Introduction

The case of John Kelman against Moray Council ([2021] ScotCS CSOH_131) revolves around claims of asbestos exposure during employment as a maintenance electrician with Moray Council between 1980 and 1984. Decades later, Mr. Kelman was diagnosed with mesothelioma, a terminal illness linked to asbestos exposure. The central legal issue pertains to whether Mr. Kelman could bring a personal injury claim beyond the standard three-year limitation period under the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act") by invoking equitable relief under section 19A.

Summary of the Judgment

The Scottish Court of Session's Outer House, presided over by Lady Wise, allowed Mr. Kelman's claim to proceed despite the lapse of the statutory limitation period. The court held that Mr. Kelman did not have actual or constructive awareness of his injuries' severity required to commence proceedings within three years. Additionally, equitable considerations under section 19A favored allowing the action to proceed, given the equities lay in favor of the pursuer without imposing undue prejudice on Moray Council.

Analysis

Precedents Cited

The judgment extensively analyzed previous cases to interpret section 17(2) and section 19A of the 1973 Act:

• Agnew v Scott Lithgow Ltd (No 2) 2003 SC 448: Established that section 17(2)(b)(ii) involves both subjective and objective tests to determine reasonable practicability.
• Little v East Ayrshire Council 1998 SCLR 520: Emphasized the necessity of taking all reasonably practicable steps once on notice.
• AS v Poor Sisters of Nazareth 2017 SC 688: Clarified that section 17(2)(b)(i) assumes undisputed liability and solvency of the defender, focusing solely on the injury's severity.
• Jacobsen v Chateurvedi [2017] CSIH 8: Highlighted that mere assertions without cogent additional circumstances are insufficient for section 19A relief.
• Quinn v Wright's Insulations Ltd 2020 SCLR 731: Demonstrated the challenges in section 19A applications where historical evidence undermines the claim.

Legal Reasoning

The court meticulously dissected the requirements of section 17(2)(b)(i) and section 19A:

• Section 17(2)(b)(i): The court determined that Mr. Kelman lacked the requisite constructive awareness of his injuries' seriousness until his mesothelioma diagnosis in 2019. The medical evidence indicated that his pleural plaques were downplayed and did not convey the severe implications of asbestos exposure.
• Section 19A: Recognizing the equitable power to override statutory limitations, the court balanced factors such as Mr. Kelman's promptness in seeking legal redress upon diagnosis, the absence of any wrongdoing on his part, and the manageable prejudice to Moray Council given its financial reserves.

Impact

This judgment underscores the judiciary's willingness to employ equitable doctrines to ensure justice in cases where statutory limitations may otherwise bar rightful claims. Specifically, it highlights:

• A nuanced interpretation of limitation periods, especially in long-term exposure cases like asbestos-related illnesses.
• The critical role of medical professionals in adequately informing patients about the prognostic significance of diagnoses.
• The potential for similar claims to succeed under section 19A when there is clear evidence of lack of awareness and compelling equities in favor of the pursuer.

Complex Concepts Simplified

Section 17(2) of the Prescription and Limitation (Scotland) Act 1973

This section sets time limits for bringing personal injury claims. Generally, a claim must be filed within three years from the date of injury or when the injury stops (whichever is later). However, exceptions exist if the claimant was unaware of the injury's severity.

Section 19A of the 1973 Act

Allows the court discretion to permit a claim to proceed even if it falls outside the standard time limits, provided it is equitable to do so. Factors include the claimant's conduct, the reason for delay, and the potential prejudice to both parties.

Constructive Awareness

Refers to what a reasonable person in the claimant's position would have known or should have known, even if they were not explicitly aware of it.

Prima Facie Case

An initial case where the evidence presented is sufficient to prove the claim unless contradicted by evidence to the contrary.

Conclusion

The **Kelman v Moray Council** judgment serves as a pivotal reference for personal injury claims involving long-term exposure to harmful substances. By allowing the claim to proceed under section 19A, the court emphasized the importance of equitable considerations in justice delivery. The case highlights the necessity for employers to adequately inform employees about the risks associated with their work and the potential long-term health implications. Furthermore, it sets a precedent for courts to exercise their discretion favorably in cases where claimants were genuinely unaware of their injuries' severity due to reasonable circumstances.