Scottish Court of Session Decisions

In May 1977, the pursuer Mrs. Kane underwent a bilateral subcutaneous mastectomy at Inverclyde Royal Hospital, Greenock. Bilateral silicone implants were inserted as part of the same procedure. There had previously been a biopsy which revealed the presence of cystic mastopathy, and clinical examination revealing a cystic mass. Thereafter, according to the pursuer's averments, she was advised by Mr. Graham Bell (a consultant surgeon) and by Mr. Martin Webster (a consultant plastic surgeon) that she should undergo a bilateral subcutaneous mastectomy. She avers that she did not agree to the removal of either breast except in the event of there being a risk of breast cancer, which there was not. She avers that the surgical procedure was performed on her by Mr. Bell and Mr. Webster; but it is evident that the mastectomy was carried out by Mr. Bell, with Mr. Webster being responsible for the insertion of the implants. It is averred that as a result of the surgical removal of her breasts, and

the insertion of the silicone implants the pursuer has suffered loss, injury and damage, caused by fault and negligence on the part of Mr. Bell. In this action, the pursuer seeks reparation from the defenders, as the Health Board vicariously liable for Mr. Bell's acts and omissions. Put shortly, the basis of the action is that no ordinarily competent general surgeon exercising the degree of skill and care reasonably to be expected of him would have treated cystic mastopathy by mastectomy, that no such surgeon would have proceeded to mastectomy in the absence of risk of cancer, and that no such surgeon would, in all the circumstances, have done so without the pursuer's consent.

The pursuer admits that her claim is time-barred in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973 (as amended). Her position, focused in her first plea-in-law, is that it is equitable in all the circumstances that she should be allowed to bring the present action, in terms of section 19A of the Act. After a preliminary proof upon this issue, that plea has been repelled, and the action has been dismissed in terms of corresponding pleas for the defenders. The pursuer has reclaimed, it being submitted on her behalf that Lady Cosgrove's decision in the Outer House should be set aside, and that we should exercise the discretion conferred by section 19A in favour of the pursuer, sustaining her first plea-in-law and repelling the corresponding pleas for the defenders and respondents.

In opposing the reclaiming motion, junior counsel for the defenders and respondents put forward, with admirable conciseness, five propositions in the light of which he submitted that the reclaiming motion was misconceived. These five propositions were not themselves quarrelled on behalf of the pursuer, and they provide a convenient starting point and context for a consideration of the submissions made on behalf of the parties.

The five propositions are as follows:

(i) In providing that the court may "if it seems to it equitable to do so" allow a

(ii) On appeal, the court can properly interfere with the exercise of such a

(iii) In relation to the question arising under section 19A, the balance of prejudice

(iv) Where, as in the present case, there has been a preliminary proof on the issue

(v) Similarly, whenever the discretion conferred by section 19A requires to be

In asking this court to set aside the decision taken in the Outer House, counsel for the pursuer and reclaimer accepted that we could so interfere only in terms of proposition (ii): putting it another way, we could only interfere if there had been an error in law, or if the decision was to be regarded as one which no reasonable Lord Ordinary could have reached. Moreover, we understood it to be accepted, in terms of propositions (i), (iv) and (v) that even if we were setting aside the decision, it would not be for us to reassess credibility and reliability, or re-weigh any matter already weighed, for the purposes of exercising the discretion which would in the circumstances fall upon us, except in so far as any element in the original assessment and weighing could be said itself to be tainted and to justify interference in accordance with proposition (ii).

In submitting that Lady Cosgrove's decision should be set aside, counsel for the pursuer and reclaimer drew attention to four principal areas in which it was said that the decision was flawed. It was submitted that no reasonable Lord Ordinary could have reached the conclusion that in 1977, Mrs. Kane had known all that she needed to know in relation to her claim, or in particular that Mrs. Kane knew that she did not have cancer. Secondly, no reasonable Lord Ordinary could have rejected the pursuer's own evidence to the effect that the delay was attributable to her ignorance of the law, lawyers and legal aid. (As a subsidiary alternative to this submission, it was submitted that there had at least been a failure to regard the pursuer's ignorance as an important and relevant matter). Thirdly, Lady Cosgrove had not regarded the health problems of the pursuer and of her husband as relevant and important factors to be taken into account, as they should have been taken into account in an exercise of the discretion under section 19A. And fourthly, it had been held that Mr. Webster's lack of recollection of events in 1977, and the destruction of records from Canniesburn Hospital (where he was based) were relevant and material matters, prejudicial to the defenders in relation to issues which would arise at proof. It was submitted that these were not relevant matters; or alternatively that if they were so at all, they must necessarily be regarded as of little weight.

