RESPONSE BY THOMPSONS SOLICITORS AND SOLICITOR ADVOCATES TO CONSULTATION PAPER CIVIL LAW OF DAMAGES: ISSUES IN PERSONAL INJURY

Transcription

1 RESPONSE BY THOMPSONS SOLICITORS AND SOLICITOR ADVOCATES TO CONSULTATION PAPER CIVIL LAW OF DAMAGES: ISSUES IN PERSONAL INJURY

2 CHAPTER 2 - PSYCHIATRIC INJURY We must start our response to the section of the consultation paper relating to psychiatric injury by setting out the observation that provides the basis for our thinking on this issue. Fundamental delictual principle provides that a victim of negligence is compensated for harm suffered by him or her. The extent of the harm is reflected in the level of compensation. In our view it follows from this that the approach of the law to separate out physical and psychiatric or mental harm is fundamentally misconceived. There may have been justification in purely practical terms for the Courts approach in past decades (on the basis of the law evolving as a reaction to cases being brought before Courts and requiring to rule upon those particular situations and the medical evidence involved therein) but more recent developments in medical understanding have quite clearly shown there no longer to be any proper basis for the law s apparent rigid division between physical and mental injury. Crucially that medical understanding previously referred to has become clearer over the approximately 10 year period since the Scottish Law Commissions initial consultation in this area and the present time. In that connection we would refer to various large scale medical studies confirming the link between physical and mental health (and conversely ill health) (see for example a study carried out by Oregon State University reported in the journal Health Services Research July 2012). We would comment that it cannot be appropriate for the law to continue to insist in an artificial division between mental and physical injury which is no longer recognised by the medical profession made up of those who have to treat victims of harm. Our response to the various questions posed by the consultation paper must, therefore, be seen in light of this fundamental position. Turning to the particular questions posed by the consultation paper we would respond as follows. Question 2(a): Do you agree that the 2004 report s summary of defects in the existing common law is a reasonably full and accurate one in today s circumstances? We do not agree that the 2004 report s summary of defects in the existing common law is a reasonably full and accurate one because we consider the most significant defect in the common law is, as we have indicated, what we consider to be the artificial and inappropriate distinction between physical and mental harm. Page 1

3 Question 2(b): Do you agree in principle that existing common law rules which apply only to reparation for mental harm should be replaced by a statutory obligation to make reparation for wrongfully caused mental harm? We agree that the existing common law rules applying only to reparation for mental harm ought to be replaced but consider that those existing common law rules ought to be replaced by an obligation which brings all negligently caused harm (whether that harm can be classed as physical, mental or a combination of both) on to the same footing and which would then, in our submission, properly reflect fundamental legal principle in this area. Question 2(c): Do you agree that the concept of ordinary fortitude is unsatisfactory and, therefore, should no longer be a consideration in assessing whether a victim should be able to seek damages for his/her psychiatric injury? We agree that the concept of ordinary fortitude is unsatisfactory and, therefore, should no longer be a consideration in assessing whether a victim should be able to seek damages for his/her psychiatric injury. It is unsatisfactory because it is an artificial and ill defined concept which is intended to operate to prevent Courts giving effect to the fundamental legal principle embodied in the thin skull rule i.e that it is the harm to the individual which is measured and compensated rather than the harm to an average person. Question 2(d): Do you agree that an appropriate balance between the right of an injured person to secure damages and the right of a Defender to expect a certain level of mental resilience in individuals would be achieved by the recommended focus on the stresses or vicissitudes of life or of the type of life that a person leads? No. Why does a Defender have a right to expect a certain level of mental resilience in individuals? Quite correctly a Defender does not have a right to expect a certain level of physical resilience. If it is, as it ought to be, the harm to the individual which is measured and compensated there can be no such expectation on the part of the Defender. If (contrary to our view) it is thought appropriate for there to be such a right we cannot see that it can properly be based upon the stresses or vicissitudes of life or of the type of life that person leads. That proposal is open to criticism on a number of levels. What are the ordinary or normal stresses or vicissitudes of life? What one person views as such will be entirely dependent on their life experience and potentially on their cultural background and will be completely different from another person indeed one person may take a different view as to what are normal or ordinary stresses at different stages of their life. The phrase perhaps purports to impose some objectivity (and we would argue that this is not properly a place for such objectivity) but the phrase is so fundamentally lacking in meaning as to be likely to be a factor leading to increased litigation rather than bringing any degree of certainty to this area. Page 2

