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Cite as: [2004] ScotCS 177
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Lamont v Fallon [2004] ScotCS 177 (13 July 2004)
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OUTER HOUSE, COURT OF SESSION |
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A2784/02 A2777/02
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OPINION OF LADY SMITH in the cause EAMONN FALLON (AP) Pursuer; against DENISE LAMONT (qua next of kin of the late ANDREW LAMONT) Defender: and CHRISTINE ANN FALLON (AP) Pursuer; against DENISE LAMONT (qua next of kin of the late ANDREW LAMONT) Defender:
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Pursuers: McEachran, Q.C., Gardiner; Thompsons
Defender: Hanretty, Q.C., Thomson; HBM Sayers
13 July 2004
Introduction:
[1] The pursuers are spouses and were both injured in a road traffic accident which occurred on 7 May 2000. Mr Fallon sustained a fractured sternum, a fracture to the posterior wall of the acetabulum of his right hip and fractures in both feet. He was left with continuing pain in his hip and feet, particularly in his right foot. Mrs Fallon sustained lacerations and an ankle fracture but most significant was an injury to her lower back, which accelerated the onset of symptoms which, due to previous injury, she was likely to have suffered at a future date in any event. Both pursuers spent some time in hospital after the accident and then continued to recover at home. They were in business together prior to the accident but neither have worked since. [2] The cases came before me for proof and Mr Fallon gave evidence. They were settled thereafter by way of the pursuers accepting minutes of tender which had been lodged prior to the proof. In moving for decree in terms of the minutes of tender and acceptance, senior counsel for the pursuers sought certification in respect of a witness on the pursuers' list, Ailish McCarron, under and in terms of Rule of Court 42.13. As is stated in the first section of her reports (nos. 6/15 in Mr Fallon's process and 6/9 in Mrs Fallon's process) she had been instructed at the beginning of 2003 "to undertake an assessment of the pursuers' care needs in terms of (i) past care services rendered, and (ii) future care service requirements". The motion was opposed.Submissions for pursuers:
[3] In support of the motion, senior counsel for the pursuers submitted that certification should be granted as sought because the witness was clearly a skilled person and it was necessary to instruct her. As regards her skills, he referred to the description of her qualifications and experience that appears in the reports. As regards necessity, he submitted that these were cases where two people were badly injured and the claim for services was bound to be a significant one. At the time that the reports were instructed, a practice had built up of solicitors instructing such experts in such cases and their reports were of assistance to the court and in assisting with negotiation. Under reference to the question of whether the reports were necessary when the pursuers and those who had provided the services could give evidence regarding what had been done, when and for how long, it was stated that the practice at the time the reports were instructed was that an independent assessment of how much care had been provided, was instructed. That assessment would then form an adminicle of evidence of which the court might or might not take account. This was a case where a pursuer, Mr Fallon, was apt to understate his difficulties and so it was valuable to have had someone see him and discuss services with him, in his own home. It was stressed that such reports were very useful in that they set out the breakdown of a pursuer's services claim. Reference was made to Forsyth's Curator Bonis v Govan Shipbuilders Ltd 1988 S.L.T. 321 in support of the submission that the court had indicated on previous occasions that these reports are very helpful.Submissions for defenders:
[4] In opposing the motion, senior counsel for the defenders submitted that the instruction of the reports was not necessary. In particular, it was not necessary to instruct a skilled person to carry out the assessments that they contained. Matters had moved on since sections 8 and 9 of the Administration of Justice Act 1982 were first introduced. Certainly, the habit had been formed of instructing reports such as those prepared for these cases by Ailish McCarron in many personal injury litigations. That was not, however, to say that it was always necessary to do so. Whilst such instruction would be justified in cases involving likely disputes as to the type or level of services and equipment required or involving the likelihood of there being unidentified need these reports were not needed in all cases. In many cases, what was happening was that the author of the care report was, in effect, carrying out a precognition exercise and then arithmetically applying rates which were readily ascertainable, to the facts as they understood them to be. There was, in such an exercise, no application of skill. No expert opinion was being formed. Reference was made to the opinion of Lord Brodie in the case of Donnelly v FAS Products Ltd unrepd 19 March 2004 and the criticisms contained in it of the use of expert evidence in support of a straightforward services claim.Certification of skilled witnesses:
[5] Rule of Court 42.13, insofar as relevant to the present motion, is in the following terms:"(2) Subject to paragraph (3), where it was necessary to employ a skilled person to make investigations in order to qualify him to give evidence in a prospective proof or jury trial, charges for such investigations ... shall be allowed in addition to the ordinary witness fees of any such person at such rate which the Auditor shall determine is fair and reasonable ...
(3) The Auditor may make no determination under paragraph (2) ... unless the court has, on granting a motion made for the purpose, before or at the time at which it awarded expenses or on a motion enrolled at any time thereafter but before the diet of taxation -
- certified that the witness was a skilled witness; and
- recorded the name of that witness in the interlocutor pronounced by the court."
