Scottish Court of Session Decisions

Pollock v. Thomson, [2003] ScotCS 10 (21 January 2003)

OUTER HOUSE, COURT OF SESSION
A5616/01	NOTE BY LORD WHEATLEY in the cause MARTHA POLLOCK Pursuer; against ROBERT THOMSON Defender: ________________

Pursuer: Forsyth; Anderson Strathern, W.S.

Defender: Crawford; Simpson & Marwick, W.S.

21 January 2003

1. In this action the pursuer seeks damages for injuries which she suffered following a road accident on 7 January 1999. In brief, the car which the pursuer was driving was stationary in traffic when it was hit from behind by the defender's vehicle. A claim was instructed on the pursuer's behalf on 2 February 2000. The defender's insurers intimated that liability was not an issue sometime later in that year.
2. The present action was raised in December 2001. There were no medical or other reports lodged by the pursuer with the summons. In the course of debate on the present motion, which is for interim damages, selected excerpts from the correspondence between the parties' agents were referred to. I was advised that in early 2002 the pursuer's agents intimated their list of expert witnesses to the defenders. This contained the names of six specialists who had prepared reports. Then on 23 January 2002 the defender called on the pursuer to exhibit the reports on which they intended to rely in the course of the case. These reports were not lodged until 27 November 2002. On 12 December 2002 the present motion for interim damages was heard.
3. In support of his motion for interim damages of £100,000 counsel for the pursuer relied in essence on the contents of these various reports. For present purposes it is unnecessary to describe the full range of injuries and other consequences which the pursuer claims that she has suffered as a result of the accident. It is perhaps of interest to note only that the immediate injuries suffered by the pursuer in the accident consisted of soft tissue injury to her neck, back and coccyx. Thereafter it is said that the pursuer suffered a supervening psychiatric disorder as a consequence of these injuries, which led to a continuation of pain in those areas where the soft tissue damage originally occurred. This depressive disorder and her pain symptoms currently reinforce and exacerbate each other. She has required to give up work. In these circumstances the pursuer's counsel presented a schedule of damages which describes claims under conventional heads, including solatium, past and future loss of earnings, pension loss and services amounting in total to £507,615. It is unnecessary to comment on this valuation other than to say that if all of the pursuer's complaints and claims are proved in the measure and degree suggested by her complaints and the various reports now lodged, the total sum mentioned in the schedule is within the range of awards that might be made. In these circumstances, pursuer's counsel argued that the sums sought as interim damages was a moderate and reasonable portion of the sum that was likely finally to be awarded. In this respect he referred to Rule of Court 43.93 and the opinion of Lord Clyde in the case of Nisbet v The Marley Roof Tile Co Ltd 1988 SLT 608. Having regard to Lord Clyde's view that in motions of this sort a conservative and moderate approach is appropriate, it is clear that in the present case a substantial award might have been considered in view of the defender's admission of liability, had no other considerations intervened.
4. However, in my view the submissions tendered by the defender requires that the pursuer's claim for interim damages must be severely qualified. In terms of Rule of Court 43.31, at any time up to and including the calling of the summons, the pursuer require to lodge as productions all medical reports then available and in his possession and control on which he intends, or intends to reserve the right to rely on in the action. The bulk of the medical and other reports referred to by the pursuer in support of her motion for interim damages predate the lodging of the summons, and clearly were in the possession of her agents prior to that time. However, they were not lodged with the summons in term of the Rule of Court. They were only lodged in process on 27 November 2002, some two weeks prior to the hearing of the motion. The importance of this history in the present case is that these reports reveal, on the face of matters for the first time, that the pursuer had a significant pre-accident history of both back pain and psychological problems. It is also of note that the pursuer appears to have denied the existence of such problems in the course of providing her medical history in at least two of the reports tendered on her behalf. The defender has therefore now lodged a minute of amendment to the effect that these pre-existing conditions may seriously limit the extent of the damages to which the pursuer is entitled. Reference was made to the opinion of Lord Cullen (as he then was) in the case of Duffy v Lanarkshire Health Board 1995 SLT 1312. Accordingly the defender maintains that there is now a real issue in the case which did not exist before about the measure of the of damages contained in the pursuer's claim. Accordingly, defender's counsel argued, adopting the moderate and conservative approach suggested by Lord Clyde in the case of Nisbet v Marley Roof Tile Co Ltd, any award of interim damages could only be considered in terms of the undisputed injuries which the pursuer suffered as a result of the accident. These in effect amounted to the original soft tissue injury to the neck, back and coccyx which defender's counsel submitted would in normal circumstances have cleared up in about six months and which at most would lead to an award of solatium of £5,000.
5. I find myself in agreement with the submissions of the defender's counsel. The pursuer's counsel argued that the names of the expert witnesses had been supplied at an early stage and that the defender could have obtained the reports by enrolling a motion for their production in terms of Rule of Court 43.31(2). While that may be true, the Rule of Court clearly imposes a primary duty on the pursuer to lodge the medical reports on which she intends to reply with the summons, and in my view she must accept the consequences if she fails to observe that Rule. The power given in the Rules to the defender to enrol for production of the medical reports is permissive only, and the purpose and framework of the Rules is clearly not intended to impose any duty upon the defender in this respect. Counsel on both sides of bar also made reference to excerpts from the correspondence between the parties' agents which, it was claimed, supported their respective positions. While this exercise is frequently undertaken in the course of various kinds of motion, the results are usually at best ambiguous and unsatisfactory, and often frustrating and pointless. In the present case, nothing said in respect of this correspondence indicated that any satisfactory explanation or justification could be offered as to why the medical reports in the possession of the pursuer's agents at the time the summons called were not lodged. The defender is therefore fully entitled to claim that these reports, when lodged, indicated for the first time a substantive qualification of the pursuer's case as pled on record. Had the medical reports been lodged with the summons, and had the defender become aware of the pursuer's pre- accident physical and physiological problems, it may be that any outstanding issues between the parties could have been resolved at an earlier stage. Further, the defender would have been in a position to instruct competing reports, if so advised. In the event, it is abundantly clear that had the reports in fact been lodged with the summons, then the defender would have inevitably have put on record a detailed response to the pursuer's claim for damages. In terms of the authorities above cited, where such a dispute appears on the face of the pleadings, the correct approach in a motion for interim damages can only be to award a sum which is not greater than that which reflects the agreed position on the consequences of the accident, following an admission of liability.
6. Accordingly in all the circumstances I am prepared to make an award of £5,000 as interim damages to the pursuer at this stage.