9 March, 2018
James Hendren v. Aviva and James Hendren v. Glasgow Housing Association
In the cases of Hendren v. Aviva and Hendren v. Glasgow Housing Association Sheriff McGowan recently issued a Note addressing certification of skilled witnesses in which he made a number of observations of principle that might be useful to practitioners. The pursuer suffered injuries in two separate incidents. He complained of significant ongoing pain and restriction. Amongst other reports, a care report was instructed on behalf of the pursuer. That report concluded the pursuer required a comprehensive future care package, with an associated cost of £1.5 million. Subsequent to the pursuer’s instruction of the care expert the defenders obtained CCTV and medical evidence and averred that the pursuer was deliberately exaggerating his symptoms for financial gain. Tenders very significantly below the sum sued for were lodged and accepted.
The defenders opposed certification of the care expert on the basis that given the pursuer’s true level of functioning, instruction of the care expert was unreasonable. Sheriff McGown held that “It will only be in exceptional circumstances that the court will be entitled to apply hindsight to the question of certification, taking account of evidence or other material which emerges later.” “The court should be slow to embark on some sort of granular examination of untested evidence.” “… if the court were satisfied that the pursuer was malingering … the position might be different.” “But for such a proposition to succeed there would need to be very clear, easily verifiable material to allow the court to reach such a conclusion on the most solid foundation.” Sheriff McGowan certified the care expert.