Carnegie v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 28 March 2001 |
| Date | 28 March 2001 |
| Docket Number | No 63 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Lord Osborne
Prescription and limitationReparationWhether subjective or objective factors relevant in determining that injuries were sufficiently serious to justify bringing actionWhether psychological injury constituted a separate and distinct injury from physical injury and subject to different trienniumPrescription and Limitation (Scotland) Act 1973 (cap 52), sec 17(2)(a), 17(2)(b)(i)1
ProcessPleadingsRelevancyWhether sufficient basis on record for evidence led at preliminary proofWhether objection timeous
Section 17(2) of the Prescription and Limitation (Scotland) Act 1973 provides that actions for personal injury must be brought within a period of three years after (a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or (b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, 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 all the following facts: (i) that the injuries in question 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.
The pursuer brought an action for reparation in respect of loss, injury and damage which he claimed to have sustained as a result of deliberate wrongful acts of mistreatment of him by named non-commissioned officers during his army service, and of omissions on the part of named non-commissioned and commissioned officers to take steps to deal with the bullying regime in which such acts took place. On 23 July 1991 the pursuer joined the army, and received basic training at Penicuik. Throughout his basic training he claimed to have been subjected to a regime of physical assaults and extortion. On 28 February 1992 he was stationed in Northern Ireland. He averred one instance of assault during his service in Northern Ireland. On 21 March 1992 he was stationed in Cambridge. In May 1992 he developed psychological injuries. In July 1992 he was discharged from the army. On 7 March 1995 the summons was signetted and served on the defender. The pursuer sought damages in respect of both physical and psychological injuries. At procedure roll on the defender's plea of time-bar, the Lord Ordinary (Lady Cosgrove) allowed a preliminary proof before answer. Following the preliminary proof before answer the Lord Ordinary (Osborne) repelled the defender's plea of time-bar and allowed a proof before answer, holding that the pursuer's evidence of events in Northern Ireland indicated a regime of bullying continuing within the triennium in terms of sec 17(2)(a). The Lord Ordinary indicated that had he required to consider sec 17(2)(b)(i), he would have regarded the incidents as sufficiently serious to justify the bringing of the action by the end of 1991. The defender reclaimed, arguing that there was no basis on record for any course of
conduct in Northern Ireland and that timeous objection had been made to the leading of such evidence. The pursuer cross-appealed, arguing that the pursuer's personal circumstances ought to have been given more weight for the purposes of sec 17(2)(b)(i), and that the psychological injuries were separate and distinct from the physical injuries and subject to a different limitation periodHeld (1) that there was no basis on record for mistreatment of the pursuer in Northern Ireland other than the specific allegation of an assault, timeous objection to the line of evidence had been taken, and accordingly the Lord Ordinary was not entitled to hold that the bullying regime extended to the pursuer's service in Northern Ireland (per Lord Milligan p 808G); (2) that while in terms of sec 17(2)(b)(i) it may be appropriate to have regard to the gravity of a particular injury to a particular pursuer, 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 or to consider factors such as fear of losing one's job (per Lord Johnston pp 812C813B); (3) that the claim based on physical injury from the assaults up to 1991 and in relation to the assault in Northern Ireland was time-barred (per Lord Johnston pp 813BC and 814BC); but (4) that the psychological injuries developing in May 1992 were a separate or distinct injury subject to a separate triennium under sec 17(2)(a) (per Lord Johnston pp 813B814C); and reclaiming motion allowed and cross-appeal allowed and interlocutor of the Lord Ordinary allowing proof before answer retained under deletion of certain averments.
Shuttleton v Duncan Stewart & Co Ltd 1996 SLT 517 followed.
Andrew Carnegie raised an action for damages for personal injury against the Lord Advocate as representing the Ministry of Defence. The defender tabled a plea of time-bar. Following procedure roll on 20 June 1997 the Lord Ordinary (Lady Cosgrove) allowed a preliminary proof before answer by interlocutor dated 24 July 1997. (1998 SLT 872) A diet of preliminary proof was fixed for 10 March 1998, but had to be discharged as a result of uncertainty surrounding the scope of the inquiry. On 2 October 1998 the interlocutor allowing the preliminary proof was corrected (1999 SLT 521). The preliminary proof was held on 69 July 1999 before the Lord Ordinary (Lord Osborne), who repelled the plea of time-bar and allowed a proof before answer by interlocutor dated 13 January 2000 (2000 SLT 806). The defender reclaimed, and the pursuer cross-appealed.
