Scottish Court of Session Decisions

Mrs Mary Muir, widow, raised an action against the Edinburgh and District Tramways Company, Limited, to recover damages for personal injury.

The pursuer averred—“(Cond. 2) On the afternoon of Saturday, 20th June 1908, the pursuer was a passenger on board a cable car belonging to the defenders, and in charge of their servants. Said car was proceeding westwards along Princes Street, and on arriving at or near the stopping—place opposite the foot of the Mound, was drawn up to enable passengers to alight. The pursuer, who had reached her intended destination, was proceeding to do so when the car was suddenly, and without any warning being given, started on its way westwards, in consequence of which the pursuer was thrown violently off the step of the car on to the street, and landed on her right arm and side, sustaining serious injuries as after mentioned. (Cond. 4) The said accident was caused by the fault and negligence of the defenders' servants, who were in charge of the car and for whom the defenders are responsible, in starting said car in motion when the pursuer was alighting therefrom. At the time said accident occurred, the conductor was upon the top of said car collecting fares from passengers, and was not attending to his duty in regard to persons alighting from the car. It was the duty of the conductor to be on the platform of said car, both at the stopping-places and on approaching them, in order to ensure the safety of passengers, and to prevent the car being started until those leaving it had alighted.”

An issue having been adjusted for the trial of the cause by jury, and notice given for the sittings, on 3rd December 1908 the pursuer moved for a commission and diligence in terms of the following specification—“1. All notes, jottings, memoranda, or other writings made by the police constable on duty at the Mound, Princes Street, on the occasion referred to on record, including all reports, memoranda, or other communications made to the Chief-Constable or other police official by the said police constable, as also all entries in the police books having reference to the matters mentioned on record. 2. All letters, telegrams, memoranda, reports, or other writings passing between the Chief-Constable or other police official or anyone on their behalf on the one hand, and the defenders or anyone on their behalf on the other hand, having reference to the matters mentioned on record prior to the date of raising the present action. 3. All reports, memoranda, or other writings made by the driver and the conductor (or either of them)

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of the car referred to on record, or anyone on behalf of either of them, to (1) the defenders or anyone on their behalf, and (2) the police constable on duty at or near the locus of the accident or to any other police official, having reference to the matters mentioned on record prior to the said date. 4. All statements taken from said driver or conductor by said police constable or anyone acting for or on behalf of the police authorities having reference to the said accident mentioned on record. 5. All bye-laws, rules, regulations, or other instructions issued by the Board of Trade, the Magistrates or Town Council of Edinburgh, or any committee thereof, or other authority, affecting or relating to the driving, management, and conduct of tramway cars, or the safety of passengers therein, including all bye-laws, rules, regulations, or other instructions specially applicable to the cable cars run by the defenders in the streets of Edinburgh. 6. All bye-laws, rules, regulations, or other instructions issued by the defenders to conductors and drivers in their service affecting or relating to the driving, management, or conduct of the cable cars run by the defenders, or the safety of passengers therein, or with reference to the regulation of the conduct of passengers on entering or alighting therefrom.”

The defenders objected to the whole articles, and argued—The reports and communications by the police were confidential. The reports by the defenders' servants to the defenders were also confidential— Stuart v. Great North of Scotland Railway Company, July 9, 1896, 23 R. 1005, 33 S.L.R. 730; Macfarlane v. Great North of Scotland Railway Company, July 1, 1893, 1 S.L.T. 127. The earlier case of Tannet, Walker, & Company v. Hannay & Sons, July 18, 1873, 11 Macph. 931, 10 S.L.R. 642, proceeded on specialties, and in any case it was before the Court in Stuart v. Great North of Scotland Railway Company, cit. The whole documents called for in articles 1–4 were therefore confidential; and they were otherwise inadmissible in evidence, and so could not be recovered— Livingstone v. Dinwoodie and Others, June 28, 1860, 22 D. 1333. There was no averment on record of the breach of any of the bye-laws, &c., called for in articles 5 and 6. The bye-laws of the Board of Trade could be purchased by the pursuer.

Argued for the pursuer—The documents called for in articles 1–4 were not confidential. Reports by servant to master had been recovered— M'Laren v. Caledonian Railway Company, May 30, 1893, 1 S.L.T. 42. The case of Stuart v. Great North of Scotland Railway Company, cit. sup., was distinguishable, because there the specification contained no limit as to time. Here the limit was the date of raising the action, and the pursuer was willing to make it the date of intimating the claim to the defenders. Reports by a ship captain to the owners could be recovered under a diligence. The question whether documents sought to be recovered under a diligence were admissible was not to be decided ab ante— Livingstone v. Dinwoodie and Others, cit.