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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 38
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PD226/04
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OPINION OF LORD MACPHAIL
in the cause
GUY DARRELL
MINSHULL
Pursuer;
against
THE ADVOCATE
GENERAL FOR SCOTLAND
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: Party
Defender: Webster; Morton Fraser
26 February 2008
Introduction
[1] This
is an action of damages for personal injuries.
The question I have to decide is whether it is time-barred. I have now heard a preliminary proof on that
issue.
[2] The
action is brought against the defender as representing the Ministry of
Defence. The pursuer's material
averments may be summarised as follows.
In or about August 1997 he was working in the course of his employment
with the Ministry of Defence as an engineer with the Royal Air Force at
Lossiemouth. He was carrying out a test
on an item of equipment known as a Sky Shadow ECM (electronic counter-measure)
Pod in circumstances in which his employers were in breach of various health
and safety regulations which he specifies. As he was carrying out the test, "he was
unavoidably sprayed in the face and mouth with hot atomized Coolanol 25R." The
pursuer explains that Coolanol 25R ("Coolanol") is a fluid which contains
ingredients that are toxic and hazardous to health. He avers that he inhaled the fluid and
consequently sustained injury. He
developed chronic asthma, was discharged from the RAF in July 2003 and has not
worked since.
[3] The
summons in the present action passed the Signet on 13
February 2004, and the action was served on 14
February 2004. The defender denies
liability and also contends (i) that the action is time-barred; and (ii) that
it would not be equitable for the Court to exercise its discretion in terms of
section 19A of the Prescription and Limitation (Scotland) Act 1973 ("the Act").
The statutory
provisions
[4] Section 17 of the Act applies to actions
in respect of personal injuries not resulting in death. Subsection (2) provides, so far as material:
"(2) Subject to [. . .]
section 19A of this Act, no action to which this section applies shall be
brought unless it is commenced within a period of three years after -
(a) the date on which the
injuries were sustained [. . .]; or
(b) the date (if later than
any date mentioned in paragraph (a) above) on which the pursuer in the action
became, or on which, in the opinion of the court, it would have been reasonably
practicable for him in all the circumstances to become, aware of all the
following facts -
(i) that the injuries in
question were sufficiently serious to justify his bringing an action of damages
on the assumption that the person against whom the action was brought did not
dispute liability and was able to satisfy a decree;
(ii) that the injuries were
attributable in whole or in part to an act or omission; and
(iii) that the defender was
a person to whose act or omission the injuries were attributable in whole or in
part or the employer or principal of such a person."
[5] Section
19A provides in part:
"(1) Where a person would be
entitled, but for any of the provisions of section 17 [. . .]
of this Act, to bring an action, the court may, if it seems to it equitable to
do so, allow him to bring the action notwithstanding that provision."
The pleadings
[6] I have already summarised above the
pursuer's averments about the accident in August 1997 and its
consequences. The defender's averments
in answer 4 are to the following effect.
The pursuer had suffered from chest problems for a number of years. In or about 1987 he suffered from problems
that were attributed to his allergic reaction to guinea pigs. In or about 1997 he again suffered from chest
problems which were eventually diagnosed as being asthma. In 1997 the pursuer attributed his problems
to exposure to pigeon droppings "when working on his hobby of cars". On or about 6 November 2000 he told Dr D I T
Jenkins, an honorary consultant in occupational medicine, that "he believes his
symptoms are worse when he is at work.
In particular he raised the possibility that two compounds to which he is
exposed, Coolanol 25R and Activator (T), are the cause of his symptoms." On or
about 5 February 2001 he told Dr Jenkins that he was convinced that his
symptoms were related to work and that Coolanol was "the most likely suspect"
as he claimed to have been exposed to aerosols in the past. He did not refer to any alleged specific
instances of exposure to Coolanol as a possible cause of his symptoms until 2 March 2001 when he was seen by Professor A J Newman Taylor. On or about 6 June 2001 an RAF Board concluded
that there was no evidence that the pursuer's asthma had an occupational cause.
[7] In
answer 6 the defender points out that the exposure to Coolanol on which the
pursuer founds occurred in August 1997, but the present action was not raised
until 13 (more accurately 14) February 2004.
