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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCaffery v. Greater Glasgow Health Board [2003] ScotCS 88 (28 March 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/88.html Cite as: [2003] ScotCS 88, 2004 SCLR 1

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McCaffery v. Greater Glasgow Health Board [2003] ScotCS 88 (28 March 2003)

OUTER HOUSE, COURT OF SESSION
A2686/00	OPINION OF LORD NIMMO SMITH in the cause DESMOND McCAFFERY (AP) Pursuer; against GREATER GLASGOW HEALTH BOARD Defenders:   ________________

 

 

Pursuer: Sir Crispin Agnew of Lochnaw, Q.C., Sutherland; Allan McDougall & Co

(for Peter T. McCann, Solicitors, Glasgow)

Defenders: Anderson, Q.C.; R.F. MacDonald

 

28 March 2003

Introduction

1. The pursuer was born on 14 July 1972 at the Queen Mother's Hospital in Glasgow, which was then under the control of Greater Glasgow Health Board ("the Board"), who are the present defenders. He avers that he has suffered loss, injury and damage caused or at least materially contributed to by the fault and negligence of the medical staff employed by the Board at the hospital at the time of his birth. The summons in the present action was signetted on 22 and served on the Board on 27 September 2000. The latter date is the date of the raising of the action. The Board plead that the action is time-barred by virtue of section 17 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). The pursuer denies this, but pleads that, esto the action is time-barred, it is equitable in all the circumstances that the Court exercise its discretion to allow the pursuer to bring the action in terms of section 19A of the 1973 Act. The pursuer also invokes Article 6 of the European Convention on Human Rights ("the Convention"). The defenders have tabled a plea to the relevancy of this. The action called before me on the procedure roll, when I heard a debate on these preliminary pleas.

The statutory provisions

2. Section 17 of the 1973 Act provides:-

"(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."

Section 18 applies to actions where death has resulted from personal injuries. By section 22(1) the expression "personal injuries" includes any disease and any impairment of a person's physical or mental condition. By section 1(2) of the Age of Legal Capacity (Scotland) Act 1991 the reference to a person under legal disability by reason of nonage is to be construed as a reference to a person under the age of 16 years.

3. Section 19A of the 1973 Act provides by subsection (1) inter alia that where a person would be entitled, but for any of the provisions of section 17, to bring an action, the Court may, if it seems equitable to do so, allow him to bring the action notwithstanding that provision.
4. Article 6 of the Convention, so far as relevant, provides by paragraph 1 that in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time.

