NORMA MURRAY v. THE NATIONAL ASSOCIATION OF ROUND TABLES OF GREAT BRITAIN AND IRELAND AND OTHERS
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| Lord Coulsfield Lady Cosgrove Lord McCluskey | XA157/00 OPINION OF THE COURT delivered by LORD McCLUSKEY in APPEAL From the Sheriffdom of Grampian, Highland and Islands at Peterhead in the cause NORMA MURRAY Pursuer and Appellant; against THE NATIONAL ASSOCIATION OF ROUND TABLES OF GREAT BRITAIN AND IRELAND and OTHERS Defenders and Respondents: _______ |
Act: Macdonald; Russell Jones & Walker (for Lefevre Litigation, Advocates, Aberdeen)
Alt: Carmichael; Bennett & Robertson, W.S. (for Burnside Kemp Fraser, Advocates, Aberdeen)
23 November 2001
[1]This is an appeal by the pursuer and appellant against an interlocutor pronounced by the Sheriff of Grampian, Highland and Islands at Peterhead on 19 July 2000 dismissing the pursuer's action. The Sheriff dismissed the action on the basis that the action had become time-barred. He upheld the first four pleas-in-law for the defenders and assoilzied the defenders from the crave of the Initial Writ.
[2]The action, in which the pursuer seeks reparation by way of damages in respect of an accident sustained by her on 14 June 1996, was served on the defenders on 12 October 1999, some three years and four months after the accident. In her pleadings the pursuer avers that on 14 June 1996, while she was at a barn dance in a barn at Cairngall Farm, near Peterhead, she sustained injury as a result of tripping over an obstruction in a poorly lit area adjacent to the entrance to the bar. The pursuer avers that the dance had been organised by the second defenders in order to raise funds for the second defenders. She avers that the preparation of the barn for the dance was done by the second defenders and their office bearers, the persons named in the instance of the Initial Writ. Those persons are said to be the Chairman, Vice Chairman, Secretary and Treasurer of the unincorporated association known as "Peterhead and District Round Table"; they are called "as representing the Peterhead and District Round Table and as individuals". The first defenders are a registered charity and voluntary association of many local Round Table Associations. She founds upon the alleged negligence of the defenders.
[3]In answer 7 of the defences (being defences lodged on behalf of both defenders) it is averred that the pursuer first intimated a claim on the second defenders in respect of the accident by letter dated 16 July 1996, the action was warranted on 29 September 1999 and service was accepted on 12 October 1999. In these circumstances it is averred that the action was and is time-barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973 ("the Act"). The averments for the defenders continue as follows:
"It was open to the Pursuer's representatives at any time after their instruction in July 1996 to seek information by means of a Summary Application in the event that they felt that they had no sufficient information to permit them to raise proceedings. They did not do so. It would have been reasonably practicable for them to have done so. In any event, it would have been open to the Pursuer to raise an action designing the Defenders under their trading names, respectively 'The National Association of Round Tables of Great Britain and Ireland' and 'Peterhead and District Round Table', in terms of Sheriff Court Rule 5.7 Prima facie the Pursuer has a remedy against her legal advisors for failing to raise proceedings timeously."
These averments were answered by the pursuer in inter alia the following terms:
"It is explained and averred that by letter dated 23 December 1997 Guardian Insurance, as insurers on behalf of the Defenders, wrote to representatives of the Pursuer. They stated that they were instructing solicitors to deal with the matter on their behalf. They stated that they were to appoint J. Laurie and Company of 17 Victoria Street, Aberdeen. A copy of the said letter is produced herewith and incorporated herein brevitatis causa. Following sundry negotiations, it became apparent that the claim was not going to be settled without litigation. By letter dated 18 March 1999 representatives of the Pursuer wrote to the said firm of solicitors requesting that they intimate the full and correct designation of the insured. A copy of the said letter is produced herewith and incorporated herein brevitatis causa. They replied by letter dated 22 March 1999. A copy of the said letter is produced herewith and incorporated herein brevitatis causa. This stated that the insured were the National Association of Round Tables, and that the event in question was organised by the Peterhead and District Round Table. They stated that Niall Ritchie of 37 Lawsondale Terrace, Westhill, Aberdeen, was the President thereof. They gave no other information about the designation of the Defenders. This was not sufficient information to enable the framing of the instance for the present action. The said solicitors did not provide any further information within three years of the said accident. There is no public source to which the Pursuer may have had recourse to ascertain the correct designation of the Defenders."
