What does the decision in Kelman v Moray Council mean for time bar and date of knowledge in personal injury/disease claims in Scotland?

Personal injury claims in Scotland are generally subject to a three-year time limit within which a court action can be raised. This is known as the limitation period. The clock starts ticking from the date of the accident, or, sometimes from the "date of knowledge", and normally expires on the three-year anniversary of that date. There is a "one action" rule which means that the three year time limit runs from the date of the first compensatable injury arising from the accident or harm complained of. A court action which is deemed to be time-barred cannot, normally, proceed. The relevant legislation is the Prescription and Limitation (Scotland) Act 1973.

A recent decision by Lady Wise in the case of John Kelman v Moray Council has drawn attention to the law of limitation and, in particular, the question of when date of knowledge arises.

Background

The pursuer was employed by Moray Council as a maintenance electrician in the early 1980s and claimed that he was negligently exposed to asbestos during that time. The pursuer was diagnosed in 1999 with pleural plaques, an asymptomatic lung condition, which is usually attributed to asbestos exposure but can develop decades later. In 2019, he developed mesothelioma, an incurable cancer, also usually linked to asbestos exposure. He raised court proceedings against Moray Council in 2020. Given this was more than twenty years after he was first diagnosed with an asbestos-related condition, Moray Council defended the action on the basis it was time-barred and should not be allowed to proceed. The Council was not in a position to defend the claim on any other ground. It was accepted that the pursuer's exposure to asbestos while working for them has caused his mesothelioma.

The pursuer's argument

The pursuer argued, firstly, that his case was not time barred and secondly, if it was, that the court should exercise its discretion to allow the action to proceed.

At a preliminary proof, the pursuer's position was that he was not aware, nor was it reasonable for him to be aware, that his pleural plaques diagnosis was sufficiently serious for him to claim compensation. He relied on the terms of section 17(2)(b) of the 1973 Act, to support his argument that the action could be competently brought 20 years after his pleural plaques diagnosis, as the relevant date of knowledge that he had a sufficiently serious injury to justify a claim against Moray Council only arose in 2019, when he was told he had mesothelioma.

If the court was not with him on that argument, he asked the court to exercise its discretion under section 19A of the 1973 Act which gives the court power allow a time-barred action to proceed where it is equitable to do so. The power is only granted in limited circumstances when the facts of a case demonstrate that it would be equitable to do so.

Decision

Lady Wise found the pursuer to be a credible witness with a poor but honest recollection of events. She accepted he did not have actual knowledge of the potential for a claim before his mesothelioma diagnosis in 2019. The key question for the court then was whether the pursuer had constructive knowledge - i.e. whether it was reasonably practicable for him to have become aware of the potential claim at an earlier point. She states in her judgment that as soon as someone is "put on notice" as to a potential claim, it is incumbent upon them to take all reasonable steps to inform themselves of the material facts. She accepted though that, based on the information provided to the pursuer by his medical practitioners, he did not, until 2019, have constructive knowledge either.

Lady Wise distinguished this case from Quinn v Wright’s Insulation Ltd [2020] CSOH 21, where the claim was found to be time-barred due to clear entries in Mr Quinn's medical records indicating he must have had the relevant constructive knowledge of the potential to claim at the time of his pleural plaques diagnosis.

It is worth noting in this case that even if the claim had been time-barred, the pursuer would still have succeeded because the judge would have exercised her discretion to allow the action to continue. She found that the balance of equities leaned in the pursuer's favour.

Analysis

This case, particularly when compared to the recent decision in Quinn, highlights the importance of the facts when it comes to the question of date of knowledge. That may be straightforward in relation to actual knowledge. If the pursuer says they did not know they had a potential claim and their evidence is believed, that is an end to the matter. Where it can be more difficult is when it comes to constructive knowledge as then, as Lady Wise refers to in her judgement, the court needs to apply a partly subjective test as to what was reasonable for this person, in these circumstances, to have known.