Scottish Court of Session Decisions

[32] The next step in the operation after the skin incision was to take the artery forceps (forceps used for blunt dissection or clamping small blood vessels to ligate them, which are a little bit like a pair of scissors except that they have no cutting edge) in order to make a way through about a millimetre or two of the subcutaneous tissues between the skin and the underlying vas. It would not be necessary to use the artery forceps if the scrotal skin was very thin. If the artery forceps were used he would insert them through the skin incision over the vas and then gently open them in order to separate the subcutaneous tissues. No cutting was involved, only pushing the fibres apart. If at this stage there were any complaint of pain or discomfort from the patient he would stop that part of the procedure and again seek to establish whether he was feeling a pressure effect or pain. He would ask the patient "Was that sore, or does it just feel as if I am pressing here?". If the patient indicated that it was sore he would stop and offer him more anaesthetic. If the patient did not wish more anaesthetic the procedure would have to stop. If the patient was agreeable to having more local anaesthetic he would take the syringe with the fine needle, insert it into the subcutaneous tissue, and, using the same technique as previously described, he would inject the local anaesthetic as he withdrew the needle. He would then wait two or three minutes and take the artery forceps again, insert them into the area of dissection and gently open them to see if that caused pain. If there was a complaint of pain at that stage it would not be possible to proceed further. If he was going to proceed further after using the artery forceps to dissect down to the vas he would then take the Allis forceps (a different set of forceps from the artery forceps) to grasp or isolate the vas. He would put the Allis forceps in and close them behind the vas itself so that he could pull a loop of vas out of the scrotum. If at that stage there was a complaint of pain or discomfort from the patient he would take the Allis forceps off while keeping his fingers and thumb closed to make sure that the vas was immobilised in position. He would then ask the patient where he experienced the discomfort as there could be referred pain in the abdomen rather than locally in the scrotum (having warned the patient earlier that even under local anaesthetic some patients experience abdominal discomfort). He would then offer to inject further local anaesthetic before proceeding further. If the injection were given he would then wait two to three minutes to give the local anaesthetic time to work. If the patient indicated at any stage that he did not wish to proceed with the operation then he would stop. It was not his practice to sedate his patients in addition to giving them a local anaesthetic and they were free, and indeed encouraged, to speak during the operation as it helped take their mind off proceedings and relax if they were talking. Once the vas had been pulled through the scrotal skin the sheath of the vas was opened with the scalpel and toothed dissecting forceps were used to hold on to the vas itself. The position of the Allis forceps was changed so that only the vas lay within the Allis forceps. Artery forceps were taken to clip any vessels in the sheath of the vas. He would then take his ligate clips and apply one to the vas above the Allis forceps and one below them, isolating approximately one and a half to two centimetres of vas. He would then take scissors and snip through the vas above and below the Allis forceps, leaving the ligate clips in place. He would then take a suture and suture any blood vessels within the sheath of the vas. He would then check that haemostasis had been secured, allow the vas and the sheath to go back into the scrotum and apply one or two vicryl or catgut sutures to the scrotal skin and immediate subcutaneous tissues to achieve haemostasis.

[33] The above procedure described one half of the operation, doing one side of the vasectomy. He habitually started on the left side, just out of habit. He might start on the right side of a particular patient if the patient was very anxious and he felt that it would be easier to start on the right side, or if the patient had thick scrotal skin or a high body mass index. The total time normally taken to perform a vasectomy was between 15 and 20 minutes, roughly seven and half to ten minutes on each side, including the administration of the local anaesthetic and the waiting time. Probably almost half of the time was spent cleansing, examining, putting in the local anaesthetic and waiting until it worked. It took a few seconds to perform each of the following - making the incision, dissecting down to the vas with the artery forceps and using the Allis forceps to grasp the vas. As soon as a patient said he was in pain he would stop what he was doing, ascertain exactly what he meant by that and then take the steps already mentioned.

[34] Once he had completed the vasectomy Dr Dewart would ask the patient to go into the corner and get himself dressed. While the patient was doing that Dr Dewart would de-scrub. He would press a buzzer and the nurse would come back into the room. He would then go to a little table in the corner where the patient's notes lay. On the front of the notes was the standard letter to the GP stating that the patient had attended for vasectomy which had been carried out under local anaesthetic, that he required to hand in a sample for semen analysis and that no follow-up would be required other than that the sperm samples would be checked. He would sign that letter. He would then open up the notes, inside which would be the operation note which he would complete. He would record on it his name, the title of the surgical procedure ("vasectomy"), the type and volume of local anaesthetic he had drawn up, his examination of the testes and epididymis and the procedure itself. He would then sign it. The staff nurse would then take the completed notes away and bring the notes for the next patient to ensure that they did not mix the notes up. Sometimes he would be interrupted when completing his operation note, for example, by being called away to the telephone or to see someone.

[35] Dr Dewart explained that he first became aware that there might be a problem in relation to the pursuer approximately 18 months after the operation, in October or November of 1997, when a letter came from the Scottish Health Service Central Legal Office to Anna Glasier, the Director of the clinic, indicating a letter from the pursuer's solicitors. Dr Glasier contacted him, he went and spoke to her and she asked him to prepare a report for the Central Legal Office and for her. The only medical records he had at that stage consisted of a letter he had written in May 1996 and the operation note, both of which he read. He believed that the two issues raised in the letter from the pursuer's solicitors related to the pursuer being in pain following the vasectomy and the operation having proceeded with him in pain. At that stage he thought that he could recall the pursuer. He recalled a patient who had come through, got up on the couch, wanted to go ahead with the operation but became unwell when the local anaesthetic was injected and the operation could not proceed. He believed that that patient was the pursuer. He wrote a report for Anna Glasier and the Central Legal Office, basing his response at that stage on the basis of that belief. He did not hear anything further until March 1998, when he was contacted, he believed again by Dr Glasier, to be told that the records from the Western General Hospital had become available. He wrote a letter (7/1(3) of process, p 354) dated 13 March 1998 to Mr Hargreave at the Western General Hospital and copied it to Dr Glasier. At the stage of writing that letter he was still under the impression that he could recall the pursuer. He recalled that on reviewing the notes from the Western General Hospital he saw that the pursuer was on the waiting list for a bilateral orchidectomy and he was concerned that the presumptive diagnosis on which it was going to be carried out was recurrent infection in the epididymis and testes. He looked back at the original clinic notes, which were within the Western General notes, and could see that Mr Hargreave would have seen the original operation note and letter that he had written. He also looked at the report he had prepared for the Central Legal Office and Dr Glasier in November 1997. He then went to the library and did a literature search to see if there were reports of patients who had had a local anaesthetic injected using an aseptic technique who had developed chronic epidydimo-orchiditis. As he could find no such reports he was concerned (never having had any contact with Mr Hargreave or those who had cared for the pursuer following his vasectomy) that there could be some reason for the pursuer's pain other than chronic infection. He therefore felt it important to write to Mr Hargreave to make him aware of all the information he had at that time, believing that he had only injected local anaesthetic. When writing the letter, and in the mistaken belief that the patient he had in mind was the pursuer, he recalled that the patient in question felt unwell following the injection of local anaesthetic and he was concerned in case the local anaesthetic had been injected intravenously. He did not believe that he had any further contact with Mr Hargreave.

[36] In November or December of 1999 Dr Dewart was contacted by Dr Glasier, who told him that the case notes relating to the pursuer's attendance at his GP's surgery following his attendance at the clinic had been sent to her from the Central Legal Office. He went into the clinic and looked at the notes, which clearly described removal of two sutures following the pursuer's attendance at the clinic. He then realised that the pursuer was not the patient whom he had recalled collapsing after the injection of local anaesthetic and he immediately contacted the Central Legal Office to apologise for the fact that the report he had prepared in 1997 was factually incorrect because he had remembered the wrong patient. He then wrote a further report for the Central Legal Office and for Dr Glasier indicating the mistake he had made.

[37] On being shown the operation note for the pursuer (7/1(3) of process, p 387) Dr Dewart said that he had no recollection of completing it. He had written the words "DR DEWART, 20 mls of 1% LIGNOCAINE LA" and also "PREPARED FOR VASECTOMY". The other entries were in someone else's handwriting. What he had written was his routine heading for such a procedure. He would have written those words once he had completed the operation. On some occasions he might have written the heading before the patient came in, but he always wrote the same heading because he never actually recorded the volume of local anaesthetic used, just the total volume that he drew up and the percentage of Lignocaine that he used. "Prepared for vasectomy" was just the terminology he used for "vasectomy operation". He accepted that the operation note was not complete. Normally he would have written the above heading and the next heading would have been "Findings", followed by the heading "Procedure". He could not recall not having completed the operation note. Clearly he did not. Either he wrote what he had written before the pursuer came in and then omitted to complete the record once the pursuer had gone away or alternatively he started to write up the note and was perhaps distracted and left the operating suite without completing it.

[38] On being shown his letter to Dr Lang (7/1(3) of process, p 384) dated 7 May 1996 Dr Dewart said that he did not recall writing it. The standard letter would have been on the front of the patient's notes and he would have crossed through it and turned it over and handwritten what he was going to write for the vasectomy administrator to type up while he was carrying on with the vasectomies in preparation for when he had finished his session. Although he could not remember writing the letter, he was able to explain the procedure that he was likely to have followed in writing it because if a note had to be made to the GP other than the standard letter he would always cross through the standard letter and write what he had to say on the back. It was unusual for him not to use the standard form letter. There would be one or two patients each year on whom he was unable to complete the procedure. There would be some patients who changed their minds before the procedure commenced. On some patients he would find cystic enlargement of the testes on examination and therefore have to revise the operation note. There would be a small number of patients each year in whom some specific difficulty was encountered during the procedure which made him wish to follow them up. The key issue which his letter of 7 May 1996 sought to convey to the GP was that a general anaesthetic would be required for the pursuer to have his vasectomy. The words in the letter "he was not able to tolerate the administration of local anaesthetic" would mean either that the patient experienced discomfort during the injection of local anaesthetic and the injecting was stopped before Dr Dewart had injected enough for him to have the procedure carried out, or alternatively that the patient had become unwell (in the sense of feeling faint or sick) following the injection of local anaesthetic (as happened with the patient whom he wrongly believed to be Mr Stalker). When he wrote that letter, to him at that time the problem was related to the local anaesthetic. The skin incision would have been a secondary issue, and he would have expected to have recorded the skin incision in his operation note. He accepted that on 7 May 1996 an incision had been made into the right side of the pursuer's scrotum.

[39] In relation to the allegations made against him by the pursuer, Dr Dewart said that he would never carry on with a procedure without first ensuring that the local anaesthetic was effective and that if the pursuer had complained of pain when he made the incision he would have offered him further local anaesthetic. If he had accepted the further local anaesthetic then they would have been able to proceed to the next stage, which would have been dissection through the subcutaneous tissues with the artery forceps. If the pursuer did not wish further local anaesthetic then it would not have been possible to proceed further. He would not be able to proceed if the pursuer did not wish further local anaesthetic or unless he and the pursuer were convinced that the original application of local anaesthetic had been effective, so that if he made an incision and there was doubt as to whether the pursuer felt pain or simply pressure, he would re-test the area, asking him "Is this sharp? Is this sore?", and if the pursuer said it was not sharp or sore then he would ask his permission and if the pursuer was agreeable he would take the artery forceps and, gently at first, and then as one would normally do, dissect the subcutaneous tissues, asking the pursuer "Is this sore now, is this painful?". His response to the pursuer's allegation that he continued in the face of two, or possibly three, complaints of pain from him was "I would never continue operating on anybody if they were in pain". His response to the allegation that he dismissed the pursuer's complaints of pain was "I would never dismiss anybody's complaints of pain. I never have and I never will do."

[40] In cross-examination Dr Dewart accepted that he was engaged in carrying out vasectomies at the clinic from sometime in 1995 until sometime in 1999. After each operation a standard form letter, which was on top of the file, was sent out. If everything went smoothly he signed the letter and it was sent off. Only one or two cases a year would not be successfully completed. During his period at the clinic from 1995 to 1999 there were therefore a handful of cases where the standard form letter was not sent out for patients who had not had their operations completed. It was a relatively unusual occurrence for the procedure not to be completed. He did a maximum of four vasectomies during each weekly session at the clinic. When he injected local anaesthetic into the scrotal area he was careful that he did not inject intravenously and to check on that he would pull the needle out to see if it was drawing out blood. If he discovered that the needle was in a vein he would not inject but take the needle out and then re-insert it. In relation to the patient whom he mistook for the pursuer, he was concerned, when that patient became bradycardic and felt faint immediately after the local anaesthetic had been injected, that the Lignocaine might have gone in intravenously, which could cause an idiosyncratic reaction resulting in convulsions and even death. As that patient did not begin to have convulsions or any of the other symptoms that would be associated with intravenous Lignocaine he subsequently believed that he had not injected the Lignocaine intravenously and concluded that he was unable to tolerate the local anaesthetic.

[41] So far as the pursuer was concerned, Dr Dewart accepted with the benefit of hindsight that he had carried out an incision on him. As there were stitches and a scar there could be no issue about that. He would not accept that, looking to the objective evidence as to the pursuer's condition subsequent to the failed procedure, that he must have inserted an instrument. An incision alone could cause bruising and discomfort and would require to be sutured. He would not necessarily have to use the artery forceps in every case because if the scrotal skin and subcutaneous tissue were quite thin the initial incision would bring him down onto the vas and in those circumstances he would next use the Allis forceps, assuming the patient was comfortable and happy for him to proceed. He did not accept that, as the pursuer's bruising went beyond the superficial type of bruising, he must have inserted an instrument as part of the procedure. If he made an incision alone on thin scrotal skin it would go right the way through the skin and the superficial layer of subcutaneous tissue so that the vas would pop out through the skin. If that happened, and there were some blood vessels within the skin and full haemostasis was not secured, or subsequently there was bleeding from vessels within the skin, then that bleeding could occur within the scrotum and result in bruising and swelling within the scrotum. An incision on the right side of the pursuer's scrotum could therefore have caused all the bruising and swelling that was subsequently described. He had experience of incisions in other areas where only the incision resulted in such bruising and swelling. He agreed, nevertheless, that the sort of damage that was seen subsequently on the pursuer was perfectly consistent with an instrument having been inserted into his scrotum and that he really could not say whether or not that happened.

[42] Asked about the letter to Mr Hargreave (7/1(3) of process, p 354), he stated that he had known Mr Hargreave only as a colleague since 1987 when he worked at the Western General Hospital. On being referred to the second paragraph of the letter, he said it was his recollection that the patient he mistook for the pursuer was very tender on palpation. He had at that time no recourse to any documentary material but thought he could remember the patient concerned as there were only one or two uncompleted vasectomies a year. When he referred to "the injection of 3 to 5 mls of local anaesthetic over his vas on the left side of the scrotum" he was really relying on his practice as opposed to a specific recollection, although if he believed that the local anaesthetic might have gone in intravenously he would have looked to see how much local anaesthetic he had used. He used the expression "unable to tolerate a local anaesthetic" within the context of a patient not responding well to a local anaesthetic and nothing more being done. Having heard the pursuer's evidence, he thought that if the pursuer had complained of pain after the initial injection of local anaesthetic he would have offered him further local anaesthetic and if he had been agreeable to that he would have given it to him. If at that stage the pursuer had become unwell or experienced pain he would have stopped the operation. He believed that was the most likely sequence of events. He did not accept that the letter of 7 May 1996 to the GP was misleading because it did not mention an incision as he would not normally have mentioned an incision that was uncomplicated, and he would not have expected any problems associated with a brief letter or memo that he sent to the GP. If the incision itself was straightforward he would not mention it in a letter to the GP, but if there was a complication with the incision - for example, if there had been heavy bleeding, or if he had been unable to suture it - he would certainly have mentioned it. If he had made the incision and the patient had complained of pain he would then have stopped. The message that he had to convey to the GP was that the operation had stopped with the administration of local anaesthetic and implicit in that (sic) was his recommendation that the pursuer should have his vasectomy carried out under a general anaesthetic. He had to make the situation clear so that whoever took over care of the pursuer would know that he had already had problems associated with a local anaesthetic. He said that he should have recorded the incision in the operation note. In hindsight he would have been much more comfortable with the letter had he mentioned an incision as that would have clarified the situation for him in reviewing the notes, given that he had not completed an operation note.

[43] Reverting to his letter to Mr Hargreave and the reference therein to the patient being very tender on palpation of the testes, Dr Dewart explained that he would still proceed with a vasectomy after finding tenderness on palpation as such tenderness did not necessarily indicate an underlying pathological cause. He said in the letter that he understood the pursuer was currently on Mr Hargreave's list for bilateral orchidectomy as he believed that he had shortly before reviewed the Western General notes which had been sent to him by Dr Glasier. Within the Western General notes he found the records which had been kept at the clinic, which he had previously reviewed. His letter of 7 May 1996 to the GP would have been one of the documents which he had in front of him when he wrote the letter to Mr Hargreave, which was part of the basis he had for saying to Mr Hargreave that the pursuer was unable to tolerate the local anaesthetic. He first became aware that the pursuer had ended up in the Urology Department of the Western General when he received a call from Dr Glasier in the autumn of 1997. He was quite certain that he had no information before then that one of the patients he had dealt with at the clinic had ended up at the Western General. He was then referred to a letter (7/1(3) of process, p 395) dated 30 July 1996 from Mr Tolley, Consultant Urologist at the Western General Hospital, addressed to the doctor in charge of the clinic and headed with the pursuer's name, which read as follows:

"I would be grateful if you would provide me with clinical details about this man. I understand that a vasectomy was attempted on 7 May this year, but there is no more detail available than that. I would be grateful if you would send me a copy of your operation note at your earliest convenience."

He had no recollection of anybody at the clinic telling him at about that sort of time that a letter had been received in connection with one of his patients. He would not have forgotten about it because during his time at the clinic he never received any complaints and if he did the first thing he would have done would have been to review the notes and find out what was happening because he would have been concerned about the patient.