The facts

5. Although in some cases it is appropriate to hold a preliminary proof in order to ascertain the facts relevant to questions arising under sections 17 and 19A of the 1973 Act, neither counsel suggested that this was such a case, and I was invited to dispose of the preliminary pleas on the basis of the parties' pleadings (taking them pro veritate at this stage), the productions and supplementary information provided by counsel, particularly counsel for the pursuer. The only productions are in an inventory lodged for the Board. These are eleven letters passing between the pursuer's solicitors, Peter T McCann & Co, and the Central Legal Office for the Scottish Health Service ("the CLO") on behalf of the Board, between 11 November 1993 and 14 October 1994. I was informed that these letters constitute the entire file of the CLO relating to the pursuer's claim. No productions have been lodged on behalf of the pursuer, even though it was apparent that a file relating to his claim was still in the hands of Peter T McCann & Co, and indeed reference was made to it overnight to answer a question put by me.
6. It is not necessary for present purposes to set out in great detail the circumstances surrounding the pursuer's birth. He avers that immediately following delivery he was limp and shocked with Apgar scores (based on the evaluation of certain objective signs) consistent with intra-uterine fetal compromise prior to birth. The Apgar score at five minutes indicated that he was severely compromised and required immediate active resuscitation. He did not gasp until twenty five minutes after birth. In the meantime steps were taken to establish respiration. Facial oxygen was administered. There was a failed attempt to give intravenous sodium bicarbonate (to correct metabolic acidosis). He was placed in a pressure chamber at five minutes. He was removed from it at ten minutes because of falling heart rate. At eleven minutes he was given nalorphine by intra-muscular injection. This is an opiate antagonist, to counteract pethidine administered to his mother during labour. At twelve minutes he was intubated and subjected to intermittent positive pressure ventilation ("IPPV"). This improved his heart rate. At twenty four minutes an umbilical venous catheter was inserted and sodium bicarbonate was given. At no time following birth was external cardiac massage given. The pursuer was subsequently diagnosed as suffering from athetoid cerebral palsy.
7. The pursuer goes on to attribute fault and negligence in particular to the member of staff who resuscitated him, who is believed to have been a neonatologist, who is averred to have failed to exercise the skill and care of an ordinarily competent neonatologist acting with ordinary skill and care. This person had a duty to institute tracheal intubation and IPPV immediately. This was the standard method of resuscitation used at that time for severe cases, particularly where the infant had not gasped. This person also had a duty to give the antagonist nalorphine immediately, given the fact that the pursuer's mother had been given pethidine during the delivery and the pursuer was markedly depressed at birth. This person also had a duty to institute cardiac massage immediately. This person had a duty not to place the pursuer into the hyperbaric oxygen chamber. Given the severity of the pursuer's condition at birth and given the fact that he had not gasped prior to being placed into the hyperbaric oxygen chamber, the use of the chamber was unsuitable and led to a further delay in establishing respiration. It is recognised in the pleadings, although there is no explicit averment to this effect, that the alleged fault and negligence of the person in question falls to be considered by reference to what would have been regarded as normal and proper practice in the relevant circumstances at the material time.
8. The pursuer avers that he has suffered loss, injury and damage by reason of the athetoid cerebral palsy from which he suffers. His intellect is within normal range but he has marked articulation and motor difficulties and is now confined to a wheelchair. This condition is permanent. Had he been immediately resuscitated it is likely that he would not have had it. Notwithstanding his disability, he has attended a number of schools and colleges and has obtained O and H grades in media studies. He passed an Open University foundation course but withdrew after starting a second year course. Despite his academic achievements, he has not worked because of his disability. His parents originally provided all of his personal care, but he now needs a carer who comes in to assist him with various tasks. He requires equipment. These matters are elaborated to some extent in the pleadings, and reference is made to a report containing details of costs already incurred, and reasonably required to be incurred in the future, for the purchase of equipment, care services rendered to him by his family and others, and additional expenses. It is not necessary to go further into these details. The sum sued for is £1,200,000.
9. The pursuer further avers that during the course of his life he had no reason to suspect that his physical condition was related to any event which occurred at around the time of his birth. The events surrounding his birth were never discussed with him. He attended disabled schools throughout his life, where he mixed with disabled children like himself. He did not consider that there was a reason for his disability and simply accepted it as a fact. When he was seen and treated by doctors, no doctor ever suggested to him that his condition was related to any act of negligence or lack of care by medical staff. He assumed that this was simply a condition he had been born with. In around 1993 his sister told him that she was aware of a damages action being brought by a girl who had similar disabilities related to events which occurred at the time of her birth. The pursuer then spoke to his mother who told him she thought she had been induced in labour at an early stage but could not help him further or provide him with any more information. She had never thought to investigate any potential negligence claim arising from the birth. The pursuer had never seen his medical records and he had no idea whether he did in fact have any claim. He then contacted Peter T McCann & Co and asked them to investigate whether it was possible that his disabilities were related to the management of his mother's labour. At this stage he was merely suspicious that his mother's labour had been induced too early (this does not now form part of his case against the Board).
10. It is necessary now to set out, in as much detail as is available to me, the history of events between the pursuer's first instructing Peter T McCann & Co in 1993 and the raising of the present action on 27 September 2000. The pursuer avers that he first consulted these solicitors in around February 1993. It appears from the correspondence and the pleadings that there were then three partners in the firm, Peter T McCann, Brian D Moreland and John Wilkie. Mr Moreland's reference appears on all the correspondence which has been produced, and I take him to have been the partner who first acted for the pursuer. The pursuer avers that legal aid was sought to investigate his claim. In around April 1993 the solicitors wrote to his general practitioner, to whom a reminder was sent on 28 May 1993 and who replied on 15 July 1993 that she was not in a position to provide the solicitors with any details relating to the management of the labour and subsequent birth. On 11 November 1993 (after an unexplained interval of nearly four months) the solicitors wrote for the first time to the CLO stating that they had been consulted by the pursuer and his mother regarding the circumstances surrounding his birth to investigate the question of possible medical negligence. They stated that they had received a request from him to obtain his case records in order that they might consider asking a consultant to review them "as to whether or not there was any possibility of negligence in this matter". They asked for advice as to where to obtain authorisation from the Board for the release of the papers. Miss Craik of the CLO, whose reference appears on all the correspondence from their side, replied on 23 November 1993. She stated that she had forwarded the request for release of copy medical records to the Yorkhill NHS Trust (who, I take it, were the Board's successors in the control of the hospital) and had asked that it be checked that the records were still in existence and whether the consultants concerned had any objection to release of copies. She also asked for further specification of the pursuer's claim, but stated that on receipt of further specification she did not envisage any problem in release of copies of the records to the solicitors on payment of the usual copying charges. The solicitors wrote again on 29 November 1993, enclosing a copy of a medical report by Dr Ann Plenderleith. This has not been lodged, but I understand that she was the general practitioner referred to in the pleadings. The letter went on to state that Dr Plenderleith considered that it was necessary that records of the obstetrician and the paediatrician be obtained. They also asked for confirmation that the records were available from Yorkhill NHS Trust.
11. The next letter before me is one from the solicitors dated 20 January 1994, replying to one from the CLO dated 18 January, which has not been lodged, but which I take to have been a reminder. In their letter the solicitors stated that they had received by letter dated 7 January 1994 from Yorkhill NHS Trust a copy of the medical records "which we are presently perusing". They said that they would revert to the CLO with their further intentions. On 23 March 1994 Miss Craik wrote to the solicitors noting that she had not heard from them since 20 January and asking about the current position. She wrote a similar letter on 26 April 1994 saying that if she did not receive a reply she would proceed to close her file. On 28 April 1994 the solicitors wrote (in a letter which was for some reason twice marked as being "without prejudice"):

