Scottish Court of Session Decisions

This was an action brought by Mr J. C. Junner, W.S., residing at Portobello, against the North British Railway Company for £500 as damages sustained by him in consequence of injuries received through a collision which occurred on the defenders' line.

The defenders did not dispute their liability for damages, but pleaded that the amount claimed was excessive.

It was arranged between the parties that the pursuer should be examined for the defenders by physicians named by them. They named Professor Spence and Drs Dunsmure and Watson. The pursuer objected to be examined by Professor Spence, on grounds which are stated as follows

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in a letter from his agent to the defenders' agent:—“Mr Jnnner will be in attendance at that time and place to be examined by Dr P. H. Watson, Dr Dunsmnre, and any other medical gentleman you may choose to send except Professor Spence. Mr Junner declines to be examined by him because of the treatment he received from the Professor when he called upon him as an ordinary patient, while suffering greatly both in body and mind through the results of the accident. On that occasion Professor Spence declined to look at him, or to give him any advice which would tend to relieve his pain and anxiety, because he (the Professor) stated that he could not do so, being retained by the North British Railway Company to examine patients, and give evidence in their behalf. Mr Junner on that occasion was very much hurt in his feelings when he reflected that a gentleman of the eminence and high standing of Professor Spence should allow himself to be feed or retained by the North British Railway Company so as to be prevented in giving his advice or assistance to any member of the public who might be hurt through the carelessness of the North British Railway Company.”

In their answer to this letter the defenders' agent stated:—“Professor Spence states that nothing that took place at the interview between him and Mr Junner and Dr Young warrants the statements in your letter. Nothing said by Professor Spence was intended, or could reasonably be supposed to be in the least calculated, to hurt the feelings of any one, and the statements as to his being retained and feed by the defenders are unfounded and uncalled for.”

The defenders therefore moved the Lord Ordinary for an order on the pursuer to submit to examination by Professor Spence.

The Lord Ordinary pronounced this interlocutor:—

“13 th March. 1877.—Having heard counsel on the motion of the defenders for an order ordaining the pursuer to submit himself, on behalf of the defenders, to examination by Professor Spence and other surgeons, Refuses the motion as regards Professor Spence, on the ground that the pursuer is unwilling to consult with that gentleman, and, as regards the others, that the motion is unnecessary, in respect that the pursuer states that he is willing to submit to examination by any other surgeon or surgeons: Grants leave to the defenders to reclaim against this interlocutor.”

The defenders reclaimed.

At advising—