GRACIE, BRIAN ALEXANDER GRACIE AGAINST CITY OF EDINBURGH COUNCIL [2019] ScotCS CSOH

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Defender: N Mackenzie; City of Edinburgh Council, Legal Services Division

[1] The background to this action was narrated in my opinion dated 10 April 2018 (see

[2018] CSOH 37). For ease of reference I shall repeat the material part of that narrative here.

[2] The pursuer was born on 9 September 1959 and is presently aged 59. In this action

he avers that on about 19 May 1965, when he was 5 years old and a pupil at Sciennes

Primary School, Edinburgh, he suffered serious injury when he ran out through the school

gates and was struck by a motor vehicle. The pursuer has no recollection of the accident.

He claims that it was caused by the fault of the defender’s employees, the staff of the school,

who allowed children to play in the playground unsupervised and failed to keep the school

gates closed. He avers that he sustained head injuries that had life-changing adverse effects

[3] The present action was raised in May 1997 in Edinburgh Sheriff Court. There was a

lengthy sist to enable the pursuer to apply for legal aid, following which a specification of

documents was approved for recovery of the pursuer’s medical records. Nothing further

happened for almost 10 years. On 9 March 2007 the case was remitted to the Court of

Session and the defenders were appointed to lodge defences. Adjustments were made to the

pursuer’s pleadings and further attempts were made to recover medical records. Legal aid

was subsequently withdrawn, and in October 2007, the pursuer’s agents withdrew from

[4] Nothing then happened in the court proceedings for a further 10 years. The pursuer

made sporadic attempts to obtain legal representation, without success until about 2015. An

affidavit was obtained from the pursuer’s mother. In June 2017 a draft minute of

amendment was intimated to the defender. The minute included averments addressing the

issue of whether the court should exercise its discretion in terms of section 19A of the

Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) to allow the action to

proceed. On 20 February 2018 I heard a motion to allow the minute of amendment to be

received and to allow the record to be amended in terms thereof. The pursuer was

represented by senior and junior counsel. The motion was opposed by the defender. It was

a matter of agreement between parties that it was appropriate to deal with the time bar issue

[5] For the reasons set out in the opinion referred to above, I refused to allow the minute

of amendment to be received. At the end of that opinion I recorded my understanding that

it was accepted by the pursuer’s legal representatives that if the minute were not received,

the action would fall to be dismissed. The pursuer is not now legally represented and does

not, for his part, accept that the action should now be dismissed. This opinion accordingly

[6] I was informed that during the time since the motion was heard, the pursuer’s

[7] The procedural history of the action since the issuing of my opinion has been as

follows. The pursuer’s agents withdrew from acting and he has since represented himself.

On 29 June 2018 the case called by order but the pursuer was unwell and could not address

the court. Having been addressed by counsel for the defender, I made the formal orders

necessary to give effect to my opinion, and appointed the cause to the procedure roll for a

debate on 21 September 2018. On that date the pursuer appeared in person and moved to

discharge the diet in order to allow him further time to seek to obtain representation. I

granted that motion. The case called again by order on 9 November 2018, when the pursuer

explained that he had been unable to find solicitors willing to act. The cause was

[8] As regards the occurrence of the accident, the pursuer avers that during a break the

staff of the primary school allowed the children into the playground to play unsupervised.

The pleadings continue: “Said playground is adjacent to Sciennes Road. The gates of the

playground had been left open. The pursuer ran through the gates and was struck by a

motor vehicle as a result of which he was injured as hereinafter condescended upon. The

pursuer suffered severe head injuries as hereinafter condescended upon.” It is averred that

the staff of the school were under a duty to take reasonable care to supervise all the children

in the playground, to ensure that all the children were kept within the school grounds and

not allowed to leave the playground, and to ensure that the school gates were kept closed

and that the children were kept away from a busy road, that they breached those duties and

[9] With regard to loss and damage, the pursuer avers that as a direct result of a brain

injury sustained in the accident, he suffered a personality disorder and developed into a

delinquent, manifested initially by telling lies, stealing and setting fire to a car. At the

instigation of his mother, he was sent to the psychiatric department of the Royal Hospital for

Sick Children, and subsequently spent 3 years in Ladyfield West Children’s Unit at the

Crichton Royal Hospital, Dumfries. Later he was sent to two List D schools. Before 1994 he

accumulated many criminal convictions and spent a total of 22 years in detention or

[10] In response to the defender’s plea-in-law that the present action is time-barred in

terms of section 17 of the 1973 Act, all that is said in the pursuer’s pleadings is that:

“The pursuer was unaware of this accident until June 1994. After he had been

released from his last prison sentence the pursuer started investigating his past and it

was only following those investigations that a relative informed him of the accident.”

