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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Allison v. Orr [2004] ScotCS 5 (08 January 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/5.html Cite as: 2004 SCLR 767, [2004] ScotCS 5 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord President Lord Johnston Lady Paton
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A2670/01 OPINION OF THE COURT delivered by LADY PATON in RECLAIMING MOTION in the cause LISA MARGARET ALLISON Pursuer and Reclaimer; against SIR JOHN ORR Defender and Respondent: _______ |
Act: R.W. Dunlop, Advocate; Balfour & Manson, Solicitors (for Levy & McRae, Solicitors, Glasgow)
Alt: Shand, Advocate; Simpson & Marwick, W.S.
8 January 2004
Certification of expert witnesses: employment consultant and actuary
[1] The pursuer is an officer with Strathclyde Police. On 2 January 1999, she was injured in the course of duty. While attempting to gain access to a disabled person's home, she used her baton to break a pane of glass. A segment of glass cut her right wrist, severing tendons leading to her dominant right hand.[2] The pursuer required immediate medical treatment, and ultimately two surgical operations. She continued to suffer disability in her right hand, including restricted movement, numbness, and weakness. She also developed a depressive illness (bipolar affective disorder) which required psychiatric treatment. She returned to work in September 2001, but felt unable to remain in mainstream police work. In January 2003 she took up a full-time post as a community police officer.
[3] The pursuer raised an action seeking damages of £100,000 from Strathclyde Police. She averred that as a result of the physical and psychiatric consequences of the accident, she had suffered "a loss of employability and a loss of prospects of promotion". She also averred that "in losing prospects of promotion [she] lost the prospect of increased pension rights". The defender denied these averments, and in Answer 6, responded:
"The pursuer had no realistic prospects of attaining promotion. Before she could have been eligible for promotion, she would have had to pass examinations in general police duties and crime papers in 1996, 1997, 1998 and 1999. She failed both papers in 1996, 1997 and 1998. In 1999 she succeeded in passing the crime paper only. She has never attempted the traffic paper. Her overall academic gradings from the Scottish Police College were poor. In all of her pre-accident performance reviews she was graded as 4, a level which indicates a satisfactory performance but which does not indicate that the officer concerned is suitable for promotion. The accident has not affected her promotion prospects."
[5] The motion for certification came before Temporary Judge Coutts Q.C. on 10 July 2003. The matter went to avizandum. In his opinion dated 30 July 2003, the judge refused to certify either expert. He stated:
"[11] In the light of the particular circumstances of the present case, the pursuer's averments and the content of the reports provided, I was not persuaded that either of these witnesses [was] necessary in this simple case of modest value. The basis of the opinions delivered in the reports by the experts all sprang from a speculative situation and it is a reasonable inference from the level of settlement that the considerations to which the experts were applying their minds played little if any part in the settlement. It cannot be said that this was indeed a case in which such experts were at some stage required. The court is well able to fix a sum for loss of employability and for such loss of pension rights as might ... ensue therefrom without attempting the impossible which is an accurate quantification of either of these matters. Neither of these experts could do that. I refuse certification."
Rule of court 42.13(2)
[7] Rule 42.13 provides:
" ... (2) Subject to paragraph (3), where it was necessary to employ a skilled person to make investigations in order to qualify him to give evidence in [a] prospective proof or jury trial, charges for such investigations and (if there is a proof or jury trial) for any attendance at it, shall be allowed in addition to the ordinary witness fees of such person at such rate which the Auditor shall determine is fair and reasonable.
