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High Court of Justice in Northern Ireland Queen's Bench Division Decisions

You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Gardiner v Contract Ceiling Ltd [2006] NIQB 95 (13 March 2006)
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Cite as: [2006] NIQB 95
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Gardiner v Contract Ceiling Ltd [2006] NIQB 95 (13 March 2006)

    Ref: HIGF5513

    IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
    ________
    QUEEN'S BENCH DIVISION
    _________

    BETWEEN:

    JANET GARDINER (as Widow and Administratrix of the estate of Stephen Gardiner, Deceased)

    Plaintiff/ Respondent;

    -and-

    CONTRACT CEILING LIMITED

    Defendant/Appellant.

    __________

    HIGGINS J

    [1]      This is an appeal from the decision of Master McCorry whereby he dismissed the defendant's application that the proceedings be stayed. By summons the defendant sought -

    "an order staying the proceedings herein until such times as the plaintiff consents to allowing and takes steps to encourage Dr Bruce MacLennan to consult with and be interviewed by or on behalf of the defendant."

    [2]          In a written judgment the learned Master described this application as novel and concluded –

    "Mr Hunt for the defendant presents a very attractive and persuasive argument in favour of the relief sought. It is an argument grounded on modern concepts of openness and transparency in litigation which in the interests of cost, avoidance of delay and ultimately fairness between the parties can only be commended. What he seeks might cause little controversy in the civil procedure regime now in force in England & Wales. However, it involves a significant departure from the long established practice as regards medical experts in this jurisdiction. In my view such a change, if it is to come, cannot be introduced piecemeal but should be part of a considered, balanced and structured process of civil justice reform. In the circumstances the court should approach this application in the context of established practice in this jurisdiction and that being so I cannot accede to the defendant's application which is therefore dismissed. I will reserve the costs of the application to the trial judge and certify for counsel."

    [3]          The plaintiff is the widow of Stephen Gardiner who died aged 42 years on 9 June 2000. The cause of death was a right sided malignant pleural mesothelioma which was diagnosed in April 1999. The deceased was unemployed between 1991 and 1999. It is alleged that he was employed as a joiner by the defendants between 1975 and 1979 and was exposed to and inhaled asbestos during that time. The defendant denies that the plaintiff was ever exposed to asbestos or that he worked with asbestos while employed by them. The defendant relies also on the Limitation Order and in reply the plaintiff will seek the exercise of the court's discretion.

    [4]          In her affidavit the solicitor for the defendant asserts that the history given by or on behalf of the deceased has been either incomplete, inconsistent or unreliable. Furthermore it is said that the deceased's father, David Gardiner, a retired sheet metalworker, died on 30 December 1998 aged 78 years, from 'mesothelioma of pleura'. It is alleged that there is a strong probability that the deceased was exposed to asbestos as a young child and that some of the deceased's history of exposure has been concealed. Mesthelioma is regarded as having a long latent interval from exposure to death. According to one research series it can range from 3.5 years to 53 years with an average of 38 years. It is submitted that the deceased would have been aware of the cause of his father's death. His father also resided in Newtownards.

    [5]          The plaintiff's present solicitor caused a writ to be issued on 31 October 2002. The statement of claim was served on 7 November 2003, together with a medical report dated 26 November 2002, from Dr B MacLennan, a Consultant in Chest Medicine at the Ulster Hospital. The defendant's solicitor responded in a lengthy letter dated 19 November 2003 seeking access to the present solicitor's file, including the previous solicitor's file and correspondence, any statements made by the deceased and members of his family regarding the deceased's working life, as well as access to the medical notes and records held by his general practitioner and the hospital. The letter also requested confirmation that the plaintiff's solicitors had no medical evidence in their possession at the time of the issue of the writ of summons. If the plaintiff's solicitor did have medical evidence in his possession at that time, the defendant's solicitor contended that she was entitled to see that medical evidence. It was asserted that the defendant was prejudiced by not being able to have the deceased medically examined in his lifetime or to take a history from him. The author wrote "because we are at a severe disadvantage we would also like to think that you would allow us to question your medical witness at this stage of the case in writing". Five questions for the medical witness were set out -

    1. What are the precise words spoken by the deceased to you in relation to his working history to the best of you knowledge?