Cases referred to:
Albacora SRL v Westcott & Laurence Line LtdSC 1966 SC (HL) 19
Blake v Lothian Health Board 1993 SLT 1248
Carnegie v Lord Advocate 1998 SLT 872
Dobbie v Medway Health AuthorityWLR [1994] 1 WLR 1234
Dunlop v McGowansSC 1980 SC (HL) 73
Ferla v Secretary of State for Scotland 1995 SLT 662
Hamilton v John Brown & Co (Clydebank) Ltd 1969 SLT (N) 18
McCafferty v Metropolitan Police District ReceiverWLR[1977] 1 WLR 1073
McGlone v British Railways BoardSC 1966 SC (HL) 1
McGrath v National Coal BoardUNK unreported 4 May 1954
Miller v London Electrical Manufacturing Co LtdUNK [1976] 2 Lloyd's Rep 284
Morrison's Associated Companies Ltd v James Rome & Sons LtdSC 1964 SC 160
O'Donnell v Murdoch McKenzie & Co LtdSCSC 1966 SC 58 1967 SC (HL) 63
Shuttleton v Duncan Stewart & Co Ltd 1996 SLT 517
The cause called before an Extra Division, comprising Lord Milligan, Lord Marnoch and Lord Johnston for a hearing on the summar roll on 1316 February 2001.
At advising on 28 March 2001
LORD MILLIGAN[1] This reclaiming motion concerns time-bar. The respondent's action was signetted and served on the reclaimer on 7 March 1995. The respondent claims damages from the reclaimer for loss, injury and damage which the respondent claims to have sustained as a result of deliberate wrongful acts of mistreatment of the respondent by named non-commissioned officers during the respondent's army service, and to omissions on the part of named non-commissioned and commissioned officers to take steps to deal with the bullying regime in which such acts took place. The respondent joined the Royal Highland Fusiliers on 23 July 1991 and did his basic training based at Glencorse Barracks, Penicuik, until 28 February 1992, thereafter being stationed in Northern Ireland until 21 March 1992 and thereafter at Battalion Headquarters, Cambridge. The respondent was discharged from the army in July 1992.
[2] In his opinion, the Lord Ordinary sets out the procedural history of this case up to the point where he heard a preliminary proof upon the reclaimer's contention that the action was time-barred in terms of the Prescription and Limitation (Scotland) Act 1973, sec 17 as substituted by the Prescription and Limitation (Scotland) Act 1984. It is unnecessary for present purposes to rehearse that history. The important point is that the issue before the Lord Ordinary at the preliminary proof concerned the application of sec 17(2) of the 1973 Act, the respondent's contention that the court should exercise the equitable discretion available to it under sec 19A of the 1973 Act (as inserted by the Law Reform (Miscellaneous Provisions)(Scotland) Act 1980, sec 23(a)) having been excluded previously at a procedure roll hearing. Following the preliminary proof, the Lord Ordinary sustained submissions on behalf of the reclaimer relating to the application of sec 17(2)(b)(i) and sec 17(2)(b)(ii) of the 1973 Act. His decision on those matters is the subject of the cross appeal by the respondent. However, the Lord Ordinary held that under sec 17(2) of the Act the action was not time-barred on the crucial grounds that certain evidence given by the respondent as to the treatment of him by a Sergeant Major Frew in Northern Ireland in March 1992 had the effect of rendering the reclaimer's acts and omissions complained of, involving as they did on the respondent's averments a regime of bullying, a continuing cause of action which had not ceased by the commencement of the triennium. It appears that Sergeant Major Frew was the respondent's Company Sergeant Major when he was in Northern Ireland. The contention for the reclaimers before the Lord Ordinary, and before us, was that the evidence concerned was not covered by the respondent's pleadings and had been timeously objected to at the preliminary proof. The respondent's position at the preliminary proof, and before us...
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...then as of right bring against the wrongdoer an action seeking damages for the subsequent injury? [2] In Carnegie v Lord Advocate 2001 SC 802 an Extra Division in effect decided that he could. The primary question for this court is whether that decision was sound in law. [3] The answer to t......
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