[44] He was then referred to a letter (7/1(3) of process, p 396) dated 30 July 2006 from Mr Tolley to Dr Brenda Lonergan, a locum to Dr Lang at the Sighthill Health Centre in the following terms:

"Thank you for your note about Mr Stalker, who had an abortive vasectomy in Dean Terrace earlier this year. Since then he has been left with pain in the right testis to the extent that he finds it difficult to walk. .....

In the first instance I have arranged for him to have a scrotal ultrasound to clarify the scrotal pathology. I have also written to Dean Terrace to try and find out exactly why the procedure was abandoned and at what stage. Once I have this information I shall write back to you."

At the foot of the file copy letter the following appeared in manuscript in red ink:

"3-4 ml of Anaesthesia was given - then fainted - there was no skin incision - scrotal skin."

Dr Dewart accepted that it appeared that the above information had been passed on to the Western General Hospital but pointed out that there was no record of when the note was made. He was absolutely certain that he was not asked about this before 1997. He could not recall ever having had a complaint of pain from a patient at the time of the initial incision. Every two, three or four weeks there would be a patient who, when he started doing a deeper dissection of the scrotum, would complain of general discomfort, in which case he would offer further local anaesthetic, and if the patient wished him to put in further local anaesthetic and to continue with the procedure he would do so. He could not remember any patient who, having experienced discomfort in that way, ever said that he did not want to continue. If the pursuer had complained of pain at the time of incision and had not wished any further local anaesthetic to be administered, he would have stopped the operation. If the pursuer had complained of pain at the time of the incision and had not wished any further local anaesthetic to be administered he would have stopped the operation, but he could not recall any patient saying after the scrotal incision that he did not wish to continue and it was therefore his belief (although he could not remember the pursuer) that the pursuer would have asked for further local anaesthetic and that he would have injected it before proceeding further. He had no recollection of any patient at any time complaining to him of feeling pain during the initial incision. The Lignocaine was extremely effective. Although he could not remember the pursuer, his account of events in evidence suggested to him that he had the infiltration of local anaesthetic; that he had an initial skin incision; that the artery forceps were used to dissect the subcutaneous tissues; that at that point he felt pain and indicated such to him; then he would have offered him further local anaesthetic and injected it if the pursuer wished to continue; if, when he injected the further local anaesthetic, the pursuer felt unwell and felt pain and asked him not to continue he would not have done so. He would not have remembered the pursuer because the pursuer was sick as he saw two or three people being sick every week during his normal practice. There was a sick bowl in the room and if somebody felt sick he would be on the buzzer and the nurse would come in with the sick bowl. He could never recall a situation where the nurse cleared vomit off the floor or couch. He could not recall any patient vomiting other than into a sick bowl. Some patients did feel faint but most of them gathered themselves after a few moments and continued to completion of the vasectomy. Every two or three weeks a patient would complain that he felt a little bit faint, a little bit light-headed, a little bit hot and the operation would stop till he felt better and then continue. He did not agree that, however one might look at the pursuer's position and what happened, something very unusual happened to him on 7 May 1996. If something unusual had happened he would have followed the pursuer up because he would have followed up any patient he operated on where he had any concern about his well-being, even if the operation had been completed. He would have asked him to come back to see him the next week. If the pursuer had only the administration of local anaesthetic and the skin incision there would be no reason for him to be concerned or to worry about that. There was no issue if a vasectomy could not be completed because it could always be carried out under general anaesthetic if the patient wanted to go ahead with it. The pursuer would not fit into the unusual category of the type of patient that he was more likely to remember than not if being asked to address his mind to the operation at a subsequent stage.

[45] On being referred to the operation note (7/1(3) of process, p 387) he confirmed that generally the procedure was that he would complete it once the patient had been dealt with and he was waiting for the next patient to come in, but he might well have written his name, the reference to Lignocaine and "prepared for vasectomy" before he started the operation. He accepted that he would proceed with the preparation for vasectomy once the patient had confirmed that he was prepared to proceed. Generally speaking he would have written "prepared for vasectomy" after the patient had had his vasectomy. Only in cases where he had a few minutes spare at the beginning would he have written that in advance. He could not say in this case whether he had written that before or after the pursuer had had his attempted vasectomy. He accepted that he had administered a local anaesthetic to and carried out an incision on the pursuer. These were two matters that ought to have been recorded in the operation note. If some degree of insertion with the forceps had taken place that also ought to have been recorded. He would not necessarily have recorded that the patient at some point had expressed feelings of pain and had been physically sick. If he had stopped the procedure because the patient was in pain he would have recorded that, but if the circumstances were different and something else had happened he would not have recorded that. He accepted that in the pursuer's case there were some significant omissions in the operation note. When asked to explain why, he stated "Because I omitted to complete the operation note at the time of the procedure". He agreed that that was grossly careless and said that he did not know the cause of his gross carelessness. When asked if he could offer any explanation to the court as to why he had left the pursuer's records in such a deficient state, he offered the following three possible explanations: (1) he started writing the operation note and then was called through to see the pursuer if he was feeling sick or had been sick; (2) he was called away to the telephone; or (3) he was distracted. There was only one set of notes in the operation suite at the time of a patient having his vasectomy so it was quite possible that, if he left the operation suite for some reason, given that he had written the short letter which was on the front of the notes, the nurse bringing in the next set of notes, having seen his letter on the front of the pursuer's notes, would have taken them away to go downstairs to be typed up while he was continuing with the next patient. If that happened and he had omitted to complete the operation note at the time the notes were taken away, and did not recall that he had not completed the operation note, then it would not have been completed. The sequence would be that he would carry out the vasectomy, and, assuming it had been successful, he would sign the standard letter on the front of the notes, then open the notes to the page of the operation note and complete and sign the operation note. In a case where he had to change the standard letter (probably once every four weeks) he would take the letter off the front of the notes, score it through, turn it over and write on the back the information that he wanted to be typed up for the letter, after which he would open the notes and complete and sign the operation note. In the pursuer's case he would have written the letter to the GP before he wrote up the operation note. The letter to the GP would have been sent to the vasectomy administrator's office for typing and after the operating session had finished he would have gone down to that office and signed any letters before leaving the clinic. He would never have expected not to have completed the operation note and he would not therefore go back to the notes at that stage. He could not think of any other case where he had shown such gross carelessness in writing up an operation note. He had never had a situation where an operation note had not been completed. At St John's Hospital there was now a fail-safe system in that all operation notes were dictated after the operation was completed and his secretary checked that they had all been done. An omission could occur only where the operation note was to be a handwritten one. He agreed that the fact that he had to stitch the pursuer up was also something that should have been recorded in the notes. He did not believe that the letter to the GP gave misleading information as to the extent of the procedure at the clinic as he did not believe he would have written that the pursuer had had an incision unless he was concerned about it since the pursuer would have known that he had had an incision.

[46] In his letter to Mr Hargreave he stated that he had reviewed the pursuer's notes for medico-legal purposes, referring to late 1997 when he reviewed the position with Dr Glasier, and also to the Western General notes which had just been sent to him by Dr Glasier. When he was asked whether in the sentence of that letter referring to "some other pathology" he was suggesting that the cause of the pursuer's problems might not be organic, he stated that if he thought there was a specific underlying diagnosis he would have said so. He could not at that time see, thinking of the patient whom he thought to be the pursuer, how an injection of local anaesthetic could have resulted in chronic bilateral epididymo-orchitis. He was concerned that this might not be the cause of the pain. He did not believe that he had any further discussions with Mr Hargreave about the pursuer's case. He was not aware of the fact that in large measure due to his intervention by way of his letter to Mr Hargreave the pursuer's scheduled bilateral orchidectomy was cancelled and put back some months. He had no information about the pursuer making contact with the clinic. Up until November or December of 1999 he was proceeding on the basis that the pursuer was somebody else. If he had not seen the GP notes he would have continued to maintain that no incision was carried out, but he could not argue in the face of a scar and the fact that the pursuer had had two stitches removed. He could not imagine why the scar should be Y shaped: normally he would do a one centimetre straight incision, or it would look straight when he was doing it. He would require one or two sutures, depending on whether there was any bleeding from the skin edges. He would have thought that for a Y shaped incision three sutures would have been needed, one for each limb of the Y. Having inserted the sutures, it was his practice to apply a dressing in the form of some loose swabs, over which the patient would pull his supporting underpants or swimming trunks while he was still sitting on the couch. He would make sure that the dressing was over the area, just to stop any bleeding coming through on to the patient's underpants. He would not have let the pursuer leave the couch if he was still bleeding but he believed he went home on the bus and he did not know how rigorous a journey it would have been but if he started bleeding again the dressings should have absorbed some of the bleeding. If he had quite a lot of bleeding (and it sounded as if he had bruising and a haematoma afterwards) then it was possible that he bled through his dressing and his pants and possibly his clothes as well.

[47] Dr Dewart confirmed that as soon as he saw the GP notes after Dr Glasier had forwarded them to him he reviewed his report and immediately contacted the Central Legal Office to indicate that his recollection of the patient was clearly wrong and that he had made a mistake in believing he could recall him. He made that absolutely clear. He was then referred to the Closed Record dated February 2003 (12 of process), in which it was averred at p 8D as follows:

"Explained and averred that the only step which Dr Dewart took was to inject approximately three to five mls of local anaesthetic into the scrotal skin. The pursuer felt faint and became pale and bradycardic. It was obvious to Dr Dewart the pursuer would not be able to tolerate a vasectomy under local anaesthetic on an out-patient basis. This view was reinforced by the fact that the pursuer said he could still feel discomfort despite the injection of local anaesthetic when Dr Dewart tested the area with the needle which he had just used."

He stated again that he made it absolutely clear to the Central Legal Office at the end of 1999 that he must have made an incision and that that was also clear when he first met with his counsel in 2001. He did not believe he had ever seen the Closed Record dated February 2003. That averment was the same as the averment in the defences dated June 1999 and was based on information he had supplied before then relating to the patient he thought was the pursuer. He had no recollection of stating that the pursuer could still feel discomfort despite the injection of local anaesthetic when he tested the area with the needle he had just used. When he reviewed the notes in October 1997 he recalled a patient who only had a local anaesthetic injected and he thought he could recall him quite well. As a matter of general practice he would use the needle he had just used for the local anaesthetic to do the testing, but he had no recollection of saying that he did this with the patient he then had in mind. He could not offer any explanation about why this positive statement had come into the case. The pleadings in 2003 should have made clear that the pursuer had had an incision. He was aware that the pleadings were not changed (until 21 December 2004) but had no explanation for why that should be the case.

[48] Dr Dewart accepted that in relation to the pursuer it would appear that he departed from his normal practice to start on the left side and that that would be unusual in itself. He would always ask the patient to lie flat on the couch and to try to relax as much as possible, with their legs slightly separated. Some patients would try to roll over away from him, some would bring their legs up and some would sort of partially sit up and he had to do his best to try to make them relax. He found that distraction by way of conversation was the most important thing that was helpful in making them relax so that it would be possible to carry on with the operation. Sometimes if the patient started to roll away from him it became easier to do what came to hand first and if on occasion the right side came to hand first and he could gently get hold of the right side then he would do so. It did not necessarily follow from that explanation that in the case of the pursuer there must have been some movement on his part which moved him away from him: it could be that there was a very thick scrotum, sometimes there could be a reflex causing the testicles to rise up in the scrotum making it difficult to find the vas again, and sometimes it was easier on one side than on the other. If the patient wanted to go ahead and have his vasectomy he would be more relaxed when it came to the second side if what was technically the easier side were done first. As he habitually started the operation on the left side there must have been some reason, although he could not remember what it was as he could not remember the pursuer, why he started the operation on the pursuer's right side. The fact that he started on the right side would not be a reason for his having had some recollection of the pursuer as the side he started on would not have been an issue and he would not have thought twice about it. He certainly would not have recorded it in the operation note or anything like that. He accepted that on any view there were a number of unusual features about the pursuer's case - he did not start on his usual side and he carried out an incision but did not proceed with the operation - but said he would have had no reason to remember him as an individual. He would have shaken the pursuer's hand, wished him well and said that he was going to contact his GP to organise a vasectomy under general anaesthetic, in which case he would have been just one of the many patients he had looked after during his time at the clinic. He also accepted that another unusual factor in the pursuer's case was that he did not keep a record of what happened, or, as he put it, "I forgot to fill in my operation note". He did not believe he would have forgotten the pursuer if he suffered an unbearable pain as a consequence of which he was physically sick. It would have been madness to have embarked upon a procedure he had just started when the time remained to do the rest of that side and the other side. He would have to do something if the patient said he was sore. There was no way that he could possibly contemplate going through the 15 minute procedure involved if the patient was in pain from the first moment. He absolutely disagreed that he carried on with the pursuer's procedure knowing that he was in pain. He was not making any assertions as to why the pursuer had given the account he had given but he knew that he would never cause a patient pain in the way that was described by the pursuer. He felt a great deal of sympathy for the pursuer and what had happened to him but he knew that he would never operate, or continue to do so, on someone who was in pain. While he recognised that the pursuer had developed a pain syndrome and felt sympathy in respect of that, the thought of a practitioner, whether it be himself or anybody else, inflicting the type of pain and suffering described made him feel unwell. He accepted that he had no recollection of what happened, he had kept no note of what had happened and he was really relying on what he would normally do to refute the allegations made against him. He agreed with the general observation that as a matter of common experience on occasions we sometimes did things that we really did not mean to do in any sinister way but rejected the suggestion that on this occasion he pressed on with the procedure notwithstanding the pursuer's protestations. What was being talked about was the centre of the doctor-patient relationship, the trust that an individual put in his doctor, and he would not betray that trust. He would not have written to the GP that the pursuer had not been able to tolerate the administration of the local anaesthetic unless that had seemed to him at the time to be the case. There was an incision and thereafter the incision was stitched without the vasectomy having been performed. There must have been some reason for that - presumably the pursuer did not wish to proceed with the vasectomy.

[49] In re-examination Dr Dewart was asked about the view he had expressed that the incision alone could have caused the bruising and swelling mentioned in the GP's note. He explained that over the years he had had one or two patients who had developed scrotal haematomas (blood clots) and in many patients if the scrotum was quite flaccid or relaxed it was not necessary to dissect the subcutaneous tissues with an artery forceps. In addition, as he was principally a gynaecologist, he frequently made minor incisions in women and bleeding from the skin edge could cause significant bruising of the abdominal wall. In his experience it tended to be small vessels just beneath the skin within the immediate subcutaneous tissues that could bleed and that was why he felt that a skin incision alone could cause a haematoma. As the scrotum was very flaccid, if there was a blood vessel there which had not been completely sealed off by putting in the suture, bleeding could occur internally or externally and bruising and haematoma could form in that way and cause swelling of the scrotum.

[50] When he referred to seeing two or three patients per week being sick in his normal practice he was referring to obstetric and gynaecological patients: post-operatively it was common for patients to feel sick and vomit. In the course of a week in 1996 he saw three or four patients at the vasectomy clinic, 20 or so gynaecology outpatients, 12 to 14 gynaecology inpatients for operations, 12 to 14 antenatal outpatients, six to eight patients attending his pelvic pain clinic and the patients on the ward during his ward round (possibly a dozen different patients each week). In addition he undertook family planning clinics at which he would see at least a dozen patients a week.

[51] On being referred again to his letter to Mr Hargreave, he stated that that he did not know why the pursuer's bilateral orchidectomy scheduled for early 1998 had been cancelled, and that to find out why it would be necessary to ask Mr Hargreave.

(vi) Professor Anna Glasier

[52] Professor Glasier, a witness for the defenders, had been Director of the clinic since June 1990. She was a gynaecologist and had never herself performed a vasectomy. She explained that the clinic provided a sexual reproduction health service for the whole of Lothian. It had 40,000 patients and 600 vasectomies a year were performed in it. There were three sessions a week for vasectomies. Normally four vasectomies were done at a session, which lasted about one and a half hours. Patients arrived at 20 minute intervals. In 1996 advance counselling was provided for vasectomy patients. They were provided with a leaflet containing information and attended a counselling visit with one of the staff of the clinic (not the surgeon). The vasectomy counselling sheet (7/1(3) of process, p 388) showed that the pursuer and his wife had been counselled by Dr Anne Moorhead on 31 January 1996, when all issues ticked on the check list had been discussed. One of the surgeons at St John's Hospital was often asked to do vasectomies under local anaesthetic at the clinic. Dr Dewart was such a surgeon as at May 1996. She had worked with him at Simpson's Memorial Maternity Pavilion between 1984 and 1986. He had come to the Family Planning Service in 1995. He was very kind, considerate, thorough and competent: he explained everything he did before he did it. She was aware of the sort of person and doctor he was.

[53] As director of the clinic Professor Glasier got involved with all complaints. A letter about the pursuer dated 30 July 1996 (7/1(3) of process, p 395) from Mr D A Tolley, Consultant Urologist, addressed to the Doctor in Charge was received at the clinic. In that letter Mr Tolley stated as follows:

"I should be grateful if you would provide me with clinical details about this man. I understand that vasectomy was attempted on 7 May this year but there is no more detail available than that. I would be grateful if you would send me a copy of your operation note at your earliest convenience."

Professor Glasier could not say if she dealt with that letter. Dr Elizabeth Barden, the Senior Clinical Medical officer, dealt with the Vasectomy Service, so it was probably dealt with by her. Professor Glasier was then referred to a reply dated 8 August 1996 (7/1(3) of process, p 383) from Dr Barden (but signed on her behalf by Professor Glasier) in the following terms:

"Thank you for your enquiry about this patient who attended Dean Terrace for vasectomy on 7^th May 1996. According to Dr Dewart's note he was 'not able to tolerate the administration of local anaesthetic' and the operation was abandoned.

I am sending you copies of our case records, the consent form and a copy of Dr Dewart's letter to Dr Lang."