    2. On the balance of probabilities did the deceased in his lifetime give any working history which would have indicated an exposure to new asbestos or old asbestos in the course of any employment and if so identify the employment of which you were informed?

    3. Did the deceased in his lifetime give you a history of any member of his family having been exposed to asbestos and if so supply details thereof?

    4. Where you asked for or did you supply any earlier medical report prior to the 26th November 2002 to any Solicitor and if so to whom?

    5. If the deceased was born on the 23rd October 1957 and died on 9th June 2000 identify the year in which he is most likely to have been exposed to asbestos which causes (sic) his death in the year 2000.

    [6]          The plaintiff's solicitor replied on 17 December 2003 enclosing the hospital and general practitioner's notes and records. They declined access to the files or statements on the grounds of legal professional privilege. The request to submit questions to the medical witness was not answered. This drew a further letter dated 28 April 2004 requesting, inter alia, a reply to the questions posed otherwise an application for interrogatories might be made.

    The plaintiff's solicitor replied at length on 17 August 2004. In relation to Point 10 he wrote –

    "We note the questions which you would wish to pose to Dr MacLennan. As already stated, there is no legal basis upon which you are entitled to pose any questions to Dr MacLennan. If he is called as a witness you can cross-examine him. In the circumstances of this case we think you are entitled to communication with the doctor although the fact that a doctor refers to a communication with a Solicitor does not necessarily make that communication open to examination by the opposing party."
    [7]          The letter also asserted that the defendant had no right to interrogate a witness. There followed further correspondence which the Master described as "detailed and increasingly belligerent". I need not refer to all of it, as it is not strictly relevant to the issue in this appeal.

    [8]          On 14 April 2005 the defendant's solicitor wrote directly to Dr MacLennan seeking a consultation with him "about the deceased's death and his medical records and working history given to you by the deceased in his lifetime". The letter points out that there is no property in a witness and that the doctor might wish to consult his own solicitors on the propriety of the request. Dr MacLennan declined to meet with the defendant's counsel.

    [9]          On 21 April 2005 the defendant's solicitor wrote to the plaintiff's solicitor informing him of these developments and enclosing a copy of the letter sent to Dr MacLennan. The plaintiff's solicitor responded that this approach to Dr MacLennan " to say the least, was highly inappropriate. Dr MacLennan is our professional expert in this case. At the trial of this action you will have the opportunity to cross-examine him in the usual way but to approach him behind out back as you have done is something which we have never encountered before by a defendant." He also noted that he had not been informed about this until after Dr MacLennan had declined to meet with the defendant's counsel. In later correspondence the defendant's solicitor stated that she wrote to Dr MacLennan on senior counsel's direction because Dr MacLennan was regarded not as an expert witness but as a professional witness of fact who had been the deceased's doctor during his lifetime and had not been engaged as an independent expert. The plaintiff's solicitor responded that Dr MacLennan had been retained as a medical expert in the case.

    [10]          On 18 May 2005 the defendant's solicitor wrote asking whether the plaintiff's solicitor was willing for Dr MacLennan to let her know in advance of the trial "whether Doctor MacLennan was informed of the various discrepancies in this history of exposure to asbestos". The summons, the subject of this appeal, was issued on 19 May 2005.

