Scottish Court of Session Decisions

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Cite as: [2007] ScotCS CSOH_197, [2007] CSOH 197

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 197

PD1480/07

OPINION OF LORD BRODIE

in the cause

FRANCIS WILKIE

Pursuer;

against

D B STUART LIMITED

and OTHERS

Defenders:

________________

Pursuer: Michael Stuart, Advocate; Beveridge & Kellas, SSC

Second Defenders: Marney, Advocate; HBM Sayers

30 November 2007

Introduction

[1] This is an application, on behalf of the second defender, for commission and diligence in terms of a specification of documents in an action for personal injuries to which Chapter 43 of the Rules of Court apply. Rule of Court 43.4 provides that where the summons contains a specification in terms of Form 43.2-B commission and diligence will be granted upon signet. However, Rule 43.4(5) provides that nothing in the rule shall affect the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or for an order under section 1 of the Administration of Justice (Scotland) Act 1972 in respect of any document or other property not mentioned in the specification annexed to the summons. This, as is the case with every application for recovery at the instance of a defender, is an application under rule 35.2. The action is at the stage of a record having been made up and lodged as provided for by Rule 43.6(v). After amendment the calls in the second defenders' specification which were objected to on behalf of the pursuer were in the following terms:

"2. All medical records, including X-rays, notes and reports (excepting any reports prepared in contemplation of this litigation) held by Meadowbank Health Centre, 3 Salmon Inn Road, Polmont, Falkirk relating to the pursuer (DOB: 14/5/35).

3. All medical records, including X-rays, notes and reports (excepting any reports prepared in contemplation of this litigation) held by New Royal Infirmary, Old Dalkeith Road, Little France, Edinburgh, relating to the pursuer (DOB 14/5/45).

3. All medical records, including X-rays, notes and reports (excepting any reports prepared in contemplation of this litigation) held by Western General Hospital, Crewe Road South, Edinburgh, relating t the pursuer (DOB 14/5/45)."

The pursuer has objected to these calls being allowed on the basis that they are drafted in wider terms than is necessary in that (i) they ought to be restricted to a period from the date of the accident to date and (ii) they ought to be restricted to the nature and extent of the injuries suffered by the pursuer as averred by him on record.

[2 ] The pursuer avers that he sustained injury when working in the course of his employment with the first defenders on 22 August 2005. He was working under the direction and control of the second defenders at a site located at the Royal College of Surgeons in Edinburgh. The pursuer was working at a lift shaft when boarding on which he had walked gave way, causing him to fall a distance of approximately 40 feet. The pursuer's injuries include lacerations to his right axilla and right flank, meniscal injury to his left knee and significant psychiatric injury including post traumatic stress disorder, a major depressive order and a panic disorder without agrophobia. The pursuer avers that he has been left with modest neurological deficits but continuing psychiatric symptoms which markedly impair his quality of life. His left knee symptoms continue. These cause him constant pain. Activity and prolonged walking cause him significant discomfort. He has difficulty lifting and carrying and kneeling. The pursuer avers that he returned to work briefly but that he was unable to continue due to psychiatric and knee related symptoms. He remains unable to return to work. He has lost and continues to lose earnings. The pursuer was born on 14 May 1945. It had been his intention to carry on working until the age of 65, but he is no longer able to do so. He has received certain services from his wife and she continues to render these services to him. He claims damages under the heads of (i) solatium; (ii) loss of earnings; and (iii) disadvantage in the labour market; and (iv) necessary services rendered under reference to section 8 of the Administration of Justice (Scotland) Act 1982. The pursuer's pleadings disclose that he has received treatment at his general practice, Meadowbank Health Centre, 3 Salmon Inn Road, Polmont, Falkirk; at the Royal Infirmary, Little France, Edinburgh; and at the Outpatients' Physiotherapy Department at the Western General Hospital, Crewe Road South, Edinburgh. The details of all this appear at pages 11 and 12 of the record.

