Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_96.html
Cite as: [2006] CSOH 96, [2006] ScotCS CSOH_96

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 96

A2096/02

SUPPLEMENTARY OPINION OF LADY PATON

in the cause

MAUREEN TONER

Pursuer;

against

JOHN M McLEOD

Defender:

________________

Pursuer: Springham, Advocate; Digby Brown SSC

Defender: Gilmore, Advocate; Shepherd & Wedderburn

22 June 2006

Proof or jury trial: professional negligence

[1] Following my earlier opinion issued on 8 February 2006, the pursuer amended the Closed Record by inserting in Article 3 of Condescendence at page 7D-E, after the word "treatment", the following:

"No ordinarily competent dentist if exercising reasonable skill and care would have failed to give the aforementioned advice, explanation and instruction to the pursuer, and take the aforementioned steps."

The amendment was not opposed.

Liability and contributory negligence

[2 ] Both counsel acknowledged that the fact that a case involves issues of professional negligence will not per se render it unsuitable for jury trial. Indeed a leading authority on professional negligence, Hunter v Hanley, 1955 SC 200, involved a jury trial.

[3] In this particular case, I have not been persuaded that the question of liability is too complex or difficult for a jury. A jury will be well able to assess issues of fact, such as the diagnosis made by the defender in 1991 and 1995, and the information and advice given to the pursuer on those occasions. Expert evidence relating to standards of proper professional care on such occasions would not, in my view, be too complex for the jury. If at any stage there is competing evidence, the jury will be able to decide which evidence they prefer. Thereafter, depending upon what facts they find proved, the jury (guided by such expert evidence as they accept, and by appropriate directions from the judge) will be able to assess whether what occurred on those occasions amounted to acts or omissions which no ordinarily competent dentist acting with reasonable skill and care would have done or omitted to do.

[4 ] Turning to the averments of contributory negligence on the part of the pursuer, while I accept that it is rare to find an allegation of contributory negligence against a patient in the context of medical or dental treatment, I am not persuaded that the matter is too complex or difficult for a jury. Again, the jury will be able to assess issues of fact, such as the pattern of the pursuer's visits to the dental practice; her standard of oral hygiene at relevant times; and whether and to what extent she complied with any advice or instructions given by the defender. Thereafter the jury,

guided inter alia by such expert evidence as they accept and by appropriate directions from the judge, will be able to assess whether, and if so, to what extent, the pursuer failed to take reasonable care for her own dental health.

Decision

[5 ] For the reasons given in this opinion and my earlier opinion, I am not satisfied that the matters outlined by counsel for the defender, taken individually or cumulatively, amount to special cause such that the case should be withheld from a jury. I shall therefore grant the pursuer's motion and allow issues. I reserve all questions of expenses to enable parties to address me on that matter.

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