Amanda Sutherland Chinn V. Cyclacel Limited
| Jurisdiction | Scotland |
| Judge | Lord Woolman |
| Neutral Citation | [2013] CSOH 17 |
| Date | 30 January 2013 |
| Docket Number | A619/09 |
| Court | Court of Session |
| Published date | 30 January 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 17 | |
| A619/09 | OPINION OF LORD WOOLMAN in the cause AMANDA SUTHERLAND CHINN Pursuer; against CYCLACEL LIMITED Defenders: ________________ |
Pursuer: Anderson QC, Hodge; Balfour + Manson LLP
Defender: Ellis QC; bto
30 January 2013
Introduction
[1] In 2003 the pursuer raised an action of damages against the defenders. She claimed that she had sustained an injury to her upper limbs arising out of repetitive tasks she did at work. The defenders challenged the relevancy and specification of the summons. After a debate in 2007, Lord McEwan dismissed the action. He held that the pursuer's averments were deficient both on the merits and in relation to loss. The pursuer marked an appeal. Shortly before the reclaiming hearing in late 2008, the pursuer sought to amend her pleadings. The Inner House refused the motion.
[2] In light of that refusal, the pursuer chose not to insist in the appeal. Instead she raised the present action in June 2009. It arises out of the same facts as the earlier action, but differs from it in certain respects. The case on the merits has been recast. In addition the pursuer now gives a more specific diagnosis of her medical condition. This action was also sent to debate at the instance of the defenders. In March 2010 Lady Smith held that it was time-barred. But she allowed a preliminary proof on the question of whether the Court should exercise its discretion to allow the action to proceed in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973.
[3] Prior to the preliminary proof, counsel reached agreement about a number of matters, including a detailed chronology of events. In consequence, it was only necessary to call four witnesses. The pursuer led the evidence of Mr Robert Carr, the solicitor who formerly acted for her, and Professor Peter Buckle, ergonomist. The defenders' witnesses were Mrs Suzanne Elland, who took over the pursuer's job with the defenders; and Dr Richard Graveling, ergonomist. Counsel agreed that this is a novel application. In the great run of cases involving section 19A, the pursuer has failed to raise an action before the expiry of the triennium. Here the pursuer invites the court to exercise its discretion after a timeous action has failed.
The Facts
[4] The chronology of events is very important to the decision in this case. It is therefore necessary to set out the facts in some detail. The pursuer was born on 4 April 1973 and is now aged 39. She worked for the defenders as a research assistant from January 1999. Initially her services were contracted through a recruitment agency. She became an employee on 1 February 2000. Part of her job involved pipetting samples. She ceased carrying out these tasks in March 2000, but her employment did not formally terminate until November 2000. She claims that the task was repetitive and strenuous and that in consequence she developed various problems in her hands and arms. Initially the medical experts were unable to come to a firm diagnosis. They classified her problem as work-related upper limb disorder ('WRULD'). It is now accepted, however, that she suffers from compartment syndrome and intersection syndrome.
[5] The pursuer consulted Anderson Strathern ("the firm") on 9 August 2000, where she saw an employment law specialist within the firm. He made a claim to the Employment Tribunal on her behalf. As it was believed that the pursuer might also have a personal injury claim, the case was referred at the same time to Mr Carr, the head of the firm's court department. He qualified as a solicitor in 1982, became a solicitor advocate in 1994, and is an accredited specialist in personal injury and medical negligence. He became chairman of the firm in 2005.
[6] A qualified solicitor within the firm's court department took a detailed witness statement from the pursuer on 14 August 2000. The firm then submitted an application to the Scottish Legal Aid Board ("the Board") for legal advice and assistance. The tribunal claim resolved by means of an extra judicial settlement in July 2001.
[7] On 10 May 2002 the firm intimated a claim to the defenders. On 10 October 2002 it instructed Mr David Aaron, consultant orthopaedic surgeon, to examine the pursuer. In his report dated 26 November 2002, he concluded: "This is a most unusual case, in that an unusual form of suspected repetitive strain injury has caused persistent symptoms for over 21/2 years and is ongoing. In clinical practice, this is virtually unknown." He suggested that there might be a psychological component to the problem and thought that there would be a full recovery.
