Scottish High Court of Justiciary Decisons

ALAN PEDEN v. LOTHIAN REGION TRANSPORT [2001] ScotHC 59 (24th July, 2001)

[1] On April 2001, the pursuer raised an action under the Optional Procedure concluding for £20,000 in respect of an accident on 28 April 1998, when he was in the course of his employment with the defenders as a bus driver. He averred that he injured his shoulder and arm, when the power steering of his bus "locked". As a result, he required to jerk the steering wheel to avoid a collision. His main continuing complaints were relative to his shoulder and elbow. He received a hydrocortisone injection and underwent a course of physiotherapy at the rheumatology clinic of the Western General Hospital. He was off work for seven weeks before returning to light duties. Because of his injuries, the pursuer averred, his Passenger Service Vehicle licence was revoked on 6 April 1999 and the pursuer was dismissed from his employment. It is perhaps a little surprising that, in those circumstances, the sum sued for was so low.

[2] The defenders denied liability in their defences but I was informed that they had conceded that issue and at the Diet Roll on 7 June 2001 a proof before answer was allowed, restricted the quantum of damage. The defence on quantum narrated that the pursuer was fit to drive vehicles except PSVs and Heavy Goods Vehicles. He had started a computer course. His physical symptoms, the defenders averred, had resolved by August 2000 in relation to his shoulder and would resolve by early 2002 as regards his elbow.

[3] On 20 June 2001, the proof was fixed for 22 January 2002 and the two ensuing days. On 3 July, the pursuer lodged a Minute of Amendment. This proposes to increase the sum sued for to £150,000 and to add averments about the pursuer's continuing medical care and physiotherapy at the Western General, principally in relation to his elbow. It also avers that what happened to the pursuer at the time of the accident was a musculature tear within the rotator cuff of the shoulder precipitating a tennis elbow. The averments continue by stating that the pursuer is unfit for any heavy work or that involving repetitive shoulder movements. The pursuer has completed his computer course and obtained work in a call centre. He was unable to continue that work because of what is described as chronic left shoulder and elbow pain. He has received pain management treatment at the Astley Ainslie Hospital. He has also developed psychological problems as a result of his pain to the extent of feeling suicidal. He is unable to play with his children or assist in the house. A services claim is thus proposed. In short, the Minute attempts to expand the pursuer's case well beyond its original parameters. The defenders lodged Answers to the Minute on 18 July which maintain, inter alia, that the pursuer will be fully fit for all work by early 2002. The Answers also contain a reference to the findings of an Employment Tribunal which dismissed a claim by the pursuer under the Disability Discrimination Act 1995.

[4] The Court has yet to rule on whether the Summons and Defences should be amended in terms of the Minute of Amendment and Answers. However, the matter came before me on 19 July 2001 on the pursuer's motion to add certain witnesses to his list. The original list had been lodged, in terms of rule 43.26, within 28 days after the allowance of proof. In that list the pursuer had included: (1) himself; (2) his wife; (3) his general medical practitioner; (4) a consultant orthopaedic and trauma surgeon; (5) an employment expert; and (6) an actuary. The latter has been included despite the absence (as yet) of any pension loss claim. The new witnesses are : (a) an assistant psychologist; (b) a consultant rheumatologist; and (c) a consultant psychiatrist.

[5] The Optional Procedure Rules are contained in Part V of Chapter 43 of the Rules of Court. They provide for the appearance of the cause at a Diet Roll shortly after the lodging of defences. At that diet, it is provided that :

In terms of rule 43.26.(2) :

In terms of rule 43.27.(3) :

When, as here, a case is solely concerned with quantum of damage, the Optional Procedure is particularly suited if the medical evidence is straightforward. That is, I think, clear from the terms of the rules and especially the rule restricting the number of medical experts. The rules do not envisage Optional Procedure being used where a plethora of medical or indeed other experts are involved. The pursuer's existing list has one medical expert and two other experts already and the proposal is to add three further medical witnesses, all of whom are at least capable of giving expert evidence even if they might also be speaking to their treatment of the pursuer. Had it been known at the Diet Roll that this was likely to be the nature of the proof in the case and that the averments were to be expanded in the manner proposed, it is not unlikely that the Court would have remitted the cause to the Ordinary Roll. However, it was accepted by both parties that, at least without consent, this could not competently be done at this stage (Anderson v British Coal Corporation 1992 S.L.T. 398; Roberts v Lord Advocate 1990 S.L.T. 317). I must therefore proceed on the basis that the case will continue to be conducted under the Optional Procedure.

[6] In that context, counsel for the pursuer submitted that his motion to allow the addition of the witnesses should be allowed in the interests of justice. He explained that it had not been until a recent meeting with the pursuer that the psychological sequelae had been discovered by his advisers. It had also not been until counsel had advised on the line of evidence that it was thought necessary to have the consultant psychiatrist instructed and the psychologist and rheumatologist cited to speak, it was said, to the pursuer's actual treatment rather than give medical opinion. Counsel for the defenders submitted that the additions should not be allowed given that the case was an Optional Procedure case. He submitted that the case should be kept within the parameters envisaged for cases on that Roll.

[7] In relation to witnesses, on a strict approach to the rules, there is no provision for adding witnesses to an original list. The rules do, however, provide that a witness not on a list may be called at a proof under such conditions as the Court thinks fit. The rules in relation to witness lists and the calling of additional witnesses are concerned primarily with the giving of adequate notice to one party of the other side's case. If a relevant witness is notified well in advance of a proof date (as here), the Court may be reluctant, in the interests of justice, to refuse to hear that witness although it might impose conditions. These conditions might relate to the productions of the witness' reports, the affording of the other side of an opportunity for precognition or, where necessary, the adjournment or continuation of the proof. Because it is expedient to determine whether a witness will be permitted to give evidence or not as far in advance of the proof date as possible, the practice has grown up of allowing witnesses to be added, with leave of the Court, to original lists. This avoids the necessity of having an argument at the proof when the expense of citing the witness may already have been incurred. If a witness is added to the list then, according to practice, it is as if he had been included upon it originally and there is no bar to him giving evidence on the ground of his not being included.

[8] The rule about the number of experts is in a slightly different position. A party may have more than one medical or other expert mentioned in his list and that is the case here. If, however, he wishes to call more than one medical or other expert, he still requires the sanction of the Court under rule 43.27.(3). No doubt that sanction can be sought at the proof but it would seem expedient, for the same reasons as given above, to seek it in advance if expense is to be kept to a minimum. Whether sanction ought to be given will depend on the facts of a particular case, notably the pleadings and the content of any reports produced under rule 43.27.(1).

[9] Given the time which is still to elapse before the proof, there is adequate notice to the defenders of the new witnesses and there can hardly be any complaint by the defenders on that point. I am also content that a reasonable, if not entirely satisfactory, explanation has been tendered as to why the new witnesses were not included in the original list. In these circumstances I will grant the motion for their inclusion in that list. However, I have not been asked to sanction the use of more than one medical expert or more than one other expert and I express no view upon whether such sanction ought to be granted. That matter may well turn upon whether, at the appropriate time, the Court is prepared to allow the pleadings to be amended in terms of the Minute of Amendment in the context of a case proceeding under the Optional Procedure. Once more, I express no concluded view on that. However, it may be said that, since the pursuer does not appear to wish to consent to a remit to the Ordinary Roll, he must therefore peril much of what now appears to be his case upon whether that amendment will be allowed.