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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macphee v. Glasgow Corporation [1915] ScotLR 772 (30 June 1915) URL: http://www.bailii.org/scot/cases/ScotCS/1915/52SLR0772.html Cite as: [1915] SLR 772, [1915] ScotLR 772 |
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Page: 772↓
[Sheriff Court at Glasgow.
In an action of damages against a tramway company arising out of an accident, a diligence for the recovery of reports made at the time of the accident to the defenders by employees present at the time of the accident and relating thereto, was granted. The defenders produced a report by the conductor of the car involved in the accident, containing a list of witnesses who were present, but on the defenders pleading that this list was confidential, the commissioner sealed up that part of the report which contained the list, to await the orders of the Court. The Court granted a motion by the pursuer for access to the report.
Christina Macphee, domestic servant, 3 Kinnoull Place, Dowanhill, Glasgow, pursuer, brought an action in the Sheriff Court at Glasgow against the Corporation of the City of Glasgow, defenders, for damages in respect of injuries sustained through being thrown, by a sudden jerk of the car, from a tramway car belonging to the defenders. The action was remitted to the Court of Session for jury trial, and after sundry procedure was sent for trial to the Vacation Sittings.
A diligence for the recovery of documents was obtained by the pursuer in the terms granted in Finlay v. Glasgow Corporation, 52 S.L.R., 446, and under it a report by the conductor of the car was recovered. The report contained a list of witnesses of the accident, including a number of passengers on the car. The defenders pleaded to the Commissioner that this part of the report was confidential, and it was sealed up by him. In Single Bills the pursuer moved for access to the report.
Argued for pursuer—The Court had allowed the report to be recovered, and the list of witnesses was part of the report. The list was a mere statement of fact, giving names and addresses of persons who were present when the accident occurred. It was not of the nature of precognition, and could not be confidential. Pursuer was entitled to the list— Admiralty v. Aberdeen Steam Trawling and Fishing Company, Limited, 1908 S.C. 335, per Lord President at p. 339, 46 S.L.R. 254, at p. 256; Finlay v. Glasgow Corporation ( cit.). The Lord President in Henderson v. Patrick Thomson, Limited, 1911 S.C. 246, at p. 249, 48 S.L.R. 200, at p. 203, did not lay down a general rule. That case, however, was distinguishable from the present.
Argued for the defenders—The motion was equivalent to a demand for a list of defenders' witnesses, and ought to be refused. The pursuer had recovered the report and was entitled to that part of it which gave a statement of what took place at the time of the accident, and to the names of the driver and conductor of the car, but the list of other persons present was confidential— Henderson v. Patrick Thomson, Limited ( cit.), per Lord President ( cit.).
Page: 773↓
Following the authority of Henderson v. Patrick Thomson, we granted a commission and diligence for the recovery of this report—a report made of the accident de recenti by the official of the Corporation whose duty it was to report to his employers. When that motion was granted we were invited to order the commissioner to seal up the production on the ground of confidentiality, and we refused. Of course, in a sense, the report is confidential from beginning to end, but the settled practice of the Court is that reports of this kind are allowed to be recovered.
If the report contains, among the circumstances attending the accident, the names of the bystanders at the time of the accident, that is no more confidential than the remainder of the report. Accordingly I think that we ought not to refuse the application now made to us. I am therefore for granting the motion.
It is well known that the conductor of every car is instructed and educated, as soon as an accident occurs, to secure the names of parties present. The doing so gives an advantage to the Corporation in defending any action that arises out of the accident, since they are thus in possession of the names, not necessarily of witnesses ultimately to be examined, but of witnesses who may be examined and whom the Corporation will take good care to select or reject according as it suits their interest.
Under these circumstances is there not an absolute distinction between what is asked here and what is attempted to be likened to it, viz., a demand in general in the course of preparation of a case for the names of the opposite parties' witnesses. Even in this case no one would suggest that if the preparation for the case had proceeded and the Corporation had precognosced witnesses the Corporation should be ordered to surrender the list of their witnesses. That is not what is being asked here. What is being asked here is, I think, only information as to one of the res gestæ surrounding the accident reported by an official of the Corporation to his superiors at the time of the accident. The pursuer has not asked for what these parties say or said; she has not asked for any information got from them or any precognition taken from them. She simply asks to be given the names and addresses of those persons who were reported to the Corporation to have been present when the accident happened and who are therefore possible witnesses.
I can conceive that injustice might be done if in a case like this defenders were to be allowed to secure the monopoly of obtaining the names of persons present and therefore witnesses of the accident—names which in many cases— e.g., in the present, where the pursuer was rendered insensible—their opponent could not get unless the persons themselves came forward, possibly at some interval, and said they had been present.
I think that, distinguishing entirely this case from the ordinary case, Mr Mac-Robert's motion is one which must be granted.
Now I have been unable to find any ground whatever for holding that that part of the report here which merely contains the names and addresses of the witnesses can be regarded as confidential. It is, of course, the duty of the Commissioner to see that the opposite party gets nothing of the nature of precognitions, hut the communication of the names and addresses of witnesses only is not of the nature of a precognition.
Therefore I think that Mr MacRobert's motion should be granted.
The Court granted the motion and authorised the sealed packet to be opened by the Clerk of Court.
Counsel for the Pursuer— MacRobert. Agents— Cowan & Stewart, W.S.
Counsel for the Defenders— M. P. Fraser. Agents— Simpson & Marwick, W.S.