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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v Dumfries & Galloway Health Board [2007] ScotCS CSOH_192 (04 December 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_192.html
Cite as: [2007] ScotCS CSOH_192, [2007] CSOH 192

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 192

OPINION OF LORD TURNBULL

in the cause

ROBERT SMITH

Pursuer;

against

DUMFRIES & GALLOWAY HEALTH BOARD

Defenders:

________________

Pursuer: Campbell, Q.C.; Thompsons

Defenders: Fitzpatrick; R F Macdonald

4 December 2007

[1] On Friday 26 October 2007 I heard a motion on behalf of the pursuer to interpone authority to the joint minute number 16 of process, to certify three named individuals as expert witnesses and to allow an additional fee in terms of Rule of Court 42.14 (3) (a), (e) and (g). The motion was opposed to the extent of allowing an additional fee.

[2 ] The action raised by the pursuer complained of negligent medical treatment at the Dumfries and Galloway Royal Infirmary where he received certain treatment in respect of haemorrhoids. On 14 October 2002 the pursuer attended for examination and was seen at the outpatient clinic of Mr Whitelaw, a consultant surgeon. The examination and diagnosis was performed by Mr Kumar, a specialist registrar. Mr Kumar decided to proceed by way of further examination to be carried out under general anaesthetic, excision of skin tags and injection of the haemorrhoids with phenol. On 2 April 2003 the procedure was duly conducted by another registrar, Mr Graham Smith. The pursuer was approaching 60 years old at the time. The pursuer's complaints were that the treatment recommended by Mr Kumar was not appropriate for a variety of reasons, in particular that any such injection of phenol ought not to be carried out under general anaesthetic. The same complaints were advanced against Mr Smith. In addition it was averred that he had been negligent in performing the technique by injecting the phenol too deep into the underlying tissue. A case was advanced against the consultant, Mr Whitelaw on the basis of lack of supervision and permitting an inappropriate operation to be performed and against the Health Board for failing to have adequate systems in place to prevent the carrying out of an inappropriate operation.

[3 ] The consequence of the injection performed by Mr Smith was that the pursuer sustained internal damage leading to pain, faecal incontinence and impotence. A colostomy was required and later reversed. He had difficulties in moving on to post retirement work of a nature which had been planned prior to his operation.

[4 ] In submitting argument in support of his motion Mr Campbell explained to me that a report was provided to the pursuer's solicitors by Mr Hamer-Hodges, a consultant surgeon. Prior to the raising of the action this report had been disclosed to the defenders. Since they did not accept liability the action was raised in February 2006. Thereafter the pursuers repeatedly asked the defenders for sight of any report which they may have had in support of their own position but none was received. In due course the pursuer's agents decided to obtain a second report and Professor Roger Grace was instructed. This second report did not provide support for Mr Hamer-Hodges' view that the technique undertaken by Mr Smith ought never to be performed under general anaesthetic, but did remain supportive of the claim against Mr Smith in respect of the manner in which he had performed the injection technique and was also supportive of other aspects of the pursuer's case. This report was also disclosed to the defenders and a minute of amendment was prepared in about August 2007 to reflect Professor Grace's views. The case was settled on Friday 28 September, with the proof set to start on the following Tuesday.

[5 ] Mr Campbell submitted that the circumstances of the present case demonstrated complexity in that the particular type of medical negligence focussed upon was unusual and there was a difference of view even amongst the pursuer's own experts which required careful examination. He submitted that the case had a particular importance for the pursuer in that the injury caused by the negligence under consideration had led to a lifestyle change for the pursuer which affected him in embarrassing ways. The argument as to the importance for the pursuer was advanced upon a further specific basis however. Mr Campbell advised me that the pursuer's case had been presented on a speculative basis by those who acted for him. Whilst of itself this may not have been unusual, he explained to me that most litigants in this position have the benefit of an insurance policy which will meet an award of costs, if unsuccessful. In the average personal injury case such a policy is available for a very modest outlay. However the cost of such a policy in the pursuer's case was in the region of £30,000 and had been prohibitive. The result was that as he approached the proof the impact of having to face the defenders' costs was a significant one. The pursuer was a man of modest means for whom the prospect of a finding of expenses against him after a 6 day proof had led to very great strain. This concern led to further difficulty in providing advice to the pursuer. In addition to these grounds Mr Campbell argued that the pursuer's agents had made various efforts to settle the case as set out above and had in addition attempted at stages to secure a joint consultation in order that matters could be openly and constructively discussed. He referred me to the case of Boal v Newalls Insulation Co. Ltd. 1994 SCLR @534.

[6 ] In opposing the motion Mr Fitzpatrick submitted that the purpose of Rule of Court 42.14 was to allow for additional remuneration in exceptional cases. Accordingly he said that the Court would be looking to see what it was that was out of the ordinary that had been done on the pursuer's behalf. Mr Fitzpatrick submitted that there was nothing complicated about the medical aspects of the case, it being based upon the assertion that Mr Smith had simply pushed the needle of the syringe in too far in the course of the technique which he performed. He said that the only remarkable aspect of the merits of the case was that the pursuer apparently abandoned reliance on Mr Hamer-Hodges in August of 2007 and came to embrace the view of Professor Grace just a short time prior to the proof. The importance of the case to the pursuer was not sufficient given his age and the relatively small value of the case to bring it within the terms of the Rule of Court. So far as the arguments as to disclosure were concerned Mr Fitzpatrick submitted that the defenders were perfectly entitled not to disclose their own expert's report and to place their case in the written pleadings. The pursuer's agents had taken no steps to settle the case beyond requesting sight of the defenders report. Far from limiting the matters in dispute or limiting the scope of the hearing the pursuer's own case was changing in focus throughout the period leading up to the proof. In these circumstances he argued that the motion for the allowance of an additional fee ought to be refused.

[7 ] Both counsel made reference to the nature of the dispute between the parties and to the complexity of the case by references to the expert reports which were lodged. I felt that it was necessary for me to read the reports in their entirety in order to arrive at a fully informed judgment. I reserved my decision on the motion to allow this to be done. Having had this opportunity I am now satisfied that the expert reports disclose that the basis of the claim advanced against the defenders did have a degree of complexity about it. Whilst the precise act complained of is capable of being described in the way in which Mr Fitzpatrick did, the question of how that founds a case of medical negligence is a far different matter. There appears to be a legitimate difference of view as to how such procedures ought to be carried out. This of itself raised difficult issues for the pursuer. Rule of Court 42.14 requires me to perform a discretionary exercise in determining the question of whether to allow an additional fee. As part of that exercise I must "take into account" the complexity of the cause. Having done so I am satisfied that it is appropriate for me to allow an additional fee under sub head (a) of Rule 42.14(3). I am also satisfied that the particular effect on the pursuer of the conduct of the case is something which I can take account of in considering the importance of the case to the client. The effect of the outcome for a particular pursuer is something which may contribute to the importance of the case to him and accordingly which can impact on the level of responsibility carried by those who act for him. In the circumstances advanced before me I am also satisfied that I should allow an additional fee under sub head (e) of Rule 42.14(3). I am not persuaded that I should allow an additional fee under sub head (g). I will grant unopposed the other aspects of the motion. In the hearing before me it was agreed that expenses should follow success. Accordingly I will award the expenses of the hearing in favour of the pursuer.

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