Professor Glasier did not know if Dr Barden had at this stage told Dr Dewart about the approach from Mr Tolley. Dr Barden was a pretty obsessional doctor and she thought that if she had been in touch with Dr Dewart she would have recorded that in the notes. Professor Glasier recalled a complaint from somebody, but could not remember the tenor of it without seeing the letter. She would have spoken to Dr Dewart about it but could not remember what was said. As at 13 March 1998, when he wrote his letter to Mr Hargreave stating that there had been no scrotal incision, Dr Dewart had access to only the clinic notes. Later (she could not say when) he had access to everything relating to the case, including the hospital and GP notes, sent by the Central Legal Office. Dr Dewart's letter of 24 December 1999 to the Central Legal Office (7/14 of process), written after he had reviewed the GP's notes, in which he apologised for not having completed the operation note at the time and for having believed that he could remember the patient involved, was copied to her and sent with an accompanying compliments slip received at the clinic on 6 January 2000. As she turned things round very quickly that meant that she had the GP notes in December 1999. She had no knowledge of the pursuer himself contacting the clinic (7/1(3) of process, the letter from Mr Hargreave dated 17 March 1998) and thought that if he had done so Dr Barden would have recorded it. Dr Dewart stopped doing vasectomies at the clinic in 1999 because of the present case. She was very disappointed as the patients and staff liked him and she wrote to the Central Legal Office as she would have liked him back.

[54] In cross-examination Professor Glasier was referred to a manuscript note (7/1(3) of process, p 395) referring to the pursuer and Dr Dewart and mentioning "Anna - Dean Terr". Her response was that she had never seen the note before, it meant absolutely nothing to her, she did not know where it came from and she did not recognise the writing. The statement in the operation note "See letter - For GA" related to Dr Dewart's letter of 7 May 1996 to Dr Lang. She thought she would have noted a scrotal incision on the operation note had one been made and agreed that Dr Dewart was not thorough on this occasion. She could not agree that the sentence "He was unable to tolerate the administration of local anaesthetic" in Dr Dewart's letter of 7 May 1996 was misleading. She might have said "he was unable to tolerate the procedure", which would have given a different impression. Those were the words used by Dr Dewart in his letter of 24 December 1999 to the Central Legal Office. The fact that sutures had been removed was noted in the GP records. Dr Dewart thought all he had done was infiltrate the local anaesthetic. She agreed that something must have happened to interrupt the procedure on 7 May 1996. She guessed that the pursuer had asked Dr Dewart to stop. She would have expected the operation note to have recorded that the surgical procedure had been abandoned, but none of the vasectomy surgeons wrote very detailed notes. Dr Dewart wrote a letter to the GP where, as he recalled it, he gave a reason for abandoning the procedure. He could not sustain that position and the position set out in his letter to Mr Hargreave once the GP notes had been seen.

[55] So far as the procedure for vasectomies was concerned, they were done in the treatment room on the top floor of the clinic. The surgeon worked with a nurse, who prepared the items. The surgeon carried out the procedure alone with the patient. He would put the scalpel down to pick up another instrument for the vasectomy.

[56] In re-examination Professor Glasier was asked about the phrase "Having reviewed his notes for medico-legal purposes" in Dr Dewart's letter of 13 March 1998 to Mr Hargreave and explained that he must have been referring to the Western General Hospital notes as she first received the GP notes in November 1999 and then passed them to Dr Dewart. The manuscript note to which she was referred in cross-examination definitely did not come from the clinic notes as she had the originals at the clinic and that document was definitely not among them.

The evidence of injury to the pursuer

[57] The case for the pursuer is that he has suffered from neuropathic pain due to a nerve injury caused by Dr Dewart's insertion of an instrument into his scrotum. On this issue a body of evidence was led from the pursuer and medical witnesses which I now turn to consider. The medical evidence includes evidence about the procedure to be adopted by a surgeon carrying out a vasectomy under local anaesthetic.

(i) Dr Murray Carmichael

[58] Dr Carmichael, a witness for the pursuer, was a Fellow of the Royal College of Anaesthetists. He had retired from the National Health Service in March 2004 and was in private practice at the Murrayfield Hospital, Edinburgh as a consultant in pain management. From 1979 to 2003 he had been a consultant neuro-anaesthetist at the Western General Hospital in Edinburgh and in charge of the Pain Clinic there with clinical responsibilities in benign and cancer pain. As a consultant neuro-anaesthetist he worked within the Department of Clinical Neurosciences and anaesthetised only for neurosurgical procedures. He became involved in pain management because it was dealt with within that department when he joined it. He had been interested in pain management since he had been a senior registrar.

[59] Dr Carmichael saw and examined the pursuer in February 2001 and on 7 January 2005. Following the second examination he produced a report (6/10 of process). He had also spoken to the pursuer in February 2002 when he was a patient at the Western General Hospital under his colleague Dr Cullen. In considering the pursuer's case he had had regard to the GP records and the notes of the Pain Clinic. On the occasions when he saw the pursuer he was given the impression of someone who was suffering from pain and who, when he moved or sat, had exacerbations of pain which caused him to give facial grimacing and sounds and move about. When he examined the pursuer in January 2005 he found that he was walking on crutches and then sat in the chair. He became uncomfortable after a short period and moved around. He was quite consistent in his history and gave exactly the same story as he had previously given. He indicated on a pain diagram that he was suffering pain in exactly the same place as he had indicated in 2001, namely, the front of his scrotum and the under-surface of his penis. He indicated that his pain was slightly better. He had had a change of medication in that his dosage of Gabapentin had been changed and he had started applying a local anaesthetic cream called EMLA which he found reduced the pain sensation slightly, particularly the hypersensitivity of the skin over the scrotum and penis. He felt his pain had improved from 6 out of 10 to 4 out of 10 when using this cream. He was using a really quite high dosage of Fentanyl (a synthetic form of Pethidine, a powerful analgesic drug 100 times as potent as morphine) patches, which were made up and applied for three days on the skin so that the drug infused through the skin. He was also taking orally Oromorph sachets containing 10 milligrams of morphine about eight times a day, but admitted to taking up to 40 when the pain was very severe. This was a dosage which was enough to render an opiate-naïve subject unconscious, but the pursuer had been on opiates for a number of years and had obviously become tolerant to them, so that his requirement was much higher. The dosage that he was on was the sort of dosage that would normally be prescribed to someone with cancer pain. The other drugs he was on consisted of Diclofenac (an anti-inflammatory), Venlafaxine (an anti-depressant, also used for pain control), Gabapentin (an anti-convulsant used to dampen down neuropathic pain) and two drugs for his bladder spasms. He had probably developed some psychological and physical dependence on opiate drugs.

[60] When Dr Carmichael examined the area where the pursuer indicated there was pain there was nothing to see - no changes in colour or temperature. No abnormality was obvious until the area was touched, when the pursuer felt considerable pain over the scrotum, the lower aspect of the penis and into his groins. Following the examination, when Dr Carmichael had been as gentle as he could have been, the pursuer complained of increasingly severe pain and eventually sat with his head in his hands, sweating and gasping, saying that that was what he had expected. This was something which was seen in the condition known as allodynia, which was a part of neuropathic pain. Light touch should not normally cause pain, but where there was hyperalgesia pain seemed to be caused by gentle stroking or brushing of the skin. There was a delay in the pain being caused and it built up over a period of a few minutes to produce an intense pain, which the pursuer demonstrated quite effectively. It seemed very apparent to Dr Carmichael from the pursuer's symptoms that he demonstrated that there was a change in the pain processing, that there was a hypersensitivity of the sensory nerves going to the spinal cord. Within the spinal cord there was a processing system which could reduce or increase sensitivity and it was well known that following minor nerve injuries it could be greatly increased so that not only a small painful stimulus but also a non-painful stimulus could cause pain as well. The pursuer seemed to fit in exactly with this symptom. It seemed to Dr Carmichael that the pursuer's reaction was genuine and it was his opinion that the pursuer suffered from an organic pain.

[61] On the assumption that the pursuer's account of what happened at the clinic on 7 May 1996 was correct, Dr Carmichael stated that he would have expected, if the local anaesthetic had been working, that the pursuer would not have felt any more than pressure or pulling or pushing of the tissues, but if the pursuer "felt it sharp" he would expect that the local anaesthetic was not working at that time. The description of an incision which gave rise to some sensation of pain and then went away was very much a credible account of what one might feel with such an incision. Quite often the pain, even from quite major injuries, could go away for a period as the body had the capacity to switch off. When Dr Carmichael himself gave a local anaesthetic he normally tested to see that it had worked by touching the area with a needle, scalpel or sharp object and asking "Is this dead?" before proceeding. It was also important to know how big an incision was going to be made to ensure that the anaesthetic had spread evenly to all the area that you are going to be working on because if you only did half of it and extended the incision beyond the anaesthetised area the patient would then receive a full painful impulse. If the pursuer felt unbearable pain upon the insertion of an instrument into his scrotum the local anaesthetic had not been effective in the area in which the instrument was inserted. The neuropathic pain that the pursuer subsequently complained of was frequently seen following a minor injury with pain of this sort. It could be reproduced in animal experimental work in laboratories by stimulating pain nerve fibres and making recordings from the spinal cord which show that an initial severe pain is received by the neurons within the spinal cord which then change in a way to make them more receptive to further painful stimuli. This was originally known as pain wind-up. There were changes in the sensitivity of small interneurons and a release of various chemical neuropeptides within the spinal cord and changes within the cells of these neurons so that the spinal cord then became more receptive to pain. It had also been shown that these changes did not remain isolated to the one nerve pathway that had been stimulated but could span to different somatic levels above and below, as well as spreading to the contra-lateral side to affect the nerves on the opposite side with paired argons, so that a severe pain through one nerve pathway could produce these changes (as far as was known, normally). In the majority of people the symptoms settled down over a few hours or days and did not turn into chronic pain, but with some people (and animals also) prolonged or chronic pain could be the result of this pain stimulus. Whatever it was in the surgical procedure which caused the sharp, severe pain which produced effects on the sympathetic nervous system (including sweating and bradycardia) would have been the trigger which caused this long-term pain and hypersensitivity of the nerves in that area which the pursuer now experienced. A sharp, strong pain stimulus - it need not be a severe pain - seemed to be sufficient to cause this state of affairs to occur. There was no real answer to the question why in some people the result was chronic pain. Some people had had a long history of sensitivity to pain and there could be psychological reasons, known as somatisation, in which people could dwell on an area which has been painful and create this pain. In a case of somatisation usually the patient had other symptoms, such as a long history since childhood of going to the doctor complaining of various pains which were out of proportion to the signs that the doctor had recorded. There was certainly nothing in the pursuer's notes to suggest that he was someone who suffered from that condition. He did not know why this should happen in someone who was apparently normal beforehand.

[62] Neuropathic pain was pain generated within the pain sensory pathway from the periphery nerve endings to the spinal cord, processing in the spinal cord to the further projections, to the thalamus and cortex and descending inhibitory pathways, which would normally obtund unnecessary pain. Something had gone wrong somewhere within this very complex system which allowed the pain, which had been generated within the nerves, to continue. Allodynia was a symptom of neuropathic (or, more correctly, neurogenic) pain in that it was pain caused by a non-painful stimulus to the area. In the case of the pursuer there was a history of small painful injury followed by continuing pain, followed by evidence of neurogenic pain, allodynia and hypersensitivity of the area spreading to the other side. There was no known treatment for the chronic condition. Various treatments were aimed at alleviating the symptoms, but he did not expect that there would be any recovery or cure for the underlying condition. It had obviously been the opinion of a very experienced urologist that a double orchidectomy might have been helpful in the pursuer's case, but he could not give any other opinion. In relation to the evidence that on 7 May 1996 the right side of the pursuer's scrotum was seen to be black and there was haematoma and swelling, he explained that in the normal case bruising did not cause this type of pain but a pressure type of pain on the nerve endings which normally settled down within a day or two. None of the experienced hospital consultants who had dealt with the pursuer's case had expressed the opinion that his pain complaints were not genuine: all felt that he was suffering from an organic condition, and there was no suggestion whatsoever that it was something which was psychological or invented.

[63] On p 4 of his report (6/10 of process) Dr Carmichael stated as follows:

"Post vasectomy pain has been reported to have a 10 to 30% incidence. Usually this settles down within three months but in some cases may become chronic. It is deemed to be associated with cutting of the Vas Deferens. Mr Stalker did not have this done at the initial procedure and his pain seems to be associated with the scrotal incision."

He explained that by "the scrotal incision" he meant the incision through the scrotal wall, which was in two parts: (1) the skin incision with the scalpel; and (2) the blunt dissection through the subcutaneous tissues to go through the scrotal wall to get down to the vas deferens. For the triggering event for the continuing pain one had to look to see where the sharp pain had occurred in the course of the procedure. In his report he went on to state as follows:

"If the incision had been made into a non-anaesthetised area pain and nausea, as experienced by Mr Stalker, would have occurred. It is well recognised, and supported by animal experimentation, that strong stimulation of peripheral pain nerves can cause changes in their connections within the spinal cord and other areas of the afferent pain pathways. This can lead to spontaneous firing of pain nerve fibres, causing pain sensations, and can also produce a raised sensitivity so that light touch is felt as pain. These changes in sensitivity can spread to adjacent somatic levels and thereby increase the level of pain beyond the bounds of the initial injury.

Mr Stalker exhibits symptoms of neuropathic pain resulting from these physiological changes. He suffers severe pain, after rubbing or touching the affected area, which builds up for a period following gentle stimulation. It is eased by anticonvulsant drugs more effectively than morphine and has not been relieved by orchidectomy. His later bladder problems may be related to the existing neuropathic hypersensitivity or the subsequent surgery, which was carried out as treatment for his earlier symptoms."

His prognosis was that there was no realistic expectation that there would be any spontaneous remission of the pursuer's symptoms and that he would continue to be disabled, unable to carry out any form of remunerative employment and would require support in his daily living requirements.

[64] Dr Carmichael was then referred to a report (7/4 of process) by Dr Gavin McCallum, a consultant in anaesthesia and pain management at the Southern General Hospital, Glasgow addressed to the Central Legal Office. In that report Dr McCallum stated that he saw the pursuer at the Southern General Hospital on 8 December 2004, when he gave a history of having felt a sharp and incisive sensation in the scrotum where the incision was being made and of having complained to the surgeon that he could feel it. On pages 3 and 4 of his report he stated as follows:

"The underlying mechanism of post-surgical allodynic pain syndromes is reasonably well understood theoretically. The pain can arise as a number of changes at the peripheral or sensing areas of the skin, how it is processed within the spinal cords, specifically the dorsal horn, and how it is transmitted and processed within the higher centres of the brain, including how it is influenced by the limbic system inputs around the thalamus and cortical centres. The most important changes in this man's case are certainly the presence of allodynia. Allodynia is the neurological change that results in a previously non-painful stimulus becoming intensely painful. This can occur peripherally as a result of injury to the nerve endings at the site of the surgery with an overgrowth of the cut ends of the nerves or an increase in the number of receptors or change in receptor types of the peripheral nerves. This would be known as peripheral allodynia. This can exist in isolation or with central allodynia.

Central allodynia is where the alteration occurs in the dorsal horn of the spinal cord where normal inputs from the peripheral nerves are magnified or changed in nature by an alteration in the inter-neurones within the dorsal horn, usually in levels 1 and 2 of the dorsal horn. This can occur as a result of changes of receptors, of receptor sensitivity, of neurotransmittors or by the new growth of nerve endings or the growth into the sensory area of nerves from the lateral or sympathetic horn. The stimulus for these changes can be anything from a very, very minor injury such as a foreign body penetration, right through to fractured bone or significant burn. It is likely that it takes a combination of genetic predisposition and environmental incident to produce a pain syndrome like this. Once it has occurred it can be very, very difficult to return the changes particularly in the dorsal horn back to normal. It becomes more difficult over time. It may be in terms of triggering Mr Stalker's particular case that his dorsal horn was set up to change from a normal physiological state to a pathological state by pre-existing anxiety or anticipation of pain. The particular trigger could easily have been a single non-anaesthetised surgical incision. However, I would suggest that it is very unlikely that the pre-operative examination, the infiltration of the local anaesthetic or the identification of the vas were the causes."

Dr Carmichael agreed with the above passages, subject to the following qualifications or exceptions. There was no evidence that people were genetically predisposed to an allodynic condition: it was merely a theory. The mention of the dorsal horn being set up to change by pre-existing anxiety or anticipation of pain was again a theory. When asked whether he was particularly nervous the pursuer had replied "Well, not really". The pursuer had chosen to have the operation, had gone voluntarily to the clinic and, as far as Dr Carmichael could make out, was no more nervous than any chap who was going to go and have this procedure carried out. As far as he understood the pursuer was not particularly apprehensive.

[65] Dr Carmichael was next asked to consider Dr Dewart's operation note and his letter to the pursuer's GP. As an anaesthetist his understanding of the sentence "He was not able to tolerate the administration of the local anaesthetic" was that the pursuer had a reaction to the local anaesthetic, either an allergic reaction or he felt unwell because of it. He would assume the sentence meant the local anaesthetic was administered, but he had had patients who had refused to allow him to put the needle in, and he thought that would cover that sentence. He was then referred to Dr Dewart's letter of 13 March 1998 to Mr Hargreave in which it was stated that the pursuer "was clearly unable to tolerate even a local anaesthetic" and that Dr Dewart "decided, without even making a scrotal incision, not to proceed". If a local anaesthetic was being administered in a situation where a doctor was about to carry out an invasive procedure the doctor should test to see if the local anaesthetic has worked. He felt that the doctor had a duty of care to the patient to ensure that he was not going to inflict pain on the patient, and the testing of the skin to ensure that it was anaesthetised was a requirement for his care. A failure to test in those circumstances would be a failure that no doctor of ordinary skill would be guilty of if acting with ordinary care. If a doctor in such circumstances, having administered local anaesthetic, continued with an incision in the face of pain, that would be such conduct that no doctor of ordinary skill would be guilty of if acting with ordinary care.

