Jones v Lanarkshire Health Board
| Jurisdiction | Scotland |
| Judgment Date | 12 April 1991 |
| Docket Number | No. 31. |
| Date | 12 April 1991 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION.
Lord Prosser.
Practice—Reparation—Time-bar—Amendment after triennium—Delictual case introduced in answers to minute of amendment lodged after triennium expired—Lord Ordinary's discretion to exclude delictual case from probation—Whether discretion could be exercised after amendment of record—Prescription and Limitation (Scotland) Act 1973 (cap. 52), secs. 17 (1) and (2) and 19A (1).1
Practice—Reclaiming—Review of prior interlocutors of Lord Ordinary—Party claiming to have failed to defend motion through mere oversight—Whether resulting interlocutor open to review—Rules of Court 1965, rule 262 (c).2
The pursuer and respondent underwent a sterilisation operation on 30th May 1983 shortly after giving birth to her third child. She became pregnant again and on 18th September 1985 gave birth to a fourth child. On 1st February 1988 she raised an action of damages for breach of contract against, firstly, the health board in whose hospital the sterilisation had been performed and, secondly, the consultant obstetrician who had performed the operation. On 6th July 1988 the record was closed and on 8th September 1988 a proof before answer was allowed, of consent. On 23rd November 1988 a minute of amendment for the second defender was received which sought to add averments relating to the problems of carrying out sterilisation within a few weeks after childbirth. In lodging answers, the pursuer took the opportunity of making a case based on delict against both defenders. On 20th January 1989 the court allowed the first
defenders' answers to the minute to be received late. On 16th February 1989 the record was amended, unopposed. By arrangement, the cause was heard on procedure roll on the date originally set aside for the proof, being 21st February 1989. The closed record, as amended, contained pleas-in-law by both defenders raising the issue of time-bar against the delictual case. The Lord Ordinary (Prosser) held that the Prescription and Limitation (Scotland) Act 1973 had no application as the action had been raised within the triennium, that the question of whether to allow the delictual case was a matter for the discretion of the court, and that, the closed record having been amended already, the "discretion to exclude these averments as out of time had not been invoked and was no longer available". The pursuer having accepted that the case based on breach of contract was irrelevant, a proof before answer was allowed on the delictual case. The pursuer subsequently abandoned her case against the second defender. The first defenders reclaimed, contending that the fact that the record had been amended did not prevent the Lord Ordinary from exercising his discretion, or alternatively, that as all earlier interlocutors were subject to review in a reclaiming motion, in terms of Rule of Court 262 (c), the court should review and recall the interlocutor of 16th February 1989, the second defender's motion for amendment having been unopposed through a mere oversight, and refuse the amendment to the pursuer's pleadings which had been allowed. The pursuer cross-reclaimed, contending that the Lord Ordinary had erred in concluding that he would have exercised his discretion in the defenders' favour had it been open to him to do so.Held (off. the judgment of Lord Prosser) (1) that the question of whether the court should exercise its discretion to allow late amendment had to be resolved before the record was amended and the defenders' plea-in-law had not been used and was thereafter spent (Greenhorn v. J. Smart & Co. (Contractors) Ltd. 1979 S.C. 427followed); and (2) that it had not been established that the defenders' failure to oppose the motion was due to mere oversight, their answers having been received late, so that the second ground of appeal was without substance; and reclaiming motion refused.
Opinion, that the pursuer's ground of appeal could not have been upheld.
Mrs Doreen Jones brought an action of damages for breach of contract against (First) Lanarkshire Health Board and (Second) Dr J. L. Price, a consultant obstetrician. The facts and circumstances appear sufficiently from the opinions of the Lord Ordinary (Prosser) and Lord Murray.
The first defenders pled inter alia:—"(5) The pursuer's averments anent what a doctor of ordinary competence, exercising reasonable skill and care, would or would not have done, incorporated in her answers in December 1988, being time-barred, should be excluded from any amendment to the record and should not be remitted to probation."
The second defender pled inter alia:—"(2) The pursuer's averments in art. 7 of condescendence being time-barred in terms of sec. 17 of the Prescription and Limitation (Scotland) Act 1973, as amended, they should not be admitted to probation."
The cause called before the Lord Ordinary (Prosser) on procedure roll on 21st February 1989. Eo die, his Lordship madeavizandum.