The averments continue:
"In any event the pursuer
was aware by at least 6 November 2000 that he had breathing difficulties of
sufficient seriousness to consult upon, that he had been exposed to Coolanol 25R whilst at work
with the Ministry of Defence and that there might be a causal connection
between the two. [. . .]
Reference is made to Answer Four. In the
circumstances he was aware, or at least it was reasonably practicable for the
pursuer to have become aware, of the facts detailed in s 17(2)(b) of the
Prescription and Limitation (Scotland) Act 1973 more than three
years prior to the raising of this action."
[8] The
pursuer avers in statement 4, after narrating the incident in August 1997 when
he was sprayed with Coolanol:
"Following said incident the
pursuer began to experience difficulties with his breathing. He did not know the cause of his
difficulties. Following a CT scan on 14 February 2001 he was advised that his asthma was most likely
related to exposure to irritants at work.
With reference to the defender's averments in answer, admitted that in
or about 1987 the pursuer suffered from problems that were attributed to his
allergic reaction to guinea pigs.
Admitted that in or about mid-1997 the pursuer again suffered from chest
problems under explanation that these were caused by his exposure to Coolanol
25R dielectric transfer fluid during the course of his service with the Royal
Air Force. There were, then, no major
chest problems between 1987 (after the guinea pig incident) and mid-1997 at
which time contact was made, almost simultaneously, with bird droppings (car
club) and Coolanol 25R. The pursuer's
breathing difficulties started within a few days of these events. [. . .] During a consultation at the Royal Brompton Hospital in London on 16 November 2000, Dr D I T Jenkins, knowing that all the usual
allergens had been eliminated during three years of testing, asked the pursuer
if he was in regular contact with any other substances not investigated. The pursuer named Coolanol 25R and Activator
(T) for the first time and Dr Jenkins said he would research these items. [. . .]"
[9] In
statement 6 the pursuer avers:
"With reference to the
defender's averments in answer, explained and averred that the pursuer's right
to seek reparation from the defenders has not suffered limitation. As hereinbefore condescended upon, the
pursuer was unaware of the cause of his condition until after the CT scan on 14th February 2001 when he was advised that
his asthma was most likely related to exposure to irritants at work. After the pursuer's exposure to Coolanol 25R
and the development of his symptoms he was diagnosed on 13th November 1997, by Dr Kumar Rajiv, as
having late onset asthma, an allergic reaction to avian precipitins and
extrinsic alveolitis. The pursuer's
symptoms did not improve and it was suspected that there might be a link
between his dyspeptic symptoms and his asthma.
On or about May 1999 an endoscopy was performed and this showed that his
stomach and oesophagus were normal. On
or about September 1999 specific allergen testing was carried out and these
were negative for avian precipitins and were positive for timothy-grass. Thereafter, considerable doubt was expressed
by the pursuer's treating physicians about the diagnosis of asthma and they
considered that his diagnosis was not clear cut, as reflux could have been
causing a significant proportion of his symptoms. The pursuer's hypertension and obesity also
made it more difficult to diagnosis the pursuer's condition. In light of this uncertainty on or about
September 2000 the pursuer was referred to Professor Newman-Taylor's Clinic for
further assessment. The pursuer attended
this Clinic and underwent further tests and examinations, including a CT scan
on 14th February 2001. On this date the pursuer was advised that he
had asthma and that this could have been caused by inhaling Coolanol 25R. Accordingly, immediately after developing his
symptoms the pursuer sought medical treatment and underwent all necessary tests
and examinations. His treating
physicians found it difficult to diagnosis his condition and their diagnosis
changed over time. It was reasonable for
the pursuer to accept their initial diagnosis.
In such circumstances, the pursuer was not aware, and it was not
reasonably practicable for him to have been aware, that his injuries were
attributable in whole or in part to an act or omission of those for whom the
defender was liable prior to 14th February
2001. The summons on the present action was served
upon the defender within three years of 14th
February 2001. Rightly or wrongly,
the 'accepted wisdom' in the Royal Air Force at that time was that an action
could not be brought by a serving member, just as a civilian would resign if suing
his employer, and he wished to avoid any possibility of conflict or bad feeling
before release. Accordingly, the
pursuer's right of action has not suffered limitation. Reference is made to Section 17(2)(b) of the Prescription
and Limitation (Scotland) Act 1973 ('the 1973
Act'). Esto the pursuer's right of action has suffered limitation (which
is denied), it would be just and equitable for the court to exercise its
discretion to permit the pursuer to proceed with the present action. The pursuer would suffer significant
prejudice if he were not permitted to proceed with this action. The Veterans Agency and the Pension Appeal
Tribunal for Scotland have accepted that the
pursuer's condition is attributable to, or aggravated by, his RAF Service. Reference is made to Section 19A of the
