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Robert Christie Leith v. Grampian University Hospital Trust [2005] ScotCS CSOH_20 (04 February 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 20

A3126/00

OPINION OF LORD BRODIE

in the cause

ROBERT CHRISTIE LEITH

Pursuer;

against

GRAMPIAN UNIVERSITY HOSPITAL NHS TRUST

Defenders:

________________

Pursuer: MacAulay QC, McGregor; Balfour & Manson

Defender: Rory Anderson QC, Fitzpatrick; R F Macdonald, Scottish Health Service Central Legal Office

4 February 2005

Introduction
[1] In this action the pursuer sues for damages in reparation for injury which he avers he sustained by reason of medical negligence. He avers that as at 15 July 1996 he had sustained acute renal failure by reason of delay in the diagnosis and consequential delay in the treatment of a disease of the kidney which is referred to as Goodpasture's syndrome. As I would understand the pleadings, the correct diagnosis, which the pursuer avers should have been made earlier, was made on 18 July 1996. The pursuer had been admitted to the Aberdeen Royal Infirmary on or about 13 May 1996. He was discharged on or about 3 June 1996. During the period of his admission he was subject to certain investigations. It is the conduct of these investigations and the interpretation of their results that the pursuer avers were negligently carried out.

[2] The pursuer sues the defender, the Grampian University Hospitals NHS Trust, as vicariously liable for the acts and omissions of the consultant chest physician under whose care he was admitted to the Aberdeen Royal Infirmary and the medical practitioners there who were under that consultant's instruction. The defender denies liability. It also takes in defence the point that the action has suffered limitation in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973, the summons only having been served on 10 November 2000. The pursuer's response on record is a denial that the action is time barred but that if it is, it should nevertheless be permitted to proceed under and in terms of section 19A of the 1973 Act.

[3] The action came before me at a hearing on Procedure Roll, on the defender's first and second pleas-in-law (general relevancy and time-bar), and the pursuer's third plea-in-law (section 19A). The pursuer was represented by Mr MacAulay QC and Mr McGregor, Advocate. The defender was represented by Mr Rory Anderson QC and Mr Fitzpatrick, Advocate. Mr Anderson's motion was that the defender's first and second pleas-in-law should be sustained and the action dismissed. Mr MacAulay's was to sustain the pursuer's third plea-in-law and to repel the defender's second plea-in-law. Counsel were agreed that the issue of time-bar could be dealt with on Procedure Roll. Neither suggested that there should be a preliminary proof. It was accordingly their common position that the matter should be determined simply by having regard to the pursuer's pleadings. However, in two respects I was encouraged to qualify or go beyond the wording of these pleadings. Mr MacAulay conceded that the triennium had begun to run in early 1997 (and not later in 1997 as might be suggested by the pursuer's pleadings) and, accordingly, the action had suffered limitation by reason of the terms of section 17 of the 1973 Act in the early part of 2000. As he put it, there had been a delay of the order of nine or ten months in serving the summons. Mr MacAulay further accepted that the first formal intimation of a claim on behalf of the pursuer had been made to the defender and to the Scottish Health Service Central Legal Office by letters dated 17 October 2000. Mr Anderson reminded me that it was the defender's position that the triennium began running in July 1996 and that therefore the action had been commenced some eighteen months late but I understood him to accept that, if there was to be no proof, the matter had to be approached on the pursuer's terms.

[4] Given the parties' respective positions, the issue for the court was therefore whether, taking the pursuer's factual averments to be true (there being no suggestion that they were not), it would be equitable to allow him to bring his action, notwithstanding that it is admittedly subject to limitation.

The statutory provisions
[5] Section 17 of the 1973 Act provides, inter alia:-

"(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

(2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after -

(a) the date on which the injuries were sustained, or where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or

(b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the Court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts -

(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;

(ii) that the injuries were attributable in whole or in part to an act or omission; and

(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person..."

Section 22 (3) provides that, for the purposes of section 17(2)(b), knowledge that any act or omission was or was not, as a matter of law, actionable, is irrelevant.