... (3) The Auditor may make no determination under paragraph (2) or (2A) unless the court has, on granting a motion made for the purpose, not later than the time at which it awarded expenses -
The experts' remits and reports
[8] Dr. Grant's report dated 29 April 2003 and up-dated report dated 12 May 2003: In his report, Dr. Grant (M.A., Ph.D., M.A.E., M.E.W.I.) recorded that he had been instructed on 17 April 2003 to prepare an employment report. He was provided with the Closed Record, medical reports, and precognitions. He interviewed the pursuer. In his report, he set out the pursuer's education and employment history; the circumstances of the accident; the pursuer's condition thereafter; and the pursuer's employment history following upon the accident.[9] Dr. Grant then dealt with the pursuer's future employment prospects. He noted that the pursuer now felt less ambitious, and also that she considered that her health record since the accident had jeopardised her prospects of promotion. The pursuer anticipated continuing as a police officer until 2023, when she would be 50 years old. Nevertheless Dr. Grant proceeded to deal with the possibility that the pursuer might have to leave the police for reasons related to the accident (for example, if she had difficulty with her hand or a recurrence of her mental health problem). He then considered her prospects and likely rates of pay in alternative employment such as a routine administration, or social work. Dr. Grant concluded that the pursuer would never earn as much in other employments as she would as a police officer.
[10] Thereafter, under the heading "Employment prospects if the accident had not happened", Dr. Grant recorded what the pursuer told him. The pursuer's view was that, but for the accident, her career in the police would have been very different. The pursuer told Dr. Grant about her application for the police promotion examination; the one paper which she had passed; and her hopes and expectations relating to other papers. In paragraph 6.2 of his report, Dr. Grant noted some of the information obtained from the pursuer as follows:
" ... Ms. Allison is well aware that the police promotion exam is quite difficult (she told me she had tried it before the accident and failed) but was determined to keep trying until she passed. She was anticipating having fully passed the police promotion examination by 2001. However, she told me her main career interest before the accident was to apply to the Strathclyde Police drug squad. She had done a placement with them just before the accident, and she told me she had built up a good reputation there and had done some courses and was keen to do other courses. She anticipated that she might have joined the drug squad in about spring 1999 and been there for several years. She could also have pursued other aspects of drug policing including joining the STOP unit where she would have to build up dossiers of evidence to present in court against drug dealers etc. She could also have trained in drug surveillance work, either in a divisional surveillance unit or in the central surveillance unit. However in order to do that, she would have to undertake a surveillance driving course which requires being able to drive at high speed. She would have been quite happy to do that before the accident but since the accident no longer feels confident in the use of her hands to do so. Ms. Allison would also have had prospects of moving on to the Scottish Drugs Enforcement Agency if she had proved herself particularly good at drugs police work or surveillance work."
"It is my opinion that if Ms. Allison had spent some years in drugs-related police work and passed the police promotion examination, she would have been in a good position for promotion to sergeant, perhaps by about 2005 when she would have had 12 years service. In order to be promoted to sergeant, Ms. Allison would have had to go through a divisional panel and then look for a position as acting sergeant. Having obtained some experience in sergeant duties she would have been interviewed by a force panel for promotion to a substantive position as a sergeant. However, my opinion on this is based purely on what Ms. Allison told me at interview regarding her intentions and prospects. I have not seen any personnel information or assessments on Ms. Allison or any other information from Strathclyde Police and I can only accept that what Ms. Allison told me was likely to be correct."
[13] In his summary and conclusion, Dr. Grant stated:
"7.1 ... if Ms. Allison is unable to continue as a police officer for reasons related to the relevant accident, I believe that she would be unable to earn nearly as much as she would as a police officer. In routine administration, she might earn £15,000 to £18,000 gross per annum. If she trained as a social worker she might eventually earn around £22,000 gross per annum, but generally her earning prospects will be considerably worse if she is unable to continue as a police officer.
7.2 If the accident had not happened, Ms. Allison was hoping to advance her career as a police officer, particularly by engaging in drugs unit work and taking the promotion exam and looking for promotion to sergeant."
