Court of Session considers requirement for expert evidence in negligence claims

The Inner House of the Court of Session has recently considered on appeal whether the pursuer in this case had been right to wait for expert evidence before raising an action for negligence or whether by doing so the pursuer was out of time as the defender argued. 

17 June 2013

On 11 May 2004, 9 people were killed and many injured in an explosion at the Stockline factory in Glasgow. Significant damage was also caused to nearby properties. One of the neighbouring properties damaged in the explosion belonged to David T Morrison & Co Limited ("Morrison"). Morrison subsequently raised an action against the owner of the factory ("ICL") for compensation of around £1.5 million in respect of its losses on the grounds of negligence and nuisance.

As explained below, ICL defended the action on the basis that the time limit for Morrison to bring a claim had passed. The Outer House accepted this defence and rejected Morrison's action for compensation. Morrison appealed the decision to the Inner House of the Court of Session (David T Morrison & Co Limited v (1) ICI Plastics Limited (2) ICI Tech limited and (3) Stockline Plastics Limited [2013] CSIH 19).

Legal Issues
In Scotland a party has 5 years in which to bring their claim. The five year period runs from the date on which the loss, damage or injury occurred or in the event the pursuer was not aware they had suffered a loss then it is a question of when the damage first became known to the pursuer or should have become known on reasonable enquiries.

ICL's position was a simple one - Morrison had five years from the date of the explosion within which to raise any action therefore the claim should have been served on or before 11 May 2009. After this date, ICL argued that its liability was extinguished. In fact, Morrison served the summons on 14 August 2009. As such, it was ICL's case that Morrison was out of time by a period of three months.

In response, Morrison contended that the five year period should commence from when Morrison first became aware – or should have been aware – that it had a right to bring a claim against ICL. Morrison argued that it was unreasonable to expect it to have knowledge of ICL's negligence on the day of the explosion and it could not have brought a claim until proper investigations had been made, which included obtaining an expert report to confirm ICL's negligence. There had been delays in obtaining this evidence due to the factory being cordoned off by police and Morrison only gained access to its premises in June 2004.

ICL rejected the idea that Morrison required evidence, expert or otherwise, to bring a claim as "[A]n event could speak for itself." ICL's argument relied on the legal doctrine of res ipsa loquitur which allows a claim to be brought in certain circumstances without expert evidence of negligence on the part of the defender.

The Inner House considered the scope of the rule allowing deferral of the start of the five year prescriptive period on the basis that the pursuer is unaware of any damage until some later date. In response to the suggestion that this only applied in instances of latent damage, the Inner House took little time in concluding that the scope of this rule also applied "in cases where a pursuer is aware of his loss and damage, but does not know whether that loss and damage was caused by negligence".

With this issue settled, the court turned to ICL's second line of argument, namely that Morrison could have raised an action against ICL the very next day following the explosion under res ipsa loquitur. The court had to consider whether the factual circumstances of the explosion would have allowed Morrison to infer negligence and raise an action against ICL accordingly.

In its assessment, the Inner House endorsed Morrison's attempts to ascertain the cause of the explosion, noting that "in circumstances where the facts were susceptible of discovery, it was for the pursuer to make investigations, set out his case, and prove the acts or omissions which were negligent".

The Inner House also considered the Lord Ordinary's comments relating to expert evidence where he stated that it was "common" for an action to be brought and then adjourned to allow an expert report to be prepared. In the Lord Ordinary's view, this allowed a pursuer to determine at this stage whether or not to proceed with the case. The Inner House, however, gave short shrift to this line of reasoning and made clear that there was a clear expectation that before raising an action, a party would fully investigate the basis of any claim with the assistance of experts where the circumstances warranted this.

The reasoning of the Inner House here reflects the approach taken in recent decisions regarding professional negligence claims. The case of Tods Murray W.S. v Arakin Limited [2010] CSOH 90 concerned allegations of professional negligence by a former client of two partners of a well-known Scottish law firm. In this case, the Outer House held that allegations of professional negligence against a solicitor "must always be buttressed by a report from an appropriate witness". This approach to expert evidence was also endorsed by Lord Drummond Young in William Hamilton and Others v Merck & Co Inc, Merck, Sharp & Dohme Ltd [2012] CSOH.

Ultimately, the Inner House concluded that Morrison was entitled to lead evidence in the Outer House of the Court of Session to determine whether or not its claim was out of time. The court indicated that if the Outer House found that the claim had not lapsed then Morrison would be entitled to compensation from ICL. The Inner House did highlight however that this was a matter for the Outer House to decide on hearing all of the evidence presented.

This decision, along with Tods Murray W.S. v Arakin and William Hamilton and Others v Merck & Co Inc, appears to endorse the need for expert evidence at the preliminary investigation stage in an action for negligence. The Inner House was keen to highlight the limitations of the res ipsa loquitur doctrine and note that this only applied where it was not possible for a pursuer to determine "precisely what has caused his loss and damage". It seems clear therefore that the Scottish courts will normally expect a party making a claim of negligence to take steps to establish the other party's negligence. Such steps will naturally often involve obtaining expert evidence.

However, as noted above, the case has been remitted to the Outer House for a trial hearing at which evidence will be heard from either side on whether Morrison required such evidence before raising a negligence claim against ICL. The position at the moment is therefore unclear and we wait with interest to see how the Outer House tackles this case second time around.