[6] Section 19A of the 1973 Act provides by subsection (1) inter alia that where a person would be entitled, but for any of the provisions of section 17, to bring an action, the Court may, if it seems equitable to do so, allow him to bring the action notwithstanding that provision.

The pursuer's averments
[7] The pursuer's averments bearing on time-bar and why, on the basis that the action is time-barred, it would nevertheless be equitable to allow him to bring the action are to be found in article 6 of condescendence. The article begins at page 13D of the Closed Record. The averments which are found between page 13D and page 16A are as follows:

"The defenders have been called upon to make reparation to the pursuer but they refuse or at least delay to do so. This action is accordingly necessary. With reference to the defenders' averments in answer, explained and averred that it was not until in or about 1997 that the pursuer was well enough to enquire about and consider the medical treatment and advice he received. Initially, the pursuer enquired whether there had been any failure on the part of his GP, Dr MacKenzie, to diagnose the pursuer's condition more quickly. He consulted a solicitor in Shetland, Linda Knarston. However, the pursuer was unhappy with the time it took to progress matters. Accordingly in or about October 1997, he consulted another solicitor in Shetland, Michael Inkster, who referred the pursuer to Messrs Stronachs, solicitors in Aberdeen. In or about November 1997, Messrs Stronachs identified a consultant renal physician, Mr Winney of the Royal Infirmary in Edinburgh, as an expert who might be able to assess the treatment the pursuer received. By letter dated 26 February 1998, Messrs Stronachs wrote to Mr Winney requesting that he, inter alia, 'examine Mr Leith's medical records and give us your opinion on the treatment Mr Leith has received'. Mr Winney replied by letter dated 30 March 1998 advising that he could not assist. By letter dated 29 July 1998, Messrs Stronachs enquired whether Mr Winney knew of a colleague who might be able to assist. On or about 10 September 1998, Messrs Stronachs wrote to the British Medical Association asking for a list of renal consultants who might be able to assist. They sent a reminder to the BMA dated 18 December 1998. Following this, by letters dated 9 April 1999 and 8 June 1999, Messrs Stronachs wrote to 6 consultant renal physicians asking whether they could provide an option on the treatment received by the pursuer and the likely costs in so doing. On 4 June 1999, Messrs Stronachs instructed counsel for his view on whether proceedings should be raised and if so, for the preparation of a draft 'writ'. Counsel responded on 7 June 1999 advising that it was not possible to state whether there was a stateable case in the absence of documents including reports on the merits by a consultant physician and experienced GP practitioner. He recommended that such reports be obtained immediately. By letter dated 4 May 1999, Mr Dudley, consultant renal physician confirmed that he could provide a report on the treatment received by the pursuer. By letter dated 8 June 1999 addressed to Aberdeen Royal Hospitals NHS Trust, Messrs Stronachs intimated that they were acting on the pursuer's behalf in connection with a potential claim arising as a result of his treatment at Aberdeen Royal Infirmary. The defenders ultimately received this letter. By letter dated 19 June 1999, Professor Barber, Emeritus Professor of General Practice at Glasgow University, advised Messrs Stronachs that he would prepare a report. Thereafter Messrs Stronachs applied for legal aid for funding to instruct Mr Dudley and Professor Barber. By letters dated 2 July 1999, Mr Dudley and Professor Barber were instructed to prepare reports. Professor Barber prepared a report dated 7 July 1999 in which he concluded that the pursuer's general practitioners satisfied the standards of medical care to be expected of them. By letter dated 28 June 1999, the defenders agreed to send copies of the pursuer's hospital records to Mr Dudley. They did not do so until in or about September 1999. Messrs Stronachs wrote to Mr Dudley in or about January 2000 asking when his report would be available. Following receipt of the medical records, Mr Dudley prepared a report dated 19 April 2000. Thereafter, Messrs Stronachs applied for legal aid to visit the pursuer in Shetland in order to discuss the terms of the report and advise the pursuer. This was refused on or about 8 August 2000. Messrs Stronachs applied for a review of that refusal and simultaneously enquired whether Messrs Balfour & Manson, as Edinburgh agents, would be prepared to accept instruction with a view to raising proceedings on a 'no win, no fee' basis. Messrs Balfour & Manson indicated that they would not be prepared to do so. A formal application for legal aid was submitted on or about 17 October 2000. On or about 30 October 2000, instructions were sent to counsel to prepare a draft summons. This was prepared and on or about 10 November 2000, following certain amendments to the summons requested by Messrs Stronachs, the summons was served upon the defenders' legal representatives. Until receipt of Dr Dudley's opinion, the pursuer was unaware that Dr Friend was the individual, et separatim the medical practitioners under his instruction were the individuals whose acts and omissions were attributable to the loss, injury and damage which the pursuer has suffered. Reference is made to section 17(2)(b)(ii), (iii) of the Prescription and Limitation (Scotland) Act 1973. Esto the action is time-barred (which is denied) it is just and equitable that the pursuer be allowed to bring the present action. Reference is made to section 19A of the 1973 Act. The pursuer has taken all reasonable steps to identify whose negligence, if there was any, resulted in the loss which the pursuer has suffered. Reference is made to the averments relative to section 17 of the 1973 Act. On the defenders' own averment, Goodpasture's disease is a 'rare and complicated' condition. It was accordingly appropriate and indeed necessary that the pursuer should take the steps of instructing medical experts to provide opinions on the conduct of the medical practitioners who treated him. It was not clear that there had been any negligence on the part of any doctor who treated the pursuer. The pursuer himself made enquiries of his own at Aberdeen Royal Infirmary. He queried whether quicker treatment would have avoided the loss of his kidneys. The pursuer never received a concluded response. He was simply advised that he was fortunate to be alive. The pursuer has therefore required to seek the advice of medical experts in order to identify whether he had a valid claim against any of the medical practitioners who treated him. By letter dated 8 June 1999, the defenders were alerted to the pursuer's claim".

