Brown v North British Steel Foundry Ltd
| Jurisdiction | Scotland |
| Judgment Date | 02 November 1967 |
| Docket Number | No. 6. |
| Date | 02 November 1967 |
| Court | Court of Session |
SC
Limitation of ActionsAction of damages for personal injuriesProgressive diseaseArising of cause of actionPursuer susceptible to disease and exposed to inducing causes until 1949Onset of disease not proved earlier than 1955Action raised in 1962Whether susceptibility and exposure sufficient to create "cause of action" by 1949Law Reform (Limitation of Actions, &c.) Act, 1954 (2 and 3 Eliz. II, cap. 36), secs. 6 (1) (a) and 7.
NegligenceRecord Specification Sufficiency of averments in relation to case established in evidenceMaster and ServantProcess.
ProcessDefencesAction of damagesPneumoconiosisAdmission by defenders on record that disease contracted through their fault while pursuer employed by them up to 1949Evidence led by both parties as to date of onset of diseaseNo objection by pursuerNo proof that onset of disease earlier than 1955Whether pursuer entitled after proof to found on admission as establishing onset of disease by 1949Conduct of proofEvidence.
The Law Reform (Limitation of Actions, &c.) Act, 1954, which was passed on 4th June 1954, provides by sec. 6 (1) that no action of damages for personal injuries (which, as defined, include any disease) shall be brought in Scotland unless it is commenced "(a) in the case of an action brought by a person in respect of injuries sustained by that person, before the expiration of three years from the date of the act, neglect or default giving rise to the action or, where such act, neglect or default was a continuing one, from the date on which the act, neglect or default ceased." Sec. 7, so far as it applies to Scotland, enacts:"(1) The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all material times been in force, whichever is the later. (3) Save as aforesaid, nothing in this Act shall affect any action or proceeding if the cause of action arose before the passing thereof."
A workman was employed from 1941 to 1949 in the dressing shop of a foundry, where he was exposed to siliceous dust. From 1949 to 1953 he was off work on account of pneumonia, which was not proved to be caused or aggravated by any damage to his lungs. He was employed at the foundry, on work which did not expose him to dust, from 1953 until 1958, when he was found to be suffering from pneumoconiosis. In 1959 a medical board held that it was impossible to establish a diagnosis of pneumoconiosis earlier than 1st January 1955.
In an action brought by him against his employers in 1962 the defenders admitted on record that the pursuer's pneumoconiosis was contracted through their fault while he was working in their employment in or before 1949, but they contended that the action was time-barred under sec. 6 (1) (a) of the 1954 Act. The pursuer's case on record was that his lungs had been damaged by his inhaling siliceous dust between 1941 and 1949, but after a proof, in which both parties without objection led evidence as to the date of the onset of the disease, he conceded that he had failed to prove that he suffered from it prior to 1955. He contended, however, that since in the pre-1949 period he had inhaled dust which created a condition in his lungs from which pneumoconiosis later resulted, he being susceptible to the disease, as subsequent events showed, and since the inhalation of dust was admittedly due to the defenders' fault, damnum andinjuria concurred to give him a cause of action by 1949, so that the case fell under sec. 7 of the 1954 Act and was consequently not time-barred. He further contended that the defenders' admission on record amounted to an admission that his pneumoconiosis was established by 1949 and that he was therefore entitled to succeed despite any defect in his proof.
Held (1) that the pursuer had no record for the case he ultimately sought to make; (2) that, as there was no damnum,but only the possibility of it, prior to 1955, when he first suffered from pneumoconiosis, he had no cause of action before the passing of the 1954 Act, and so sec. 7 did not apply to the case; and consequently (3) that the action was time-barred under sec. 6 (1) (a).
Cartledge v. E. Jopling & Sons Ltd.ELR, [1963] A. C. 758, applied.
Held further that the pursuer could not found on the defenders' admission as establishing liability, since the construction he sought to put upon it was proponed too late, after proof had been led as to the date of the onset of pneumoconiosis and witnesses had been examined on that matter without objection being taken.
