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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 17
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PD408/05
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OPINION OF LORD MACPHAIL
in the cause
JOHN WILLIAMSON
Pursuer;
against
THE ADVOCATE
GENERAL FOR SCOTLAND
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: McEachran,
Q.C.; Digby Brown S.S.C.
Defender: K. Campbell; Morton Fraser
3 February 2006
Introduction
[1] This is a
motion for commission and diligence in an action of damages for personal injuries
brought under the new Chapter 43 of the Rules of the Court of Session. The
action arises from a shooting accident which occurred when the pursuer, who was
serving with the Royal Air Force as a senior aircraftsman, was attending a
course at Otterburn Camp and was engaged in a target
firing exercise. A round fired from another senior aircraftsman's rifle struck
the barrel of the pursuer's rifle, causing it to shatter, and a fragment of
metal from the rifle penetrated the pursuer's right eye.
[2] The
motion is in two parts. The first part, which is unopposed, seeks commission
and diligence for the inspection and photographing of the pursuer's rifle. The
second part seeks commission and diligence to recover certain documents. The
specification contains four calls. The second call is unopposed. I shall deal
in turn with the first, third and fourth calls.
Call 1
[3] In
paragraph 2 of the statement of claim the pursuer makes averments about the
circumstances of the accident and further avers:
"The defender carried out an internal enquiry into
the circumstances of the pursuer's accident. The defender is called upon to
lodge a copy of the report of the said enquiry in process and a failure to do
so will be founded upon."
The report has not been lodged. Answer 2 of the defences,
which throughout are in skeletal form, is, "Not known and not admitted." The
defender's counsel frankly conceded that the defences were not adequate and he
stated that the defender proposed to seek leave to amend. He made it clear,
however, that an inquiry had been carried out and that the defender regarded
the report of the inquiry as confidential.
[4] Call
1 is in these terms:
"1. The
report of the internal Unit Inquiry carried out into the circumstances of the
pursuer's accident and the injuries in respect of which the summons in this
cause was issued and relevant to the matters all as contained and more fully
specified in the statement of claim."
Counsel for the defender submitted that this call should
be refused. The inquiry had been held in terms of section 135 of the Army Act
1955 and the Board of Inquiry (Army) Rules 1956 (SI 1956, No 630). Reference
was also made to section 135 of the Air Force Act 1955 and the Board of Inquiry
(Air Force) Rules 1956 (SI 1956, No 579). The scope of such an inquiry was
potentially very wide-ranging. The inquiry in this case had begun about two
months after the accident and the report had been prepared over a period of
some 17 months. It contained the responses of a number of persons to structured
questions; it included as annexes certain documents prepared for the purposes
of the inquiry; and it also contained comments outwith
the subject-matter of the inquiry by skilled service personnel, and comments
and conclusions by officers in the line of command. It was plain, having regard
to that material, that a number of purposes had been served by the inquiry:
there was a fact-finding element; there was an opportunity for lessons to be
learned; and, having regard to the nature of the events giving rise to the inquiry,
the material prepared might reasonably be expected to inform proceedings of any
kind, including the present proceedings. Thus the report was more than a de recenti record
of the recollections of eye-witnesses: it was a complex document which served a
number of purposes. It fell within the law of post litem motam,
the elements of which had been explained in Young
v National Coal Board 1957 SC 99. Reference was also made to More v
Brown & Root Wimpey Highland Fabricators Ltd 1983
SLT 669 and Hepburn v Scottish Power plc 1997 SC 80.
[5] Counsel
for the pursuer submitted that the question was, What
was the status of the report? Any incident on a Ministry of Defence firing
range set up the necessity for a board of inquiry which was carried out under
Army regulations, not in a situation of post
litem motam. It was not
accepted that the inquiry was held with a view to litigation. It might be
necessary to hear the evidence of the person who had held the inquiry. The
instruction to the board of inquiry should be produced so that the Court could
see its terms and the matters referred to it, in order to ascertain whether it
had anything to do with litigation.
[6] In my
opinion this call must be refused. The general rule is familiar and is not
challenged, and it is not suggested that the report falls within the single
exception to the rule which relates to reports by employees present at the time
of the accident and made to their employers at or about the time of the
accident. In More the Court approved
the formulation of the general rule and the exception in Johnstone v National Coal Board 1968
SC 128 where Lord President Clyde said (at page 133):
"In our opinion the basic
principle in Scots law regarding reports and records of accidents prepared by
or on behalf of one side is that they are not recoverable under a specification
of documents by the other side."