[66] In cross-examination Dr Carmichael said that he knew of no independent objective way of determining whether the pursuer's pain reaction was a reaction to some electrical process going on within the body or a reaction pre-programmed by an anticipation of pain. When he carried out palpation on the pursuer there was no distraction on the pursuer's part and the pursuer was aware of what he was doing. He agreed that while there may be organic pain present in the pursuer's case there might also be some psychological overlay, but he would defer to a psychiatrist or a psychologist in relation to that. He himself had never carried out a vasectomy but he had been present when a vasectomy had been carried out under general anaesthetic. He did not think that the speed of the incision made any difference to whether you test that the local anaesthetic is working. He would consider it a sufficient test to check that the local anaesthetic was working to touch the area where the decision was about to be made with an instrument while watching the patient's reaction and asking him "Is that ok? Is that sore?". In his experience what happened was that the surgeon incised the skin using one knife, put it aside because it was likely to have been contaminated by skin bacteria, and then proceeded to the subcutaneous tissues with either a second knife or using forceps to do blunt dissection to open up the pathway to the tissues that he was aiming to treat. If the vas was histologically normal at the time of the bilateral orchidectomy that meant that there had been no damage done to it or it had healed. A strong pain was a sufficient stimulus to set off the processes which he described in his report. The incidence of post vasectomy pain to which he referred in his report referred only to the situation where the vas had been cut. If under a general anaesthetic no sufficient analgesia, powerful opioids or local anaesthetic block were given, that could cause post-operative pain in many types of minor procedure, not just in vasectomies. Someone could suffer from peripheral allodynia who had surgery under anaesthesia which had worked but who had undergone some sort of nerve damage in the course of the surgery and suffered pain afterwards. He agreed with Dr McCallum that the trigger for pain in the pursuer's case could easily have been a single, non-anaesthetised surgical incision. It seemed to him that this was the triggering mechanism which caused it.

[67] Dr Carmichael confirmed that the pursuer was not meant to take more than eight Oromorph sachets a day, but had said he quite often took 20 to 30 a day and sometimes up to 40. The Oromorph topped up the pain relief from the Fentanyl patches. It was quite common for the pain to settle down within ten minutes or so of taking Oromorph. The prognosis for the pursuer was really quite bleak, although he had recently benefited to some degree from the EMLA cream. Sodium channel blockade drugs (recommended by Dr McCallum) were similar to Lignocaine and were regarded as "third line" drugs in the treatment of pain. A group in Oxford called Bandolier which did systematic reviews of all pain treatments had found that they were very little better than a placebo and recommended that they should be used only in extreme cases of patients suffering terminal cancer. They were drugs which were used with great caution, and he had never found them very successful in the patients to whom he had given them. There was very little leeway between the therapeutic level and the toxic level with these drugs and they could be dangerous to try in someone such as the pursuer. In his experience they did not work and they were drugs with a lot of problems.

[68] On being referred again to Dr McCallum's report (7/4 of process) he said that there were nerve endings in which the stimulus to pain was felt within the cutaneous and subcutaneous layers of the skin. It followed that the skin was where a sharp, very localised sensation was most likely to be felt and a pain of a sharp or defined nature was more likely to be felt as a result of a cut at skin level rather than a dissection into subcutaneous tissue. If an individual described sharp pain it was more likely that he was feeling it at skin level. There were nerve endings within the subcutaneous tissues, so if the pursuer described such a pain it would be a combination of pain at skin level and in the subcutaneous tissue. It could also be that the pain was being felt at skin level. He would not entirely agree that the most likely first trigger for pain on the pursuer's account was the incision in that the incision with a very sharp instrument cut through very few nerve endings. When the surgeon applied forceps he stretched open the skin incision, thereby stimulating further nerve endings. The traction on the skin by opening up the incision was probably much more painful than the actual fine nick with a sharp scalpel. He thought that pain caused by the stretching process could possibly be described as a different sort of pain from a cutting pain, but it was difficult for someone undergoing pain actually to give different explanations. He did not agree that if an individual described a sharp pain it was more likely to be felt in the skin than in the stretching process as the pain on stretching could be described as sharp. If the pursuer could see Dr Dewart cutting with a scalpel when he first felt pain it could well be correct that the cutting with the scalpel was the first trigger for pain.

[69] Dr Carmichael had no recollection of the pursuer having said to him in 2001 or 2002 that during the procedure he had felt pain in his testicle on injection. Quite often the layman referred to the scrotum and its contents as the testicle and it was necessary to prise out exactly what was meant. The pursuer did not say to him that he lost consciousness at the end of the procedure. If the pursuer said that he felt pain in his testicle on injection and on incision and that he might also have lost consciousness that would not alter his opinion. Pain in the testis itself was not suggested to him by the pursuer and was not mentioned in any of his case notes. He would think that, if the pursuer mentioned the testicle, he meant the scrotum.

[70] An alternative version of events was then put to Dr Carmichael. It was that Dr Dewart had tested in the way described above that the local anaesthetic had worked, got no response to that test, made the incision and went no further on the pursuer complaining of pain. Dr Carmichael agreed that in those circumstances the incision could have been the cause of the neuropathic pain. If the pursuer did not respond to the question asked of him he thought that would seem a little strange in the intimate situation that was going on. If the pursuer did not respond he would have expected the surgeon to check again to be quite sure that he did not feel anything. If the patient felt pain on the incision of his skin then it was not totally anaesthetised or the incision had been made into un-anaesthetised skin further away from the area which was anaesthetised.

[71] Another scenario was then put to Dr Carmichael. It was that after the complaint of pain on initial incision the surgeon injected further local anaesthesia, waited for two or three minutes, tested to see whether it had worked and proceeded into the scrotum with a long instrument, at which point further pain ensued and the procedure was stopped. He was asked whether the incision was still the likely trigger for the neuropathic pain, it having been the cause of the first complaint of pain. His response was that the neuropathic pain was caused by stimulation and possible partial damage to pain nerve fibres and he would think it would be impossible to say whether it was the initial incision or the deeper incision which had caused it. It was very difficult to distinguish between two pain-producing stimuli. It was possible that the pursuer might not have responded to the test for local anaesthetic in any adverse way but might still have felt pain on the incision. He agreed that the proper course of action for the surgeon to take on a complaint of pain being made was to stop and offer further local anaesthetic. Thereafter, having administered further local anaesthetic, the surgeon should not proceed further until he had tested that the local anaesthetic had worked. He agreed that it would be highly unusual for any doctor to proceed with surgery in the face of a complaint of pain, and even more unusual to proceed in the face of two or possibly three complaints of pain. It would be very difficult to see what would be the motivation in so continuing: it would be against the doctor's Hippocratic oath. He accepted that to continue in such a way would be the action of an uncaring and unsympathetic man, or even of a harsh or arrogant man.

[72] Dr Carmichael was then referred to the statement made by the pursuer to his GP that cannabis took away 80% of his pain and was asked if that meant that 80% of his pain was in his mind. His answer was as follows:

"I think that statement is quite incorrect with Mr Stalker. We deal with a lot of patients who have significant psychological overlay, and it becomes quite apparent in their reaction to certain stimulus (sic) that they are very much overplaying the pain symptoms. I did not get the impression with Mr Stalker that the psychological overlay was as much as 80%, maybe about 20%, which is normal, any of us would, who has suffered severe pain. The anxiety about further pain is sufficient to cause this."

At meetings in 2002 of the multi-disciplinary pain group at the Western General Hospital dealing with the pursuer's case, where a psychologist who had examined the pursuer was present, there was no suggestion that he had a severe psychological overlay. He agreed that the two changes in the pursuer's therapy which had been suggested by Dr McCallum and followed up had both worked to the pursuer's benefit. He did not favour Dr McCallum's recommendation of the drug Capsaicum. He thought that if an analgesic effect could be produced which would reduce or entirely get rid of the pursuer's pain, which affected him all day and kept him awake at night, his emotional state would improve considerably.

[73] In re-examination Dr Carmichael accepted that the pursuer's therapies could have been improved as suggested by Dr McCallum. He did not think sodium channel blockers would be appropriate. The pursuer was getting small improvements in his symptoms but there was no treatment which would cure the underlying condition. It might be possible to vary his medication to give him some amount of relief. The EMLA cream which he had been using contained Lignocaine, the anaesthetic used on 7 May 1996, which would seem to indicate that he responded to it.

[74] Dr Carmichael went on to explain that in carrying out the blunt dissection a surgeon was parting the tissues, pulling them apart and also stretching the skin incision. If at the time of the initial incision the pursuer felt a scratch-like pain which came and went and during the insertion he felt the sharp pain previously described, then it was Dr Carmichael's opinion that it was the second pain which triggered off the response because it seemed to have set off the generalised response in the pursuer. He took that view because stretching the nerves and pulling and tearing the smaller nerve endings was usually the much more severe pain than that caused by merely cutting through the tissues with a sharp scalpel. He thought it highly unlikely that if the pursuer had had an incision and no more and simply a scratch-like pain that came and went that that would have brought about his subsequent condition. He felt that if the pursuer had just had a little cut he would not have had the bruising in the scrotum, which indicated to him that there had been bleeding in the subcutaneous tissues which had spread round the wall of the scrotum, something more likely to be associated with some form of insertion during which the tissues were being moved apart. The bruising confirmed to him that there had been deeper penetration through the scrotal wall than purely a skin nick. If there were an incision and subsequent insertion of an instrument, both causing pain, it was very difficult to separate the two events. The symptom of pain was due to stimulating the pain nerve endings or stretching or damaging the tissues in which they existed, and somewhere in the approach through the scrotal wall there was damage to nerve endings. It was unlikely that it would be from the scalpel on the skin: it was much more likely from the deeper blunt dissection and the stretching it would have caused. The initial pain seemed to have been very short-lived and the deeper pain sounded much more like damage to nerves. On the hypothesis that there were two similar sharp pains from incision and insertion of an instrument he certainly could not tell which event caused the neuropathic pain. One could theorise that the first pain had prepared the pain pathways and the second pain coming shortly afterwards had caused it, but it was for a neuro-physiologist to discuss this. It was his understanding that, on the foregoing hypothesis, the second pain would have made a material contribution to the pain that the pursuer suffered, but he could not positively say. On the assumption that the incision caused a scratch-like pain that came and went and the insertion caused a sharp pain, it was his view as a clinician that it was the second pain which led to the subsequent neuropathy.

(ii) Mr Samuel McClinton

[75] Mr McClinton, a witness for the pursuer, was a consultant urological surgeon at Aberdeen Royal Infirmary and had been since 1993. Apart from his basic medical degrees, which he acquired in 1980, he held the qualifications of FRCS Ireland (1986), MD (1983) and FRCS Edinburgh (1995). He provided general urological surgery for the Grampian area and lectured to undergraduate and post-graduate medical students at Aberdeen University. He carried out vasectomies on a regular basis, usually once, sometimes twice, a week. In the broadest terms he had carried out over a thousand vasectomies in the course of his career. He had first been consulted about this case by a letter from the pursuer's solicitors dated 2 October 1997. He was sent a copy of a letter (7/1 of process, p 372) dated 12 August 1997 from Mr Hargreave to a Dr C R Horn and, after he had seen the pursuer on 9 April 1998, a precognition of the pursuer. He also had a copy of the clinical records relating to events on 7 May 1996.

[76] Mr McClinton explained that there were a number of ways of doing a vasectomy. The first stage was to isolate the vas deferens and the second stage was to remove a section of it. The operation could be done under local or general anaesthetic and by making one incision or two incisions in the scrotum. He went on to describe the procedure for carrying out a vasectomy under local anaesthetic. The patient was on an operating table covered with a gown and prepared with some washing material. The surgeon then manipulated the vas up to the skin, so that it sat just underneath the skin. He then inserted local anaesthetic to freeze the skin, the tissues under the skin and the tissues around the vas itself. There were a variety of local anaesthetics that were used, including Lignocaine, of which three to five mls on each side were normally used. The surgeon then waited for a minute or two for the local anaesthetic to take effect, then tested the site where he was going to make an incision to make sure that the patient had no pain sensation. The surgeon would usually warn the patient that he would be aware the surgeon was working in that area, that he would feel movement from touch, but that he should not feel any pain. Once the surgeon was satisfied by the test that he could proceed, he then made an incision, but as he did so he watched the patient to make sure that patient was not feeling any pain. The incision would usually be made directly over the vas, which had been manipulated up to the skin. Most surgeons used a scalpel to make the incision, but there was a no scalpel technique in which a sharp instrument was used. Once the incision had been made the surgeon then spread the tissues to get down to the vas and grasped the vas to bring it out through the incision. The spreading of the tissues was usually done with forceps. Some surgeons cut right down until they got to the vas. The vas was grasped with a special instrument like a little hook that went round the back of it so that the surgeon could pull it up. There were usually other tissues surrounding the vas that the surgeon needed to clear from the vas either by the use of forceps or by cutting to excise the tissues off the vas. The vas was then divided and the ends tied, for which process a variety of techniques was available. Once the surgeon was satisfied that the two ends were not going to join again he dropped them back in and closed the incision by means of one or two stitches just to the skin. The surgeon would then apply to the incision a spray-on dressing that protected the wound for 24 hours. The stitching helped to stop any blood flow from the wound: you could still get some bleeding, but it was usually minimal, usually not much at all. If everything went smoothly the procedure normally took 10 to 15 minutes.

[77] Mr McClinton was then referred to the GP's note for 9 May 1996 (7/5 of process, p 2). He said that the entry would tend to indicate that there had been more than a simple incision. A simple incision might lead to some bleeding and some local bruising at the incision site, but haematoma and swelling of the scrotum would tend to indicate that there had been bleeding internally within the scrotum rather than just at the skin level, which would indicate it had gone beyond the skin. When asked if he could give any reason why the pursuer should feel pain at incision if an anaesthetic had been given and tested, he replied that occasionally the local anaesthetic did not take immediately and took slightly longer than usual to be effective. Occasionally the surgeon lost the site where he had put the anaesthetic in and made the incision in the wrong place. It would be very rare for that to happen (he had done it once) as normally the surgeon would be aware where he had put the anaesthetic in. In that situation the patient would feel the cut. It was exceptional, very rare, for a local anaesthetic not to be effective. In his experience it had happened on a handful of occasions and the problem was resolved by waiting a little longer or putting in some more local anaesthetic. Usually the patient was aware the local anaesthetic had not taken before the incision was made. On being referred to Dr Dewart's operation note (7/1 of process, p 387) he said that nothing could be gleaned from it about the operation. There was no record apart from that the patient was prepared for vasectomy, which could just mean that he was washed and draped. It could probably be taken from the entry "20 mls 1% Lignocaine LA" that that amount had been drawn up and possibly used, but there was no way of knowing whether it was used or not. Three to five mls of anaesthetic would normally be used on each side, so 10 mls was usually adequate. You would not draw a little extra in case you had a problem. There was plenty available if needed but he had never had to use 20 mls of Lignocaine. The note did not indicate that there had been an incision and an insertion to some extent. He would expect a note from the surgeon himself detailing what he had done. On being referred to Dr Dewart's letter (7/1 of process, p 394) of 7 May 1996 to Dr Lang, he said that the inference from that was that local anaesthetic had been administered, the patient felt unwell or did not wish to proceed and that that was as far as things went. If the pursuer had had been stitched, he would expect to find reference to that in the operation note.

[78] Mr McClinton was then referred to Dr Dewart's letter (7/1 of process, p 354) of 13 March 1998 to Mr Hargreave, which he had not previously seen. He took from the statement "he was very tender on palpation of his testes" that the pursuer found it uncomfortable to have his vas manipulated towards his skin. The description of the operation in the letter fitted in with what was said in the letter of 9 May 1996 to the GP. He himself had seen the incision and a small scar on the right side of the pursuer's scrotum. The technique described by Dr Dewart in that letter for performing a vasectomy seemed perfectly normal. It was not uncommon for patients to feel faint when a local anaesthetic was administered. Normally they got cold and clammy and he tilted the bed, head down, and waited a minute or two for it to pass. It always passed and then he put the bed back and proceeded. On the assumption that the pursuer had local anaesthetic administered in the right groin area, Dr Dewart began to make an incision, the pursuer began to feel pain and told Dr Dewart that he could feel it, he would assume that the local anaesthetic was not working and either wait a little longer for it to take effect or inject further local anaesthetic. He would not proceed with what he was doing. A failure of a surgeon to stop in such a situation and administer further local anaesthetic would be a failure that no surgeon of ordinary skill would be guilty of if acting with ordinary care. It would not be acceptable practice for the surgeon to continue with the incision, notwithstanding being told at least more than once that it could be felt. If the surgeon was not sure or had been given any clues that the patient was not properly anaesthetised, he should not have proceeded to insert an instrument. If he did, he would be guilty of acting without exercising the ordinary care of a surgeon of ordinary skill. He should again stop to wait for the local anaesthetic to take effect or administer more local anaesthetic. He had had experience of patients not feeling pain at incision but feeling pain whenever the implement was inserted: again he would stop and put more local anaesthetic in. A description of a sensation of movement inside the scrotum and then a sensation of a cut or a nick told him it was likely that the surgeon was starting to clear the tissue off the vas with either a scalpel or a blunt instrument. He did it with a blunt instrument because it caused less bleeding. There were nerves and blood vessels which had to be cleared away from the vas before the surgeon divided it. The surgeon always tested that the anaesthetic had worked and a failure to do that would be a failure that no surgeon of ordinary skill would be guilty of, if acting with ordinary care. If the pursuer felt a sharp, unbearable pain when an instrument was inserted into the scrotum, it sounded like the anaesthetic had not worked in that area at least. It had to be fairly intense pain to make a patient sick: he had never had a patient actually get sick, and if he had had he did not think it was something he would forget.

