GREENHORN v J. SMART & COMPANY (CONTRACTORS) Ltd
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1979 |
| Docket Number | No. 36. |
| Date | 28 June 1979 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Kissen.
Limitation of actionsAction of reparation in respect of personal injuriesNew allegations of fault made by pursuer after expiry of three years after the accidentWhether allegations time-barredPrescription and Limitation (Scotland) Act 1973 (cap. 52), sec. 17 (1)*.
ProcessMotions incidental to an actionMotion for leave to amendStage at which amendment allowedMotion or procedure roll.
A building labourer raised an action of reparation against his employers in respect of injuries sustained by him in an accident which occurred on 28th August 1973 in the course of his employment. The action was signeted on 3rd August 1976 and the record closed on 5th July 1977. At the time of the closing of the record the pursuer's averments were to the effect that he was taking a basin of stone chips up a ladder. When
he attempted to place the basin on a batten positioned above him, the basin overturned, fell on top of him and caused him to fall to the ground. It was averred that the batten was insufficiently wide for the basin to be rested on it in safety. The pursuer's case was a common law one founded on unsafe system of work. On 4th May 1978 a minute of amendment for the pursuer was allowed to be received. The pursuer's amended case was that when he was about to place the basin on the batten, the ladder which was not secured at or near its top suddenly moved, causing him to fall. The amended case was based on the failure to provide a safe working place and access thereto and also incorporated allegations of breach of statutory duty. The defenders' answers to the minute contained a plea to the effect that the averments in the minute should not be admitted to probation in respect that they were time-barred in terms of sec. 17 of the Prescription and Limitation (Scotland) Act 1973. The Lord Ordinary, on the opposed motion of the pursuer, allowed the closed record to be amended in terms of the minute and answers but sent the cause to procedure roll on the defenders' new plea. At the procedure roll the Lord Ordinary (Kissen) sustained the defenders' plea. The pursuer reclaimedHeld (1) that the test of whether the pursuer's averments were time-barred or not depended upon whether they changed the basis of the pursuer's case; (2) that whether that test had been satisfied or not was inevitably one of degree; (3) that the effect of the amendment here was to change fundamentally and radically the essence of the pursuer's case and his original basic complaint; and reclaiming motion refused.
Observed that the questions raised by the defenders' plea should have been dealt with at the stage of the motion to allow the closed record to be amended.
John Greenhorn brought an action of damages against J. Smart & Company (Contractors) Limited concluding for payment of the sum of 15,000 in respect of personal injuries allegedly sustained by him. The summons was signeted on 3rd August 1976. The record closed on 5th July 1977 and a proof before answer was fixed for 11th July 1978. On 4th May 1978 a minute of amendment for the pursuer was allowed to be received and answered by the defenders. The defenders' answers contained the following first plea in law: "The pursuer's averments in his minute of amendment being time-barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973, they should not be admitted to probation." On 20th June 1978 the pursuer moved the Court to allow the closed record to be opened up and amended in terms of the minute and answers. The motion was opposed by the defenders on the ground, inter alia, that the pursuer's amendment sought to alter fundamentally the basis of his case on record after the expiry of the time limit prescribed by the Prescription and Limitation (Scotland) Act 1973. The pursuer's motion was allowed by the Lord Ordinary (Brand) but the cause was sent to procedure roll on the defenders' new plea in law.
On 7th July 1978 the case came before the Lord Ordinary (Kissen) on procedure roll when the defender's first plea was allowed to be amended by adding...
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