Family of man who died of asbestos-related lung cancer sisted into damages action as new pursuers

The family of a man who died after raising an action against his former employer for damages related to asbestos-related lung cancer has been permitted to enter the claim by a judge in the Outer House of the Court of Session.

Family of man who died of asbestos-related lung cancer sisted into damages action as new pursuers

Provisional damages of £30,000 had previously been awarded to the original pursuer, David Mathewson, in 2014, however leave had been reserved to apply for an award of further damages. In a motion of 22 February 2022, his widow, daughter, and two grandchildren sought to be sisted into the action as pursuers. The defender, Scottish Power UK Ltd, opposed the motion on the basis of time-bar.

The motion was heard by Lord Clark. Christine, advocate, appeared for the pursuer’s family and Wilson, advocate, for the defender.

Interrupt the triennium

Mr Mathewson originally raised the action in June 2012 and was awarded provisional damages in March 2014. At the time of the making of the award, there was considered to be a risk that a surgical procedure that he had gone through could cause or materially contribute to his death, however the award was based on the assumption that this would not be the case. Leave was reserved to apply for an award of further damages.

On 9 February 2019, Mr Mathewson passed away. Minutes for further damages and to sist Mr Mathewson’s family into the claim were intimated to the defender’s agents nearly three years later on 7 February 2022. The defender opposed the motion on the ground that the claims now sought to be made were time-barred in terms of section 18 of the Prescription and Limitation (Scotland) Act 1973.

Counsel for the minuters submitted that the defender had fair notice of the claim, which had been made within three years of Mr Mathewson’s death. The present case did not involve the use of a procedural mechanism of sisting in additional pursuers in order to circumvent issues of time-bar. The minuters relied on the 2020 sheriff court decision of Gillies’ Executrix v Wiggins, which itself was heavily based on the reasoning in Boyle v Glasgow Corporation (1975) in support of its arguments.

It was submitted for the defender that mere intimation of the motion was not sufficient to interrupt the triennium, and that the minuters had no standing to amend the claim. Gillies was not binding on the court and could be distinguished from the present case on its facts. Further, Gillies had been wrongly decided, and the court ought to have recognised that it was a minute of amendment purporting to bring claims on the part of new pursuers.

Fair notice

In his opinion, Lord Clark said of the authorities cited: “While in [Boyle] the Lord Justice-Clerk had said that ‘the lodging of the minute of amendment brings it in to the judicial process’, that did not mean, under the current Sheriff Court rules, that the minute is not and cannot be part of the judicial process until it has been lodged. The emphasis was on fair notice. The existing rule provided for the lodging of the principal document after the motion procedure has concluded, either by agreement or by opposition. Actual lodgement of the minute of amendment was, in this context, ‘a red herring’.”

Addressing whether Gillies had been wrongly decided, he observed: “This comes down to whether a different view is to be reached between fair notice of a motion and a minute of amendment by an existing pursuer to bring in a new head of claim (as in Boyle) and fair notice of a motion in respect of such a minute by an existing pursuer to bring in new pursuers with new claims (as in Gillies). In my opinion, there is no material difference between these factual circumstances and in particular none which impinges upon the reasoning in Boyle and the principle of fair notice.”

Addressing whether the same reasoning could apply when there was no existing pursuer, Lord Clark said: “In those circumstances, the connected persons were entitled to intimate their minute of sist and motion to be sisted into the action. I do not consider there to be a sound basis in law for the defender’s position that the action can only be commenced for the purposes of the 1973 Act if the connected persons’ motion to be sisted into the action is granted within the triennium.”

He concluded: “In my view, the principle in Boyle, as followed in Gillies, applies. Where the existing pursuer has died and hence no other pursuer is in place, intimation of the minutes, including the minute to sist, and the motion to grant them constitutes fair notice and causes the action, in its new form, to be commenced.”

The motion of the minuters was therefore granted.

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