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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 178
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PD1643/07
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OPINION OF LORD MALCOLM
in the cause
LEANNE HENDRY
Pursuer;
against
(FIRST) ALEXANDER
TAYLOR & SONS and
(SECOND) NIG
INSURANCE LIMITED
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
G Clarke; Thorntons LLP
Defenders: Sheldon; DLA Piper Scotland LLP
9 November 2007
[1] This
is a personal injuries action under chapter 43 of the Rules of Court in
which the pursuer seeks damages for injuries sustained in a car accident, for
which she blames the first defenders' employee.
The second defenders are the road traffic insurers of the first
defenders. Liability is admitted. The only issue in the case is quantification
of damages. The pursuer avers that she
has developed a psychological injury as a result of the accident. She seeks damages for, amongst other things,
future wage loss. The pursuer avers that
she could not continue in her pre-accident employment which involved a lot of
driving, and that her new employment offers a lower salary. The defenders have lodged a specification of
documents and applied for a commission and diligence in terms thereof. The first call is not opposed, but calls 2
and 3 are resisted by the pursuer. They
are in the following terms:
"(2) The records of the Edinburgh Royal
Infirmary, relating to the pursuer,
except insofar as prepared in contemplation of litigation in order that excepts
may be taken therefrom at the site of the Commissioner of all entries showing
or tending to show the nature and extent of the injuries or conditions from
which the pursuer was suffering when she received treatment to the current date,
and all reports upon, charts of, and X-rays and other photographs showing her
injuries or conditions whilst receiving said treatment and the certificate of
discharge, if any.
(3) The records of Dr Ross Langlands, Newton
Port Surgery, Haddington, relating to the pursuer except insofar as prepared in
contemplation of litigation in order
that excerpts may be taken therefrom at the site of the Commissioner of all
entries showing or tending to show the nature and extent of the injuries and
conditions from which the pursuer was suffering when receiving treatment from
her general practitioner to the present date, and all reports upon, charts of
and X-rays and other photographs showing her injuries and conditions to date."
[2] The
objection to the calls is that they are not limited to medical records dating
from the accident. In asking for
approval of the specification as lodged, Mr Sheldon for the defenders
explained that the intention is to recover the pursuer's pre and post accident
medical records. The future loss claim
might be limited by a pre-existing condition which would have restricted future
income even if there had been no accident.
Whether the pursuer did or did not have such a pre-existing condition is
material to the proper quantification of her future loss claim. Mr Sheldon continued by submitting that
approval of the disputed calls would facilitate and promote the desirable
objective of early settlement of claims.
He relied upon a decision of the Court of Appeal in Dunn v British Coal
Corporation [1993] ICR 591, in which an appeal against a refusal of a
similar request for discovery of pre-accident medical records was upheld. In the course of his judgment, with which the
rest of the court agreed, Stuart Smith LJ said at 517:
"In my opinion
the documents in question are relevant to the second broader issue which I have
defined (the financial loss resulting from the accident), whether or not they
actually contain information that leads to the conclusion that the employee
would not, but for the accident, have worked until normal retiring age. The employee must prove that the loss of
future earnings or earning capacity was caused by the accident. The onus is on him. Strictly speaking therefore he must prove
that he is in normal health and does not suffer from any condition which might
cut short his working life. In the
absence of evidence to the contrary, this is usually not contested by
defendants at trial. But the claim for
damages is in issue on the pleadings, and documents which show that the
employee has never suffered anything more serious than an attack of influenza
are relevant to this issue, just as much as documents which show that he is
suffering from some condition or disease which is likely to cut short his
working life. If that is correct, then
this is not 'fishing' discovery at all, although the employer will only be
interested if the documents disclosed the latter condition. This consideration only applies where there
is a claim for continuing loss of earnings or impaired earning capacity. It will not apply in a great number of cases
where a plaintiff has made a full recovery."
