ANDREW CARNEGIE v. THE LORD ADVOCATE AS PREPRESENTING THE MINISTRY OF DEFENCE
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Milligan Lord Marnoch Lord Johnston | 0/297/5/95 OPINION OF LORD MILLIGAN in RECLAIMING MOTION FOR DEFENDER and CROSS APPEAL FOR THE PURSUER in the cause ANDREW CARNEGIE (A.P.) Pursuer and Respondent; against THE LORD ADVOCATE AS REPRESENTING THE MINISTRY OF DEFENCE Defender and Reclaimer: _______ |
Act: Wylie, Q.C., Weir; Shepherd & Wedderburn, W.S. (Pursuer and Respondent)
Alt: Gale, Q.C., Webster; Robson McLean W.S. (Defender and Reclaimer)
28 March 2001
[1]This reclaiming motion concerns time-bar. The respondent's action was signetted and served on the reclaimer on 7 March 1995. The respondent claims damages from the reclaimer for loss, injury and damage which the respondent claims to have sustained as a result of deliberate wrongful acts of mistreatment of the respondent by named non-commissioned officers during the respondent's army service, and to omissions on the part of named non-commissioned and commissioned officers to take steps to deal with the bullying regime in which such acts took place. The respondent joined the Royal Highland Fusiliers on 23 July 1991 and did his basic training based at Glencorse Barracks, Penicuik, until 28 February 1992, thereafter being stationed in Northern Ireland until 21 March 1992 and thereafter at Battalion Headquarters, Cambridge. The respondent was discharged from the army in July 1992.
[2]In his Opinion, the Lord Ordinary sets out the procedural history of this case up to the point where he heard a preliminary proof upon the reclaimer's contention that the action was time-barred in terms of the Prescription and Limitation (Scotland) Act 1973, section 17 as substituted by the Prescription and Limitation (Scotland) Act 1984. It is unnecessary for present purposes to rehearse that history. The important point is that the issue before the Lord Ordinary at the preliminary proof concerned the application of section 17(2) of the 1973 Act, the respondent's contention that the court should exercise the equitable discretion available to it under section 19(A) of the 1973 Act (as inserted by the Law Reform (Miscellaneous Provisions)(Scotland) Act 1980, section 23(a)) having been excluded previously at a procedure roll hearing. Following the preliminary proof, the Lord Ordinary sustained submissions on behalf of the reclaimer relating to the application of section 17(2)(b)(i) and section 17(2)(b)(ii) of the 1973 Act. His decision on those matters is the subject of the cross appeal by the respondent. However, the Lord Ordinary held that under section 17(2) of the Act the action was not time-barred on the crucial grounds that certain evidence given by the respondent as to the treatment of him by a Sergeant Major Frew in Northern Ireland in March 1992 had the effect of rendering the reclaimer's acts and omissions complained of, involving as they did on the respondent's averments a regime of bullying, a continuing cause of action which had not ceased by the commencement of the triennium. It appears that Sergeant Major Frew was the respondent's Company Sergeant Major when he was in Northern Ireland. The contention for the reclaimers before the Lord Ordinary, and before us, was that the evidence concerned was not covered by the respondent's pleadings and had been timeously objected to at the preliminary proof. The respondent's position at the preliminary proof, and before us, was that the evidence was covered by the respondent's pleadings and, in any event, had not been timeously objected to.
[3]The only averment made by the respondent relating to treatment of him while he was in Northern Ireland is in these terms:
"While posted in Northern Ireland, while at H.M. Prison Maze with 'B' Company, one night the pursuer emerged from a van without his rifle. After he had retrieved it, he was struck in the face with the butt of the rifle for no good reason by Sergeant Major Frew."
While the respondent referred in his evidence at the preliminary proof to this assault, he could put no date upon it and, accordingly, the Lord Ordinary found that such assault could not be held to be within the triennium. At the preliminary proof, after referring to this assault, the respondent was asked by his counsel:
"Now, what effect did that have on you, Mr. Carnegie?"
