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Galvin v. Murray [2000] IESC 78 (21st December, 2000)
THE
SUPREME COURT
102/00
MURPHY
J
McGUINNESS
J
GEOGHEGAN
J
BETWEEN:
JOHN
GALVIN
PLAINTIFF/APPELLANT
AND
JOHN
MURRAY, THE COUNTY COUNCIL OF THE COUNTY OF CORK
DEFENDANTS/RESPONDENTS
AND
MARY
BUTTIMER
THIRD
PARTY
JUDGMENT
OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 21ST DAY OF DECEMBER, 2000 [Nem.
Diss.]
1. Mr
Justice Johnson was of the view that the issue in the present matter posed the
question “What is an expert?”. He concluded that an engineer in the
employment of a corporation or a county council was not “an expert”
or
“an expert witness”
for
the purposes of Order 39 Rules 45
and
46 of the Rules of the Superior Courts as inserted by the Rules of the Superior
Courts (No 6) (Disclosure of Reports and Statements) 1998 (SI No 391 of 1998).
Those Rules (to which I will refer to as the “Disclosure Rules”)
were made pursuant to section 45
of
the Courts and Courts Officers Act, 1995,
which
provides as follows:-
________________________
page break ________________________
“45(1)
Notwithstanding any enactment or rule of law by virtue of which documents
prepared for the purpose of pending or contemplated civil proceedings (or in
connection with the obtaining or giving of legal advice) are in certain
circumstances privileged from disclosure, the Superior Courts Rules Committee,
or the Circuit Court Rules Committee, as the case may be, may, with the
concurrence of the Minister, make rules:-
(a)
requiring any party to a High Court or Circuit Court personal injuries action,
to disclose to the other party or parties, without the necessity of any
application to court by either party to allow such disclosure, by such time or
date as may be spec fled in the rules, the following information, namely.-
(i)
any report or statement from any expert intended to be called to give evidence
of medical or para-medical opinion in relation to an issue in the case;
(ii)
any report or statement from any other expert of the evidence intended to be
given by that expert in relation to an issue in the case;
(iii)
the names and addresses of all witnesses intended to be called to give evidence
as to facts in the case;
(iv)
a full statement of all items of special damage together with appropriate
vouchers, or statements from witnesses by whose evidence such loss would be
proved in the action;
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(v)
a written statement from the Department of Social Welfare showing all payments
made to a plaintiff subsequent to an accident or an authorisation from the
plaintiff
to
the defendant to apply for such information; and
(vi)
such other information or documentation (as may be provided for by Rules of
Court) so as to facilitate the trial of such personal injuries actions;
(b)
Providing for the imposition by the High Court, or the Circuit Court as the
case may be, of a sanction for non-compliance of the requirement under
paragraph (a) of this subsection including termination of an action,
prohibition on a party from adducing such evidence as has not been disclosed
without leave of the court, and penalties as to award of costs.
(2)
Rules of court made for the purposes of this section may make different
provisions for different classes of cases.
(3)
References in this section to an expert report or to a report of statements
from an expert are references to evidence in whatever form or a written report
by a person dealing wholly or mainly with matters on which that person is
qualified to give expert evidence.
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(4) Notwithstanding
the rule of law against the admission of hearsay evidence and the privilege
attached to documents prepared for the purpose of pending or contemplated civil
proceedings the Superior Courts Rules Committee or the Circuit Court Rules
Committee may, with the concurrence of the Minister, make rules allowing for
the admission in evidence in personal injuries actions in the High Court or the
Circuit Court of information, documentation, reports or statements disclosed
pursuant to subsection (1) of this section, subject to such conditions and
procedures as may be necessary to protect the interest of the parties.