Submission of counsel
[3 ] In moving for commission and diligence, Mr Marney accepted that there were no averments in the pleadings on behalf of the second defender which related to any aspect of the pursuer's health prior to the accident on 22 August 2005. However, he submitted that this was not critical. The pursuer was seeking damages for future loss. Implicit in his averments to the effect that he had been disabled from working as a result of the accident was the proposition that prior to the accident his health was such as would have allowed him to continue to work until his 65^th birthday. On behalf of the second defenders, Mr Marney wished to recover medical records relating to the pursuer which might support that proposition but which, equally, might provide a basis for the second defenders to challenge it. This was not a "fishing diligence". Mr Marney commended to me the approach which had been adopted by Lord Malcolm in the case of Hendry v Alexander Taylor & Sons & Another [2007] CSOH178.

[4 ] Mr Stuart began his submissions by indicating a difficulty he had with a logical extension of Mr Marney's argument. He pointed out that, whereas Mr Marney seemed to be making something of the fact that the pursuer here was seeking damages in respect of future loss, properly understood, all damages sought in a personal injury action were damages in respect of future loss because they related to the period subsequent to the accident. If Mr Marney was correct, in the event of a claim being made in respect of the wrongful death of a young wife and mother, for example, it would be open to the party said to have been at fault to recover all medical records relating to the deceased, including the results of any post mortem examination with a view to investigating whether there was any aspect of her health which would have made it unlikely for her to have survived over a normal life expectancy or which might indicate that she would not have been able to carry out normal domestic duties. Mr Stuart urged me not to follow Lord Malcolm's decision in Hendry. Lord Malcolm had, in that case, relied on a decision of the English Court of Appeal in Dunn v British Coal Corporation [1993] ICR 591. It was necessary to look at Dunn carefully. It could be distinguished from the present case. In Dunn the employee's solicitors had obtained a medical report on the employee from a consultant orthopaedic surgeon which they had sent to the employer's solicitors. That report disclosed that the employee's medical expert had had available to him records of the hospital where the employee had been treated after the accident. There was reference to a previous injury (caused by the employee having been shot in the mouth) and to x-rays taken immediately after the accident showing cervical spondylosis and evidence of the presence of a metal fragment. The employer's wage and sick pay records revealed that the employee had been off work prior to the accident with backache and neck pain. In order to facilitate examination by their own medical expert, the employer's solicitors requested sight of the employee's medical records. The employee's solicitors were willing that the employer should have disclosure of medical records relating to the employee's neck but the employer's solicitors wished a more extensive disclosure. That was the background to the matter coming to court. Accordingly, Mr Stuart submitted, Dunn was a case where there was a basis for inquiring into what had been the condition of the injured man prior to his accident. Moreover, the Court of Appeal in Dunn had been considering the statutory power conferred on the English High Court by section 34 of the Supreme Court Act 1981. What was under consideration therefore was a statutory power and not, as in Scotland, a common law power. The English statutory power was not restricted in the way that the Scottish common law power was restricted. Lord Malcolm had been wrong to place the reliance he had upon what was said in Dunn. The Scottish authorities indicated that a rather different approach was appropriate to that adopted in England. There had to be a basis in averment if there was to be recovery of medical records prior to the date of an accident. The Scottish courts would not allow a "fishing diligence" of which this was an example. Mr Stuart referred to the decisions of Lord McCluskey in Murrie v Distillers Company (Bottling Services) Ltd, 23 March 1990, unreported and of Lord Macphail in Williamson v The Advocate General 2006 SLT 611. He also referred to MacSporran & Young Commission and Diligence para. 3.29. Finally, with a view to my having all relevant information before me, Mr Stuart referred me to the pursuer's productions and, in particular, to a report by Mr James Christie, Consultant Orthopaedic Surgeon dated 12 March 2007. Looking at the inventory of productions I also noted that there was a report by Professor Ronan O'Carroll, Chartered Clinical Psychologist, dated 6 March 2007. As appeared from Mr Christie's report he had had access to copy medical records. So had Professor O'Carroll. Mr Christie expresses the opinion that the pursuer may have been able to continue to work until he was 65 had it not been for his injury. Other than a reference to long-standing degenerative changes in the left knee, there was nothing in Mr Christie's report to indicate that the pursuer had a relevant history prior to the date of the accident. Mr Stuart's primary position was that I should refuse the second defender's application, unless the specification was further amended to make clear that it was only records from the date of the accident which were being sought. Mr Stuart's secondary position was that having regard to what was stated by Mr Christie in relation to the pursuer's knee, an excerpting provision should be inserted in the calls in order to restrict recovery to records which related to the pre-existing condition of the knee.