He replied:
"He just...For the remaining 21 days he just...The man didn't like me, he took a dislike to me for some reason, I don't know. I mean, my own thoughts in mind, I just thought as if he was on a power trip, that's what I called it, he just had this power and wanted to just use it and abuse it, and that's what he did do."
His counsel then took him back in questioning to the assault concerned. Later on in her examination of the respondent, his counsel asked him:
"and you told us about an incident involving that gentleman, Mr. Frew, and said thereafter that he'd been in a bit of a power trip for the rest of your stay in Ireland, do you remember that?"
The respondent said:
"I do recall that, yes."
He was then asked:
"Can you just tell us a little more detail about that power trip, what do you mean by that?"
He replied:
"Basically he just made my life as uncomfortable as possible during the period of 21 days in Ireland. He attached me to somebody with radios and I wasnae getting any sleep and always shouting and just being about, what amounted to abusive. He wasn't in camp at all times but when he was in camp he made sure that...Just mental abuse, shouting and swearing and stuff like that."
Counsel for the reclaimer then objected to the line of evidence on the grounds that there was no record for any conduct on the part of CSM Frew other than the specific allegation of an assault. In the course of the discussion thereafter about this objection, counsel for the respondent said that she was proposing to move on at the end of the respondent's answer in any event and she did not know whether that would short circuit matters. The respondent was then asked to leave the court and, after further discussion, the Lord Ordinary said that he did not see that there was really any need for him to make any determination at that stage as the allegedly objectionable evidence was not proceeding further. In submissions to the Lord Ordinary at the end of the preliminary proof, counsel for the reclaimer adhered to the submission that the only relevant evidence relating to Northern Ireland concerned the specific assault averred, whereas counsel for the respondent contended that the conduct of CSM Frew in Northern Ireland was a manifestation of an on-going course of bullying, CSM Frew's conduct continuing to be unacceptable during the course of the "remaining part" of the respondent's service in Northern Ireland, inferentially the remaining part following the assault concerned. The Lord Ordinary concluded that he was entitled to take into account the evidence of the respondent given before the point at which the objection referred to was taken. Crucially, he held that the respondent's evidence relating to his treatment in Northern Ireland did form part of his evidence as to a continuing course of mistreatment of him extending into the triennium. It appeared to him that what the respondent described as having happened to him in Northern Ireland, leaving aside the assault with the rifle butt which he considered could not be dated, amounted to evidence as to a regime of bullying which had commenced outwith the triennium but had continued within it.
[4]For the reclaimer, it was submitted to us that a defender has to meet the case against him on record and nothing more. Implicit in the requirement of fair notice is the avoidance of prejudice. A party must object to evidence for which there is no record timeously in order to avoid waiving his right to claim lack of fair notice. However, the requirement to object timeously does not mean that objection must be taken before the evidence is out. Obviously, in many circumstances that is impracticable. Reference was made to the case of Hamilton v. John Brown & Co. (Clydebank) Limited 1969 S.L.T. (N) 18. In that case, Lord Guthrie, delivering the Opinion of the Court, cited what was said by Lord President Clyde in the case of Morrisons Associated Companies Limited v. James Rome & Sons Limited 1964 S.C. 160 at p. 182:
"It is a well settled rule of our practice in pleading in Scotland that where a duty in general terms is averred, followed by a particularisation of the specific way or ways in which it is alleged that that duty has been breached, the enquiry on the facts is restricted to the specific breach or breaches of which notice has been given, and evidence directed to some other unspecified way in which the general duty may have been breached is excluded. The pursuer stands or falls on his establishing his averments of the specific breach or breaches."
Lord Guthrie also cited what was said by Lord Reid in the House of Lords in the case of McGrath v. National Coal Board (4 May 1954 unreported): "A defender has to meet the case made against him on record and nothing more." In Hamilton's case, the pursuer failed because he had averred that another workman had been standing on a valve, slipped, and let a pipe go, whereby the pipe fell on him and that the other workman was negligent in releasing his grip on the pipe, whereas in evidence he said that this other workman had carried the pipe over another pipe instead of giving it to the pursuer.
