Andrew James Mitchell And Others Against Advocate General For Scotland And Another
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2015] CSOH 2 |
| Court | Court of Session |
| Published date | 09 January 2015 |
| Year | 2015 |
| Date | 09 January 2015 |
| Docket Number | PD1730/14 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 2
PD1730/14
OPINION OF LORD TYRE
In the cause
ANDREW JAMES MITCHELL AND OTHERS
Pursuers;
against
ADVOCATE GENERAL FOR SCOTLAND AND ANOTHER
Defenders:
Pursuers: Marshall (Sol Adv); Thompsons
Defenders: Balfour; BLM
9 January 2015
Introduction
[1] The pursuers are the relatives of the late Walter Alexander Mitchell (“the deceased”), who died, as a consequence of mesothelioma, on 24 June 2013. They seek damages from the defenders under section 4(3) of the Damages (Scotland) Act 2011 in respect of the deceased’s death. A motion by the pursuers to allow issues has been opposed by the defenders on the ground that jury trial is precluded by section 22(4) of the Prescription and Limitation (Scotland) Act 1973. The point raised is short but important.
The factual background
[2] According to the pursuers’ averments, the deceased was employed by the defenders and their predecessors for many years in the railway industry, during which time he worked with asbestos and inhaled asbestos dust. His employment ceased in about 1982. From about May 2010, he suffered from increasing chest pains and breathlessness. He was diagnosed as suffering from mesothelioma in January 2012. During his lifetime he made and settled a claim for damages against the defenders. The pursuers’ action was commenced on or about 1 August 2014.
[3] In the course of argument, the defenders founded upon a passage from the opinion of Lord Phillips of Worth Matravers in Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229 at paragraph 19, where current knowledge about mesothelioma is summarised. Lord Phillips stated inter alia:
“…There will be a lengthy period between the development of the first malignant cell and the point at which the disease can be diagnosed. At the time of Fairchild this was thought to be ten years, but is now understood to be at least five years.”
For the purposes of the present opinion, I proceed upon the basis that this statement is accurate. It follows that injury caused by the deceased’s exposure to asbestos dust, consisting of the development of the first malignant cell, must have been sustained by January 2007 at the latest.
The Prescription and Limitation (Scotland) Act 1973
[4] Section 17 of the Prescription and Limitation (Scotland) Act 1973 applies to an action for damages for personal injury brought by the person who sustained the injury. In terms of section 17(2), the action must be commenced within a period of three years after:
(a) the date on which the injury was sustained, or, where the defender’s act or omission was a continuing one, the date on which the act or omission ceased, whichever is the later; or
(b) the date on which the pursuer became, or on which it would have been reasonably practicable for him to have become, aware of the three “statutory facts” set out in subsection 17(2)(b).
[5] Section 18 of the 1973 Act applies where damages are claimed following the death of the person who sustained injury. In terms of section 18(2), the action must be commenced within a period of three years after:
(a) the date of the deceased’s death; or
(b) the date on which the pursuer in the action became, or on which it would have been reasonably practicable for him to have become aware that the deceased’s injuries were attributable to an act or omission, and that the defender was a person to whose act or omission the injuries were attributable, or the employer of such a person.
However, section 18(4) excludes a claim under section 18 where an action for damages has not been brought within the period specified in section 17(2) by the injured person himself, who subsequently dies.
[6] In the present case, the defenders do not contend that the pursuers’ claim is time‑barred. The pursuers submit that the deceased was not aware, and could not reasonably have become aware, of the statutory facts prior to the diagnosis of mesothelioma in January 2012. Approaching the matter on that basis, any action for damages that the deceased might himself have raised would not have commenced within three years after the date when injury was sustained, but would have been prevented from being time‑barred at the time of his death by section 17(2)(b). Accordingly, section 18(4) does not bar the pursuers’ action, which was raised within the three‑year period after the date of the deceased’s death, ie within the period specified in section 18(2)(a).
[7] The statutory provision which lies at the heart of the present dispute is section 22(4) which states:
“An action which would not be entertained but for the said subsection (2)(b) shall not be tried by jury.”
The reference to “the said subsection (2)(b)” appears to be to section 22(2). Section 22 contains various interpretative and supplementary provisions. It was substituted in its entirety by section 3 of the Prescription and Limitation (Scotland) Act 1984, and subsection (2) was further amended by section 12(4) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. Section 22(2) now provides as follows (with the words added or substituted in 1985 in square brackets):
“Where the pursuer in an action to which section 17 [, 18 or 18A] of this Act applies is pursuing the action by virtue of the assignation of a right of action, the reference in subsection (2)(b) of the said section 17 or [of the said section 18 or, as the case may be, subsection (4) of the said section 18A] to the pursuer in the action shall be construed as a reference to the assignor of the right of action.”
The purpose of the 1985 amendments was to add references to section 18A (which concerns limitation in defamation actions). Prior to this amendment, subsection (2) read as follows:
“Where the pursuer in an action to which section 17 or 18 of this Act applies is pursuing the action by virtue of the assignation of a right of action, the reference in subsection (2)(b) of the said section 17 or, as the case may be, 18 to the pursuer in the action shall be construed as a reference to the assignor of the right of action.”
There is also a reference to “the said subsection (2)(b)” in section 22(3), which provides that knowledge that any act or omission was or was not actionable as a matter...
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