Decision
[5 ] I decided to allow commission and diligence in respect of the three calls which were subject to challenge, without requiring any further amendment. My reasons are as follows.

[6 ] The starting position is that the second defenders must be entitled to investigate and, if this is justified by the results of their investigation, challenge the proposition put forward by the pursuer that, as a result of injuries sustained in the accident, he has sustained loss and damage and, in particular, will be unable ever to return to work. Implicit in that proposition, is the further proposition that had it not been for the accident, the pursuer would have remained in good health and, in any event, would have been able to continue to work until normal retirement age. These propositions therefore have been put in issue by the pursuer. To the extent that this is of any importance (it was not a matter which featured in submissions) parties have completed adjustment and a record has been lodged. How then is the second defender to investigate whether they are well founded in fact? It may request the pursuer to submit himself to examination by an orthopaedic surgeon instructed on its behalf and to an interview by a psychologist. Such an examination and such an interview may disclose useful information, particularly in relation to the pursuer's present condition. What information is disclosed as to the pursuer's medical condition prior to the accident will of course depend upon what the pursuer is prepared to disclose and what the pursuer himself knows. It would seem self-evident that any investigation that may be instructed on behalf of the second defender would be, at the very least, facilitated if the suitably qualified experts had access to the pursuer's medical records going back to a period prior to the accident. In what was an energetically argued submission, Mr Stuart did not explain why the defender's medical experts should not have access to this material. In the course of discussion, reference was made to the notion of equality of arms, as it applied to litigation. It is quite clear from the lodged report by Mr Christie and Professor O'Carroll that the pursuer's experts have had access to records which, so it would appear, will have included records which predate the accident. It is probable that their conclusions are, to an extent, based on material which they have seen in these records (or the absence of material in these records). It appears to me only fair that the second defenders' medical experts and legal advisers have access to the same material in order that they are in a position to test the conclusions reached by the pursuer's experts. As Mr Stuart very fairly pointed out, there are references in Mr Christie's report which might suggest that the pursuer was in fact suffering from a pre-existing condition of the knee which might have had an impact on his ability to continue working. Equally, although I admit to plucking the phrase from Professor O'Carroll's report rather at random, there is the information "[the pursuer] used to be a happy soul". Presumably, Professor O'Carroll included that observation, which is attributed to the pursuer's wife, because he considered it relevant and consistent with such medical records as he had seen. It seems to be only fair that the second defenders' medical advisers have the same opportunity to consider the pursuer's medical records with a view to ascertaining as to whether the pursuer's personality has indeed been adversely affected by the accident. As Mr Marney pointed out, this case is very close on its facts to that of Henry v Alexander Taylor & Sons and Another. I would respectfully associate myself with Lord Malcolm's whole approach in that case. Mr Stuart urged me not to follow Henry. He argued that Lord Malcolm had been wrong, that the case of Dunn upon which he had relied could be distinguished and that in Scotland there were well established rules, the effect of which was to prevent the recovery of medical records of a pursuer for any period prior to the accident as a result of which he claimed to have sustained disabling injury. What was before the Court was a fishing diligence. I disagree.

