David T Morrison & Co Limited Trading As Gael Home Interiors V. Icl Plastics Limited+icl Tech Limited+stockline Plastics Limited

JudgeLord Mackay of Drumadoon,Lady Smith,Lady Paton
Judgment Date14 March 2013
Neutral Citation[2013] CSIH 19
CourtCourt of Session
Published date14 March 2013
Docket NumberA607/09
Date14 March 2013


Lady Paton Lord Mackay of Drumadoon Lady Smith [2013] CSIH 19



delivered by LADY PATON

in the reclaiming motion



Pursuers and Reclaimers;



Defenders and Respondents:


Pursuers and reclaimers: Howie QC, O'Brien; MacRoberts LLP

Defenders and respondents: The Dean of Faculty, Springham; HBM Sayers

14 March 2013


[1] On 11 May 2004, there was an explosion in the defenders' plastics factory. People were killed and injured. The pursuers' nearby shop suffered extensive damage. Subsequent investigations revealed that an underground pipe feeding liquefied petroleum gas (LPG) to an oven in the factory had become corroded and cracked, and had leaked LPG into the basement. The explosion was caused by the ignition of that explosive atmosphere.

[2] On 17 August 2007 in the High Court of Justiciary in Glasgow, the first and second defenders pled guilty to charges under section 33(1)(a) of the Health and Safety at Work etc Act 1974. Those charges alleged inter alia failure to make a suitable and sufficient assessment of the risks to the health and safety of employees by failing to identify that the pipework conveying LPG to the premises presented a potential hazard and risk; failure to appoint competent persons to assist in carrying out such risk assessments; failure to have a proper system of inspection and maintenance of the LPG pipework; and failure to ensure so far as reasonably practicable that the pipework was maintained in a condition that was safe and without risk to employees.

[3] The health and safety prosecution was followed by a public inquiry into the explosion. As is recorded at paragraph 6.94 of Johnston, Prescription and Limitation (2nd ed):

" ... it took a lengthy public inquiry to establish the cause of the explosion. [The inquiry] reported only in July 2009 ..."

[4] On 13 August 2009, the pursuers served a summons on the defenders. In that summons, reference was made to the pleas of guilty. In Article 5 of Condescendence, the pursuers averred that the explosion was caused by the fault and negligence of the defenders. They averred that the defenders failed to have in place a system of periodic inspections with a view to identifying any corrosion in the pipe at an early stage, and preventing any corrosion from developing to a point where it posed a danger of gas escaping. In Article 6 they averred a breach of the Pressure Systems Safety Regulations 2000. In Article 7 they averred that the escape of gas from the LPG pipe and the resultant explosion constituted a nuisance, under reference to negligence, breach of the 2000 Regulations, breach of section 3(1) of the 1974 Act, breach of regulation 5 of the Provision and Use of Work Equipment Regulations 1998, and breach of their duties under regulation 3 of the Management of Health and Safety at Work Regulations 1999. In Article 8 they described their losses, resulting in the damages claimed of £1.45 million.

[5] Defences lodged on behalf of the defenders contained an admission of liability, but also a plea-in-law to the effect that any obligation to make reparation had prescribed by reason of the quinquennial prescription as follows:

"3. Any obligation incumbent on the defenders, or any of them, arising out of liability to make reparation to the pursuer having been extinguished by the operation of the quinquennial prescription under section 6 of the Prescription and Limitation (Scotland) Act 1973, the action should be dismissed."

[6] The pursuers responded with the following plea-in-law:

"3. The commencement of the prescriptive period having been deferred until after five years before the commencement of the action as the pursuer would not in the exercise of reasonable diligence have earlier discovered that it had suffered loss as a result of [an] act, neglect or default, the defenders' pleas anent prescription should be repelled."

