SELLARS v IMI YORKSHIRE IMPERIAL Ltd
| Jurisdiction | Scotland |
| Judgment Date | 20 May 1986 |
| Date | 20 May 1986 |
| Docket Number | No. 28. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Practice—Pleadings—Reparation—Adjustment—Adjustment after expiry of triennium—Adjustment substituting new case for one on record—Whether incompetent—Whether the court had discretion to refuse the adjustment—Prescription and Limitation (Scotland) Act 1973 (cap. 52), sec. 17.1
Prescription and limitation—Reparation action—Pursuer substituting a new case for that on record by way of adjustment—Whether competent—Whether within discretion of court to refuse adjustment—Prescription and Limitation (Scotland) Act 1973 (cap. 32), sec. 17.1
The pursuer raised an action of damages against his employers in respect of an accident at work allegedly sustained by him while entering their premises. The initial writ was served upon the defenders four days before the expiry of the triennium. The original averments of fault were that the defenders had failed to keep the entrance to and from their time hall reasonably safe and that they failed to institute and maintain a reasonable system of maintenance and inspection of the entrance to the time hall and that had they done so they would have identified and disposed of the formation of ice at that entrance on which the pursuer had slipped and fallen. After the expiry of thetriennium during the adjustment period, the pursuer detracted from that ground of fault and substituted one based upon the defenders' failure to ensure that the floor surface of their time hall was kept free of grease or water. A statutory case of fault was also added. The record having been closed, the sheriff heard a debate on the defenders' plea-in-law that the pursuer's adjustments were time barred in terms of sec. 17 of the Prescription and Limitation (Scotland) Act 1973. The sheriff sustained that plea-in-law and dismissed the action. An appeal to the sheriff principal was unsuccessful. The pursuer thereafter appealed to the Court of Session.
Held (rev. judgment of the sheriff principal) (1) that, the question which arose sharply in this case was whether it was open to a pursuer after the expiry of the triennium to add averments by adjustments which radically altered his case; (2) that, with the possible exception of scandalous averments, which might be deleted at the open record stage, the court had no control or discretion over what averments might be added by adjustment; and appealallowed.
Opinion, that, when amendment is proposed after the expiry of the triennium, the matter was one for the discretion of the court and was not a matter of competency.
Kenneth Sellars raised an action against his employers IMI Yorkshire Imperial Ltd., concluding for damages in respect of loss, injury and damage allegedly sustained by him. The following narrative is taken from the opinion of the sheriff principal (P. I. Caplan, Q.C.):—"In this action of reparation the pursuer claims damages of £25,000 from his employers. The claim relates to an accident at work allegedly sustained by the pursuer on 29th November 1980. The initial writ was served on the defenders on 25th November 1983—that is to say four days before the expiry of thetriennium. In art. 2 of the condescendence of the initial writ the pursuer sets out his account of the accident in the following terms: “On or about 29th November 1980 the pursuer was employed with the defenders at their Barrhead factory as a process worker. Averred that at or about 10.30 p.m. the pursuer was entering the time hall. Averred that when he was entering the time hall he fell and sustained loss, injury and damage as condescended upon. It is believed and averred that the pursuer slipped on a patch of ice which had formed at or near the time hall.” Article 3 of the condescendence of the initial writ sets out the grounds of fault in the following terms: “Said accident was caused by the fault and negligence on the part of the defender. Averred that the defender had a duty to take reasonable care for their employees such as the pursuer. Believed and averred that they had a duty to take reasonable care to keep the entrance to and from the time hall reasonably safe. Believed and averred that they failed in said duty thus causing the pursuer's loss injury and damage. Believed and averred that if the defenders had taken reasonable care to devise, institute and maintain a reasonable system of maintenance and inspection of said entrance to the time hall said accident would not have occurred. Believed and averred that had they taken reasonable care to check the condition of the entrance place to said time hall they would have ascertained that ice had formed and that employees such as the pursuer were likely to slip thereon. Averred that they did not take reasonable care to inspect said entrance or take reasonable care to apply salt or sand to prevent employees such as the pursuer slipping.” Although the alleged accident itself was simple it is said that it caused the pursuer to suffer