[79] In cross-examination Mr McClinton agreed with the proposition that it was difficult to understand why, if the surgeon who performed the procedure drew up 20 mls of Lignocaine in advance, he would not use it if he required it. He agreed that it would be really quite extraordinary if it was not used on a complaint of pain being made. The whole procedure took 10 to 15 minutes (about seven minutes on each side), depending on the surgeon's experience: some surgeons were quicker at operating than others. The most time-consuming part of the procedure was the administration of the local anaesthetic and waiting for it to work. The actual incision and surgery on the vas itself took about two or three minutes on each side. The initial incision was only about a centimetre. He always taught his trainees to look at the patient to make sure he was not feeling anything at the start of the incision. After the incision was made normally a different instrument, something like an artery forceps, was used to dissect through the subcutaneous tissue to the vas. The instruments which were going to be used for the operation would have been laid out by the scrub nurse in advance. He normally had a nurse with him as he did all his vasectomies in a hospital setting and once he made the incision he laid down the knife which the nurse took away before giving him a forceps, which he then inserted. He presumed that if there were no nurse the surgeon would just lay down the scalpel himself and pick up the forceps himself. The vast majority, 90%, of the vasectomies which he carried out were carried out under local anaesthetic. He agreed that if there was no nurse present at the pursuer's operation it was perhaps obvious that the surgeon himself would lay down the scalpel, pick up the forceps and proceed to dissection, all of which was done relatively quickly. If at any stage after the incision the patient made a complaint of pain there would be a reaction time before the surgeon could react to it. The dissection of subcutaneous material after the incision was dissection through an area that was really only millimetres in depth. If it was the pursuer's final position that all he felt was one straight cut, it was most likely that he was describing the initial incision. It was possible that a patient, if not warned in advance, might interpret the touch, pressure and pulling after the administration of the local anaesthetic as indicating that it was not working. Quite often a patient described feeling something and the surgeon could then ask what he was feeling. A patient under local anaesthetic always had a sensation that something was going on.

(iii) Dr Ian Tierney

[80] Dr Tierney, a clinical psychologist, was called as a witness for the pursuer. His expertise was in adult clinical psychology. He explained that pain disorder consisted of gross behaviour not related to organic symptoms (if any), that it subsumed everything and could overlie organic pain.

[81] Dr Tierney had seen and examined the pursuer on three occasions - in April 2000, July 2003 and January 2005. He spoke to the three reports (6/1, 6/2 and 6/9 of process) which he had produced following those examinations. On the first occasion that he saw the pursuer he felt that he was suffering from pain disorder (F45.4, DSM IV) and that he was not malingering or consciously exaggerating his pain. He was continually gasping and moving about and all his remarks were premised on pain. His inability to focus on anything other than his pain was an expression of pain disorder. There was a big mismatch between his physical presentation and his psychological distress. The one thing he was quite clear about was his anger and resentment towards the surgeon: he had not been believed at the time and his complaint of pain had been dismissed. He felt about as helpless as he could get. Dr Tierney thought then that the pursuer's condition consisted of 80% organic pain and 20% pain disorder. When he saw the pursuer again in July 2003 he felt that there were more clinical symptoms of depression than previously but there had not really been any change in his condition. There was a persisting pain disorder with a concurrent depressive disorder, which he categorised as mild to moderate. The pursuer was then complaining of poor memory. When he saw the pursuer for the third time in January 2005 his pain behaviour was the same but it reduced if he was taken up with some other topic. The causes of his then emotional state were anger and resentment at not having been believed by the medical profession, that is, by the surgeon who conducted the operation and afterwards. He felt that his complaints of pain had not been addressed seriously, but he had respect for Mr Hargreave. The prognosis for the pursuer remained poor.

[82] In cross-examination Dr Tierney, under reference to the pursuer's behaviour at the first examination, explained that "punctuation behaviour" involved a shift of attention from the pain when distracted. The pursuer had exhibited the same behaviour to Dr Carson, Consultant Neuropsychiatrist, on 8 October 2001 (7/1(3) of process, p 450). Dr Carson's report was of a more marked condition than the pursuer's clinical presentation. When Dr Tierney saw the pursuer he expressed very severe depression on self-assessment, but psychometric assessments were supplementary to clinical diagnosis. Most people did not sign up to unbearable symptoms, but the pursuer did. Pain behaviour could be contributed to or caused by factors other than organic pain, such as secondary benefits or obtaining more attention, but any gain was not being deliberately sought.

[83] Dr Tierney agreed that it was important to take the history for a medico-legal report: he took handwritten notes and noted accurately what was said. In his first report he had noted that the pursuer had told him that in the course of the operation "he experienced a very sharp pain in his right testis". He would not have noted that if the pursuer had used the word "scrotum". In his second report (6/2, p 3) he had noted "He is in pain every day in the groin area, more to the right hand side than the left." That was what the pursuer had told him. On each occasion the pursuer told him of a number of family problems, much more on the last occasion than on the previous two.

In the Hermandflat Hospital records (7/2(2) of process, p120) the entry for 11 February 2002 stated that the pursuer and his wife felt that stress at home triggered or heightened his experience of pain and this then caused a lowering in his mood. An entry in the same records (at p 125) for 11 June 2002 described the pursuer as "insightful in that stresses at home, i e application for housing, daughter with ADHD and wife's physical and mental health problems are having a large impact in maintaining his depression". The entry for 5 August 2002 (at p 127) described him as "relaxed, reactive and spontaneous in conversation" and stated that he described having had a good week the previous week. In a letter dated 17 June 2004 Dr Cullen, Consultant Anaesthetist at the Lothian Chronic Pain Service, stated that the pursuer had attended there on a regular basis between April 2000 and October 2001 and continued:

"During the period that Mr Stalker attended the Pain Clinic his condition, if anything, worsened. He made at least two suicide attempts and as time progressed it became clear to our psychologist that there were a large number of complex family psychiatric problems going on at the same time. It was felt that many of these issues were related to Mr Stalker's pain. Ultimately Mr Stalker refused to visit this clinic and refused to consider further psychological intervention since he felt that we were not helping him and I have to say that I agree with his assessment. The joint team's view (and this included Liaison Psychiatry) was that the whole family situation is so complex that it really needed community involvement rather than individual involvement from a single service."

Dr Tierney said that the Stalkers were not short of their problems and difficulties. The pursuer had told him that his wife's ill health bothered him most. The pursuer was totally absorbed in his pain, so that the extent to which he was affected by other events was questionable. One interpretation was that he had continually sought to downplay the importance of family difficulties. He had not told Dr Tierney of an assault on a family member in August 2001 and Dr Tierney had been under the impression that the event was historic.

[84] Dr Tierney assumed that the pursuer had been truthful at their first meeting when he had told him about events at the operation. His account was recorded by Dr Tierney as follows (6/1 of process, p 2):

"On the day in question Mr Stalker attended the clinic at 18 Dean Terrace where he was prepared for the operation. He was given an injection of local anaesthetic and, in Mr Stalker's opinion, the operation began before this had any effect. He told the surgeon as soon as he began to cut tissue that he, Mr Stalker, could feel the incision and was in pain. He was told that couldn't be right because he had a local anaesthetic. Mr Stalker felt the operation proceed and in particular he could feel a long metal object like scissors inside him. He was very concerned by the sensation and just at that moment he felt a very sharp pain in his right testis. He reports that he sat up very sharply and told the surgeon to stop, that he was going to be sick. The surgeon stopped the operation, stitched the incision and Mr Stalker left."

Dr Tierney said it would be unusual if the pursuer gave a different version of events at the operation to a psychiatrist whom he had previously seen. The pursuer's anger and resentment were due to his not being listened to and his complaints of pain not being taken seriously, but his anger was not directed against Mr Hargreave.

[85] In re-examination Dr Tierney stated that the operation was the trigger for the pursuer's anger. He had seen the letter from the surgeon denying that any incision had been made. His diagnosis was one of pain disorder. Because of problems at home the pursuer felt the pain worse. Everything he complained about was all brought back to the pain he was suffering. Dr Tierney came to the view that the pursuer was not malingering or exaggerating. He agreed that distraction took the pursuer's attention off his pain.

(iv) Dr Alan Gordon

[86] Dr Gordon was called as a witness for the defenders. He had been the pursuer's GP in Dunbar from April 1997 until the pursuer left his practice in November 1998. He dealt generally with the pursuer's GP records (6/8 of process). He first saw the pursuer as a new patient on 15 April 1997. The entry for that date read "pain in testicles since vasectomy" and indicated that he was attending Mr Tolley, Consultant Urologist, and would be seeing him on 15 June 1997. When he saw the pursuer on 24 July 1997 there was a discussion about having an operation or progesterone and testosterone therapy. The discussion would have been related to correspondence ongoing with the surgical urology team. A letter dated 22 July 1997 (6/8 of process, p134) had been received from Mr Akhtar on behalf of Mr Hargreave referring to the options of epididectomy and hormone tablets. When he saw the pursuer on 8 September 1997 he was told that the pain went two minutes after taking Remedeine Forte (Paracetomol / Dihydrocodine), which he thought was rather unusual as he would have expected the treatment to take half an hour to work. He wondered if a homeopathic treatment might be of benefit to the pursuer. He did not remember any more details of the operation and he could not give any view on why the pain had gone so quickly. On 13 October 1997 he prescribed Paroxetine (an anti-depressant) as a co-analgesic. The pursuer then reported stress with his wife. The pursuer was certainly stressed, but Dr Gordon did not recall a diagnosis of actual depression. Dr Gordon's note of a consultation with the pursuer on 18 November 1997 read: "C/O leaking semen without an erection. Does not think it is a discharge. Says he saw stitches that were removed by Dr Lang or his partner but I can find no note of this." Dr Gordon phoned Dr Dewart, who told him the pursuer could not get pain relief and the operation could not go on. Dr Dewart also said something about the pursuer's manner. It was a very short conversation with Dr Dewart which certainly did not match up with the description of events given by the pursuer. A note in the records for 20 November 1997 made by Nurse Harris and countersigned by Dr Gordon read: "Patient walked into Treatment Room whilst another patient present telling me his appt was 5 mins previously. I said I would come and get him, but I was running slightly behind. Patient walked out of waiting room 10 mins after appt time." Dr Gordon thought the appointment with Nurse Harris was for taking blood and had no reason to doubt what she had told him. He described what the pursuer had done on that occasion as "not ideal behaviour". On 18 March 1998 an entry by another GP, Dr Horne, recorded "Operation cancelled, ostensibly because he is taking legal action against Dean Terrace - seek further info". That followed the letter of 17 March 1998 (6/8 of process, p 118) from Mr Hargreave suggesting a psychological assessment before any surgery was done. On 19 March 1998 there was a home visit to the pursuer at night because he had taken an overdose of about 20 codydramol tablets. He was taken by ambulance to the Royal Infirmary. On 20 March 1998 Dr Gordon prescribed him Amitryptilene 25 mg, which was not an anti-depressant dose. On 14 April 1998 he increased the dose. On 14 August 1998 it was noted that the pursuer had had a bilateral orchidectomy on 12 August 1998. On 15 September 1998 Dr Cassels had visited the pursuer at the request of his wife, who was concerned that he was becoming desperate because of persisting pain and felt that Dr Gordon did not believe that he was in pain. On examination he was found to be distressed and tender around the right side of the scrotum and the base of the penis. He recognised that the operation had reduced his pain significantly but right sided pain was still present at the base of the penis. Dr Cassels wondered if it would be worthwhile treating for prostatis and, if there were no further neurological options, whether he might benefit from the pain clinic or the pain management clinic.

[87] Dr Gordon thought that the pursuer certainly had an unusual presentation of pain (grimacing), which did not seem to match the pain he was in. He mentioned two situations. On one occasion he saw the pursuer 10 to 15 yards from his surgery adopting a very abnormal walk due to pain. When he left the surgery his walk was not normal but it was considerably better than when he had walked towards it. Dr Gordon said he would not have made that observation without being very sure about it. On another occasion when he examined the pursuer at home he was very tender at the scrotum, but when he was distracted the tenderness seemed to go. That was a significant observation which he mentioned in his letter of referral of 9 November 1998 (6/8 of process, p 99) to Dr Rogers, Consultant Psychiatrist. The manifestation of pain by the pursuer "did not tie up with things". Dr Gordon would just have expected that if he tried to distract the pursuer then the pursuer would still be tender, but he was not. Some problem was manifesting itself in this abnormal pain behaviour. When Dr Gordon saw the pursuer on 13 October 1998 the pursuer went to the toilet suddenly then left. This was abnormal behaviour as the pursuer knew that he had to receive prescriptions and decided to leave without them. Dr Gordon saw the pursuer for the last time on 17 November 1998 as the pursuer then registered with Dr Cassels.

[88] On 9 January 1998 Dr Gordon had written (6/8 of process, p 124) to Mr Hargreave, who had asked for his opinion about the proposed bilateral orchidectomy as it was a potentially drastic procedure. Dr Gordon had gone to the pursuer's home and discussed it with him and his wife in quite a lot of detail. He distinctly remembered the pursuer saying that compensation did not come into it, it was getting rid of the pain that mattered and anything else was secondary to him. In the third paragraph of his letter he wrote: "He said that what annoyed him that he stated that (sic) the surgeon said that things would not be sore and that he was not feeling pain but he states he was feeling a lot of pain before he lost consciousness". In that sentence Dr Gordon just quoted what the pursuer had said to him. Loss of consciousness was an important thing as it seemed completely out of odds with what he told the surgeon. In his letter of referral of 9 November 1998 (6/8 of process, p 99) to Dr Rogers, Consultant Psychiatrist at Hermandflat Hospital, Dr Gordon did not state why a psychiatric opinion was being sought, but "things didn't add up".

[89] In cross-examination Dr Gordon stated that he did not diagnose any definite depressive disorder in the pursuer. He would have had some input in the diagnosis of pain disorder, but he regarded that as more the territory of a consultant psychiatrist. In deciding whether to have the operation the pursuer's concern was the pain he had. Throughout his dealings with the pursuer he was dealing mainly with pain. He was pretty sure the pursuer had said he had collapsed during the vasectomy. This was at variance with what Dr Dewart had said to Dr Lang in his operation letter of 7 May 1996. When he made a brief telephone call to Dr Dewart the latter said something about the pursuer being unable to tolerate the administration of the local anaesthetic, which was in conflict with what the pursuer had said. He did not think he spoke to Dr Dewart about stitches. Dr Gordon thought that he had not focused on the entry by the practice nurse in the previous GP's records of 15 May 1996 (6/8 of process, p 154) which stated "2 sutures removed". He had done some minor surgery himself and explained that you waited for the local anaesthetic to take effect and if there was unacceptable pain you did not carry on. The pursuer's proposed orchidectomy was postponed for a psychiatric assessment. It would have been Mr Hargreave's decision to postpone the operation. Dr Gordon did not know what prompted the cancellation, but with an operation like that it was not peculiar to have a psychiatric assessment done automatically.

(v) Dr Gavin McCallum

[90] Dr McCallum, a witness for the defenders, had been a consultant anaesthetist with special interest in pain management at the Southern General Hospital, Glasgow since May 1997. He held the Diploma of the Royal College of Obstetricians and Gynaecologists and was a Fellow of the Faculty of Anaesthetists of the Royal College of Surgeons in Ireland. He was involved in an ongoing study into post-vasectomy testicular pain, looking at pre-emptive analgesia in the prevention of chronic testicular pain in patients undergoing vasectomy under general anaesthesia. He was a specialist in spinal cord stimulation and had taken an interest in visceral pain syndromes of various types (pain from internal organs) that were amenable to such treatment. His curriculum vitae was 7/12 of process. He had participated at a number of hospitals in chronic pain management and been involved in teaching the subject.

[91] Dr McCallum saw and examined the pursuer at the Southern General Hospital, Glasgow on 8 December 2004 for about 50 minutes or an hour and subsequently prepared a report dated 23 December 2004 (7/4 of process). He explained that he took contemporaneous notes when taking the history from the patient and during the examination. To the best of his knowledge the first paragraph of his report accurately reflected what the pursuer told him and did not miss out anything relevant and significant which the pursuer had told him. That paragraph reads as follows:

"The history he gave was that 8 years ago he attended a Family Planning Clinic to have a vasectomy carried out bilaterally under local anaesthesia. He indicated that he received local anaesthetic on the right side, which was the first side to be attended to. The surgery started but he felt he could feel a sharp and incisive sensation. At this time he complained to the surgeon that he could feel the sharp sensation. The sensation he felt in the scrotum in the area where the incision was being made and within a few minutes of this and prior to the surgeon stopping he had been sick. After he had been sick the surgeon closed up the wound on the right side without surgery to the vas. He continued to experience pain in the immediate aftermath although it changed from a sharp sensation to an aching sensation. The aching pain continued. He reported that the right side of his scrotum was bruised and swollen and he had bleeding from the wound. He called his GP out on the day of his surgery and received `antibiotics and painkillers. He reported that the symptoms of swelling, bruising, tenderness to the lower scrotum lasted for 2 years. About this time his left testicle started to swell also."

[92] The pursuer had told him that he felt a sharp pain in the skin of his scrotum and that he felt sick at the time. He said he felt the pain at the point of incision and complained to the surgeon. He said he felt sick and had been sick and at that point the surgeon closed the wound up. He did not say that he had noticed the types of surgical instrument that the surgeon was using when he felt pain. Dr McCallum did not believe that the pursuer had told him that he had lost consciousness. If he had lost consciousness there were a number of occasions and mechanisms by which consciousness could be lost which would interfere with the memory of the circumstance. A blow to the head commonly caused retrograde amnesia, that is, loss of memory of immediately preceding events. That was also so in some cases where a person fainted, in which event he could alternatively have disturbed recall of varying degrees because the faint occurs due to an inadequate blood supply to the brain, usually as a result of the heart slowing down dramatically. Fainting was not unusual in a person who had just got up after an anaesthetic: it was not uncommon in day surgery practice. The pursuer had told him that he had called his GP out that evening. He did not go into more detail about what happened after that other than that he continued to have pain and swelling and bruising which had lasted for the next two years. He was not very specific about the point at which his left testicle began to hurt, but it was hurting by the time he presented for his surgery with Mr Hargreave. He said that in the following two years he'd had a continuing pain in the testicular area and that he also had swelling and tenderness around that area, that he'd had painkillers and antibiotics and been investigated by the urological surgeons and had ultrasound scans and that sort of thing. Mr Hargreave had offered him a bilateral orchidectomy, which he had accepted and which was undertaken in 1998. He said that following that operation he had a significant reduction in his testicular pain. He reported that between the orchidectomy and December 2004 he had developed bilateral groin pain and pain which radiated into his penis. This was a new pain which he had not experienced before. It was aching and intermittent, what doctors called a remitting and relapsing type of pain, which built up, tended to peak and then eased off a bit. The episodes which he described were of variable duration. Walking, bending and stretching made it worse, he felt it less while asleep and got some relief from having a pillow between his legs while he slept.

