Gray v North British Steel Foundry Ltd
| Jurisdiction | Scotland |
| Judgment Date | 22 April 1969 |
| Docket Number | No. 19. |
| Date | 22 April 1969 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Hunter.
Limitation of ActionsAction for solatium and loss of support arising from death of husband and fatherAction brought more than three years after deathWhether right of action accrued on deathWhether action one of damages for personal injuries to pursuersLaw Reform (Limitation of Actions, &c.) Act, 1954 (2 and 3 Eliz. II, cap. 36), sec. 6 (1) (b).
The Law Reform (Limitation of Actions, &c.) Act, 1954, enacts by sec. 6:"(1) No action of damages where the damages claimed include damages or solatium in respect of personal injuries to any person shall be brought in Scotland unless it is commenced (b) in the case of an action brought by a person to whom a right of action has accrued on the death of another person in consequence of injuries sustained by that other person, before the expiration of three years from the date of that death (3) In this section the expression personal injuries includes any disease "
In 1967 the widow and daughter of a workman who died in 1962 brought an action against his former employers for solatium and loss of support, averring that the death was due to pneumoconiosis contracted through their negligence.
Held that the pursuers' right of action accrued on the workman's death, and therefore that the action was time-barred under sec. 6 (1) (b).
The Lord President and Lord Migdale were of opinion that the action was one for damages for personal injuries to the pursuers. Lord Guthrie found it unnecessary to consider this point.
Opinion of Lord Avonside in Emslie v. Tognarelli's Executors and OthersUNK, 1969 S. L. T. 20, that sec. 6 of the 1954 Act does not apply to an action for solatium and loss of support brought by a wife in respect of the death of her husband,disapproved.
Limitation of ActionsAction for damages for personal injuriesAction by executrix for deceased's loss of wages during disability due to disease"Cause of action"Progressive diseaseDisease contracted before passing of Act creating time-barLoss of wages beginning after passing of ActLaw Reform (Limitation of Actions, &c.) Act, 1954 (2 and 3 Eliz. II, cap. 36), secs. 6 (1) and 7.
The Law Reform (Limitation of Actions, &c.) Act, 1954, provides by sec. 6 (1) that an action for damages which includes damages in respect of personal injuries (which, as defined, include any disease) must be commenced (a) in the case of an action brought by the person injured, within three years of the date of the act, neglect or default giving rise to the action; (b) in the case of an action brought by a person to whom a right of action has accrued on the death of another person in consequence of injuries, within three years of the death. Sec. 7 enacts:"(1) The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall expire at the time when it would have expired apart from the provisions of this Act (3) Save as aforesaid, nothing in this Act shall affect any action or proceeding if the cause of action arose before the passing thereof."
In 1967 the executrix of a workman brought an action against his former employers for payment of the wages he would have earned in their employment from the time when he ceased work through disability in November 1954 until his death in 1962. She averred that the disease which caused the disability and death was caused by their negligence, and that it existed in January 1954. As the Act was passed in June 1954, she contended that the cause of action arose before its passing, and accordingly that by virtue of sec. 7 her action was not time-barred.
Held (diss. Lord Guthrie) that the cause of action arose only when the deceased's loss of wages began; that, as this occurred in November 1954, after the passing of the Act, the exception provided by sec. 7 did not apply; and therefore that the action was time-barred by sec. 6 (1).
Lord Guthrie was of opinion that if, as the pursuer's averments would entitle her to prove, the deceased had, through the fault of the defenders, suffered material damage to his health at a date prior to the passing of the Act, a cause of action would have arisen by that date; that it was immaterial that the pursuer was not suing for reparation for that particular damage; and that she was therefore entitled to a proof before answer.
ProcessSummonsConclusionsAction of damages in respect of deathConclusions in one action for payment to relatives of solatium and to executrix of patrimonial loss to estateCompetency.
A workman was disabled and later died from a disease alleged to have been caused by his employers' fault. In an action brought against them by his widow and daughter and by his executrix the conclusions were (1) for payment to the widow and daughter of sums in name of solatium and loss of support, and (2) for payment to the executrix of a sum representing wages lost by the deceased during his disability. The defenders contended that it was incompetent to pursue both these claims in the same action, and that accordingly the whole action should be dismissed.
