Amy Whitehead's Legal Representative v Graeme John Douglas
& Another - Court of Session: 20 November
2006
Amy Whitehead was aged 12 when she attempted to cross a road at
the rear of a school bus on 6 December 2002 and was struck by a van
driven by Graeme Douglas. It was alleged that Mr Douglas failed to
slow down or give any audible warning of his presence as he passed
the school bus and failed to keep a good lookout. Mr Douglas
alleged that Ms Whitehead had simply run out across the road into
his path without looking. Separately a case of negligence was
alleged against the pursuer, the mother of Ms Whitehead, for
failing to instruct her daughter on how to cross the road. Lord
Carloway described that line of defence as curious.
The pursuer lodged two reports from an accident reconstruction
specialist and a chartered clinical psychologist. Both reports
referred to documents on which the respective experts had relied,
including a compensation form and a precognition or witness
statement. The defenders sought an order for recovery of the
documents referred to by the experts on the basis that the
defenders were entitled to the documents in order to test the
conclusions reached by the experts in their reports.
The documents would not ordinarily have been recoverable, but it
was argued for the defenders that:
1. A party is obliged to lodge any document founded on by him in
his written pleadings;
2. It was the duty of an expert to disclose all sources of
information so that the court and the other party could test the
evidence;
3. By revealing part of the content of the documents the pursuer
had waived any legal privilege attached to them;
4. While the precognitions could not be put in examination to
the witnesses who had given them, they could be put to the experts
to see if their conclusions were merited based upon the
material.
It was also suggested that the disclosure of this material was
consistent with the modern trend towards 'front loading
preparation'.
Lord Carloway refused the motion for recovery of the documents.
He insisted that the documents concerned were covered by privilege.
However, in doing so, he interestingly compared and contrasted the
position of experts in Scotland by reference to the position south
of the border.
The expert report is not evidence. An expert may give his
evidence from the witness box without reference to his report at
all. The report is not a substitute for the evidence of the expert
and the report does not normally become part of the sworn testimony
of the expert.
The rules on disclosure in Scotland are different from those in
England. There is no general obligation of disclosure in Scottish
civil procedure. The rules of evidence are different. A report may
take on a status in England which it does not have in Scotland.
References to English practice and procedure were not of any
material assistance in determining this issue in Scotland.
In Scotland it was not at all clear that an expert, instructed
by one party, had some form of duty to the court greater than any
professional or other witness. There was no reason to suppose that
in producing a report for a party, an expert imposes upon himself a
duty to the court. While he must abide by the terms of his oath,
once sworn, what he is permitted or not permitted to say in
evidence will depend not just on what he is asked but on what he is
not asked. He is not in a position to volunteer information.
Interestingly, Lord Carloway took the view that it would be of
peripheral value at best to attempt to challenge the conclusions of
an expert in his report on the basis that he was wrong upon the
information he was provided with at the time of his report, even
although the information is itself ultimately proved to have been
wrong. The defenders wanted to be able to attack the experts
reasoning, by reference to their initial factual premises.
Unfortunately, Lord Carloway's view was that the court should be
slow to encourage such a convoluted line of cross-examination. On
that basis it was suggested that the defenders aim, which formed
the basis of their motion for recovery, was of very little value.
Referring a witness, during examination, to the content of his
precognition is generally not permitted in Scotland because it is
regarded as an unsafe measure of what the witness is alleged to
have said. The view is that the precognition is tainted by the
filtering process involving the attitude of the person who
originally noted it.
This authority brings into sharp relief some of the differences
between the practice in Scotland and England, both in relation to
recovery or discovery of evidence and in relation to the status of
witness statements and expert reports. It can be seen as a
laudable, but ultimately unsuccessful, attempt to introduce to
Scotland some of the beneficial consequences of the more prevalent
disclosure philosophy present now in England and Wales. One for the
Civil Practice Review perhaps.