    [11]          In her affidavit grounding the summons the defendant's solicitor set out the reasons why she considered that the defendant ought to be allowed to consult with Dr MacLennan. These are -

    (a) the defendant wishes to consult about the deceased's death and his medical records and working history given to Dr MacLennan during the deceased's lifetime;

    (b) Dr MacLennan is a witness as to fact;

    (c) Dr MacLennan was the treating doctor of the deceased;

    (d) Dr MacLennan did not produce (and apparently was not asked for) a Report until after the deceased's death;

    (e) there is no property in a witness;

    (f) Dr MacLennan is likely to possess knowledge which is relevant to both the issue of liability and quantum;

    (g) it is reasonable to infer that Dr MacLennan feels unable to consult by reason of having provided a Report to the Plaintiff's solicitors;

    (h) the interest of justice and pursuant to Article 6 ECHR would dictate that all parties including the defendant be treated fairly. In this instance, if the defendant is prevented from consulting with Dr MacLennan then the defendant will be significantly disadvantaged in the proper preparation and presentation of the defence. By the same token therefore the plaintiff will derive an advantage over the defendant in this respect;

    (i) being a witness as to fact and the deceased's treating doctor Dr MacLennan's services should be available to both sides in the case;

    (j) it is reasonable to assume that if the Plaintiff did not object to the consultation taking placed that Dr MacLennan would be more likely to agree.

    [12]          It was submitted by Mr Hill QC, who with Mr Hunt appeared on behalf of the defendant, that Dr MacLennan is not a professional witness in this case, as he was the doctor responsible for the treatment of the deceased when and after the condition was diagnosed. In those circumstances privilege cannot be claimed. It was submitted that Dr MacLennan could not be both a treating doctor and an expert witness. Mr Hill QC accepted that if Dr MacLennan was not the treating doctor the assertion of a right to consult with him was weaker.

    [13]          Miss Tara McKenna who appeared on behalf of the plaintiff accepted that it was clear that Dr MacLennan was a treating doctor, but that he had been engaged on behalf of the plaintiff as a medical expert. She submitted that he will be called at the trial and can be cross-examined by counsel on behalf of the defendant, though on the authority of McDowell v Strannix the plaintiff would resist cross-examination on the questions outlined in the correspondence. She submitted that this was a fishing exercise by the defendant who really wished to interrogate the doctor and it was contrary to all practice and procedure in this jurisdiction.

    [14]          There is no property in a witness. In Harmony Shipping Co v Saudi Europe 1979 1 WLR 1381 it was held that there is no distinction between witnesses as to fact and expert witnesses. In that case the plaintiff consulted a handwriting expert who verbally reported that certain documents were probably forgeries. Some time later the defendant consulted the same expert who expressed the same opinion. Later the expert realised that he had already advised the plaintiff and declined to appear on behalf of the defendant. The defendant issued a subpoena to secure his attendance and evidence at trial. The plaintiff sought to set aside the subpoena on the ground that the expert had already advised the plaintiff, and an injunction to restrain the defendants from consulting with him or calling him as a witness. The Court of Appeal upheld the trial judge's decision not to set a side aside the subpoena or issue the injunction. Giving the main judgment Lord Denning confirmed there was no property in a witness and that in this regard there was no distinction between a witness of fact and an expert witness, though communications between a solicitor and an expert would be protected by legal professional privilege. He made the following observations –

    "So far as witnesses of fact are concerned, the law is as plain as it can be. There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena."

    [15]          No issue as to medical confidentiality arises in the present case. Once a claim for damages is raised the right to confidentiality is superseded by the defendants right to know the case he has to meet – see Hay v University of Alberta 1991 2 Med LR 204 and the English case of AB & Oths v John Wyeth & Bros 1996 7 Med LR 300.