The first three of these four heads of argument relate to the question of whether the pursuer has provided a reasonable explanation for the failure to take action timeously or at least at some earlier date; the fourth relates to possible prejudice for the defenders at proof, if proof were to be allowed. Lady Cosgrove states that she does not consider that the pursuer has demonstrated that she has a reasonable explanation for having failed to bring an action during the period of delay. In relation to possible prejudice to the parties, she notes that allowing the action to proceed would result in the defenders being deprived of the statutory defence available under section 17, but on the other hand that the pursuer will clearly suffer material prejudice by being deprived of her claim. Counsel for the pursuers and reclaimers proceeded upon the basis that these points could in a sense be set off, the one against the other, which appears to be the approach of Lady Cosgrove, before she goes on to say that she is of the view that this is a case in which the defenders will suffer some material prejudice beyond the loss of the statutory defence, in the conduct of their defence if the action is allowed to proceed. It was accepted on behalf of the pursuer that the onus lay upon her to persuade the court that the discretion under section 19A should be exercised in her favour. And while it was submitted that Lady Cosgrove had erred both as to the absence of reasonable explanation and also as to prejudice to the defenders in the conduct of their defence, it was not suggested either that these were anything other than appropriate questions, in the exercise of the discretion, or that any other appropriate questions had been overlooked or ignored.

It is conceded on behalf of the pursuer not merely that the action has become time-barred by expiry of the normal triennium, but that the triennium began to run against her when she knew that the mastectomy had been performed. This is not therefore a case in which a period of time elapsed before the pursuer had the requisite knowledge for the triennium to start running. At least in that sense, Lady Cosgrove is apparently justified in saying that the pursuer "knew all that she needed to know for the purpose of raising an action" in 1977. It was, however, contended on behalf of the pursuer that Lady Cosgrove had erred in the simple finding that "it was clear from the pursuer's own evidence that she knew in 1977 that she did not have cancer". It was contended that the pursuer's state of mind as to her medical condition, and her beliefs and fears as to whether she had cancer, over a period after the mastectomy, was a somewhat complicated matter, which required to be taken into account in any consideration of whether she had a reasonable explanation for not raising an action sooner. One must ask not merely "Did she have cancer?". It was acknowledged that prior to the operation, after a biopsy, she had been told that there was no finding of malignancy; and counsel accepted that there was evidence indicating that after the operation, she had been told this again. But in the light of her evidence, that she had not consented to mastectomy unless there was malignancy, it had to be appreciated that on discovering that a mastectomy had been carried out, and subsequently feeling that something was still wrong, she had begun to fear that despite what she was being told, there had perhaps been a finding of cancerous material at the time of the mastectomy. In such a context, it was going too far to say that she "knew" that she did not have cancer: that might have been true (in which case the mastectomy had been carried out against her wishes) or it might have been, as she began to fear, false (in which case the mastectomy would have been justified - but there would be a new ground for fear). While the action was justified, because it was now known that there was no cancer, and the operation should not have been carried out, the pursuer's assumption that this was perhaps not so, and that she perhaps had had a cancerous growth, making her wish to recover her medical records, was significant in any assessment of the explanation for delay in raising an action.

We readily acknowledge that someone in the pursuer's position may lose confidence as to whether she has been told the whole truth, and may come to have fears that she has not. But whether this happened or not (and whether it happened in 1988 as her pleadings suggest, or in 1977 as appears to have been her evidence) the question in the reclaiming motion is whether the findings are in some way flawed in connection with these matters. We were referred to a number of passages in the evidence of the pursuer herself and other witnesses; but it appears to us that the finding that she "knew" in 1977 that she did not have cancer was essentially a matter for Lady Cosgrove and not for us, and has a sufficient basis in the evidence - in particular in a passage where she is asked the question "You knew in 1977 before the operation there was no cancer and after the operation the tissue had been sent to the lab and that there was no cancer?", with the answer "Yes, but he told me to get it off, if it was his wife he would get it off, it's not like losing a leg he says". Since the bulk of that answer relates apparently to events before the operation, and since the question dealt both with that stage of events and events after the operation, it was suggested by counsel for the pursuer that the affirmative reply could not be taken as covering the latter events as well as the former. It does not appear to us that the additional words (apparently recommending mastectomy even if there was no cancer) need be taken as indicating that the pursuer was in effect only answering the first part of the question. That would be a matter for Lady Cosgrove, and we would only add that her finding on this matter has a sufficient, and indeed quite ample basis in other passages of evidence, indicating that the matter was discussed after the mastectomy, as well as before.

