Former employer of joiner who died from asbestos exposure loses appeal against decision to allow civil jury trial

About this case:

• Citation:
  [2026] CSIH 6
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

Reclaimer Robert Nimmo was the defender in an action raised by Barbara MacVicar (or Butt) and other relatives of the late Edward Butt, whom he had employed as a joiner in the late 1970s. He argued that a jury trial was precluded in the circumstances by the operation of section 22(4) of the Prescription and Limitation (Scotland) Act 1973.

The appeal was heard by the Lord President, Lord Pentland, with Lady Wise and Lord Ericht. N Mackenzie KC appeared for the defender and reclaimer and I Mackay KC and Singer, solicitor advocate, appeared for the pursuers and respondents.

Safeguard for defenders

It was averred by the pursuers that Mr Butt was employed as a joiner by the defender between 1977 and 1979, when the defender carried on business under the name of D&W Nimmo. In the course of his employment, Mr Butt carried out renovation works to premises in Glasgow and was exposed to asbestos dust and fibres when cutting and fitting ceiling tiles and Asbestolux sheeting.

Many years later, in about December 2020, Mr Butt developed chest pains as a result of pleural plagues and mesothelioma. He died from the effects of mesothelioma in November 2021 at the age of 68. The first pursuer sued both in her own right and as her late husband’s executrix, seeking damages for pain and suffering, funeral costs, and damages under sections 4 and 6 of the Damages (Scotland) Act 2011.

The defender argued that Mr Butt’s right of action accrued by virtue of section 17(2)(b) of the 1973 Act, which provided for a relaxation of the normal time bar where it was reasonable for the pursuer to become aware at a late stage of the seriousness of his injuries, and was the indispensable foundation of the action. Under section 22(4), an action that would not be entertained “but for the said subsection 2(b)” could not be tried by jury. The defender’s argument was that the reference to “the said subsection (2)(b)” in section 22(4) could only refer to section 17(2)(b).

It was submitted that the lord ordinary had misdirected himself by holding that it was the contentious issue of time-bar which the drafters of section 22(4) had sought to exclude from consideration by a jury. The correct position was that the purpose of the provision was to provide a safeguard for defenders by regarding the relaxation of the three-year limitation period as a “special cause” which made the action appropriate for proof as opposed to trial by jury. The lord ordinary adopted an absurd interpretation of the limitation provisions, and the pursuers ought to have no greater rights than the deceased.

No statutory exclusion

Lord Pentland, delivering the opinion of the court, began by summarising the background to the wording of the Act: “In its report on Prescription and the Limitation of Actions, Report on Personal Injuries Actions and Private International Law Questions (1983) the Scottish Law Commission recommended changes to the 1973 Act with the aim of simplifying the law and eradicating a number of obvious defects. The Bill remodelled the law by creating the provisions now to be found in sections 17 and 18 of the 1973 Act. Clause 22(4) as set out in the draft Bill provided that an action which would not be entertained but for subsection(2)(b) ‘of the said section 17 or 18’ shall not be tried by jury. The explanatory note stated that the proposed subsection preserved the operation of section 22(6) of the 1973 Act.”

Noting that the pursuers’ claim had been brought timeously, Lord Pentland said: “For reasons which were not explained to the court at the hearing, the version of the provision enacted by Parliament in the Prescription and Limitation (Scotland) Act 1984 shortened the Commission’s proposed language to ‘but for the said subsection(2)(b)’. There is no reason to suppose that Parliament intended to do anything other than give full effect to the Commission’s recommendation, which made clear that the intention was to continue the existing policy of excluding from jury trial consideration of issues arising under section 17(2)(b) in a claim by an injured person or under section 18(2)(b) in a claim following the death of an injured person.”

He added: “The present action is exclusively governed so far as limitation is concerned by the provisions contained in section 18 of the 1973 Act. The action has been brought timeously, within the period of three years of the deceased’s death, as required by section 18(2)(a). That being so, the only sensible way in which to interpret the words ‘but for the said subsection (2)(b)’ in section 22(4) in the circumstances of the present case is to hold that they refer to section 18(2)(b) and not to section 17(2)(b). The present action is one which the court can competently entertain without recourse to section 18(2)(b). Accordingly, there is no statutory exclusion of the pursuers’ right to jury trial.”
Explaining why this did not lead to an absurd result, Lord Pentland concluded: “Parliament has taken the view over the years since 1963 that where there are issues in play concerning the extension of the three-year limitation period, such as those contained in section 17(2)(b) or section 18(2)(b), it is desirable for those issues to be addressed by a judge rather than a jury. There are no such issues in the present case.”

The reclaiming motion was therefore refused.