a slipped disc and consequent back trouble. Following upon the tabling of the cause it was sisted to enable the pursuer to apply for legal aid. When the sist was recalled on 15th March 1984 defences were ordered and the case sent to the adjustment roll. On 1st May 1984 the pursuer's solicitors intimated substantial adjustments to the defenders' solicitors. By these adjustments the two articles of the condescendence I have quoted were entirely deleted. In the substituted arts. 2 and 3 the pursuer sets out his account of the circumstances of the accident as follows: “(Cond. 2) On or about 29th November 1980 the pursuer was employed by the defenders at their place of business in Barrhead, which is a factory within the meaning of the Factories Act 1961. The pursuer was employed as a process worker. At or around 10.30 p.m. on the above mentioned date the pursuer was on his way to work. The pursuer entered the defenders' premises and thereafter entered the time hall. Explained and averred that to gain access to the factory floor an employee is required to clock in. Clocking cards and a time clock are located within the time hall of the defenders' premises. Whilst in the said time hall the pursuer slipped, fell and sustained loss, injury and damage as hereinafter condescended upon. It is averred that the pursuer slipped by reason of the nature and condition of the floor covering within the time hall. (Cond. 3) Averred that the floor covering in the time hall is made of magnesium oxychloride. Averred that this is of a dangerous propensity when wet. Averred further that the said floor covering is of a dangerous propensity when greasy. Averred that at the time above condescended upon the floor covering in the defenders' time hall was both wet and greasy. Believed and averred that said greasy condition was caused by dirt from the factory floor being carried into the time hall on the shoes of employees who were clocking out of the defenders' premises. Believed and averred that the wet condition of said floor covering was caused by said employees clocking into the defenders' premises and in so doing carrying water into the time hall on their shoes. Explained and averred that the ground outside the time hall is of an uneven nature and sloped down toward the entrance door to the time hall. Averred that in wet conditions rain water gathers in puddles outside said entrance and rain water is thereafter carried into the time hall on the shoes of employees. Believed and averred that at the time of said accident there were three shift changes per day and that approximately 120 employees travelled through said time hall on each shift change. Averred that the said shift changes were at 7 a.m., 3 p.m. and 11 p.m. Averred that the floor covering in the time hall was cleaned on only one occasion per day. Averred that it was cleaned by an employee of the defenders at approximately 9.30 a.m. every morning. Averred that the floor covering in said time hall was not cleaned after the shift change at 3 p.m. and 11 p.m. Averred that due to the defenders' failure to clean said floor covering after the shift change at 3 p.m. and 11 p.m. said floor covering was very dirty and dangerous.” The new grounds of fault appear in arts. 4 and 6 and are as follows: “(Cond. 4) Said accident was caused by the fault and negligence on the part of the defenders. The defenders, as pursuer's employer, had a duty to take reasonable care for their employees such as the pursuer. They had a duty to take reasonable steps to provide safe means of access to all places where the pursuer might foreseeably go in the course of his employment. In particular, they were under the duty to take reasonable measures to secure that the surface of the said time hall was not affected by water, grease or similar substances to such an extent as to make it dangerous by reason of its slipperiness for any person walking thereon. In one or more of said duties incumbent upon them the defenders failed to comply. They failed to take reasonable care for the safety of the pursuer in the course of his employment. They failed to provide him with a safe means of access to all places where he might reasonably be expected to go in the course of his said employment. They allowed the surface of the time hall to become affected by water, grease or similar substances so that it was dangerous by reason of slipperiness for any person walking across it. If the defenders had complied with all or any of the said duties incumbent upon them the said accident would not have occurred. The defenders thus caused the accident. The defenders' answers in so far as not coinciding herewith are denied. (Cond. 6) Separatim the said accident was caused by the defenders' breach of statutory duty. The said premises of the defenders were a factory within the meaning of the Factories Act 1961. It was accordingly the duty of the first named defenders, as occupiers of said factory, to comply with the provisions of sec. 28 (1) thereof which provides...
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