4 In any event of course, a Defender will get protection because there will require to be negligence or breach of statutory duty on their part before a claim arises in the first place and (at the risk of stating the obvious) if the negligence or breach of statutory duty has had no harmful effect upon the putative victim then there will be no loss in respect of which there will be a claim. The potential introduction of a judgemental concept basing matters on the particular life a victim leads is unacceptable. If it is intended to operate to provide employers with some level of protection by meaning that those engaged in high pressure jobs are somehow expected to bear the risks associated with those jobs then that is morally and legally unjustifiable. Under that proposal emergency workers who work to protect society might be classed as less deserving of protection from harm than others. That is basically unfair and runs contrary to the Scottish Parliament s previously expressed aim to protect such employees see the Emergency Workers (Scotland) Act It is also unsound from a public policy point of view as it may well have the effect of deterring people from taking up employment in careers which are important from the point of view of the safe functioning and cohesion of society. We consider that it is worth noting that, in any event, there is likely to be a natural restriction in cases brought by those who have suffered mental harm in the sense that it is our experience that claimants are reluctant to claim for injury which they, themselves, are likely to view as trivial or of potentially low value. Question 2(e): Do you agree that, where physical harm is reasonably foreseeable but mental harm is not, and a victim sustains only mental harm, the negligent party should not be held liable? No. We do not agree. Again this suggested approach here is predicated on an artificial division between physical and psychiatric harm. To say that one type of harm is foreseeable and another is not flies in the face of up to date medical evidence on the link between physical and psychological health. As noted in the consultation paper the Scottish Law Commission only proposed the introduction of a reasonable forseeability test as a measure to, as the consultation paper puts it, limit liability further. Again we would question why it should be thought necessary to put in place a further measure simply with the intention of limiting the potential liability of negligent Defenders. Contrary to what is argued by the Scottish Law Commission delictual theory requires the establishment of an injury or loss, not that there would be a specific actual physical injury following upon the breach of a duty of care. If that harm takes the form of a psychiatric injury then there has been loss sustained by the victim, whether or not there has been accompanying physical injury, and in our view such a situation is eminently foreseeable in light of our experience of acting for the victims of personal injury. It would risk creating a situation where frequent injustice could occur were this proposal in relation to reasonable forseeability of psychiatric injury to be put in place, against a background of an artificially rigid division between the psychiatric and physical injury. There would undoubtedly be a risk of a person who has sustained serious injury with high consequent financial losses not being compensated or not being compensated fully in the situation suggested in the consultation paper (i.e. a prick from a negligently discarded needle). Page 3

5 Question 2(f): Do you agree that there should be a general prohibition on obtaining damages for a mental disorder where the victim has sustained that injury as a result of witnessing or learning of an incident, without being involved directly in it? We would preface our remarks here by saying that we accept that this is not a straightforward area. We would agree that it would not be appropriate and indeed would not be practical for a negligent wrongdoer to be potentially liable to anyone who sustained mental harm merely by observing or learning of the wrongful conduct of another and the effect that that wrongful conduct might have on third parties. We agree that there must be some requirement for some degree of proximity between the victim and the negligent action. In effect what seems to be proposed is a form of statutory definition of the persons to whom a duty of care can be owed in such circumstances but with some degree of flexibility of interpretation based on the particular circumstances involved. Whether such flexibility is necessary it does necessarily involve a degree of uncertainty which can sometimes lead to a requirement to have a Court make a ruling on the point for example parties may place a differing interpretation on whether the evidence shows there to have been to have strong ties of affection, loyalty or personal responsibility. Question 2(g): Do you agree that it is appropriate to except rescuers from the general prohibition? We agree that it is appropriate to except rescuers from the general prohibition. Our view is that this exception would be appropriate in terms of public policy i.e. we would not wish the law to be seen as discouraging rescuers. Also and as indicated earlier in this response document we take the view that the law, generally, ought to seek to protect those such as emergency workers and (rescuers are likely largely to come from that category) and to treat them as an exception to the general rule fits with that view. We would also note that the proposal fits with previous House of Lords authority in relation to the foreseeability of rescuers to deal with a negligently caused hazardous situation see Ogwo -v- Taylor W.L.R Question 2(h): Do you agree that it is appropriate to except those in close relationships with anyone killed, injured or imperilled by the accident from the general prohibition? We agree that it is appropriate to except those in close relationship with anyone killed, injured or imperilled by the accident from the general prohibition. However, as we have set out above, the question of what amounts to a close relationship will always be one likely to give rise to disputes especially when one looks beyond the immediate family circle. Page 4

6 Question 2(k): Do you agree that the proposed framework strikes the appropriate balance between flexibility of approach and certainty of outcome? We disagree that the proposed framework strikes the appropriate balance between flexibility of approach and certainty of outcome. As we have indicated above our view is that the approach within the Commission s report is fundamentally misconceived. Question 2(l): Do you agree that it should not be possible for a bereaved relative to secure damages for psychiatric injury under Section 4(3)(b) of the 2011 Act? We disagree that it should not be possible for a bereaved relative to secure damages for psychiatric injury under Section 4(3)(b) of the 2011 Act. For the sake of clarity our position is that it should be possible for a bereaved relative to secure damages for psychiatric injury under that Section of the 2011 Act. We are in agreement with Lord Macfadyen s comments in the case of Gillies v- Lynch. He took the view that there was a spectrum of reaction to the death of a loved one. The suggestion from the Law Commission appears, as we understand it, to be that if a relative suffers grief (as they will) at the death of a loved one through the negligence of someone else then they are compensated for that grief but if the reaction of that particular individual goes beyond normal grief however that is to be assessed and the individual is more seriously affected, then a different and more stringent set of rules come into play. It is of course somewhat ironic that the 2008 Scottish Law Commission report Damages for Wrongful Death suggests that the matter of liability in such a situation where a deceased s relative had developed a psychiatric injury going beyond a normal grief reaction would require to be assessed on the basis of whether they were a primary victim or whether the Alcock criteria were met because, of course, the 2004 Scottish Law Commission Report on Damages for Psychiatric Injury proceeds on the basis that the division between primary and secondary victims and the imposition of criteria in cases such as Alcock have led the law to a position where it was completely unsatisfactory and unfair and required to be the subject of legislative overhaul! The 2011 Act provides the mechanism for those relatives within a closely defined group and who are harmed by the negligently caused death of a relative with a mechanism to bring forward their claim and to have that claim determined by the Court if matters require to proceed as far as that. We would strongly suggest that by allowing relatives whose circumstances have developed in such a way that they have developed a reaction beyond mere grief and have suffered what could be classed as psychiatric injury to have their claims dealt with as part of the process of dealing with the wrongful death rather than requiring them to proceed with a separate claim on a separate head of claim is administratively more straightforward and likely to result in earlier and more economic resolution of such cases. To draw an artificial line between normal grief and psychiatric injury and to, in some way, separate out the cases involving psychiatric injury and to impose further legal burdens upon those coming into that category would be unjustifiable and unnecessary. Page 5