We would add that this passage in Lady Cosgrove's opinion appears to us to be concerned with the knowledge on the part of the pursuer which resulted in the action becoming time-barred. It is against that background that Lady Cosgrove turns to the crucial issue of the pursuer's explanation for not seeking advice timeously. As she points out, the pursuer's own explanation in evidence for not seeking advice at that time was partly that she was not out to make a complaint about anyone, and that she just wanted to get on with her life. That explanation may be entirely credible, and entirely honourable. But it will not necessarily be regarded as a sufficient basis for allowing an action to proceed many years later, long after the expiry of the normal time limit, upon some change of mind or reassessment of the overall position.

By contrast, the point taken on the pursuer's behalf, relating to her own and her husband's health, seems not to have been advanced by the pursuer herself as an explanation for not acting. When one adds to her own silence the various aspects of this matter noted by Lady Cosgrove, with the pursuer holding down a full-time job until 1984, and having no significant health problems between February 1980 and November 1982, we can well understand the finding that neither the pursuer's own problems, nor those arising from her husband's ill-health and subsequent death, provide a sufficient explanation for her failure to take appropriate action. We see no substance in this point.

The final point in relation to the pursuer's failure to take action sooner is her alleged ignorance of the law, lawyers and legal aid. The conclusion reached by Lady Cosgrove is that "I find that I cannot hold that any ignorance of the law or of lawyers or of the availability of legal aid on the part of the pursuer was such as to provide a reasonable explanation for her failure to seek advice". In criticising this conclusion, counsel for the pursuer and reclaimer fixed upon a number of specific points. Lady Cosgrove mentions a number of matters, without suggesting that any one of them in itself demonstrates any significant knowledge of the law or legal matters. But even apparently minor points, such as the fact that the pursuer reads newspapers and books and watches television, that she had sons in managerial positions and a daughter employed as a legal secretary, that the family is certainly not one which is in any way isolated from society and that the pursuer herself held down a full-time job until 1984 are not insignificant matters, when comparisons are being made between her and the pursuer in Comber v. The Greater Glasgow Health Board 1989 S.L.T. 639. Reliance was placed upon the observation by Lord Morton of Shuna in that case, at page 640, to the effect that "It is no doubt strange and unfortunate that anyone should be as ill-informed about modern society as the pursuer and her parents appear to be, and difficult for lawyers to appreciate that there can exist people who have no appreciation of what lawyers do and what remedies the law provides". On an overall assessment of the present pursuer, and taking into account the way that she acted in relation to solicitors and members of the medical profession, Lady Cosgrove came to see the pursuer as a woman "who is sufficiently worldly to take decisive action when she feels dissatisfaction with a firm of solicitors she has consulted", and as a woman "who is familiar with doctors, having worked as a nursing auxiliary for many years and who apparently did not demur from making direct personal contact with Mr. Martin Webster, the consultant plastic surgeon...". The submissions advanced on behalf of the pursuer came close at times to an attempt to persuade this court to consider the whole evidence about the pursuer, her character and her ignorance of the law, and to reach a conclusion which should be substituted for that reached by Lady Cosgrove. That would be quite a wrong approach for us to adopt. It is of course true that some of the more positive and decisive actions taken by the pursuer occurred at a time when she had come into contact with solicitors. It is also true that in not accepting that the pursuer was as ignorant as she claimed, and in saying that she could not hold that the pursuer's ignorance was such as to provide "a reasonable explanation for her failure to seek advice", Lady Cosgrove is not holding that the pursuer was particularly knowledgeable on these matters, and is impliedly accepting that there was a degree of ignorance. Nonetheless, a person who has sufficient knowledge for the time-bar to be running against her, and who has the degree of worldliness and self-confidence described by Lady Cosgrove, can quite legitimately be seen, as Lady Cosgrove saw the pursuer in this case, as having provided no reasonable explanation for failing to seek advice - which we would observe might not initially be advice from a lawyer, but could be advice which would lead to contact being made with a lawyer.