The
Disclosure Rules (in Rule 45)
defined
the range of actions to which those rules apply and go on to define a report in
the following terms:-
“(e)
“report” means a report or reports or statement from accountants,
actuaries, architects, dentists, doctors, engineers, occupational therapists,
psychologists, psychiatrists, scientists, or any other expert whatsoever
intended to be called to give evidence in relation to an issue in an action and
containing the substance of the evidence to be adduced and shall also include
any maps, drawings, photographs, graphs, charts, calculations or other like
matter referred to in any such report. Any copy report (including a copy report
in the form of a letter), copy statement or copy letter however made, recorded
or retained from any such expert mentioned above intended to be called to give
evidence in relation to an issue or action and containing the substance of the
evidence to be adduced, the original of which has been
4
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concealed,
destroyed, lost, mislaid or is not otherwise readily available, shall also be
deemed to be a report for the purposes of this rule.”
2. The
operative part of the Disclosure Rules is contained in Rule 46 (1) which
provides as follows: -
“46
(1) The plaintiff in an action shall furnish to the other party or parties or
their respective solicitors (as the case may be) a schedule listing all reports
from expert witnesses intended to be called within one month of the service of
the notice of trial in respect of the action or within such further time as may
be agreed by the parties or permitted by the Court.
Within
seven days of receipt of the plaintiff s schedule, the defendant or any other
party or parties shall furnish to the plaintiff or any other party or parties a
schedule listing all reports from expert witnesses intended to be called.
Within seven days of the receipt of the schedule of the defendant or other
party or parties, the parties shall exchange copies of the reports listed in
the relevant schedule.”
3. The
Rules go on to provide sanctions - as permitted by the governing legislation -
for failure to comply with the Rules but Rule 50 contains a particular
provision material to the present proceedings and paragraph 1 of that Rule
provides as follows:-
5
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page break ________________________
“50 (1) In any case application may be made to the Court by motion on
notice by any party for an order that in the interest of justice the provisions
of rule 46 shall not apply in relation to any particular report or statement
(or portion thereof) which is in the possession of such party and which he
maintains should not be disclosed and served as required. The Court may, upon
such application, make such order as to it seems just.”
4. The
action herein is a personal injuries action within the meaning of the
Disclosure Rules. From the pleadings it appears that the Plaintiff was injured
in an accident which occurred on the 30th August, 1997. On that date he was
travelling in a motor car driven by the Third Party on a public highway near
Béal na Bláth in the County of Cork when the driver was obliged,
it is alleged, to apply her brakes to avoid an impact at a collapsed bridge on
the roadway. It is alleged that the vehicle driven by the Third Party did
strike the collapsed bridge and that thereafter a motor car owned and driven by
the First named Defendant crashed into the rear of the vehicle in which the
Plaintiff was travelling. As against the Secondly named Defendant, the Cork
County Council, it was alleged amongst other things that they were negligent in
that they:-
“Constructed
or alternatively took in charge a bridge which in all the circumstances was
unsound and not sufficiently durable to withstand the volume and weight of
traffic which travelled over it.”
6
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5. When
the Third Party had been joined and the pleadings closed the solicitors on
behalf of the Plaintiff wrote to the solicitors on behalf of the County Council
on 1st December, 1999, settings out lists of the witnesses whom they intended
calling at the hearing of the action and setting out the dates of the reports
provided by various expert witnesses.
6. By
notice of motion dated the 22nd day of February, 2000, Cork County Council
applied to the Court for an order pursuant to Order 39 Rule 50 (1) aforesaid
declaring that in the interests of justice the provisions of Order 39 Rule 46
of the Disclosure Rules should not apply in relation to any report or statement
(or portion thereof), generated for the purposes of the proceedings, by Cork
County Council Executive Engineer Raymond Crowley or Cork County Engineer CB
Devlin. That application was grounded upon the affidavit of Mr Jeremy
O’Connor of Messrs Philip WM Bass & Co, Solicitors who explained that
Mr Crowley and Mr Devlin were permanent employees of the County Council and
that each of them had furnished reports not as experts but as employees of the
Defendant and contended that accordingly those reports were not subject to the
provisions of the Disclosure Rules.