[5]Counsel then referred to the case of McGlone v. British Railways Board 1966 S.C. (H.L.) 1 and, in particular, to what was said by Lord Reid at page 12:
"In the course of his evidence the pursuer suggested that the gaps between the ends of the meshed fence and the vertical wall should have been closed by prolonging the size of the meshed fence to the top of the wall. No objection was taken at that stage. Then, when the injured boy gave evidence he was cross-examined as to whether such prolongation of the meshed fence would have kept him out. I agree with the Lord President that this ground of fault was not covered by the pursuer's record and, if objection had been taken timeously, I think that it ought to have been sustained, leaving the pursuer to amend his record, if so advised. But no objection was taken until, in the course of cross-examination of the defenders' witness, the pursuer's counsel put it to him that the sides of the meshed fence ought to have been prolonged. There may, no doubt, be cases where objection cannot reasonably be expected to be taken at the first moment when evidence is led regarding a ground of fault not pleaded, but in my view in this case there was ample opportunity to take this objection at a much earlier stage in the proof and I think that the Lord Ordinary was right in not sustaining the objection at the stage when it was taken."
Lord Guest said (at page 15):
"I agree with the Lord President that proper notice must ordinarily be given on record of the attack made upon the other side. The reason is that the other side may be prejudiced by the failure to give proper notice. But the respondents can scarcely object on this ground when they allowed such evidence to be led and failed until the last witness to table an objection to the evidence. Pleadings are to be used as servants and not masters. For these reasons I do not accept that the ground of fault sustained by the Lord Ordinary was not one on which as a matter of pleading the appellant was entitled to rely."
Counsel then referred to the case of O'Donnell v. Murdoch McKenzie & Company Limited 1966 S.C. 58, and in particular to what was said by Lord Justice Clerk Grant (at page 60):
"Most of these facts as they emerged in evidence must have come as a considerable surprise to anybody whose knowledge of the case was derived solely from the pleadings. I agree that, in view of the way the evidence came out, the defenders were placed in a difficult position, but, in the absence of timeous objection, I have come reluctantly to the conclusion that we must treat the evidence on these matters as competent evidence in the case."
In that case the pursuer had averred that, impliedly, he was working alone with a jack hammer and that he fell and was injured due to failure to provide a suitable and sufficient scaffold. He failed to aver any foreseeable danger that the jack hammer might stick in the wall upon which it was being used, a danger which emerged upon the evidence at the proof. At proof, it appeared, amongst other discrepancies from the pleadings, that he had not been working alone and that the tool he was told to use by his ganger was not suitable, this not being averred. There was ample opportunity for timeous objection by the defenders.
[6]Reference was also made to the case of Albacora S.R.L. v. Westcott & Laurence Line Limited 1966 S.C. (H.L.) 19. Lord Reid said (at page 23):
"...the appellants argued that the case now made by the respondents contradicts their pleadings and that they cannot be allowed to succeed on a ground not covered by their pleadings. I think that at some stage both parties have completely departed from their pleadings...The notes of evidence were not reproduced because in their reclaiming motion the respondents were content to rely on the Lord Ordinary's findings of fact, and the appellants acquiesced in this. So we do not know at what stage or in what manner evidence to support the new contentions of the parties was introduced. But there is no indication that either party objected timeously to its introduction, and I find nothing to suggest that the appellant suffered prejudice by reason of the fact that the case was allowed to take the course it did. In my judgment it is much too late to raise an objection of this kind."
The case concerned damage to fish due to previously dormant bacteria being activated by rise in temperature on voyage. Lord Guest said (at page 26):
"The respondents aver that the inherent vice was in the salt, but the First Division have held upon the Lord Ordinary's findings the inherent vice to be in the fish. It is, however, in my view far too late in the day for the appellants to rely upon such a technicality. After the evidence had been led there was really no dispute as to the facts. Which party first brought out the critical fact that the bacteria were in the fish is, in the absence of the notes of evidence, not clear. If a party wishes to challenge the relevancy of evidence as not being in accordance with the record, then the objection should be taken at the time. The evidence in this case was apparently led without objection, and the First Division were, in my opinion, well entitled to reach the conclusion which they did..."