"We have your letter of 26^th inst. in connection with the above. We would confirm that we have obtained sanction from the Scottish Legal Aid Board [SLAB] to obtain the services of an independent Consultant to consider this matter. We are trying to arrange for a Consultant and as soon as we have further advices in this matter we shall be in communication with you."

On not further hearing from them, Miss Craik wrote on 30 June 1994 asking about the up-to-date position. On 1 July 1994 the solicitors wrote that the matter was still under consideration and they hoped to come back to her with their conclusions within the next fourteen days. This did not happen and on 16 August 1994 Miss Craik again wrote asking whether the solicitors were now in a position to advise how they wished to progress the matter. No reply was received to this letter. She wrote again on 14 October 1994 asking about the current position. Still no reply was received, and she closed her file. There was no further communication between the solicitors and the CLO prior to the raising of the action.

12. Although the solicitors had obtained copies of the medical records in early January 1994, and wrote on 28 April 1994 that they had obtained sanction from SLAB " to obtain the services of an independent Consultant", nothing further appears to have been done at that time to identify and instruct a suitable expert. The next date which appears in the pursuer's pleadings is 8 September 1995, when it is averred that SLAB were asked to sanction the necessary fee to instruct a medical expert, and that the pursuer was informed that this request had been made. I asked counsel for the pursuer about the obvious discrepancy between this averment and the statement in the letter of 28 April 1994. I gave him an opportunity to take instructions overnight. The next morning he told me that the file, which was still in the hands of the solicitors in Glasgow, had been looked at and a copy of the letter of 28 April 1994 was in it. There was nothing in the file to suggest that an application for legal aid sanction had been made prior to September 1995, but counsel said that the Court had to proceed on the basis of what was stated in the letter unless further inquiries produced something else. Nothing more was said about this, and I therefore proceed, as invited, on the basis that sanction had been obtained before 28 April 1994. There is no averment as to why nothing was apparently done until 8 September 1995, and why, if legal aid sanction for a medical expert's fee had already been obtained, a further request required to be made.
13. From the pursuer's pleadings, it appears that the firm of Peter T McCann & Co were in some disarray. It is averred that at about that time, i.e. 8 September 1995, Mr Moreland left the firm following disciplinary proceedings at the instance of the Law Society of Scotland, not related to the present case, and Mr Wilkie also left the firm following a serious illness. This appears to have left Mr McCann as the sole principal. It is averred that as a result of the departures of Mr Moreland and Mr Wilkie, "the resources of the firm were stretched in trying to catch up on the unfinished work left by the two who had left the firm".
14. The pursuer wrote on 15 February 1996 asking for a "full update on my case". It was not until 22 August 1996 that he had a meeting with Mr Ruddy, an associate of Mr McCann. Mr Ruddy, the pursuer avers, expressed the opinion that any time limit only ran from the date when a medical opinion had been received that medical negligence had occurred in the case. Information was obtained from the pursuer and his mother for a memorandum to the proposed expert. As no confirmation could be found on file from SLAB confirming sanction as requested on 8 September 1995, such confirmation was again sought and an increase in expenditure requested in November 1997. There is no other averment as to what happened between August 1996 and November 1997. It is then averred that a Dr Turner was instructed on 26 November 1997, but in January 1998, after a number of reminders, he returned the papers saying that there was a conflict of interest. On 9 April 1998 a Dr Lloyd confirmed that he could accept instructions, quoting a fee. In about July 1998 SLAB authorised the instruction of Dr Lloyd. He was instructed on 13 July 1998. He produced his report in March 1999. It identified a lack of ordinary skill and care during the course of resuscitation procedures following the pursuer's birth. It is presumably on this report that the pursuer's averments are based.
15. It is next averred that on 13 August 1999 a section 1 legal aid application was submitted to SLAB to raise the present action. There is no averment as to what happened between March and August 1991, except no doubt for the preparation of the application. On 6 December 1999 SLAB indicated that legal aid was refused. A note was then obtained from counsel and a further application submitted on 22 February 2000. After further correspondence with SLAB, legal aid was granted in July 2000. In September 2000 Edinburgh correspondents were instructed to raise the present action and, as I have said, the summons was signetted on 22 September 2000. There is no averment as to what happened between the grant of legal aid in July 2000 and the instruction of Edinburgh correspondents two months later.