Normally, the witness fees recoverable in a party and party account do not extend beyond the standard fee for attendance at court to give evidence. The rationale behind the rule would appear to be that it is recognised that there are cases where determination of the issues between the parties requires the court to have an understanding of scientific, technical or other similar matters which are not within judicial knowledge and, that being so, it is appropriate to seek to persuade the court to accept an opinion that has been formed by someone who has and uses such knowledge in the course of their normal work. In Dickson's Treatise on the Law of Evidence in Scotland (3rd edition) at paragraph 397, it was put this way:
"Another exception to the general rule against examining witnesses on matters of opinion, occurs wherever the issue involves scientific knowledge, or acquaintance with the rules of any trade, manufacture or business with which men of ordinary intelligence are not likely to be familiar ... A foundation for such an examination must always be laid by ascertaining whether the witness is a person of skill or an 'expert' (the English term), under which is included those who have a theoretical acquaintance with the subject, as well as men who speak from practical knowledge."
Clearly, if such a person is to give evidence, they will require to carry out preparations to do so. Those preparations can be onerous and time consuming and will usually involve the preparation by them of a report containing details of their investigations, findings and opinions. Their preparations will involve the application by them of their special knowledge and skill, whatever it is. That can be contrasted with the ordinary witness whose preparation for proof is not likely to go beyond making themselves available for precognition as to matters of fact. It is clearly appropriate that, in a case where the services of a skilled witness are required, the fee recoverable should not be restricted to the standard one for attendance at court. However, it is equally clear from reading the rule as a whole, that it is not appropriate to certify a witness as a skilled witness unless (a) it was necessary to instruct that witness, (b) he was a person of relevant skill and (c) he made investigations in order to qualify himself to give evidence.
Discussion:
[6] As abovenoted, Ailish McCarron was instructed to assess Mr and Mrs Fallon's needs in terms of past services rendered and future services required. That was against a background of claims having been made in both cases, under and in terms of section 8 of the Administration of Justice Act 1982. That section provides:" - (1) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith."
Claims were also made for expenses directly incurred by the pursuers.
[7] The relevant averments in Mr Fallon's case were as follows:"... the pursuer has been rendered necessary services by members of his family. Inter alia, he cannot put his own shoes and socks on. Further details will be produced. The pursuer also claims for clothing worn at the time of the accident which had to be cut off, in the figure of £344.50. Furthermore he needed shorts and t-shirts and an electric razor at a cost of £117. He had to buy trainers and trainer boots because of swelling in his ankles at a cost of £280. The pursuer's family incurred costs for travelling to visit him in hospital. He has required to wear special trousers because of swelling in his leg. He has required to pay for prescriptions and also he has required to provide a recliner, a three seater settee and a high back chair so that he and his wife can sit comfortably. These cost some £2,300. The pursuer had to purchase a mower to keep the garden in control for the sum of £644. Reference is made to the McCarron/Hanson Report of March 2003 and a letter from Mrs Fallon of 8th October 2003."
"... the pursuer has been rendered necessary services by members of her family. Her daughter does most of the pursuer's shopping as she is unable to carry heavy loads. Her daughter requires to assist her with household tasks such as ironing, cleaning and cooking as the pursuer is unable to stand for more than short periods. She cannot bend down and needs assistance in putting on socks and in getting in and out of the bath. Reference is made to the Administration of Justice Act 1982, Sections 8 and 9 thereof. Reference is made to the care assessment report on the pursuer by Ailish McCarron dated March 2003. The Section 8 past care claim to February 2003 is reasonably assessed at £7442 and is ongoing from the said date at the rate of £5042 p.a."
It is, accordingly, readily apparent that the services claims in these cases were straightforward and without complexity. In evidence, as regards services, Mr Fallon said that his daughter had helped him to put on his shoes and socks initially and that she continued to put cooling lotion and frozen peas on his feet two or three times per week, as they tended to get very hot. Also, he said that after the accident his daughter did all the domestic work and helped her mother. His daughter was a sixteen year old schoolgirl at the time. He said that Ailish McCarron had visited them at home to see how they lived, what they wanted and what they needed. She had not asked them to break down how many hours help they had been receiving each day. He also explained that they had bought a new suite of furniture which was higher and less hard than their existing one, that they had bought a new mower, and that they had installed a shower. As regards clothing, he explained that his foot size had increased and he now had to buy larger trainers. However, there was no change in the type of clothing that he bought.
