Glasgow Sheriff denies certification of qualified witness in £ 100 personal injury case


Glasgow Sheriff denies certification of qualified witness in £ 100 personal injury case

Police court
Police court

A summary Glasgow sheriff has refused to allow a consulting orthopedic surgeon as a qualified witness in a lawsuit brought by a man in a car accident against the insurer of the vehicle that struck him.

Ian mckay sought to certify a certain Mr. David Donaldson, who examined him following the accident, in his action against MCE Insurance Company Ltd.. The personal injury element of the claim was ultimately settled for the sum of £ 100.

The case was heard by Summary of Sheriff Charles Lugton in Glasgow Sheriff’s Court. The prosecutor was represented by Lawyers in Thompson and the defender by DAC Beachcroft lawyers.

De minimis nature

The prosecutor’s accident happened on 25 October 2017. He was sitting stationary in his vehicle on Dumbarton Road in Glasgow when a vehicle carried by the defender struck him from behind. Following the accident, the prosecutor suffered from back pain and neck pain. His medical history included a series of back problems dating back to 2000, including degenerative bulging of the spinal cord discs.

Liability was admitted by the defender in January 2018. Officers acting for the prosecutor asked Mr. Donaldson to examine the prosecutor and provide a medical report. The letter of instruction also asked him to comment on the prosecutor’s capacity and absences from work, even though, at the material time, the prosecutor was unemployed and receiving benefits for his back pain.

In his report, Mr Donaldson said the prosecutor told him he felt about an hour of increased pain after the accident before it returned to its pre-accident level. This conflicted with what the prosecutor had told his officers at the start of the case, but Mr. Donaldson was not prepared to change his report in light of this.

It was argued for the prosecutor that it was appropriate to instruct an orthopedic surgeon in light of the prosecutor’s history of back problems, as a general practitioner would not have been qualified to advise on causation. Although the prosecutor was not asked about his symptoms at the start of the case, it was common for traffic accident injuries to result in symptoms that lasted more than two months, and the time frame in which Mr Donaldson was informed was therefore appropriate.

In response, defense counsel argued that the de minimis the nature of the prosecutor’s injury did not warrant the instruction of an orthopedic consultant. The prosecutor had only offered to prove that he had symptoms within an hour of the accident and the claim was settled for £ 100. Further, the letter of direction sent to Mr. Donaldson appeared to be a “basic” letter, implying that the prosecutor’s officers had not properly considered whether and why this was appropriate.

Didn’t ask important questions

In his ruling, Sheriff Lugton said of the circumstances of Mr. Donaldson’s investigation: “When the prosecutor’s officers instructed Mr. Donaldson in January 2018, they were unable to assess even at provisional title, the potential severity and extent of the prosecutor’s injury. . They had only limited knowledge at the time. They knew that the prosecutor had been involved in what appears to have been a minor “back diversion” accident, that he had seen his GP on the day of the accident and that he had always claimed to have symptoms when he was injured. asked them twelve days later. “

He continues: “The context was that the prosecutor already had a back problem serious enough to prevent him from working. His officers were unsure whether the prosecutor considered his symptoms to be materially worse than they were before the accident, in which case the instruction of an orthopedic consultant to provide an opinion on causation might have been reasonable and proportionate. under the circumstances; or if the prosecutor perceived a change in his symptoms as insignificant or transient, in which case a report from a general practitioner might well have been sufficient.

Sheriff Lugton concluded: “Having failed to ask the essential questions of the prosecutor, the prosecutor’s officers were not equipped with the knowledge required to decide between these options and to conclude that Mr. Donaldson’s instruction would be reasonable and proportionate. . Objectively, there was no basis for reaching such a conclusion.

For these reasons, the sheriff refused to certify Mr. Donaldson as a skilled person.

Objective determination

Regarding the use of a newsletter by prosecutors’ officers to instruct Mr. Donaldson, the sheriff added: “There may be instances in which a review of the wording of a letter of instruction is relevant to determining a request for certification. But it should be remembered that in each individual case the question is whether the court is satisfied that the employment of the qualified person was reasonable and proportionate.

He went on to say: “Regardless of the particular thought process of the individual lawyer involved, reasonableness and proportionality must be determined objectively by the court on the basis of what the lawyer had (or should have had). ) in its possession. It may happen that, despite the fact that the officers used a standard letter of instructions, it appears from all the circumstances that, objectively, the employment of the qualified person was reasonable and proportionate.

© Scottish Legal News Ltd 2021

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