Personal injury court refuses motion for certification of person as ‘skilled witness’

The All-Scotland Sheriff Personal Injury Court has published a judgment which deals with the approach to be taken for certification of skilled witnesses.

The sheriff in the case ofMargaret Hunter v East Lothian Council held that while the witness was “skilled”, the relevance of his skills to the issue in the case was “doubtful” and therefore it was “not reasonable” to employ him at the stage at which he was instructed.

Accident at work

Sheriff Kenneth McGowan heard that the pursuer Margaret Hunter was injured in an accident at work while she was employed as a nursery nurse by the defenders East Lothian Council.

The pursuer’s position was that she was supervising children in the playground when she struck from behind by a child on a tricycle, which caused her to fall and break her arm.

It was averred by the pursuer that the appropriate maximum ratio was 10 children to one adult, but at the time of the incident the playground was congested with 17 children present.

In essence, the pursuer’s case was a common law case that there was a lack of “appropriate monitoring” of child numbers; that a risk assessment should have been carried out and would have demonstrated the need for a safe system of work; that there was no system for monitoring the number of children in the playground; and that such a system was introduced after the accident.

However, the defenders denied liability and the council’s position was that the pursuer was at “sole fault”, having simply “stepped backwards and fallen”.

Accordingly, the pursuer had to prove that leaving the pursuer to supervise 17 children was a breach of their duties towards her and that that breach of duty caused her accident.

The pursuer had sued for £50,000, but accepted a tender for £15,000 just before the pre-trial meeting and the case came before the sheriff on the pursuer’s motion for decree in terms of a tender and acceptance; sanction for the employment of counsel; and certification of two named persons as skilled witnesses, but the defenders opposed certification of the second of these persons, a Mr Bradley.

‘Skilled person’

It was accepted by the pursuer that that Mr Bradley had no experience of nursery nursing, but  it was submitted that he did have “general experience of risk assessments” and experience of safe systems of work in another context, having been involved in such for teachers and social- and health-care workers working in settings where aggression and violence were foreseeable.

He had initially gained his knowledge in these various areas in the late 1990s/early 2000s and had advised on the need for employers to provide safe systems of work for staff, maintaining his knowledge of the application of risk assessment and control principles by delivering training seminars and workshops due to undergraduate professional groups, in particular those dealing with challenging behaviour; adolescent mental health; ADHD; and learning disability environments.

He had also He had previously given opinions for court actions and has given evidence about the risk reduction in the context of learning disability; child care; elderly care; and mental health care.

However, the defenders’ position was that (Mr Bradley was not skilled; if he was skilled, it had not been demonstrated that he had exercised that skill; and it had not been reasonable to instruct him.

It was submitted that Mr Bradley’s background was nursing in the NHS and that he had “no experience” of teaching – whether nursing, primary, secondary – or of involvement in the delivery of education at these levels.

His report made a specific reference to the Health and Safety Act and suggested that the accident giving rise to the pursuer’s injuries was a “violent” incident, but it was argued that the incident could not properly be categorised as violent.

Mr Bradley may have had expertise in restraint and de-escalation, but that was not relevant to the present case and it was clear that Mr Bradley had no knowledge of the competing interests which had to be balanced in delivering education to very young children.

‘Not reasonable to employ him’

The sheriff explained that in terms of theAct of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992, a motion for the certification of a person as skilled could only be granted if the court was satisfied that (a) the person was a skilled person; and (b) it was reasonable to employ him.

In a written note, Sheriff McGowan said: “How is this to be interpreted? Does it mean that Mr Bradley’s putative skill should be looked at in isolation; or is it appropriate to proceed on the basis that the question of skill must be determined by reference to the matters in issue in the case i.e. is it necessary to demonstrate that Mr Bradley had relevant skill? In my opinion, the correct interpretation is the former rather than the latter. The only question (at this stage) is whether it can be said that at the time of his instruction, Mr Bradley was possessed of skill based on knowledge, experience, training or education or a combination thereof.

“In my opinion, that can be determined relatively easily by reference to his curriculum vitae. It is clear that Mr Bradley has a number of academic and professional qualifications. He has experience of both nursing and teaching. He holds a senior academic post. He has teaching and research responsibilities. He is a reviewer of academic papers and an academic author. In these circumstances, I have no difficulty in holding that he was skilled.”

However, the sheriff considered that Mr Bradley skill was “not very well suited to the circumstances of this case” as he had “no experience” of this type of educational setting and was “more versed” in situations where violence or the need for restraint might arise, adding that his apparent characterisation of a small child on wheeled toy colliding with an adult staff member as a “violent incident” was “odd”.

Sheriff McGowan observed that at the stage when Mr Bradley was instructed, there was no information as to the timing and/or scope of research carried in identifying him as a suitable expert; the factual and legal issues between the parties had not been focussed in the pleadings; the instructions to Mr Bradley were confusing and unclear; he was asked to opine on matters which were matters for the court; the information provided to him was incomplete (no information about dimensions/layout of playground; no copy of risk assessment); and the relevance of his skills was doubtful.

He concluded: “The cumulative effect of these points is that I am not satisfied that it was reasonable to employ Mr Bradley at the stage at which he was instructed.”