    [16]          In the Irish case of McGrory v ESB 2003 IESC the defendant brought a notice of motion seeking an order staying the proceedings until such time as the plaintiff consented to allowing his medical advisers to consult with the defendant's medical advisers. In the High Court Johnson J refused the application on the basis that no authority was cited to him permitting him to make such an order. On appeal to the Supreme Court the appeal was allowed and the action stayed on the terms as sought in the notice of motion. Giving the judgment of the court Keane CJ reviewed various authorities in other common law jurisdictions, including McDowell v Strannix 1951 NI 57 and Ross v Tower Upholstery Ltd 1962 NI 3, and concluded that the court had an inherent jurisdiction to grant a stay where justice so required. This included cases where a plaintiff refused to submit to medical examination or to disclose his medical records or to permit the defendant to interview his treating doctors. Keane CJ said –

    "The law must be in a position to ensure that he [the plaintiff] does not unfairly and unreasonably impede the defendant in the preparation of his defence by refusing to consent to a medical examination. Similarly, the court must be able to ensure that the defendant has access to any relevant medical records and to obtain from the treating doctors any information they may have relevant to the plaintiff's medical condition, although the plaintiff cannot be required to disclose medical reports in respect of which he is entitled to claim legal professional privilege.
    In the present case, the fact that it would be possible for the defendants to obtain the x-ray and test results which Mr Pidgeon wishes to see by means of the process of discovery does not entitle the plaintiff to withhold them from the defendant at this stage. There is no room today in properly conducted litigation for an approach which denies one side access to relevant material which in any event will be available at a later stage of the proceedings. That was the view taken in the authorities in other jurisdictions to which I have already referred and I have no doubt that it accords with fairness and common sense. ………
    Once proceedings have been instituted, such an examination and full access to the plaintiff's medical records and interview with his medical advisers are of assistance in enabling the defendants to form a view as to the amount of damages which the plaintiff is likely to recover and of any lodgement which they should prudently make in court with their defence. Whether or not liability is a live issue in the case, making such material available to the defendant at an early stage of the litigation, instead of withholding it until the action itself, when it will have to produced, can only facilitate the earlier settlement of actions."

    [17]          I agree with the sentiments expressed in those passages. A defendant is entitled to request a consultation with a plaintiff's treating doctor. The fact that a treating doctor may also be a medical expert witness cannot be used to shield a treating doctor from a properly constituted request to consult. The question then is – to consult about what? The authorities to which I have referred confine the requests to consult about relevant medical records and information relevant to the plaintiff's medical condition. Does the right extend beyond that?

    [18]          In McDowell v Strannix, supra, the plaintiff's advisers refused to allow a medical examination unless the defendant agreed that their medical adviser would not ask the plaintiff how the accident occurred and would not give evidence at the trial of any statements made by the plaintiff relating to that issue. The defendant rejected those terms. The plaintiff modified the terms and agreed to the medical examination providing the defendants agreed that the evidence of the doctor would be confined to the question of damages and that no evidence would be given of any statement made by the plaintiff to the doctor relating to the issue of liability. These terms were also rejected by the defendant, who moved to stay the proceedings until such time as the plaintiff submitted unconditionally to a medical examination. The motion was dismissed. Sheil (C ) J was of the view that the terms were both proper and reasonable, but that it would be wrong in principle for a doctor, acting on behalf of a defendant, to elicit information relating to matters concerning liability. In effect Sheil (C ) J held that the examination by the defendant's medical witness should be confined to medical issues relating to quantum. In this regard see also Haywood v Ritchie & Oths unreported.

    [19]          In Tate v Cyril Lord (Carpets) Limited 1969 NI 229 the plaintiff alleged he had sustained an eye injury. The defendants brought a motion for an order staying the proceedings until the plaintiff produced documents relating to the pre-accident and post-accident condition of his eyesight, the treatment he had received, details of operations undergone and the precise nature and the results of the injury alleged to have been sustained. An ophthalmic surgeon engaged on behalf of the defendants deposed it would be impossible to provide a meaningful report for the defendant without them. McGonigal J declined to exercise his discretion to stay the proceedings. He suggested there were other steps open to the defendants within the rules of procedure. At page 241 he said –

    "If such documents exist they may relate to many things, some relevant to the eye condition, some not, and unlike an application for discovery …the authority here sought is a blanket authority directed to a third party to produce all such documents however great or small their relevance and irrespective of what other information as to the plaintiff's health or other matter they may contain….I do not think a plaintiff should be asked to give such an authority. In my opinion it would be contrary to justice to do so."