[7]Counsel for the reclaimer submitted that these authorities demonstrated that, to be held to waive objection to another party's departure from his pleadings, a party must have failed to take a clear and obvious opportunity to object timeously. This had not happened in the present case, and it was very clear indeed that the line of evidence objected to was not covered by the respondent's averments.
[8]In reply, counsel for the respondent referred to the first mention in evidence by the respondent of a "power trip" referred to above. This mention should have put counsel for the reclaimer on his guard. In particular, counsel should have objected if there was further reference to a "power trip". The issue was one of fairness. The evidence concerned had not been challenged on behalf of the reclaimer in cross-examination. Counsel for the respondent at the proof had said that she was not going to develop the matter further but she did not make any concession as to what the respondent had said in evidence being outwith his pleadings. It had to be accepted that the only specific averment for the respondent relating to Northern Ireland was that concerning the specific assault by CSM Frew. However, the case was presented to the Lord Ordinary on the basis of a regime of bullying continuing till the respondent left the army. In this connection, it had to be accepted that the Lord Ordinary did not rely on events after the respondent's return from Northern Ireland. Counsel accepted that if the Lord Ordinary had been wrong to look at the evidence on which he relied, being the evidence to which the objection for the reclaimer related, then the reclaiming motion must be allowed. Counsel referred to circumstances arising from the Lord Ordinary's judgment and from the pleadings but it suffices to record that counsel could not point to any circumstance which overcame the fundamental problem for the respondent arising from the wording of his pleadings and the terms of the questions asked and evidence given by the respondent immediately prior to objection being taken.
[9]In my opinion, the evidence given by the pursuer as to treatment of him by CSM Frew other than the specific assault averred is not covered by the pursuer's pleadings. The reclaimer had no notice whatsoever of any allegation of mistreatment of the respondent while in Northern Ireland other than the specific allegation of an assault by CSM Frew. In the circumstances, it is understandable that there was no cross-examination of the respondent on the respondent's spontaneous suggestion of mistreatment by CSM Frew other than that assault. Furthermore, I am quite satisfied that in the circumstances of this case timeous objection to the line of evidence involving allegation of mistreatment in Northern Ireland over and above the specific assault averred was taken by counsel for the reclaimer. I find this conclusion wholly consistent with the authorities cited to us and I note, in passing, that none of these authorities appears to have been cited to the Lord Ordinary. Indeed, I do not find the present case as even marginal on the matter of timeous objection. In particular, I reject the submission that the respondent's earlier reference to a "power trip" should have caused counsel for the reclaimer to object to the question asked by counsel for the respondent as to what was meant by "power trip" in his evidence. It was suggested that it was foreseeable that the respondent might, in answer, come out with the sort of additional evidence which he did in relation to CSM Frew. While that may be so, with hindsight, the interests of justice would not be well served by failure to object to such a question being held to be fatal to objection thereafter that any answer to such a question was outwith the case averred. The present case is clearly distinguishable from those cases where one party has elicited evidence outwith that party's pleadings and the other party has refrained from challenging the relevancy of that evidence in circumstances which show that that other party has not taken a clear opportunity to object, whether that failure be deliberate or inadvertent, and has thereby indicated acquiescence in the leading of that evidence. Accordingly, in my opinion the Lord Ordinary was not entitled to take into account the passage of evidence concerned and, in that situation, it is accepted on behalf of the respondent that the reclaiming motion must succeed.
[10]So far as the cross appeal is concerned, I have had the opportunity of seeing the Opinion of Lord Johnston and I agree entirely with that Opinion.
