Campbell v Stirlingshire County Council
| Jurisdiction | Scotland |
| Judgment Date | 23 February 1954 |
| Docket Number | No. 25. |
| Date | 23 February 1954 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Hill Watson.
Limitation of ActionsTime limitAction for declarator and payment of arrears of salary"Continuance of injury or damage"Date from which time limit runsPublic Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), sec. 1.
By the Public Authorities Protection Act, 1893, sec. 1, an action against any person in respect of any act or default in the execution of any public duty must be commenced within six months after the act or default complained of, "or, in the case of a continuance of injury or damage, within six months next after the ceasing thereof."
A school teacher brought an action against a local authority for declarator that he had been entitled over a period of several years to additional remuneration known as "responsibility element" and for payment of the sum due to him in respect of that period. His claim for payment had been refused by the local authority more than six months before he brought his action, and at the date of their refusal his tenure of the appointment in question had already terminated.
Held (rev. judgment of Lord Hill Watson) that the continuing refusal of the local authority to meet the teacher's claim did not constitute "continuance of injury or damage" in, the sense of the Public Authorities Protection Act, 1893, sec. 1, and that the action was therefore time-barred.
Mitchell v. Aberdeen Insurance Committee, 1918 S. C. 415, followed.
Lanarkshire Upper Ward District Committee v. Airdrie, Coat-bridge, and District Water TrusteesUNKSC, (1906) 8 F. 777,commented on.
Joseph Campbell, Schoolmaster, residing at 33 Livingstone Park, Kilsyth, brought an action against the County Council of the County of Stirling in which he concluded (1) for declarator that he was entitled in terms of the Teachers' Salaries (Scotland) Regulations, 1945, and the Teachers' Salaries (Scotland) Regulations, 1948, to payment from the defenders of responsibility element (a) for the period 1st April 1945 to 31st March 1948 in terms of the Regulations of 1945 and (b) for the period 1st April 1948 to 31st March 1950 in the Regulations of 19481; and (2) for payment by the defenders to him of the sum of 418, 15s. The summons was signeted on 20th February 1953.
The pursuer's averments, shortly stated, were that in 1933 he had been appointed teacher of art in St Modan's High School, Stirling, a school approved in terms of sections 7 and 65 of the Education (Scotland) Act, 1946, as making provision for a course of secondary education extending over not less than five years; that from 1st April 1945 to 31st March 1950 he had fulfilled the functions of principal teacher of art in the said school, without being expressly designated or appointed "principal" teacher of art; that on various occasions he had made application to the defenders for formal recognition of his position, without success; that in terms of the Teachers' Salaries (Scotland) Regulations of 1945 and 1948 he had been entitled during the said period to payment of additional "responsibility element" amounting in toto to 418, 15s.; and that he had made repeated application to the defenders for payment of this sum, but they had refused to make payment.
The defenders averred in answer that the pursuer had applied to them for payment of "responsibility element" by letter through his solicitors on 26th September 1951, that they had refused his claim, and that they had intimated their refusal to him by letter to his solicitors on 15th November 1951. These averments were admitted by the pursuer under reference to the correspondence.
The defenders pleaded, inter alia:"(3) The present action, having been commenced against the defenders in respect of an alleged neglect or default in the execution or intended execution of an Act of Parliament and of a public duty, and not having been commenced within six months next after the neglect or default complained of, is excluded by the Public Authorities Protection Act, 1893, section 1,2 and should be dismissed, with expenses taxed as between solicitor and client."
On 16th December 1953 the Lord Ordinary (Hill Watson), after a hearing in the Debate Roll, repelled the third plea in law for the defenders and allowed a proof before answer.
At advising on 23rd February 1954.
LORD JUSTICE-CLERK (Thomson).In this action of declarator and payment the pursuer seeks to be remunerated by the defenders on the basis of being a principal teacher of art for the period 1st April 1945 to 31st March 1950. The pursuer was admittedly a teacher of art but was not expressly appointed a principal teacher. He avers, however, that he acted as such, and one of the questions in the case is whether his averments are relevant to infer that during this period he performed the function of a principal teacher and therefore falls to be remunerated as a principal teacher.
There is, however, a prior question as to whether the action is barred by the Public Authorities Protection Act, 1893.15 The facts relevant to this issue are that, whatever may have been the precise employment in respect of which the pursuer claims additional remuneration, the latest date at which he avers it was payable is 31st March 1950. On 26th September 1951 the pursuer through his solicitors applied for payment of what he now claims. This claim was considered by the defenders and refused, intimation of the refusal being made by letter to the pursuer's solicitors on 15th November 1951. The summons in the present action was signeted on 20th February 1953.
