Nurse who settled personal injury claim granted motion for certification of skilled persons despite opposition

A judge in the Court of Session granted the pursuer’s motion for certification of the “skilled persons” despite claims by the defenders that the employment of three of the five witnesses was “unreasonable”.

Lady Clark of Calton heard that the pursuer “DM” raised an action claiming £500,000 damages from the defenders Lothian NHS Board for breach of statutory duty under the Health and Safety at Work Regulations 1999, after she slipped on a piece of ice while working in the course of her employment as an intensive care unit nurse in November 2010, causing her to fall and sustain loss and injury.

Further averments were made about the consequences of the injury which included remedial operations, inability to progress her nursing career, retirement on medical grounds, loss of pension, disadvantage in the labour market, problems with accommodation and necessary adaptations required to her home.

During the preparation of the action a consultant orthopaedic surgeon, a consultant psychiatrist, an occupational therapist, a vocational consultant, and an actuarial consultant were instructed by the pursuer’s agents to investigate and advise about her claim and to prepare reports.

The defenders denied liability, averred contributory negligence on the part of the pursuer and said that the sum sued for was “excessive”, but no substantive averments were made by the defenders about loss, injury or damage until May 2015.

Following investigations and surveillance of the pursuer by an investigator, the defenders produced a minute of amendment which alleged that the extent of the pursuer’s disability, if any, was “exaggerated” and accused her of “malingering”.

The case was eventually settled following a pre‑trial meeting in May 2015, when the pursuer accepted a minute of tender for £25,000 sterling net of any liability from the defenders.

Following the settlement of the action a motion was enrolled on behalf of the pursuer, which sought certification of five skilled persons in terms of Rule of Court 42.13(A)(2).

But the motion was opposed by the defenders, who argued that certification of three of the witnesses was “unreasonable” as their instruction was brought about solely by the pursuer’s “deliberate exaggeration of her claim”.

Counsel for the defenders submitted that the health board should not be liable in expenses for the “substantial fees” occasioned by instruction of three of the skilled persons to investigate and report in the circumstances of this case.

He invited the court to take a “broad view of the realities of litigation”, arguing that the purser “deliberately falsified her symptoms for financial compensation”.

As a result, it was submitted, three skilled persons had been “wrongly led” to make reports which led to an “overvaluation” in the assessment of damages, with a claim in excess of £800,000 in the statement of valuation, £500,000 on record and a revised valuation put forward by the pursuer in excess of £100,000 at the end of 2014, compared to the “very modest” settlement of £25,000.

However, the judge described the defenders’ opposition to the motion as “ill founded”.

In a written opinion, Lady Clark said: “This court has a very wide discretion in relation to expenses and is well able to reflect disapproval of the conduct of a party in litigation, be it fraudulent or otherwise, by refusing expenses, in whole or in part, to a party who has had success in a litigation.

“In my opinion, however, counsel for the defenders made a bold submission on the motion roll. He invited the court to condemn the successful pursuer to whom damages have been conceded and tendered and find that she deliberately falsified her symptoms for financial compensation and so penalise her in relation to her motion for expenses.

“I was invited by counsel for the defenders to bear in mind the realities of litigation and I do so. The realities of litigation are that a hypothetical pursuer may have loss, injury and damage reasonably calculated at £800,000 in damages but the case may be worth nothing if liability is not proved or funding is withdrawn and the pursuer cannot proceed to proof.

“In the pursuer’s case there are averments of a complicated history including some recent recovery by the pursuer, no admission of liability, averments of contributory negligence, no legal aid and a proof of eight days set down.

“In such a case, I would not be surprised at any level of settlement by either the pursuer or the defender. I would not be prepared to draw any inference from the level of settlement in this case on the basis of ex parte statements on the motion roll and reference to some reports.

“In the circumstances, I consider the opposition to the motion ill founded. Counsel for the pursuer has set out the circumstances and dates of the instruction of the reports. I am satisfied that it was reasonable in the circumstances to employ the skilled persons and grant the motion as enrolled.”