Dictum of Lord Guest in M'Glone v. British Railways Board, 1966 S. C. H. L.) 1, at p. 14, applied.
Observed that the pursuer's proper course, if he wished to found upon the admission as establishing liability, would have been to challenge the defences as irrelevant.
Limitation of ActionsAction of damages for personal injuriesProgressive diseaseMaterial facts of decisive character outside knowledge of pursuerExtent of injuriesLimitation Act, 1963 (cap. 47), secs. 8 (1) and (3) and 13 (3) and (4).
Sec. 6 (1) of the Law Reform (Limitation of Actions, &c.) Act, 1954, provides, inter alia, that an action of damages for personal injuries (which, as defined, include any disease) must be brought within three years of the act, neglect or default giving rise to the action. Sec. 8 of the Limitation Act, 1963, enacts by subsec. (1) that sec. 6 (1) of the 1954 Act "shall not afford any defence to an action to which this section applies, in so far as the action relates to any right of action in respect of which the requirements of subsection (3) of this section are fulfilled." Subsec. (3) enacts:"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 included facts of a decisive character which were at all times outside the knowledge of the pursuer Until a date which (b) was a date not earlier than twelve months before the date on which the action was brought."By sec. 13 (3) "material facts" include "(b) the extent of the personal injuries " Sec. 13 (4) provides, in effect, that any of the material facts relating to a right of action shall be taken, at any particular time, to have been facts of a decisive character if they were facts which a reasonable person, knowing those facts and having obtained appropriate advice with respect to them, would have regarded at that time as determining, in relation to that right of action, that (apart from any defence under sec. 6(1) of the 1954 Act) an action would have a reasonable prospect of resulting in an award of damages sufficient to justify the bringing of the action.
On 23rd November 1962 a workman brought an action of damages against his employers in respect of pneumoconiosis which he alleged he had contracted through their negligence. The disease had been diagnosed in 1958, and by 23rd November 1961 the degree of his disability arising from it had been assessed first at 10, then at 20, and finally at 30 per cent. He contended, however, that he did not know on 23rd November 1961 the extent of his injuries, since the disease must have progressed between that date and the bringing of the action.
Held by the Lord Ordinary (Walker), and acquiesced inby the pursuer on a reclaiming motion, that, while the disease must have progressed in the twelve months prior to the bringing of the action, a reasonable person, knowing the facts established by 23rd November 1961, and having obtained appropriate advice, would have regarded them as determining that an action would have a reasonable prospect of resulting in the award of damages sufficient to justify the bringing of the action; that nothing of a decisive character happened after 23rd November 1961; and accordingly that the time limit imposed by sec. 6 (1) of the 1954 Act was not excluded.
Joseph Tennant Brown brought an action of damages against the North British Steel Foundry Limited, on the ground that through their negligence he had contracted pneumoconiosis while working in their employment. The summons was signeted on 23rd November 1962.
The parties averred, inter alia:(Cond. 2) "In or about January 1941 the pursuer entered the employment of the defenders. From then until 28th May 1949 the pursuer was continuously employed by the defenders as a castings cleaner. He worked in the old dressing shop, which was a brick building running east and west and measuring 315 feet in length and 39 feet in breadth with doors at each end opening to the outside. There were no windows in the walls of the said building, the only ventilation being through fixed vents in the apex of the roof and through the doors. The floor until about the year 1949 was of earth, which was watered twice a week and never swept. In 1949 part of the said floor was laid with concrete. About the middle of the south wall of the said building was situated a sandblast chamber, which was partly inside and partly outside the said dressing shop. A set of rails ran into the said chamber from the dressing shop. On these rails ran bogies, which carried the castings in and out of the chamber. The chamber had double doors made of wood, which did not fit properly when closed. In particular they did not fit properly over the said set of rails and this allowed dust to escape from the chamber into the atmosphere of the dressing shop. In addition the walls of the chamber inside the dressing shop frequently had holes in them, which allowed dust to escape into the dressing shop. The pursuer's own work of cleaning castings also involved the spread of dust containing siliceous and metallic particles into the atmosphere about the pursuer's breathing zone, and he was further exposed to dust created by...
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