[7 ] The power exercised by the English High Court in Dunn was that conferred by section 34 of the Supreme Courts Act 1981. As appears from the judgment in Dunn, section 34 re-enacted section 32 of the Administration of Justice Act 1970 where the provision was introduced for the first time. The provision substitutes, in relation to proceedings in the High Court in which a claim for personal injury or death is made, a procedure whereby a disclosure order directed to non-parties may be made by the Court, for the common law procedure initiated by a writ of subpoena duces tecum requiring a witness to bring a document or documents to the trial: O'Sullivan v Herdmans [1987] 1 WLR 1047 at 1051G. An equivalent power to order disclosure is conferred on the County Court by the County Courts Act 1984, section 53. It appears from the judgment in Dunn that the procedural rules then relevant to the implementation of section 34 included the Rules of the Supreme Courts, Ord.24, r7A (now Civil Practice Rule 31.17: Zuckerman on Civil Procedure (2006) para.14.100). By taking me through the judgment of the Court of Appeal in Dunn and referring to the speech of Lord Mackay of Clashfern in the Northern Irish appeal to the House of Lords: O'Sullivan v Herdmans supra which was extensively quoted in Dunn, Mr Stuart sought to demonstrate that the statutory power there being exercised (section 34 of the 1981 Act in Dunn, section 32 of the 1970 Act in O'Sullivan) was more extensive and less circumscribed than the equivalent common law power available to the Scottish court. Granted, Lord Mackay described the statutory power he was considering as "a power in no way expressly fettered to order the production of any documents which are relevant to an issue arising out of the claim". He went on to say that "where such an unfettered power is given it is to be construed as a power to be exercised when its exercise would help to achieve ....the proper administration of justice". As far as extent of power and the object for which that power is to be exercised, I do not understand the position of the Court of Session in Scotland, in relation to the making of an order on a third party for the recovery of documents, to be in any material way different from that description of the position of the High Court in Northern Ireland (or in England). Whether the inherent common law power of the Court of Session should be exercised to make an order on the application of a party is entirely a matter for the discretion of the Lord Ordinary to whom the application is made: Boyle v Glasgow Royal Infirmary and Associated Hospitals 1969 S.C.72 at 78 and 84. The power can be exercised at any stage in the course of existing civil proceedings or where civil proceedings are likely to be brought: Administration of Justice (Scotland) Act 1972, section 1. Now, to recognise that the Court has an unfettered power or a discretion is not to say that an order will always be granted in respect of any document simply for the asking. As appears from Lord Mackay's formulation in O'Sullivan, as adopted in Dunn, the unfettered power there under consideration was to order the production of documents which were relevant to an issue arising out of the claim, the power being exercised when it would help to achieve the proper administration of justice. Justice requires the consideration of competing interests and a consistency of approach. There will therefore be a place for general rules to guide the court in the exercise of its discretion.

[8 ] Mr Stuart was clearly correct when he submitted that in our law there have developed what Lord President Clyde described in Boyle (supra at 78) as "well-settled principles" on which a specification of documents is granted or refused. I would immediately accept that a Lord Ordinary who failed to have regard to these principles would not be properly exercising his discretion and might well be less likely to achieve justice. The point I make here, however, is simply that the same sort of considerations as inform decisions by Scottish judges appear also to be relevant in England and Northern Ireland. The procedural rule which applied in Dunn required the application to be made by summons supported by an affidavit showing by reference to the pleadings, that the documents sought were relevant to an issue arising or likely to arise; and in a judgment which was upheld by the House of Lords in O'Sullivan the Northern Irish Court of Appeal expressed the same aversion to "fishing expeditions for documents" which can be seen in the opinions in Boyle and in other decisions of the Scottish Courts going back at least as far as Mackintosh v Macqueen (1828) 6S 784.

[9 ] I am accordingly not persuaded that Dunn can be distinguished on the basis that the nature of the jurisdiction being exercised by the Court in that case was materially different from the jurisdiction that I am called on to exercise here. Nor do I consider it can be distinguished on the facts. In Dunn there was admittedly a basis for suggesting that the plaintiff had a pre-existing medical condition which might have had a bearing on his working capacity independent of whether or not he had suffered an accident. As Mr Stuart very fairly highlighted, the terms of Mr Christie's report indicate that this can also be said in the present case, albeit perhaps only in relation to the pursuer's knee. However, even if that had not been apparent from a report that had been lodged in process, I would have considered, for reasons that I have already touched on, that the pursuer had put his pre-accident health in issue by the nature of his claim and his supporting averments. There is accordingly an identified matter for inquiry at proof in respect of which both parties are entitled to seek recovery of relevant documents. I do not regard this as a fishing diligence. As I have already indicated, I shall accordingly allow it.