Watson v Fram Reinforced Concrete Company (Scotland) Ltd and Winget Ltd
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Reid,Lord Keith of Avonholm,Lord Denning,Lord Morris of Borth-y-Gest |
| Judgment Date | 28 July 1960 |
| Judgment citation (vLex) | [1960] UKHL J0728-1 |
| Court | House of Lords |
| Docket Number | No. 8. |
| Date | 28 July 1960 |
[1960] UKHL J0728-1
Viscount Simonds
Lord Reid
Lord Keith of Avonholm
Lord Denning
Lord Morris of Borth-y-Gest
House of Lords
After hearing Counsel, as well on Tuesday the 14th, as on Wednesday the 15th, days of June last, upon the Petition and Appeal of Samuel Watson, residing at 15 Forgie Crescent, Maddison, Falkirk, Stirlingshire, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division of the 17th of December 1959, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Winget Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 17th day of December 1959, in part complained of in the said Appeal, be, and the same is hereby, Recalled, and that the Interlocutor of the Lord Ordinary (Lord Wheatley) of the 23d day of October 1959, thereby Recalled, be, and the same is hereby, Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to proceed as accords: And it it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs of the Action in the Inner House, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be taxed in the manner usual when the Appellant sues in formâ pauperis, and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
On the 9th August, 1956, the Appellant, being then employed by a company called Fram Reinforced Concrete Company (Scotland) Limited, suffered a serious injury. He was working at a so-called Winget cement mixer which had been supplied to his employers by the Respondents. The mixer included a loading hopper which could be raised from the ground and held in the "up" position by means of a tubular strut, one end of which swivellled on a U-Shaped bracket. The bracket was attached to the main frame of the mixer by a pin to which the bracket was welded. On the occasion of the accident the Appellant was working below the hopper when the bracket broke from the pin and the hopper fell upon him, causing him serious injury. It is to be assumed for the purpose of this case that the cause of the break was inadequate welding and that the employers could not discover the inadequacy by any reasonable inspection. In these circumstances the Appellant brought his action first against his employers and then by amendment against the Respondents. The Lord Ordinary dismissed his action against his employers but allowed a proof of his averments against the Respondents. On a reclaiming motion by them the interlocutor, so far as it allowed a proof, was recalled by the unanimous judgment of the Second Division of the Inner House on the ground that the action was time-barred under section 6(1) ( a) of the Law Reform (Limitation of Actions) Act, 1954. This is the only question for your Lordships decision. The following are the relevant dates. The mixer with its assumedly faulty welding was supplied to the company at some date prior to the 7th July,1955. The action was raised against the company on 29th May, 1958: the Respondents were called as defenders on the 31st March, 1959. The action was therefore raised against the Respondents more than three years after the supply of the mixer to the company but less than three years after the accident. To these facts the provisions of section 6 (1) ( a) of the Act fall to be applied. It is in the following terms:
"No action of damages where the damages claimed consist of or include damages of 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 or, where such act, neglect or default was a continuing one, from the date on which the act, neglect or default ceased".
It is to be observed that this appeal is brought in an action in which damages are claimed for personal injuries and that that which has given rise to the action can only be some "act, neglect or default" of the Respondents. First, then, it must be asked what is that act, neglect or default. To this at least (though I will revert to it later) the answer appears to me to be clear. It was the supply to the company, the putting into circulation, of a machine which was defective and a source of potential danger to those who might come within its range. It is important to bear in mind that it is the act of the Respondents with which we are concerned and nothing else. Next, then, it must be asked what was the date of that act. In many, perhaps most, cases of personal injury the act which causes the damage is so nearly coincident with it that the date of the one can be regarded as the date of the other. But that is not so in all cases, particularly where the action is founded on what may be called the Donoghue v. Stevenson principle. In such a case the act and its injurious consequence may be separated by a long interval and it becomes imperative not to confuse the act and the consequence or their respective dates. In the present case the act took place at some time before 1955, its consequence, the damage to the Appellant, in August, 1956.
After this prelude, which is only necessary owing to the development of an argument upon the principle of Donoghue v. Stevenson, I turn to an examination of the subsection. I do not forget that I must have regard to its context, but it is permissible first to consider whether the words we have to interpret have by themselves a plain meaning. I must admit that, whatever my own first impression might be, I should be diffident about expressing it, if it differed from the unanimous and emphatic view of their Lordships of the Second Division. "The plain unvarnished sense of the words employed", says the Lord Justice-Clerk: "their natural meaning", says Lord Mackintosh:
"the terms of the sub-section appear to me to be plainly adverse to him"
[the appellant], says Lord Patrick:
"I therefore see no reason for ignoring the plain meaning of the words",
says Lord Strachan. But in fact I agree with their Lordships that the meaning of the words is plain and plainly adverse to the Appellant. The plain meaning is that the relevant date is the date of the Respondents' act, not its subsequent consequence.
This is not, my Lords, as it appears to me, a case in which a word or phrase is used that is capable of two or more meanings and the Court is guided to its interpretation by a consideration of its context or what is conceived to be the purpose of the Act. Any other than the plain meaning can only be given to it by presupposing an intention and, to give effect to that intention, introducing words that are not there. The distinction is so clear between the words that are in the section and those that must be introduced that I decline to believe that Parliament, meaning the one thing, would say the other. Who, intending to say "three years from the date when the act, neglect or default caused the damage which gave rise to the action", would use the language of this subsection? I do not regard Parliament in the year 1954 as a rude assembly, at once inops consilii and of itself incapable of making a sensible choice between two expressions bearing patently different meanings.
The argument in favour of departing from the plain meaning of the words was manifold. It was urged that it was the intention of the Act to harmonies the law of Scotland in regard to time-bar with that of England and that, since in England the result of section 2 of the Limitation Act, 1939, and section 2 (1) of the Act of 1954 was to make the date of the cause of action the terminus a quo, therefore section 6, which deals with Scotland, must be given the same meaning. It appears to me, however, to be a preferable view that, where in two sections in the same statute words having primâ facie different meanings are used, they are intended to have a different, not the same, meaning. Nor do I see any compelling reason for supposing that harmony was desired or intended. The law of Scotland in this field was always widely divergent from that of England. Where they came together in the Public Authorities Protection Act, 1893, there were still material differences, see section 3 of that Act. The comprehensive Act of 1939 did not apply to Scotland. I see no reason to suppose that there was a change of heart in 1954. This argument is of no weight.
Next a contention of a more general character was advanced, which I do not find it easy to state. The effect of it was that it was more consistent with the intention of the Act as a whole to make the date of the damage...
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