The section 17 point

16. In the application of section 17 of the 1973 Act to the foregoing facts, a number of matters were not in dispute. It was of course accepted by counsel for the Board that, as provided by subsection (2)(a) and subsection (3), the earliest date at which the statutory time bar could operate was 14 July 1991, the pursuer's 19^th birthday. Counsel for the Board did not indeed seek to criticise the pursuer's averments about his lack of awareness of any potential claim until 1993, and about the circumstances which led to his first instructing Peter T McCann & Co. Moreover, counsel did not advance any criticism of the pursuer's conduct at any time: the focus was on the acts and omissions of his solicitors. It was also not in dispute that the pursuer should not be regarded as having become actually aware of the facts set out in subparagraphs (i), (ii) and (iii) of subsection (2)(b) ("the relevant facts") until receipt of Dr Lloyd's report in March 1999. The main question thus came to be whether, in terms of the second branch of subsection (2)(b), it would have been reasonably practicable for him in all the circumstances to become aware of these facts at an earlier date. The pursuer avers that he "was unaware and it would not have been reasonably practicable for him to become aware of the fact that his physical condition was related to the act or omission of the defenders until March 1999".
17. Counsel for the Board submitted that, to the contrary, it would have been reasonably practicable for the pursuer to become aware of the relevant facts at a much earlier date. The Court required to take an objective view of the facts. Throughout, the solicitors were heading in the right direction, but they had allowed time to pass. They had copies of the hospital records in January 1994, but did not obtain the report from the medical expert until March 1999. This was an inordinate time. The solicitors had simply lost sight of the case. No cogent explanation had been offered as to why such an unconscionable delay had taken place. The opinion said to have been expressed by Mr Ruddy was wholly mistaken. Even after the expert report had been obtained, there was a further delay of eighteen months before the summons was served. The pursuer appeared to suggest that he was entitled to wait indefinitely for an expert report and thereby prevent time from running against him. This could not be right. The internal affairs of Peter T McCann & Co were irrelevant to the question the Court had to decide.
18. In reply to these submissions, counsel for the pursuer submitted that the question of what was reasonably practicable, within the meaning of the second branch of section 17(2)(b) of the 1973 Act, could be dealt with on the pleadings. He did not accept that Mr Ruddy's advice was necessarily wrong, when regard was had to the case law. In any event, what had to be examined were not the actings of the agents, but the actings of the pursuer in relation to what his agents were doing. In terms of the statute, it was the pursuer who had to become aware of the relevant facts. In considering this, the Court should have regard to the pursuer's circumstances. Counsel referred to Carnegie v Lord Advocate 1998 S.L.T.872 per Lady Cosgrove at p.877F. The pursuer was of sound mind, but disabled, and had difficulty in articulation of speech and difficulty in getting around. The earliest date from which time could run was in 1993. Moreover, in the present case, a medical report was required in order to make the pursuer aware of the relevant facts. The test provided by section 17(2)(b) of the 1973 Act was subjective, so that regard must be had to the awareness of the pursuer himself. The test of what was reasonably practicable was in part objective and in part subjective. The test was, moreover, related to what was reasonably practicable for the pursuer, as distinct from his agents. In this regard the proper test was what it was reasonably practicable for the pursuer to do in the way in which he relied on using the services of the solicitors in dealing with his case: was it reasonable to leave them to get on with it or should he have left them and gone to other solicitors? The failure of his solicitors as his agents to conduct a proper investigation was not something which could be fixed on the pursuer. Counsel submitted that the decision of Lord Coulsfield in Nicol v British Steel Corporation (General Steels) Ltd 1992 S.L.T.141 was consistent with this approach. Counsel also referred to a series of English cases decided under reference to provisions of the Limitation Act 1980 (which does not of course apply to Scotland), and in particular sections 11 and 14 thereof: Nash v Eli Lilly & Co [1993] 1 W.L.R.782, Forbes v Wandsworth Health Authority [1997] Q.B.402, North Essex District Health Authority v Spargo [1997] 8 Med.L.R.125 and O'Driscoll v Dudley Health Authority [1998] Lloyd's L.R.(Med.) 210, all decisions of the Court of Appeal. Counsel also submitted that a passage in Johnston, Prescription and Limitation, para.10.39 was consistent with this approach. The question accordingly was not what the solicitors did or did not do, but what the pursuer ought to have done in these circumstances. This was applicable however negligent the solicitors were, if the pursuer acted reasonably in instructing them. If, as counsel for the Board had made clear, no criticism was directed at the pursuer personally, the conduct of Peter T McCann & Co was irrelevant to the application of section 17(2)(b).