[4]The four pleas-in-law for the defenders, which the Sheriff sustained were in the following terms:
"1.The action being time barred should be dismissed.
2.There being no circumstances to justify the Court in exercising its
discretion under Section 19A of the Prescription and Limitation (Scotland) Act, the pursuer should not be allowed to proceed with the action.
3.The pursuer's averments anent when it was reasonably practicable
for her to become aware of the identity of the defenders being irrelevant et separatim lacking in specification, the action should be dismissed.
4.The Pursuer's averments anent Section 19A of the Prescription and
Limitation (Scotland) Act 1973 being irrelevant et separatim lacking in specification, the action should be dismissed."
[5]In support of these pleas the defenders' counsel presented a number of arguments to the Sheriff. These arguments are referred to in the Sheriff's note (although that note does not correctly record part of the defenders' argument, namely that it was for the pursuer to aver clearly why the three year limitation period provided for in section 17 of the Act did not begin to run before 12 October 1996 [i.e. three years before service of the Initial Writ]). The essence of the Sheriff's decision in relation to pleas 1 and 3 was that the action became time-barred by the operation of section 17(2) of the Act, and that the pursuer had failed to make relevant and specific averments in support of her claim that the three years limitation period did not commence on the date on which the injuries were sustained but commenced considerably later; it appears that, on the pursuer's behalf, it had been submitted to the Sheriff that, in the circumstances averred by the pursuer in Article 7 of the Condescendence, the three year limitation period should not have started to run until a date late in 1997. In relation to that matter, the Sheriff took the view that, even if the pursuer could not have learned until late 1997 what she needed to know as to the identity of the potential defenders, the result would nevertheless be that the three year limitation period would still have commenced on the date when the injuries were sustained. This is clearly a misunderstanding of the meaning and effect of section 17 of the Act, and neither party supported the Sheriff's reasoning in relation to the application of section 17 on that matter. In relation to the possible application of section 19A of the Act the Sheriff, for reasons that he explains, refused to exercise the discretion allowed by the section. No argument was presented to this court against the Sheriff's conclusions on that matter, and his decisions in relation to pleas-in-law 2 and 4 for the defenders are not attacked in the grounds of appeal.
[6]When the debate began before this court the submissions related to the application to the circumstances averred of the parts of section 17(2) relevant to reasonable practicability, namely,
"Subject to subsection (3) below and 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 -
...
(b)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 to become, aware of all the following facts -
...
(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."
[7]In essence, the argument presented for the pursuer in this court was that the task of the court, in terms of section 17(2), was to judge if it would have been reasonably practicable for the pursuer to have become aware of the facts specified in 17(2)(b)(iii) within the period commencing with the date of the accident and ending on 12 October 1996, three years before the action was served. The pursuer's argument was that if it had not been reasonably practicable for the pursuer to have become aware of the essential facts during that period then the three years limitation period could not have started to run until after 12 October 1996. Thus the action would not be time-barred. In response, Miss Carmichael for the defenders, accepted that the critical period was the period between the date of the accident and 12 October 1996; but she argued that the pursuer's averments provided no basis for holding that the discovery by the pursuer of the necessary facts within that period would not have been reasonably practicable. Indeed, as she pointed out, the pursuer made no averments whatsoever in Article 7 of the Condescendence about any event whatsoever between the date of the accident and 12 October 1996. These averments dealt only with events between 23 December 1997 and October 1999. We observe that the only averment in the closed record relating to the period before 12 October 1996 is contained in answer 7 where the defenders aver, "The Pursuer first intimated a claim on the Second Defenders in respect of the subject-matter of this action by letter dated 16 July 1996". This averment is actually denied, in the pursuer's general denial in Article 7 of the Condescendence. Furthermore, as Miss Carmichael pointed out, the pursuer made no averments whatsoever on the subject of reasonable practicability in respect of the four month period following the accident.
