Widow of drowned diver has damages claim dismissed as ‘time-barred’ but can sue as son’s guardian

The Inner House of the Court of Session upheld the decision of the Lord Ordinary to dismiss the negligence claim by Debbie Warner against ScapaFlow Charters as “time-barred”, but ruled that the Prescription and Limitation (Scotland) Act 1973 provided “grounds of suspension and interruption of limitation periods”, meaning her claim as guardian of her son Vincent was not time-barred.

Lord Menzies, Lady Clark of Calton and Lord Glennie heard that Lex Warner was killed in a diving accident off Cape Wrath in August 2012, having chartered a vessel for a week-long diving trip.

In a summons which was signetted in May 2015 the pursuer alleged that her late husband’s death was due to the “fault and negligence” of the defenders, the owners of the MV Jean Elaine motor vessel.

Lord Boyd of Duncansby upheld the defenders’ preliminary plea in law, which was to the effect that the action was time-barred under article 16 of the Athens Convention relating to the Carriage of Passengers and their luggage by Sea, which states that any action for damages arising out of the death of or personal injury to a passenger shall be time-barred after two years.

But on appeal counsel for the reclaimer argued that section 18 of the 1973 Act provided grounds for the suspension and interruption of the two-year time-bar in particular circumstances and that article 16.3 of the Athens Convention required the court to give effect to them.

In terms of section 18(2)(b), the pursuer averred on record that she “was not and could not have become aware that the death of the deceased was due to an act or omission attributable to the defender until the publication of the MAIB Accident Report in December 2013”.

On that basis, it was arguable that the running of the two-year limitation period was “suspended” until that date, and that period did not expire until December 2015.

In terms of section 18(3), in so far as the pursuer sued as guardian of her son, he had at all times been under a “legal disability by reason of nonage” and accordingly the whole of the period after the incident fell to be “disregarded” in the computation of the limitation period.

It was argued that the Lord Ordinary was “wrong to dismiss the action” and that he should have allowed a proof before answer.

However, counsel for the defenders submitted that section 18(2)(b) and (3) did not provide for “suspension” or “interruption” of the limitation period as those words were used in the Convention.

On a proper construction of article 16.3, the word “suspension” was virtually synonymous with “interruption”, in that it contemplated something happening after time had started to run.

In any event, the terms of section 18(2)(b) and (3) of the 1973 Act did not, on their proper construction, have the effect of suspending or interrupting limitation. Rather they provided a “start date” for the running of the three-year time limit in Scots law.

Even if he was wrong about that, the pursuer’s agents wrote to the defenders in April 2013 making a claim for damages and asserting that the claim arose out of the “failures of the skipper of the vessel”.

That showed the “requisite knowledge” to start time running under section 18(2)(b), but the action was not commenced until more than two years after that letter was sent and therefore Lord Ordinary was “right to dismiss the action”.

Delivering the opinion of the court, Lord Glennie said: “It is clear, in our view, that section 18(2), read as a whole, specifies both the length of the limitation period in an action of damages arising out of death from personal injuries and the date when that time starts to run. The period is a period of three years. Time starts to run either (a) on the date of death of the deceased or (b), if later, the date on which the pursuer became aware or could reasonably have become aware of certain material facts.

“To hold that these provisions ‘govern’ (to use the language of Article 16.3) would be to allow domestic law as to the commencement of the limitation period to supersede that laid down in Article 16.2 of the Convention. That is not permissible. On this point, therefore, we agree with the Lord Ordinary.”

The appeal judges also agreed with the Lord Ordinary on the effect of the letter agents for the pursuer wrote to the defenders, which was dated 17 April 2013, setting out the circumstances of the accident as they then understood them to be and putting forward a claim for damages on the basis that the death of the deceased was caused by “the failures of your skipper”.

Lord Glennie said: “It could not been written if the pursuer or her agents did not have sufficient awareness of the relevant facts to start time running under section 18(2)(b). Accordingly, even if that section was a provision of Scots law providing for the suspension or interruption of limitation periods, it did not help the pursuer since in terms of that section time started running at latest at the date of that letter and the action was not brought until more than two years afterwards.”

However, the judges came to a different conclusion from that reached by the Lord Ordinary on the application of section 18(3).

Lord Glennie explained: “We think it would be unduly restrictive to hold that a provision such as that in section 18(3) cannot be regarded as one which is capable of suspending or interrupting the running of time under the two year limit in Article 16. As we have said, one way of reading the 1973 Act as applying to the Convention is to read Article 16.3 as though it said: the 1973 Act shall govern the grounds of suspension and interruption of limitation periods.

“But another equally legitimate way of looking at the interaction between the 1973 Act and the Convention is to read the limitation period and commencement dates set out in Article 16 as though they were written into the relevant section of the 1973 Act. On that basis, section 18(2) would read as though it provided for actions for death caused by personal injury (during carriage by sea) to be time barred unless commenced within a period of two years after the date when the passenger should have disembarked. Section 18(3) would then provide for suspension or interruption of that two‑year period during periods of nonage or unsoundness of mind.

“We conclude, therefore, that section 18(3) applies to this case…Accordingly, while the claim by the pursuer as an individual in her own right is time barred, her claim as guardian of her child is not.”