Judge allows personal injury claim against Police Scotland to proceed despite ‘inordinate and inexcusable delay’

Anji Mannas claims that although the physical injuries she sustained were “modest”, she suffered “severe and continuing psychological injuries” as a consequence of the crash, which happened in 2001.

A judge in the Court of Session has allowed the action to proceed after dismissing an attempt by the Chief Constable of the Police Service for Scotland to have the case thrown out due to “unfairness” caused by “inordinate and inexcusable delay” on the part of the pursuer’s former lawyers in progressing her claim.

‘Fear of contamination’

Lord Tyre heard that the accident occurred on 20 January 2001 when the pursuer was a rear seat passenger in a car being driven by the third party James McSween along a street in Glasgow.

The driver had stopped at traffic lights and indicated his intention to turn right, but as he turned his car was hit by a police van which had approached at speed from the rear in the opposition carriageway while responding to an emergency call.

The pursuer’s pleadings state that as a consequence of the accident she suffered depression and panic disorder, agoraphobia, obsessive compulsive disorder, major depressive disorder, and “fear of contamination” by contact with other people.

She claimed for past and future solatium, past and future loss of earnings, loss of pension benefits, past and future services, and inability to provide services to her disabled daughter.

In response the defender denied that the accident was caused by any fault on the part of the driver of the van, PC Cartwright, adding that he was driving in the opposite carriageway to avoid delay in responding to the emergency call.

The defender’s position was that the klaxon, blue lights and flashing headlights were all activated, and that the accident was caused by the fault of the third party, who had failed to indicate.

The court was told that the accident was the subject of a civil action raised in Glasgow Sheriff Court by another passenger in the car, and that following a proof in 2006 the sheriff issued a judgment finding the defender 20% and the third party 80% to blame for the crash.

The pursuer raised the present action for damages in early 2004, but the case was sisted to enable the pursuer to apply for legal aid.

She was granted legal aid in May 2004, but the action remained sisted until January 2017.

‘Unfairness’

The defender then made an application under Rule of Court 21A to have the action dismissed.

It was argued that the criteria set out in Rule 21A had been fulfilled and that the court should exercise its discretion by invoking its power to dismiss the claim.

The defender submitted that it was a matter of admission that there had been “inordinate and inexcusable delay” on the part of the pursuer’s former agents in progressing the action, and that to allow the action to proceed would be to cause “unfairness” to the defender both in relation to the defence on liability and in relation to quantum.

The defender also pointed out that the pursuer had put in issue her daily life over a period of more than 20 years, during which time she had suffered a number of psychological stressors, including an alleged assault by police in 1997 (an action in respect of which was raised in 2000, sisted for 17 years and recently dismissed due to delay); the birth of her daughter with severe congenital deformities (with regard to which the pursuer had raised an action for professional negligence that was abandoned in 2005); two miscarriages in 2014; the birth of a child by caesarean section in 2015; and a threatened eviction from her home in 2016.

It was accordingly argued in relation to causation that it would be unfair to expose the defender to the claims being made by the pursuer, who had been described by a treating physician as “having adopted the role of perpetual victim”, as if the action had been pursued expiditiously the court was not have had to adjudicate on the difficult question of whether the pursuer’s psychological injuries were attributable to the road traffic accident as opposed to any of the other stressors. 

On behalf of the pursuer it was submitted that the defender’s motion for dismissal should be refused as it could not be said that the delay had resulted in the defender being unable to defend the action and there would be “no unfairness” in allowing the case to proceed. 

The case, it was argued, was a “straightforward” one - the only issue on the merits being whether the third party ought to have been aware of the approaching police van, and there was evidence from witnesses in the form of statements taken by police officers shortly after the incident.

‘Fair trial not impossible’

The judge refused to grant the defender’s motion to dismiss the action, but added that there was clearly a need for the case to be actively managed to avoid further delay.

In a written opinion, Lord Tyre said: “A delay of the length that has occurred in this case will inevitably create difficulties for all parties to a litigation. Witnesses may be difficult to trace and, as is well recognised, memories may have faded with the passage of time and become unreliable. 

“To the extent that these difficulties affect the presentation of the defence, I accept that they introduce an element of unfairness into the proceedings. Despite this, I am not persuaded that the circumstances of this case are such that there is a substantial risk that justice cannot be done.

“As regards the circumstances of the accident, it has emerged that contemporaneous witness accounts are available. Although there may still be difficulties in tracing witnesses, these statements may help, as regards witnesses who are traced and cited to give evidence at proof, to refresh their memories of the incident. 

“It has to be borne in mind that the onus of proof will rest upon the pursuer. If the court were to find that the evidence was too unreliable to permit critical findings in fact to be made, it is the pursuer who would be prejudiced by failing to prove her claim.”

The judge also rejected the suggestion that the court could, for the purposes of deciding whether to grant a motion under Rule 21A, have regard to the fact that the defender has been found liable in a previous action, as that would be a contravention of the general rule that a decree in an earlier cause is not admissible in evidence in another cause.

On the issue of causation, Lord Tyre observed that both the pursuer and defender had written opinions of consultant psychiatrists expressing views, albeit with some difficulty, on whether and if so to what extent there is a causal link between the accident and the pursuer’s symptoms.

“Although these issues are far from straightforward,” he said, “it does not appear to me that the passage of time has rendered a fair trial impossible. Overall, it seems to me that uncertainty in the expert opinions as to causation is likely to operate against the pursuer’s interests in the same way as will concern about reliability of evidence on the merits.

“Lastly,” the judge added, “in relation to damages, it again seems to me that any uncertainties or evidential gaps are more likely to operate against the pursuer than in her favour, and that these do not give rise to a real risk from the perspective of the defender and third party that justice cannot be done.”