[8]In response to these criticisms, counsel for the pursuer sought and was granted leave to amend his pleadings in order to place before the court averments about the exchanges between the pursuer's agents and the defenders' representatives during the critical period. The new averments were in the following terms:
"By letter dated 16 July 1996 agents for the pursuer wrote to a member of the Peterhead Round Table intimating a claim. He replied by letter dated 18 July stating that he had passed the said letter to the Chairman of the Round Table. By letter dated 13 August 1996 the insurers, Guardian Insurance, wrote to the pursuer's representatives, requesting further information about the accident. The pursuer's representatives replied by letter dated 19 August 1996, giving the requested information. The next correspondence with the insurers was a letter dated 23 October 1996 from the pursuer's representatives, seeking proposals from the said insurers. Copies of the said letters are produced herewith and incorporated herein brevitatis causa."
Copies of the letters referred to in the amendment were produced to this court. The defenders admitted the new averments
[9]As a result of the allowing of the pursuer's amendment, and the defenders' answers admitting them, and in the light of the terms of the letters of 18 July 1996 and 13 August 1996, the submissions previously entertained by the court, and by the Sheriff, were effectively superseded. The appeal continued on the basis of the pleadings as amended.
[10]Miss Carmichael stated, without challenge, that her clients had not previously seen the letter of 18 July 1996, but she accepted it had been written in the terms of the copy letter produced. That was a letter written, according to the pursuer's averments, by a member of the "Peterhead Round Table" stating that he had forwarded "to the Chairman of Peterhead & District Round Table" the pursuer's letter of claim. The letter of claim dated 16 July 1996 was produced by the defenders. It was written by agents acting for the pursuer. It reads:
"David Paterson, Esq.
c/o G Shearer
Chartered Accountants
59 Queen Street
PETERHEAD
Aberdeenshire.
PRIVATE AND CONFIDENTIAL
Dear Mr Paterson
Our Client: Mrs Norma A Murray
Accident: 14 June 1996
Location: Cairngall Farm, Longside, Peterhead
We act on behalf of Mrs Murray in connection with injuries sustained as a result of the above noted accident.
Mrs Murray was attending a barn dance/barbecue organised by Peterhead Round Table when on her return to the barn area she fell over a spar or support and was thereafter found to have 2 broken elbows.
We believe that Mrs Murray purchased her ticket to attend the function from you and we would be obliged if you would forward this letter of claim intimation on to the appropriate person within Peterhead Round Table for onward transmission to their insurers.
We look forward to receiving notification from you in due course that the matter has been actioned and thereafter contact from the appropriate insurers to enable us to consider our client's position further and progress the matter accordingly.
Yours faithfully
for and on behalf of Quantum Claims
[Sgnd]".
The letter of 18 July 1996 reads:
"Q.JWS.HMCK
18 July 1996
Quantum,
Compensation Specialists,
70 Garden Place,
Queens Cross,
ABERDEEN
AB1 1UL.
Dear Sirs
Mrs. Norma A. Murray
I refer to your letter of 16 July 1996 in respect of the above and can confirm that I have today forwarded this to the Chairman of Peterhead & District Round Table.
