David T Morrison & Co Ltd (t/a Gael Home Interiors) v ICL Plastics Ltd & Anor [2013] ScotCS CSIH_19 (14 March 2013)

David T Morrison & Co Ltd (t/a Gael Home Interiors) v ICL Plastics Ltd & Anor [2013] ScotCS CSIH_19 (14 March 2013)

Section 11(3) of the 1973 Act postpones the start of the five-year prescriptive period until the pursuer is, or could with reasonable diligence be, aware that the loss was caused by actionable fault. The mere fact of an explosion does not necessarily mean the pursuer was aware of negligence. The Lord Ordinary erred in holding that the claim prescribed from the date of the explosion. The pursuer is entitled to a proof before answer on when such awareness arose.

Citation
[2013] ScotCS CSIH_19
Parties
Pursuer and Reclaimer: David T Morrison & Co Limited trading as Gael Home Interiors; First Defender and Respondent: ICL Plastics Limited; Second Defender and Respondent: ICL Tech Limited; Third Defender and Respondent: Stockline Plastics Limited
Jurisdiction
Scotland
Judgment Date
14 March 2013
Procedural Posture
Reclaiming Motion (appeal) in Civil Action for Damages / Appeal From Lord Ordinary's Decision on Prescription, Remitted for Proof Before Answer
Outcome
Reclaiming motion allowed; Lord Ordinary's interlocutor of 9 March 2012 recalled; case remitted to Outer House for proof before answer on prescription and section 11(3).
Legal Topics
Prescription and Limitation, Reparation (damages), Negligence, Nuisance, Breach of Statutory Duty, Res Ipsa Loquitur
Civil Law Delict (tort) Health and Safety Law Prescription and Limitation Reparation (damages) Negligence Nuisance Breach of Statutory Duty +1 more

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Parties

David T Morrison & Co Limited trading as Gael Home Interiors

Pursuer and Reclaimer

ICL Plastics Limited

First Defender and Respondent

ICL Tech Limited

Second Defender and Respondent

Stockline Plastics Limited

Third Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) in Civil Action for Damages / Appeal From Lord Ordinary's Decision on Prescription, Remitted for Proof Before Answer

Legal Issues

  1. 1 When does the five-year prescriptive period under the Prescription and Limitation (Scotland) Act 1973 begin to run for a claim in reparation for loss caused by an explosion?
  2. 2 Does section 11(3) of the 1973 Act defer the start of prescription until the pursuer is aware, or could with reasonable diligence have become aware, that the loss was caused by negligence or other actionable fault?
  3. 3 Is it sufficient for prescription purposes that the pursuer could have pled res ipsa loquitur immediately after the explosion, or must there be actual or reasonably discoverable awareness of actionable fault?

Ratio Decidendi

Section 11(3) of the 1973 Act postpones the start of the five-year prescriptive period until the pursuer is, or could with reasonable diligence be, aware that the loss was caused by actionable fault. The mere fact of an explosion does not necessarily mean the pursuer was aware of negligence. The Lord Ordinary erred in holding that the claim prescribed from the date of the explosion. The pursuer is entitled to a proof before answer on when such awareness arose.

Court Disposition

Reclaiming motion allowed; Lord Ordinary's interlocutor of 9 March 2012 recalled; case remitted to Outer House for proof before answer on prescription and section 11(3).

Orders

  • Recall of Lord Ordinary's interlocutor dated 9 March 2012
  • Remit to Outer House for proof before answer on prescription and effect of section 11(3)