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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 197
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PD1480/07
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OPINION OF LORD BRODIE
in the cause
FRANCIS WILKIE
Pursuer;
against
D B STUART LIMITED
and OTHERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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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 65th
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.