[11]Accordingly, in my opinion both the reclaiming motion and the cross-appeal should be allowed, with the effect that the Lord Ordinary's interlocutor is retained, repelling the plea as to time bar and ordering a proof before answer, subject to change only by deleting the averments referred to in Lord Johnston's Opinion.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Milligan Lord Marnoch Lord Johnston | 0/297/5/95 OPINION OF LORD MARNOCH in RECLAIMING MOTION FOR DEFENDER and CROSS APPEAL FOR THE PURSUER in the cause ANDREW CARNEGIE (A.P.) Pursuer and Respondent; against THE LORD ADVOCATE AS REPRESENTING THE MINISTRY OF DEFENCE Defender and Reclaimer: _______ |
Act: Wylie, Q.C., Weir; Shepherd & Wedderburn, W.S. (Pursuer and Respondent)
Alt: Gale, Q.C., Webster; Robson McLean W.S. (Defender and Reclaimer)
28 March 2001
For the reasons given by your Lordships I agree that the reclaiming motion and cross-appeal should be disposed of in the manner proposed by your Lordship in the chair. There is nothing I can usefully add.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
| Lord Milligan Lord Marnoch Lord Johnston | 0/297/5/95 OPINION OF LORD JOHNSTON in RECLAIMING MOTION FOR DEFENDER AND CROSS APPEAL FOR THE PURSUER in the cause ANDREW CARNEGIE (A.P.) Pursuer and Respondent; against THE RIGHT HONOURABLE THE LORD RODGER OF EARLSFERRY, Q.C., HER MAJESTY'S ADVOCATE Defender and Reclaimer: _______ |
Act: Wylie, Q.C., Weir; Shepherd & Wedderburn, W.S.
Alt: Gale, Q.C., Webster; Robson McLean W.S.
28 March 2001
[1]With regard to the reclaiming motion I have had the opportunity of reading the Opinion of your Lordship in the chair, with which I am in complete agreement, and I therefore agree with your Lordship's conclusion that the reclaiming motion should be allowed.
[2]I turn, therefore, to the cross-appeal at the instance of the respondent which relates at least to some extent to the application of section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973, as substituted by the Prescription and Limitation (Scotland) Act 1984.
[3]To put the matter in context it is necessary to consider both section 17(1) and (2) which are in the following terms:
"17(1)This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.
(2)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 -
(a)the date on which the injuries were sustained or, where the act or
omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; 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."
[4]The Lord Ordinary commences his discussion of this part of the case on page 77 of the print and having narrated the submissions under reference to certain authorities the substance of his decision is to be found on page 82 where he says:
"Against this background, I now consider the application of the statutory provision to the circumstances of this case. The evidence of the pursuer was to the effect that he was assaulted and beaten frequently during the course of his basic training. Some of the incidents which he described appeared to me to be of a very serious nature. In saying that, I have in mind particularly the incident which he described as having occurred in Glencoe/Glenshee and also the incidents which were described as having taken place at Full Battle Camp in Otterburn in November and December 1991. The incidents at Otterburn were aggravated by the fact that they occurred in the presence of other recruits. In the case of the incident which occurred on the bus, when the pursuer was beaten on the head with a helmet, he was quite significantly injured. Taking all these incidents together, along with the more minor assaults which the pursuer said that he suffered, one can readily agree with the pursuer's description of his life at this time as a 'living hell'. In my opinion, on the basis of what had happened to him before the end of 1991, the pursuer must have become aware or, in any event, it would have been reasonably practicable for him in all the circumstances to become aware, that the injuries in question were sufficiently serious to justify his bringing an action of damages on the statutory assumptions. Making the best assessment of the value of such a claim that I can, having regard to the evidence led, it appears to me that the pursuer would have had available to him by the end of 1991 a claim which could be valued in thousands rather than hundreds of pounds. Ignoring, as I think I must, the consideration relating to a possible jeopardy to the pursuer's career in the Army from raising proceedings against the Ministry of Defence, it appears to me that section 17(2)(b)(i) could not produce a date later than the commencement of the triennium in this case."
[5]The respondents have lodged two grounds in the cross-appeal which are in the following terms:
"1.The Lord Ordinary erred in construing the Prescription and Limitation (Scotland) Act 1973, section 17(2)(b)(i) in the way he did (pages 79 to 83 in the reclaiming print). On a proper construction of the subsection, the particular circumstances of the pursuer ought to have been given more weight by the Lord Ordinary, as set out by the Lord Ordinary who heard the Procedure Roll discussion on 20 June 1997 (Lady Cosgrove) in her opinion dated 24 July 1997. Had he followed that approach, the Lord Ordinary would have concluded that the injuries of the pursuer were not sufficiently serious to justify his raising an action until after 7 March 1992. In any event, he ought to have given more weight to the circumstances given in evidence by the pursuer at page 54 of his evidence. Had he done so he would have concluded that the action was not time barred on this ground also.
