McINTYRE v ARMITAGE SHANKS Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Hailsham of St. Marylebone,Lord Wilberforce,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Keith of Kinkel |
| Judgment Date | 22 November 1979 |
| Judgment citation (vLex) | [1979] UKHL J1122-3 |
| Docket Number | No. 2. |
| Court | House of Lords |
| Date | 22 November 1979 |
[1979] UKHL J1122-3
House of Lords
Lord Hailsham of St. Marylebone (Lord Chancellor)
Lord Wilberforce
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Keith of Kinkel
My Lords,
The sole question raised in the present appeal is whether the Appellant's claim, which was for personal injuries alleged to result from his employers' negligence, was time barred under Part II of the Prescription and Limitation (Scotland) Act 1973 which substantially re-enacts the Scottish provisions of the Limitation legislation of 1963. The Outer and Inner Houses decided, though for slightly differing reasons, that the cause of action was so barred. The Appellant now appeals to your Lordships' House.
The relevant facts may be shortly stated. The Respondents own and manage a pottery at which the Appellant was employed, except for the war years, for virtually the whole of his working life. He began to work for the Respondents in 1930. He left in 1961 and, by that time he was virtually totally incapacitated by pneumoconiosis. It would be, of course, open to the Respondents should his appeal succeed, to contest the issue of liability. But it would equally be possible to overestimate their chances of success. During the course of the hearing of the appeal two other cases of pneumoconosis at the Respondents' pottery were referred to, one of which at least was settled. The Appellant's case was that his condition was due to his conditions of work in a dusty atmosphere, and that the amount of dust in the atmosphere was excessive. For the purpose of applying the time bar the assumption must be that the claim would otherwise succeed.
The proceedings were raised by summons signeted the 3rd June 1975, about 14 years after the Appellant had quitted the Respondents' employment. Prima facie therefore, the claim is barred by the three year limitation period imposed by section 17 of the Act of 1973. To this, in effect, the Appellant replies by saying that this defence is not available to the Respondents by virtue of section 18(3) which provides that the defence is not available if it is proved (the onus being on the pursuer) that the "material facts relating to that right of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the pursuer until a date which was not earlier than three years before the date on which the action was brought."
The case therefore turns (1) on the facts which at the material times were known to the Appellant and (2) the correct application of the test prescribed by section 18(3) as the terms of it are defined and expanded by section 22 to the facts as so known. On this issue a limited proof was admitted, and on that proof the Lord Ordinary found, and it is now conceded, that the Appellant at all material times, i.e. at least as early as 1961, knew the following facts viz:—
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(1) that he had contracted pneumoconiosis,
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(2) that his disablement by reason of the disease was severe after 1956 and so severe by 1961 that he had to stop working, and
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(3) that the disease was attributable to the excessively dusty conditions in the Defenders' pottery at which he had worked since the age of 14 against which the Defenders had failed to protect him.
So much for the facts of which it is now agreed that the Appellant had knowledge. The Appellant's explanation of his delay in bringing proceedings may be summarised as follows. Shortly before he left the Respondents' employment he had wished to sue them but had been put off by one Peter McCann who at that time was the branch secretary of the Appellant's union. It appears that he approached McCann at his work bench, told him that he wished to sue his employers, but received the reply "You can't do that" probably with the explanation: "Shanks did not ask you to work here". If McCann said this it was contrary to the facts deposed to by the Appellant since the Appellant swore that he had resumed employment at the specific invitation of the Respondents. However that may be, the Appellant said in evidence:
"I was leaving Shanks any way, and I never bothered".