[93] Dr McCallum examined the pursuer to ascertain whether there were any physical findings which might elucidate the nature of his pain. He performed a neurological examination of the area where the pursuer complained of pain and looked specifically for sensory changes. The pursuer had no areas which were devoid of sensation, no numbness and no complaint of tingling in any of the areas where he complained of pain. He had a condition called allodynia, which was a form of altered sensation meaning that a previously non-painful stimulus was now painful. Dr McCallum was specifically looking for sympathetic nerve symptomatology but could find no evidence that he had sensitivity to either hot or cold. None of the symptoms of a sympathetically mediated pain suggestive of an alteration to the blood supply (such as changes in the colour of the skin, blotchiness, pallor or swelling) was present. The effect of his symptoms was that he had great difficulty in walking because contact with the painful area of skin was extremely uncomfortable for him, he had poor bladder and bowel control and was unable to have sexual intercourse with his wife. The pursuer said that the poor bladder and bowel control developed sometime after the orchidectomy. Dr McCallum was of the view that the bladder and bowel problems were largely functional as he could find no altered sensation in the rear of the pursuer's anus and around his perineum. He explained that functional disorders were disorders that were initiated, provoked or maintained by an input by the higher centres of the brain rather than from an organic cause in the local neurological system. The pursuer had told him that he was able to walk for only seven to ten yards and that sitting for driving was also difficult. He had presented to Dr McCallum from the waiting area in a wheelchair and remained in it throughout the appointment. There did not appear to Dr McCallum to be any reason why the pursuer should be using a wheelchair other than the fact that he felt he was not able to walk more than seven to ten yards: he was able to stand up and move from the wheelchair onto the examination couch and there did not appear to be any muscular weakness on neurological examination. It was very, very common for patients with chronic pain to use various aids for various reasons and Dr McCallum did not challenge the reason why the pursuer was using a wheelchair being in order to avoid the interview becoming adversarial in nature. Dr McCallum had a very good rapport with the pursuer, who was certainly not in any way defensive and gave a full medication history. Dr McCallum did not know how the pursuer had got to the consultation but he knew from his secretary that it had taken a bit of organising and that various attempts had been made to arrange it. Dr McCallum did not have the pursuer's medical records at the time of the examination or when he subsequently wrote his report. The pursuer discussed with him the steps which had been taken to try to manage his pain, and, in particular, the fact that he had seen Dr Cullen for pain management. The pursuer said that he had had no benefit from a TENS machine but Dr McCallum subsequently discovered from the pursuer's medical records that there was a period in which Dr Cullen believed that the pursuer was doing very well with the TENS machine and using it on a regular basis. The pursuer was on a huge amount of opiates, which had probably built up over a number of years, either on patient demand or on practitioner attempts to increase the analgesic potency, and that was a sign that the pain was not opiate sensitive. Oromorph, which was absorbed from the gut, predominantly the duodenum, took between 20 or 25 and 40 minutes to act. He had been taking Oromorph for six years, up to 30 x 10 mg a day. A few months previously he had started on Fentanyl patches, 150 mcg per hour release. He wore the patch the whole time and the drug was released slowly to provide a continuous level of analgesic. He should have been taking Gabapentin (an anti-epileptic drug used for the relief of neuropathic pain) three times a day, but was taking it only twice a day, as a result of which he would not get the maximum benefit from it. He believed from Dr Carmichael's second report that the pursuer had benefited from a change of dose to three times a day. The pursuer had not had any form of sodium channel blockade that helps in the treatment of central or peripheral allodynia. Dr McCallum felt, as he said in his prognosis, that the gaping hole in the pursuer's therapies had been sodium channel blockade, specifically a substance P depletor. The drug Capsaicin, derived from chilli peppers, could not be used on the pursuer's area of pain but an ointment called EMLA (an acronym for eutectic mixture of local anaesthetics) could as it was a local anaesthetic cream working through the skin. He discussed with the pursuer the possibility of using EMLA cream and believed from Dr Carmichael's second report that the pursuer felt that it had helped.

[94] Dr McCallum explained that in examining the area in question he found on looking at the area before touching it no outward sign of a problem, apart from the fact that the scrotum was quite red and warm and well perfused with blood, and there was also some redness on the underside of his penis where it had been contacting and he was quite sweaty there. The type of allodynia which the pursuer had exhibited was dynamic (as opposed to static) allodynia. In order to elicit dynamic allodynia what Dr McCallum did was to ask the patient to close his eyes and then draw a very fine piece of cotton wool gently over the area of skin and ask the patient what he was feeling. When he indicated to the pursuer what he was going to do the pursuer was very, very defensive about the area in question and did not really want Dr McCallum to examine him at all. He did not know whether the pursuer had his eyes closed during the examination as he was looking at his scrotum while he was doing the test. Following upon the examination Dr McCallum felt that the pursuer had demonstrable allodynia, and that the implication of that was that he had a neurological cause for it, but he also felt that in his general behaviour and demeanour the pursuer was very demonstrative of his pain behaviour, that there were a number of aspects which suggested he was defensive about anything which might elicit pain, and that he had a very high level of pain surveillance, exhibiting discomfort to all sorts of other things. He fidgeted about an awful lot when he was sitting, suggesting either a heightened general sensitivity to sensation or a higher surveillance of bodily symptoms, which was quite common in patients who had visceral as well as somatic aspects to their pain.

[95] Dealing with the subject of post-surgical allodynic pain in his report Dr McCallum stated as follows:

"The underlying mechanism of post-surgical allodynic pain syndromes is reasonably well understood theoretically. The pain can arise as a number of changes at the peripheral or sensing areas of the skin, how it is processed within the spinal cords, specifically the dorsal horn, and how it is transmitted and processed within the higher centres of the brain including how it is influenced by the limbic system inputs around the thalamus and cortical centres (sic). The most important changes in this man's case are certainly the presence of allodynia (sic). Allodynia is the neurological change that results in a previously non-painful stimulus becoming intensely painful. This can occur peripherally as a result of injury to the nerve endings at the site of the surgery with an overgrowth of the cut ends of the nerves or an increase in the number of receptors or change in receptor types of the peripheral nerves. This would be known as peripheral allodynia. This can exist in isolation or with central allodynia.

Central allodynia is where the alteration occurs in the dorsal horn of the spinal cord where normal inputs from the peripheral nerves are magnified or changed in nature by an alteration in the inter-neurones within the dorsal horn, usually in levels 1 and 2 of the dorsal horn. This can occur as a result of changes of receptors, of receptor sensitivity, of neurotransmitters or by the new growth of nerve endings or the growth into the sensory area of nerves from the lateral or sympathetic horn. The stimulus for these changes can be anything from a very, very minor injury such as a foreign body penetration right through to a fractured bone or significant burn. It is likely that it takes a combination of genetic predisposition and environmental incident to produce a pain syndrome like this. Once it has occurred it can be very, very difficult to return the changes, particularly in the dorsal horn, back to normal. It becomes more difficult over time. It may be in terms of triggering Mr Stalker's particular case that his dorsal horn was set up to change from a normal physiological state to a pathological state by pre-existing anxiety or anticipation of pain. The particular trigger could easily have been a single non-anaesthetised surgical incision. However, I would suggest that it is very unlikely that the pre-operative examination, the infiltration of the local anaesthetic or the identification of the vas were the causes. In terms of the later events, particularly the continued swelling of the affected site, and indeed the progression of the syndrome into affecting the contra-lateral side, are completely in keeping with the processes which caused the pathological changes within the spinal cord (sic). These would be akin to the changes which one would see in the various peripheral limb types of complex regional pain. Lateralised paired organs are often affected as a consequence of injury to the ipsilateral organ."

[96] Dr McCallum went on to explain that post-surgical allodynic pain was a very complex area which had undergone enormous amounts of research, looking into the stimulus and the subsequent development of post-injury syndromes of chronic pain. Surgery caused tissue injury in any tissue that was involved and the consequences were an inflammatory reaction and healing. If the initial tissue injury also involved a nerve then the nerve underwent some degree of change to do with part of the nerve dying, not regenerating and producing different channels as a consequence of the injury. That was one of the mechanisms by which sympathetically mediated pain happened. The nerves themselves could then be over-excitable. If the nerve was damaged and reduced its input there were then changes in an area of the spinal cord called the dorsal horn, which normally accepted sensory inputs, processed them and passed them onto the brain through a number of pathways. This was not a simple one nerve to another nerve transmission, the nerves in that area were modulated, their sensitivities were changed by the nerves around them in that a large number of different kinds of nerve inputs went into the dorsal horn of the spinal cord and consequently could change the way that signals were input. In the case of an allodynic syndrome that could happen either in the periphery, where the nerve had become so excitable that previously non-painful touch sensations became painful, or in the dorsal horn because nerves that brought the mechanical sensations of stretch and touch to the dorsal horn had made interconnections with the nerves that transmitted pain to the brain, so that the stimulus of touch triggered the pain stimulus within the dorsal horn. The dorsal horn itself had a number of complex states that were normal and an almost infinite number of states that were abnormal. The period of time within which allodynic pain caused by a surgical procedure manifested itself after the injury was very variable. The neurological changes could happen very, very quickly but clinically neurological pain tended to develop between three to six weeks after the nerve injury. It could happen years later and that could be as the result of something else which brought on neurological pain in the previously injured area. Although there was a suggestion that a partially injured nerve could produce such symptoms as burning almost immediately after the surgery, development of allodynia was a much more complex neurological state and appeared to take longer to develop. Usually the processes following a surgical injury were, first, physiological, and, secondly, pathological. Physiologically there would be an area of hyperaesthesia, that is, increased pain sensitivity to a normally painful stimulus, immediately in the area of the injury. That was of very, very fast onset (it could happen within ten minutes) and occurred as a result of a change within the dorsal horn. There was then secondary hyperalgesia where the area around the wound, extending - perhaps depending on the size of the wound - a few centimetres further out as a result of a secondary change within the dorsal horn activating a few more of the receptors a bit further out from the original point of injury. At a later date the allodynic changes could then develop. It was impossible to tell from the examination he performed whether the pursuer had peripheral or central allodynia, but it was likely he had both. He had had surgeries (vasectomy and orchidectomy) with the tissue damage that that involved in the periphery, and he therefore had the stimulus to produce peripheral allodynia, but he had had it for such a long time that it was very likely that it had developed secondarily in his central processing unit also.

[97] Dr McCallum sought to explain the dorsal horn as follows. The pathways in and out of the spinal cord were bilateral, one on each side at the back and one on each side at the front. The front part of the spinal cord dealt mainly with the transmission of impulses to move muscles and to effect changes in organs. The back part, making up almost a quarter on each side, was the dorsal horn, which dealt with the processing of information to do with the senses - touch, heat, pressure in certain sensing organs, and pain. The dorsal horn ran effectively as a column, but because the nerves came in at each level of the spinal cord the dorsal horn was fattest just where the nerve entered. Although there were connections between the dorsal horn at T10 and T9, there were no connections between the dorsal horn at T10 and T6, for instance.(T stands for thoracic vertebra.) Nerves from different parts of the body arrived at different levels of the spinal cord and within the dorsal horn there were layers of cells to do with processing different types of sensory information. Pain was processed in the first two layers and also in layer 5. The other layers were to do with processing other forms of information, such as touch and temperature and certain forms of sensation. Nerves from different segments of the body fed into different levels of the dorsal horn. The rear of the front of the scrotum was supplied by two nerves, the ilio-inguinal nerve and the genital femoral nerve, which fed information back to the L1 and L2 dorsal horns. (L stands for lumbar vertebra.) The back of the scrotum was supplied by branches of the pudendal nerve, which fed into the spinal cord at S2, 3 and 4 levels. (S stands for sacral vertebra.) The nerve supply to the testicles was fundamentally different from that to the surrounding tissues, the scrotum, the penis and the perineum: the testicular nerve supply entered the spinal cord predominantly at T10 level, but also a little bit at T9 and a little bit at T11. The scrotum had a large number of nerve endings per square millimetre and produced a sharp immediate attention-demanding localised form of pain. The skin and muscle of the scrotum were innervated by the somatic nervous system, which was designed primarily to protect any animal from injury by immediately making it aware that the injury had occurred, exactly where it had occurred and how intense the injury was so as to allow it to withdraw from the pain. The muscle areas and the layers of supporting tissue between the skin and muscle, known as fascial layers, were all sensitively innervated by somatic nerves. A testicle was innervated by the visceral nervous system. The nerves which supplied the testicle were not as densely packed in their sensation as the ones that supplied the skin. They were also nerves that were designed to respond to pressure and to tension, rather than to a sharp localised type of sensation. Pain felt in the testicle was diffuse, aching and non-specific, and could well radiate up into the loin: it was associated with more emotive feelings than the specific, sharp type of sensation in the skin. The word somatic meant "of the organ" and the word visceral meant "of the internal organ". The nerve supply to the scrotum was somatic and of a different type from the nerve supply to the testicle, which was visceral. The majority of nerve endings in the scrotum were in the skin and a sharp sensation in the scrotal area was most likely to be felt in the skin. The dorsal horn, which worked like a gate by letting impulses through or preventing them from getting through, could be in three different states: the normal state that most people were in all the time, ready to receive a sharp sensation, transfer it to the brain and get the animal out of trouble; when the gate closes after a painful stimulus has been received (as in the case of a shot soldier being able to continue running away and not feeling the pain at all until much later); and the protective state, where the dorsal horn was more receptive to pain and transmitted it up faster so as to tell the animal to stop using the injured limb, and to let it rest and heal. In allodynia the dorsal horn behaved abnormally.

[98] Dr McCallum expected that in the pursuer's case some form of tissue trauma or inflammation had occurred to provoke changes in the dorsal horn. As he explained in his report, the stimulus for changes in the dorsal horn could be a very, very minor injury, but the stronger the tissue damage the stronger the inflammation and the more likely that there would be changes. Whether changes took place was also dependent on the pre-existing state of the dorsal horn, which had degrees of readiness influenced by a large number of factors, particularly emotional and anxiety-related factors. A relatively small but highly anticipated pain stimulus could produce a significant effect, whereas a quite sudden and unexpected event might not, but on the whole the more significant the traumatic event in terms of tissue damage the more likely was this effect in the dorsal horn. Almost everything in terms of disease processing over the last 20 years pointed towards the development of an illness being partly genetic and partly environmental. If you had a predisposition to an illness but never encountered the right stimulus you would never develop the disease, whereas if you had no predisposition to the illness you could be hit again and again by the stimulus and the likelihood was that you would not develop the illness. It had been demonstrated in pain that there was a specific genetic background, both in the way that nerves processed pain and in the way that individuals reacted to having had a painful syndrome, developing it into a full-blown behavioural syndrome. The ability of an individual to cope and to move onto the next part of his life after an injury was very heavily genetically loaded. Once there were pathological changes within the dorsal horn they were sometimes very, very difficult to reverse and became ingrained with the nerves that were interacting with each other, forming a pathway that was self-maintaining and therefore very hard to reverse. At the time he wrote his report Dr McCallum thought that the trigger for the scrotal allodynia was an incision to the skin of the scrotum. Having reviewed the medical records, and now knowing what happened in terms of the complications the pursuer had had following the vasectomy, he was of the view that the pain described by the pursuer did not appear to occur significantly regularly until after the orchidectomy, a much more significant surgical insult than the vasectomy.

[99] Dr McCallum went on to explain how the different types of anaesthetic worked. A local anaesthetic applied to the nerve endings at the sight of the operation, assuming it has worked, would prevent any of the immediate pains for stimulus passing to the spinal cord. A spinal anaesthetic interrupted the passage of that impulse at the level of the nerve roots, thus preventing any sensation of injury or trauma from reaching the dorsal horn of the spinal cord. A general anaesthetic did not protect the dorsal horn from bombardment by painful stimuli, it only made the patient insensitive to pain at the level of his mind.

[100] Dr McCallum had read Dr Carmichael's report (6/10 of process), relating to his examination of the pursuer on 7 January 2005 (a month after Dr McCallum had seen him), before giving evidence. He agreed with what Dr Carmichael said in that report about post-vasectomy pain. All the papers published on the subject of scrotal surgery related to completed surgery. He had not seen anything published on neuropathic pain following trivial surface surgery. He could not think of any cases in which a single small nick described as one centimetre long had resulted in a neuropathic pain condition.

[101] So far as prognosis was concerned, Dr McCallum stated as follows in his report:

"At present Mr Stalker is extremely disabled by his allodynic condition and it has been a considerable period of time since the initial injury and subsequent surgery. In view of that delay in treatment the prognosis must be guarded. There is likely to be a very significant limbic input by now and this will certainly contribute to suppression of the kinds of natural mechanisms such as descending inhibitory pathways which would help to quell this type of syndrome. Largely once the sensitivity in the periphery has increased there is constant bombardment of the spinal cord of painful stimuli and consequently it is very difficult for the dorsal horn at the level of input to return to its previous non-pathological state.

Having said that I do not believe it is entirely all black. There are a number of treatments which have had considerable success specifically in treating peripheral allodynia, and the gaping hole in his therapies to date has certainly been sodium channel blockade. This is not without risks within itself however (sic) relatively easy drug challenges can be arranged to ascertain whether Mr Stalker would be susceptible to this kind of agent.

Obviously these kind (sic) of medical interventions would do little or nothing to alleviate the affective input and after this length of time there are obvious secondary gains associated with his syndrome.

Further treatment should certainly be based around a holistic cognitive behavioural approach as well as pharmacological (sic). He may be a candidate from the point of view of nerve stimulation, which may help the underlying pain, but perhaps will not significantly affect the allodynia. These of course are invasive and likely to carry their own burden of complications. I did suggest he should also attempt to use some Capsaicin at the time of this enquiry."