7 Question 2(m): What do you think the impact of implementing these proposals in full would be, particularly in relation to the issues below? Is it likely that more or fewer actions will be raised? Is it likely that more or fewer cases will come to Court? Is it likely that more or fewer cases will be settled out of Court? Is it likely that cases will require more or less preparation time? Is it likely that cases will require more or less Court time? Is it likely that there will be more or fewer awards of damages? Is it likely that awards of damages will be higher or lower? Can you quantify the benefits for Pursuers? Can you quantify the benefits for Defenders? Can you quantify the drawbacks for Pursuers? Can you quantify the drawbacks for Defenders? It should be noted that our extensive experience of dealing with Personal Injury claims leads us to the view that there are likely to be, in any event, relatively few cases concerning pure mental harm alone. More common will be cases where such harm has arisen from or together with physical injury. As far as we are concerned the impact of implementing these proposals in full would, in all likelihood, make no difference to the number of actions raised but we would be fairly confident that more cases involving psychiatric injury will require to be determined by the Court because of the likelihood that parties will have differing views as to the interpretation of what is meant by phrases such as the normal stresses or vicissitudes of life or of the interpretation to be applied to the phrase the type of life which that person leads. We think it fair to say that where the law leaves uncertainty and leaves a requirement for judicial interpretation to be applied to particular phrases, the greater the prospect of cases running in Court and consequently increasing legal expenses to both Pursuers and Defenders and to the public purse because of the requirement for more Court time. Question 2(n): Do you consider that the proposals for the reform of damages for psychiatric injury will affect people, either positively or negatively with the following protected characteristics (age, disability, sex, pregnancy and maternity, gender reassignment, sexual orientation, race and religion or belief)? No Page 6

8 CHAPTER 3 TIME-BAR Question 3(a): Do you agree that for all personal injuries, regardless of the nature and circumstances of the personal injury even if it were lawful to do so, it would not be adviseable to seek to revive prescribed claims (i.e. claims relating to events before September 1964)? Yes, it would not be advisable to revive claims which prescribed before 26 September In a recent article, Simon di Rollo QC pointed out that crimes committed before 26 September 1964 would still be prosecuted if evidence of these crimes now came to light for the first time, but that the victims of those crimes would be unable to claim damages for the injuries caused. At first sight this does suggest some unfairness. However, the crimes could not be prosecuted now if the Crown had had the evidence at the time. Time does not run against the Crown when the Crown has no evidence that a crime has been committed. Unless the circumstances were very unusual, on the other hand, the victim would be aware at the time that he/she had sustained an injury. We also agree that, in circumstances that a claim has been completely extinguished, reviving the claim would be likely to raise issues under the European Convention of Human Rights. Question 3(b): Do you agree that the standard limitation period should be raised to 5 years? Question 3(c): Do you agree that it is appropriate to have a single standard limitation period for all types of personal injury claim, instead of different periods for different types of injury? 3(b) and (c) Yes, the limitation period for personal injury claims should be increased to 5 years. The Scottish Law Commission took account of the particular difficulties arising in the investigation of industrial disease cases, especially those which are the result of exposure to asbestos many years ago (see paragraph 2.58 of their report number 207). All of the points made then remain valid. In addition, in lung cancer cases, which are increasing in number, attribution of the disease to the asbestos exposure will usually require further exploration of the client's history with medical and occupational hygiene experts. We also respectfully agree that there is no useful purpose in introducing different limitation periods for different claims and that harmonising the limitation period with the short negative prescription of five years makes sense. Question 3(d): Do you agree that there should be a statutory, non-exhaustive list of matters relevant to determining whether it would be equitable for the Courts to exercise discretion to allow an action to be brought outwith the limitation period? We agree that there should be a statutory, non-exhaustive list of matters relevant to determining whether it would be equitable for the court to exercise its discretion to allow an action to be brought outwith the limitation period. There are additional matters which could usefully be added to the list. Page 7