1973 Act."
The evidence
[10] The pursuer appeared as a party
litigant. He gave evidence on his own
behalf and led the evidence of Mr Grant Somerville, who had been working with
him at the time of the accident in August 1997.
The defenders led the evidence of two of the doctors who had examined
the pursuer: Group Captain David Jenkins, who is referred to in the pleadings,
and Wing Commander Douglas McGrath. No
issue arises as to the credibility and reliability of the defenders'
witnesses. Each of them positively
impressed me as a careful and trustworthy witness. Group Captain Jenkins is a particularly
distinguished officer. Not only is he a
consultant in occupational medicine with many qualifications: he is now the General
Medical Adviser at the Sovereign Base Area in Cyprus and the Commanding Officer
of The Princess Mary's Hospital in Akrotiri.
He attended carefully to the questions addressed to him about his
examinations of the pursuer many years ago, and I was satisfied that his
evidence was to be preferred where it
differed from that of the pursuer.
[11] I was
not wholly satisfied with the pursuer's evidence. I noted in his favour that he had carefully
prepared for the proof by compiling a helpful chronology of events, and that
his demeanour in the witness box was respectful and apparently candid. I have concluded, however, that his evidence
is not reliable in several respects.
First, he appeared to play down the importance of the accident. He stated that it was not unusual for those
working with the equipment to be sprayed with Coolanol. Mr Somerville, on the other hand, said that
while Coolanol could gush out and cover your hands and your legs, he could not
recall any other incident where someone had been sprayed in the face with hot
Coolanol. Secondly, the pursuer stated
that after the accident he had simply wiped his face and had not washed
it. Mr Somerville, on the other hand, who
had come on the scene very shortly after the accident, said that the pursuer
went out of the room, and Mr Somerville assumed that he was going to wash his
face. While Mr Somerville was not an
entirely helpful witness, in that he naturally had difficulty in recalling some
matters of detail over 10 years after the event, I am satisfied that his
evidence on these matters is reliable.
Thirdly, the pursuer had himself amended his pleadings
to include the sentence, "Exposure to Coolanol was not formally reported or
recorded but was 'railed' about at the time, to those present." In evidence the
pursuer said that that averment meant that he had complained to his colleagues
about the amount of extra work that would have to be done as a result of the
spraying of the Coolanol, and not about the fact that he had been exposed to
Coolanol. I did not find this passage in
his evidence convincing. Fourthly, the
pursuer's account of his conversation with Group Captain Jenkins when the
latter examined him on 6 November 2000 differed from that of Group
Captain Jenkins. Group Captain Jenkins
said that when he asked the pursuer about substances to which he was exposed at
work, at home or in his leisure time, the pursuer mentioned that he believed
his symptoms were worse when he was at work and raised the possibility that
Coolanol and Activator (T) were the cause of his symptoms. The pursuer, on the other hand, stated that
he mentioned Coolanol after Group Captain Jenkins had asked him about
organosilicates. Group Captain Jenkins,
however, said that at that time he had never heard of organosilicates. I have no hesitation in preferring the
evidence of Group Captain Jenkins, which is consistent with his contemporaneous
manuscript notes and a letter he wrote after the consultation (no 7/1 of
process, pages 33, 21).
[12] The
major issue as to the pursuer's credibility, however, is whether his evidence
is to be accepted when on several occasions he sought to justify the fact that
he did not mention the fact that he had inhaled Coolanol to any of the doctors
who examined him prior to his consultation with Group Captain Jenkins. The pursuer offered two explanations in the
course of his evidence. The first was
that he had not done so because he had not considered the incident to be of any
significance. The second, which he
occasionally advanced when he was being pressed in cross-examination, was that
he had forgotten about it. I did not
find the second explanation at all convincing.