[15] Mr. Carlisle continued:
"However, you have asked us to consider the potential future loss of pension rights arising from impaired prospects of promotion. In particular, we are instructed to value the pension loss by comparing the pension that will accrue to Constable Allison if she remains in her current rank until retirement at age 51 (having completed 30 years of pensionable service) and the alternative pension that would arise if she was promoted to the rank of sergeant and retired at age 51 having been at least 5 years in that higher rank."
"On the basis of the data that has been supplied to us, and on the actuarial basis specified earlier in this letter, the value of future loss of retirement benefits is assessed at £27,350 as at May 2003."
Submissions for the pursuer and reclaimer
[17] Mr. Dunlop, for the pursuer, invited the court to recall the interlocutor of 30 July 2003 insofar as it refused certification of Dr. Grant and Mr. Carlisle as skilled witnesses; to recall consequential interlocutors dated 12 August 2003, awarding the defender the expenses of the pursuer's motion for certification; and finally to certify Dr. Grant and Mr. Carlisle as skilled witnesses in terms of rule of court 42.13(2).[18] Counsel for the pursuer pointed out that the shortfall in the pursuer's recoverable expenses was over £3,000. He accepted that appeals relating to expenses were to be discouraged. However, it was recognised that the court would consider questions of principle (cf. Macphail, Sheriff Court Practice (2nd ed.) paragraph 18.117).
[19] Counsel submitted that the temporary judge had erred in the exercise of his discretion by taking irrelevant matters into account, namely the nature and level of any settlement of the case. The necessity for instructing an expert witness had to be assessed at the time when the expert was instructed - i.e. some time before settlement. The fact that a case finally settled at a low figure did not necessarily mean that it was a "simple case of modest value". Many considerations could affect settlement, including the strength of the case on the merits. The pursuer had been advised that it would be difficult to establish liability on the part of the defender. She had been advised that her prospects of success were no higher than 50 per cent, and that even if she were successful on the merits, it was likely that there would be a significant finding of contributory negligence.
[20] Even if the nature and level of any settlement had been relevant (which was not accepted) it was not proper to draw inferences that the case was "simple" and "of modest value", or that "the considerations to which the experts were applying their minds played little if any part in the settlement".
[21] It was against that background of irrelevant considerations that the decision to refuse certification had been made. The witnesses had been accepted as skilled, and as having made investigations, but, taking the settlement into account, the court refused to accept that it had been necessary to instruct them. The court accordingly held that the third requirement of rule 42.13(2) had not been fulfilled. The word "necessary" was not defined in the rule. Counsel had found no guidance in reported cases. The word must mean something more than "desirable", yet it should not be put as high as "indispensable". In the pursuer's case, both senior and junior counsel had advised that the two witnesses in question should be instructed. The agents would have been open to criticism had they not followed those instructions. It was not suggested that counsel's views were decisive on the matter of certification, but such background information illustrated the difficulties faced by agents caught between counsel's express advice, and the court's refusal to certify.
[22] Dealing firstly with the necessity for the instruction of an employment consultant, counsel pointed out that the pursuer's claims were not speculative. The pursuer had in fact lost prospects of promotion. She had suffered a loss of employability. Loss of employability was not capable of precise calculation. It was true that the courts often valued such a head of claim in round figures, without expert testimony. Accordingly it was accepted that it had not been necessary to instruct an employment expert for the purposes of valuation. It was also accepted that evidence relating to loss of promotion prospects and loss of employability could be obtained from senior police officers, rather than from an employment consultant. However it had been expected that the defender would lead evidence from a senior police officer to the effect that the pursuer had not suffered loss of promotion prospects. So the pursuer had been obliged to find another witness - in this case, Dr. Grant, an employment consultant - to counter that anticipated evidence.
[23] The assistance which had been sought from Dr. Grant was accordingly his opinion as to whether or not the pursuer had a claim for loss of promotion prospects and loss of employability. He had not been asked for assistance with figures or valuations; rather he had been asked for an evaluation of the pursuer's pre-accident and post-accident capability in the employability sphere. He had been asked to comment on how able the pursuer had been, before the accident, to attain promotion. Dr. Grant addressed that issue at paragraphs 6.1 et seq. of his report, under the heading "Employment prospects if the accident had not happened".