19. Counsel for the Board renewed his attack by submitting that the pursuer had failed to bring himself within the provisions of section 17(2)(b) as properly construed. The English cases were of very little assistance, because the test under section 14 of the Limitation Act 1980 depended on the knowledge of the plaintiff, actual or constructive. Anyhow, the English cases were if anything of more assistance to the Board. The level of knowledge which was required under the English legislation was not high. In any event, the Scottish cases established that, once the pursuer had instructed solicitors, it was necessary to consider whether they had done what was reasonably practicable in order to obtain information about the relevant facts. Counsel referred to the decision of Lord Cowie in Whyte v Walker 1983 S.L.T.441 and the decision of the Second Division in Forsyth v A F Stoddard & Co Ltd 1985 S.L.T.51. It was an astonishing proposition, and inconsistent with authority, that if the pursuer had done what it was reasonably practicable for him to do by instructing solicitors, section 17(2)(b) could not apply however much the solicitors might have failed to do what it was reasonably practicable for them to do to obtain information about the relevant facts. In the present case there were periods of delay for which the pursuer had provided no explanation in his pleadings.
20. The question I have to consider is whether, on a proper construction of section 17(2)(b) of the 1973 Act and in the circumstances of the present case it would have been reasonably practicable for the pursuer to become aware of the relevant facts prior to 27 September 1997, i.e.more than three years before the raising of the present action. If so, the action is time-barred. There is no criticism of the pursuer himself, and no suggestion that he did not do what it was reasonably practicable for him to do once it came to his notice that he might have a claim and instructed Peter T McCann & Co to act as his solicitors in that regard. Time accordingly could not begin to run against him before 1993. Moreover, it was accepted that in order for him to become aware of the relevant facts, the hospital records relating to his birth would require to be obtained and sent to a medical expert with a view to obtaining an opinion to the effect that the person or persons with responsibility for the pursuer's care in the period immediately following his birth had been negligent (the test for negligence being that set out in Hunter v Hanley 1955 S.C.200). The solicitors did in fact obtain a copy of the medical records in early January 1994, and there was no suggestion that they should have done so any sooner. According to the statement in their letter of 28 April 1994, which it was agreed that I should treat as correct, sanction had by then been obtained from SLAB to obtain the services of a medical expert. Again, it is not suggested that they ought to have obtained this sanction sooner. But, as has been seen, it was not until March 1999, almost five years later, that a report was obtained. As I understood it, it was accepted that this report, together with information already available to the pursuer, contained all that was required in order to make the pursuer aware of the relevant facts. Even then, it took another eighteen months before the action was raised.
21. Before considering whether it was reasonably practicable to obtain such a report earlier, and in particular before 27 September 1997, I must consider the position of the solicitors. I do not propose to discuss the English cases referred to by counsel for the pursuer. Sections 11 and 14 of the Limitation Act 1980, although perhaps reflecting an overall approach similar to that of section 17 of the 1973 Act, is nevertheless in significantly different terms. The limitation period under section 11(3) begins on the date on which the cause of action accrued or the date of knowledge (if later) of the person injured. Section 14 contains provisions relating to a person's date of knowledge, which includes constructive knowledge. The position of plaintiffs' solicitors has been considered by the English courts in light of these provisions. In Scotland, consistently with the general principles of the law of agency, the Courts have always treated the acts and omissions of a pursuer's solicitors, within the scope of their authority as his agents, as being attributable to the pursuer himself for the purposes of applying sections 17 and 19A of the 1973 Act. In Whyte v Walker supra, Lord Cowie said at p443:

