back]

Note 213   See above, para 1.15.    [Back]

Note 214   1973 Act, s 7(1).    [Back]

Note 215   See above para 2.21; K v Gilmartin's Executrix 2004 SC 784.    [Back]

Note 216   The terms "retrospective" and "retroactive" are commonly used interchangeably in this context but a distinction has been drawn between true retroactivity and a retrospective interference with vested rights. See J Paul Salembier – "Understanding retroactivity: When the past just ain't what it used to be" (2003) HKJL 99. To reverse the extinguishing effect of prescription of past claims arising prior to 26 September 1964 would be retroactive, and also interference with vested rights, in the sense used by Salembier.    [Back]

Note 217   See Daniel Greenberg, Craies on Legislation (8th edn, 2004), para 10.3.1 n 28. Judicial approval was given by Sir Thomas Bingham MR in L'Office Cherifien des Phosphates and Another v Yamashita–Shinnihon Steamship Co Ltd The Boucraa [1993] 3 All ER 686 at 692.    [Back]

Note 218   Article 7 provides that "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."    [Back]

Note 219   For example the War Damage Act 1965, removing the Crown's common law liability to pay compensation for war damage, was passed to reverse retrospectively the finding in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1964 SC (HL) 117.    [Back]

Note 220   (1870) LR 6 QB 1.    [Back]

Note 221   Ibid at 23.    [Back]

Note 222   Bennion, Statutory Interpretation (4th edn, 2002), p 689.    [Back]

Note 223   Daniel Greenberg, Craies on Legislation (8th edn, 2004), para 10.3.3.    [Back]

Note 224   Hansard, HL, Vol 605, col 502 (13 October 1999).    [Back]

Note 225   We are aware of at least one action recently commenced in which the complaints relate to treatment received between 1932 and 1939.    [Back]

Note 226   ECHR, Art 7.    [Back]

Note 227   (1995) 19 EHRR 293.    [Back]

Note 228   Article 1 provides that "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."    [Back]

Note 229   (1995) 21 EHRR 301; cf also Application No 46356/99 Smokovitis & Others v Greece (Judgment of 11 April 2002).    [Back]

Note 230   For an example of an interference in the property rights of one category of citizen, namely landlords, for the benefit of another, namely tenants, being justified as pursuing a legitimate social policy see James v UK (1986) 8 EHRR 123 which was concerned with legislation giving certain private sector tenants a "right to buy" at a price determined according to certain statutory criteria.    [Back]

Note 231   C M G Himsworth and C M O'Neill, Scotland's Constitution: Law & Practice (2003), p 168.    [Back]

Note 232   See above, paras 1.26-1.29.    [Back]

Note 233   See above, para 5.5.    [Back]

Note 234   Scottish Parliament Public Petitions PE 535 and PE 888.    [Back]

Note 235   Cf B v Murray (No 2) [2005] CSOH 70; 2005 SLT 982, (Lord Drummond Young) para [1].    [Back]

Note 236   Ibid, paras [43]-[48].    [Back]

Note 237   And the terms of the petitions to the Scottish Parliament.    [Back]

Note 238   See Law Com No 151 (1998), paras 13.22-13.23. The theory is that abuse can lead victims to forget what happened to them and repress all memory of it.    [Back]

Note 239   Chu & others, "Memories of childhood abuse: dissociation, amnesia, and corroboration", Arn J Psychiatry 1999 May 156(5): 749-755). Dissociation or dissociative amnesia is said to be a defence mechanism whereby the victim of trauma, such as sexual abuse, dissociates himself by repressing memory.    [Back]

Note 240   For example, Van der Kolk, McFarlane & Weiseath – "Traumatic Stress" (1996).    [Back]

Note 241   DESNOS is claimed to be a residual category of disorder for those who have suffered severe ill-treatment early in life. Van der Kolk's theory is that it is common for people to forget childhood abuse but for the abuse to manifest itself in other ways, for example, dreams or behaviour.    [Back]

Note 242   Cf B v Murray (No 2) [2005] CSOH 70; 2005 SLT 982, paras [59] to [92].    [Back]

Note 243   Victims of sexual crime may be able to claim from the Criminal Injuries Compensation Authority but there is a time limit of two years.    [Back]

Note 244   By way of example, the awards in the Bryn Alyn case as were successful ranged between £12,000 and £68,000.    [Back]

Note 245   Cf para 2.10 (in discussion about serious injury).    [Back]

Note 246   [2001] UKHL 22; [2002] 1 AC 215.    [Back]

Note 247   [2004] UKHL 29; [2005] 1 AC 76.    [Back]

Note 248   2001 SC 802.    [Back]

Note 249   The reasons why the repeal was not retrospective are explained inHansard, HC, Vol 110, col 572 (13 February 1987). They included the unfairness of imposing retrospective liabilities and the difficulties of assessing old cases.    [Back]

Note 250   [1973] AC 518 – cf para 2.40 above.    [Back]