Findleton v Quarriers [2010] CSIH 99
In a very important decision, the Inner House - Scotland's
appeal court - has revisited the question of whether a claimant can
have separate actions for separate injuries resulting from one
original act of negligence. The court sat as a bench of five judges
to consider whether its previous decision in Carnegie v Lord
Advocate 2001 SC 802 should be overruled.
The court concluded that it would indeed overrule
Carnegie. In so doing, it has reached a decision which
will have a major impact on asbestos litigation in particular.
Simpson & Marwick acted for the defenders, successful both at
first instance and now on appeal. Mr Findleton was born in 1958.
From 1965 to 1971 he was resident in a children's home run by the
defenders. He alleged that he was physically and mentally abused by
a member of staff. However, as well as suffering physical injury at
the time he alleged he had developed depression in adulthood. The
defenders argued that his case was time barred under Section 17 of
the Prescription & Limitation (Scotland) Act 1973.
At first instance, the court agreed and allowed him only a trial
on whether the court should exercise its equitable discretion to
allow the action to continue. Mr Findleton appealed.
The appeal court summarised the question as follows: An
individual, through the fault of another, sustains injury of more
than a negligible kind. He does not, however, bring an action of
damages within the limitation period. Subsequently, another injury
emerges - caused by the same fault. Can that individual then bring
an action seeking damages for this subsequent injury?
The same question had arisen in Carnegie. The pursuer
was an army recruit. Between February and March 1992 he was
assaulted by a sergeant. In May 1992 he developed psychological
symptoms. Three years later, he raised an action for damages. The
defenders argued that his claim was time barred. The Inner House
held that the claim for physical injuries from the assault was time
barred. However the court also held that the claim for
psychological injury was not time barred.
In reaching that decision, the Inner House relied in large part
on an asbestosis case, Shuttleton v Duncan Stewart & Co
1996 SLT 517. There, the pursuer had developed pleural plaques
but had not raised an action for damages. He subsequently developed
asbestosis. The report of the decision seemed to indicate that the
court had held that pleural plaques and asbestosis should be
treated as separate diseases. While a claim for plaques was time
barred, a claim for asbestosis was not.
While preparing for the appeal hearing in Findleton, we
recovered the full transcript of Lord Prosser's opinion in
Shuttleton. This disclosed that in fact Lord Prosser had
held that pleural plaques were not an injury - foreshadowing the
House of Lords decision in Rothwell v Chemical & Insulation
Company Limited [2008] 1 AC 281. Accordingly time had never
started to run against the pursuer and Lord Prosser's comments on
time bar were not part of the reasoning of his decision.
The Lord President, delivering the leading opinion in
Findleton, notes that the court in Carnegie had
relied heavily upon Lord Prosser's approach without any analysis of
the legislation, its history or other authorities. The court has
now held that the law, as classically understood before
Carnegie, was correct.
The application for Mr Findleton is clear. According to his own
allegations, he sustained initial physical injury when he was
assaulted. He ought to have raised an action for damages within
three years (or at least, within three years of reaching the age of
majority). He did not do so and so his claim is time barred. He
cannot then raise a subsequent action for psychological injury
developing in adulthood.
This will have a clear impact on other cases of historic
physical and sexual abuse. However the impact may be much more
marked in the sphere of asbestos litigation. A man exposed to
asbestos dust may develop pleural plaques. In Scotland - at least
pending the outcome of a judicial review - pleural plaques are a
compensable disease. The claimant could raise an action for his
pleural plaques. However if he does not do so and that claim time
bars, then any action for those would also be time barred if he
subsequently develops asbestosis or mesothelioma.
Equally, however, if he raises an action for pleural plaques he
will need to recover all his damages then and there. That will mean
that claimants either settle on a full and final basis, taking into
account the risks of developing future injury, or settle on a
provisional basis only. The former may result in them being either
over-compensated or woefully under-compensated. Settlement on a
provisional basis will leave the claim hanging over insurers
indefinitely. If settlement is full and final, claimants cannot
make a further claim if they develop mesothelioma.
This is a matter the courts are surely likely to revisit.
Contributed by Graeme Watson