9 We consider it is necessary to go further, however, to clarify that the function of the court is to balance the equities in the circumstances of each case rather than expecting the pursuer to discharge an onus or come up with a good enough excuse. This means examining the actual prejudice which would be suffered by the exercise of the discretion, or otherwise, not just by making assumptions. In order to emphasise this point we would like to re-examine certain aspects of the current approach taken to the existing law. In particular there have been a number of landmark developments since the Scottish Law Commission reported in We will comment under the following headings:- 1. Features of the existing Scots Law of prescription and limitation 2. Brisbane South Regional Health Authority v Taylor 3. The purpose of limitation in Scots Law 4. Bowden v Poor Sisters of Nazareth 5. Developments since Bowden and the SLC report 6. The correct approach to discretion to override the time limit Features of the existing law (i) The selection of any statutory time period within which a claim must be brought is an arbitrary decision, even if it does attempt to strike a fair balance between the interests of pursuers and defenders generally. There is no empirical evidence to support a particular period as representing the fulcrum point between over favouring one side or the other. (ii) Prescription, in the context of a claim, means the extinction of the obligation upon which the claim is based on the expiry of the prescriptive period. If the claim involves personal injury and the events giving rise to the injury occurred after 25 September 1964 the obligation upon which the claim is based will never be extinguished (see consultation paper paras 3.02 and 3.12). (iii) Limitation, by contrast, has no effect on the obligation. It is a procedural rule which bars the bringing of an action for the enforcment of the obligation after the expiry of the limitation period (para 3.03). (iv) Cases decided by the courts on the exercise of discretion to extend the time limit do not necessarily reflect the law in practice. Many cases never reach court because pursuers are advised by their own lawyers that their claims are time barred and that there is no realistic prospect of the court exercising discretion in the pursuers favour. Similarly there are cases brought where a time bar plea is or could be taken but which are settled out of court or where the plea is dropped because the defenders accept advice from their lawyers to settle, or that the plea will not succeed, or that discretion is likely to be exercised in favour of the pursuer. However, the advice tendered by both sides does depend upon the view taken of the approach which a court would be likely to take based on experience in decided cases. The Scottish Law Commission, in recommending change, appears to have accepted that discretion was not sufficiently being exercised in favour of pursuers. Page 8

10 (v) The court ought to recognise the tension between the rule of prescription, which allows the continued existence of the obligation, and the rule of limitation which cuts off the right to pursue it. The key is to find a formula which renders neither the time limit nor the discretion to override it a dead letter. Brisbane South Regional Health Authority v Taylor It is necessary to examine the obiter comments of McHugh J, a Justice of Appeal in the High Court of Australia, in this case since they have come to occupy a central position in recent judicial thinking in Scotland as well as influencing the Scottish Law Commission s approach (see paragraph 1.08 of the 2007 report). There are several features of the case which suggest that the comments in the case, which related to the law of limitation in Queensland, should not be regarded as reflecting the principles and purposes of the current Scots Law of limitation. (i) There were five judges considering the appeal from a lower court which had exercised discretion in favour of the claimant. Four of the five judges agreed the appeal should be allowed and the extension of time should be refused. Two of those judges gave entirely separate reasons to McHugh J and did not support his reasoning. One judge agreed with McHugh J. The dissenting judge, who disagreed that the appeal should be allowed, gave powerful reasons for his disagreement. McHugh J s comments were therefore endorsed by only a minority of the court. (ii) The framework of the Queensland law was entirely different, and considerably more restrictive towards claimants, than current Scots Law. In Queensland there was only one time limit of three years from the date the cause of action arose (similar to Scots Law before 1963). The court could only exercise discretion to extend the time limit if some crucial fact about the case was outside the claimant s knowledge until a date less than one year before the date the action was actually raised (similar to Scots Law ). (iii) The question for the court to answer was whether the Queensland legislation instructed the court to extend the time limit in those circumstances or whether there remained a discretion to refuse an extension. By contrast, in Scots Law presently, the starting date for the three year time limit varies according to the circumstances, and may be much later than the date the cause of action arises. Provided the case is brought within that period the court has no discretion to refuse to allow the action to proceed. The discretionary exercise in Scotland only arises if the action has not been raised before the end of the latest possible three year period in the circumstances. (iv) McHugh J listed a series of principles which he said underpinned the reason for limitation laws everywhere. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even cruel, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. [Fourth] the public interest requires that disputes are settled as quickly as possible. When it came to the reasons for permitting an extension he said whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Page 9

11 (v) In fact, the four principles do not apply to all cases. Speedy dispute resolution can only begin once both parties know there is a dispute. Equally, those who may face claims can make no assumptions that those claims will not arise simply because the claims have not yet been made. It is a complete fallacy to suppose that insurers, public institutions or companies need have no interest in what occurred more than three years ago (assuming a three year limitation period) unless a claim has already been made. Potential claimants may have no means of knowing within that period that they have, or will have at some indeterminate point in the future, grounds to make a claim. In such circumstances what would be cruel would be a rule which cut off a potential claimant s right to claim even before the grounds for making the claim could be known. If a very long time elapses before those grounds emerge evidence may well have been lost but that is not a good reason by itself to bar the claim (cf the position of the Crown referred to in answer 3(a) above). We will return to the comments about the basis for any extension below. The purpose of limitation in Scots Law Limitation did not exist in Scots Law for personal injury claims (with the exception of claims against public bodies) until A review of the English law of limitation by the Tucker committee in 1949 led to the Law Reform (Limitation of Actions etc) Act The Act harmonised various time limits in English law and fixed a three year period for all personal injury claims in England. In order to harmonise the law in Scotland with that in England the three year limitation was introduced to Scots Law for the first time. Previously in Scotland personal injury claims were limited only by the 20 year long negative prescription. The concept of limitation in Scotland was therefore entirely new. There clearly was some feeling that the 20 year period meant some cases coming forward were stale. The 1954 Act came before Parliament as a private member s bill so there was no official government policy statement supporting the legislation. During subsequent reviews of limitation law by the Scottish Law Commission in 1970 and 1983 statements were made about the purpose of a limitation rule. In paragraph 111 of the 1970 report the SLC said the imposition of a definite period of limitation is justified on the grounds that defenders should be protected against stale claims relating to long past incidents about which their records may be non-existent and the recollection of witnesses no longer accurate, that pursuers should be encouraged to institute proceedings as soon as it is reasonably practicable to do so and that the law should ensure that a person may feel with confidence that after a given time he may treat as being finally closed an incident which could have resulted in a claim against him. At first glance this statement might be thought to be close to the principles set out by McHugh J. On closer reading we can see that the SLC were careful to make their points relate to the cases where there was a specific incident, known to the parties at the time and which had resulted in injury at the time. The reference to long past incidents also suggests much longer periods than three years, particularly considering the earlier 20 year period. In later paragraphs the SLC dealt with the revision of the law on awareness, pointing out the anomaly under the then law that a pursuer in a straight forward accident had a clear three years to sue, whereas in cases of disease there was effectively only a one year period, and recommending there should be a three year period for both. They also considered a suggestion that the three year period be extended to five years to harmonise with the new 5 year short negative prescription they proposed in the same report. Page 10

