Compass Reparation Members:
Iain Armstrong QC
Ian Mackay QC
Susan O'Brien QC
Andrew Smith QC
Geoff Clarke QC
Robert Milligan QC
Barry Divers
Malcolm McGregor
Peter Milligan
David Sheldon
Astrid Smart
Calum Wilson
Kay Springham
Robin Cleland
Amber Galbraith
Steve Love
David McNaughtan
Graeme Middleton
Barry Smith
Craig Thomson
Yvonne Waugh
Craig Murray
Richard Pugh
Gavin Thornley
Steve Laing
Derek Reekie
Compass Clerking Contacts:
Irene Mackenzie
Michelle Williamson
Grace Moran
To view previous
Bulletins:
October 2009
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1. Maureen Flood v. University of Glasgow [2010] CSIH 03
The Inner House considered the requirements of pleadings in the stress at work case of Flood, in which the Lord Ordinary had sustained an argument that the pursuer had insufficiently pled what the defenders ought to have done to fulfil their duties of care.
The pursuer was originally contracted to work 32.5 hours per week for the defenders as a senior lecturer. Her workload increased, such that she was undertaking the workload of the equivalent to 3.5 employees. She repeatedly brought her situation to the attention of the defenders, but no practical additional help was forthcoming. She was eventually signed off work due to anxiety and depressive disorders; she suffered financial loss.
After pleading a general duty of care, the pursuer averred, “that the defenders should have taken urgent steps within a reasonable time from June 1999 onwards...to provide relief from or assistance for the pursuer in the performance of her duties so as to reduce materially the workload imposed upon her and not to have imposed additional duties without providing such relief and assistance.” The main thrust of the challenge by the defenders was that the pursuer had failed to spell out what was meant by “relief” or “assistance”. The defenders could not then know what steps they should reasonably have been expected to take, nor could they then examine whether such steps would have been effective.
The Inner House considered the dicta in Barber v. Somerset County Council 2004 1 WLR 1089 and Hatton v. Sutherland [2002] 2 All ER 1, in particular the formulation of Hill LJ in Hatton that in all stress at work cases it is necessary for the pursuer to identify the steps which employers could and should have taken before a breach of duty can be established. The Inner House held that sufficient notice of the pursuer’s case had been given, particularly as on the facts, the pursuer was averring that she had been given duties additional to those she was contracted for. Both Barber and Hatton could be distinguished on that basis.
2. AXA General Insurance, Petitioners [2010] CSOH 2
The much anticipated decision of Lord Emslie in the pleural plaques case was issued early in the new year. In response to the decision of the House of Lords in the case of Rothwell v. Chemical and Insulating Co Ltd 2008 1 AC 281, which affirmed the traditional view that only material damage was actionable, the Scottish Government introduced legislation which, in due course, became the Damages (Asbestos-related Conditions) (Scotland) Act 2009. In the Rothwell case, the House of Lords held that the aggregation of detectable physical changes, risk of serious disease and associated anxiety was insufficient to make pleural plaques actionable in damages.
In AXA, the petitioners argued that the 2009 Act was susceptible to judicial review on the grounds that it was irrational at common law, that the Act infringed their 6 rights and Article 1, Protocol 1 rights under the ECHR. The respondents (Thompsons solicitors), argued that all aspects of the petitioners’ case were misconceived and that the challenge at common law to an Act of the Scottish Parliament was fundamentally incompetent. The case raised a number of important issues in constitutional law and the application of the Convention.
The first question for the court was the locus standi of the petitioners at common law and under the Convention. In essence, the Convention applied an autonomous meaning to ‘victim’ status, but there could be exceptional circumstances which allowed the court to take a more favourable view of more remote claims. The common law principle of ‘title to sue’ was not dissimilar in principle and should be approached on a broad and pragmatic basis. The court held that the petitioners should not be denied access to the court. A challenge made to the locus of the respondents was repelled.
Lord Emslie held that judicial review of an Act passed by the Scottish Parliament is competent as the question is whether the Scotland Act 1998 contains anything which in clear words or by necessary implication ousts the fundamental supervisory jurisdiction of the courts. His Lordship found that it did not.
After a detailed review of the legislative process which resulted in the 2009 Act, Lord Emslie expressed some sympathy for the criticism by the petitioners that the Scottish Parliament had disabled the courts from ruling on the actionability of pleural plaques. The Bill had been introduced with no formal consultative process, but there had been scrutiny and consultation during the progress of the Bill. In the end, the criticism was more directed at the Scottish Government than the Parliament.
The Court held that there was no ‘contestation’ in the application of the Act for the purposes of Article 6 as:
- it was only former employers (not their insurers) who would be charged with negligence and were parties to actions for damages;
- it is only the delictual rights and obligations of employers which can be determined in those actions;
- the contractual obligations of insurers to their insured employers would not be in issue.
In addition, the court found that the 2009 Act was essentially a forward-looking measure.