"It was strenuously argued by counsel for the pursuer that the failure of his original solicitors to raise the appropriate action during the triennium should not be attributed to him, because he had done all he could reasonably have been expected to do, and the solicitors' lack of activity could not be regarded as equivalent to his own.

I confess that I find it difficult to accept this argument, since it seems to me that quoad a third party, a solicitor's actings or failure to act must be regarded as those of his client, where the solicitor has the necessary authority, and accordingly I should have thought that the failure of the pursuer's original solicitors to raise an action timeously in the present case should be regarded as a failure of the pursuer."

In Donald v Rutherford 1984 S.L.T.70, a decision of an Extra Division in a case under section 19A of the 1973 Act, Lord Cameron at p77 said that "it would appear clear enough that no personal blame can properly be laid on the shoulders of the [pursuer] himself, but he is answerable for the acts of his agents." Lord Dunpark said at p78:

"I regard the fact that no blame can be attached to the pursuer for his solicitors' failure to raise his action timeously as cancelled out by the fact that neither the defender nor his insurance company contributed in any way to that failure. The sole fault for that failure was that of the pursuer's solicitors who, for this purpose, are his alter ego."

In Forsyth v A F Stoddard & Co Ltd, supra, another case under section 19A, the Lord Justice Clerk (Lord Wheatley) at p54 said:

"In Donald v Rutherford both Lord Cameron and Lord Dunpark took the view that the pursuer in such circumstances has to accept responsibility for the sins of omission or commission of his agent - his solicitor. That, in my view, is the correct exposition of the law."

Lord Hunter at p56 and Lord Robertson at p57 both accepted that a pursuer, who may himself have been personally blameless, is nevertheless answerable for the acts of his agents. Nicol v British Steel Corporation (General Steels) Ltd, supra, is of no assistance for present purposes because Lord Coulsfield was considering the position of the pursuer himself, not that of his solicitors.