12 This was not recommended simply because of an apparent desire from Parliament to retain the same three year limitation north and south of the border. The 1983 report paragraph 1.5 mentioned two headings (i) To protect a defender, in so far as it is fair to a pursuer to do so, from being vexed by stale claims... (ii) To ensure the efficient operation of the machinery of justice. Under the latter heading the SLC took the opportunity to have a swipe at pursuers lawyers, stating that they do not initiate proceedings until very close to the last possible date for doing so and accordingly the law of limitation provides the only practical sanction against excessive delay, and that the machinery of justice requires its retention in relation to personal injury claims. The 1983 report expressed the hope that, once practitioners had got used to the new constructive knowledge rules, the need for and number of cases invoking the discretion of the court for an extension would dwindle and disappear. Against the background of these statements and a lack of clear signposts from Parliament, it is perhaps not surprising that when the first historic abuse cases began to appear in the Scottish courts and pursuers invoked the discretion in section 19A of the 1973 Act, searches were made further afield for policy statements which might be prayed in aid by one side or the other. McHugh J s comments in the Brisbane case were identified by the defenders counsel and cited to the trial judge in Bowden v Poor Sisters of Nazareth. The trial judge, Lord Drummond Young, adopted the reasoning in his decision. Shortly afterwards he became the chairman of the Scottish Law Commission while it was engaged in the review which led to the 2007 report. It is to the Bowden case to which we now turn. Bowden v Poor Sisters of Nazareth The consultation paper, at paragraph 3.24, contains a brief quotation from paragraph 25 of Lord Hope of Craighead s speech in the judgement from the House of Lords. The passage was actually prefaced by Lord Hope with direct reference to McHugh J in the Brisbane case. The full quotation is As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p555) it seems more in accord with the legislative policy that the pursuer s lost right should not be revived than that the defender should have a spent liability reimposed upon him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under section 19A is to be exercised. This passage paraphrases the words of McHugh J. What he actually said is as follows Legislatures enact limitation periods because they make a judgement, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff s right of action at the end of that period. Page 11

13 When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action. In our respectful opinion, while both these statements contain much that is just, neither is an entirely correct reflection of the law in Scotland as it stands nor strikes what we would submit to be the correct balance in policy terms of what the law should be. There are a series of points, still bearing in mind the different statutory framework which McHugh J had to interpret. 1. There is no indication that any pre-legislative statement in Scotland has gone so far as to state that limitation has been enacted because the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the [pursuer s] right of action at the end of that period or that the welfare of the State is best served by the limitation period in question. On the other hand, the statements made in the Scottish Law Commission reports in 1970 and 1983 clearly proceed upon the basis that prejudice is more likely to occur the greater the passage of time which has elapsed since the events in question presumptive prejudice. 2. If the defender proves he will suffer significant actual prejudice because he will be unable fairly to defend himself following the expiry of the limitation period, the presumptive prejudice becomes actual, fortifying the defender s position in considering the exercise of discretion. Although this seems uncontroversial, the question still arises when the prejudice occurred. For example does the prejudice have to occur after the expiry of the limitation period or during the limitation period? What happens if the prejudice occurred before the limitation period began? One thing is clear, which is that the prejudice both judges are referring to is not the expiry of the limitation period itself. 3. Lord Hope s formulation reflects the final sentence from the quotation from McHugh J, although in Scotland, as we have seen, the retention of the separate principles of prescription and limitation in personal injury claims should be accorded weight. 4. The most difficult aspect is to determine what is meant by the real possibility of significant prejudice. Once again it cannot simply mean the expiry of the limitation period itself. It also cannot, it is submitted, mean something entirely hypothetical or fanciful. The defender ought to be able to point to some aspect which is likely to be more difficult. Page 12