Before I come to the contentions which occupied the main part of the argument, I must now mention two contentions for the Respondents which I will reject. The first was that there was no evidence, and the Lord Ordinary did not find, that the Appellant was unaware that his condition was due to the Respondents' negligence. The effect of this argument would be that his legal submissions, to which I shall refer later, would never get off the ground. That the contention is not negligible is shown by the fact that it commended itself (amongst others) to the Inner House generally. I must, however, point out that the reported judgment of the Lord Ordinary ( 1978 S.L.T. 53 at p.58) does contain such a finding. The Lord Ordinary said:
"He agreed in cross examination that he knew the cause of his disease was the failure of his employers to protect him against the dust. What he did not know was the legal consequences of that failure, namely, that in law it afforded him a good cause of action".
In the circumstances I do not think it safe to support the Respondents in this contention.
The second contention of the Respondents which I will now dispose of before approaching the main matter of disputation, is their reliance on section 22(4) of the Act of 1973. In brief, the Respondents submit that, even if all else fails them, they are entitled to say that the matters of which the Appellant was unaware were at least within his constructive knowledge so as to satisfy that subsection. This argument found favour with the Inner House, but is contrary to the findings of the Lord Ordinary. It depends on the contention that the Appellant's asserted ignorance of the legal consequences of the Respondents' negligence, even if it was actual, and even if the construction of sections 18 and 22 otherwise permitted him to rely on it, did not permit him to claim either that he had taken all such action as it was reasonable for him to have taken before the relevant time or that he had taken all such action as it was reasonable for him to have taken for the purpose of taking appropriate advice.
I have considerable sympathy with this submission. An ordinary trade union member ought, I would have thought, to know that, among the services available to him as a member of the union, is the availability of qualified legal advice and representation in suitable cases in contemplated actions for damages for personal injuries against his employers. A number of cases cited to us seem also to establish what I would in any case have thought to be reasonable, that an application in the proper way to the union headquarters for advice as to whether to sue was all the action that can reasonably be expected of an ordinary member if the result of such an application was to elicit an adverse reply. But the Appellant did not pursue the matter to this length. He allowed himself to be put off by an apparently somewhat casual conversation with his branch secretary who either gave no reason for his opinion, or who, if he did give a reason, gave one which was not only wrong in law but contrary to the Appellant's own statement of the facts. The Appellant knew that Peter McCann was not qualified to give advice and, had he been a person of average intelligence and tenacity he would, I think, have pursued the matter much further than he did either with his union or by seeking qualified advice elsewhere.
This, however, is contrary to the findings of the Lord Ordinary who had the advantage of seeing the witnesses and hearing the evidence. The Appellant he assessed as "a man of limited intelligence who was given wrong advice on the law from a trade union official in 1961". In addition, it was not disputed that the current of opinion in the pottery at the time was that pneumoconiosis, if contracted within the pottery as the result of the dusty conditions there, gave rise to a claim against the state for industrial injuries benefit, but not to an action for damages against the employers. The possibility of such an action does not seem to have occurred to the Appellant, until 1973, when, by a curious irony of fate, he learned that the very Peter McCann who had put him off in 1961 had made a negligence claim on the Respondents and received a cheque in settlement of his claim. McCann himself was called as a witness for the Appellant and apparently described the receipt of the money as a "bolt from the blue" which occasioned him considerable surprise as well as satisfaction. In view of all this, and, in view of the fact that for the purposes of section 22(4) the test of reasonableness is clearly subjective to the pursuer and not the objective test of a reasonable man's performance, I consider it more prudent to leave the Lord Ordinary's finding undisturbed than to concur in the more severe approach adopted by the Inner House. The Lord Ordinary's finding was:
"He did, however, in my view on the evidence, take all such action as it was reasonable for him to have taken before that time [sc. 1973] for the purpose of obtaining appropriate advice".
It follows that I do not consider it safe to permit the Respondents to rely on the provisions of section 22(4).
The way is now open to discuss the main subjects canvassed in the appeal. Was the Appellant's ignorance of the legal consequences of the Respondents' assumed negligence a material fact "of a decisive character" relating to his cause of action so as to satisfy section 18(3) of the Act?
This raises in an acute form some or all of the questions canvassed in the long series of cases decided under the 1963 legislation in both jurisdictions and culminating (though...
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