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Cite as: [2003] ScotCS 264

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Mackie v. AB 2000 Ltd & Ors [2003] ScotCS 264 (16 October 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Marnoch

Lord Osborne

Lord Wheatley

 

 

 

 

 

XA96/02

OPINION OF THE COURT

delivered by LORD MARNOCH

in

APPEAL

From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Lanark

in the cause

JANET MACKIE

Pursuer and Appellant;

against

A.B. 2000 LIMITED and OTHERS

Defenders and Respondents;

_______

 

 

Act: Macdonald; Drummond Miller, W.S.

Alt: Ellis, Q.C.; H.B.M. Sayers (First Defenders and Respondents): R. G. Milligan; Simpson & Marwick, W.S. (Second Defenders and Respondents)

16 October 2003

 [1]      The pursuer and appellant is the widow and executrix dative of the late Robert Mackie who died for reasons unrelated to the cause of action on 16 March 1998. The accident which befell the late Robert Mackie, and which does constitute the cause of action, occurred on 29 November 1996. However, the present action was not raised until the third anniversary of Mr. Mackie's death, viz. 16 March 2001.

[2]      The only question debated before the sheriff and now before us is whether, in the circumstances just outlined, the action is time-barred by virtue of section 17(2)(a) of the Prescription and Limitation (Scotland) Act 1973, as amended.

[3]      The argument for the pursuer is that as she only came into being as executrix dative after the death of her husband her "knowledge" as "pursuer" of the matters referred to in section 17(2)(b) of the Act must, of necessity, post-date that death. The action, having been raised within three years of the acquisition of such knowledge, should accordingly be allowed to proceed by virtue of the provisions of section 17(2)(b).

[4]      At this point it is convenient to set out in full the provisions of sections 17 and 18 of the Act, as amended:

"Actions in respect of personal injuries not resulting in death

17.-(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

(2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after-

(a) the date on which the injuries were sustained or, where the act or

omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or

(b) the date (if later than any date mentioned in paragraph (a) above), on

which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts -

(i) that the injuries in question were sufficiently serious to justify

his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;

(ii) that the injuries were attributable in whole or in part to an act or

omission; and

(iii) that the defender was a person to whose act or omission the

injuries were attributable in whole or in part or the employer or principal of such a person.

(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind.

Actions where death has resulted from personal injuries

18.-(1) This section applies to any action in which, following the death of any person from personal injuries, damages are claimed in respect of the injuries or the death.

(2) Subject to subsections (3) and (4) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after -

(a) the date of death of the deceased; or

(b) the date (if later than the date of death) on which the pursuer in the

action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of both of the following facts -

(i) that the injuries of the deceased were attributable in whole or in

part to an act or omission; and

(ii) that the defender was a person to whose act or omission the

injuries were attributable in whole or in part or the employer or principal of such a person.

(3) Where the pursuer is a relative of the deceased, there shall be disregarded in the computation of the period specified in subsection (2) above any time during which the relative was under legal disability by reason of nonage or unsoundness of mind.

(4) Subject to section 19A of this Act, where an action of damages has not been brought by or on behalf of a person who has sustained personal injuries within the period specified in section 17(2) of this Act and that person subsequently dies in consequence of those injuries, no action to which this section applies shall be brought in respect of those injuries or the death from those injuries.

(5) In this section 'relative' has the same meaning as in Schedule 1 to the Damages (Scotland) Act 1976."

 [5]      Oddly enough, with the possible exception of a passage in Johnston on Prescription and Limitation at p. 203, to which we will return, there has been no real consideration of the particular issue before us, either by way of commentary or reported authority. In that situation the sheriff rejected the pursuer's argument and dismissed the action summarising her reasoning in the following terms:

"The right under consideration is a transmitted right. If an action has been commenced by the injured person, then the executor can be sisted to the action or he can bring an action for the purpose of enforcing that right. Mr. McDonald recognised that as the pursuer's claim is derivative, then if the injured party's claim has time-barred during his life-time, then that is an end to the matter. The executor acquires his right subject to any limitation which can be pled against the injured person, such as the running of the limitation period. I feel unable to distinguish questions of limitation from other forms of restriction upon the right as Mr. McDonald urged me to do."

 [6]      That reasoning, if we may say so, is firmly based in the common law and would, moreover, be even more directly applicable if the executor could be treated as pursuing the action "by virtue of the assignation of a right of action" within the meaning of section 22(2) of the 1973 Act, as amended. So far, however, as section 22(2) is concerned, we accept the submission of Mr. McDonald that there is a measure of ambiguity regarding its possible application to executors and in that situation it was common ground that it was permissible for the court to consult, as an aid to construction, the 74th Report of the Scottish Law Commission which was published in February 1983 and immediately pre-dated the re-structuring of the original limitation provisions of the 1973 Act by the Prescription and Limitation (Scotland) Act 1984. On a perusal of para. 3-8 of that Report it becomes immediately apparent that there was no intention to include an executor within the definition in question. It is also clear that, for good or ill, in the 1973 Act, as amended, Parliament decided not to leave the effect of death of an injured person entirely to the operation of the common law. Thus, where death results from the personal injuries sustained, section 18 provides that, amongst others, the executor's action can be commenced within a period of three years from the date of death. Indeed, it seems to us that under section 18(2)(b) that period can be extended depending on the executor's actual or imputed knowledge of certain factual matters. In these circumstances Mr. McDonald was, in our opinion, well entitled to make the submission that it was somewhat anomalous if, in making an identical claim under section 17 of the Act, an executor were to be differently treated. Indeed, doing that would involve giving the word "pursuer" a different meaning in relation to an executor in two adjacent sections of the Act. We recognise these as weighty considerations.