14 The question still arises when this potential prejudice must have occurred or is likely to occur. It is tempting to suggest that unless actual prejudice is demonstrated none should be presumed (and see the quotations from Horton v Sadler below). Take a simple accident which is witnessed by three people the pursuer, the defender and one bystander. If the trial takes place, one year, three years, five years or seven years after the accident and all of the witnesses are still available on each occasion, can it be presumed that a trial seven years afterwards would be unfair to either party but a trial one year after would not? It might be unfair one year after the accident or there may be no unfairness after seven years. The presumed prejudice may not exist. 5. Finally, there is the issue of what the pursuer must do to explain why the action is brought out of time, The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to as Lord Hope put it. As noted above, McHugh J said The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. We do not think that the welfare of the State needs to be considered any more than to note that a limitation period has been imposed. The rule being in existence, it must then be applied, or disapplied, as the circumstances of the case dictate. It is those circumstances, in relation both to the explanation for the delay and to the justification for the discretion being exercised, which ought to be weighed against any relevant prejudice, against the background of the rule. Developments since Bowden and the SLC report Fleming v Keiller 2006 CSOH 163 Although this case was referred to in the SLC 2007 report, it is worth mentioning in relation to its facts. The pursuer was injured in a shooting accident. He consulted his solicitors and a claim was intimated to the defender within 7 months of the accident. Correspondence took place between solicitors thereafter until about 6 weeks before the triennium when the pursuer s solicitors withdrew from acting because they were getting out of their depth but referred the pursuer to personal injury specialists. The pursuer met with them less than 3 weeks before the triennium. Counsel was then instructed for a summons but, through a series of oversights, the summons was signetted and served one day after the expiry of the triennium. The Lord Ordinary, Lord Drummond Young, once again referred to the Brisbane case and concluded: Perhaps the most striking feature of the present case is the fact that the action was raised one day after the expiry of the triennium. Such a short delay does mean that certain of the standard rationales for the enactment of limitation periods do not apply to the present case. It clearly cannot be said that there is any serious impact on the quality of justice; the pursuer's claim is not stale; it is unlikely that any relevant evidence will have been lost, at least to a material degree; and it cannot be said that it is oppressive to the defender to allow an action to be brought against him, especially as a letter intimating the claim was sent during the triennium. Nevertheless, the two other rationales of limitation statutes remain valid: the public interest requires that disputes should be settled as quickly as possible, and people should be able to arrange their affairs and to utilize their resources on the basis that after a certain time they are free of claims. Page 13

15 The judgment of the legislature is that actions for personal injury should be begun within a period of three years. If the court is to grant an extension of that period, it is essential, as Lord Nimmo Smith pointed out in Cowan v Toffolo Jackson Ltd, that affirmative grounds should be set forth for the granting of such an extension. The mere fact that the delay is very short is not enough, as the court has indicated in Forsyth v A.F. Stoddard & Co Ltd. The delay in raising proceedings seems clearly to be the responsibility of the pursuer's legal advisers, and the pursuer may well have a claim against them. In all the circumstances, I am of opinion that no affirmative grounds have been set forth by the pursuer for the granting of an extension under section 19A. In those circumstances I must hold the pursuer's averments to be irrelevant. I will accordingly dismiss the action. The case illustrates several features of difficulty with the existing interpretation of the law. 1. The possibility that the pursuer has an alternative claim against his legal advisers for making a mistake is now regarded as trumping the liability of the original wrongdoer for causing the injury. However in the Forsyth case the Lord Justice Clerk, Lord Wheatley, merely stated In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor. 2. The absence of any conceivable prejudice to the defender is immaterial. 3. The fact that negotiations to settle the case without litigation had been ongoing (i.e. to try and settle the dispute speedily) is counted against the pursuer because an action was not raised rather than against the defender for not settling. 4. What constitutes affirmative grounds is oblique. The requirement for affirmative grounds as such is also a judicial construct. Section 19A merely requires the court to consider whether it is equitable to allow the case to be brought. If we assume very similar circumstances but a claim against legal advisers was impossible or extremely problematic, the absence of that claim would not be affirmative grounds either. McE v de la Salle Brothers and others 2007 SC 556 (aka M v Hendron) This was a case similar to the Bowden case in that it involved historic abuse. The case was held to be timebarred under section 17(2)(b) of the 1973 Act because the pursuer had failed to aver circumstances which deferred the starting date for the triennium from the date he achieved majority (some 26 years before the action was raised). In connection with the exercise of the discretion under section 19A, however, a majority of the Inner House agreed that, had the case not been dismissed on other grounds (relating to identifying the appropriate organisation to sue), the fact that one of those who had perpetrated the abuse had subsequently been convicted of crimes in relation to the abuse was relevant to a consideration of the discretion. Page 14