2.Further, the Lord Ordinary erred in concluding that the action was time barred in so far as the pursuer relied on section 17(2)(b)(ii) of the said Act. It was not challenged that the first link established between the pursuer's respiratory problems and the acts and omissions of the Ministry was Dr. Stevenson's medical report dated 4 July 1994, a date less than three years before the raising of the action. Nor was it challenged that it would not have been reasonably practicable for the pursuer to have become aware of such a link sooner, or in any event prior to 7 March 1992. The injuries referred to in section 17(2)(b)(ii) are the 'injuries in question'. Notwithstanding the seriousness or otherwise of the injuries sustained prior to 7 March 1992, the action is not time barred in respect of the distinct injuries comprising the pursuer's panic attacks and respiratory problems."
[6]In this context we heard a wide-ranging debate in which the following authorities were referred to: Blake v. Lothian Health Board 1993 S.L.T. 1249; Ferla v. Secretary of State for Scotland 1995 S.L.T. 662; Shuttleton v. Duncan Stewart & Co Limited 1996 S.L.T. 517; Carnegie v. Lord Advocate 1998 S.L.T. 873; McCafferty v. Metropolitan Police District Receiver 1977 1 W.L.R. 1073; Dobbie v. Medway Health Authority 1994 1 W.L.R. 1234; and Miller v. London Electrical Manufacturing Co. Ltd. 1976 2 L.L.R. 284.
[7]It is to be noticed at once that the Lord Ordinary does not refer to all of these particular authorities on the basis, presumably, that they were not put to him, certainly in relation to the English authorities.
[8]In relation to the first ground of appeal counsel for the respondents laid particular emphasis on the English cases of McCafferty and Dobbie and submitted that the Lord Ordinary had erred giving insufficient weight to the particular circumstances of the pursuer, not least in relation to the fact that he was a soldier in the army. While the test was to some extent objective, it was necessary to import into the consideration of section 17(2)(b)(i) the particular circumstances of the particular case in order to determine whether or not the pursuer would regard the injuries in question as sufficiently serious to warrant the raising of an action at a particular time. The facts, as relied upon by counsel in the evidence to suggest that the Lord Ordinary had ignored certain material factors, were firstly that the evidence up to the period ending in 1991 merely disclosed a pattern which did not in itself cease at that time. It is clear from the evidence, it was submitted, that the pursuer was keen to get into the army having tried twice and was therefore reluctant to leave. He had, it was submitted, during his period of basic training endeavoured to use proper channels for his complaints to be dealt with. He further asserted that he hoped to join another regiment which would be a way of his troubles perhaps ceasing and finally that he did not consider litigation to be an option. Leaving out of account all these factors, not only had the Lord Ordinary, it was submitted, selected an arbitrary period for his assessment of the position, namely the end of 1991 he had also misdirected himself as to the overall test to be applied in the particular circumstances of this case.
[9]In reply counsel for the appellants responding to the cross-appeal submitted that it was wholly inappropriate to take into account the whole personal circumstances of the pursuer and indeed the environment upon which an assessment of his injuries required to be made. That sort of approach would run counter to the predominant test of reasonable practicability. If there was to be any subjective element in the issue it was very limited and did not go as far as laying any emphasis on the background to the whole matter, namely the fact that he was a soldier. It accordingly follows on this aspect of the case that the Lord Ordinary had correctly addressed the issue in ignoring these factors.
[10]With regard to the second ground of appeal the essential position of counsel for the respondent pursuer was that the Lord Ordinary had misdirected himself by simply concentrating on physical injuries which the pursuer was alleged to have suffered in the various assaults that were narrated up to the period ending 1991. The section required concentration on the injuries in question and that meant awareness on the part of the pursuer of the existence of the injuries in respect of which he was now suing. That, it was submitted, involved consideration of the psychological injuries developing in the Spring of 1992, which the Lord Ordinary had completely ignored. While there may have been a single course of delictual activity (the physical assaults), that course had resulted not only in the injuries taken into account by the Lord Ordinary but also in the later emergence of distinct psychological injury. On any view of the matter, it was submitted, the pursuer must be allowed to proceed to claim damages in respect of that latter aspect since it developed during the occurrence of the triennium i.e. after March 1992.
