Armstrong v ERS Syndicate Management Ltd
| Jurisdiction | Scotland |
| Judge | Sheriff Principal CD Turnbull |
| Judgment Date | 28 August 2018 |
| Date | 28 August 2018 |
| Court | Sheriff Appeal Court |
| Docket Number | No 4 |
[2018] SAC (Civ) 28
Sheriff Principal CD Turnbull
EE Caledonia Ltd v London Bridge Engineering Ltd and ors 1997 GWD 33-1658; The Times, 28 November 1997
Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SC (UKSC) 59; 2016 SLT 209; 2016 SCLR 203; [2016] 1 WLR 597; [2016] ICR 325; [2016] PIQR P9; 149 BMLR 17; The Times, 29 February 2016
McTear v Imperial Tobacco Ltd sub nom McTear's Exrx v Imperial Tobacco Ltd [2005] CSOH 69; 2005 2 SC 1; 2005 GWD 20-365
National Justice Compañía Naviera SA v Prudential Assurance Co Ltd (No 1) (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68; [1993] FSR 563; [1993] 37 EG 158; The Times, 5 March 1993
R (on the application of Factortame Ltd and ors) v Secretary of State for Transport, Local Government and the Regions (No 8) [2002] EWCA Civ 932; [2003] QB 381; [2002] 3 WLR 1104; [2002] 4 All ER 97; [2003] BLR 1; [2002] 3 Costs LR 467; The Times, 9 July 2002; The Independent, 10 July 2002; Daily Telegraph, 11 July 2002; (2002) 99 (35) LSG 34; 152 NLJ 1313; 146 SJLB 178
Wilson v HM Advocate [2009] HCJAC 58; 2009 JC 336; 2009 SCCR 666; 2009 SCL 1047; 2009 GWD 24-385
Civil Justice Council, Guidance for the Instruction of Experts in Civil Claims (Civil Justice Council, London, August 2014), para 88 (Online: https://www.judiciary.uk/wp-content/uploads/2014/08/experts-guidance-cjc-aug-2014-amended-dec-8.pdf (28 January 2019))
Evidence — Witnesses — Expert witnesses — Whether a skilled witness operating under a contingent fee arrangement independent and impartial — Whether evidence admissible
Samantha Armstrong, Dylan Cameron and Conor Lyall raised actions for damages in respect of personal injuries by summary cause procedure. The actions were conjoined for the purposes of proof. After proof, the sheriff found in favour of each pursuer and made awards of damages. The defender appealed by stated case to the Sheriff Appeal Court.
On 21 September 2014, the pursuers were involved in a road traffic accident. The defender conceded that the accident had been caused by the fault and negligence of its insured but contested whether any injuries had been sustained by the respondents as a result of the accident.
At proof, a medical witness gave evidence on behalf of the pursuers as to causation. The appellant objected to the admissibility of that evidence on the grounds that he had acted on a contingency basis with regard to the recovery of his fees in respect of the preparation of the medical reports relied on by the pursuers, and therefore his independence and impartiality were questionable. The appellant further argued that no weight should be given to that evidence.
At close of the proof, having heard submissions, the sheriff concluded that the testimony was admissible, repelled the appellant's objection and made awards of damages in favour of each respondent. The appellant appealed by stated case in respect of the admissibility of the physician's evidence.
Held that, considering the sheriff's criticisms of the overall quality of the witness' evidence, there was no circumstance justifying the admission of the evidence despite the contingency fee arrangement (para 14); and appeal allowed.
National Justice Compañ´a Naviera SA v Prudential Assurance Co Ltd (No 1) (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68, R (Factortame Ltd and ors) v Secretary of State for Transport, Local Government and the Regions (No 8)[2002] 3 WLR 1104 and Kennedy v Cordia (Services) LLP2016 SC (UKSC) 59followed.
The cause called before the Sheriff Appeal Court (Sheriff Principal CD Turnbull) for a hearing, on 7 June 2018.
At advising, on 28 August 2018, the opinion of the Court was delivered by Sheriff Principal CD Turnbull—
Opinion of the Court—
[1] At first blush, there is no obvious connection between a ship running aground on the shoals off Sherbro Island, Republic of Sierra Leone, in the course of a voyage from Kiel to Abidjan, and a minor collision involving the motorcar in which the respondents in this appeal were then travelling at a roundabout on Great Western Road, Glasgow, while they were on their way to an amateur football match. On closer examination, however, one of the principles enunciated by Cresswell J in the proceedings arising from the former, to which I return below at para 6, is brought into sharp focus by the facts found by the sheriff in the proceedings arising from the latter.
[2] On 21 September 2014, the respondents were each passengers in a motorvehicle travelling on its way to an amateur football match. As the vehicle was moving away from traffic lights at a roundabout on Great Western Road, Glasgow, it was struck from the right by a vehicle driven by the appellant's insured. Proceedings were commenced against the appellant by each of the respondents. It was conceded by the appellant that the accident had been caused by the fault and negligence of their insured, however, the appellant contested whether any of the respondents had suffered any injury as a result of the accident.
[3] The actions were conjoined for the purposes of proof. A notable feature of the proof was the evidence of a skilled witness, Dr AB, who gave evidence on behalf of the respondents. Before Dr AB gave evidence, counsel for the appellant objected to its admissibility. As he was required to do in terms of SCR, r 8.15 (Act of Sederunt (Summary Cause Rules) 2002 (SSI 2002/132)), the sheriff noted the terms of the objection and allowed the evidence to be led, reserving the question of its admissibility to be decided by him at the close of the proof. At the close of the proof, having heard submissions on the issue, the sheriff concluded that Dr AB's testimony was admissible and repelled the appellant's objection. The sheriff found in favour of each respondent and made awards of damages.
[4] Four questions are stated for the opinion of this court. They are in the following terms:
‘1. Did I err in law in repelling the (appellant's) objection to the admissibility of the evidence of Dr AB?
2. Did I err in giving weight to and relying upon the evidence of Dr AB in making findings in fact?
3. Did I err in holding the injuries at issue in this case were of a type which could give rise to an inference of a causal connection which ordinary people of no medical qualifications or experience could determine as a matter of ordinary experience?
4. Did I err in taking account of the consideration that the defender might have adduced a skilled witness of his own in order to challenge the approach of the (respondents') skilled witness?’
[5] The objection taken before Dr AB gave evidence fell into two parts. First, on the basis that Dr AB's independence and impartiality were questionable. Secondly, that no weight should be attached to his evidence since his reports demonstrated no attempt to analyse or discuss medical concepts or their application to the materials before him. In relation to the former, the terms of finding in fact 29 are of significance. That finding is in the following terms:
‘[Dr AB] acted on a contingency basis with regard to the recovery of his fees in respect of the preparation of the medical reports relied on by the (respondents). He would not seek payment of fees for the three reports he prepared for the [respondents] in the event that the [respondents] were unsuccessful in their actions.’
[6] The seminal case on the duties and responsibilities of expert or, more properly in Scotland, skilled witnesses is that of National Justice Compañía Naviera SA v Prudential Assurance Co Ltd (No 1). As is commonplace in the English courts in maritime cases, the case is more commonly referred to by...
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