Robert Moran Against Freyssinet Limited
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord McGhie,Lady Paton |
| Judgment Date | 03 November 2015 |
| Neutral Citation | [2015] CSIH 76 |
| Published date | 03 November 2015 |
| Docket Number | PD253/14 |
| Court | Court of Session |
| Date | 03 November 2015 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 76
PD253/14
Lady Paton
Lady Clark of Calton
Lord McGhie
OPINION OF THE COURT
delivered by LADY PATON
in the Reclaiming Motion
by
ROBERT MORAN
Pursuer and Respondent;
against
FREYSSINET LIMITED
Defenders and Reclaimers:
Act: C Wilson; Digby Brown LLP
Alt: R Cleland; Anderson Strathern LLP (for Weightmans (Scotland) LLP)
3 November 2015
Failure to comply with chapter 43 personal injuries actions rules
[1] In this reclaiming motion, the defenders challenge the Lord Ordinary’s imposition of a sanction contained in chapter 43 of the Rules of the Court of Session relating to personal injuries cases. Following upon the defenders’ failure timeously to lodge a statement of valuation of claim, Lord Boyd of Duncansby granted decree in favour of the pursuer for the sum sued for (£30,000).
Rule 43.9
[2] Rule of Court 43.9 provides:
“ 43.9 Statements of valuation of claim
(1) Each party to an action shall make a statement of valuation of claim in Form 43.9.
(2) A statement of valuation of claim (which shall include a list of supporting documents) shall be lodged in process.
(3) Each party shall, on lodging a statement of valuation of claim –
(a) intimate the list of documents included in the statement of valuation of claim to every other party; and
(b) lodge each of those documents.
(6) Nothing in paragraph (3) shall affect –
(a) the law relating to, or the right of a party to object to the recovery of a document on the ground of, privilege or confidentiality; or
(b) the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Ac 1972.
(7) Without prejudice to paragraph (2) of rule 43.7 (hearings on the By Order roll), where a party has failed to lodge a statement of valuation of claim in accordance with a timetable issued under paragraph (2) of rule 43.6 (allocation of diets and timetables) the court may at a hearing of the cause on the By Order roll under paragraph (3) of that rule –
(a) where the party in default is the pursuer, dismiss the action; or
(b) where the party in default is the defender, grant decree against the defender for an amount not exceeding the amount of the pursuer’s valuation.”
The pursuer’s action
[3] In February 2014, the pursuer raised an action for damages against the defenders in respect of his hand arm vibration syndrome (HAVS). In condescendence 4, he averred inter alia:
“In or around 10 May 1999, the pursuer commenced employment as a joiner with Accrete Limited. In or around 2002/03, Accrete Limited was taken over by Makers UK Limited. The pursuer’s employment was transferred to Makers UK Limited. In or around June 2008, the said Makers UK Limited was bought over by the defenders. The pursuer’s employment was transferred to the defenders in terms of the Transfer of Undertakings (Protection of Employment) Regulations 2006 … In terms of the sale and purchase contract between inter alia the said Makers UK Limited and the defenders dated 10 October 2007, the defenders have assumed the liabilities of Makers UK Limited and Accrete Limited. Until in or about his appointment as a project manager in or about 2006/2007, in the course of the pursuer’s employment with the defenders the pursuer required to use and operate vibratory tools and machinery … said tools emitted excessive amounts of vibration …”
The averments described his hours of work, the system of work, the equipment, the lack of advice about the dangers of working with vibrating tools, the lack of risk assessments, the pursuer’s condition, and the statutory regulations.
[4] The defenders’ answers were very brief. In answer 4, in response to the pursuer’s averments about his employment, the defenders averred:
“The circumstances of any incident condescended upon are not known and not admitted. Quoad ultra denied. Explained and averred that the defenders did not employ the pursuer in a position which would have exposed him to tools which would have caused the HAVS condition condescended upon.”
In answer 5, in response to the pursuer’s averments about his symptoms, the necessary services which he required, and his disadvantage on the labour market, the defenders averred:
“The nature and extent of any injury, loss, and damage sustained by the pursuer is not known and not admitted. Quoad ultra denied.”
In answer 6, the defenders referred to the statutory regulations, beyond which no admission was made.
The procedural history
[5] On 12 March 2014, the Keeper issued a timetable for the action. The diet of proof was fixed for 4 November 2014. The pursuer was to lodge a statement of valuation by 7 May 2014. The defenders were to lodge a statement of valuation by 2 July 2014.