[9] Mrs Fallon did not give evidence as her case settled prior to her doing so. [10] The pleadings and Mr Fallon's evidence together confirm the picture of straightforward claims under Section 8 of the Administration of Justice Act 1982 and for reimbursement of expenses incurred as a result of the injuries sustained. The factual basis for the Section 8 claim was that the pursuers' daughter had provided personal services and domestic services for both her parents. To establish the entitlement to reasonable remuneration under Section 8, the pursuers would first have needed to prove the hours spent, the nature of the services provided and what would have been a reasonable commercial rate for such services, if they had had to be purchased. The primary sources of such evidence would have been the oral evidence of Mr Fallon, Mrs Fallon, and their daughter and a document containing appropriate rates such as those that are published regularly by the BNA. I was told by senior counsel for the defender that there would have been no difficulty in agreeing such rates and I have no reason to doubt the correctness of that assertion. Once those facts had been established, then the pursuers would have been in a position to make submissions as to the reasonableness of affording their daughter remuneration for the services provided. [11] The court would not, of course, have been bound to accept that it was reasonable to remunerate the daughter for everything done by her or to do so at the rate set out in the commercial tables. The view might, for instance, have been taken that since Mr Fallon only needed help with shoes and socks for a limited period, it was not necessary for his daughter to put lotion on his feet thereafter. If he no longer needed help with his shoes and socks then he could, presumably, reach his own feet and so he could have applied the lotion himself. No doubt his daughter helped him out of a perfectly laudable sense of loving care for her father but not all such acts are "necessary services" for which it is appropriate to provide remuneration; that particular matter does appear to have been an example of a services claim being stretched beyond what was ever intended by the legislation, something which occurs all too often. No doubt there would have been debate at the stage of submission but the views of an expert witness would not have assisted in the resolution of the issue. [12] To establish the pursuers' entitlement to reimbursement of expenditure, they would have required to prove that the expense had been incurred and that the need to incur it arose because of their injuries. The primary sources of that evidence would, again, have been the oral evidence of the pursuers and their daughter and documents vouching the expenditure such as receipts. Expert evidence as to the fact of having incurred expenditure or entitlement to reimbursement would not have been required nor, indeed, would it have been of any assistance. [13] The argument advanced on behalf of the pursuers ultimately had two aspects to it. One was that it was important that someone had seen the pursuers in their own home and the other was that, at the time that the reports were instructed, it was normal for an independent assessment of the hours spent in providing services, to be carried out. I do not agree that this was a case where it was important for the witness to see the pursuers in their own home. Certainly, there are cases such as those where a pursuer has sustained injury that seriously affects his mobility, where it is likely to be helpful to have such a witness visit the home and make an expert assessment of what aids and appliances are required but neither of these cases fell into that category. Insofar as Ailish McCarron identified that the pursuers would benefit from the installation of a shower, it seemed to me that to do so hardly required the services of an expert and, in any event, she declared it as being outwith her area of expertise to identify what shower would be appropriate. It is apparent from the terms of the reports that the principal task carried out by Ailish McCarron was to reach a view as to the credibility of Mr and Mrs Fallon's assertions that they were provided services by their daughter and to reach a view as to how many hours were spent on the tasks on a daily or weekly basis. For example, in 'Section Four' of the report in respect of Mr Fallon, she states:"The Writer considers that for a period of approximately two months (whilst largely bed bound) Mr Fallon required two hours per day personal care and one hour per day daily domestic care and four hours per week for weekly domestic tasks. Thereafter when up and moving one hour per day for personal care, one hour per day for domestic care and four hours per week for weekly domestic tasks for a period of approximately ten months."
and in the report in respect of Mrs Fallon , there is a passage which begins:
"The writer accepts that Mrs Fallon would have required a level of assistance at this time ...".
Since the reports were lodged and senior counsel sought to rely on the one in respect of Mr Fallon in evidence, I can only infer that the pursuers' advisers were content that they are the result of the author doing what she was instructed to do. That would also seem to follow from her note of the assessment that she was instructed to undertake, to which I have already referred.
[14] Insofar as the purpose of the task being carried out by her was to assess the credibility of the pursuers, to seek do so would have been to usurp the function of the court. Insofar as it was to reach a view as to how many hours had been and were being spent on rendering services to the pursuers, I do not see that anything that she might have had to say in evidence would have added to the evidence of the pursuers and their daughter on that matter. Judges are as able to assess the time required to perform the sort of services referred to in this case as are persons with the expertise of those who provide reports such as 6/9 and 6/15 of process. It is not something that requires the assistance of expert opinion. I do not, in particular, see that it is something that required the social work skills that Ailish McCarron has which are detailed at page 3 of each report. I am not at all sure that she in fact intended, in these reports, to suggest that she was expressing expert opinion and it may have been in recognition of that that senior counsel ultimately submitted that her evidence of what she had been told by the pursuers would act as some independent check as to the veracity of their evidence. That, however, was an approach that was urged on the First Division in the case of Allison v The Chief Constable, Strathclyde Police 2004 S.L.T. 340 and rejected by them. In that case, counsel for the pursuer had sought to explain that an employment expert had been instructed not to assist in the valuation of the claim but to support the pursuer's contention that she had suffered both a loss of employability and loss of prospects of promotion. The court's response to that submission was:"We have little hesitation in concluding that it was not necessary to employ Dr Grant for that purpose."
Decision:
[16] Accordingly, in all the circumstances, I am not satisfied that these were cases in which the instruction of a skilled witness in connection with the Section 8 claims and the claims for reimbursement of expenditure was necessary or justified. Whilst I do not doubt that Ailish McCarron has certain skills, as is borne out by the description of her qualifications and experience in the reports, I do not consider that those skills required to be employed in these cases nor in fact does she appear to have employed them when preparing her report. I would add that the circumstances of these cases bear a striking similarity to those in the case of Donnelly v FAS Products Ltd and I am in entire agreement with the approach that was adopted there by Lord Brodie. The motion for certification of Ailish McCarron is, accordingly, refused.