[102] He explained that at the time he saw the pursuer there was a huge psychological component to his pain and pain behaviour, which he assessed at 50 per cent plus. Physical and chemical interventions were unlikely to have any impact on his affective input, which was the input to his pain perception that came from his emotional state. This was based in the limbic system of the brain and it had a large number of nerve inputs into the way that pain was processed after it left the spinal cord and while it passed the lower parts of the brain. There were a number of areas that he would consider good targets for drug therapy in that area, but because the limbic system itself was so powerful in affecting the way that pain was perceived, this would require significant psychological therapy rather than drug therapies. The pursuer had embraced the sick role and demonstrated that by a large amount of input in terms of modifications to his house, the use of wheelchairs and the way he used his drugs. Whether he had done so consciously or unconsciously was irrelevant to the fact that these were features which made it much harder for him to recover to the point where he could live a normal life; they were hurdles towards recovery, in terms of returning to work or a more normal relationship with his family. Dr McCallum's understanding was that the pursuer had been working as a joiner at the time of the vasectomy and that he had not worked since then. When Dr Carmichael saw the pursuer a month later his level of reported pain was better after the change in his medication advised by Dr McCallum, including EMLA cream on the affected area. The only effect the pursuer could have had from the Oromorph sachet given to him by his wife during Dr Carmichael's examination was a placebo effect, because Oromorph did not act as fast as that. It appeared from Dr Carmichael's opinion on page 4 of his report that he related the pursuer's symptoms (that is, his allodynic changes in the skin of his scrotum and his groin pain) directly to the original incision at the vasectomy. Dr McCallum had no complaints about the description of allodynic pain given by Dr Carmichael in his report. The pursuer had told him he felt a sharp incision in his scrotum and that was a possible cause of the changes in the dorsal horn and subsequent chronic pain condition. As previously stated, a pain stimulus in the area of scrotum would result in changes in the L1 and L2 area of the dorsal cord and a pain stimulus in the testicle would be predominantly at the T10 level. The nerves in the skin and muscle of the scrotum were somatic nerves, and the nerves within the testicle were predominantly visceral nerves. Neuropathic pain (with the rare exception of pain caused by burning) took between three to six weeks to develop, but could take much longer than that. It was not impossible to fake allodynia. If the individual understood what the doctor was trying to elicit in terms of a response it was possible to give that response whether or not it was the real response. To do that the individual would have to understand what was being attempted. If the individual had previously been tested and had explained to him the findings on examination it would be possible for him to react again in the same way. To do it well he would have to have at least normal sensation in the area being tested. It was not possible to determine whether the pursuer's reaction to Dr McCallum's examination was a reaction caused by some process going on within his body, as opposed to a reaction programmed by his anticipation of pain.

[103] He believed that the pursuer had previously been examined on a number of occasions at the pain clinic in the Western General Hospital by Dr Cullen and that she felt he exhibited the symptoms of allodynia. In a letter dated 7 April 2000 (7/1(1) of process, p 35) she had stated:

"On examination this gentleman has marked allodynia and hyperalgesia maximally on the anterior surface of the scrotum, but also over his penis and both groins. This would suggest that he has had some earlier type of nerve injury which has now led to neuropathic pain and would also explain why he now finds it hard to wear underwear and to mobilise. I have tried to give an initial explanation to Mr Stalker and have suggested that he is going to have to take some medication specifically for neuropathic type pain."

In a document in the medical records headed "Pain Clinic History Proforma" dated 6 April 2000, under the sub-heading "Findings on Examination", there was a diagram showing maximum allodynia in the scrotum and some allodynia in the groin and an entry in manuscript which read "Poor walking - uses stick, difficulty sitting. Pain Behaviour +++." Dr McCallum interpreted "Pain Behaviour +++" as meaning that a significant proportion of the observed symptoms were pain behaviour, encompassing a large number of things. The three pluses indicated that the behaviour was in excess of what you would expect for the lesion or illness: they indicated the top end of the scale for pain behaviour. The pursuer had been referred to the Pain Clinic on 13 March 2000 and was first seen there on 6 April 2000. As far as Dr McCallum could recall this was the only finding of allodynia in the medical records. Dr McCallum felt from his previous experience and from the literature that that peripheral allodynia could be caused by an increase in the number of sodium channels, as well as other sensitivities. It was also possible that the cause of the central allodynia (which was often elicited by touch in the periphery) could be treated in the periphery by reducing the sensitivity of some of the other nerves that normally supplied the sense of touch. There were three ways in which a sodium channel blocker could be administered. It could be done by injecting a local anaesthetic, such as levobupicaine, directly to the nerves, but that was effective only for a short period of time, until it wore off. Secondly, a local anaesthetic could be intravenously infused and the patient's response to the gradually rising level of the drug within his bloodstream assessed. The third method was for the patient to take orally a normal drug which worked as a sodium blocker so that it could be absorbed through the stomach. The drug which the pursuer had had before Dr McCallum examined him (Carbamazepine) was known as a sodium channel blocker but was not usually effective in the treatment of allodynia. Dr Cullen in the Pain Clinic had at one point considered doing local anaesthetic injections on the pursuer but after a multi-disciplinary meeting felt that that was not a therapy worth pursuing and noted (7/1(3) of process, p 244) "No blocks are indicated for this gentleman and I think psychiatric intervention is more appropriate for most of his problems". Dr McCallum believed that the pursuer had had a neurological examination during one of his admissions for leg weakness and bladder and bowel problems and pain. He was familiar with how cannabis operated in the alleviation of pain and explained that raw cannabis had a predominant effect in the brain, and particularly on the limbic or emotional system, and a very much smaller effect in the receptors of the spinal cord. If the pursuer experienced a significant reduction in pain from the use of cannabis, that suggested that a large component of his pain was influenced by the limbic system.

[104] Dr McCallum then turned to consider the procedure for administering a local anaesthetic. He had had some involvement in anaesthetising for neurological procedures and also vasectomies. Although he had not had experience in administering a local anaesthetic for a vasectomy, he felt able to comment on the technique to be used in doing so. 3-5 ml of Lignocaine on each side seemed perfectly reasonable volumes of anaesthetic for such a small area. The drug came in 20 ml volumes and it was handy to have a bit extra if an area that you wished to operate on was not quite covered by the anaesthetic. What Dr Dewart said he said to the patient before administering the local anaesthetic was perfectly good practice. The manipulation of the vas to a point just under the scrotal skin was something that he had seen the urological surgeons doing prior to making their incision. The procedure described by Dr Dewart for injecting the local anaesthetic seemed absolutely reasonable. Massaging the bleb of local anaesthetic helped to spread it. Raising a bleb gave you almost instant anaesthesia by pressure effect and the action of the drug followed on within 5 to 10 minutes. Waiting two to three minutes for the anaesthetic to work after massaging the bleb was not unreasonable at all: it meant the surgeon was being reasonably cautious. After waiting for two or three minutes the surgeon should test the area first, usually by using the tip of the scalpel to touch the skin and asking the patient if he felt it sore. Feeling it sore was the important thing because local anaesthetic did not always immediately block the sense of touch, but it should block the sense of pain. He personally would ask the patient if he could feel the touch and if the patient said no he would just continue with the procedure. If the patient said he could feel it, he would ask if he felt it sharp and if the patient said no he would likewise continue with the procedure. The procedure described by Dr Dewart was exactly the practice of Dr McCallum, as was that of putting in more local anaesthetic and waiting for it to work if a patient said he felt discomfort. He would then do again to the patient whatever it was that had made him feel uncomfortable to make sure that the patient was not then uncomfortable. If the patient complained of discomfort on further testing after a second infiltration of local anaesthetic Dr McCallum would consider whether it was appropriate to continue. In the case of a vasectomy there was always the option to do it under general anaesthetic and it was therefore the patient's choice whether he wished to continue or not. It was possible that a patient might not respond to the test for local anaesthetic in an adverse way but still feel pain on the initial incision as, once the local anaesthetic had been massaged out of the way, it could sometimes be difficult for the surgeon to tell exactly which bit of skin had been anaesthetised. There was a sub-group of the population who did not get good anaesthesia from a local anaesthetic, probably because of the acidity level in their bodies. There were lots of reasons why a patient could have pain on the first incision, even where everything had been done properly. He thought that it was not acceptable practice for a surgeon operating under local anaesthetic to proceed in the face of a complaint of pain from the patient. He did not remember being told by any patient that this was a situation he had experienced and he did not think he had ever had to stop a surgeon because he was operating outwith a local block that had been done. He thought it would be very unusual for a surgeon to proceed to perform minor surgery in the face of one complaint, or possibly two or three complaints, of pain from the patient. When there was any complaint of pain from the patient the surgeon should stop and reassess the situation.

[105] If the pursuer's neuropathic pain was caused by the events of 7 May 1996 and Dr Dewart had stopped after the incision on a complaint of pain being made then in the opinion of Dr McCallum a nerve supplying the skin had been injured by the incision. The process which took place was that the painful event was immediately communicated to the brain and the dorsal horn then underwent changes around the individual nerves processing that pain which made it more likely that any painful impulse reaching the junction box was passed on and also that the intensity of a given stimulus or injury on the periphery was magnified as it travelled up to the brain. For example, another one centimetre cut would have been felt much more painfully than the original, and this was called sensitisation of the spinal cord. If the local anaesthetic had not been working he would have expected the pursuer to have felt a sharp localised sensation on the initial incision for two reasons: first, because that was the sort of pain which the somatic nerve sensed; and, secondly, because of the high density of nerve endings that were concentrated in the skin. On the assumption that there had been an incision followed by the insertion of an instrument into the subcutaneous tissue, the trigger for the neuropathic pain was the first skin cut. The tissues inside the skin and on the muscle of the scrotum were subject to the same sensitisation as the skin sensors, and this would consequently mean that a perceived painful experience of the insertion of an instrument involving pulling apart the tissues would also be sensitised and felt as much more painful than a similar injury would have been had there not been the first skin cut. That was the case even if the pain felt on initial incision was felt merely as a scratch-like pain but the pain felt on insertion was felt as more sharp and excruciating: it was the initial transmission of the painful stimulus that sensitised the dorsal horn, the junction box, to the passage of further pain. The quantity of the sensation coming from the second intervention had been magnified by the effect that the first, albeit trivial, perception of pain had on the spinal cord. A description by the pursuer of one straight cut sounded more like an incision: specifically describing it as a line suggested that the information he was perceiving was of a very high quality in terms of location, and that would be much more in keeping with the high density of nerve endings in the skin than in the subcutaneous tissues. He agreed with Dr Carmichael that it was the field of a neurophysiologist to compare all of the science level data, but many publications targeted towards clinicians and their understanding of the mechanism of pain in clinical practice and pain management discussed these at length in terms of the human being. In explaining the mechanisms of pain and giving his views about the dorsal horn and spinal cord sensitisation Dr McCallum drew on his research interest in the field of neuropathic aetiology: he had researched both acute and chronic pain, read widely in the field and during the intervening ten years tried to maintain his knowledge by attending meetings and lectures given by specialists in both pharmacology and neurophysiology.

[106] Dr McCallum was referred to the GP's entry of 9 May 1996 about the pursuer (6/8 of process, p 152). He understood from "haematoma +" that there was an identifiable haematoma present but that in the clinician's experience it was quite small. He understood from "scrotum sl swollen" that the scrotum was slightly swollen. A haematoma was a collection of blood between layers of tissue or inside an organ and it had to come from the break of some form of blood vessel. The blood in the pursuer's haematoma could have accumulated from the skin incision itself. The haematoma could have been at any point within the layers of the scrotum or the layers of the muscle. Blood had a tendency to track down the route of least resistance and follow gravity. The note about the haematoma did not really help establish whether the surgery had gone beyond the incision as the blood could have tracked from the skin to wherever it was found.

[107] If there had been a complaint of pain from the pursuer at any stage of the vasectomy procedure the obvious response of the surgeon, in the opinion of Dr McCallum, would have been to inject more local anaesthetic. The only reason he could think of for a surgeon not injecting more local anaesthetic would be that if all 20 ml of the solution were injected into the scrotum it could make it more difficult to find the vas. He could think of no reason why, if the surgeon had a ready supply of drawn-up local anaesthetic to hand, he would continue operating without administering a further small amount as another ml or two, or another two to three ml, would make no odds as to whether he could identify the vas or not.

[108] In cross-examination Dr McCallum accepted that the surgeon being in a hurry would be a conceivable reason for his not using more local anaesthetic, but it was not his practice or the practice of surgeons with whom he worked. He agreed that a reasonably competent and careful surgeon would not fail to use more anaesthetic. He envisaged the surgeon carrying out a vasectomy doing one side first and then carrying on to the other side. He had not seen any information to suggest which side Dr Dewart would begin on, but it was common practice to stand on the patient's right in the operating theatre unless specifically operating on a left-sided organ. If it was Dr Dewart's practice to start on the left he would expect him to inject the local anaesthetic into the left side. Surgeons got into the habit of carrying out a procedure in a particular way unless there were individual patient factors to change it. Evidence that the pursuer responded favourably to Lignocaine would tend to suggest that in relation to him "it would take". If the pursuer was not one of those people genetically predisposed not to tolerate Lignocaine the expectation would be that the anaesthetic would work on him, at least to some extent. Reasons for Lignocaine not working other than a genetic predisposition on the part of the patient were that it was not placed correctly in the tissues (for example, by having been injected too deeply so that it simply ran down under gravity to the bottom of the scrotum) or a local reason within the patient's patch of skin, such as increased acidity of the tissues. Feeling a scratch-like sensation could indicate a situation where a local anaesthetic had worked to some extent but not completely. He thought "scratch" and "sharp" were synonymous and a scratch-like sensation conjured up a sharp sensation of pain. A scratch-like sensation which came and went suggested that a set of rapidly acting nerves had been stimulated but that the secondary nerves had not perceived a tissue injury.

[109] Dr McCallum was then asked a series of questions which it is appropriate to set out, along with the answers, in their exact terms:

"Now, if that were the situation, that you had a scratch-like sensation that came and went, and then you have a sharp, severe pain, would you really be looking to the sharp, severe pain as the likely trigger for any neuropathic pain? - As I explained before the sensitisation of the spinal cord comes with the first hit and that primary sensitisation happens and then modifies the second sensation.

But I understood you to say a moment ago that if you have a scratch-like sensation - if you were scratched by a cat I think is how it was described - it comes and goes? - But a cat scratch type experimental data exists (sic) to show that that still produces the changes in primary hyperaesthesia which is the spinal cord change that we discussed.

Now, if you didn't have the subsequent sharp pain and all you had was the cat scratch as like as not you would not suffer any significant neuropathic pain. Is that correct? - That would be correct.

As I understand the theory in regard to the stimulus caused by the first sensation of pain, if I can put it in my language, that is setting up the individual for a much more severe stimulus or a much more severe reaction? - Reaction, yes.

If I were to take my learned friend's hypothesis, I think the hypothesis there was that there was an initial painful stimulus of the scratch-like type ... I do not think it was suggested that it came and went, but let us just assume that it is there and exists, and then there is the sharper and more severe sensation. I think you said in a situation that (sic) the trigger was to be the first scratch-like sensation. Is that right? - Yes.

But are you saying, looking to that scenario, that the second sharp sensation does not play a part at all in the neuropathic pain? - No, as I went on to qualify, it is not an absolute response and although the amount of perception of pain from the second hit is increased by the first one, it itself can cause further sensitisation of the spinal cord if the first one hasn't already fully sensitised the spinal cord.

Well, can I see if I can put this in my language? On the basis of my learned friend's assumption - and I'm looking at that assumption - if you were to have a cat-like scratch initially followed up by the much sharper pain subsequently, would you agree that the sharper subsequent pain would play a material part in the neuropathic pain? - Yes."

[110] Dr McCallum went on to explain that the scrotum was generally a sensitive area with a large number of nerve endings in the skin, the subcutaneous tissues, the muscle and the layers of supporting tissue. The spermatic cord had a small number of somatic nerve endings and they were very widely spread apart. To get access you had to use an artery forceps to pull apart the fibres in that area, sometimes referred to as blunt dissection. The first incision would usually go through the first layers of the skin but not deeper so as to avoid the risk of cutting a vein. Underneath the area of the initial incision were subcutaneous tissues, muscle tissue and the spermatic cord, all of which contained nerves of the somatic type, although their quantity and specificity were fairly variable. The more painful the sensation the greater the degree of neuropathic injury to be expected. The intensity of the stimulus was a factor in the development of neuropathic pain, but there was not a direct relationship between the two. Other factors, including local infection and things like that, were more likely to produce it.

[111] On being referred again to the entry "haematoma +" in the GP notes Dr McCallum expressed the view that the entry was not objective in nature: what it meant depended on the GP's previous experience of the sizes of haematomas. There should be no haematoma in the scrotum, so to start with it was an abnormal situation. The GP had identified enough blood to be a swelling discolouration, allowing him to make the diagnosis of haematoma. Dr McCallum's own impression was that it was a small haematoma, a few centimetres. The scrotum being black would be caused by blood of the haematoma running down just under the skin and causing discolouration. The entry for 15 May 1996 mentioned infection of the right testicle. An infection of the testicle and haematoma of the testicle suggested "something deeper" had gone on. Swelling of the testicle suggested to him that it was more likely that there was something going on within the spermatic cord than that it was anything to do with the incision of the skin or any tissue of the scrotum. There then followed the following question and answer:

"We are at the moment - it may be that we are just at cross-purposes - but we are comparing two things here. We are looking at whether or not what is set out here can be explained by a simple incision or whether the better explanation is some degree of insertion by blunt dissection, and am I right in thinking - you can correct me if I'm wrong - that once you focus on the position of the right testicle that you would tend to favour a degree of blunt dissection? - Yes."

[112] In relation to fainting or losing consciousness, a patient could remember things leading up to the faint, but exactly at what point he stopped remembering had to be corroborated by somebody else as the patient could not know what happened right up to that point. Patients fainted all the time but if a patient fainted while he was doing something to him he would be concerned. He would record the fact in the patient's notes, but not in the operation sheet. His practice was not to allow any day surgery patients to go home alone, but he was quite happy to release a patient after a faint as long as he was fine afterwards.

