07 July 2016

Neil Cumming v Tayside Health Board, [2016] CSOH 58. After an accident, a party should be able to pursue their own investigations into the cause of the accident without the risk of the information being made available to the other side. However, this does not apply to reports by employees present at the time of the accident and made to their employers at or about that time. This well-known ‘accident book exception’ was highlighted in this recent Court of Session case.

A link to the judgment can be found here.

The pursuer was detained in a state hospital having been acquitted, by reason of insanity, of the murder of his wife. After killing his wife on 15 July 2011, he attempted to commit suicide by driving his car into another vehicle, causing injury to other road users and to himself. Separate actions were raised by the other road users against both the pursuer and the defenders in the present action.

The pursuer claimed that a psychiatrist employed by the defenders, Dr McLaren, was negligent in failing to advise him of the availability of a bed at a hospital in Perth when he attended with her the day before he killed his wife. He claimed that had he been told of the availability of the bed in Perth, he would have accepted it and attended, and would not have killed his wife, or attempted suicide. He claimed solatium in respect of the loss of his wife and various other heads of damages.

The defenders’ position was that the pursuer’s preferred hospital was Carseview Centre. Dr McLaren offered him the bed in Perth as there was none available in Careseview. However, the pursuer declined as he wished to wait for a bed to become available in his preferred hospital. Having carried out a full assessment, Dr McLaren concluded that the pursuer did not meet the criteria for compulsory admission to hospital. The dispute centred on whether or not Dr McLaren offered the bed in Perth to the pursuer.

The case called before the Court in respect of the pursuer’s motion for commission and diligence by way of a specification of documents. The pursuer sought to recover various documents prepared by Dr McLaren for the purposes of a “Significant Clinical Event Analysis Review” and sight of a Final Report, dated 24 August 2012. The defenders opposed this call in the specification. The Significant Clinical Event Analysis Review itself had been produced and lodged in process. The report was produced to the pursuer in line with NHS Tayside’s policy.
The pursuer argued that it was crucial that he was able to prove that he was not offered a bed by Dr McLaren, and that the whole case turned on what happened at the meeting between the pursuer and Dr McLaren prior to the incident. The Significant Clinical Event Analysis Review report had been produced, and it was only fair that the pursuer should have the material upon which the conclusions were based.

The defenders argued that the policy allowing the release of the report had been implemented due to Freedom of Information and Data Protection legislation, and that it was not a waiver of privilege in respect of the underlying information used to compile the report. The call in the specification did not fall within the recognised ‘accident book exception’ and had the flavour of a fishing diligence.

The Court ultimately agreed with the defenders and refused to grant the pursuer’s motion. In doing so, they reiterated that an organisation should not be inhibited from carrying out legitimate investigations after an incident, and that it would be undesirable to limit the ability to take remedial measures which may be identified by such investigations.

The case highlights the need for careful consideration when faced with requests for disclosure of documents from pursuers’ agents. Whilst a report itself may be disclosed due to Data Protection/FOI requirements, not all documentation relied upon will necessarily be recoverable under commission and diligence in the course of a litigation. Advice should always be sought, particularly in cases in which the Defender is a public body.

Contact:

Catherine Currie, Partner & Solicitor Advocate, E: ccr@bto.co.uk / T:0141 221 8012