[8] The averments from page 16A of the Closed Record to the end of article 6 of Condescendence are as follows:

"There is no prejudice to the defenders in permitting the present action to proceed. The averments anent the negligence of the defenders' staff are based upon what the normal and proper medical practice would be with specific regard to recorded medical test results of the pursuer. These test results form part of the pursuer's medical records which are readily available to the defenders' agents. Reference is made to Articles 2 and 3 of Condescendence. The pursuer would however be prejudiced in the event that he is not permitted to proceed with the present action. It is not clear that he would succeed in any claim he might have against his former agents, Messrs Stronachs. Their efforts to establish a stateable case necessary for the preparation of a summons were hampered by difficulty in identifying an appropriate expert and obtaining necessary legal aid. Further, the quantification of such a claim would be difficult insofar as it would depend upon the hypothetical prospects of the pursuer succeeding in his claim against the defenders if there were no issues of timebar. He would require to apply for legal aid for any subsequent claim of that nature. In these circumstances, it is inevitable that the pursuer's claim for reparation would be further delayed. In all the circumstances, it is just and equitable that the pursuer be allowed to bring the present action".

Submissions
Submissions for the defender
[9] Mr Anderson took the gravamen of the pursuer's complaint to be a failure to make a correct diagnosis in July 1996. He referred to the averments in article 6 of condescendence for a narrative of what had occurred after that date and what was founded on by the pursuer with a view to persuading the court to exercise its discretion under section 19A of the 1973 Act in his favour. Mr Anderson explained that there had been a number of cases in which the correct approach to the application of section 19A had been discussed, but he drew particular attention to the opinion of Temporary Judge R F Macdonald QC in Lannigan v Glasgow City Council, 12 August 2004, unreported, where the leading authorities are usefully set out at paragraphs [6] to [11] and to the opinions of Lord Nimmo Smith in Cowan v Toffolo Jackson & Co Ltd 1998 SLT 1000 and McCaffery v Greater Glasgow Health Board, 28 March 2003, unreported. Among the cases cited in Lannigan, to which Mr Anderson referred were: Donald v Rutherford 1984 SLT 70 at 77, Forsyth v A F Stoddart & Co Ltd 1985 SLT 51, McCabe v McLellan 1994 SC 87, Clark v McLean 1994 SC 410 and Morrice v Martin Retail Group Ltd 2003 SCLR 289. The first part of the pursuer's averments in article 6 of condescendence (from page 13D to 16A of the Closed Record) amounted, in Mr Anderson's submission, to little more than an unexplained catalogue of delays on the part of the pursuer's legal advisers, it apparently not being appreciated by the draftsman of the averments that what was critical for the commencement of the triennium, having regard to section 17(2)(b)(ii), was simply knowledge that the injuries complained of were attributable in whole or in part to an act or omission, not knowledge that the act or omission was negligent. These averments of delay while the pursuer's solicitors attempted to obtain a suitable expert opinion to the effect that the failure to diagnose Goodpasture's syndrome prior to 18 July 1996 was negligent, were quite irrelevant to support the pursuer's position under reference to section 17(2). They did not support his position under reference to section 19A. The averments which appeared to be intended by the pursuer to support his case that it would equitable were the court to allow his action to proceed were those found in the latter part of article 6 of condescendence, at page 16A to 16D of the Closed Record. Properly analysed, these averments do not allow the court to conclude that it would be equitable to allow the action to proceed. The assertion with which the averments begin: that there would be no prejudice to the defender in permitting the present action to proceed, is plainly wrong. As was observed by Lord Nimmo Smith in Cowan supra at 1003I, it is obviously