Miller v National Coal Board [1960]
- Reported: [1960] SC 376, 1 DIV
- Year: 1960
- Court: House of Lords
FACTS:-
On 23rd November 1956, the Claimant was a miner and was injured due to an accident in the mines. The Claimant was instructed by the first-named defenders’ surface foreman at the colliery to clear up coal refuse which had spilled over an overhead conveyor on to a railway track adjacent to the colliery. The track was the property of the second-named defenders which consisted of two sets of rails, running approximately east and west. The railway was regularly used by railway trains and shutting operations in connection with the collection and delivery of coal wagons.
The overhead conveyor was the property of the first-named defendant and was used by them for the conveyance of coal refuse from the colliery to a bing which was situated on the other side of the said railway track and it passed directly over the track. Over a considerable period before 23rd November 1956, coal refuse spilled from time to time from the conveyor on to the track. On occasions when spillage was excessive, servants of the second-named defenders requested servants of the first-named defenders at the colliery to clear up refuse which was lying on the track, and workmen employed by the first-named defenders were instructed to do so. On the occasion in question, the Claimant was sent to clear up the refuse by himself and no look-out man was posted to give warning of the approach of trains. While he was removing refuse from the track by means of a shovel, he was struck from behind by a train of goods wagons which were being pushed eastwards by a locomotive along the south-most set of rails. He was knocked down and a number of the wagons passed over him, causing him serious injury.
The second defendants admitted that the said track was the property of these defenders and that the said two sets of rails are used by railway trains running and also for shunting operations. The second Defendants admitted that an overhead conveyor was the property of the first-named defenders and it crossed the track. They also admitted that the Claimant was struck by a train on the said day. Quoad ultra was not known and not admitted.
The accident was also caused by the fault of Angus McKinnon who was a guard, and/or Thomas Doudie a shunter. Both the servants of the second-named defenders were acting in the course of their employment and therefore the second-named defenders were responsible. At the time of the accident, the guard and shunter were in the guard’s van, which was at the front of the train of wagons. They knew or ought to have known, that the said train in passing through the colliery premises, would be a source of danger to the employees of the first-named defenders who had occasion to cross, or to work in the vicinity of the said lines. It was the duty of both of them, or in any event of one or other of them, to keep a careful lookout from the van, and to warn the Claimant if he appeared to be likely to be endangered by the approach of the train. The guard and shunter failed breached their duty of care and therefore caused the accident. The Claimant believed that both of them were inside the closed portion of the guard’s van and neither of them was keeping a look-out.. Therefore neither of them was aware of the accident until their attention was drawn to it by servants of the first-named defenders.
The second-named defenders answered that they performed all duties incumbent on them. Quoad ultra no admission is made.
The Defenders were asked to make reparation to the Claimant for his loss, injury and damage, but they refused or delayed to do so. The present action was therefore necessary. With reference to the second-named Defenders’ averments in answer it was believed to be true that no open record amended so as to contain conclusions, averments or pleas-in-law directed against the second-named defenders was served on them until 26th November 1959.
On 21st November 1959, John P. Laidlaw, messenger-at-arms, personally served a copy of the open record upon the defenders at their offices together with a copy of the said interlocutor and a notice. The notice state
“Take notice that in the action in which Peter Miller, residing at 33 Portal Road, Grangemouth, is the pursuer, and The National Coal Board, Scottish Division, 25 Manor Place, Edinburgh, are the defenders, a copy of the record in which, as now amended, is herewith enclosed, your name has, by order of the Court dated 18th November 1959, been added as defenders to the said action; and the conclusions of the action, originally directed against the said, The National Coal Board, are now also directed against you. If you desire to defend the said action, you are charged to lodge defences thereto in the office of the Court of Session, New Register House, Edinburgh, within fourteen days from the date of service hereof, under certification that, if you fail to do so, the said Peter Miller, pursuer, may proceed to obtain decree against you in absence. Dated this twenty-first day of November, nineteen hundred and fifty-nine years, before and in presence of Peter Douglas Laidlaw, residenter in Edinburgh witness to the premises. ‘J. P. Laidlaw’ messenger-at-arms, 5 North St David Street, Edinburgh.”