16 Aitchison v Glasgow City Council 2010 SC 411 The case is discussed more fully elsewhere in this response. Its relevance at this point is to indicate that one impact of the decision is likely to be more frequent recourse to the discretion of the court. In cases of industrial disease, in particular, separate diseases may occur at different times following negligent exposure to the harmful agent. The court recognised that cutting off the right to claim for separate and subsequent diseases, when no claim had been made in response to the earliest manifestations of disease, would cause potential problems. At paragraph 41 the court said There will, of course, be hard cases, however the line is drawn, but the discretionary remedy provided by sec 19A of the 1973 Act goes at least some distance to cater for these. When that jurisdiction is invoked it will, of course, be necessary to have regard to the interests of the defender as well as to those of the pursuer, regard being had to the principles enunciated by McHugh J in Brisbane South Regional Health Authority v Taylor (see [Bowden] v Poor Sisters of Nazareth ). But in a situation where prejudice may be caused on either hand the administration of justice rightly demands a balanced approach. The Damages (Asbestos Related Conditions) (Scotland) Act 2009 The provision at section 4(2) that the operative sections 1 and 2, making asymptomatic asbestos related diseases actionable, were to be treated as having always had effect is counting against people who were diagnosed with pleural plaques before October 2004 but had raised no action by October The purpose of the provision was to ensure that those who had raised an action before the Act came into force had an undisputed right of action. However it is now being used by defenders, in combination with the Aitchison decision, as a means of making time bar pleas against those who had not claimed earlier for pleural plaques but have now developed much more serious diseases. The provision removes the opportunity for a pursuer to argue that, so far as he or she was concerned, plaques were not a sufficiently serious injury to justify the bringing of court proceedings and that only the later onset of a more serious condition started the time bar clock. Horton v Sadler AC 307 This is a decision of the House of Lords in an appeal on the equivalent English statutory provision, section 33 of the Limitation Act The facts were that a claimant had suffered an injury in a road accident. The defendant was uninsured. The claimant s solicitors raised an action within the three year period of the accident, but failed to follow the rules relating to service on the Motor Insurers Bureau. They then raised a second action after the end of the three year period, this time complying with the MIB service rules. Although the decision was issued before the report of the SLC in 2007, it was not referred to in it. The case was particularly important because it overruled an earlier decision of the House of Lords on the interpretation of one aspect of the section. All of the members of the judicial committee (including Lord Rodger of Earlsferry) were in agreement. Lord Bingham of Cornhill said, at paragraph 35 In a straightforward case in which the appellant s delay was short and understandable, and caused the effective defendant no forensic prejudice at all, the judge was in my opinion entitled to view a motor Page 15

17 insurer (or in default the MIB) as the primary source of compensation for the victim of a road accident. Lord Hoffman said at paragraph 44 The Court of Appeal held [in Firman v Ellis [1978] QB 886] that the discretion was unfettered. Lord Denning MR said that it was a revolutionary step which alters our whole approach to time bars. So it did. Firman s case was on this point approved by the House of Lords in Thompson v Brown [1981] 1 WLR 744 and since then the practice of the courts has been regularly to exercise their discretion in favour of the plaintiff in all cases in which the defendant cannot show that he has been prejudiced by the delay. No matter how negligent the claimant s solicitors may have been in the simple skills of keeping a diary, the plea of limitation which the statute confers upon the defendant is, in the absence of forensic prejudice, described as a windfall of which he can properly be deprived. B v Ministry of Defence [2013] 1 AC 78 These cases were the test cases of service veterans who claimed they had developed a variety of illnesses following exposure to radioation during the testing of British nuclear weapons in the 1950s. Pleas of time bar were upheld in 9 out of the 10 test cases by a majority of the 7 Supreme Court Justices and the Court also refused to exercise discretion to extend the time limit. The cases illustrate the importance in the English courts of other circumstances beyond the factors listed in section 33(3) (similar to those it is proposed to introduce in Scotland), in particular the broad merits test. In these cases the majority held that the Court of Appeal had been correct to hold that, on the evidence available, the actions had no realistic prospect of success. Accordingly the discretion to override the time limit should not be exercised. The minority justices held that time had not even begun to run because there was insufficient evidence to establish that the claimants injuries were caused by the exposure so the claimants did not yet have constructive awareness. The correct approach to discretion to override the time limit 1. In principle, if the discretion is unfettered that ought to permit the court to examine the circumstances and decide if it is equitable to allow the case to proceed i.e. balance the interests of each party and decide what is more fair or unfair. Directing the court to specific factors should enable the court to show whether the appropriate balance has been struck. 2. The existence of the time limit should not be ignored but neither should the passing of the time limit by itself raise a presumption of prejudice in favour of the defender. 3. Proof of actual prejudice, or the likelihood of significant prejudice, in either case arising from events which have occurred since the commencement of the limitation period (or are likely to occur before trial) should be required, otherwise no prejudice should be presumed. Factor (c) of the SLC recommendation 15 should be reworded. The length of time is not critical. It is what has occurred during the period that is important. Page 16

18 4. Negligence on the part of the pursuer s advisers should be a factor but not necessarily decisive, bearing in mind that the state has an interest that wrongdoers, rather than third parties, should be held liable for the losses they cause. The approach in Horton v Sadler is to be preferred to that in Fleming v Keiller. 5. A pursuer should be able to rely on the whole circumstances, without having to find additional affirmative grounds, particularly if the defender can demonstrate no prejudice. The court should bear in mind that the obligation to make reparation for personal injury does not prescribe. 6. Additional factors should be added to the list as follows (a) Whether the injuries sustained by the pursuer were the result of the commission by the defender of a criminal offence, and (b) whether the defender has admitted liability at any stage before (or after) the expiry of the triennium. 7. The court should not weigh the merits of the action as a factor, bearing in mind time bar is normally a preliminary matter, unless (a) The pursuer would be likely to succeed in a motion for summary decree in the absence of the time bar plea, where the factor would weigh in the pursuer s favour, or (b) The pursuer s case has no realistic prospect of success on the merits, where the factor would weigh in the defender s favour. Question 3(e): Do you have views on potential options for reforms beyond those proposed by the Scottish Law Commission? We suggest that in the event that the Aitchison decision is not reversed through statutue section 4(2) of the Damages (Asbestos related Conditions) (Scotland) Act 2009 is amended to make clear that it was intended to be a transitional provision affecting only those cases in which proceedings had been brought prior to the commencement of the Act. Doing so would then permit persons who had developed an asymptomatic condition and had been advised of its presence more than three years prior to 17 October 2007 to contend that the injuries were not significantly serious to justify the bringing of court proceedings. The Aitchison decision would therefore not automatically force such persons who later develop a symptomatic condition to rely on the discretion of the court to permit their actions to proceed. Question 3(f): Do you agree that it is in the interests of justice that there should be only one limitation period following the discovery of a harmful act, during which all claims for damages for associated injuries must be brought? Question 3(g): Do you consider that there should be any exceptions to this principle? We consider that questions 3(f) and (g) ought to be dealt with together. Page 17