I have had more difficulty with his first explanation. It is true that in early consultations he
complained of a dry cough and difficulty in breathing which he attributed to
the fact that he had been cleaning out bird droppings from the hangar where the
RAF car club was situated. He was
referred to the Ministry of Defence
Hospital Unit (MDHU) at Peterborough for investigation, where
exposure to birds was excluded as a cause of his complaint. Despite the elimination of that possible
cause the pursuer, according to his own evidence, did not consider whether his
inhalation of Coolanol, which had occurred at about the same time as the
cleaning out of the hangar, might be a cause.
I have found this evidence hard to understand. The pursuer had been regularly exposed to
birds and guano in the hangar for some years, apparently without ill
effects. He knew from the relevant MoD
safety data sheet (no 6/14 of process) and material safety data sheet
(no 6/11 of process) that the inhalation of Coolanol vapour at a high
temperature was dangerous. The pursuer
said that other material, referred to as "COSSH sheets", led him and his
colleagues to believe that there was nothing wrong with Coolanol, but I am
unable to understand how such a view could have been reasonably
entertained. The pursuer was an
intelligent man who was very experienced in dealing with the Sky Shadow
equipment and was aware that Coolanol was a dangerous substance. It is very difficult to comprehend why,
contact with birds or guano having been excluded as a cause of his condition,
he failed to attach any significance to the fact that his breathing had
deteriorated within a few days of his inhalation of hot, vaporised
Coolanol. I am reluctant to disbelieve
his evidence that he failed to do so because he appeared to give his testimony
in a frank and artless manner and, apart from the issues already discussed, I
found his evidence to be acceptable.
Having repeatedly considered the matter I have concluded that for some
reason which I am unable to identify the pursuer remained blind to the obvious,
and that it would have been reasonably practicable for anyone of his intelligence,
knowledge and experience to become aware of the possibility of a connection
between his condition and his inhalation of Coolanol, and to tell his medical
examiners about the incident, long before 14 February 2001.
The facts
[13] The material facts may now be shortly
stated. On a single day in August 1997
the pursuer not only cleaned out guano from the car club hangar but also
inhaled hot, vaporised Coolanol. A few
days later, on 11 August 1997, he attended the station medical centre at RAF
Lossiemouth complaining to Wing Commander McGrath of having had difficulty in
breathing and a severe dry cough for the previous few days (no 7/2 of process,
pages 233, 234). I find that the date of
the cleaning of the hangar and the inhalation of the Coolanol was 5 August 1997. That,
accordingly, is the date on which the injuries of which he complains were
sustained. Since the action was
commenced more than three years after that date, it will be time-barred by
section 17(2)(a) unless the pursuer can either bring his case within section
17(2)(b) or establish a claim for equitable relief under section 19A.
[14] I
therefore examine next the facts relative to the matters specified in section
17(2)(b)(i) and (ii). No issue arises as
to section 17(2)(b)(iii): it is not disputed that the pursuer knew that he was
at all material times engaged in the course of his service with the RAF and
that the Ministry of Defence would be the appropriate defender in any action of
damages for personal injuries founded on negligence.
[15] As to
section 17(2)(b)(i), the material facts are as follows. The pursuer did not tell Wing Commander
McGrath that he had inhaled Coolanol.
Several attempts were made to diagnose the cause of his condition. On a number of occasions between August 1997
and May 1999 he was referred to the MDHU at Peterborough for that purpose. Throughout that period his symptoms
persisted, and on 28 October 1998 he was temporarily
downgraded as being unfit for service outside base areas. I find that by that date, at the latest, it
would have been reasonably practicable for anyone of the pursuer's intelligence
to become aware, from the persistence of his symptoms and his consequent
downgrading, that his injuries were sufficiently serious to justify bringing an
action for damages on the assumptions stated in section 17(2)(b)(i). In so finding I apply a test which is partly
a subjective test and partly an objective one, as explained in Carnegie v Lord Advocate 2001 SC 802 at
paragraph 15.
[16] As to
section 17(2)(b)(ii), the first question is whether a date can be identified on
which the pursuer became aware that his injuries were attributable in whole or
in part to an act or omission by his employers.
