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OUTER HOUSE, COURT OF SESSION [2006] CSOH 178 |
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OPINION OF LORD CARLOWAY in the cause AMY WHITEHEAD'S LEGAL REPRESENTATIVE Pursuer; against GRAEME JOHN DOUGLAS AND ANOTHER Defenders: ญญญญญญญญญญญญญญญญญ________________ |
Pursuer:
Laing; Thompsons
Defenders: G Walker; Simpson & Marwick, WS
1. The Action
[1] The
pursuer is the mother of Amy Whitehead.
Miss Whitehead was aged twelve when she was struck by a van driven
by the first defender, who was in the course of his employment with the second
defenders. The accident occurred on
[2] The pursuer contends that Miss Whitehead was walking across the road. She avers that the first defender failed to slow down or to give any audible warning of his presence as he passed the school bus. He failed to keep a good lookout. It does not appear that the pursuer is alleging that the first defender was driving at an excessive speed as a generality. The defenders maintain that, in anticipation of children emerging from behind the bus, the first defender had slowed down. Miss Whitehead had simply run out across the road into his path without looking. As well as alleging sole or partial fault on the part of Miss Whitehead, there is a curious case of negligence pled against the pursuer for failing to instruct her daughter on how to cross the road.
2. The Reports
[3] A
proof has been fixed for
"12.1 I understand that my duty included in my providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party who has engaged me ...
12.4 I have indicated the sources of all information I have used ...
12.7 I understand that;
a) my report, subject to any corrections before swearing as to its correctness, will form the evidence to be given under oath or affirmation..."
In an appendix, Mr Parkin sets out the documentation he reviewed as follows:
"... Documentation reviewed ...
Statements taken by Solicitors or agents:
Alison COLE (3.7.03 - unsigned)
Pc 181 Martin Scott BLAIR (23.10.03 - unsigned)
William McLEOD (23.10.03 unsigned)
Other
documentation
Personal Injury Compensation Form completed by Alison COLE (13.5.03)..."
It is accepted that Mr Parkin's reference to "statements" is to precognitions taken by law agents. The Form is one completed by the pursuer and addressed to her Trade Union with a view to the institution of legal proceedings.
[4] Mr Parkin selects what he describes as "Salient Points from the Witness and Involved Party Statements". He quotes certain extracts. The first quotation is taken not from a precognition but from an Ambulance Service Patient Report Form, probably completed by the ambulance crewman, Mr McLeod. A history is noted shortly as: "Patient was struck by a van, possibly thrown 30ft along the road". The report records that Mr McLeod's precognition states that this information was an assumption from Mr McLeod's recollection of the relative positions of the van and Miss Whitehead. Secondly, there is an extract from the Compensation Form which includes:
"My daughter got off school bus outside house. Waited 'til bus well up road then crossed road. She was hit by a Transit van at approx 60-70 mph. I was first on scene of accident. Driver only just getting out of van and he said he didn't see her ... No skid marks on road and her school bag and shoes were on out side of the road so she must have been nearly across the road."
The extent to which this information could have come directly from the pursuer is not clear. There is then reference to parts of the pursuer's precognition. This contains references to the weather and light, to her seeing the bus pull away, to going out onto the road and seeing the condition of the van, her daughter and the location of her daughter's bag and shoes. It records that the first defender had said to her: "I'm really sorry I just didn't see her". It also refers to a conversation which the pursuer had with Miss Whitehead about the accident in hospital and to things supposedly said by the first defender to Miss Whitehead in a telephone call to the hospital. Thirdly, there is a large extract from a precognition of PC Blair, but this appears to be a verbatim record of a statement given to him by the first defender. The report paraphrases PC Blair's precognition concerning his examination of the van and the locus. Mr Parkin draws certain conclusions about the speed of the van. He expresses the view that the accident could, or perhaps would, have been avoided if the first defender had slowed down. It also suggests that the first defender might have used his horn.
[5] The second report lodged by the pursuer
is from a chartered clinical psychologist, Dr Katherine Edward. It is dated
"The information upon which
this report is based, was gained from:
(i)
Interview with Amy Whitehead and her mother ... on
(ii)
Interview with Amy Whitehead alone ...
(iii)
Completion with Amy Whitehead of "Children's PTSD Inventory" ...
(iv)
Completion by Amy alone of Beck Depression Inventory II ... and The
Self Image Profile for Adolescents ...
(v)
I have also had sight of the following documentation: Precognitions x 4 from Amy and her
mother ..."
This
narrative leaves it a little ambiguous as to whether the precognitions formed
any part of the basis for the report. From
the extensive discussion of the results of the various tests and the interview
material, it would appear that little reliance was placed on the content of the
precognitions (which are nowhere quoted).
