Miller v National Coal Board
| Jurisdiction | Scotland |
| Judgment Date | 08 July 1960 |
| Date | 08 July 1960 |
| Docket Number | No. 44. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Walker.
Limitation of ActionsActions of reparation in respect of personal injuriesConvening of additional defenders by amending open record so as to direct action against them and serving open record as amended on themUnamended open record served before the expiry of three years from date of neglect giving rise to actionAmended record served after expiry of three yearsWhether action against additional defenders time-barredLaw Reform (Limitation of Actions, &c.) Act, 1954 (2 and 3 Eliz. II, cap. 36), sec. 6 (1)Rules of Court, 1948, as amended by Act of Sederunt (Rules of Court Amendment), 9th March 1951, Rule 117 (1) (c).
The Law Reform (Limitation of Actions, &c.) Act, 1954, sec. 6 (1), enacts:"No action of damages where the damages claimed consist of or include damages or solatium in respect of personal injuries to any person shall be brought in Scotland against any person unless it is commenced(a) in the case of an action brought by or on behalf of a person in respect of injuries sustained by that person, before the expiration of three years from the date of the act, neglect or default giving rise to the action "
The Rules of Court, as amended by Act of Sederunt (Rules of Court Amendment), 9th March 1951, provide by Rule 117 (1) (c) that the Court has the power to "allow any amendment inserting in the summons an additional defender, and to order the record as so amended to be served on such additional defender along with a notice in terms of Form No. 5 specifying the date by which defences must be lodged; and thereafter the action as so amended shall proceed in every respect as if such added defender had originally been made a party to the cause."
In an action of reparation for personal injuries, the pursuer, while the cause was on the Adjustment Roll, convened additional defenders by making the necessary amendments to the summons, and was granted by the Lord Ordinary a warrant for service on them of the open record, as amended. Before the expiry of three years from "the date of the neglect giving rise to the action," the pursuer served on the additional defenders an unamended copy of the closed record, which did not contain any indication that the action was being brought against them. After the expiry of three years, he served on them an amended copy.
Held (rev. judgment of Lord Walker) that the date of commencement of the action against the additional defenders was the date of their citation, and that, as that date was the date when the amended copy of the open record was served on them in pursuance of Rule 117 (1) (c), the action, so far as directed against them, was time-barred by sec. 6 (1) of the Law Reform (Limitation of Actions, &c.) Act, 1954.
Peter Miller brought an action of reparation in respect of personal injuries against the National Coal Board. Thereafter he convened, while the cause was on the Adjustment Boll, the British Transport Commission as additional defenders.
The following narrative of the material facts is taken from the opinion of the Lord President:"On 23rd November 1956 the pursuer, who is a miner, sustained an accident, and was injured. He brought an action of damages in respect of these injuries against his employers, the summons in which was signeted on 17th October 1959. This action was served on the employers, the National Coal Board, within three years of the accident. In their defences, the Board blamed the British Transport Commission. On 18th November 1959 the Lord Ordinary, on the pursuer's motion, allowed the summons to be amended in terms of a minute of amendment for the pursuer, granted warrant for serving a copy of the open record, as amended, upon the British Transport Commission, along with a notice in terms of Form 5 in the Appendix to the Rules of Court, 1948, and allowed them to lodge defences, if so advised, within fourteen days after service. The minute of amendment altered the instance, conclusions, averments, and pleas in law so as to make a case of joint and several liability against the British Transport Commission for the sum sued for. On 21st November, the pursuer, notwithstanding the interlocutor of the Lord Ordinary, executed a service of the unamended open record upon the British Transport Commission. In this record, the British Transport Commission were not included in the instance nor in the conclusions, and the pursuer had no averments nor pleas directed to show liability on their part. On the pursuer's attention being drawn to the matter by the Commission, he then executed service on 26th November 1959 of an amended copy of the open record on the British Transport Commission, in which they appeared as defenders second called, with conclusions, averments and pleas directed against them."
The pursuer pleaded, inter alia:"(3) The action having been competently served upon the second-named defenders on 21st November 1959 the second-named defenders first pleas in law should be repelled."
The second defenders pleaded, inter alia:"(1) The action being time-barred in so far as laid against these defenders in terms of section 6 of the Law Reform (Limitation of Actions, &c.) Act, 1954, these defenders should be assoilzied from the conclusion of the summons."
On 13th May 1960, after a discussion in the Debate Roll, the Lord Ordinary (Walker) repelled the second defenders first plea in law and found that the action was not time-barred against them.
At advising on 8th July 1960,
LORD PRESIDENT (Clyde).The question raised in this reclaiming motion is whether or not the action so far as laid against the second defenders is time-barred. The Lord Ordinary held it was not, and against the interlocutor so holding the second defenders have reclaimed.
[His Lordship then narrated the facts quoted supra, and continued]
Under section 6 of the Law Reform (Limitation of Actions, &c.) Act, 1954,4 it is, inter alia, provided:"No action of damages where the damages claimed consist of or include damages or solatium in respect of personal injuries to any person shall be brought in Scotland against any person unless it is commenced(a) in the case of an action brought by or on behalf of a person in respect of injuries sustained by that person before the expiration of three years from the date of the act neglect or default giving rise to the action "
Admittedly, the action brought against the National Coal Board was raised against them within the three years period. The question is whether so far as laid against the British Transport Commission it is time-barred. The answer depends upon what is the date of the commencement of the action in a question with the British Transport Commission. This must depend primarily upon the proper construction of section 6 of the Act. In the course of the argument before us, four possible dates were suggested, three of which are within, and one of which is outside, the statutory three years limit.
The earliest date contended for was the commencement of the action against the National Coal Board. Once an action has been timeously raised, it was contended, that action may subsequently be amended by bringing in other defenders. But, so it is said, an action can have only one commencement, and, provided that commencement is timeous, that action with all its potentialities for amendment and for bringing in new defenders has satisfied the requirements of section 6. Such a contention, however, although it appears to have found some favour with the Lord Ordinary, involves, in my opinion, a plain misreading of section 6. The terminus ad quem of the three year period
is not just the commencement of the action, but the bringing of the action against the person with whom the question of limitation arises. In this way only can any meaning be given to the words "against any person" in section 6. So far from treating the action as commencing against all possible defenders when it is...To continue reading
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