[7]      Nonetheless, despite the anomaly pointed up by Mr. McDonald, we have reached the view, in agreement with the submissions advanced by Mr. Ellis, Q.C. and Mr. Milligan for the first and second defenders and respondents respectively, that the learned sheriff reached the correct decision. There is no doubt that, in general, an executor is regarded as eadem persona cum defuncto and, in our opinion, for purposes of section 17 of the Act that is how he should be treated if and when he comes to raise an action following the death of the injured person. We reach that view for the following reasons.

[8]      In the first place, Mr. McDonald accepted that, if the principle of his argument were sound, it would mean that someone in the position of, for example, a curator bonis could raise an action on behalf of the injured person many years after the accident. While we are reluctant to express any concluded view other than in relation to an executor, the very making of this concession, if we may so describe it, does suggest to us that, if Mr. McDonald's argument were given effect, it might well have far reaching ramifications and give rise to worse anomalies than that of which he complains in the event it is rejected.

[9]      In the second place, while it was submitted by Mr. McDonald that to read the word "pursuer" as including representatives would render otiose the express provision anent assignees in section 22(2) of the Act, the fact of the matter is that in the paragraph of the Scottish Law Commission Report referred to above the Commission clearly thought that an executor fell to be treated differently from an "assignee". For ease of reference, the passage in question reads as follows:

"In our view, where the pursuer is a curator ad litem, judicial factor or executor, it is the knowledge of the pursuer, rather than that of the injured person, which is relevant. It will be for the court to determine whether, and to what extent, facts known to the injured person himself can be attributed to the actual pursuer. We have reached a different conclusion, however, in relation to an assignee. It seems wrong that the limitation period should be extended, to the detriment of the defender, simply because the injured person, of his own volition, has assigned his claim to another person. We have therefore included a specific provision in the draft Bill that a reference to the pursuer is to be construed as a reference to the assignor."

 [10]      Thirdly, granted, as we think, that a reading of sections 17 and 18 of the Act render the meaning of the word "pursuer" in its application to an executor ambiguous, it is again permissible to look, as an aid to construction, to the Report of the Scottish Law Commission referred to above. As to that, while the passage just quoted might at first blush seem to favour the appellant, it becomes clear, in our opinion, that that passage must have had in mind section 18 rather than section 17 of the Act. So far as section 18 is concerned, paragraphs 3.21-3.23 make it clear that there was a practical reason for treating relatives and executors alike, namely the desirability of having similar rules for time-bar from the point of view of enabling both to join in a single action against the wrongdoer. So far, however, as section 17 is concerned, the present case is precisely covered by para. 3.28 which is in the following terms:

"Finally, we consider the case where an injured person dies from a cause unconnected with the delictual act which caused his injuries. In this case there is no relatives' claim ... . In the consultative memorandum we rejected the possibility that the executors should be given a fresh period in which to sue, calculated from the date of death. We concluded that, as the special circumstances of death caused by the delictual act of another do not exist, the executor's claim should be treated in the same way as a claim by an executor in respect of any other contractual or delictual obligation."

When faced with this passage - which was only drawn to our attention by Mr. Milligan towards the end of the debate - Mr. McDonald was constrained to submit that, albeit the foregoing may have been the intention of the Scottish Law Commission, they had not succeeded in giving effect to that intention in the actual legislation enacted. In our opinion, however, for the reasons given above a natural reading of section 17, when looked at in isolation, is entirely consistent with the intention so expressed. What is more, it is clear from the Report as a whole that the difference in treatment of an executor under section 17 and section 18 of the Act was a result fully intended by the Commission.

[11]      For all the foregoing reasons we shall refuse the appeal and adhere to the interlocutor of the learned sheriff.

[12]      For the sake of completeness, we should record that Mr. Ellis (all of whose submissions were adopted by Mr. Milligan) advanced a fall-back proposition to the effect that, even if the appellant qua executrix were to be regarded as an independent "pursuer" for the purposes of section 17 of the Act, it would, contrary to Mr. McDonald's submissions, still be possible to have regard to her personal knowledge prior to the date of her appointment as executrix. Mr. Ellis pointed out that this appeared to be the position in England, as expressly provided by section 11(6) of the Limitation Act 1980. We wish expressly to reserve our opinion as to the validity of that proposition which would clearly have consequences for section 18, as well as section 17, of the Act. Likewise, we wish to reserve our opinion regarding the validity of the cited passage in Johnston on Prescription and Limitation. The passage in question does not, as such, deal with the position of an executor and, as Mr. McDonald pointed out, it proceeds on the premise that section 17(3) of the Act is intended to apply even where someone other than the injured person is the nominal pursuer. For what it is worth, that does not appear to have been the intention of the Scottish Law Commission, as can be seen from the Explanatory Notes on the draft Bill appended to their Report.

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