JOHN KELMAN AGAINST MORAY COUNCIL [2021] ScotCS CSOH_131 (24 December 2021)

JOHN KELMAN AGAINST MORAY COUNCIL [2021] ScotCS CSOH_131 (24 December 2021)

Pursuer did not have actual or constructive knowledge that injuries were sufficiently serious to justify raising proceedings until diagnosis of mesothelioma in 2019; evidence supports pursuer's lack of awareness and reassurance from medical staff; court exercises discretion under section 19A to allow action to proceed as equities favour pursuer given prejudice from loss of claim outweighs prejudice to defender from loss of limitation defence.

Citation
[2021] ScotCS CSOH_131
Parties
Pursuer: John Kelman; Defender: Moray Council
Jurisdiction
Scotland
Judgment Date
24 December 2021
Procedural Posture
Personal Injury Action / Preliminary Proof on Limitation and Discretion
Outcome
Action allowed to proceed
Legal Topics
Asbestos Related Disease, Prescription and Limitation (scotland) Act 1973, Section 17 and Section 19 a Discretion, Mesothelioma, Pleural Plaques
Personal Injury Limitation of Actions Asbestos Related Disease Prescription and Limitation (scotland) Act 1973 Section 17 and Section 19 a Discretion Mesothelioma Pleural Plaques

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Parties

John Kelman

Pursuer

Moray Council

Defender

Procedural Posture

Personal Injury Action / Preliminary Proof on Limitation and Discretion

Legal Issues

  1. 1 Whether pursuer had actual or constructive knowledge that injuries were sufficiently serious to justify raising proceedings within limitation period
  2. 2 Whether court should exercise discretion under section 19A to allow action to proceed despite being time barred

Ratio Decidendi

Pursuer did not have actual or constructive knowledge that injuries were sufficiently serious to justify raising proceedings until diagnosis of mesothelioma in 2019; evidence supports pursuer's lack of awareness and reassurance from medical staff; court exercises discretion under section 19A to allow action to proceed as equities favour pursuer given prejudice from loss of claim outweighs prejudice to defender from loss of limitation defence.

Court Disposition

Action allowed to proceed

Orders

  • Case permitted to proceed to proof on merits
  • Limitation defence overruled under section 19A