Yours faithfully,
'D. Paterson'
D.A. Paterson"
Miss Carmichael submitted the exchange of letters, properly understood, clearly made the pursuer "aware" within the meaning of section 17(2)(b) of the identity of the second defenders, because the letter of 18 July 1996 gave the correct name of those defenders as "Peterhead & District Round Table". As the pursuer had averred, that letter had been forwarded to Guardian Insurance, who, on 13 August 1996, wrote the second letter referred to in the amended pleadings, referring to the claim on behalf of the pursuer and referring to "our insured" whom they named as "National Assn. of Round Tables". That letter reads as follows:
"Dear Sirs
CLAIM NUMBER: J8/26/48566EL/96 OUR INSURED: NATIONAL ASSN OF ROUND TABLES
DATE OF CLAIM: 14/06/96 YOUR CLIENT: N A MURRAY
We acknowledge your communication intimating a claim against our Insured on behalf of your client in respect of this occurrence.
Please advise the allegations of negligence and/or breach of statutory duty alleged against our Insured by your client. If you have independent evidence in support of these allegations, we assume you will be prepared to let us
have the names and addresses of the witnesses and/or copies of any statements obtained.
Our enquiries into the circumstances of this occurrence are not yet complete. We will, however, let you have our decision on liability as soon as we are in a positions to do so.
To avoid unnecessary delay, please quote our claim number, given above, when you have occasion to get in touch with us."
Thus, by about 13 August 1996, the pursuer had been made sufficiently aware of the identity of both defenders as persons to whose act or omission the injuries were attributable.
[11]In response Mr. McDonald, for the pursuer, submitted that the question for the court had now become a question of the construction of section 17(2)(b). He referred to Rule 5.7 of the Ordinary Cause Rules 1993, which had been discussed in the Sheriff's note, and which permitted a pursuer to sue in the Sheriff Court a person carrying on a business under a trading or descriptive name by using such trading or descriptive name. That provision had no bearing, he submitted, on the interpretation of section 17. If an action was time-barred then it would be unconscionable that it should be seen to be time-barred in the Sheriff Court but not in the Court of Session where there was no equivalent to Ordinary Cause Rule 5.7. The position in the Court of Session was still that described by Lord Neaves in his opinion in Somerville v. Rowbotham 1862 24 D. 1187 at page 1189. That made it plain that an unincorporated association had to be sued by convening "a sufficient number of members...properly qualified to defend the interests of the association." It followed that, until she became aware of the identity of a sufficient number of members, presumably office holders, of the Peterhead and District Round Table, it could not be said that the pursuer was aware of all of the essential facts of which knowledge was desiderated in terms of section 17(2)(b)(iii). She could not, in August 1996, have raised an action in the Court of Session against "The Peterhead and District Round Table". No name of any office bearer was disclosed to her before 1997. Certainly none was disclosed before 12 October 1996. He compared the situation to that that might arise if, for example in a road accident, the pursuer was aware of the name of the defender, but that name was a common one, such as "John Smith", which would not identify a particular person as a potential defender in respect of a negligent act or omission. He submitted that what section 17(2)(b)(iii) required was something more than a name. The use of the words "the defender" in that paragraph of section 17 envisaged more than knowledge of a name: it required knowledge of circumstances sufficient to discover the real identity of the person whose act or omission was to be founded upon. In the case of an unincorporated association that meant that it was necessary to know not just the name of the association, but the names of such officer bearers or members of the Association as could be convened in the way envisaged by Lord Neaves in the passage already referred to, as persons "properly qualified to defend the interests of the Association". He did not, and could not, dispute that the July letter revealed the name of the second defenders and he did not challenge that the letter of 13 August sufficiently disclosed the name of the first defenders, albeit the name referred to in that letter did not include the words "of Great Britain and Ireland". But, he submitted, what the statute required before the limitation period commenced to run, was that the pursuer should have actual or imputed knowledge of sufficient information about the defender to enable the pursuer to sue those defenders. The exchange of letters did not provide information sufficient to give such knowledge.