[8] Mr Carr met the pursuer on 12 December 2002. He explained the various difficulties facing her claim, in particular the uncertain diagnosis made by Mr Aaron. Mr Carr agreed to seek sanction for a second medical opinion.
Proceedings in the Outer House
2003
[9] The triennium was due to expire in early March 2003, as the pursuer's last working day was 3 March 2000. Accordingly on 17 February 2003 the firm raised an action against the defenders seeking damages of £200,000. The summons alleged that they had breached their common law and statutory duties of care toward the pursuer. It was signetted shortly before the introduction of chapter 43 proceedings. The pleadings were therefore more extensive than would be common in a personal injury action today. On 21 March the action was sisted to enable the pursuer to apply for legal aid.
[10] During 2003, the firm obtained an increase in legal aid to carry out various investigations. It arranged for the preparation of a video showing the nature of the pursuer's work with the defenders. It instructed a report from Dr Paul MacLoughlin, occupational physician. In 1998 he had published a book entitled RSI and Work Related Upper Limb Disorders. In 2005 he published Understanding and Treating RSI. The firm's letter of instruction dated 28 January states in the heading "work-related upper limb disorder (bilateral)". It enclosed a comprehensive review of the medical texture prepared by the pursuer with the aid of her family. Mr Carr explained that while she has a master's degree, her father is an epidemiologist and her mother a nurse. Dr MacLoughlin examined the pursuer on 24 April and provided a report dated 15 May. He concluded that she suffered from upper limb disorder, which was work-related. He believed that her long term prognosis was good. The firm sent a copy of the report to her on 20 May for her comments.
[11] The firm also instructed Professor Buckle, ergonomist. At that time he was Director of the Robens Centre for Health Ergonomics at the University of Surrey. He is now at Imperial College London. In his report dated 29 September he concluded that there was a causal link between the pursuer's upper limb disorder and her work: "I am of the view that the most likely cause of [her] injury was the period of increasingly intense pipetting that she undertook immediately prior to the onset." The firm recovered the pursuer's medical records from her general practitioner in early October.
[12] During that year, the defenders were also investigating the claim. Dr Campbell Semple, consultant orthopaedic surgeon, examined the pursuer on their behalf in November. He concluded that:
"I am of the firm opinion that what I am seeing here is simply illness behaviour. Ms Chinn is producing a whole range of complaints, none of which are supported by any objective abnormalities on clinical examination, and she is claiming that she is suffering from a nebulous concept of "work related upper limb disorder". In my opinion, this young lady's forearms, wrists and hands are normal in all respects and there is no physical reason why she should not be able to carry out a whole range of duties, including pipette work or similar tissue culture work if she so wished."
2004
[13] The firm applied for a full legal aid certificate for the pursuer on 3 February 2004. The defenders' agents objected to that and various subsequent applications. On 16 June the Board requested a note on quantum to assist in its deliberations. The firm precognosed the pursuer again on 25 June and sent a quantification of her claim by letter dated 7 July. The Board granted legal aid for the action on 16 July. The sist was recalled on 12 August. By letter dated 10 September the firm instructed counsel to prepare adjustments. During October, further precognitions were taken from various witnesses. At the instance of the pursuer, the cause was kept on the adjustment roll for a lengthy period during late 2004 and early 2005.
2005
[14] The record closed on 19 January 2005. In the preceding week, however, a consultation took place at which counsel discussed further revision of the pursuer's pleadings. On 16 February the firm lodged a minute of amendment. It included brief averments relating to loss and increased the sum sought to £450,000. On 28 April the firm took a precognition from Barry Williams, who had prepared the 2003 video. The defenders lodged answers amplifying a number of matters in the defences. On 16 June, this particular chapter came to an end. The closed record was opened up and amended in terms of the minute and answers.
2006
[15] A by order (adjustment) roll hearing took place on 1 February 2006, when the case was sent for debate at the instance of the defenders. By letter dated 1 March their agents intimated a note of arguments. It contained detailed criticisms of both the common law and statutory cases maintained by the pursuer. By email dated 26 April the firm sought junior counsel's views on the note. The next day she replied recommending (a) the instruction of senior counsel, and (b) a consultation with Professor Buckle and Dr MacLoughlin prior to the debate.
[16] On 25 May the firm wrote to the Board seeking sanction for employment of senior counsel. On 9 June the application was refused, on the basis...
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