prejudicial to a defender if an action, otherwise subject to limitation, is allowed to proceed. This prejudice, as Lord Nimmo Smith observed in the same passage, effectively cancels out the prejudice to the pursuer if the action is not allowed to proceed. That the pursuer avers that his case of negligence is based on what is normal and proper medical practice with regard to test results is not to the point. The defender does not pray in aid a particular difficulty in defending the claim. The assertion by the pursuer that it is not clear that he would succeed in any claim that he might have against his former solicitors is plainly wrong: he has a strong prima facie case and that is a conclusion that was open to the court to arrive at, just as had Lord Nimmo Smith in McCaffrey supra at paragraph [30]. However, what is more important is that the pursuer expressly recognises that he has another string to his bow. The availability of another claim weighs against the pursuer. A balancing of prejudice should persuade the court that the pursuer should not be allowed to bring the action. If the pursuer is allowed to bring the action, the defender will lose a line of defence. It is not insured against such a claim and even if successful it will have to pay its judicial expenses because the pursuer is legally aided. On the other hand, the pursuer will lose a right of action but, on the face of it, he has a clear case against his former solicitors. Certainly negligence had not been admitted but the position was about as close to that as one could get. That was a very relevant consideration.

Submissions for the pursuer
[10] Mr MacAulay began by reminding me that the pursuer's case was that there had been negligence in failing properly to investigate the results of tests that had been carried out in May and June 1996. The consequences had been very serious. The pursuer had only been discharged from hospital, following his readmission in July 1996, in September of that year. It was only in the early part of 1997 that he was well enough to be held to have the requisite facts available to him. On the basis of what was averred, Mr MacAulay wished to make four points. First, the claim was not a stale one. While he accepted that the formal intimation of claim was only made on 17 October 2000, the defender had notice that there might be a claim when its records' department was contacted by letter dated 8 June 1999. There is no suggestion that the defender will be prejudiced in the preparation of its defence to the action. Second, it was accepted that the defender would suffer prejudice by reason of the action being allowed to proceed. However, it was Mr MacAulay's submission that consideration of the equities should result in the conclusion that they favoured the pursuer. Third, it was relevant to have regard to the conduct of the pursuer and his agents. No real criticism could be made of the pursuer as an individual. It was, however, accepted that he must shoulder the blame for his solicitors' actions but in relation to these solicitors, it was relevant that they did make efforts to instruct an appropriate expert. Perhaps they should have done so with more enthusiasm but this was not a case of wilful neglect. The solicitors had not simply sat on their hands. Fourth, the pursuer would suffer real prejudice if he were not allowed to bring this action. It cannot be said that he would be bound to succeed against his former solicitors. They did instruct counsel within the triennium. He had responded by advising that it was not possible to say if there was a stateable case. In the course of argument Mr Anderson had described counsel's actions as bizarre. If that was a correct way of looking at it that would cloud the case against the solicitors. Mr MacAulay accepted that non-negligent solicitors were to be assumed to know the law. There was a potential case against the solicitors but it was not cast iron. If the pursuer was not allowed to proceed against the defender, he would be put to further cost. He would suffer delay. His claim against the solicitors would involve an examination of the present case. In all the circumstances the equities were such that the discretion conferred by section 19A should be exercised in his favour.

