Glasgow sheriff refuses certification of skilled witness in £100 personal injury case

Ian McKay sought to certify a Mr David Donaldson, who examined him following the accident, in his action against MCE Insurance Company Ltd. The personal injury element of the claim was ultimately settled for the sum of £100.

The case was heard by Summary Sheriff Charles Lugton in Glasgow Sheriff Court. The pursuer was represented by Thompsons Solicitors and the defender by DAC Beachcroft Solicitors.

De minimis nature

The pursuer’s accident occurred on 25 October 2017. He had been sitting stationary in his vehicle on Dumbarton Road in Glasgow when a vehicle insured by the defender struck him from behind. Following the accident, the pursuer suffered pain in his back and neck. His medical history included a series of back problems dating back to 2000, including degenerative bulging of discs in his spinal cord.

Liability was admitted by the defender in January 2018. Agents acting for the pursuer instructed Mr Donaldson to examine the pursuer and provide a medical report. The letter of instruction also asked him to comment on the pursuer’s capacity for and absences from work, even though at the relevant time the pursuer was unemployed and receiving benefits for his back pain.

In his report, Mr Donaldson stated that the pursuer had told him he experienced around an hour of increased pain following the accident before it returned to its pre-accident level. This conflicted with what the pursuer had told his agents at the start of the case, however Mr Donaldson was not prepared to change his report in light of this.

It was submitted for the pursuer that it was appropriate to instruct an orthopaedic surgeon in light of the pursuer’s prior history of back problems, as a GP would not have been qualified to give an opinion on causation. While the pursuer was not asked about his symptoms at the start of the case, it was typical for road accident injuries to result in symptoms lasting longer than two months, and so the timeframe in which Mr Donaldson was instructed was appropriate.

In response, counsel for the defender submitted that the de minimis nature of the pursuer’s injury did not justify the instruction of an orthopaedic consultant. The pursuer had only offered to prove he had symptoms for the hour following the accident and the claim had been settled for £100. Further, the letter of instruction sent to Mr Donaldson appeared to be a “stock” letter, implying the pursuer’s agents had not properly applied their minds to whether and why this was appropriate.

Failed to ask salient questions

In his decision, Sheriff Lugton said of the circumstances of Mr Donaldson’s instruction: “When the pursuer’s agents instructed Mr Donaldson in January 2018 they were not in a position to assess, even on a provisional basis, the potential seriousness and significance of the pursuer’s injury. They were in possession of only limited knowledge at the time. They knew that the pursuer had been involved in what appears to have been a minor ‘rear-shunt’ accident, that he had attended his GP on the day of the accident and that he had still claimed to be experiencing symptoms when he instructed them twelve days later.”

He continued: “The context was that the pursuer already had a back problem that was sufficiently serious to prevent him from working. His agents did not know whether the pursuer considered his symptoms to be materially worse than they had been before the accident, in which case the instruction of an orthopaedic consultant to provide an opinion on causation might have been reasonable and proportionate in the circumstances; or whether the pursuer perceived any change in his symptoms to be trivial or transient, in which case a report from a GP might well have sufficed.”

Sheriff Lugton concluded: “Having failed to ask the pursuer the salient questions, the pursuer’s agents were not armed with the requisite knowledge to decide between these options and to conclude that Mr Donaldson’s instruction would be reasonable and proportionate. Objectively, there was no basis for reaching such a conclusion.”

For these reasons, the sheriff refused to certify Mr Donaldson as a skilled person.

Objective determination

On the use of a stock letter by the pursuer’s agents in instructing Mr Donaldson, the sheriff added: “There may be cases in which an examination of the wording of a letter of instruction is relevant to the determination of a motion for certification. But it should be remembered that in each individual case the question is whether the court is satisfied that the employment of the skilled person was reasonable and proportionate.”

He went on to say: “Whatever the particular thought process of the individual solicitor involved may in fact have been, reasonableness and proportionality fall to be determined objectively by the court on the basis of the material that the solicitor had (or should have had) in his or her possession. There may be occasions when despite the fact that agents have resorted to the use of a style letter of instruction, it is apparent from the circumstances as a whole that objectively, the employment of the skilled person was reasonable and proportionate.”