    [20]          These authorities suggest that meetings with medical experts should be confined to their areas of expertise and not wide ranging into, for example, areas of liability. They suggest that relevancy is the cornerstone of requests for information from medical witnesses.

    [21]          If a request for consultation with a treating doctor is made by a defendant, whose decision is it as to whether a consultation should take place? It cannot be the plaintiff's legal advisers, if the request is both proper and reasonable. It must lie ultimately with the doctor. If he refuses then the court will require to consider the grounds on which the request for consultation is made and the reasons for its refusal. If a meeting does take place who decides what is relevant or otherwise. It seems to me that such meetings are liable to be fraught with difficulties. There will always be areas of legal privilege at least relating to communications with the solicitor who has engaged the medical expert. Should that solicitor attend as was envisaged by Sheil (C ) J in McDowell v Strannix. The preferable course is probably to conduct the exercise through correspondence as was initiated by the defendant's solicitor in the instant case.

    [22]          There is no evidence before me that the plaintiff's legal advisers have prevented Dr MacLennan from agreeing to a consultation, though that may be the reality. It seems apparent that the plaintiff's legal advisers are not consenting to a consultation. It is the doctor's decision whether he agrees to do so or not or to answer questions through correspondence or not, though he is entitled to legal advice as to which course he should take. Much may depend on the reasons for the consultation. A defendant seeking such a consultation should give notice in writing of the issues about which they wish to consult, so that an informed decision can be made. As I have indicated such a consultation should not be open-ended.

    [23]          In this case the defendants have set out in correspondence the five questions about which they seek information. None of them relate directly to the medical condition of the deceased, his medical records or, more critically, his treatment. Question 5 is probably a question relating to the area of expertise of the witness and could not be asked. Question 4 is irrelevant. Questions 1 – 3 probably relate to the limitation issue. Could the doctor be asked about these matters in cross-examination? He is in a different position from a pure medical expert. He was the treating doctor, but the questions bear little, if at all, on the treatment of the deceased. In the absence of argument on the point I would not be prepared to express a conclusive opinion whether the doctor could be asked about all of these matters in cross-examination at the trial. If he could, should the defendants be deprived of the answers and the information at this time, when they will be able to obtain them at a later date, at the trial. It seems an unnecessary waste of time to require the defendant to wait until then. The answers could have a significant bearing on the future progress of the case and the first three questions probably arose at a time when the deceased was undergoing a course of treatment. On balance however, I consider a treating medical witness should not be so restrictively constrained and that the first three questions raised, if they could be asked at trial, could be asked and answered at a consultation or in correspondence with the defendant. Ultimately, the decision whether to agree to a consultation or not, or to answer questions in correspondence, lies exclusively with the doctor. The plaintiff's legal advisers cannot prevent it nor can they advise against it.

    [24]          I turn now to the summons issued on behalf of the defendant. It seeks a stay until such time as the plaintiff consents and takes steps to encourage Dr MacLennan to consult with and be interviewed by and on behalf of the defendant. There is no difficulty with the question of the plaintiff's consent. However I do not consider this court should make an order dependent on the plaintiff taking steps to encourage a doctor to consult with legal advisers. I envisage there would be great difficulty enforcing such an order and courts should not make orders that are incapable of enforcement. In any event it is the doctor's decision and he will have the benefit of this judgment and legal advice, on which to decide his course of action. His ultimate duty is to the court and to provide impartial and accurate evidence.

    [25]          Therefore, in all the circumstances, I decline to grant a stay of the action based on the summons and the questions before the court and leave to Dr MacLennan's good judgement whether and, if so, in what circumstances he will deal with the defendant's request.

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