In More the
Court said (at page 671):
"It is perfectly true that the
general rule has always been understood to apply to reports and records
prepared by or on behalf of one side or the other after a real likelihood of a
claim and a disputed question of liability has emerged. The particular form of
the general rule which has been adopted since 1957 has simply reflected
recognition by the courts that in modern conditions there are few, if any,
accidents, and especially industrial accidents, which do not immediately give
rise to a real likelihood of a dispute about liability, and that in the
interests of certainty it must now be recognised that confidentiality ought to
attach to all records and reports of investigations made after an accident has
occurred.
In Hepburn the
Court observed (at page 86):
"The general rule requires the
court to make a judgment as to whether or not the document which one party
seeks to recover has been prepared in anticipation or in development of the
case of the other party who has instructed preparation of the document. [...]
What the court has to do is to make a judgment as to the true character of the
document."
[7] I consider
that that dictum in Hepburn was not
intended to cast any doubt upon the formulation of the general rule in Johnstone and More. The report obviously falls within
that formulation of the rule. It is in any event clear from the explanations
given by the defender's counsel that among the purposes for which the report of
the board of inquiry was prepared was the collection of material which might be
of use in the event of a dispute about liability for the accident. It is
unnecessary to contemplate following the unusual course adopted in Hepburn where the judge of first
instance heard evidence. The fact that the board of inquiry was convened in the
exercise of a discretion conferred by statute is in my view nothing to the
purpose, and it is unnecessary to inspect any document setting out the matters
referred to the board. The report is plainly a report of an investigation made
on behalf of those represented by the defender after the accident had occurred.
Accordingly, following the general rule, I am bound to refuse call 1.
Call 3
[8] In
paragraph 4 of the statement of claim the pursuer avers that the targets were
operated by remote control and were activated on the instructions of the
supervising officer, Flight Lieutenant McGregor. He also avers that the safety
supervisor on the exercise was Flight Sergeant Plaskett.
Call 3 is in these terms:
"3. All papers, records, certificates, reports, instructions,
memoranda, written statements, written communications or other documents in the
hands of the defenders or anyone on their behalf in order that extracts may be
taken therefrom at the sight of the Commissioner of
all entries therein showing or tending to show (a) the range procedure or
procedures in force at Otterburn Camp and relative to
the target firing drill exercise in which the pursuer was involved at the time
of the accident referred to more fully in the statement of claim and (b) the
qualifications of Flight Lieutenant McGregor and Flight Sergeant Plaskett relevant to the planning, implementation,
supervision and running of the target firing drill in which the pursuer was
involved at the time of the accident referred to more fully in the statement of
claim."
[9] The
defender's counsel submitted that there was no basis for this call in the
pursuer's averments on record. There was as yet no decision as to the degree of
specification a party required to give in a Chapter 43 action relative to the
recovery of documents. While there was no need for "screeds of averments", the
other party was entitled to an indication of where his opponent's case was
going. Here, there were several possible approaches to the issue of liability:
that the other aircraftsman had been negligent in firing his rifle; that there
had been some defect in the way in which the particular exercise had been
conducted; that there had been some defect in the way in which the firing range
had been organised; and that there was some question as to the qualifications
or training of the supervising officer and the safety supervisor.
[10] Counsel for
the pursuer stated that the pursuer's agents had sought information from the
Ministry of Defence and had been told that the report of the board of inquiry
was confidential. The pursuer's expert had advised that there was a question
whether those in charge of the exercise had had the proper qualifications. The
expert had also advised that it had almost certainly been contrary to the range
rules to carry out line firing, the method averred on record. That was very
dangerous, and procedures would have had to be set out. Call 3(a) sought
production of documents setting out those procedures, while call 3(b) sought
information about the supervisors' qualifications. It would not have been
appropriate to introduce these matters into the pleadings by way of averments
beginning "Believed and averred". Chapter 43 required only brief averments and
limited grounds of fault. The relevance of documents sought to be recovered
should be dealt with by way of ex parte statements to the court at the hearing of the
motion for commission and diligence.
