Scottish Court of Session Decisions

This was an action of damages for £2000 at the instance of Robert Hunter Craig, a produce merchant in Glaegow, against the North British Railway Company, on account of personal injuries alleged to have been sustained by him in a collision between a passenger train on their line running between Kilsyth and Glasgow and a mineral train which was standing at Bishop-briggs Station.

He averred that owing to the shock he had sustained he had been “obliged to abstain entirely from business for several weeks, and for several weeks thereafter was able to attend only partially to business.” He further averred that “in consequence of the injury he sustained he had been put to considerable expense, and owing to his inability to attend to business he had further sustained serious loss and damage therein.”

The Lord Ordinary ( Lee) closed the record, and adjusted an issue. Notice of trial was given for the Summer Sittings.

The defenders then moved the Second Division of the Court for a diligence and commission for the examination of havers and recovery of the writings contained in the following specification—“All the business books, cash books, ledgers, balance-sheets, statements of profit, accounts, receipts for payment of income-tax, and all other books and documents kept by or for the pursuer, or by or for any firm of which he has been or is a partner during the last four years, in order that excerpts may be taken therefrom of all entries showing or tending to show the pursuer's income from his business during these years.”

The pursuer's counsel opposed the motion, submitting that as the pursuer only averred that he had been incapacitated from business for several weeks after the accident, it was unreasonable to force him to disclose the state of his business for so long a period as four years. The defenders, however, were quite entitled to see his books with reference to all his transactions during the period named in his record.

The defender's counsel replied that the diligence now craved was the usual one given in such cases. The matter was of vital importance to railway companies. The pursuer here sued for a slump sum of £2000. How was it possible to ascertain the true profits of the business for which he said he had been incapacitated through the defender's fault, in order to assess his damages, unless the defenders were allowed access to his books? The state of his books for the last four years would enable an average to be struck for these damages in the event of his being awarded them. In order to have a basis of fact on which to found cross examination at the trial it was necessary that the diligence craved should be granted.

At advising—