I mention in passing that the minute of amendment whose receipt I refused would have

inserted additional averments that (in 1994) the pursuer spoke to his mother and asked her

why he was different from his brother and sister; that she believed it was for the best not to

tell the pursuer about the accident; and that the pursuer’s family hid the accident from him

(a) whether the pursuer has made a relevant case of breach of duty against the

(b) whether the pursuer has pled a relevant case that he was not aware, and

could not reasonably have become aware, of all of the above facts until a date

[12] On behalf of the defender it was submitted that I should sustain the defender’s

pleas-in-law with regard to relevancy and time bar, and dismiss the action. The pursuer had

failed to plead a relevant case of breach of duty on the part of the staff of the school and, in

any event, had failed to give fair notice of the case against the defender. To make a relevant

case, the pursuer would require to plead and prove either (a) that the staff did not do

something that was commonly done by staff at other primary schools in Edinburgh in 1965;

or (b) that they failed to do something that was so obviously wanted that it would be folly

for anyone to neglect to provide it. Reference was made to Skinner v Glasgow Corporation

1961 SLT 130 and Morton v William Dixon Ltd 1909 SC 807. The test was: what would the

reasonable teacher have had in contemplation? In asserting that the defender’s employees

had duties to ensure that all the children were kept within the school grounds and that the

school gates were kept closed, the pursuer overstated the duties incumbent upon them. It

was not suggested that the pursuer was permitted by staff to leave the playground, and

there was no explanation of what Edinburgh primary schools commonly did in 1965 to look

after pupils during breaks. If it was the usual practice at that time to leave gates open, an

explanation was needed of what gave rise to liability in this particular case. If it was not the

usual practice to leave gates open, an explanation was needed of what gave rise to liability if

[13] There was, moreover, a lack of fair notice. The pursuer did not offer to prove that

any children had previously run out of the school playground. He did not explain what

degree of supervision there ought to have been, or how long the gates had been open prior

to his accident. Nor did he specify the speed at which the car was being driven. It was

impossible for the defender to investigate the claim made against it.

[14] As regards time bar, it was submitted that the pursuer did not give a clear or cogent

explanation of why proceedings were not brought before 9 September 1980. No attempt was

made to narrate “all the circumstances” in which it would not have been reasonably

practicable for him to become aware of the material facts more than 3 years before the action

was raised. Having regard to the pursuer’s emphasis of the severity of the consequences of

his injuries, an explanation was required of his lack of awareness of the matters set out in

[15] In his reply, Mr Gracie acknowledged that he had little to say on the points of law

advanced by counsel for the defender. He confirmed that he had no recollection of the

accident itself, and that he was not told until about 1994 that it had occurred. He wished to

have an opportunity of proving that the accident had occurred as described, and that it had

caused all his subsequent problems. After the hearing he sent me a folder of documents. I

[16] As is usual in a legal debate of a party’s pleadings, I proceed upon an assumption

that the facts stated by the pursuer, as set out above, are true. In my opinion the facts and

circumstances that the pursuer has been able to plead are insufficient in law to found a case

of fault on the part of the defender. I do not say this as a criticism of the pursuer; it is merely

a reflection of the difficulties faced when attempting to plead circumstances that occurred

more than 50 years ago, and which were not even investigated until almost 30 years after

[17] Counsel for the defender founded upon the observation of Lord President Dunedin

in Morton v William Dixon Ltd (above) that where a case was founded on an omission, it was

necessary to prove either that the thing omitted was commonly done by other persons in

like circumstances, or that it was so obviously wanted that it would be folly in anyone to

neglect to provide it. In Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59, this formulation

was regarded by the Supreme Court as “outdated” (see paragraph 111), and for my part I

place no reliance upon it. I agree, however, with the defender’s contention that to assert a

duty to ensure that all children were kept within the school grounds and that the gates were

kept closed is to overstate the duty incumbent upon the defender’s employees. The duty

imposed by law upon them was to take reasonable care that the children did not suffer

injury. It was described by Lord Mackintosh in Skinner v Glasgow Corporation (above) at

page 136 as a duty “to take such care of [the children] as would be expected of a good parent

