Scottish Court of Session Decisions

The claim before us arises out of an accident which took place on the Glasgow tramway system in the month of November last. The case is set down for trial at the ensuing sittings, and recently the pursuer obtained a commission and diligence for the recovery of, inter alia, a report made to the Corporation of Glasgow by the driver of the tramway car. The defenders objected to produce the report on the ground of confidentiality, and they point out that it bears upon its face to be “for the use of the Corporation's solicitors to enable them to defend should litigation ensue.” Accordingly they contend that this report is not recoverable, inasmuch as it falls within the category described by Lord Low in the Portsoy case, 1900, 8 S.L.T. 38, as a communication “made after the owners had resolved to take or contemplated taking action.”

I am of opinion that this is not so, and that the report before us falls within the category of recoverable reports which were described by Lord Low in the Portsoy case thus—“A statement made for the information of the owners,” or employers, “by their responsible officer while the occurrence is fresh in his memory, presumably made for no other purpose than to put the owners in possession of the true facts.”

Now the report before us is none the less recoverable, it appears to me, because it bears the words which I have just read across its face. These words cannot alter the character of the report which is made by the employee for the purpose of informing his employers of the accident, and made at the time. There was no claim made and no claim was threatened, and there was no litigation in contemplation at the time when this report was made and was received; and I for my part decline to believe that the Corporation of Glasgow are so lax in the administration of their great tramway system as not to insist upon a report from the responsible officer—from the official in charge of the tramway car—when an accident occurs.

My view of the meaning of Lord Low's words which I have just read is in conformity with the interpretation put upon them by Lord President Dunedin in the case of the Admiralty v. Aberdeen Steam Trawling and Fishing Company, Limited, 1909 S.C. 335, 46 S.L.R. 254, where he says—“I think the practice which has grown up of allowing reports in these circumstances to be recovered in the case of collisions is a right one, and I think that the distinction taken by Lord Low in the case quoted”—the Portsoy case—“is also a proper one, namely, that while reports written shortly after the collision may be recovered, you cannot recover anything that has passed between the owners and any of their servants post litem motam. I do not mean,” Lord Dunedin adds, “merely after the summons has been raised, but after it is apparent that there is going to be a litigious contention between the parties,”

Now at the time when this report was issued and was received it was not apparent that there was going to be a litigious contention between the parties. No doubt if and when litigation ensued this report would be valuable information in the hands of the defenders' solicitors to enable them to consider the question of the probable success or failure of the action, and to enable them to get up the evidence necessary for the defence if defence was resolved upon. But, inasmuch as there was no litigation then threatened or mooted, it appears to me that the report must be regarded exactly as a report made by the servant for the purpose of informing his master of the accident at a time when the occurrence was fresh in the servant's memory.

It is right I should say that no argument was addressed to us by the Dean of Faculty to the effect that while some parts of this report might be recovered other parts might not. He did not ask us to pick and choose. His contention was directed against the recovering of the whole report, and quite properly so, for it is obvious that the distinction between recoverable and irrecoverable reports, based upon the question whether there was amplitude or scantiness in the information given in the report, would be impossible of application. That is a criterion which has never been suggested, and which it is obvious never could be applied.

I ought further to add that I entirely agree with what Lord Mackenzie said in his opinion in Macphee v. City of Glasgow, that nothing in the way of precognition can be recovered, and if this report had contained in it or appended to it statements taken by the official of the evidence to be given, if necessary, by bystanders or witnesses of the accident we would not allow that to be recovered. We would before the report was handed to the pursuer have directed that that should be struck out. No such question arises here, and I am therefore for granting the motion made by the pursuer.

Lord Johnston—This objection is intended to raise over again, and on a wider view, the question which we decided so recently as 30th June last, in the case of Macphee, supra, p. 772, against the same defenders. In that case all that was in issue was the right of the pursuers to recover a list of names of persons, present on the occasion of an accident, taken at the time by one of the defenders' employees. No objection being taken otherwise to the production of the report in which that list was embodied, we held that the defenders could not make any exception of that part of the report which consisted of this list of names.

In the present case the defenders take I higher ground, and refuse altogether to

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