[24] Faced with evidence indicating that the pursuer had suffered a psychiatric injury, and with the pursuer's assertion that her promotion prospects had been affected (an assertion which was denied by the defender, with evidence expected from a senior police officer), it was inappropriate for the pursuer's agents to rely solely upon the pursuer's evidence. It was proper for the agents to instruct an employment expert to see whether the pursuer's claim stood up. Valuation would be a matter for the court. But Dr. Grant was necessary to vouch whether the pursuer actually had a claim for loss of promotion prospects. Had his report been unfavourable to the pursuer, that would not detract from the necessity of instructing the report.
[25] The pursuer's personnel file had been recovered by specification of documents, and had been given to Dr. Grant. Accordingly by the date of the proof, Dr. Grant would have been in an even better position to comment on loss of promotion prospects.
[26] Counsel accepted that, if the court were to conclude that the pursuer's claims for loss of promotion prospects and loss of employability were simply not capable of being supported by evidence from an employment expert, then the reclaiming motion, so far as relating to the certification of Dr. Grant, could not succeed. Counsel also confirmed that it was no part of the pursuer's case that she might at some stage be obliged to leave the police force. Dr. Grant had dealt with that contingency because he had been asked to assess the pursuer's employability, and in that context, he had proceeded to look at what would happen if the pursuer was forced to leave the police.
[27] Turning to Mr. Carlisle, counsel for the pursuer adopted many of the arguments already advanced in relation to Dr. Grant. However he submitted that it was open to the court to treat the two witnesses differently. If, for example, the court were to accept the pursuer's uncorroborated evidence that she had suffered a loss of promotion prospects (and therefore a related loss of pension rights), the court would then proceed to the question of quantification. As methods of valuing loss of pension rights were many and complex, it was standard practice to provide actuarial assistance in quantification: cf. McEwan & Paton, Damages for Personal Injuries in Scotland (2nd ed.), paragraph 8-09. While therefore the employment expert had been instructed to assist in establishing a hypothesis (namely, that the pursuer had indeed suffered a loss of promotion prospects and a loss of employability), the actuary had been instructed to assist in valuing any claim which followed upon the establishment of that hypothesis.
[28] Counsel concluded by inviting the court to consider the question of certification de novo, and to certify both Dr. Grant and Mr. Carlisle as expert witnesses necessarily instructed in terms of rule 42.13(2).
Submissions for the defender and respondent
[29] Miss Shand, for the defender, submitted that the reclaiming motion should be refused. The temporary judge had not erred in the exercise of his discretion. Neither expert had been necessary in terms of rule 42.13(2).[30] The pursuer's original averment had been brief, namely: "As a result of the physical and psychiatric consequences of the accident, the pursuer has suffered a loss of employability and a loss of prospects of promotion." That averment had been elaborated by a minute of amendment lodged in May 2003, only a month or so before the diet of proof set for July 2003. Counsel referred to the section in Dr. Grant's report devoted to the pursuer's possible employment situation if she were to lose her job with the police. But the pursuer had never claimed that she was likely to lose her police employment. Accordingly that part of his report was unnecessary.
[31] The other parts of his report were equally unnecessary. It was not necessary to instruct an employment expert merely to obtain information about wage-scales for police officers. The narration of what the pursuer had told Dr. Grant about her promotion prospects (paragraph 6.2 of his report) amounted to no more than a repetition of the pursuer's views. Dr. Grant's expertise had thus not been brought into play. In any event, the best evidence of any promotion prospects would be the pursuer's personnel records, and evidence from her superiors in the police force. An employment expert was not an appropriate witness to comment on the pursuer's fitness for promotion. Personnel appraisals, the posts available, the number of applicants, and many other factors could affect promotion prospects, and the persons who could give the court assistance on these matters were police officers who were senior to the pursuer.