[18] The critical difficulty faced by the pursuer, as I see it, is that the mere fact that he was

able to run out through the school gates on to the road is not in itself enough to establish

negligence on the part of the defender’s employees, ie the school staff. In order to set out a

relevant case of fault, the pursuer would require more. In the first place, he founds his case

on a duty to ensure that the gates were not left open, but is unable to provide any detail as to

why the gates were open at this particular time, or the length of time for which they had

been open before he was able to run through. Without such detail there is no legal basis

upon which a court could hold after proof that negligence on the part of the defender had

been established. Nor can he provide any detail of the circumstances that led up to him

running out of the gate. In the second place, it would be necessary for the pursuer to set out

a case which measured the defender’s employees’ acts and omissions against the standards

of care reasonably to be expected of school staff in 1965, which may have been different from

standards expected today. It is not, in my view, self-evident that it was negligent in 1965 to

allow children to play in a playground with open gates; there might have been other ways of

enforcing a rule that children remain within the school grounds during breaks. It is

reasonable to infer from the pursuer’s pleadings as a whole that children at the school,

[19] As I have already said, it is not a personal criticism of the pursuer that these essential

ingredients of the case are absent. It is simply a reflection of the fact that the incident was

not investigated until after it was too late to obtain the information required in order to

establish a case in law of fault on the part of the school staff, especially in circumstances

where the pursuer himself has no memory of what happened. Unfortunately for the

pursuer, the consequence is that the action is irrelevant in law and must be dismissed.

[20] In terms of section 17 of the 1973 Act, the present action became time-barred either

on the pursuer’s 21st birthday on 9 September 1980, or, if later, on the date specified by

“the date… 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

(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.”

[21] The very brief passage in the pursuer’s pleadings that I quoted above does not

address the requirements of section 17(2)(b). As counsel for the defender reminded me, I

must at a procedure roll debate address the parties’ pleadings as they stand, and it is in my

opinion quite clear that what is currently pled is insufficient to found a case that the

commencement of the 3 year period for bringing an action of damages was postponed until

1994. It provides an explanation of why the pursuer took action when he did, but provides

no explanation either of why the pursuer was unaware of the accident until 1994, or why it

would not have been reasonably practicable for him to have become aware of it before then.

It is not averred, and has never been suggested, that the pursuer, at any time after attaining

the age of 18, lacked full legal capacity. In these circumstances there is nothing pled that

would entitle the court to hold that it was not reasonably practicable until 1994 for the

pursuer to become aware that his personality disorder was attributable to an act or omission

for which the defender was liable. I therefore hold that the present action was not raised

within the period specified in section 17(2)(b) of the 1973 Act. Had I held the case to be

otherwise relevant for proof, I would have dismissed it on the ground that it is time-barred.

[22] In case this sounds as if I have taken an unduly technical approach to the pursuer’s

pleadings, I have considered what would have been my view if I had allowed the

amendment summarised at paragraph 10 above to be made to the pursuer’s pleadings,

inserting the explanation that his mother and other members of his family had concealed the

occurrence of the accident from him until 1994. In my opinion this would still not have been

sufficient to bring the case within section 17(2)(b). In Agnew v Scott Lithgow Ltd (No 2) 2003

SC 448 at paragraph 23, it was pointed out that the statutory test was not whether the

pursuer had a reasonable excuse for not taking steps to obtain the material information, but

whether it would have been reasonably practicable for him to have done so. The issue of

reasonable practicability would not have been addressed by the proposed amendment. As

is well established, section 17(2)(b) contains both a subjective and an objective element. It is

clear from the pursuer’s pleadings that for some years he received psychiatric care in

various institutions for the personality disorder caused by the accident. Even in the passage

sought to be added, the pursuer did not set out circumstances in which it would not have

been reasonably practicable for him to obtain, more than three years before the action was

raised in 1997, the information contained in his own medical records that would have

resulted in him becoming aware of the facts listed in section 17(2)(b).

[23] In formal terms, I shall sustain the defender’s first and second pleas-in-law (to time

bar and relevancy respectively) and dismiss the action.

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