Outer House Court of Session – Lord Clyde held (obiter) that the ordinary and natural meaning of the phrase ’caused as aforesaid’ included the distinct ingredient of causation by negligence: ‘The question is one of the interpretation of section 11(3) . . In my view . . the subsection looks for an awareness not only of the fact of loss having occurred, but the fact that it is a loss caused by negligence . . I do consider that the ordinary and natural meaning of the phrase [’caused as aforesaid’] involves an inclusion of the ingredient of causation by fault. The construction advocated by the defenders does not seem to me to give sufficient recognition to the presence of the critical three words. Indeed, if Parliament had intended what the defenders submit is the proper construction, the words could have been altogether omitted. Counsel for the defenders argued that it was necessary to refer to the fact that the loss was loss resulting from an act, neglect or default because it was with that that the section was concerned. As senior counsel for the defenders put it, the critical phrase was inserted to draw attention back to section 11(1) to show the kind of loss of which the creditor has to be aware without making awareness of the fact of causation an essential for the prescriptive period to start running. But the whole section is concerned with claims for reparation which involve damnum caused by injuria and it does not seem to me that the critical words could have been added simply as a reminder of that. They must be there for some purpose and they must be given some meaning. In accordance with the ordinary use of the language which is used, awareness of loss having occurred is not enough. What the subsection requires is awareness of loss caused by negligence having occurred.
Furthermore as senior counsel for the pursuers submitted, the logic of the scheme points to a requirement of knowledge that the right of action exists before the obligation is deemed to be enforceable and it would be illogical to omit one of the essential components of the right of action, namely the causation of the loss by fault. Even more compelling to my mind was his further submission that if it is only knowledge of the fact of loss, injury or damage having occurred which is intended, it is difficult to give much content to the reference to reasonable diligence. The more likely context for reasonable diligence is in the steps that may be taken after loss has been sustained to discover the cause of it . .’
Judges:
Lord Clyde
Citations:
1990 SC 237
Statutes:
Prescription and Limitation (Scotland) Act 1973
Jurisdiction:
Scotland
Cited by:
Cited – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Another SCS 14-Mar-2013
Extra Division – Inner House – An explosion at the defenders’ neighbouring premises had damaged those of the pursuer. The defenders now appealed against a finding that the claim was out of time calculated from the time when it had sufficient . .
Cited – David T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Lists of cited by and citing cases may be incomplete.
Limitation
Updated: 20 May 2022; Ref: scu.552028