[11]Counsel for the respondent in the cross-appeal did not dispute that a single delict or course of delicts might give rise to distinct injuries for purposes of section 17(2) but submitted that in the present case the later emerging injuries were simply a continuation of, and not distinct from, the injuries which had occurred outwith the triennium.
[12]I mean no disrespect to the excellent arguments of counsel to have summarised them so comparatively briefly, because in my view at the end of the day the grounds of appeal raised two very sharp but narrow points, firstly, in relation to the test to be applied in respect of section 17(2)(b)(i) with regard to the personal characteristics of a pursuer in particular, and secondly, whether or not the psychological injuries in this case are separable so as to admit a claim within the triennium which, as the argument developed, would not necessarily depend on section 17(2)(b) but rather on section 17(2)(a).
[13]Before considering those matters in detail a study of the section in question is useful.
[14]In my opinion section 17(1) and (2) contemplate three starting dates for a triennium in relation to injuries, firstly, in terms of subsection (2)(a), as regards a single act or omission, the date upon which the injuries in question were sustained, secondly, in relation to a continuing act or omission when that act or omission ceased and thirdly, in terms of subsection (b) a later date (my emphasis) at which the pursuer, putting the matter colloquially, should have considered that the injuries of which he was aware were sufficiently serious to warrant him pursuing an action for damages.
[15]It was not disputed from the authorities, and in particular the cases of Blake and Ferla that an objective assessment had to be made by the court to determine the question under section 17(2)(b)(i) but the real issue is what factors should be put into that equation beyond the existence of the injuries in question themselves, which is the obvious starting point. Until the injuries have occurred no time can run and furthermore the pursuer must either be aware of their existence or should, with reasonable practicability, have become aware before time can run in terms of subsection (b)(i). Although the wording of the English Act is slightly different I consider that the dictum of Geoffrey Lane L.J. in McCafferty is apt to cover the point where he says:
"It is clear that the test is partly a subjective test, namely 'would this plaintiff have considered the injury sufficiently serious?' and partly an objective test, namely 'would he have been reasonable if he did not regard it as sufficiently serious?' It seems to me that the subsection is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff with that plaintiff's intelligence would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages. I do not think that it is permissible under this section to look into such problems as whether it is or would have been politic in the circumstances for the plaintiff to sue his employers at that time for fear of losing his job".
The Master of the Rolls, Sir Thomas Bingham (as he then was) said something to the same effect in Dobbie v. Medway Health Authority [1994] 1 W.L.R. 1234 where, at p. 1241, he refers to the comparable English provisions being directed solely at the "quantum of the injury".
[16]I agree generally with that analysis and therefore do not accept Lady Cosgrove's position in Carnegie supra, a procedure roll hearing in this case, where she applied an entirely subjective test. However, I do not consider that subjectivity can be left out of the matter if there are factors present which weigh upon the gravity of the particular injury to the particular pursuer. Thus, while a sturdy rugby player may ignore, to all intents and purposes, the effect of a bruise, to a haemophiliac it would be of the utmost gravity. Equally it may be that a particular injury which may have a particular bearing on a particular career, such as damage to a finger to a potential or actual surgeon, may also bear upon the question of gravity or seriousness. I am, however, satisfied that it is not appropriate to go beyond these physical characteristics or personal relevant characteristics in relation to the actual injury to look at the context of the environment upon which the injury was sustained and it is certainly not relevant to take into account such factors as whether or not it was reasonable not to sue for fear of losing one's job. In my opinion, these factors, and the ones that were enumerated by counsel for the respondents as being the evidential questions the Lord Ordinary should have considered are not relevant factors under section 17(2)(b) albeit, of course, they would be wholly relevant in relation to a claim for relief under section 19(A) of the Act, which is not now made in this case.
