John Aitchison V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Kingarth,Lord Carloway,Lord Clarke,Lord President |
| Neutral Citation | [2010] CSIH 9 |
| Court | Court of Session |
| Published date | 10 February 2010 |
| Year | 2010 |
| Date | 10 February 2010 |
| Docket Number | A1609/03 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Kingarth Lord Carloway Lord Clarke Lord Bonomy
| [2010] CSIH 9 A1609/03 and A82/05 OPINION OF THE LORD PRESIDENT in the causes JOHN AITCHISON Pursuer and Respondent; against GLASGOW CITY COUNCIL Defender and Reclaimer; and STEPHEN FINDLETON Pursuer and Reclaimer; against QUARRIERS Defender and Respondent: _______ |
Act (Aitchison): S O'Brien, Q.C., Stirling; Drummond Miller LLP
Act (Findleton): A Kinroy, Q.C., U Doherty; Balfour + Manson LLP
Alt (Aitchison): J A Peoples, Q.C., G J Clarke, Q.C.; G Lindsey, City of Edinburgh Council
Alt (Findleton): G J B Moynihan, Q.C., R Dunlop; Simpson & Marwick
10 February 2010
The issue
[1] The issue of principle which arises for determination at this stage in these reclaiming motions may be formulated as follows:
An individual, through fault of another, sustains injury of more than a negligible kind ("the original injury"); he does not, however, within any of the limitation periods specified in section 17 of the Prescription and Limitation (Scotland) Act 1973 (as amended) bring an action of damages in pursuit of the right to reparation so arising; subsequently there emerges an injury ("the subsequent injury") caused by the same fault but which is said to be distinct from the original injury; can that individual then as of right bring against the wrongdoer an action seeking damages for the subsequent injury?
[2] In Carnegie v Lord Advocate 2001 SC 802 an Extra Division in effect decided that he could. The primary question for this court is whether that decision was sound in law.
[3] The answer to that question is important not only for the parties to these reclaiming motions but for other parties in like circumstances. In recent times a significant number of individuals have as adults raised actions in which they claim that, while children and resident in children's homes or other institutions, they were subject to abuse - in some cases physical, in others sexual and in yet others both - at the hands of adults employed in these institutions. In some cases the abuse was of a very serious character, in others less so. A feature of at least some of these cases is that there have emerged in later life psychological symptoms which, it is claimed, are caused by the conduct to which they were subjected but are distinct from the immediate consequences of that conduct. The answer to the question is also of potential importance in a wider class of situations.
The present actions
[4] In the present cases the issue arises in this way. The first of these pursuers (Mr Aitchison) was, between the ages of about 3 and 16, resident in a children's home managed by a statutory predecessor of Glasgow City Council. He avers that in about 1974, when he was 9 years of age, he was on five occasions sexually assaulted by a member of staff. Although he reported that abuse to other members of staff, their only response was to accuse him of lying and to chastise him physically. Mr Aitchison further avers that he blocked out thoughts and memories of the above abuse and of the abuser until 2001 when, following a police inquiry into abuse at the home and an article in a newspaper, he attended a counsellor as a result of which his memories of the abuse gradually returned. Subsequently, he avers, he has suffered psychological damage (including nightmares, sleep disturbance, loss of concentration and panic attacks) which he attributes to the abuse to which he was subjected in 1974. In the present action (commenced in 2003) he seeks damages from the Council for that psychological damage. He does not seek damages for any affront or other immediate consequence of the abuse.
[5] In their pleadings the Council contend that the action is time-barred by the operation of limitation of action. Mr Aitchison disputes this but in the alternative pleads that the court should exercise in his favour the discretion conferred on it by section 19A of the Prescription and Limitation (Scotland) Act 1973. The parties were heard on Procedure Roll. The Lord Ordinary, while observing that "the assaults which, given [the pursuer's] age at the time, are serious", followed and applied Carnegie, holding in effect that the psychological damage was on averment wholly distinct from any immediate consequences of the abuse and that, the action having been raised within three years of the emergence of that damage, section 17 of the 1973 Act did not bar it. He repelled the Council's plea of time-bar and allowed a proof before answer although observing that the pursuer's plea relating to section 19A was largely now redundant. Against that interlocutor the Council has reclaimed.