The legislation

[7] Sections 6, 11, and Schedule 1 of the Prescription and Limitation (Scotland) Act 1973 provide inter alia as follows:

"6. Extinction of obligations by prescriptive periods of five years

(1) If, after the appropriate date, an obligation to which this section applies has subsisted for a continuous period of five years -

(a) without any relevant claim having been made in relation to the obligation, and

(b) without the subsistence of the obligation having been relevantly acknowledged,

then as from the expiration of that period the obligation shall be extinguished ...

(3) In subsection (1) above the reference to the appropriate date, in relation to an obligation of any kind specified in Schedule 2 to this Act is a reference to the date specified in that Schedule in relation to obligations of that kind, and in relation to an obligation of any other kind is a reference to the date when the obligation became enforceable...

11. Obligations to make reparation

(1) Subject to subsections (3) and (3) below; any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of, a contract or promise) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred...

(3) In relation to a case where on the date referred to in subjection (1) above (or, as the case may be, that subjection as modified by subsection (2) above) the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware...



1. Subject to paragraph 2 below, section 6 of this Act applies -

... (d) to any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation;".

The Lord Ordinary's decision
[8] A debate on the issue of prescription took place before Lord Woolman.
On 9 March 2012, the Lord Ordinary sustained the defenders' plea of prescription, repelled the pursuers' pleas-in-law, and dismissed the action. His reasons are contained in paragraphs [33] et seq of his opinion. The pursuers reclaimed.

Submissions for the pursuers and reclaimers

[9] Senior counsel invited the court to allow the reclaiming motion, recall the Lord Ordinary's interlocutor of 9 March 2012, and remit the action back to the Outer House for a proof before answer on the question of prescription.

[10] The Lord Ordinary had dismissed the action on the ground that the pursuers could have proceeded on the basis of res ipsa loquitur, and thus that the prescriptive period started running on the day of the explosion. However the pursuers' contention was that it was necessary for them to make some investigation (in the exercise of reasonable diligence) into the cause of the explosion. The pursuers had been unaware that they had suffered loss caused by an act, neglect or default until a point in time which was well within the five year period. There was no presumption that a loss such as that suffered by the pursuers was caused by negligence. It was quite possible that there was no fault. It was only once the pursuers had carried out investigations and had ascertained the cause, or alternatively that it was not known what had caused the explosion (when res ipsa loquitur could be resorted to) that the prescriptive period began to run.

[11] Counsel referred to sections 6 and 11 of the 1973 Act. The pursuers' position was that, in terms of section 11(3), the prescriptive period began to run only when the pursuers became aware, or could with reasonable diligence have become aware, that the "loss, injury or damage caused as aforesaid [ie by an act, neglect or default]" had occurred. In the present case, the pursuers were not actually aware of those facts until a date within the five year period. It was accepted that the prescriptive period began to run once the pursuers knew that the loss had been caused by fault and negligence on the part of "someone". It was not necessary that the pursuers knew who that someone was (Greater Glasgow Health Board v Baxter Clark and Paul 1990 SC 237, pages 249 to 250, 252; Glasper v Rodger 1996 SLT 44, pages 47 to 48).

[12] Once the pursuers were aware of their loss, they had to take steps to find out what had caused that loss, and to find out whether there was some act or omission for which someone was liable to make reparation. Res ipsa loquitur could be relied upon only when steps had been taken to investigate the event, and a blank had been drawn. Each case depended on its particular facts. It might be immediately evident that one would never find the answer; or it could be a case where steps had to be taken to investigate, resulting in the discovery of negligence, or the discovery that there had been no negligence, or finally that an answer could not be found. In that latter situation, the pursuers could rely upon res ipsa loquitur, and the onus of establishing what had happened then passed to the defenders.

[13] The defenders relied heavily upon Lord Emslie's decision in AMN Group Ltd v Gilcomston North Ltd 2008 SLT 835, paragraph [58]. But that case did not vouch the proposition that res ipsa loquitur could form the ab initio basis of every case. On the contrary, the maxim could be relied upon only in certain circumstances (Scott v London & St Katherine's Docks Co 1865 3 H & C 596, at pages 666 to 667; Ballard v North British...

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