[32] If the pursuer had been able to prove an actual loss of promotion, then figures could be ascertained, a multiplier and multiplicand used, and a loss (which might be significant) calculated: cf. dicta in Ramsay v. Timbmet Woyka Ltd., 18 January 2001. But the question in the present case was merely one of loss of employability, in relation to which the appropriate approach was "broad brush", without the need for an employment consultant.
[33] Counsel contended that the level of settlement of the action might be relevant when considering certification, in that it tended to suggest that the pursuer was unlikely ever to have established that she had promotion prospects. Nevertheless, if the court took the view that settlement was irrelevant, the court should refuse to certify either Dr. Grant or Mr. Carlisle. It had not been necessary to employ them. The word "necessary" was not defined in rule 42.13(2), and was not easy to define. What could be said was that it was easy to recognise something which was unnecessary. In the present case, it was clear that Dr. Grant could not properly advise on the pursuer's prospects of promotion. For a proper assessment of the pursuer's prospects of promotion, the court would wish to hear from the pursuer, and from at least one other (more senior) witness from the police force. The pursuer's personnel records would also assist. It was self-evident that it had not been necessary to instruct Dr. Grant.
[34] So far as Mr. Carlisle was concerned, the need to employ an actuary might never have arisen, because at the time of instructing Mr. Carlisle the pursuer had not ingathered any material showing that there was indeed a loss of promotion prospects (and therefore a connected pension loss). Counsel for the defender accordingly submitted that so far as certification in terms of rule 42.13(2) was concerned, the two experts stood or fell together. As the pursuer had no evidence that she would have been promoted, it was unnecessary to instruct an actuary such as Mr. Carlisle.
[35] In conclusion, counsel for the defender invited the court to conclude that the temporary judge had not erred in the exercise of his discretion, and to refuse the reclaiming motion. Esto the court considered that certification should be assessed de novo, the court should refuse certification of both Dr. Grant and Mr. Carlisle.
Opinion
[36] A party may agree to settle an action for a variety of reasons. There may be doubts about the merits of the case; a crucial witness may have disappeared; personal circumstances may have changed; a party may feel unable to face the ordeal of the court-room. As a result, claims of considerable complexity and significant value may be resolved by parties agreeing upon the payment of a relatively modest sum.[37] For that reason alone, it seems to us that it cannot be inferred from the fact that the pursuer's action settled for one tenth of the sum sued for that her case was a simple one of modest value, and that it was unnecessary to instruct either Dr. Grant or Mr. Carlisle.
[38] But, in any event, the appropriate point in time at which to test the necessity of instructing an expert witness is the time when the witness was instructed. In the present case, the two expert witnesses were instructed in the course of preparation for the proof, when there were many unknowns and imponderables. At that stage, the pursuer's legal advisers could not foresee what path the litigation would take. In particular, they could not predict whether the action would ultimately settle, and if so, for what sum. Accordingly the decision whether or not it was necessary to instruct an expert witness had to be taken on the assumption that the case would proceed to a court hearing, and that certain matters had to be proved. We consider therefore that, in testing the necessity or otherwise of the instruction of an expert witness at that stage in the case, it is inappropriate to take into account a factor which could not have been known at that time, namely that the action would ultimately be settled at a certain sum.
[39] The judge in the present case, when considering the motion for certification of the expert witnesses, took into account the fact that the action had been settled, and also the level of settlement. For the reasons given above, we are of the view that these were irrelevant considerations. As we are persuaded that the judge erred in this respect in the exercise of his discretion, we shall recall the interlocutor of 30 July 2003 insofar as it refused certification of Dr. Grant and Mr. Carlisle. We now consider the question of certification de novo.
[40] Turning firstly to Dr. Grant: counsel for the pursuer explained that the purpose of instructing Dr. Grant was not to assist in the valuation of the pursuer's claim, but rather to support the pursuer's contention that she had suffered both loss of employability and loss of prospects of promotion.