It was believed that, per incuriam, the said messenger-at-arms served an unamended copy of the open record upon the second-named defenders. He thereafter affixed an execution of service to an amended copy of the open record, stating that the open record as amended was served upon the second-named defenders and returned the copy of the open record, with the execution of service affixed thereto, to the Claimant’s solicitors. By letter to the pursuer’s solicitors dated 25th November 1959, the legal adviser to the second-named defenders drew their attention to the fact that the copy of the open record which had been delivered at his office on 21st November did not contain conclusions or averments against the second-named defenders, and stated that he did not propose to treat the action as having been competently served on his clients.
HELD:-
Lord Walker stated in his judgement that the question argued in this case was regarding the interaction between Rule 117(1)(c) of the Rules of Court, 1948 as amended by Act of Sederunt (Rules of Court Amendment) which allows a second Defender to be convened by amendment and s.6 of the Law Reform (Limitation of Actions) Act 1954, this provides that no action for damages shall be brought against any person unless it is commenced within three years from the date of the neglect that gives rise to the action.
Lord Walker stated in his judgement that the action was commenced against the National Coal Board in respect of the injuries sustained by the Claimant. The National Coal Board lodged defences and blamed the British Transport Commission.
A messenger was served by messenger-at-arms, but unfortunately the copy of the record which was amended was a plain unamended copy and did not show the amendments. Therefore the British Transport Commission’s name did not appear as second defendants and was returned to the Claimant’s solicitors. The British Transport Commission treated the action as not being competently served. On 26th Novemeber the Claimant re served the notice. The second defenders stated in their first plea that the action was time barred in terms of the 1954 Act and they should be assoilized.
Lord Walker held that as the action was commenced within the time limit, and as amendment adding the second defenders as parties was properly made, thus the plea of time bar must fail. Lord Walker therefore repealed the second defenders plea in law.
Lord President Clyde also considered in his judgement whether the action was time barred. Lord Ordinary held it was no, and against the interlocutor so holding the second defenders having reclaimed. Lord Clyde found the action against the National Coal Board was raised against them within the three year period. Lord Clyde found the answer to the question put forward by the British Transport Commission as to whether the action was time barred was dependant upon the date of the commencement of the action in question with the British Transport Commission. Therefore the answer depended primarily upon the construction of section 6 of the Act.
Lord Clyde suggested possible dates in the judgement, three of which were within and one was outside the statutory three years’ limit. The earliest date suggested was the date of commencement against the National Coal Board. The second suggested date was 18th November 1959 which was the date when Lord Ordinary allowed the record to be amended so as to call the British Transport Commission. The third suggestion was whether the date of citation was the crucial date, in which case the 21st November 1959 when the first citation was served on the Commission. The final date suggested was the date of second citation, which was 26th November 1959.
Lord Clyde held that citation was ex facie valid and has to be acted on. Lord Clyde further held it this was the date when the action was commenced against the British Transport Commission, within the meaning of s.6 of the Act and if so was outside the three year period prescribed by the Act and therefore came too late. Lord Clyde concluded the interlocutor of Lord Ordinary should be recalled, the third plea-in-law for the Claimant repelled and the first plea-in-law for the second defenders sustained and that they will be assoilized from the conclusions of the summons.
Lord Carmont held that the relevant date to consider when determining whether the proceedings were timeous against any particular defender was not a date of commencement of proceedings against some other defender. Lord Carmount found that the purpose of the legislation was to secure that any defender was not made liable to answer stale claims. Lord Carmount was of the opinion that it did not seem to matter whether the particular defender was brought in as one of the orginal defenders, or whether he is brought into a ‘going’ case by amendment. Thus in the case held the action was time barred and found that Lord Ordinary had came to the wrong conclusion.
Lord Sorn held that ‘we should recall the interlocutor pronounced by Lord Ordinary and assoilzie the additional defenders.
Lord Guthrie found the reclaiming motion should be allowed and took the opinion that the date of commencement of the action against the second defenders was 26th November 1959, the date when service of an amended open record was made upon them. This date was after the expiration of three years from 23rd November 1956. The action was time barred against the second defenders in virtue of s.6(1) of the Law Reform (Limitation of Action) Act 1954.
The court allowed the reclaiming motion and assoilzied the defenders second called from the conclusions of the summons. The action was barred by s.6(1) of the Law Reform (Limitation of Actions) Act 1954.
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