22. There is thus ample authority for the view that in considering when it was reasonably practicable for a pursuer to become aware of the relevant facts, it is necessary to take into account what it was reasonably practicable for his solicitors to do. Read in its context, the passage in Johnston, Prescription and Limitation, referred to by counsel for the pursuer, does not appear to me to support counsel's argument. A number of considerations reinforce me in this view. If, for example, the only relevant fact which remains to be discovered is the identity of the proposed defender, and the intending pursuer instructs his solicitors to carry out a straightforward inquiry which will provide this information, and thereafter to communicate it to him, it does not stretch the language of the statute to say that by these means it is reasonably practicable for him to become aware of the relevant fact. All the more so, if the solicitors have in fact already obtained the information in question and all that remains to be done is for them to communicate it to their client. It seems to me to be quite inconsistent with the statutory policy that time should not run against a person who has instructed solicitors, even if they are already in possession of the necessary information or can readily obtain it.
23. I return now to the facts of the present case. Since I reject the main submission of counsel for the pursuer, I am left with a lack of explanation for the passage of lengthy periods of time. Counsel for the pursuer indeed only faintly suggested that it was not reasonably practicable for the solicitors to obtain an expert opinion very much sooner than they did. The internal difficulties of Peter T McCann & Co may go some way towards explaining why the matter was simply overlooked, or not given the priority which it deserved, but cannot be relevant to the question whether it was reasonably practicable for them to act more speedily in carrying out their client's instructions. It was not suggested that the difficulties in obtaining a report would have been any greater in 1994 than they were in 1997. One way of looking at the situation is to take the period of about sixteen months between the instruction of Dr Turner in November 1997 and the obtaining of Dr Lloyd's report in March 1999 and to treat this period as having run from April 1994, when Mr Moreland should on the face of it have been in a position to instruct a medical expert and, indeed, before the internal difficulties of Peter T McCann & Co began. On this approach, the report would have been available in August 1995. This is of course not the only way of looking at the passage of time. Perhaps the better question is whether the solicitors were doing what it was reasonably open to them to do on the pursuer's behalf as time went on. It cannot be said that in the present case they did. On the contrary, even after the delay from April 1994 until August 1996 when, on the pursuer's initiative, he had a meeting with Mr Ruddy, Mr Ruddy expressed the erroneous opinion that any time limit only ran from the date when a medical opinion had been received that medical negligence had occurred in the case. This advice overlooked the second branch of section 17(2)(b): Mr Ruddy appears, taking this averment pro veritate, to have lulled himself into a false sense of security by supposing that he was not under a duty on the pursuer's behalf to do what was reasonably practicable to obtain information about the relevant facts, so that he was free to delay further, rather than display the sense of urgency which the situation required. The history I have already given speaks for itself. The lack of any sense of urgency is demonstrated by the fact that, even after Dr Lloyd had reported in March 1999, so that the solicitors were in possession of information about all the relevant facts, and time was undoubtedly, even on Mr Ruddy's erroneous view, running against the pursuer, it took another eighteen months before the action was raised. I am entirely satisfied that, if the solicitors had acted as they should have done, it was reasonably practicable for the pursuer to have become aware of the relevant facts a full two years before 27 September 1997.
24. There was some discussion as to whether it would have been regarded as normal and proper practice on the part of a solicitor to arrange for a protective summons to be drafted and served on the Board before an expert opinion had been obtained. While such a course may sometimes be necessary, I am content to proceed on the basis that it would have been regarded at the material time as preferable, if possible, to obtain an expert medical report before instructing counsel to draft a summons. This of course emphasises the need to avoid delay in obtaining such a report. The view I have taken does not depend upon the service of a protective summons in order to avoid the time bar.
25. For these reasons I have concluded that the action is time barred by virtue of section 17(2)(b) of the 1973 Act.

