SCOTTISH CASES – CASE UPDATE

CASE UPDATE: JULY 2014

Jamieson v. Neill and The Daughters of the Charity of St. Vincent De Paul [2014] CSOH 17

Another case on time bar.

In this case the pursuer suffered a scalding injury to his neck, chest and left arm leaving burning injuries in 1977 whilst one year old. At the time he was in the second defenders’ residential care home and the scald appears to have been caused by another child when the first defender left the room without other adult supervision.

The case comes to Debate before the Lord Ordinary, the defenders taking a time bar point as the action was raised much later than the pursuer’s 19th birthday.

The pursuer’s case was that he did not know he had been in care at the time the burn had been sustained and thought that it had been sustained whilst living with his mother. His position is that she had never told him he had been in care at the time until shortly before he raised the court action.

Following Debate the Lord Ordinary held the case prima facae time barred under Section 17 and was swayed by the defenders’ suggestion that he could have consulted his medical records at an earlier stage which would have revealed the accident occurred whilst in the defenders’ care.

The Lord Ordinary did allow a Proof before deciding on the pursuer’s Section 19 application.

This case is another one which highlights the difficulties for pursuer’s with cases involving these types of historic injury and/or abuse etc.

Annette Miller v. Chivas Brothers [2014] CISH 65

Decision of Extra Division of the Inner House.

This was an appeal on expenses only from the Sheriff Court.

The brief facts of the case are that the pursuer sustained injuries when she slipped and fell during the course of her employment with the defenders. The allegation was that she had slipped and fallen as a result of a layer of dust on the floor. This was hotly contested by the defenders who led various witnesses to counter that allegation..

The pursuer gave evidence that she reported the accident at the time and a statement had been taken by her Supervisor. The pursuer’s agents had lodged a Specification of Documents seeking such a report but no documents were forthcoming.

The Sheriff made avizandum after four days of evidence.

The day after avizandum was made the defenders’ agents became aware of a report of the accident corresponding to that which the pursuer spoke to in giving evidence. To their credit they sent a copy of that to the court and to the pursuer’s agents. On the pursuer’s Motion a further two days of Proof were allowed with re-examination of witnesses with reference to the statement. The defenders opposed the Motion for additional Proof offering to agree the report in a Joint Minute.

Following the pursuer being successful at Proof essentially on the basis that the Sheriff believed her evidence, the Sheriff found the pursuer entitled to the expenses of the cause up until the commencement of the second two days of Proof and found no expenses due to or by either party for the period after that. Essentially he made a decision on the basis that the pursuer could have entered into a Joint Minute and that the subsequent evidence had little or no bearing on his decision.

The pursuer appealed. The Inner House considered the importance of it and granted the appeal as the key issue in the case was the credibility and reliability of the pursuer and the report given shortly after the accident could ultimately have been extremely important. It was therefore reasonable for the pursuer to take further evidence on the point rather than simply agree matters in a Joint Minute even although that further evidence did not in fact particularly influence the Sheriff.

Fatal Accident Inquiry Determination by Sheriff Lindsay Wood, Glasgow into the death of Steven Thomson

I mention this briefly as it involves a fatal case following a fall from a height at work.

The case is interesting for the Sheriff’s determination of various reasonable precautions which could have been taken to have avoided the accident and has a useful summary of the type of precaution for work at height that a suitable and sufficient risk assessment should identify.

Margaret-Ann Gallagher & Others v. S.C. Cheadlehume Ltd & Others [2014] CSOH 103

Mesothelioma case in which liability was admitted and Proof on quantum only.

Assessment of awards under Section 4(3) (b) of the 2011 Act. Following awards made:

£80,000 to the widow of the deceased
£35,000 to each of the deceased’s four children
£25,000 to two adult grandchildren who had a particularly close relationship to the deceased
£12,000 to three other grandchildren who had a good relationship with their grandfather
£2,500 to two very young grandchildren who effectively had not had a chance to get to know the grandfather.

The awards are certainly helpful for pursuer’s agents. Indeed the Judge almost accepted entirely the pursuers’ Counsel’s submissions on the amounts to award.

There is also a comprehensive discussion of other recent awards including those of Juries.

Thomas Downie v. Christie & Son (Metal Merchants) Ltd [2014] CSOH 108

Personal injury action which settled extra-judicially and came before the Lord Ordinary in respect of the pursuer’s Motion for the expenses of the cause and certification of five skilled witnesses.

Motion was opposed in two respects: (1) certification of two skilled witnesses namely Mr. Peter Scott, Consultant Orthopaedic Surgeon and Dr. Yellowlees, Consultant in Pain Management and (2) in relation to the expenses of an amendment procedure following upon the defenders’ Minute of Amendment.

It was agreed that other skilled witnesses, which included Mr. Moir, Consultant Orthopaedic Surgeon and Professor Freeman, Consultant Psychiatrist, should be certified.

The main basis of opposition was that their instruction of the two witnesses was unnecessary and in duplicated work which had already been done. The Lord Ordinary allowed certification of both skilled witnesses particularly as Mr. Moir had initially been instructed by the defenders and the defenders had also instructed their own Pain Management Report.

As far as the amendment is concerned although the pursuer inserted additional averments, not just responding to the defenders’ Minute of Amendment, the Lord Ordinary for some reason, decided not to depart from the usual rule that he who amends bears the expenses.

It seems a fairly straightforward expenses decision and it is difficult to see why the defenders sought to oppose it.