In order to establish actual awareness, a medical diagnosis is required
(Agnew v Scott Lithgow (No 2) 2003 SC 448 at paragraph 13). It is recorded that in August 1998 his
condition flared up although he had not had any contact with birds (no 7/2 of
process, page 223), and that by 24 March 1999 contact with birds as a cause
of his complaint had been ruled out (no 7/2 of process, pages 92-93). As I have indicated, it is difficult to
understand why, by the latter date at the latest, the pursuer failed to mention
to those examining him, who were making painstaking and repeated searches for
the cause of his symptoms, the fact that he had sustained the exceptional
accident of inhaling Coolanol a few days before the onset of his
complaint. He could, of course, have
mentioned that fact to his various examiners at any time from the date of the
accident (cf Elliot v J & C Finney 1989 SLT 208 at
210K-211B; Mackay v Lothian Health Board 2001 SLT 581 at
paragraphs 13, 14).
[17] The
pursuer did not mention Coolanol until his examination by Group Captain Jenkins
on 6 November 2000. There is no proof, however, that a causal
link between the pursuer's inhalation of Coolanol and his medical condition was
ever established. The pursuer avers that
on 14 February 2001 he was advised that he had
asthma and that this could have been caused by inhaling Coolanol. But that averment is not supported by any
evidence. The pursuer said at the
hearing on evidence, but not in the witness box, that Professor Newman Taylor
gave him that advice on that date.
However, Professor Newman Taylor in a letter of 2 March 2001 (no 7/1 of process, page 13) was careful not to
express a concluded view as to whether the pursuer's condition had been
occupationally caused. There is
accordingly no evidence of any date when the pursuer became aware that his
condition was attributable to any act or omission.
[18] The
question that in any event remains to be resolved is whether a date can be
identified on which it would have been reasonably practicable for the pursuer
to become aware that his condition was so attributable. It is for the pursuer to prove that that
would not have been reasonably practicable prior to 14
February 2001. I refer to my
finding that by 28 October 1998 (the date of his
downgrading), at the latest, it would have been reasonably practicable for the pursuer
to become aware that his injuries were sufficiently serious to justify bringing
an action. It is clear from the evidence
of Wing Commander McGrath that if the pursuer had mentioned to him the fact
that he had inhaled Coolanol, Wing Commander McGrath would have noted that fact
in a letter referring the pursuer to the MDHU.
It is also apparent from the evidence of Group Captain Jenkins that an
investigation of the question whether Coolanol was responsible for the
pursuer's condition would have led to a conclusion within about four
months. Accordingly, it is clear that it
would have been reasonably practicable for the pursuer to ascertain whether his
condition was attributable to any act or omission long before 14 February 2001.
[19] Since,
in my opinion, the pursuer cannot successfully invoke section 17(2)(b), the
final question is whether he may be granted equitable relief in terms of
section 19A. In approaching this
question it is necessary to balance all the relevant circumstances of the
particular case and the interests of all parties concerned (Thomson v Newey & Eyre Ltd 2005 CSIH 21, 2005 SC 373 at paragraph 22).
The pursuer avers that he would suffer significant prejudice if he were
not permitted to proceed with the present action. While that is true, it is also true that if
he were permitted to proceed, the defender would suffer prejudice by being deprived
of the statutory defence available under section 17 (Thomson at paragraph 25).
The pursuer also avers that the Veterans Agency and the Pensions Appeal
Tribunal for Scotland have accepted that his
condition is attributable to, or aggravated by, his RAF service. That averment, however, is not proved. Nor is there any evidence to explain
convincingly why the pursuer failed to pursue his claim with promptitude. The pursuer avers that he did not sue earlier
because "the accepted wisdom" in the RAF was that an action could not be
brought by a serving member, and he wished to avoid any possibility of conflict
or bad feeling before his release; but no evidence was led and no submissions
were made on these matters. I have
already considered, in the contexts of my assessment of the pursuer's
credibility and my views on section 17(2)(b), the pursuer's playing down of the
importance of the accident and his explanations of his baffling failure to
mention it to the doctors. Having
reviewed the whole matter, I have been unable to find any relevant
circumstances which make it seem equitable to allow the pursuer to bring the
action notwithstanding his failure to satisfy the requirements of section 17.
Result
[20] I shall accordingly dismiss the action and
reserve all questions of expenses.