Discussion
[11] It is for the pursuer to satisfy the court that it would be equitable to allow him to proceed, as is provided for in section 19A of the 1973 Act: McCabe v McLellan 1994 SC 87, Lord President Hope, delivering the Opinion of the Court, at 97H to 98A; Clark v McLean 1994 SC 410, Lord MacLean, delivering the Opinion of the Court, at 413D. In Cowan supra at 1003I Lord Nimmo Smith said this in relation to the circumstances in which the court might exercise its discretion under section 19A:

"The prejudice to the pursuer if the case does not proceed and to the defenders if it does are obvious and cancel each other out. Such prejudice arises from the operation of [section]17, and in my opinion the pursuer must aver more than the consequences alone, however serious for him, of the operation of that section. While I accept that in each case the decision must depend upon the circumstances of that case as averred on record, the view I have taken is consistent with the approach which was adopted in the cases referred to ..."

That passage was founded on by Mr Anderson. It was not in any way criticised by Mr MacAulay. Mr MacAulay did not seek, as had been done in the argument before Lord Nimmo Smith in Cowan (supra at 1003G), to in some way devalue the prejudice to the defender of losing its defence by referring to the availability of a limitation point as a "windfall benefit". Nor did he suggest that because the pursuer was an individual who had, ex hypothesi, suffered serious injury as a result of negligence for which the defender was responsible, whereas the defender was an artificial person funded by government, that the pursuer's prejudice in losing this chance of recovering damages was weightier than the prejudice to the defender (on the same hypothesis) in becoming liable to make reparation and having to defend an action.

[12] The pursuer is answerable for failures on the part of his solicitor: Donald v Rutherford 1984 SLT 70 at 77 and 78. Such failures may, of course, give rise to a right of action against them on the part of the pursuer. The availability of such a right of action has to be brought into the reckoning as to where the equities lie: Forsyth v A F Stoddart & Co Ltd 1985 SLT 51 at 54. I agree with Mr Anderson that if such a claim exists, whatever its strength, that is a factor weighing against the exercise of the court's discretion in favour of the pursuer. As a matter of generality, it is not a proper approach to take any difficulties in such a case as factors weighing in favour of an exercise of the discretion conferred by section 19A. Here it was not very seriously disputed by Mr MacAulay that the pursuer's previous solicitors had been negligent in their dilatory investigation of his claim and their failure to commence an action against the defender prior to the end of the triennium. He understandably withheld the concession that the previous solicitors were negligent but once it is accepted that a non-negligent solicitor is taken to know the law and its application to the facts, at least in an area where he holds himself out to be competent, (which is the proper position to take, in my opinion) it becomes very difficult to see how the pursuer's solicitors could escape liability for their delay in bringing proceedings. On the pursuer's averments I can only assume that the solicitors either failed to apply their minds to the terms of the 1973 Act (which would have been negligent) or they did apply their minds and came to a wrong conclusion as to when the triennium commenced. Mr MacAulay accepted that, in this context, to be wrong was to be negligent. Harsh as that may seem, I consider that he was right to do so. That counsel had some involvement is, in my opinion, neither here nor there, whatever view one takes of his conduct in giving what appears to have been accurate but possibly incomplete advice. It is not averred that the solicitors were misled by counsel or that they had followed his advice in a matter which was beyond their purported competence. In Morrice v Martin Retail Group Ltd 2003 SCLR 289 at 296B Lord Clarke said this:

"It appears to me that, in a case like the present, where there is an admitted culpable act of negligence by the pursuer's representatives in not raising the action timeously, it is simply insufficient to aver the fact of that negligent act. Frequently where the power conferred by section 19A is prayed in aid by a pursuer, there has been an oversight or omission by those acting for him to raise the action timeously. The Court's discretionary power, conferred by section 19A, is to be exercised when it seems to the Court that it is equitable to do so. Before the pursuer can succeed in persuading the Court to exercise the power he must, in my judgement, set out appropriate facts and circumstances which point to it being equitable, notwithstanding the oversight or omission by those acting on his behalf, that the action should be allowed to proceed. Those facts and circumstances will include, no doubt among other things, the reason for the oversight or omission, how excusable the oversight or omission was, and the prejudice to the pursuer (including the extent of any such prejudice) if the action were not to proceed. It is clear from the authorities, cited by counsel for the defenders, that these factors have to be averred with some degree of specification (and if necessary proved). The section 19A power cannot, in my judgment, be regarded as simply providing an automatic release from the consequences of a pursuer's representative's negligence. In the present case, even after amendment, the pursuer's pleadings, in my opinion, provide no basis which would justify the Court being persuaded that, not withstanding the oversight or omission in this case, it would be equitable for the pursuer to be allowed to bring her action. This is particularly so where it is accepted, as it was, that a refusal to exercise the Section 19A power would involve no real prejudice to the pursuer."

Lord Clarke's reference to "no real prejudice to the pursuer" was in the context of a very simple industrial accident and a clear mistake as to the date of the accident and therefore the beginning of the triennium by a claims handler acting for the pursuer which led to the action being raised late. In the circumstances the pursuer would appear to have had a straightforward claim against the claims handler quantifiable in the same sum as the original claim against the pursuer's employer. Again, Mr Anderson had referred to this case and no criticism as to the approach of Lord Clarke was advanced by Mr MacAulay.

[13] As it would respectfully appear to me, the observations by Lord Nimmo Smith and Lord Clarke are entirely consistent with the line of Inner House authority which can be seen set out in Mr MacDonald's opinion in Lannigan. That being so, I consider that the issue in the present case must be determined against the pursuer. He has simply failed to bring to the court's attention sufficient (or, indeed, anything) by way of particular circumstances as to permit the court to be satisfied that it would be equitable to allow him to bring his action. His undoubted prejudice in losing his right of action against the defender has to be balanced, as Lord Nimmo Smith explained in Cowan, against the countervailing prejudice to the defender if the action is allowed to go ahead. In the absence of speciality, they cancel each other out. That is the case here. Once the pursuer's prejudice in losing his chance to sue the defender is removed from consideration, there is simply nothing here upon the basis of which I could conclude that the pursuer had satisfied me (it being for him to do so) that it would be equitable to allow the action to proceed. Mr MacAulay advanced four points with a view to persuading me to contrary effect. That the claim is not particularly stale and that the defender does not assert that it would experience particular difficulty in defending it are, in my opinion, essentially neutral matters. They do not weigh against the pursuer. Equally, they do not weigh in this favour. That the pursuer is personally blameless is hardly to the point once it is accepted that his agents are far from blameless. The fault of the agent is the equivalent of the fault of the principal. That the fault of the agents is not particularly egregious, which is how Mr MacAulay encouraged me to see it, is again not to the point once it is accepted that they were nevertheless in error as to the relevant law and, in consequence, almost certainly negligent. Mr MacAulay's fourth point was to remind me of the prejudice to the pursuer. I have dealt with that.

[14] For the avoidance of doubt, I attach no significance whatsoever to the averment by the defender that it is not insured. That the defender, no doubt for good reasons, in the context of what may be quite complex funding arrangements chooses not to insure against a particular risk or particular level of risk seems to me to neither here or there.

Decision
[15] I shall repel the pursuer's third plea-in-law. I shall sustain the defender's first plea-in-law and dismiss the action. Mr Anderson also moved the defender's second plea-in-law. I did not hear argument on the point but in circumstances where I am doing no more than deciding that the action has suffered limitation, I am not persuaded that it would be appropriate to grant absolvitor which is what is sought by that plea. I shall reserve all questions of expenses.