[41] We have little hesitation in concluding that it was not necessary to employ Dr. Grant for that purpose.
[42] Damages in respect of loss of employability may be awarded whether or not the pursuer has remained in his or her pre-accident employment. The damages are intended to reflect the fact that, if the pursuer were obliged to seek alternative employment, he or she would by reason of injury or continuing disability be at a disadvantage on the labour market. It is a head of claim which is incapable of precise valuation. The courts regularly recognise and value loss of employability without reliance upon the evidence of employment experts. We therefore agree with both counsel that it is not necessary to instruct an employment expert to assist the court in valuing a claim for loss of employability. However in our view it is equally unnecessary to instruct an employment expert for the purpose of assessing whether or not a pursuer has in fact suffered a loss of employability. Loss of employability is something which the courts are well able to recognise, without assistance from an employment expert.
[43] As for loss of promotion, it is our view that an employment consultant with a general expertise in employment throughout the United Kingdom cannot add to what the court can do in connection with a particular pursuer's prospects of promotion within a particular employment in the United Kingdom. Even if the consultant studied all the relevant personnel information and assessments, he would be in no better position than a judge before whom the evidence of the pursuer and of more senior colleagues would presumably have been led, with informed comment upon the pursuer's examination results, appraisals, and any other relevant parts of the personnel records. Bearing in mind the many issues involved in promotion, including qualifications, aptitude, personality, number of posts available, and number of applicants, an employment expert could not in our view apply his general expertise to assist the court in assessing a particular pursuer's promotion prospects in a particular employment.
[44] Accordingly, we refuse to certify Dr. Grant in terms of rule 42.13(2).
[45] The second witness for whom certification was sought was Mr. Carlisle. Mr. Carlisle is an actuary with considerable experience in assessing, inter alia, the value of any loss of pension rights suffered by a pursuer as a result of an accident. When Mr. Carlisle was instructed, it was the pursuer's contention that she had suffered loss of promotion prospects and accordingly that she had suffered a loss of pension rights. Calculation of loss of pension rights can be a complex matter. The assistance of a skilled actuary is often necessary. However counsel for the defender contended that because the pursuer had, at the time of instructing Mr. Carlisle, no evidence other than her own to support her claim that she had suffered loss of promotion prospects, Mr. Carlisle should not have been instructed.
[46] We do not accept that contention. The question of loss of promotion prospects was one ultimately for the court. There was always the possibility that the court might accept the pursuer's evidence on that matter. The court would then proceed to the next stage, and would expect assistance in valuing any related loss of pension rights. With such a possibility in mind, a reasonably prudent lawyer would consider it necessary to be prepared to prove a valuation of any loss of pension rights. Accordingly, without attempting any general definition of the word "necessary" where it appears in rule 42.13 (a definition being in our view neither appropriate nor helpful, as necessity in such a context is "a creature difficult to describe but easy to recognise when one sees it", to borrow the words of Lord Keith in Armia Ltd. v. Daejan Developments Ltd., 1979 SC (HL) 56), we are satisfied that it was necessary to instruct Mr. Carlisle with the remit which he was given. In his case therefore, we shall grant certification.
[47] In the result, we shall allow the reclaiming motion, and recall the interlocutor of 30 July 2003 insofar as it refused certification of Dr. Grant and Mr. Carlisle. Having considered the question of certification de novo, we refuse to certify Dr. Grant in terms of rule 42.13(2), but we certify Mr. Carlisle in terms of that rule. In view of the now divided success relating to the matters debated at the motion roll hearing on 10 July 2003, we recall the two interlocutors dated 12 August 2003, and make a finding of no expenses due to or by either party in respect of that motion roll hearing.
[48] We reserve all questions of the expenses of the reclaiming motion, to enable parties to address the court on that matter.
