In the recent case of Cara Webster v Bianca MacLeod, the Sheriff Appeal Court was asked to deal with the certification of a skilled witness in a personal injury case.
Ms Webster was a passenger in a vehicle driven by Ms MacLeod, when they were involved in an accident which was caused by the fault and negligence of Ms Macleod. Ms Webster’s solicitor sent a letter of claim dated 14 April 2016 was sent to the Ms MacLeod’s insurers, intimating a claim for neck pain, back pain, chest pain, arm pain and shoulder pain. The same day, they also instructed a consultant in accident and emergency medicine to prepare a medical report.
The consultant examined Ms Webster on 13 May 2016 and provided a report dated 17 May 2016. The consultant reported that he would not have expected the symptoms to continue beyond a maximum period of two months, and that any symptoms beyond two months were not likely to have been caused by the injuries sustained at the time of the accident.
The parties then entered into settlement negotiations, however they were unsuccessful and court action was raised. Settlement was then achieved in the sum of £3,000.00, about 3 months after raising the court action. As part of the settlement, Ms Webster’s solicitor sought certification of the consultant to enable them to recover his fees. This was opposed by Ms MacLeod’s solicitor on the basis that the medical report was provided by a Consultant in Emergency Medicine despite Ms Webster’s injuries being of a minor nature. In the circumstances, they considered that the instruction of a specialised Emergency Medicine consultant was unreasonable and that a report from a general practitioner, at presumably a much lower cost would have been appropriate. The sheriff agreed with this position.
The decision was appealed to the Sheriff Appeal Court. The appeal was refused on the basis that appeals relating to expenses may only be pursued if there has been an obvious miscarriage of justice or a question of principle is concerned. There are two matters where the sheriff requires to be satisfied: the person was a skilled person; and it was reasonable to employ that person.
Ultimately, the court required to consider whether it was reasonable to employ the consultant to provide a report. Reasonableness has to be determined objectively; and it has to be assessed at the time of instruction. The court held that this requires consideration of the state of affairs at the point of instruction, and importantly, was it proportionate to instruct the consultant given the extent of the injuries. The key issue here was the decision to employ a consultant rather than a GP. That is for the person employing the consultant to prove and to satisfy the sheriff as to the reasonableness of the decision taken to instruct the consultant at the time they did. A major factor in the decision of the court was that the insurers were only notified of the claim a matter of days before the consultant was instructed.
Whilst each case will turn upon its own facts and circumstances, and no general rule has been set down about the employment of a consultant over a GP, this case is a reminder that agents for injured parties must bear in mind the reasonableness of instructing a specific type of expert at a specific point in the case. It also emphasizes that it is up to the party seeking certification to justify the employment of the skilled person at the relevant time.