The section 19A point

26. It was not in dispute that the onus was on the pursuer to satisfy me that the terms of section 19A should be applied, so that I had first to determine whether the pursuer's case in relation to the application of that section is relevant and, if so, to adjudicate upon it: see Clark v McLean 1994 S.C.410. Thus, although counsel for the Board addressed me in relation to the section 19A issue in his opening speech, I think it appropriate to start my summary of the submissions by referring to those by counsel for the pursuer.
27. Counsel submitted that the correct approach is as set out in Forsyth v A F Stoddard & Co Ltd, supra and Clark v McLean, supra. In Forsyth's case the Lord Justice-Clerk (Lord Wheatley) said that the judge's unfettered discretion has to be exercised on all the relevant circumstances placed before him. In the present case the relevant circumstances were: (1) that the Board were alerted to a possible claim by the pursuer in 1993, following which they could have carried out their own investigations; (2) the Board were no more prejudiced by the delays which had taken place after 1993 than they would have been had the action been raised somewhat earlier, because the averments of negligence related to what was normal and proper practice at the time of the pursuer's birth; (3) it was by no means clear that the pursuer would succeed in an action of negligence against Peter T McCann & Co, since the approach of Mr Ruddy was not necessarily inappropriate and the quantification of the pursuer's claim against the solicitors would be problematic; (4) if the present action were dismissed and the pursuer left to pursue a claim against the solicitors, there would be further delay because of the need to obtain legal aid, instruct experts and so on; and (5) an earlier resolution of any claim would alleviate the situation in which the pursuer was placed by reason of his disabilities
28. During the course of his submissions counsel for the pursuer touched on the provisions of Article 6 of the Convention. It appeared at one point that he might be seeking to argue that the limitation provisions of the 1973 Act were incompatible with this Article, but counsel then made clear that this was not so and recognised that limitation provisions are compatible with the Convention. Accordingly, counsel's submission came to be that, in the application of section 19A, the Court in the exercise of its discretion should bear in mind the requirement under Article 6 to avoid delay.
29. Counsel for the Board, in addition to the cases already cited, referred to passages in The Stair Memorial Encyclopaedia, Vol.16, para.2176 and Johnston, Prescription and Limitation, paras.12.04 and following. Counsel submitted that the investigation of what was normal and proper practice at the date of the pursuer's birth in 1972 became increasingly difficult with the passage of time. Before the present action was raised, no claim as such had been intimated to the CLO on behalf of the Board, so there was no need for investigations to be carried out beyond those requested by the pursuer's solicitors. As averred in the defences, Dr John Whyte, Registrar in Paediatrics, who was involved in the immediate paediatric care of the pursuer in 1972, died in September 1999. Had the action been raised sooner, information could have been obtained from him. The pursuer had a very clear case against his solicitors which, on the available information, was almost bound to succeed. He would be readily eligible for legal aid to fund an action against them. It should not take any significant time for the pursuer to obtain legal aid and to be in a position to raise an action against the solicitors.
30. I am not persuaded that this is a case in which I should exercise my discretion in favour of the pursuer and thus deprive the Board of the protection afforded by section 17. The difficulties of investigating the merits of the action are already considerable because of the passage of time since 1972. Practice has no doubt changed in the meantime, and the death of Dr Whyte is an additional factor. This is not a case in which the triennium has been exceeded by only two days, as in Nicol v British Steel Corporation (General Steels) Ltd, supra, or a period of a week or so, as in Carnegie v Lord Advocate, supra. On the contrary, the period is considerably greater than it was in either Forsyth v A F Stoddard & Co Ltd or in Clark v McLean, in both of which the section 19A issue was decided against the pursuer. What has been recognised as a significant factor in many cases is that the pursuer has a claim against the solicitors who have failed to take the appropriate steps to raise an action timeously. The prospects of success and the ease or difficulty of quantification of such a claim are regarded as relevant factors. In the present case, there are significant periods of time during which, on the narrative provided by the pursuer, it cannot be said that Peter T McCann & Co were exercising reasonable or indeed any care on his behalf. On this narrative therefore they were negligent. This was compounded by the view attributed, again by the pursuer, to Mr Ruddy. I do not accept the curate's egg approach of counsel for the pursuer. If, as averred by the pursuer, Mr Ruddy expressed the opinion that any time limit only ran from the date when a medical opinion had been received that medical negligence had occurred in the case, and thus ignored the second branch of the statutory provision, and accordingly the risk that there might be an earlier time at which the Court would hold that it was reasonably practicable that this opinion could have been obtained, then the advice was simply wrong. I have already expressed a view to this effect in my discussion of this section 17 issue. On the face of it, therefore, the pursuer has a good claim against the solicitors. No doubt the quantification of it would depend on an assessment of the prospects of success and on the quantification of damages in the present action, but I cannot see that there is anything inherently more difficult in such an exercise than would arise in any event were the present action to proceed. Moreover, when regard is had to the leisurely progress of the present action after it was raised, about which I was given little information, I am not prepared to hold that to leave the pursuer to sue his solicitors would introduce a further significant delay.
31. Insofar as counsel for the pursuer relied on Article 6 of the Convention, his approach appears to me to be fallacious. Article 6 relates to the determination of a person's civil rights. In the context of a claim for reparation, these are not rights in the abstract, but are rights against particular defenders. The pursuer does not have a civil right in the abstract to compensation from someone, whoever that may be. Any right he may have to reparation from his solicitors is not the same as any right he might have had to reparation from the Board. Accordingly, any further delay that there may be in pursuing the former is not directly relevant to the question whether an acting relating to the latter should be allowed to proceed.

Result

32. For the foregoing reasons I am of opinion that the present action is time-barred by virtue of section 17 of the 1973 Act and I am not persuaded that I should exercise my discretion in favour of allowing the action nevertheless to proceed in terms of section 19A. I shall accordingly sustain the first and second pleas-in-law for the defenders, which relate to these provisions respectively, and dismiss the action. I do not find it necessary to sustain the third plea-in-law for the defenders, so far as directed to the pursuer's averments relating to Article 6 of the Convention, having regard to the way in which the argument on that point ultimately proceeded.