[11] The issue
of the test to be applied in a Chapter 43 case where the court is asked to
order the recovery of documents the call for which is not related to any
specific averment is one of some difficulty. A somewhat similar problem arises
in criminal proceedings where recovery is sought by an accused whose position
has been formally stated without elaboration (McLeod v H M Advocate (No. 2)
1988 JC 67). The matter has not been deeply explored before me and I
express the following views with diffidence. "The recovery of documents in a
cause is allowed in order that the Court may be put in possession of
documentary evidence bearing upon the issues of fact that have to be
determined" (Paterson v Paterson 1919, 1 SLT 12). In an action
of damages for personal injuries to which Chapter 43 does not apply, a
commission and diligence may be granted after the record is closed in order to
enable a party to recover for the purposes of the proof documents which have a
bearing on the averments remitted to proof. In a Chapter 43 action, the summons
may include a specification of documents in Form 43.2-B (rule 43.2(4)(b)), but the pursuer remains entitled to apply for a
commission and diligence under rule 35.2 (rule 43.4(5)). In the present case
the pursuer has taken the latter course after the lodging of the record and
before the diet of proof on 7 March
2006. The question is whether the documents he seeks must be shown
to have a bearing on the averments in his pleadings. If the answer is in the affirmative, call 3
must be refused.
[12] The
pursuer's averments appear to me to comply with the requirements of rule
43.2(1). It provides:
"(1) The summons must be in Form 43.2-A and
must have annexed to it a brief statement containing -
(a) averments
in numbered paragraphs relating only to those facts necessary
to establish the claim; and
(b) the names of every
medical practitioner from whom, and every hospital or other institution in
which, the pursuer [ . . . ] received treatment for the personal injuries."
In response to the
requirement in rule 43.2(1)(a) the pursuer has
provided in paragraph 4 of his statement of claim a narrative of the
circumstances of the accident. It is not said, and it could not be said in the
pursuer's present state of knowledge, that there was any defect in the
procedures or that Flight Lieutenant McGregor and Flight Sergeant Plaskett were not qualified to carry out their duties. In
any event the Rules in Chapter 43 do not require a pursuer to make averments in
support of a motion for commission and diligence. The pursuer has provided in
paragraph 5 the details specified in rule 43.2(1)(b).
As to paragraph 6, Form 43.2-A specifies:
"6. (State whether claim based on fault at common
law or breach of statutory duty; if breach of statutory duty, state provision
of enactment)."
The pursuer's paragraph 6 is
in these terms:
"6. The
pursuer's claim is based on the defenders' breach of their common law duty to
take reasonable care for the pursuer's safety. The defender's averments in
answer are denied."
In my opinion the pursuer
cannot be criticised for not affording further specification of the ground or
grounds of liability, because he has complied with the requirements of Form
43.2-A.
[13] As I have noted, there are no averments about the procedures in
force or the qualifications of the two supervisors. It would be a curious
result, however, if a pursuer, having observed the rules as to the contents of
his pleadings, were to be denied a commission and diligence for which he was
entitled to apply because he had not included averments which the rules did not
require. It is obviously necessary to guard against the granting of a fishing or speculative diligence for the recovery of
documents which a party hopes will disclose material for a case he has not
averred in his pleadings when he has no reason to believe that the documents
exist or that there is any foundation for the unpleaded
case. It would therefore appear to be appropriate that the party seeking to
recover the documents should explain to the court the basis on which he asks
the court to make the order, why he believes the documents exist and how they
would be likely to assist him to establish his claim. Here, counsel for the
pursuer has stated that the basis on which the motion is made is information
and advice from an expert about the safety procedures necessary for an exercise
such as that in which the pursuer was injured, and about the need for those
supervising such an exercise to be appropriately qualified. Counsel has also
stated that information about those procedures and the qualifications of the
supervisors would be likely to assist the pursuer's case that the defenders
were in breach of their common law duty to take reasonable care for his safety.
In my opinion counsel's explanations are satisfactory because they demonstrate
that calls 3(a) and (b) are not speculative but are based on expert advice on
important matters; and that if the advice is sound, the documents are likely to
exist and, if recovered, to have a material bearing on the issue of liability.
I shall therefore allow call 3.
Call 4
[14] Call 4 is in these terms:
"All papers, records, pamphlets, booklets,
instructions, written statements, written communications or other documents in
the hands of the defenders showing or tending to show (a) the circumstances in
which a Unit Inquiry such as that undertaken after the pursuer's accident
requires to be carried out (b) the nature, requirements and ambit of any such
Unit Inquiry."
I was not addressed at any
length on call 4. It follows from the views I have expressed relative to the
board of inquiry that the documents called for should not be recovered. I shall
therefore refuse call 4.
Result
[15] I shall accordingly grant the first part of the motion. As to
the second part, I shall grant a commission and diligence in terms of calls 2
and 3, and refuse calls 1 and 4.