However, there is a short passing reference to Miss Whitehead's
recall of the accident being very much in line with that noted at precognition.
[6] It is worthy of remark that the
defenders have lodged a report from their own road traffic expert,
R B Newbury, who is also based in
"9.9 I understand this report will be the evidence I will give under
oath, subject to any correction or qualification I may make before swearing to
its veracity."
Mr Newbury
bases much of what he says on a "statement" from the first defender; that statement also
probably being in the nature of a precognition.
The "statement" reveals that the first defender was aware of a child
disembarking from the school bus as he approached it at between 45 and
50 mph. He "eased off the accelerator",
thus slowing to between 35 and 40 mph. When the bus moved off, he saw the child in
the middle of the road. He braked and
veered to the left, but struck her at a point half way between the central road
markings and the on-side verge. Mr Newbury
qualifies his findings by expressly acknowledging that a divergence between the
first defender's "statement" and his evidence may result in a revision of his
analysis.
3. The
Application and Submissions
[7] The defenders moved for a commission and
diligence to recover the "Documentation reviewed" by Mr Parkin as noted
above and the " precognitions" of the pursuer and Miss Whitehead
referred to by Dr Edward. The
essential contention of the defenders is that they are entitled to recover this
material because it has been referred to in the reports lodged and relied upon
by the experts. The defenders were
entitled to the documents in order to test the conclusions reached by the
experts in their reports. It was
accepted that the court will not ordinarily order the recovery of documents
which: (i) are privileged; (ii) can not legitimately be used for
some purpose at the proof; (iii) disclose
information passing between agent and client; (iv) are prepared in contemplation of
litigation; and (v) are in the
nature of precognitions. The latter were
privileged because they fell into the categories already described. They could not be used either as evidence of
a prior inconsistent statement or as a substitute for the oral testimony of the
person precognosced, as they would contain material filtered through the mind
of the precognoscer. Nevertheless, there
were four bases for the application.
[8] First, in terms of Rule of Court 27.1.(1),
a party is obliged to lodge in process any document founded on by him in his
pleadings or adopted as incorporated therein.
The reports here had formed the basis for the averments and therefore
ought to have been lodged. Secondly, it
was the duty of an expert to disclose all sources of his information so that
the court and the other party could test his evidence (Davie v Magistrates of
Edinburgh 1953 SC 34, LP (Cooper) at 40; Dingley
v Chief Constable, Strathclyde Police 1998
SC 548, LP (Rodger) at 555; Wilkinson: The Scottish Law of Evidence pp 65-66; McTear v Imperial Tobacco 2005 2 SC 1,
Lord Nimmo Smith at paras 5.9-11, 5.17 approving the dicta of
Cresswell J in National Justice
Compania Naviera v Prudential Assurance
Co (The Ikarian Reefer) [1993] 2 Ll LR 68 at 81). In order to prepare for the proof, the
defenders required to have the material upon which the expert opinions were
based. The experts had complied with
their duty to disclose the documents upon which they relied but had not annexed
that material to their reports.
[9] Thirdly, by revealing part of the
content of the documents, the pursuer had waived any privilege attaching to
them (Clavering v McCunn (1881) 19 SLR 139, LP (Inglis) at 140; Wylie v Wylie 1967 SLT (notes) 9). Where privileged material was given to an
expert and the expert had relied upon it, privilege was waived upon disclosure
of the report (Clough v Tameside & Glossop Health Authority
[1998] 1 WLR 1478;
Dunlop Slazenger International v Joe Bloggs Sports, unreported, [2003]
EWCA Civ 901; Waller LJ at
para 15; Lucas v Barking,
Havering and Redbridge Hospitals NHS Trust [2004] 1 WLR 220,
Waller LJ at paras 18-19). Fourthly,
although the precognitions could not be put to the witnesses who had given
them, they could be put to the experts to see if their conclusions were merited
upon the material they had been given. The
Compensation Form was not a precognition and could be put to the pursuer (Dorona v Caldwell 1981 SLT (notes) 91, Lord Ross at 92; Highland Venison
Marketing v Allwild 1992
SLT 1127). The disclosure of this
material was consistent with the modern trend towards "front loading"
preparation. If parties did not wish to
reveal their precognitions, they should not send them to their expert but instead
prepare a memorial of fact for that expert.
This would not cause any material inconvenience and might produce more
focus in the instruction of experts.