Lord Emslie did not sustain the petitioner’s argument that there had been an infringement of their Article 1, Protocol 1 rights under the ECHR. Prior to the 2009 Act, at common law the claims were not actionable, and the petitioners sought to characterise that situation as a right of immunity. Lord Emslie held that immunity from claims from the Rothwell decision could not be characterised as a proprietary right. In addition, the facilitation by the 2009 Act of pleural plaques cases was too remote to form an interference with the insurers’ capital resources.
At common law, the petitioners’ argument that the legislation was irrational fell short of meeting the test of “extremes of bad faith, improper motive or manifest absurdity” which in a legislative context, constituted Wednesbury unreasonableness. The submission was advanced by the petitioners that the 2009 was a blatant controversion of established medical fact and law. On this central point, Lord Emslie held that the question of actionability was a value judgement of the seriousness of pleural plaques and one Parliament was entitled to make.
Although the petitioners were successful on the preliminary issues, the petition was refused on the substantive grounds of unreasonableness and human rights challenges. It seems likely that these issues will shortly be ventilated again in a different forum, or indeed fora.
3. FIVE JUDGE DECISION REVERSING THE DECISION OF THE INNER HOUSE IN CARNEGIE V LORD ADVOCATE 2001 SC 802
Aitchison v Glasgow City Council and Findleton v Quarriers [2010] CSIH 9 - in these cases involving historic physical and sexual abuse, the Lord President formulated the issue of principle for the consideration of the court as follows:
“An individual, through fault of another, sustains injury of more than a negligible kind (“the original injury”); he does not, however, within any of the limitation period specified in section 17 of the Prescription and Limitation (Scotland) Act 1973 (as amended) bring an action of damages in pursuit of the right to reparation so arising; subsequently there emerges an injury (“the subsequent injury”) caused by the same fault but which is said to be distinct from the original injury; can that individual then as of right bring against the wrongdoer an action seeking damages for the subsequent injury?”
In Carnegie an Extra Division in the Inner House decided that he could. The pursuer in that case was a soldier who had been subjected to physical assaults. At a point after those physical assaults had ceased, he developed psychological symptoms. The Extra Division, following the obiter observations of Lord Prosser in Shuttleton v Duncan Stewart & Co Ltd 1996 SLT 517, held that: - (a) the physical and psychological injuries were wholly distinct and accordingly attracted separate trienniums; and (b) for the purposes of the 1973 Act, “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 based on the action emerged to the knowledge of the pursuer.”
The question of whether Carnegie was “good law” was central to determining further procedure in the cases at the instance of both Aitchison and Findleton. That question also has a bearing on a large number of other cases. In recent times a large number of individuals have, in their adulthood, raised actions in which they claim that, whilst children and resident in children’s homes or other institutions, they were subject to abuse at the hands of adults employed at those homes/institutions. In some cases, psychological symptoms that did not manifest themselves at or about the time of the abuse have developed in later life.
In reversing the decision in Carnegie, the Lord President expressed the view that the limitation provisions contained in section 17 of the 1973 Act do not envisage multiple dates. Those provisions provide to an alleged wrongdoer a right, if he chooses to exercise it, to have an action against him dismissed where it has been raised out of time. It was held that, in each of the cases under consideration, the issue was ultimately one of statutory interpretation of the terms of section 17 and, in particular, the phrase “the date on which the injuries were sustained” which appears in section 17(2)(a). It was held to be plain that, when the legislative history (including consultative memoranda and reports published by the Scottish Law Commission) was taken into account against the background of the relevant common law rules, the phrase meant “the date on which there were sustained the injuries which gave a right of action by reason then of a concurrence of iniuria and damnum”.
Reparation is the pecuniary remedy afforded by law for loss caused by a wrong, reparation for personal injuries caused by a wrong is part of the general law of reparation and a right of action emerges when there is a concurrence of the wrong and damage caused by it. Problems may be occasioned by late-emerging injuries. At paragraph 40 of the court’s opinion, the Lord President observes:
“Quite apart from the practical difficulty in many cases of deciding whether a later-emerging condition (which must ex hypothesi be causally related to the same wrong) was wholly distinct, there seems to be no reason in principle why damages in the one case should be irrecoverable as of right but in the other be recoverable. There will, of course, be hard cases, however the line is drawn, but the discretionary remedy provided by section 19A of the 1973 Act goes at least some distance to cater for these. When that jurisdiction is invoked it will, of course, be necessary to have regard to the interests of the defender as well as those of the pursuer…”
To read the case in full, follow the link:
http://www.scotcourts.gov.uk/opinions/2010CSIH9.html
4. RIGHTS OF AUDIENCE IN THE SUPREME COURTS - REVIEW
On 28th September 2009 the Justice Secretary, Mr. Kenny MacAskill, announced that Mr. Ben Thomson (a senior Scottish investment banker) would carry out an independent review of the system of rights of audience in the Supreme Courts.
The Thomson Review Team published its Draft Report on 18 January 2010. Responses to the draft report have been requested by 19 February 2010 with the intention that a Final Report will be published in March 2010.
To read the Draft Report, follow the link:
http://www.scotland.gov.uk/Topics/Justice/legal/Rights-of-Audience-1-1/review
To read the response to the Draft Report from the Faculty of Advocates, follow the link:
http://www.advocates.org.uk/news/news_20100120.html
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