[6] Mr Aitchison does not accept that in 1974 he sustained "injuries" within the meaning of section 17 but maintains that, if he did, he is, standing Carnegie, entitled as of right to pursue this action. A decision as to the soundness or otherwise of Carnegie is accordingly necessary for the disposal of his action.
[7] The second of the pursuers (Mr Findleton) was between 1965 and 1971, when he was between 7 and 13 years of age, resident in a children's home managed by Quarriers, a charitable institution. He avers that throughout that period he was "continually physically and mentally abused" by a member of the staff. His present averments include the statement - "Since his time under the care of the defenders, the pursuer has suffered and continues to suffer from depression". The Lord Ordinary in these circumstances observed that Mr Findleton did not aver a wholly distinct injury arising only within the three years prior to the raising of the action and that accordingly, on the assumption that Carnegie was good law, Mr Findleton's case was not covered by it. She in effect rejected his case in so far as based on section 17, allowing a preliminary proof in respect of his application under section 19A that the action be allowed to proceed on a discretionary basis. Mr Findleton's advisers accept that, standing his present averments, he cannot bring himself within Carnegie but are considering whether they can seek to amend in order to enable him to do so. Such amendment would be fruitless if Carnegie is not good law. Hence a decision on that issue is also important for the disposal of his case.
Carnegie v Lord Advocate
[8] In Carnegie the pursuer was a soldier who had joined the Army in July 1991. He received basic training at Penicuik in the course of which he later claimed to have been subjected to assaults and bullying by non-commissioned officers. Between late February and late March 1992 he was stationed in Northern Ireland. On a date within that period, which he was unable to identify, he was subjected, he alleged, to further assault by a Sergeant Frew. In May 1992 he developed psychological symptoms. On 7 March 1995 he commenced an action in which he sought reparation for both physical and psychological injuries.
[9] After sundry procedure, including a preliminary proof, the Lord Ordinary allowed a proof before answer on the merits of the action. The defender reclaimed. The pursuer cross-appealed on two grounds. It is the second of these which is material for present purposes. An Extra Division (comprising Lords Milligan, Marnoch and Johnston) allowed the cross-appeal on that second ground. Lord Johnston, with whom Lords Milligan and Marnoch concurred, delivered the substantive opinion in relation to that ground. He said:
"[18] Turning to the second ground of the cross-appeal it is far from clear what case the pursuer is actually making on his pleadings. In essence, however, complaint is made of a series of assaults or course of bullying which ... must be regarded as having ceased prior to the commencement of the triennium. In so far, therefore, as the pursuer makes a claim for injuries in respect of individual assaults as separate delicts, such, in my opinion, is clearly time-barred. This calls into question the averments at the start of cond 5 in relation to pain and suffering to which I shall return. The question remains, however, whether the pursuer has averred a relevant case of having sustained psychological injury within the triennium. It is well recognised, of course, that in relation to a single wrong only one action is competent, and losses, both past and future, must be claimed for in that action (Dunlop v McGowans [1980 SC (HL) 73] (per Lord Keith of Kinkel at page 81)). However, as counsel on both sides came to realise, it is an entirely different question whether, in the only action raised, the pursuer can sue for only some of his injuries, namely those which are not time-barred. For this to happen the later injuries must, of course, be distinct as, otherwise, they will fall to be seen as a simple continuation or exacerbation of those which are time-barred. Here the decision of Lord Prosser in [Shuttleton v Duncan Stewart & Co 1996 SLT 517] is highly relevant. In that case, which related to lung disease, his Lordship having heard a preliminary proof determined that various symptoms that the pursuer exhibited prior to the final development of asbestosis, which had revealed themselves outwith the triennium relating to the action that had been raised, were not sufficient to deny the pursuer the opportunity to sue, as he did within the relevant triennium, once the actual disease of asbestosis had developed.
[19] The evidence upon which his Lordship relies is summarised by him as follows: 'For what it is worth it appears to me [upon] the evidence that the plaques if [it is] to be...
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