Held by the Lord Ordinary (Hunter), and acquiesced inon a reclaiming motion, that the action was competent.
Mrs Catherine M'Curdy or Gray, as an individual and as executrix of her husband, the late William Gray, and Elizabeth Alexia Gray, their daughter, brought an action against (first) the North British Steel Foundry Limited, and (second) William Gray and six others, being the whole remaining children of the first pursuer's marriage to the late William Gray. The summons was signeted on 1st June 1967. The action was defended only by the first-named defenders.
The conclusions of the summons were:"(1) For payment by the first-named defenders (a) to the first-named pursuer as an individual of the sum of seven thousand pounds sterling (7000), and (b) to the second-named pursuer of the sum of one thousand pounds sterling (1000), with interest on the said sums at the rate of five per cent per annum from the date of the decree to follow hereon until payment. (2) For payment by the first-named defenders to the pursuer as executrix of the late William Gray of the sum of four thousand pounds sterling (4000), with interest thereon at the rate of five per cent per annum from the date of citation until payment."
The following summary of the pursuers' averments, so far as material to this report, is taken from the opinion of the Lord President:"The action is in effect two actions with separate conclusions, one at the instance of the widow and daughter of a deceased workman, and the other by the widow as his executrix. He was employed as a sand-blast operator by the North British Steel Foundry Ltd. The ground of the action is that owing to their fault and breach of statutory duty he contracted pneumoconiosis at his work and ultimately died. The conclusions of the action are (1) for payment of a sum of damages to the widow as an individual and for a further sum of damages to the daughter, and (2) for payment of a third sum of money as damages to the widow in her capacity as executrix of her deceased husband. The dates which are of importance for present purposes are these. The deceased was employed by the defenders from 1922 until 1954, during which period he was exposed to siliceous dust. He contracted pneumoconiosis, and was suffering from this disease on 1st January 1954. The onset of the disease, as ascertained by a Pneumoconiosis Medical Panel which subsequently examined him, was back-dated to 1st January 1954. On 4th June 1954 the Law Reform (Limitation of Actions, &c.) Act, 1954, came into operation. He continued to work, earning full wages, until 13th November 1954, when he stopped work. He never worked again, and he died on 26th August 1962. Almost five more years elapsed before the present action was raised on 1st June 1967."
The pursuers pleaded, inter alia:"(1) The pursuers, having suffered loss, injury and damage through the fault and negligence of the first-named defenders, as condescended on, are entitled to reparation from them therefor. (2) The deceased having suffered loss through the fault and negligence of the first-named defenders as condescended on, the pursuer, as executrix foresaid, is entitled to payment of such sum as is due to the estate in respect of patrimonial loss."
The first-named defenders pleaded, inter alia:"(1) In respect of the action at the instance of the pursuers to which the first conclusion relates, the action by the first-named pursuer as executrix, being incompetent, should be dismissed. (2) Alternatively, in respect of the action at the instance of the first-named pursuer as executrix to which the second conclusion relates, the action by the pursuers as individuals, being incompetent, should be dismissed. (3) The pursuers' averments being irrelevant et separatim lacking in specification, the action should be dismissed. (4) The action being time-barred by virtue of the provisions of section 6 of the Law Reform (Limitation of Actions, &c.) Act, 1954, these defenders should be assoilzied."
After a Procedure Roll discussion the Lord Ordinary (Hunter) on 17th September 1968 repelled the first-named defenders' first and second pleas in law, sustained their third plea in law and dismissed the action.
The following opinions were issued on 22nd April 1969.
LORD PRESIDENT (Clyde).The question raised in this reclaiming motion concerns the meaning and effect of certain provisions in the Law Reform (Limitation of Actions, &c.) Act, 1954.1When the case was debated before the Lord Ordinary, there was also a question as to the competency of the action. He decided against the defenders on this matter and no attempt was made before us to challenge his decision on competency. He held, however, that the action in both its branches was time-barred under the Act, and it is against this decision that the pursuers have brought the present reclaiming motion.
[His Lordship gave the...
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