John Kelman Against Moray Council
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2021] CSOH 131 |
| Docket Number | PD125/20 |
| Date | 24 December 2021 |
| Court | Court of Session |
| Published date | 24 December 2021 |
OUTER HOUSE, COURT OF SESSION
[2021] CSOH 131
PD125/20
OPINION OF LADY WISE
In th e cause
JOHN KELMAN
Pursuer
against
MORAY COUNCIL
Defenders
Pursuer: Stewart QC, Thompsons
Defenders: Springham QC, Harper MacLeod LLP
24 December 2021
Introduction
[1] John Kelman was employed as a maintenance electrician by Moray Council
between 1980 and 1984. On about 18 March 1999 he was diagnosed with pleural plaques
and attribu ted that to his exposure to asbestos during work he had carried out with Moray
Coun cil’s predecessor’s council. He remained well until early 2019 when he started
suffering from breathlessness. A diagnosis of mesothelioma was made on 8 March 2019.
Mr Kelman is now aware that his diagnosis is of a terminal illness. It is accepted on his
behalf that more than 3 years passed from the date on which the injuries were sustained and
the raising of this action and so the starting point would be that the case is time barred
2
under section 17(2)(a) of the Prescription and Limitation (Scotland) Act 1973 (“the
1973 Act”). Mr Kelman contends, however, that he was not aware that any injuries were
sufficiently serious to justify his bringing an action of damages until his diagnosis of
mesothelioma in 2019 and he seeks to rely on section 17(2)(b)(i) of the 1973 Act to enable this
action to proceed. His fall-back position is that even if the action is time barred the court
shou ld exercise its discretion in terms of section 19(A) of the 1973 Act and allow the claim to
progress. I heard a preliminary proof on these matters and have decided to allow the case to
proceed for the reasons given later in this opinion.
[2] It is agreed that if the averments of fault and causation set out on record and the
opinion evidence of the pursuer’s expert witnesses Mr Dave Maddison (report at
number 6/13 of process), Dr Todd (report at number 6/9 of process), Dr Burnett (report at
number 6/3 of process) and Dr Sproule (report at number 6/2 of process) were accepted, then
the pursuer would succeed in establishing a prima facie case against the defenders. The
defenders have conducted only limited investigations into the circumstances of Mr Kelman’s
case for the reasons that will become apparent in the discussion of the evidence. T hey
accept, however, that at this stage they are not in a position to assert a defence to the claims
made and cann ot say that the claim is without merit.
Evidence at the preliminary proof
(1) John Kelman
[3] Mr Kelman gave evidence from his home and adopted his affidavit number 6/21 of
process. He did so with the assistance of having seen various entries in his medical records.
His evidence was that he had attended his general practitioner complaining of a cough on
18 March 1999 and had discussed working with very large storage heaters in houses in the
3
early 1980s. He thought he could have been exposed to asbestos without the provision of a
mask. He had been referred at that time to the local hospital and attended the chest clinic
there. He said he was advised “… that I only had pleural plaques due to my previous
asbestos exposure and they would contact me in a year for a check-up”. When he had
attended the chest clinic for a check-up the following year in September 2000 it was
confirmed to him that there was no change to the pleural plaques and he received similar
confirmation in September 2001 after which he was discharged from the clinic. As he was
asymptomatic he said he was reassured about the pleural plaques and told that he did not
have to come for anoth er review. His evidence was that when he was discharged he did not
thin k he had a medical problem. He was not aware in 1999 that he could have pursued a
claim for his diagnosis of pleural plaques. He had never heard of anyone pursuing claims
for an asbestos related condition. He had then changed jobs and the issue with working
with asbestos never arose again. He was never involved in any conversations at work or
socially about the possibility of making a claim. He did not think there was anything wrong
with h im to make a claim about. His position was that if he had known that he could have
made a claim he would have probably investigated doing so at the time. He had no
knowledge that he could pursue a claim for his asbestos condition until after he was
diagnosed with mesothelioma in March 2019. At that time he was given an information
booklet and advised to contact Clydeside Action on Asbestos. That organisation then
assisted him with claiming benefits and advised him to contact solicitors.
[4] Mr Kelman explained that he had first gone to the GP in 1999 because his wife used
to say to him about his cough “I can hear you before I can see you”. It had gone on for a few
weeks but had cleared up and he had no symptoms thereafter. He remembered going to get
the results of his scan at the chest clinic and having a discussion with the doctor but could
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Thomas O'grady Against Nhs Greater Glasgow And Clyde And Others
...which had motivated him to consult Simpson & Marwick. In that important respect this case is very different from Kelman v Moray Council [2021] CSOH 131 to which I was referred in the course of submissions. Section 19A 32. In the event that the time-bar pleas are sustained, as I have done, t......