[3] Mr Sheldon
invited me to follow this approach. He
also referred to Lord Macphail's decision in Williamson v The Advocate General for Scotland 2006 SLT
611. In that case the Lord Ordinary did
not require to address the specific issue before me, but in allowing a
commission and diligence emphasis was placed on the new system of abbreviated
pleadings for personal injury actions, and that it would be odd if pleadings
sufficient to meet the new rules were insufficient to support a
specification. I note that Lord Macphail
added,
"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."
[4] This
passage from Lord Macphail's opinion encapsulates the opposition to the
motion presented on behalf of the pursuer by Mr Clarke. He submitted that the disputed calls were no
more than a "fishing exercise" and should be refused on that basis. Approval would be an innovation on normal
practice, which involves recovery of medical records dating from the
accident. The standard form of
specification which the new rules allow to be attached to a summons
(Form 43.2-B) is consistent with this approach. Mr Clarke submitted that the
confidentiality of medical records should be respected unless a party is able
to aver specific circumstances which would justify a wider recovery. He invited me to decline to follow the Court
of Appeal decision in Dunn. In the course of the discussion I was
informed that this matter has been ventilated before Lords Ordinary in the
past. Sometimes the call has been
allowed, sometimes refused, but no judge has written on the point.
[5] The
nature of a fishing diligence was discussed by Lord Justice Clerk Ross in Civil Service Building Society v MacDougall 1988 SC 58. In delivering the Opinion of the Court his
Lordship said at 62: "A fishing
diligence is one for which there is no basis in the averments or one which
involves too wide a search among all the papers of the haver." In Boyle
v Glasgow Royal Infirmary and Associated
Hospitals 1969 SC 72, Lord President Clyde at 79 described a fishing
diligence as "an attempt to recover documents in the hope that they will
disclose material which will enable the party to make a case not yet averred on
record." The underlying rationale of our
procedure is that recovery is allowed in respect of documents if, and only if,
they are relevant to an issue raised on record.
Thus in Paterson v Paterson 1919 1 SLT 12, Lord Hunter
said, "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." In Dunn, it was observed that when a
pursuer in a personal injury action claims future wage loss he is putting in
issue his state of health at the time of the accident, since he must prove that
any such loss was caused by the accident.
Even if the pre-accident records reveal no illness or medical condition
of note, that itself is relevant, albeit unhelpful to the defender. I agree with Stuart Smith LJ that this
demonstrates that in such claims calls seeking pre-accident medical records are
not in the nature of a speculative or fishing diligence. They are aimed at an issue which the pursuer
has raised in the pleadings simply by putting forward a future wage loss
claim. Thus the present defenders, who
presumably have no knowledge whatsoever of the pursuer's state of health before
the accident, are not obliged to make averments which ex hypothesi they cannot make unless and until they see the
relevant records. This is not limited to
cases under the new rules, though plainly the abbreviated pleadings regime
under chapter 43 militates against a strict pleadings based approach to
the allowance of a commission and diligence for the recovery of documents. Further, the new procedure requires defenders
to submit a valuation of the claim at an early stage. This points to early recovery of all relevant
medical records. Mr Clarke accepted
that if the defenders were the pursuer's employers and were aware of a relevant
pre-accident medical history, then, after adding appropriate averments to the
record, they could recover her pre-accident medical records. I see no good reason why defenders who are
strangers to the pursuer should be at a disadvantage. Insofar as medical records are confidential
to the patient and doctor, it is well established that nonetheless it is in the
public interest that a third party can recover them if that is necessary for
the proper administration of justice in court proceedings. An analogy could be drawn with the obligation
of a pursuer to submit to a medical examination by a doctor instructed by the
defenders.
[6] For
the above reasons I have decided to grant the commission and diligence in terms
of all of the calls in the specification.
While the norm may have been to limit calls to medical records from the
date of the accident, I do not consider that my decision involves any
innovation on or extension to the basic principles underlying commission and
diligence for the recovery of documents.
