MacKay (AP) v Lothian Health Board [2000] ScotCS 112 (26 April 2000)

MacKay (AP) v Lothian Health Board [2000] ScotCS 112 (26 April 2000)

The pursuer's claim was time barred because it would have been reasonably practicable for him to become aware of the relevant facts linking his injury to Dr Robinson's acts or omissions well before the expiry of the three-year limitation period. There were no sufficient equitable grounds to exercise discretion under Section 19A, given the prejudice to the defenders, the weakness of the pursuer's case, and the delay attributable to the pursuer and his solicitors.

Citation
[2000] ScotCS 112
Parties
Pursuer: George MacKay (AP); Defender: Lothian Health Board
Jurisdiction
Scotland
Judgment Date
26 April 2000
Procedural Posture
Personal Injury/medical Negligence Action / Preliminary Proof on Time Bar and Discretion Under Section 19 a
Outcome
Action dismissed as time barred; discretion under Section 19A not exercised.
Legal Topics
Time Bar, Prescription and Limitation (scotland) Act 1973, Section 17(2) Knowledge Test, Section 19 a Judicial Discretion, Medical Negligence Causation
Medical Negligence Personal Injury Limitation of Actions Time Bar Prescription and Limitation (scotland) Act 1973 Section 17(2) Knowledge Test Section 19 a Judicial Discretion Medical Negligence Causation

Case Brief

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Parties

George MacKay (AP)

Pursuer

Lothian Health Board

Defender

Procedural Posture

Personal Injury/medical Negligence Action / Preliminary Proof on Time Bar and Discretion Under Section 19 a

Legal Issues

  1. 1 Whether the pursuer's claim is time barred under Section 17(2) of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the court should exercise its discretion under Section 19A to allow the action to proceed despite being time barred

Ratio Decidendi

The pursuer's claim was time barred because it would have been reasonably practicable for him to become aware of the relevant facts linking his injury to Dr Robinson's acts or omissions well before the expiry of the three-year limitation period. There were no sufficient equitable grounds to exercise discretion under Section 19A, given the prejudice to the defenders, the weakness of the pursuer's case, and the delay attributable to the pursuer and his solicitors.

Court Disposition

Action dismissed as time barred; discretion under Section 19A not exercised.

Orders

  • Sustain defender's first plea-in-law (time bar)
  • Repel pursuer's fourth plea-in-law (Section 19A discretion)