[12]In reply, Miss Carmichael, submitted that in the circumstances averred and admitted in the amended pleadings it was clear that the two letters revealed to the pursuer, through her agents, the identities of the defenders. By that date, the pursuer knew, in relation to the second defenders, exactly what their full name was and she also knew, as she has averred in Condescendence 2, that it was that association which organised the barn dance which she attended on 14 June 1996 and prepared the premises. She was also aware that Guardian Insurance was acting as agents for both defenders. Thus there was ample material to require the court to hold that the pursuer was in fact "aware...that the defenders were persons to 'whose act or omission the injuries were attributable...'". The statute did not require that the pursuer's knowledge should embrace all the details which might be necessary in order to enable that person to be sued. The scheme of the Act was that the commencement of the three year limitation period was to be delayed until the pursuer knew or should have known who the defender was but it did not envisage that the pursuer had to know anything more. The pursuer then had three years after knowing who "the defender" was to discover what it was necessary to know in order to raise an action, in whichever court the pursuer chose. Exactly the same point applied, she submitted, in relation to both defenders. The first defenders were known by their name to the pursuer as a result of the receipt of the letter of 13 August 1996 and their identity was also sufficiently specified by the circumstance that they were insured by Guardian Insurance.
[13]In our opinion, on the admitted facts of this case, the defenders are entitled to succeed upon the basis that, before 12 October 1996, the pursuer, through her agents, had become aware that the first defenders and the second defenders were persons to whose act or omission the injuries were attributable in whole or in part. The scheme of the section is that the three year limitation period begins to run from the latest date at which the pursuer became, or should have become, aware of the facts specified in paragraph (b) of section 17(2). It is instructive to look at the other sub-paragraphs of section 17(2)(b) concerning other facts, justifiable ignorance of which by the pursuer could prevent the commencement of the three years limitation period. Sub-paragraph (i) refers to the injuries and their seriousness. It does not envisage that the pursuer has full knowledge of the injuries and their consequences. It envisages merely that the pursuer has, or should have, information to show that the injuries would be such as to warrant the bringing of an action. Subparagraph (ii) again requires the preliminary knowledge that the injuries were attributable, in whole or in part, to an act or omission: it does not refer to knowledge of all the circumstances which it might be necessary to prove in order to establish that the act or omission was delictual. In our view subparagraph (iii) should be read in this context as indicating that the three year limitation period does not commence to run until the date when the pursuer knows or should know whom he or she might seek to blame for the causing of the injuries. The Act does not require that the pursuer has to have knowledge of all the details that it would be necessary to know in order to raise an action against that person. It is sufficient that the person who is to be the defender should be known and his details identifiable. On the facts of this case, we consider that it is plain that with her own knowledge of the organising of the barn dance and in the light of the exchange of letters the pursuer was made sufficiently aware that the alleged wrongdoer was the Association known as Peterhead and District Round Table. That, in our view, was all that was required, even although that body had no known premises in the area and even although at that particular time the pursuer and her agents did not know who were the office bearers or other members of the Association, other than the Mr. D.A. Paterson to whom the pursuer's agents wrote on 16 July 1996 and whose reply is the letter dated 18 July 1996. Similarly, the pursuer was, or should have been aware, once the letter of 13 August 1996 was received, that the other potential defenders were the National Association of Round Tables, a body insured by the Guardian Insurance. In our view, in both instances, sufficient was known to the pursuer and her agents to require this court to conclude that by about mid-August 1996 the pursuer had become aware of the material facts referred to in paragraph (iii) of section 17(2)(b).
[14]In these circumstances, both parties having accepted that we should proceed upon the basis of the newly amended pleadings and that no preliminary proof was required, we conclude that it is appropriate that the action should be dismissed. We note that the Sheriff's interlocutor also assoilzied the defenders from the crave of the initial writ. However, none of the pleas-in-law argued before the Sheriff or before this court expressly seeks absolvitor and we consider that the appropriate course is to recall the interlocutor of the Sheriff dated 19 July 2000 and to sustain the defenders' first plea-in-law and dismiss the action.