Sheriff rules man who claimed he was made deaf by ball accident did not sue employer fraudulently

About this case:

• Citation:
  [2023] SC EDIN 44
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff G S Primrose KC

John Lewis Plc was assoilzied after proof after the sheriff found that pursuer James Nelson had not established a connection between the incident and his injury. The defenders argued that he had acted fraudulently in bringing proceedings and acted unreasonably in holding to his position despite strong contrary evidence.

The case was heard by Sheriff Gordon Primrose KC of the All-Scotland Sheriff Personal Injury Court. Hofford KC and Miller, advocate, appeared for the pursuer and Hennessy, solicitor advocate, for the defenders.

False representation

On Saturday 13 October 2018, the pursuer had been working as a nightshift shelf replenisher at the Waitrose store in Comely Bank, Edinburgh, when he was struck by a ball thrown by a younger colleague in an act of horseplay. He averred that the defenders had failed to do anything to address repeated incidents of the same type and thus were liable for his injury, which he claimed caused him to become deaf in his right ear.

The defenders averred that Mr Moran had been engaged on a “frolic of his own” when throwing the ball and denied knowledge of an ongoing culture of horseplay. They also sought to prove that the pursuer’s deafness had not come on from his being struck by the ball, but that he had, instead, suffered an onset of sudden right sided unilateral deafness of idiopathic origin which had not been caused by any trauma and which he had first become aware of upon waking on the morning of the incident.

The sheriff found for the pursuer on the question of liability but went on to find he had failed to establish a causal connection between the incident and the onset of deafness, largely due to the evidence of his GP, Dr Oliver, who examined him on 16 October 2018 and noted that he complained of deafness on the morning before the incident.

It was submitted for the defenders that, whilst they had not averred fraud in the case and accepted that the court made no formal finding of fraud, the pursuer made a false representation by suggesting that Dr Oliver had been mistaken as to the cause of his deafness. Additionally, his conduct was manifestly unreasonable in that he had occupied the court’s time with a claim that had no merit.

Two competing accounts

In his decision on expenses, Sheriff Primrose observed: “The court must ask itself, using the language of Lord Herschell in Derry v Peek (1889), whether there has been either a false representation made knowingly or without belief in its truth, or a statement made recklessly, without regard to whether it was true or false. Any conduct which falls foul of this test may constitute a fraudulent misrepresentation or an otherwise fraudulent act.”

He continued: “As Senior Counsel for the pursuer observed, I did not make a finding of fraudulent misrepresentation in this case. Nor did I hold that the pursuer was incredible. There were two competing accounts as to the likely causal mechanism for the pursuer’s unilateral deafness in this case and I preferred the version advanced by the defenders.”

On whether the pursuer’s behaviour was manifestly unreasonable, Sheriff Primrose said: “In respect of the criticisms to the effect that the action ought not to have been continued with, and should have been abandoned, I do not consider these to be valid. Leaving aside for a moment the contents of the GP note and the referral letter, the pursuer’s position appeared always to have been that his deafness had come on after he had been struck by the ball in the incident at his work on 13 October 2018.”

He added on the strategy employed by the pursuer’s counsel: “The decision by the pursuer’s advisers not to deal with the letter themselves in evidence may not have been the most advisable tactic given the strength of Dr Oliver’s evidence, but it was, nonetheless, a course reasonably open to them. Ultimately, the tactic failed and although it may have been better, as the defenders suggested, for the pursuer to have mounted a more rigorous attempt to prove that the letter was inaccurate, it is difficult to see what form such an attack could have taken or how that might have succeeded.”

Sheriff Primrose concluded: “Be that as it may, I do not think that it can be said, as the defenders asserted, that the pursuer’s failure to do more in respect of the letter meant that his conduct or that of his advisers was manifestly unreasonable.”

The sheriff therefore reached the view that it was not open to him to hold that the defenders were entitled to an award of expenses.