On 27 February 2006, the Scottish Law Commission issued a discussion paper, “Personal Injury Actions: Limitation and Prescribed Claims”. The paper was prompted by two separate references from Scottish Ministers to the Commission. The first reference relates to the “date of knowledge” test. This is particularly important in compensation claims for industrial diseases in determining whether a Pursuer can continue with a claim, commenced outwith the period of three years from the alleged negligent events. The reference followed representations from legal practitioners acting for claimants to the effect that the current test is too restrictive. The second reference followed representations made on behalf of people who claimed to have suffered childhood abuse in various institutions. Their claims were extinguished as a result of the operation of the law prior to an amendment of the Prescription and Limitation ( Scotland ) Act 1973 in 1984.
With respect to the first reference regarding the “date of knowledge” test, the Commission recognised that there may be some difficulties with the current operation of the law. It has invited consultation on a number of points, and identified certain options for reform. It asks whether the test should be “subjective” or “objective”, i.e., are the courts to be concerned with the state of knowledge of the actual claimant or adopt the standard that might be expected of “a reasonable man”. If a subjective test is the preferred option, it invites comment upon six options, all variants upon (i) whether the test should be for a three or five year period following the date that knowledge of the relevant factors is deemed to have been acquired, (ii) whether the courts should continue to have a discretionary power to disapply the relevant period or not, and, (iii) if so, whether that period within which to exercise the discretionary disapplication of time bar should in itself be subject to a limitation period of, say, five years. If an objective test is the preferred option, the Commission invites comment upon four more options, again all involving variants upon whether a three or five year period is appropriate, and whether the judicial discretion to disapply time bar should in itself be subject to a time limit. If an objective test is preferred, the Commission is not suggesting the courts should be deprived of their discretionary power to disapply time bar, although that is amongst the suggested alternatives if a subjective test is to be adopted.
With respect to the second reference, the Commission suggests that there should be no change in the law, and thus cases of personal injury extinguished by the long negative prescription period prior to its abolition in 1984 would not become capable of being revived. The cases in question would relate to events that occurred many years previously. It is likely in all the circumstances that even if the courts were empowered in theory to exercise discretion to allow the cases to continue, the prejudice posed to the potential defenders by the passage of years would be so great that none of the cases could continue in practice. This does not seem a particularly controversial recommendation, albeit the reference was prompted by subject matter that can attract emotive coverage in the press.
The discussion paper provides some scope for review of current attitudes towards limitation generally. B v Murray (no.2) 2005 SLT 982 is referred to on several occasions. In that case, the court refused to exercise its discretion to allow three actions for personal injuries to proceed in relation to events that had occurred in a child care institution between 1961 and 1979, notwithstanding that it was accepted by the court that none of the three claimants consciously realised until 1997 that they could raise legal proceedings against the defenders, and proceedings had been commenced before the third anniversary of that latter date. The judge, Lord Drummond Young, gave consideration to limitation and prescription as applied in other jurisdictions, in particular founding upon passages from an Australian judgment, Brisbane Regional Health Authority v Taylor [1996] 196 CLR 541. Parties who fear the partiality of judges to exercise their discretion in favour of pursuers in otherwise time-barred actions may take some comfort from the passage at paragraph 138 of Lord Drummond Young’s judgment in B v Murray (no.2):
“The limitation period is the norm enacted by the legislature; the discretion under a provision such as s19A [of the 1973 Act as amended] is an exception to that norm. Consequently the onus is on the pursuers, who seek to invoke the exception, to satisfy the court that special circumstances exist. If they fail to do so, they must lose their legal rights; that merely gives effect to the legislative policy.”
Similarly, there are passages within the Scottish Law Commission’s discussion paper in which the purpose of rules of limitation and prescription are put in context not, “…simply as a protection for a defender against stale claims” (paragraph 1.26). Three principal grounds are identified at paragraphs 1.27-1.29: (i) that the quality and quantity of evidence is liable to diminish over time, and so time limits are necessary to prompt proceedings to be initiated whilst evidence is still “relatively fresh and complete”; (ii) “…that the legal consequences of past events should be assessed or determined according to the contemporary standards applying at the time of the events…” hence, the sooner the proceedings are initiated the less the danger that events will be viewed in an entirely different context to that which applied at the material time; and (iii) certainty. The paper states “It is appropriate that there should come a point at which businesses, public authorities and insurance companies should be able, in reasonable safety, to ‘close their files’ and dispose of records.”
Consultation on the discussion paper was invited by the Scottish Law Commission up to 31 May 2006. The results of the process and any potential reform proposed will need to be monitored in the long term by any organisation with a substantial involvement in personal injury claims, particularly the type of claim where knowledge of an injury and the fact that its cause may be actionable does not necessarily arise in the immediate aftermath of the events causing the injury in question.
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Graham Weatherston
(Information posted in July 2006 and may not have been updated at time of reading).