Sheriff Appeal Court refuses appeal by insurer ordered to pay personal injury damages despite excluded medical evidence

About this case:

• Citation:
  [2024] SAC (Civ) 13
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Berkshire Hathaway International Insurance Co Ltd argued that, after expert medical evidence led by pursuer Michael Marshall was held to be inadmissible, the sheriff was not in a position to assess causation, symptoms, or duration of injury. The sheriff proceeded to assess damages at £1,250, lower than the valuations of £2,200 and £1,800 put forward by the pursuer and defender.

The appeal was heard by Sheriff Principal Nigel Ross. Manson, advocate, appeared for the appellant and Anderson, advocate, for the respondent.

Failed to understand duties

On 16 April 2021, while he was waiting in his van at a set of traffic lights in Pilton, Edinburgh, the pursuer’s vehicle was struck from the rear by a large SUV belonging to the defender’s insured. The driver admitted fault and liability for failing to brake in time to avoid a collision, which damaged the rear doors of the van significantly.

The pursuer’s vehicle was written off, and he sustained injury which he described as a pain in his neck, back, and the right side of his leg. He led evidence from a Dr Ravdip Bumrah, who examined the pursuer and found he suffered neck pain due to a whiplash injury and the other pain due to a soft tissue injury. Dr Bumrah said that he carried out 700 to 1,000 reports annually, but did not receive payment if the patient lost his claim or the case did not settle.

The sheriff described Dr Bumrah as providing medical reports on a de facto speculative or contingency basis. It was noted that he had been criticised by another sheriff for giving evidence in a similar case in 2022, and that he had examined the pursuer without sight of his medical records. This meant that he stated in error that there was no relevant past medical history, when the pursuer had in fact been involved in an earlier road accident in 2019.

It was found by the sheriff that Dr Bumrah had failed to demonstrate an appropriate understanding of the full extent of his duties as an expert witness. Notwithstanding that his evidence was inadmissible, the sheriff proceeded to find in favour of the pursuer, albeit assessing solatium at a lower basis than either of the parties’ valuations in submission.

Counsel for the defender submitted that the mechanism and symptoms of injury could not, as a rule, be described by an unskilled witness. The exclusion of Dr Bumrah’s evidence left nothing for the sheriff to use to reach a judgment. For the pursuer it was submitted that the case of Armstrong and others v ERS Syndicate Management (2019), relied upon by the defender, did not decide that expert evidence was required in every case and common sense formed part of the assessment.

Uncomplicated injury

In his decision, Sheriff Principal Ross began: “The sheriff did not have a sound basis for describing the injury as a soft tissue injury, as this went beyond the knowledge of a lay person of no medical qualifications or experience. That does not, however, invalidate his other findings, or the award.”

He explained further: “The defender’s submission related to causation, symptomatology and duration of injury. These are all questions of fact, to be decided on all of the information before the sheriff. Setting aside the inadmissible medical evidence, the sheriff had evidence about the significant nature of the collision, the immediate jerking of the pursuer’s head and neck, and subsequent pain in the pursuer’s head, neck and leg which lasted for a limited period.”

Distinguishing the Armstrong case, the Sheriff Principal said: “Armstrong & Ors dealt principally with another issue, namely whether medical evidence was admissible. It did not bear to decide any general principle in relation to the requirements of proof of injury. The discussion of the absence of expert evidence was brief and focused on the particular facts of the case.”

He added: “Critically, the facts of Armstrong & Ors included (i) that the sheriff himself concluded, on the facts, that specialist knowledge was necessary; and (ii) that the sheriff based his findings on expert evidence. Following appeal, having found that expert evidence to be inadmissible, the court had little choice but to recognise that the strut supporting the sheriff’s decision had been removed, and the decision could not stand. The present case is not similar.”

Sheriff Principal Ross concluded: “The sheriff made a discerning judgment on the evidence which he accepted, drew inferences of causation based on common experience, and reached a judgment which was supported by the evidence and inferences. Such a course is open to the court in cases relating to uncomplicated injury which is amenable to assessment on the basis of common experience.”

The appeal was therefore refused.