7. It
was in those circumstances that Mr Justice Johnson posed the question
“What is an expert?” and concluded that where “A corporation
or a county council rely on their own engineers, then, for the purposes of
litigation, they are not considered to be expert witnesses “. Whilst I
find myself in disagreement with the conclusion reached by the learned Judge
the problems to which the Disclosure Rules give rise and which were identified
in argument before this Court are serious and may not admit of a simple or
immediate solution. The reports dated the 28th October 1997 and 21St May, 1998
by Messrs Crowley & Devlin were handed into the Court by agreement between
the parties. Each of the authors is of
7
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course
an engineer and the material in the reports does indeed comprise, or at any
rate include, material of a detailed technical and engineering nature which the
Council wish to adduce in evidence in the pending trial. The reports also
contain certain observations which might not have been provided by an
independent expert and which the Council would prefer not to disclose. Whatever
the consequences, it seems to me that the two engineers are beyond doubt
experts and accordingly if the Council are determined to call them as witnesses
to give evidence of the technical matters included in the reports that those
documents would fall squarely within the Disclosure Rules. In general terms an
expert may be defined as a person whose qualifications or expertise give an
added authority to opinions or statements given or made by him within the area
of his expertise. Here experts are expressly identified in the Disclosure Rules
as including
“engineers
“.
The fact that an engineer is employed by one or other of the parties may affect
his independence with a consequent reduction in the weight to be attached to
his evidence but it could not deprive him of his status as an expert. This view
is supported by the decision in
Shell
& Pensions .v. Fell Frischmann
[1986] 2 All ER 911 where it was pointed out that the UK rules (like the Irish
Rules) refer to “expert evidence”
and
not to “evidence given by independent experts”. It was then
expressly held that the relevant rules “apply generally: to independent
experts, to so called “in house” experts and to parties
themselves”.
8. I
do not think it is possible to escape a similar conclusion here. Of course it
must be remembered that reports such as those obtained by the County Council
from their own engineers are documents which would be privileged from
discovery. It is only if and when the employer determines to call the authors
of the reports to give evidence that the requirement of disclosure arises.
Clearly the Disclosure Rules are designed to forewarn other
8
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page break ________________________
parties
of expert evidence with which they may be confronted. The rules have no role to
play in investigating the strengths or weaknesses of an opponents case. It is
still open to any litigant to obtain reports from a variety of experts and
decide to call as witnesses some but not others of them. It is only in respect
of those whom he determines to call as witnesses that he must provide the
required report. Accordingly, the County Council could overcome its difficulty
by engaging some other engineer to explore the matters in issue: to report on
the matter and give evidence based on that report. Alternatively it would be
open to a judge of the High Court, on an application being made in that behalf
under Order 39 Rule 50, to delete some part or parts of the reports if the
Court was satisfied that the making of such an order was just.
9. In
the present case the County Council feel that they are placed in an invidious
position because the engineers in question being their employees have reported
more fully and widely than might be expected by an independent expert. On the
other hand if that or any other factor of itself were to permit an employee/
expert to escape the requirements of the Disclosure Rules it would mean that
substantial corporations with a wide variety of in-house experts would have the
advantage of knowing the expert evidence to be adduced by their opponents
without having themselves to provide a comparable facility. That would be a
manifest injustice.
10. The
Disclosure Rules represent a radical change in the manner in which personal
injury litigation will be processed in this jurisdiction. No doubt there will
be difficulties in adjusting to the new dispensation and also in the
application and interpretation of the Rules themselves. Indeed it must be
expected that further problems will arise, On the other hand it
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may
be anticipated that expert witnesses - with the assistance of the lawyers
concerned - will produce reports in such a manner as will enable the parties to
comply with the Disclosure Rules as effectively, expeditiously and as
inexpensively as the draughtsman intended.
11. In
my view the judgment and order of Mr Justice Johnson must be reversed but I
would remit the matter to the learned Judge to afford the Respondents the
opportunity of arguing - if they think fit - that certain parts of the reports
of the engineers should be deleted before being disclosed to the Plaintiff.
10
© 2000 Irish Supreme Court
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