Grimason v N.C.B.
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1987 |
| Docket Number | No. 20. |
| Date | 20 March 1987 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Davidson.
Practice—Amendment—Closed record—Amendment substituting new case after record closed—Amendment outwith triennium—Time bar—Refusal by Lord Ordinary to allow motion to amend—Whether discretion properly exercised—Prescription and Limitation (Scotland) Act 1973 (cap. 52), sec. 17.1
An apprentice electrician brought an action of damages against his employers, the National Coal Board, in respect of an injury to his back sustained in the course of his employment. The pursuer condescended upon two cases of fault, the one against the board for failing to instruct apprentices that heavy metals should be carried by mine cars, the other against electricians for whom he was required to work for failing to insist upon heavy materials being so carried. After the record had been closed, and outwith the triennium, the pursuer lodged a minute of amendment. The minute substituted for the original broad averments of fact a specific narrative of the circumstances of an accident on a specific date. The second case of fault was deleted and the first case of fault was substantially amended. The amendment, if allowed, would have necessitated the board having to start their investigations as of new. The board would have had to direct enquiries not only as to a newlocus of the accident but also, on the specific date averred in the minute, the manhandling of a cable during the course of which the pursuer alleged he had sustained the accident in question. The new grounds of fault would have required investigations into matters which had, hitherto, formed no part of the pursuer's pleadings. The Lord Ordinary refused the motion to amend on the bases that the proposed amendment not only involved a radical change of front but also that, if allowed, it would occasion serious prejudice to the board. The pursuer reclaimed to the Inner House. The defenders opposed the motion for leave to amend.
Held (1) that whether or not to allow a minute of amendment was a matter for the discretion of the Lord Ordinary; (2) that the appellate court will be slow to interfere with the exercise of such a discretion; (3) that there were no grounds upon which it could be said that the Lord Ordinary exercised his discretion upon any wrong principles; and (4) that the Lord Ordinary exercised his discretion properly; and reclaiming motion refused.
John Grimason brought an action in the Court of Session against the National Coal Board for damages for personal injuries sustained by him in the course of his employment with the defenders.
The pursuer's original averments and the defender's answers thereto were,
inter alia, as follows:—"COND. II. The pursuer entered the employment of the defenders in about mid-1978. He was employed as an apprentice electrician at Cardowan Colliery. The pursuer together with other apprentice electricians was instructed on many occasions to carry heavy items such as rolls of cable, tools, bags of nuts and bolts, ringing keys and DSE telephones from the surface of the mine to where they were required at various points underground and at the coal face. The said apprentices, including the pursuer, were expected to take all such cable and other items as were required for jobs in which they were involved to the point where they were required. Such cables and other items could have been transported by way of mine cars but due to the time involved in so transporting them it was common practice in the said colliery for the said apprentices to carry all such items. Carrying such items involved the pursuer walking in a stooped fashion along passageways at a height of only three or four feet and when such items were required at a coal face the pursuer would require to crawl along even narrower passageways hauling such items behind him.In or about June 1982 whilst performing a task such as above mentioned the pursuer was seized with extreme pain in his back and left kg. He required to undergo medical treatment because of said pain and was diagnosed as suffering from a prolapsed inter-vertebral disc. Said condition was caused by the manner in which the pursuer had been required to transport such heavy items as aforesaid. The defenders' averments in answer are denied except in so far as coinciding herewith.Ans. 2. Admitted that the pursuer entered the employment of the defenders in 1978. Admitted that he was employed as an electrician at Cardowan Colliery. As an apprentice electrician the pursuer was employed in assisting electricians principally in the Maingate roadway. Only very occasionally did he work on or get into the faceline. All equipment other than small and light items were carried underground in mine cars. The pursuer was occasionally requested to carry a tool or piece of equipment when a mine car was not available. Such tools and equipment included cable, telephones, ringing keys, nuts and bolts. On no occasion was the pursuer requested or required to carry an item heavier than 281bs. On the Maingate roadway it was unnecessary to stoop. A belt was...
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