At advising on 12th April 1991,—
LORD MURRAY.—The pursuer in this action, who is a married woman living in a remote part of the Inner Hebrides, gave birth to her third child at Bellshill Maternity Hospital on 27th May 1983. On 30th May 1983 she underwent a sterilisation operation at the same hospital before her return to the Inner Hebrides. Early in 1985 the pursuer became pregnant again and on 18th September 1985 she gave birth to a fourth child. On 1st February 1988 she raised an action for damages for breach of contract against firstly the health board in whose hospital the operation had been preformed and secondly the consultant obstetrician who had performed the operation. On 6th July 1988 the record was closed and on 8th September 1988 a proof before answer was allowed of consent. At this stage the pursuer's averments against both defenders were based solely upon breach of contract. On 23rd November 1988 a minute of amendment for the second defender was received and parties were allowed 21 days to answer it. The averments sought to be added in the minute of amendment related solely to problems of carrying out sterilisation operations within a few weeks after childbirth. In lodging answers to this minute the pursuer took the opportunity of making for the first time a case based upon delict against both defenders. On 20th January 1989 the court allowed the first defenders' answers to the minute of amendment to be received late. At the same time the diet of proof before answer which had been fixed for 21st February 1989 was discharged. On 16th February 1989 on the unopposed motion of the second defender the closed record was amended in terms of the minute of amendment and answers as adjusted, of consent the court withdrew the allowance of proof, and appointed the cause to the procedure roll. By arrangement the procedure roll took place on the date originally set aside for the diet of proof, namely, 21st February 1989. The closed record as now amended contained pleas-in-law by both defenders raising the issue of time-bar against the case based on delict.
After avizandum the Lord Ordinary gave judgment on 4th May 1989. He concluded that the Prescription and Limitation (Scotland) Act 1973 (as amended) had no application to the case since the action had been raised within the triennium; that if it was raised the question of whether or not to allow the case based on delict to be added by amendment was a matter for the discretion of the court; and that, the closed record having already been amended unopposed in terms of the minute of amendment and answers as adjusted, the court's discretion to exclude these averments as out of time had not been invoked and was no longer available. The pursuer having accepted that the case based on breach of contract was irrelevant a proof before answer on the case based on delict was allowed. The Lord Ordinary applied his mind to the way in which he would have exercised his discretion had he considered that it was open to him to do so. He reached the view that he would have exercised his discretion against allowing the pursuer's case based on delict to be made by amendment.
By a separate interlocutor dated 4th May 1989 the pursuer abandoned her case against the second defender and the action as laid against him was dismissed.
The first defenders (hereinafter referred to as "the board") sought recall of the Lord Ordinary's interlocutor of 4th May 1989 allowing a proof before answer. His decision in the Outer House had been reported [supra, at pp. 286–291]. The board tabled two grounds of appeal. The pursuer tabled two grounds of cross-appeal. The first ground of appeal for the board was to the effect "that the Lord Ordinary erred in holding that the technical amendment of the record prior to argument on the time-bar pleas prevented him from exercising his discretion in assessing whether or not to allow the averments challenged to proceed to probation".
Their second ground of appeal, which was in the alternative, was that, as under Rule of Court 262 (c) all earlier interlocutors were subject to review in the present reclaiming motion, the court should review the interlocutor dated 16th February 1989, recall it and refuse the amendment which was then allowed.
On the first ground of appeal it was submitted by counsel for the board that, while it was preferable that the Lord Ordinary should be invited to rule upon a late amendment before the closed record was opened up and amended, practice on the matter had varied. The cases showed that the matter had not always been determined at the stage of a motion to amend. In any event amendment of the record did not per se preclude the Lord Ordinary from exercising his discretion at procedure roll as to whether or not out of time averments within the sense of Pompa's Trustees v. Edinburgh MagistratesSC 1942 S.C. 119 should be...
To continue reading
Request your trial
-
Kleinwort Benson Limited V. City Of Glasgow Council
...argue that the claim has not been timeously made. That view of the effect of Greenhorn was supported by Jones v Lanarkshire Health Board 1991 SC 285, per Lord Prosser (Ordinary) at 288 and Lord Murray at 298. So far as adjustment was concerned, the position was as set out in Sellars. [34]Mr......
-
(first) Louise Docherty And Others Against (first) Secretary Of State For Business, Innovation And Skills And Another
...of the amendment. The pursuers referred to Kleinwort Benson v Glasgow City Council 2002 SLT 1190, Jones v Lanarkshire Health Board 1991 SC 285, Greenhorn v J Smart & Co (Contractors Ltd) 1979 SC 427, Grimason v National Coal Board 1987 SC 162 and Sellars v IMI Yorkshire Imperial Ltd 1986 SC......
-
Guy Darrell Minshull V. The Advocate General
...defender's contentions on time bar sustained or repelled, required to be determined on the Motion Roll (Jones v Lanarkshire Health Board 1991 SC 285, Lord Murray at 296-298 under reference to Greenhorn v J Smart & Co 1979 SC 427, Lord President (Emslie) at 432). The pursuer's pleading that ......
-
Ranald Durness Mackay+mrs Moyra Agnes Isabella Mackay+mrs Sheena Mackay V. James M Edmond
...Co (Contractors) Ltd 1979 S.C. 427, 432, Sellers v IMI Yorkshire Imperial Ltd 1986 S.L.T. 629, 638A and Jones v Lanarkshire Health Board 1991 S.C. 285. [58] Having considered the case of Jones, Mr Kennedy conceded that he was too late to take the point. [59] Nonetheless he argued that even ......