Reilly v. Esso Petroleum Company Ltd [2005] ScotSC 50 (03 August 2005)

Reilly v. Esso Petroleum Company Ltd [2005] ScotSC 50 (03 August 2005)

The amendment to substitute a case under the Occupiers' Liability (Scotland) Act 1960 did not amount to a fundamental change in the basis of the action, as the factual averments remained substantially the same and the defenders had already investigated the matter on a broad basis. Any prejudice to the defenders was limited to delay affecting witness recollection, which was not sufficient to refuse the amendment. The sheriff's refusal to allow the amendment was therefore unreasonable and should be recalled.

Citation
[2005] ScotSC 50
Parties
Pursuer and Appellant: Robert Reilly; Defenders and Respondents: Esso Petroleum Company Limited
Jurisdiction
Scotland
Judgment Date
03 August 2005
Procedural Posture
Appeal in Personal Injury Action / Appeal Against Refusal to Allow Amendment to Pleadings
Outcome
Appeal sustained; interlocutor recalled; amendment allowed except for vicarious liability case; case remitted for further procedure; defenders found liable in expenses of appeal; cause certified as suitable for junior counsel.
Legal Topics
Amendment of Pleadings, Time Bar, Occupiers' Liability, Workplace Safety, Strict Liability
Personal Injury Civil Procedure Amendment of Pleadings Time Bar Occupiers' Liability Workplace Safety Strict Liability

Case Brief

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Parties

Robert Reilly

Pursuer and Appellant

Esso Petroleum Company Limited

Defenders and Respondents

Procedural Posture

Appeal in Personal Injury Action / Appeal Against Refusal to Allow Amendment to Pleadings

Legal Issues

  1. 1 Whether amendment to pleadings to substitute a new statutory ground of fault after expiry of triennium should be allowed
  2. 2 Whether such amendment constitutes a fundamental change in the basis of the action
  3. 3 Whether defenders would be prejudiced by the amendment

Ratio Decidendi

The amendment to substitute a case under the Occupiers' Liability (Scotland) Act 1960 did not amount to a fundamental change in the basis of the action, as the factual averments remained substantially the same and the defenders had already investigated the matter on a broad basis. Any prejudice to the defenders was limited to delay affecting witness recollection, which was not sufficient to refuse the amendment. The sheriff's refusal to allow the amendment was therefore unreasonable and should be recalled.

Court Disposition

Appeal sustained; interlocutor recalled; amendment allowed except for vicarious liability case; case remitted for further procedure; defenders found liable in expenses of appeal; cause certified as suitable for junior counsel.

Orders

  • Recall of interlocutor dated 22 September 2004
  • Allowance of amendment to record except paragraph 6 (vicarious liability)