[10] The pursuer opposed the motion. The documents involved were privileged and
not recoverable. If it were otherwise,
there would require to be a considerable change in the
practice of agents. The reports were not
evidence. The lodging of the reports was
to provide fair notice of the evidence to the other party; that is to say that, if the facts
established in evidence reflected the information given to the expert, the line
of the expert evidence would be likely to reflect the conclusions given in the
reports. Evidence is what is given
orally by experts in court and not what is in a report, itself containing
hypotheses. These hypotheses may, or may
not, be established. The situation here
is quite different from that in Davie v Magistrates of Edinburgh (supra), where the content of a
scientific pamphlet was being relied upon (see generally Walker and Walker: The Law of Evidence (2nd ed)
paras. 16.3.6, 16.3.12-13).
[11] First, Rule 27.1.(1)
was not in point. That dealt with
documents upon which a party was founding (see MacPhail: Sheriff Court Practice (2nd ed.)
para 15.47; Parliament
House Book Vol II, annotations at C205).
The reports were not mentioned in the pleadings. They might be used at the proof, but they
were not documents upon which the action was based. Secondly, so far as the duties of an expert
are concerned, there was no obligation on an expert to produce the
documentation upon which he had relied in a report. The practice in
[12] Thirdly, there was no element of waiver. In a case such as this, the expert might just
have listed the documents, rather than quoted from them. That would not entitle the other party to
recover them. If no expert report were
produced, a reference by the expert in the witness box to his having had sight
of precognitions would equally not entitle such recovery. Even in
4. Decision
[13] The lodging of an expert report has no
special significance. It is not
necessary to do so. An expert may give
his testimony from the witness box without reference to his report at all. He may do so with reference to his report
even although it may not have been formally lodged. The two main practical purposes of lodging a
report are first to provide the other side with greater notice of the evidence
to be adduced, thus perhaps reducing the risk of any successful objection based
upon lack of averment. Secondly, it may
assist a party in adducing the evidence of his expert if that expert has his
report to hand and is taken through it in easily digestible sections. However, the report is not a substitute for
the expert's evidence in chief, as it may be in other jurisdictions. It does not normally become part of his sworn
testimony. In this regard, the
undertakings, given by both road traffic experts in relation to the reports
becoming their evidence under oath or affirmation, display an apparent
misunderstanding of the nature of their evidence as it will be taken in
[14] Because the report itself is not evidence,
there is no absolute entitlement to material which may have been used in the
formulation of its conclusions. Of course,
if the report reveals that there is real or other evidence which has, or may
have, a bearing on the case and the other party has hitherto been unaware of
that evidence, that party may well be able to recover it by commission and
diligence. If it reveals the existence
of witnesses, the party may seek to take precognitions from them. But the mere fact that a report discloses the
existence of written material, and perhaps even quotes it, does not, of itself,
result in the normal rules for the recovery of such material being altered.
[15] Rule 27.(1).1
has no bearing on the issue raised in this case. That rule requires the lodging of any
document founded upon, by incorporation or quotation, in a party's pleadings. The rule does no more than re-iterate what
has been a requirement for many years. If
a document is the subject of averment, because proof of that document is a
necessary, or at least a desirable, element in the case, then it requires to be
lodged in process. Thus, if a case is
founded upon a document, such as a contract, will or other writing, then that
document has to be lodged in process. That
is not the case here. Proof of the
expert reports is not a requirement in the case, even if evidence from an
expert may be a crucial aspect at a proof.
Proof of the existence of the reports adds nothing to the pursuer's case. The reports are, quite correctly, not even
mentioned in the pleadings. In short,
then, the terms of the rule provide no requirement for production.
[16] Although I am in no position to express
any view on civil practice and procedure in
[17] It is not at all clear that an expert,
instructed by one party, has some form of duty to the court greater than any
professional or other witness. There is
no reason to suppose that, in producing a report for a party on the
instructions of agents, an expert thereby imposes upon himself a duty to the
court, at least where he is unaware that the court might be asked to rely upon his
report in advance of his testimony. Of
course, once he is sworn, he must abide by the terms of his oath. However, when he is in the witness box, what
he is permitted and not permitted to say will depend not just on what he is
asked but on what he is not asked. He is
not in a position to volunteer information.
If an expert's testimony is to be accepted, a party may have to lay a
proper foundation for the opinion ultimately delivered, but that is for that
party to do. It cannot be achieved by
the expert in isolation.
