A judge in the Court of Session refused to exercise his discretion to allow the “time-barred” action to proceed after ruling that the council would suffer “irremediable prejudice” if the case was allowed to continue.
Lord Tyre heard that the pursuer Bill Grace, 58, claimed that on about 19 May 1965, when he was five years old and a pupil at Sciennes Primary School in Edinburgh, he suffered serious injury when he ran out through the school gates and was struck by a motor vehicle.
The pursuer, who had no recollection of the incident and said he only became aware of what happened in 1994 as relatives had previously “hid” it from him, said he sustained head injuries that had “life-changing” adverse effects on his personality.
He sued the City of Edinburgh Council for £650,000, claiming that the accident was caused by the fault of the defender’s employees, the staff of the school, who allowed children to play in the playground unsupervised and failed to keep the school gates closed.
The present action was raised in 1997 in Edinburgh Sheriff Court and after being sisted the case was remitted to the Court of Session in 2007.
Nothing then happened in the court proceedings for a further 10 years when, in June 2017, a draft minute of amendment was intimated to the defender, which included averments addressing the issue of whether the court should exercise its discretion in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the action to proceed.
The motion, which was heard in February this year, was opposed by the defender on the ground that the action was time-barred.
Interests of justice
On behalf of the pursuer, it was submitted that Mr Gracie now had two expert opinions supporting his case on causation.
The pursuer had attempted over many years to investigate the circumstances of his accident, which had proved very difficult as neither the driver of the vehicle nor any of the school staff could be traced and no contemporaneous report existed.
The only evidence available came from the pursuer’s mother, who was told of the occurrence of the accident by a female member of staff whose identity is unknown.
It was argued that the court should exercise its discretion and allow the action to proceed “in the interests of justice”.
However, on behalf of the defender it was submitted that the court should not exercise its discretion under section 19A to allow the action to proceed, as “no satisfactory explanation” had been provided as to why the case had not been raised timeously.
The pursuer required to focus on the period prior to expiry of the triennium in 1990 rather than on difficulties encountered more recently, long after expiry, and the explanation that family members were “reluctant” to tell him about the accident sat uneasily with his averments of personality change during childhood caused by his injury.
It was also argued that there would be “serious prejudice” to the defender in allowing the action to proceed, as the accident occurred more than 50 years ago when safety practices were very different and there was “almost no evidence” of what happened.
Further, the defender and its current taxpayers and ratepayers should not be put to the expense of defending a very large claim arising out of events so long ago.
The court concluded that “it would not be equitable” to allow the pursuer’s pleadings to be amended with a view to enabling the action to proceed.
In a written opinion Lord Tyre said: “I agree with the defender’s submission that in assessing whether it would be equitable to allow the amendment which would have the effect of enabling the action to proceed, it is necessary to focus primarily on the period prior to expiry of the triennium in order to ascertain why the action was not raised timeously.
“The explanation offered by the pursuer is that his family, and in particular his mother, concealed from him until after the triennium expired that the accident had occurred. I do not regard that as a compelling reason to allow the action to proceed now.
“Clearly it implies no criticism of the defender. Nor does it explain why the pursuer who, as already mentioned, had full legal capacity during the period when time was running against him, was unable to find out for himself about the accident from the medical practitioners responsible for his care at that time.”
The judge also held that the council would suffer “irremediable prejudice” if the action were allowed to proceed.
Lord Tyre explained: “It would be impossible for the defender to carry out any realistic investigation of the circumstances of the accident, as indeed it probably already was when the action was raised in 1997. Evidence that would have existed at one time has been lost.
“The sum sued for is very large. It is contrary to the public interest to expose the defender and its taxpayers and ratepayers to a liability arising out of a claim which expired without intimation many years ago; the defender has been entitled to order its affairs on the basis that it would not require to meet such a claim.“
The judge said his view was reinforced after considering the pursuer’s prospects of success, which he described as “virtually non-existent”.
Lord Tyre added: “The only evidence on the merits would be that of the pursuer’s mother, who could speak only to what she was told, some hours after the incident occurred, by an unidentified member of staff… The driver cannot be traced and it was not suggested that relevant evidence is available from any child present.
“I find it very hard indeed to see how the pursuer could satisfy the court, on balance of probabilities, that the accident occurred as averred or, if it did, how it came about that he was able to run on to the road in front of a vehicle, or, if indeed a school gate was left open, whether this occurred in circumstances implying breach by the defender’s employees of whatever standard of reasonable care might be found to have been applicable in 1965.”
This article first appeared in the Scottish Legal News and is reproduced here with their kind permission.
Neil Mackenzie, Advocate.