Amy Whitehead's Legal Representative V. Graeme John Douglas And Another
| Jurisdiction | Scotland |
| Judge | Lord Carloway |
| Neutral Citation | [2006] CSOH 178 |
| Court | Court of Session |
| Published date | 20 November 2006 |
| Date | 20 November 2006 |
| Year | 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 178 | |
| OPINION OF LORD CARLOWAY in the cause AMY WHITEHEAD'S LEGAL REPRESENTATIVE Pursuer; against GRAEME JOHN DOUGLAS AND ANOTHER Defenders: ________________ |
Pursuer: Laing; Thompsons
Defenders: G Walker; Simpson & Marwick, WS
20 November 2006
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 6 December 2002 on the B876 road at East Kirk, near Wick. The circumstances, so far as not in dispute, are tragically familiar. Miss Whitehead had travelled home from school by bus. She had alighted and gone towards the rear of the bus before attempting to cross the road to her house. It was when she moved across onto the opposite carriageway from the direction of travel of the bus that she was hit by the van. Miss Whitehead sustained serious injuries, especially to her left leg, which nearly had to be amputated.
[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 28 November 2006 and the three following days. The pursuer has elected to lodge two reports in process. The first is from Steven Parkin, an "Accident Reconstruction ... Specialist" based in England. His report is dated 14 January 2004. It contains material which appears to be intended for use in the English courts, notably something called an "Expert's Declaration" which narrates, inter alia, that:
"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 27 September 2006. This is a psychological assessment of Miss Whitehead. It is prefaced with the following:
"The information upon which this report is based, was gained from:
(i) Interview with Amy Whitehead and her mother ... on 21st August 2006.
(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 England. This too contains a declaration, including:
"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...
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