John Williamson v The Advocate General for Scotland - Court
of Session 3rd February 2006
The Pursuer, an RAF Senior Aircraftsman, was on a target firing
exercise, as part of a training course, when a round from another
serviceman's rifle hit the barrel of the Pursuer's rifle, which
then exploded, injuring him.
After the Record closed in this "New Rules" action, the Pursuer
enrolled a Specification seeking, amongst other things, the report
of the Internal Enquiry following the incident, and documents
showing both the procedures governing the exercise and the relevant
qualifications of the supervising officers.
The Enquiry report was compiled over a 17 month period
commencing 2 months after the incident. It had several purposes. As
well as a fact-finding mission, it was a chance to identify lessons
to be learned, and to ingather material for any consequent
proceedings. The Pursuer pointed out that Army regulations required
the MOD to set such an Enquiry up after such an incident, but the
Court decided that this made no difference.
It was accepted that the Enquiry had several purposes, but one
of these was to ingather information that may be of use in
proceedings. This was not a report made at or about the time of the
incident by persons who were present when the incident took place.
It annexed documents put together after the event specifically for
the Enquiry. It included comment and opinion from skilled
servicemen, and conclusions reached by officers in the line of
command. Following and approving the rule and single exception on
this formulated in Johnstone v National Coal Board 1968 SC 128, the
court refused to allow recovery of this report.
As for the other documents sought, the Defenders argued that
there were no pleadings on the Record to give a basis for recovery
of these. As is usual in "New Rules" cases, aside from a brief
narration of the facts, the Pursuer only asserted that his claim
was based on:
"...the Defenders' breach of their common law duty to take
reasonable care for the Pursuer's safety...."
with no greater specification of the grounds of fault. The court
accepted that there were several possible grounds of liability,
including negligence on the part of the other serviceman, or those
organising the training, a defect in the way in which the range had
been set up, or a defect in the manner in which the exercise had
been organised.
Having decided that the Pursuer's brief averment of fault was
enough to meet the requirements of the "New Rules" for the form of
pleadings, and having noted that nothing in the Rules requires a
Pursuer to make more detailed averments to support a specification,
the Court decided that it would be anomalous to refuse a commission
because the Pursuer did not include averments that the Rules did
not require. The Court endorsed the Pursuer's suggestion that a
party seeking to recover documents should instead explain verbally
to the Court what the basis for this is, why he believes documents
exist, and what purpose they serve in his case.
As the method the Defenders had averred in defences was used in
this case for the exercise was said by the Pursuer's expert to be
inappropriate and dangerous, there was reason to question the
procedure and the qualifications of those implementing it. This was
therefore not a speculative call, and recovery of these documents
was allowed.
This decision gives helpful guidance on how to approach
specifications in the absence of the detailed supporting pleadings
we have been more accustomed to, but the result may be that more
motions need to be opposed and so to call, to give an opportunity
for such a verbal explanation if the reason for the documents being
sought is not immediately clear.