[17]In my opinion, therefore, the Lord Ordinary was correct in leaving out of account any question relating to the environment of the pursuer and, in particular, that he was a soldier fearful of jeopardising his career in the army if he took legal action while he was still in it. In my opinion, therefore, the first ground of cross-appeal fails.
[18]Turning to the second ground of the cross-appeal it is far from clear what case the pursuer is actually making on his pleadings. In essence, however, complaint is made of a series of assaults or course of bullying which, leaving aside the evidence we have now held as inadmissible, must be regarded as having ceased prior to the commencement of the triennium. In so far, therefore, as the pursuer makes a claim for injuries in respect of individual assaults as separate delicts, such, in my opinion, is clearly time-barred. This calls into question the averments at the start of Condescendence 5 in relation to pain and suffering to which I shall return. The question remains, however, whether the pursuer has averred a relevant case of having sustained psychological injury within the triennium. It is well recognised, of course, that in relation to a single wrong only one action is competent, and losses, both past and future, must be claimed for in that action (Dunlop v. McGowans 1980 S.C. (H.L.) 73 (per Lord Keith at page 81)). However, as counsel on both sides came to realise, it is an entirely different question whether, in the only action raised, the pursuer can sue for only some of his injuries, namely those which are not time-barred. For this to happen the later injuries must, of course, be distinct as, otherwise, they will fall to be seen as a simple continuation or exacerbation of those which are time-barred. Here the decision of Lord Prosser in Shuttleton supra is highly relevant. In that case, which related to lung disease, his Lordship having heard a preliminary proof determined that various symptoms that the pursuer exhibited prior to the final development of asbestosis, which had revealed themselves outwith the triennium relating to the action that had been raised, were not sufficient to deny the pursuer the opportunity to sue, as he did within the relevant triennium, once the actual disease of asbestosis had developed.
[19]The evidence upon which his Lordship relies is summarised by him as follows:
"For what it is worth it appears to me that the evidence that the plaques if it is to be regarded as disease or impairment at all are sufficiently distinct from either pleural thickening or asbestosis so as to qualify for a separate disease or impairment. That being so I would not regard knowledge of plaques as barring claims based on either pleural thickening or asbestosis".
[20]I take from that decision the recognition by his Lordship that for purposes of the 1973 Act as amended a wholly distinct injury, albeit arising from the same delict, can be sued upon in a separate claim and therefore can create a separate triennium not starting from when there was original awareness of the original symptoms which are distinguishable but rather from when at the earliest, the injury basing the action emerged to the knowledge of the pursuer.
[21]Applying that approach to the present case I reject the argument that such physical anguish and fear that the pursuer may have suffered during the bullying period up to 1991 is merely a precursor of the same type of psychological injury that developed in the Spring of 1992. In my opinion, upon the averments, the psychological injuries developing in May 1992 were a separate or distinct injury. They were obviously serious and if the pursuer had not sued within three years of May 1992 he might not thereafter have been able to rely upon section 17(2)(b). However, as matters stand, he does not have to rely on that subsection because he has sued timeously for an injury, namely psychological injury, within three years of the date when it was sustained, namely May 1992 which is thus the appropriate starting point of the relevant triennium, in terms of section 17(2)(a).
[22]As far as I can see this argument is far removed from anything presented to the Lord Ordinary and I therefore have considerable sympathy with the way in which he approached the matter. The fact remains, however, that in my opinion, for the reasons that I have given, I do not consider that the claim based on psychological injury is time-barred and should therefore be allowed to go to inquiry. What, however, in my opinion is time-barred on the basis that it represents wholly separate injuries is any claim based on physical injury from the assaults either up to 1991 or in relation to the Sergeant Frew incident in March 1992, which cannot be specifically dated.
[23]In allowing an inquiry therefore I would delete certain averments in Condescendence 5, namely the second and third sentences in the following terms:
"He underwent considerable pain and suffering when he was the victim of assault such as those condescended upon. He suffered humiliation and distress of being the victim of bullying".
[24]I would therefore invite your Lordships to allow the cross-appeal which has the effect of retaining the Lord Ordinary's interlocutor, repelling the plea to time bar, and ordering a proof before answer but under deletion of the averments to which I have made reference.