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Barbara MacVicar or Butt and others v Robert Nimmo
Barbara MacVicar or Butt and others v Robert Nimmo
PD651/24
Thursday 15 January 2025
10:30 until conclusion
First Division
[1] This reclaiming motion (appeal) arises as a result of the tragic death of Mr Edward Samuel Butt from malignant epithelioid mesothelioma caused by his exposure to asbestos in the 1970s.
[2] Mr Butt passed away on 28 November 2021, after being diagnosed with mesothelioma earlier that same year. The current action is brought on behalf of his surviving family following his death.
[3] The legal issue is whether the action is capable of being heard by a jury. Prior to Mr Butt’s death, his action would have been founded on section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973. This section allows a pursuer to bring a claim within three years of becoming aware of the severity of their condition, and that it was caused by a negligent act or omission attributable to the defender.
[4] Upon the death of Mr Butt, the pursuers and respondents brought the current action under section 18(2)(a) of the 1973 Act. This section allows an action to be brought within three years of the deceased’s death. This section is dependent on the deceased having founded an action under section 17(2). However, under section 22(4) an action founded under section 17(2)(b) shall not be tried by a jury.
[5] The crisp question is whether, in relying on section 18(2)(a), which is interdependent on the deceased’s right of action under section 17(2)(b), the action is able to be heard by a jury.
[6] The claim was not considered to be time-barred. The pursuers and reclaimers raised the action within three years of the deceased’s death under section 18(2)(a). A jury trial was not possible where the limitation period was postponed by means of section 18(2)(b). It was the contentious issue of timebar which the drafters of the 1973 Act sought to exclude from the jury. As such, the pursuers and respondents’ case was still capable of being heard by a jury as it was founded on section 18 (2)(a).
[7] The defender and reclaimer appeals this decision on three main grounds. First, that the action relied upon the engagement of section 17(2)(b). If this provision was engaged, then the case was prevented from being heard by a jury. Second, the relaxation of the timebar period contained in section 17(2)(b) imposed an additional burden on the defender. The purpose of the prevention of a trial by jury was to provide a safeguard to defenders in such cases. Third, the Lord Ordinary adopted an absurd position by considering that the interpretation of the 1973 Act meant that Parliament seemed to allow trial by jury of a claim under section 18, in circumstances where a claim by the deceased himself would have been excluded.
[8] In response, the pursuers and respondents contend that there was no misinterpretation of the provisions of the 1973 Act. First, section 18(2)(b) was a potential barrier to proceeding to a jury. However, the current action was brought under section 18(2)(a) of the 1973 Act. Second, the Lord Ordinary’s interpretation of the statute was correct and it did not displace the meaning conveyed by the words of the statute when considered in context. The action was not time-barred. Third, no absurdity arose in the Lord Ordinary’s interpretation of the 1973 Act. The meanings of sections 17, 18 and 22(4) were clear and unambiguous.
The appeal will be heard by the First Division on 15 January 2026 at 10.30am.