[6] A subsequent variation of the timetable retained the diet of proof as 4 November 2014, but altered the dates for the pursuer’s valuation to 28 August 2014, the defenders’ valuation to 2 October 2014.
[7] On 28 August 2014, the pursuer’s valuation was lodged in the following terms:
| Head of Claim | Components | Valuation
|
| Solatium | Past Future | £11,625.00 £11,625.00
|
| Interest on past solatium | Percentage applied to past solatium state percentage rate)4%
| £1,457.43 |
| Loss of employability | The pursuer’s current earnings are£36,000 gross (£27,434.72 net). Allow one year at£27,500
| £27,500.00 |
| Services – sections8 and9 of the Administration of Justice Act1982 (past and future) and misc costs | The pursuer required to pay for decking to be laid in his garden and for miscellaneous gardening works. For present purposes estimated at:
| £6,000.00 |
| TOTAL |
| £58,207.43 |
LIST OF SUPPORTING DOCUMENTS
1. Medical Report by Mr R T A Chalmers, Consultant Vascular Surgeon, dated 9 July 2012 [6/4 of process].
2. General Practitioner Records [6/1 of process].
[8] The defenders for their part lodged no valuation of any sort at any time prior to the proof.
[9] In early September 2014 the pursuer lodged a notice to admit, containing 14 calls on the defenders relating inter alia to the pursuer’s employment with Accrete Limited and Makers UK Limited; the takeover by the defenders and their assumption of liabilities; the fact that while employed with the defenders and their predecessors the pursuer required to operate vibratory tools; and other related matters. In a notice of non-admission lodged on 22 September 2013, the defenders restricted their admissions to their takeover of Makers UK Limited in June 2008; the pursuer’s departure from the defenders’ employment in 2010; and the defenders’ assumption of the liabilities of Accrete Limited and Makers Limited (calls 4, 6 and 7).
[10] On 3 October 2014 the defenders lodged a minute of amendment seeking to add to answer 6 the following:
“Explained and averred that esto the pursuer was exposed to excessive vibration on the hypothesis of fact advanced by the pursuer, this action is barred by the passage of time. Reference is made to section 17 of the Prescription and Limitation (Scotland) Act 1973.”
No factual averments explained why section 17 might be applicable.
[11] On 16 October 2014 the pursuer lodged answers to the minute of amendment averring that he first became aware of his condition after consulting his general practitioner on 11 July 2011 and being referred to Ninewells Hospital. During adjustment of the minute and answers, the pursuer further added an esto case as follows:
“Further explained and averred that in the circumstances esto the action has suffered limitation (which is denied), it is in any event equitable to allow the pursuer to bring the present action in terms of section 19A of the 1973 Act. As hereinbefore averred, the pursuer only became aware that the problems he was suffering from with his hands were work-related after he attended his general practitioner in or about July 2011. The pursuer would suffer significant prejudice in the event that the present proceedings were not allowed to proceed. The pursuer would have no alternative remedy to recover damages for his condition. The defenders still trade and have been, and remain, in a position to investigate the present claim.”
[12] On 23 October 2014, on the pursuer’s unopposed motion, the timetable was further varied to allow the pre-trial minute to be lodged by 30 October 2014 as there had been difficulties in arranging the pre-trial meeting.
[13] On 27 October 2014 the pre-trial meeting took place, attended by inter alios counsel for the pursuer and for the defenders. In the pre-trial minute, the length of the proof was estimated as 4 days. In section 3 (quantum of damages) the “not agreed” box was ticked in respect of every listed head of claim.
[14] On 30 October 2014 (a few days before the diet of proof on Tuesday 4 November 2014), the defenders’ motion for amendment of the record in terms of the minute of amendment and answers came before Lord McEwan. The defenders further sought a discharge of the proof on the basis that the proof would take longer than four days. The defenders also sought a preliminary proof. The Lord Ordinary allowed the amendment but refused to discharge the diet of proof.
The diet of proof
[15] As Lord Boyd explains in paragraph [1] of his opinion, at the commencement of the 4‑day proof on 4 November 2014, counsel for the defenders moved the court to vary the timetable to allow the late lodging of the defenders’ statement of valuation. The defenders’ valuation was what is known as a “nil” valuation: the figures for solatium, loss of employability, and services were shown as “£0.00”. The list of supporting documents echoed those documents listed in the pursuer’s valuation (namely, the report by Mr R T A Chalmers dated 9 July 2012 6/4 of process, and the general practitioner records 6/1 of process). The defenders’ motion was opposed.
[16] Subsequently, counsel for the defenders...
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