Scottish Court of Session Decisions

[1] On 30 October 2001 I heard a motion in this case, as one of at least four opposed motions with which I dealt prior to the main business of the day. The hearing of the motion lasted a few minutes, and I took only rudimentary notes. On 12 November I began a period of work overseas. On my return, on 3 December, I was advised that the pursuer had on 16 November enrolled a reclaiming motion against my interlocutor of 30 October. I no longer have a complete recollection of the hearing on that date. In these circumstances I regret that I am unable to provide your Lordships with as full an account of the submissions which I heard as might have been possible if the reclaiming motion had been enrolled earlier.

[2] Your Lordships will see that this is an action of damages for personal injuries, brought under the Optional Procedure. The accident averred by the pursuer is straightforward: he was standing on the chassis of a lorry, in order to clean the wheels with a hose, when he was blown off by a gust of wind. In response, the defenders deny that such an accident occurred, but on an esto basis contend that the accident was caused by the sole fault or contributory negligence of the pursuer. The pursuer's averments of loss are also reasonably straightforward: he maintains that he sustained a serious injury to his knee, and that he also developed a psychological disorder of a depressive nature as a consequence of his physical disabilities. He avers that he has been off work (as a lorry driver) since August 1998, that his HGV licence has been revoked, and that "he is unlikely ever to be fit for gainful employment in the foreseeable future". The defences do not raise any separate issue as to the pursuer's loss.

[3] The motion which came before me on 30 October was in the following terms:

The motion was marked as opposed so far as relating to the certification of witnesses. It was not marked as requiring 10 minutes or more duration.

[4] Addressing me on behalf of the defenders, Mr Clarke referred me first to Rule of Court 42.13, governing the certification of witnesses. Mr Clarke said that there was no opposition to the certification of Mr Weir and Dr Chiswick. The certification of Mr Carlisle and Mr Davies was however opposed. As I have mentioned, my notes of Mr Clarke's submissions are rudimentary. Mr Clarke drew to my attention the fact that the case had been brought under the Optional Procedure. Reference was made to Rule of Court 43.27:

Mr Clarke said that the diet of proof had been fixed for 13 November. Mr Clarke made a submission to the effect that the pursuer had not complied with Rule 43.27(1) in respect of Mr Carlisle's report, and therefore could not call Mr Carlisle as a witness "except on special cause shown". A letter from Mr Carlisle to the pursuer's agents dated 10 October 2001 had been lodged on 15 October, but the letter did not disclose the substance of Mr Carlisle's evidence. So far as Mr Davies was concerned, a report had been lodged on 16 October. Mr Clarke made a submission to the effect that Mr Davies's report contained little that added to the evidence available from other sources. Insofar as it contained additional material (concerning, in particular, the possibility of the pursuer's undertaking light work at a reduced level of earnings), that material had no basis in the pursuer's pleadings. Mr Clarke also drew to my attention the terms of Rule 43.27(3).

[5] Addressing me on behalf of the pursuer, Mr Milligan began by dealing with the position of Mr Carlisle. The difficulty in settling the case had arisen from the circumstances described in the first paragraph of Mr Carlisle's report. The pursuer had not worked for most of the period since the accident, but he remained on the defenders' payroll. He had not yet lost pension rights, but he might well suffer such a loss in the future. Mr Milligan's submission was to the effect that the report which had been lodged complied with Rule 43.27(1) so far as compliance was possible in the case of Mr Carlisle. So far as Mr Davies was concerned, Mr Milligan made a submission to the effect that the issues in dispute between the parties went beyond those raised in the pleadings. So far as Rule 43.27(3) was concerned, Mr Milligan made a submission to the effect that that paragraph entitled the pursuer to one medical expert witness and one non-medical expert witness, before cause had to be shown for allowing additional witnesses. If the court was persuaded that cause existed for allowing Mr Carlisle, then the pursuer could select Mr Davies as the non-medical expert witness to whom the pursuer was entitled as of right.

[6] I decided to certify Mr Carlisle (as well as Mr Weir and Dr Chiswick), but not Mr Davies. My decision was made on the basis of the submissions and a broad impression of the case: given the nature and length of the hearing, I did not undertake a detailed examination of the case.

[7] So far as Mr Carlisle was concerned, it appeared to me that the pursuer had complied with Rule 43.27(1) so far as was practicable, in broad terms at least. I was therefore not persuaded that Rule 43.27(2) was applicable. There remained Rule 43.27(3), which I discuss below.

[8] So far as Mr Davies was concerned, there had (as far as I recollect) been little if any attempt to persuade me that his report disclosed significant expert opinion evidence concerning the issues raised on Record. My own impression, from a cursory reading of his report, was that there was very little in it which would be of material assistance to the court or which would add to the information (e.g. a calculation of loss of earnings) which would normally be provided by counsel on the basis of their own examination of the wages records. The pursuer's averments concerning employment and loss of earnings are in the following terms:

The medical position was vouched by the reports by Mr Weir and Dr Chiswick. The loss of earnings was vouched by the pursuer's wages records covering the period from 30 October 1997 to 15 March 2001. Those records included those covering a period when the pursuer had worked on light duties. The pursuer had also lodged details of the pay increases which he would have received had he remained in the same employment with the defenders between April 1999 and September 2001. On the basis of that information, it seemed to me that it would be possible (and, indeed, usual) for counsel and the court to estimate the pursuer's actual earnings, the earnings which he would have received if he had continued working as a lorry drive, and the earnings which he would have received if he had worked on light duties; and that it would also be possible to assess whether any of these, or some intermediate position, was the most appropriate basis for calculating the pursuer's past and future loss of earnings resulting from the accident. I was accordingly sceptical of the value of Mr Davies's report, and my inclination was not to encourage the proliferation of expert witnesses of doubtful value, particularly in cases brought under the Optional Procedure.

[9] Rule 43.27(3) did not appear to me to be relevant. Mr Milligan had construed the paragraph as entitling the pursuer to lead two expert witnesses, one medical and one non-medical, but requiring cause to be shown for adducing additional expert witnesses. I was not persuaded that that construction was correct; nor was I attracted to an interpretation which would have the paradoxical result for which Mr Milligan contended (i.e. if the pursuer wished to lead two non-medical experts, he should try to justify the leading of both witnesses to the court, on the basis that if the court accepted that cause existed for leading one of the witnesses, he could then fall back on an entitlement to lead the witness for whom the weaker justification existed). It seemed to me that the purpose of Rule 43.27(3) was simply to avoid the unnecessary duplication of expert evidence within a particular field of expertise: the words "one expert of any other kind" meant that only one expert witness from within any other particular field of expertise could be called (in the absence of cause shown), not that only one non-medical expert witness could be called. Although I was not referred to any authority, I understand my interpretation of paragraph (3) to be in accordance with that of the Extra Division in Matheson v Press Offshore Ltd, 1992 S.L.T. 288 at page 291.

[10] Quite apart from any speciality of the rules governing Optional Procedure, however, in terms of Rule of Court 42.13(2) a witness can only be certified "where it was necessary to employ a skilled person...". I was not persuaded, on the basis of a broad impression of the case and of the significance of Mr Davies's evidence, that it was necessary to employ Mr Davies. I therefore refused the motion so far as relating to the certification of Mr Davies, but allowed it so far as relating to the three other expert witnesses.