[18] When the Lord President (Cooper) expressed
the view that the duty of the expert is to furnish the court with the necessary
criteria for testing the accuracy of his conclusion (Davie v Magistrates of
Edinburgh (supra) at p 40),
he was presupposing that expert had an opportunity to do so. He was also talking in the context of the
assessment of the weight to be given to opinion evidence. If it is mere assertion ("ipse dixit"), "it will normally carry
little weight". But that will depend
upon the circumstances, such as whether the assertion is challenged and, if so,
in what manner. Although the duties set
out by Cresswell J in The Ikerian
Reeper (supra at 81) may be
of assistance when looking at an expert's testimony in court and, in
particular, when comparing it with the testimony of other experts, it is
difficult to extend the duties much beyond the witness box in the Scottish
context. When Lord Rodger was talking of
the court "testing" expert evidence in Dingley
v Chief Constable, Strathclyde Police (supra at 555), he was doing so in
the context of the court having heard oral, and competing, testimony from
experts at a proof. When such evidence
has been given, the court will have to analyse, and in that sense "test", the
evidence which has been given. But the
court itself cannot otherwise "test" the evidence, such as by probing it with
questions or using other forensic skills.
That is not part of the court's proper function in an adversarial system.
[19] A party is entitled to test an expert's
testimony given in court. He may do so
in a number of ways. One obvious way is
to undermine the factual basis upon which the expert has formed his views. Thus, where, as here, an expert has set out
the factual base by reference to the content of statements or other similar
material, the opposing party may attempt to demonstrate that the factual base given
to him was wrong. That base, or a
material part of it, may not ultimately be established in evidence. If it is not, the expert evidence may be at
risk of rejection for that reason. Even
if the expert is able to reformulate his views based upon the evidence given in
court, his new conclusion may be regarded as tainted by the views he formed
earlier based on the erroneous information.
What would appear to be of peripheral value at best would be an attempt
by a challenging party to maintain that, whatever his evidence in court, the expert's
conclusion in his report was wrong upon the information he was provided with at
that time, even although that information is itself ultimately proved to have
been wrong. The court should be slow to
encourage such a convoluted line of cross examination. In short, the task which the defenders here
state they seek to embark upon would appear to be of very limited value indeed. That leads at least to a suspicion that what
is really being indulged in is a fishing exercise to discover the content of
the precognitions for wider reasons.
[20] It has long been the practice for experts
to be asked to report, orally or in writing, by being sent the record, the
precognitions and other relevant material in the case. The expert will set out what he understands
to be the facts, or range of possible facts, based upon what he has been
provided with. The subsequent revelation
of his report to the opposing party is, as already noted, done in part with a
view to giving that party notice that if a given set of facts is proved then
the line of opinion is likely to be that in the report. In this case, there can hardly be a complaint
of lack of fair notice where the reports are lodged with a detailed account of
the factual bases for the conclusions reached.
The disclosure of the reports is not done with a view to permitting the
opposing party unlimited access to all of the material, which would normally be
regarded as privileged, forming the basis of the expert's understanding of the
facts. In that state of current Scottish
practice, a party cannot be taken to have waived his rights of confidentiality
or privilege merely by disclosing the existence, or even some of the content,
of these documents to his own expert and later intimating a report from that
expert which makes mention of them. In
this regard the case is quite different from the situation where a party seeks
to found upon part of a document, or series of documents, as an element of his
proof. In that event, the other party is
entitled to disclosure of, and to use, the other parts of the document or
series. In the situation here, the
pursuer does not, and cannot legitimately, found upon the content of the
precognitions.
[21] Reference to the content of precognitions
is generally not permitted at a proof or jury trial. That is not just because the content is
privileged but because it is regarded as an unsafe measure of what a person is
alleged to have said. It is naturally
tainted by the filtering process. In
that situation, it cannot be put to the person precognosced. It would be a somewhat strange if,
nevertheless, a party were allowed to adduce evidence of it for the very
limited purpose of demonstrating that an expert misunderstood or mis-stated the
content of the precognitions in framing his report. In a jury trial, it would be extremely
difficult, and probably impossible, for the judge to give the jury the
necessary clear directions on that limited use.
The only reasonable course to adopt in the course of a proof or jury
trial would be to follow the normal practice and to exclude reference to the
content of precognitions entirely. The Compensation
Form is in a slightly different position, because it has not been filtered. However, I was advised that there had in fact
been disclosure of the whole of that part of the form containing the statement
relative to the accident. It was not
suggested that this advice might be inaccurate.
In these circumstances, given the nature of the remaining content of the
Form, I would not have been inclined to grant a commission and diligence in the
terms sought, especially in the absence of an excerpting provision.
[22] For all of these reasons the motion for a
commission and diligence is refused. I
should add that, had I decided otherwise, the practice of instructing experts
may well have had to undergo significant change. Law agents would have to decide whether to
send the precognitions to an expert in the knowledge that they may be required
to disclose them. Instead, they might have
to compose a summary of the facts from their precognitions. It is not immediately obvious that such a
double filtering process would advance the interests of justice in personal
injuries litigation.