By the Public Authorities Protection Act, 1893,16 section 1, an action against any person in respect of any act, neglect or default in the execution of any public duty must be commenced within six months after the act, neglect or default complained of, "or, in the case of a continuance of injury or damage, within six months next after the ceasing thereof."
The statute is not easy to interpret, and we have frequently been told that it must be narrowly scrutinised. However that may be, the words of Lord President Clyde in Brownlie & Son v. Magistrates of Barrhead,17 at p. 929, pronounced as they were with a full appreciation of the difficulties, can safely be regarded as authoritative. "It is settled that the continuance of the injurious effects caused by an accident is not a continuance of injury or damage in the sense of the statuteSpittal v. Corporation of GlasgowUNK.18 Now, if the statutory six months could never begin until the injurious effects of the alleged act, neglect or default had ceased, the leading enactmentnamely that action must be raised within six months next after the act, neglect, or default complained ofcould hardly ever come into operation. There can be few injuries that are momentary and do not last for a time more or less considerable. I think it is the occurrence of the cause of action which is intended to mark the punctum temporis from which the six months are to run. And, inasmuch as a claim to reparation arises only where an act, neglect or default is accompanied by consequent loss or damage, it follows that thepunctum temporis must be one at which injuria anddamnum concur. The damnum need not be exhausted, but it must at least have begun. If this is correct with reference to the leading part of the enactment, it is hard to believe that the statute intended to apply a different principle to the case of a continuance of injury or damage. The use of the disjunctive or between the words injury and damagedistinguishable as the connotations of those two words areundoubtedly raises a difficulty. But I think the only consistent reading of the statute is to construe the cessation of a continuing injury or damage as referring to the case of an act, neglect or default which is in itself continuous and inflicts continuous loss and damage. The punctum temporis in such a case is reached as soon as the neglect or default and the consequent damage cease to concur."
It is under the concluding words of the section and the latter part of the Lord President's exposition that the pursuer tries to bring his case. He says that the defenders owe him money and that, as they are wrongfully withholding it, there is a continuance of injury and damage which has not yet ceased and indeed can cease only when the omission is remedied and payment made. The pursuerfor obvious reasonsinsists that he is not basing his case on breach of contract but on the continuing omission to make the payment which the Education Act
and the Regulations enjoin, this omission constituting both the injury and the damageThere is perhaps a superficial speciousness in regarding a continuing failure to pay what is due as a continuing neglect or default, but, in my opinion, the continuing failure to pay is the result of a neglect or default which has itself ceased. It is not truly the injuriawhich continues after the due date, but the damnum. The pursuer's attempt to bring his case within the concluding words of the section fails because they are not applicable to debts. The analogy between the continuing deprivation of money due and the continuing physical injuria which ordinarily falls within the words is a false one.
I do not require to develop this, as the point appears to be concluded against the pursuer by a case which was not before the Lord Ordinary. InMitchell v. Aberdeen Insurance Committee19 an Insurance Committee constituted under the National Health Insurance Acts, having decided to make a deduction in respect of extravagant prescribing from the amount due to a medical practitioner, and having, in pursuance of this decision, withheld a sum from the practitioner, the latter brought an action of reduction of this decision. Accordingly the pursuer's case was that he was entitled to a larger sum than he was receiving and that the withholding of the sum said to have been extravagantly prescribed was unwarranted. The defenders having pleaded section 1 of...
To continue reading
Request your trial
-
Watson v Fram Reinforced Concrete Company (Scotland) Ltd and Winget Ltd
...rightly. It rested on two cases, Brownlie & Son v. Magistrates of Barrhead, 1923 S.C. 915, and Campbell v. Stirlingshire County Council, 1954 S.C. 197. In these cases the Court was concerned with the construction of the Public Authorities Protection Act, 1893, and in particular of the words......
-
Watson v Fram Reinforced Concrete Company (Scotland) Ltd and Winget Ltd
...of Actions, (3rd ed.) p. 210. 12 2 and 3 Geo. VI, cap. 21. 13 Counsel also referred to Campbell v. Stirlingshire County CouncilSC, 1954 S. C. 197. 14 Donoghue v. StevensonSCELR, 1932 S. C. (H. L.) 32, Lord Atkin, at p. 57, [1932] A. C. 562, at p. 15 Brownlie & Son v. Magistrates of Barrhead......