19 Firstly, it is of course not the discovery of a harmful act which gives rise to an action for compensation but the discovery of a sufficiently serious injury resulting from that act. If question 3F is intended to apply to that point in time, then yes, we agree that once an individual fulfils the criteria set down in Section 17 of the Prescription & Limitation (Scotland) Act 1973, then that individual ought to raise proceedings within a single limitation period. Claims for damages for associated injuries emerging at a later date can and should be dealt with in terms of the provisional damages legislation. However, what is key to this principle is what constitutes the start point for the limitation clock to start ticking. In the majority of personal injury actions there will be a clear point at which an injury is sustained and in most cases this will coincide with the harmful act which caused it. At this point, the injured party, provided there are no legal or physical barriers to him doing so, should raise proceedings timeously for the injuries sustained. However, there are a number of situations which may and do arise where the injured party may not commence legal proceedings: 1. Where he does not consider the injury to be sufficiently serious to give rise to an action for damages; 2. Where he is only later aware of psychological damage arising from physical harm; 3. Where he simply elects not to commence legal proceedings in respect of the injury he is aware of at that time. We do not contend that the clock does not start ticking at the point that the injured party becomes aware of the injury and its cause. We do, however, submit that the Courts must have greater flexibility and guidance as to how to deal with the facts surrounding a particular individual at a particular time following the discovery of an injury and we have explored this fully in our responses to questions 3D and 3E. However, we do think that the legal position could be clarified further specifically in relation to long tail disease cases where quite distinct injuries can emerge at varying times following the harmful act which caused them. The symptoms of many such diseases, such as asbestos related disease and noise induced hearing loss, often creep up on an individual over time. Injured persons are frequently reassured about any symptoms of minor disease by their treating doctors and only give thought to Court action when a more serious manifestation of the harmful act comes to light.. Clearly the most striking example of this over recent decades has been in relation to asbestos claims where an individual may well be told that he has pleural plaques but immediately advised that they are of no clinical concern and cannot be treated. That individual is often of the view that in that case there probably is no compensation available to him or that he simply cannot face the legal process for what might be a relatively small sum of money. If that individual then goes on to be diagnosed with asbestosis, not as a result of him having had pleural plaques, but as a result of him having been negligently exposed to asbestos, then he may take a far different view of progressing legal action. As matters stand, following the decision of Page 18

20 Aitchison, that individual would be time-barred in his claim for asbestosis. A far more extreme consequence of the position would be if that individual were to be diagnosed with mesothelioma which of course is invariably fatal. That claim, too, would be time-barred given the individual s decision not to progress with his pleural plaques claim. This situation has of course been inadvertently exacerbated by the implementation of the Damages (Asbestos Relation Conditions) (Scotland) Act 2009 which confirms by way of statute that pleural plaques in Scotland will be non negligible for the purposes of compensation. The Act also provides at Section 4(2) that:- Sections 1 and 2 are to be treated for all purposes as having always had effect, namely that pleural plaques and other symptomless asbestos related conditions are to be treated as always having been non-negligible. Insurers have of course used this provision, together with the Aitchison Decision, to argue that those with pleural plaques diagnosed more than 3 years ago are out of time to raise proceedings for subsequently emerging asbestos disease, including mesothelioma. Taken at face value, the 2009 Act removes the objective test of sufficiently serious from the analysis of whether an action is time-barred and leaves the Pursuer with no option but to throw himself at the mercy of the Court s discretion under Section 19A, a significant hurdle for most Pursuers. We would refer at this point to the Secretary of Justice s response to a parliamentary question tabled by Stuart McMillan, MSP, on 30 th January Mr MacAskill stated A claim for damages for mesothelioma should not be rejected simply because the limitation period for a claim for damages for pleural plaques has expired. We of course support this view and would urge that this opportunity to protect that position in statute not be missed and indeed that it extend beyond mesothelioma claims to include all separate and distinct injuries arising from a wrongful act where no previous claim has been made. Further examples include the individual who suffers noise induced hearing loss. When he then develops tinnitus, a separate and distinct result of excessive noise, he may again feel quite different about pursuing a claim for damages given the impact that that is having on his life. Perhaps the most striking injustice is the Aitchison case itself where those suffering the most awful abuse as children are denied redress for the significant psychological damage which becomes manifest in adulthood. A just and fair society cannot surely accept that that situation is one which Scotland can tolerate. The Commission consider the decision in Carnegie v- The Lord Advocate to be at odds with general principles of Scot s law. We cannot support that contention. We agree that once an action is commenced then all potential injuries must be accounted for within that action. There must, however, be a more flexible approach as to when the action should be commenced and we cannot imagine that the Scottish Government consider it desirable that Pursuers be required to make claims from what may be relatively minor injuries, even if that goes against their preferred course of action, simply to protect their interest in the event of the emergence of future damage. Page 19