OUTER HOUSE, COURT OF SESSION [2008] CSOH 38
PD226/04	OPINION OF LORD MACPHAIL in the cause GUY DARRELL MINSHULL Pursuer; against THE ADVOCATE GENERAL FOR SCOTLAND Defender: ________________

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 14^th 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 13^th 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 14^th 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 14^th February 2001. The summons on the present action was served upon the defender within three years of 14^th 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.