On behalf of the pursuer, reliance was of course placed upon McIntyre v. Armitage Shanks 1980 S.C. (H.L.) 46, as indicating the type of case which the subsequently enacted section 19A was designed to deal with. But there is no indication that in this case Lady Cosgrove has misapprehended the law, or failed to consider what the pursuer might reasonably have been expected to do. A decision as to what any pursuer might reasonably have been expected to do need not turn upon some precise assessment of how much was known of the law or lawyers. Such a decision may well turn on a broad assessment of the pursuer in question, and the simple fact of not having raised an action. It is for the pursuer to explain how it came about that she did not raise an action. In our view, it is plain that Lady Cosgrove saw this pursuer as very different from the pursuer in Comber or McIntyre. The pursuer presented her with a picture of ignorance which she has not accepted. We can see no basis for saying that her rejection of that picture was unjustified, or for holding that any reasonable Lord Ordinary would necessarily have accepted that picture. The pursuer's contentions along these lines fail.

In addition to the pursuer's submissions in relation to these first three points, it was submitted that in rejecting each of them as failing to provide a reasonable explanation for the delay Lady Cosgrove had not gone far enough. She should have considered them together, and notwithstanding her rejection of each as insufficient, should have considered whether, when taken together, they nonetheless showed a reasonable explanation. There may well be cases in which an approach of this kind is appropriate. In this case however, we can see no basis upon which, given Lady Cosgrove's findings and conclusions, there is any aggregate justification of this kind. Against the background of those findings and conclusions, there is no reasonable explanation for the pursuer not having taken advice which, one way or another, would have put her in a position to raise an action, if that had been her wish.

In the absence of any reasonable explanation for the delay, a court might well decide not to allow the action to proceed, even if it appeared that there would be no internal unfairness in obliging the defenders to go to proof. On the other hand, if there is material prejudice to a defender in having to go to proof, it is difficult to see how, even if there was a reasonable explanation for the delay, the action could reasonably be allowed to proceed. This was apparently accepted by counsel on behalf of the pursuer; and whatever the position as to explanation for delay, the question of prejudice is thus of critical importance. Lady Cosgrove has accepted Mr. Webster's evidence that he could not remember any details of his conversation with the pursuer prior to her operation. She has also held that there were records of a pre-operative consultation between the pursuer and Mr. Webster at Canniesburn, and that these records have been destroyed. It was not submitted to us on behalf of the pursuer that any of these findings was unjustified. The submission was rather that this was an entirely irrelevant factual area. It was emphasised that Mr. Bell, not Mr. Webster was the surgeon responsible for the mastectomy. It was emphasised that Mr. Bell had not given evidence at the preliminary proof, and that his evidence of relevant matters was therefore available. And it was contended (as apparently it was contended in the Outer House) that the only real issue was as to proper practice in 1977, which in turn was really a question of normal practice, since the defenders' averments disclosed no assertion that a departure from normal practice had been justified by particular circumstances. The contention went so far as to include a submission that all evidence as to the reasons for those involved doing what they did would be wholly irrelevant, and would be excluded at proof.

We find these submissions unrealistic. For all that Mr. Bell alone is sued, and was the surgeon responsible for the mastectomy, it is plain that (as the pursuer herself avers) the advice that she should undergo a bilateral subcutaneous mastectomy came not merely from Mr. Bell but also from Mr. Webster. Mr. Webster was in contact with Mr. Bell in various ways and at various stages, including being present at the operation itself. Since it is alleged that the carrying out of the mastectomy was negligent, not merely in general terms in the absence of cancer, but also specifically as having lacked the pursuer's consent, it is clear that what passed between the two surgeons, and either of them and their patient, and any actual or stated reasons for the decision to operate in this way, lie at the heart of the dispute. This appears to us to be so in terms of the pursuer's pleadings, and we can see no basis upon which these matters could or should be put aside at proof, upon the basis that specific explanations might be missing from the defenders' pleadings. Quite apart from the fact that difficulties in pleading might themselves arise from the loss of memory and records in question, we find it hard to envisage how expert evidence as to negligence could be properly tested in cross-examination (if indeed it could be given) when the actual reasoning of those involved can no longer be fully spoken to by at least one of the principal participants. It is worth noting that in his evidence, Mr. Webster said that it was his custom to write down what he felt were the arguments or the indications for a particular operation, so that he would have at least documented his thoughts briefly about it. Such notes would apparently have been in the lost Canniesburn records. We are quite unable to see this as a matter which is not relevant in terms of the case made by the pursuer. And we can see no defect in Lady Cosgrove's findings or conclusions in relation to prejudice.

In these circumstances, while we of course share the sympathy expressed by Lady Cosgrove for the pursuer, we feel unable to interfere with, or question, the basis upon which the discretion was exercised in this case. The conclusion that this was not a case in which it would equitable for the pursuer to be allowed to proceed with the action is not in our opinion open to criticism. The reclaiming motion is accordingly refused, and Lady Cosgrove's interlocutor of 24 January 1997 is upheld.