[113] So far as research into post-vasectomy pain was concerned, in 5 to 30% of cases there might be pain, and only 5% of that cohort would want anything done about it. The research was looking at successfully completed vasectomy operations, under either local or general anaesthetic. The position in the present case, dealing with pain occurring during a vasectomy, was different. Exercising his judgement based on his experience, he thought that in excess of 50% of the pursuer's condition was psychological. His view was based on his experience of patients who had had chronic pain for a long period of time. It was inevitable that there was a psychological impact and it became difficult to tease out how much effect pain had on them and how much effect their psychological mindset had on their pain and their pain behaviour. He agreed that in relation to that sort of judgement there was scope for reasonable experts to disagree. He thought there were things that could be done to improve the pursuer's condition: in someone for whom nothing worked it seemed rather mean not to try perhaps riskier or more unusual pain therapies in an attempt to alleviate his suffering.

[114] The history recorded in his report was a summary of what he understood the pursuer to have said to him. The word "incisive" was his interpretation. He took from the pursuer that the essence of his position was that he felt a sharp sensation of pain in his scrotum during the operation. He had not seen the pursuer's medical records until a few days before the proof was due to begin.

[115] In re-examination Dr McCallum stated that when he used the word "scrotum" he was not distinguishing between the skin and the inside of the scrotum. There was nothing in his notes from the pursuer about a scratch-like sensation which came and went. A scratch-like injury could lead to full-blown neuropathic pain. Causes for the problem with the right testicle other than some contact with the spermatic cord during the operation were a number of pre-existing things which could cause spermatic cord irritation, the cord being irritated by blood around it or infection. If a patient's testicle was black and swollen to twice its natural size he would imagine that a GP would initially compare it to the size of the other one, on the assumption that both testicles were more or less the same size in normal people. The entry in the records stating that the scrotum was slightly swollen did not suggest to him that a testicle was black and swollen to twice its normal size: if that were the case he would expect the GP to write down that it was swollen to twice its normal size compared to the other one.

(vi) Dr Andrew Zealley

[116] Dr Zealley, who was called as a witness for the defenders, had been a consultant psychiatrist at the Royal Edinburgh Hospital from 1971 to 2000 and an Honorary Senior Lecturer in the Department of Psychiatry at the University of Edinburgh for the same period. He had retired from the National Health Service in 2000 but continued to do medico-legal work thereafter. He examined the pursuer on 2 December 2004 and produced a report (7/8 of process), extending to 11 pages in very small type. By chance he was standing at the windows of his consulting room and saw the pursuer walking up the driveway carrying a stick in his hand and coming up the steps into the premises. He walked quite slowly, but all was quite unremarkable. The consultation lasted about one and three quarter hours.

[117] The description of the vasectomy on page 2 of the report was based solely on what the pursuer had told him. It read as follows:

"Mr Stalker told me that he met the doctor who attempted the vasectomy (Mr Paul Dewart) for the first time on 07 May 1996. He said there had been no previous consultation with Mr Dewart. He told me that an injection of local anaesthetic was given into his scrotum by Mr Dewart and that "five minutes later he began to do an incision".

He went on - "I told him I could feel it ...he said 'You can't feel it" ...he carried on cutting ...I told him again I could feel it ... I felt pain inside there, a long instrument ...I told him to stop...he stopped - and stitched up...".

Mr Stalker told me that he was conscious throughout. He said that he vomited when the procedure was abandoned. He then said - "I went home ...on the bus ..." [to the Sighthill area of west Edinburgh]. He went on - "I was bleeding by the time I got home ... one of my testes was black ...". His GP was called and visited him that evening (07 May 1996); and apparently examined the operation site and prescribed an analgesic."

Dr Zealley explained that the portions of the above passage which appear in quotes were direct quotations from the pursuer which he had written on his contemporaneous note. On page 3 of his report Dr Zealley mentioned that Dr Gordon's letter of 9 January 1998 to Mr Hargreave stated that the pursuer had stated that "he was feeling a lot of pain before he lost consciousness". If the pursuer had fainted or lost consciousness he would tend to be a bit hazy about events when he came to again - a sort of retrograde amnesia, but typically only for seconds, a minute or two or three, typically quite a short time. His clinical experience of fainting (in the fields of cardiology and respiratory medicine before he became a psychiatrist) was that the individual would often have incomplete recollection of events up to the point of losing consciousness and for one or two or three minutes prior to losing consciousness.

[118] In his report (at pages 3 and 4) Dr Zealley referred to Dr Alan Carson's letter of 17 June 1998 (7/1(3) of process, p 457). He considered that to be a key letter because it was the first quite detailed and discursive clinical letter by someone well set up to report on the pursuer's psychiatric state. It appeared that Dr Carson was assessing the pursuer at that stage to establish that there was no psychiatric reason why the bilateral orchidectomy should not proceed. His view was that there was no such psychiatric reason. In the account of the attempted vasectomy which the pursuer gave to Dr Carson he said he "passed out". The account which the pursuer had given to Dr Zealley was that notwithstanding the complaint of pain which he made the surgeon carried on cutting. Dr Zealley thought that it was very improbable that a surgeon would carry on inflicting what would plainly be a very painful cutting procedure on a patient who was protesting vigorously that he could feel it all. He would find it extraordinary that any surgeon would carry on, particularly in an elective procedure, if the patient said he was feeling pain. In a further letter dated 8 October 2001, which Dr Zealley considered significant, Dr Carson had written to Mr Hargreave. In that letter Dr Carson described what he termed "a number of supplementary somatisation symptoms", that is, bodily sensations or symptoms which did not in his opinion have a basis in pathology. The pursuer looked less distressed and there was less pain communication behaviour when he was interacting with his family and thought he was unobserved by Dr Carson. Dr Carson went on to say that he did not doubt the pursuer was in pain and distress but wondered whether contact with the legal profession exacerbated these things.

[119] So far as the amount of Oromorph which the pursuer claimed to have taken in a suicide attempt was concerned, Dr Zealley wondered whether he could have taken the amount in question, having regard to the amount which he was being prescribed. So far as the pursuer's family background was concerned, he told Dr Zealley that he was the second-eldest of four, having a brother and two sisters, with all of whom he was in contact. He told Dr Zealley that his father was a bus driver who had died of a heart condition one and a half years previously aged 66, but told Dr Carson in June 1998 that his father was a long-distance lorry driver. The pursuer further stated that he had spent 15 years in the Royal Scots and that he had served in a number of European countries and in the Falkland Islands, that on leaving the Army he worked for the contractors Laings and while doing so undertook a number of Scotvec modules and became a joiner. He also said he worked for a number of different firms, never set up in business on his own and worked for a Dunbar building and joinery firm, William Main, for about 18 months up to May 1996, whereas in June 1998 he had told Dr Carson that he was self-employed as a joiner. He did not tell Dr Zealley that he had been unemployed for significant periods of time. The suggestion that after the pursuer left the Army he was unemployed for significant periods of time, worked for William Main for a period of only seven weeks and had been unemployed for five months prior to the attempted vasectomy was all news to Dr Zealley and if that was the case then the pursuer seemed to have been less than candid about his work experience up to May 1996. The detailed employment history given by the pursuer in his evidence was not information that Dr Zealley had when he saw the pursuer. If Dr Zealley had known about the pursuer's apparently intermittent employment record since leaving the Army it would have made him a little canny about taking the pursuer's reference to symptoms at its face value: he would have wondered just how completely candid the pursuer had been with him if he had not been candid about mere factual matters like employment.

[120] There was nothing in the pursuer's appearance or what he said that led Dr Zealley to think that he was mentally ill. There were no physical manifestations of either heightened anxiousness or of, importantly, a depressed mood. Dr Zealley was confident that, at the time he saw the pursuer, although he was not happy, he was not depressively ill. There was no clinical evidence of memory insufficiency. Dr Zealley noted:

"Throughout the interview, at points where there was a brief lull in the conversation, he was liable to move very abruptly in the chair, with much evident grimacing and sighing. On such occasions he would commonly clutch at his groin. He changed his position on average every three minutes or so. He did not, however, get up from the chair during the interview."

Dr Zealley explained that he got the impression that what the pursuer was doing was something that he was in the habit of doing. It was almost so regular at the end of any statement as to suggest that it had become a habit, perhaps a habit when talking to doctors or professional people concerned to learn how he was. This behaviour did not speak to Dr Zealley of any of the typical ways that people with a major painful condition behaved: it did not appear at all reminiscent of what he would have associated with someone with pain. Getting up from the chair was a relatively common feature of people who were psychologically very disturbed and upset. Dr Zealley would have half-expected that if there had been a genuine clinical explanation for what he termed "these jerking punctuation behaviours" he would have expected the pursuer to get up and walk around, and it was surprising to him that the pursuer did not do that. He noted that the pursuer went in for a lot of sighing, a lot of sudden gasping and grimacing and so forth. Dr Zealley, who had seen "loads of people with severe pain" and had quite a familiarity with how people behaved when they had a lot of pain, thought that the pursuer's behaviour in front of him was unusual for someone whose own statement was "I am in continuous pain needing to take masses of opiate".

[121] Dr Zealley adopted as his evidence the concluding section of his report headed "Opinion". In it he stated that he found it striking that no fewer than four consultant urologists all appeared to have been puzzled by the pursuer's case and certainly 'defeated' by it in terms of relief of his pain complaint. He was struck by the fact that the pursuer had had an absolutely routine intervention and that what happened thereafter seemed to have been a puzzle for very experienced people. He knew Mr Hargreave and Mr Tolley, who were both very experienced people. All four urologists seemed to have been non-plussed by the case and its resistance to their best efforts to relieve the pain complaint. Mr Hargreave was a very distinguished urologist. From his reading of the notes Dr Zealley thought that it appeared that the case did not fall into any known pattern of case following upon even an aborted vasectomy. In the course of his opinion Dr Zealley stated as follows:

"It is as much an inference, rather than as an explicitly stated opinion, that the medical documentation I have seen suggests that Mr Stalker's pain is of the neuropathic type. It appears to be the opinion that his pain experience is, at least to some extent, a 'false sensation' - that is, that it is pain which is not a signal of ongoing or current sensory nerve stimulation but is a matter of neurological dysfunction. Pain of this type can be extremely difficult to manage, is usually chronic and fails to respond in usual ways to standard analgesic interventions. It is of course for urologists to say whether the development of such pain following (attempted / actual) vasectomy is 'something that happens on x per cent of occasions'. Trying to understand Mr Stalker's pain experience and his psychological reaction to it, it is my strong impression that the urologists he has seen did not put him into a category of post-vasectomy patients that they do in fact meet from time to time."

It was his view that the help of a neurologist was needed "to give detailed chapter and verse on what predisposes to neuropathic pain", but it seemed to him that what the pursuer had at the clinic in May 1996 was highly unlikely to have been productive of neuropathic pain as that condition was diagnosed in conditions generally. As "a perforce amateur neurologist" he would not have expected the incision and what followed in the following seconds to lead on to neuropathic pain: it was much more common following traumatic amputations and things like that. He thought that an anaesthetist with a special interest in pain mechanisms or a neurologist was the medical expert who could give an opinion on whether a particular mechanism or procedure could produce neuropathic pain. Anaesthetists were primarily involved in the treatment of neuropathic pain in pain clinics and pain management clinics. Neurologists were "much more the Sherlock Holmes people in the business": they tried to work out how the neuropathic pain had happened. His first port of call in trying to establish the aetiology of the pursuer's pain would be a neurologist, but that was not to discount that an anaesthetist would be importantly involved.

[122] In cross-examination Dr Zealley stated that he had previously seen Dr McCallum's report but not Dr Carmichael's report. He was not in a position to contradict Dr Carmichael's view that the insertion of a long instrument into the scrotum caused the pursuer to suffer a neuropathic injury, but he had never met someone who had met neuropathic pain against "this sort of event". He accepted that in the medical records of the pursuer (from 1993) which he had seen there was nothing of significance in the pursuer's medical history before 7 May 1996. If Mr Hargreave thought, on the basis of the letter from Dr Dewart dated 13 March 1998 (7/1(3) of process, p 354) that there had been no incision then he clearly had a deficient picture of what had happened. Some damage had to be caused to the nerves to cause a neuropathic type of pain. Mr Hargreave would have found evidence on 12 August 1998 of the vasectomy incision. There was no entry in the medical records to indicate that before that date any detailed examination of the scrotal skin had revealed evidence of an incision. Dr Zealley had at the time no reason to doubt the pursuer's account of what had happened at the vasectomy operation. He himself was proceeding on the assumption that an incision had taken place.

Discussion and Conclusions

(i) Events at the operation

[123] It is first of all necessary for me to decide, in light of the above evidence, what happened at the time of the pursuer's attempted vasectomy operation at the clinic on 7 May 1996. It was submitted for the defenders that the pursuer was not a credible witness and his account of what happened during the attempted vasectomy should not be accepted. In elaboration of that submission it was said that the reasons why his evidence should not be accepted as credible were as follows:

(1) The length of time that passed before he made any allegation whatsoever (apart from that to his wife) that Dr Dewart had continued to operate upon him in the face of his complaints of pain on 7 May 1996.

(2) The account which he gave in the witness box was not consistent with accounts given on many previous occasions.

(3) There were internal inconsistencies in the accounts he gave in chief and under cross-examination.

(4) There should be an element of questioning of his version of events because he has in the past been inaccurate about matters about which he should be in no doubt.

(5) There should also be an element of questioning of his version of events in light of his attitude towards the medical profession in general and in light of his reluctance to admit that doctors have accurately noted what he has told them in the past.

[124] It was further submitted for the defenders that his account of what happened at the clinic on 7 May 1996 should not be accepted as reliable for the following reasons:

(1) There should be an element of questioning of his version of events because of his self-confessed memory difficulties.

(2) He was clearly wrong about certain matters and at least one of these mistakes was crucial in that it led him to believe that there must have been more than one cut.

(3) There should be an element of questioning of his version of events because at least on some occasions he was prepared to paint a rather more dramatic version of events than was borne out by other evidence.

(4) It was possible that he could be mistaken about what occurred during the attempted vasectomy.

(5) It was also possible that, if he did faint, as he said to Drs Gordon and Carson, that he was confused and unclear in relation to exactly what had happened in the moments before he fainted.

[125] In addition, it was submitted for the defenders that:

(1) There was a dearth of evidence to support the pursuer's version of events during the attempted vasectomy.

(2) Dr Dewart was both credible and reliable and his evidence that he would never do what the pursuer accused him of should be accepted.

[126] On the other hand, it was submitted for the pursuer that his account of what happened at the clinic during the attempted vasectomy on 7 May 1996 should be accepted as credible and reliable. At the incision he felt a scratch-like pain and told Dr Dewart he could feel it. The response from Dr Dewart was that he could not feel it. That pain was one that came and went. At the second stage, that of blunt dissection, he felt a nick or cut and excruciating pain and saw an instrument inside his scrotum. His evidence on that point was not contradicted. What he described was what would have happened had the procedure continued. He said the scalpel was placed on a tray, and that is what would have happened as a different instrument would have been used for blunt dissection. As a lay person he would not have known what would have been going to happen. He had made a de recenti statement to his wife. He said his right testis was coal black and double the size and she said that his scrotum started to turn a sort of black, dark colour. Mr McClinton was of the opinion that haematoma and swelling of the scrotum tended to indicate internal bleeding. Dr Carmichael also supported the view that black and swollen meant bleeding in the subcutaneous tissues, indicating insertion of something. Dr McCallum was asked if haematoma showed that the surgery went beyond insertion and replied "not really", but in cross-examination favoured a degree of blunt dissection. The preponderance of the medical evidence supported that of the pursuer that some blunt dissection involving insertion of a surgical instrument took place. The question had to be asked, why was the procedure abandoned? The only answer came from the pursuer, and it was because he was in pain. If the procedure was abandoned at the stage of blunt dissection it was plain that something had gone wrong: something of significance must have happened on the operating table to cause the procedure to be abandoned when it was. Nurse Arnott, who removed the stitches on 15 May 1996, had noted "LA ineffective". No credible alternative was advanced to the proposition that the procedure was abandoned because the pursuer was in severe pain. It followed from that that the area where the blunt dissection took place had not been anaesthetised. The question then had to be asked: did Dr Dewart continue with the procedure in the face of the pursuer's complaints of pain, as the pursuer said he did? It would be a very odd thing for the pursuer to make up. The pursuer's evidence of the scalpel being on the tray and of a separate instrument being used for dissection was in accordance with normal procedure and the detail of his account had the ring of truth about it. The pursuer said that he vomited and that Dr Dewart told him he would not continue and recommended he have the operation under general anaesthetic. The pursuer went home by bus and told his wife what had happened. His wife saw blood on his trousers and was told by him that he had told the surgeon to stop because he could feel it. Her evidence tallied with his and enhanced his credibility. What the pursuer might have said to other witnesses over the years was not inconsistent with his general evidence. The relevant passage in the solicitor's letter of 2 October 1997 to Mr McClinton (6/11 of process) encapsulated the pursuer's position. There was nothing in his accounts to other people over the years which undermined his general account that he felt pain at the time of the initial incision. In summary, the submission for the pursuer was that he had given clear evidence that Dr Dewart had continued with the procedure in the knowledge that the pursuer was in pain. There was no direct contradiction of that evidence. The procedure was abandoned at the second stage, that of blunt dissection, because of the pursuer's pain, and it was a reasonable inference from that that the area in question was not covered by anaesthetic.

[127] The submission for the pursuer about Dr Dewart's evidence was that Dr Dewart was not in a position to contradict the pursuer. He had claimed not to recollect the operation, but he was responsible for the content of the operation note and the letter which he wrote to the pursuer's GP on 7 May 1996. The meaning of the words "not able to tolerate the administration of the local anaesthetic" was not seriously disputed. The evidence was that a standard letter was normally sent out indicating that a vasectomy had been carried out: if not, the standard letter was crossed out and the surgeon would write a letter to be typed up. Although Dr Dewart had initially denied having made any incision, he accepted that he had done so once he saw the GP's notes and there was no longer any dispute that Dr Dewart had made an incision on the pursuer. There had been a second stage involving blunt dissection, pain felt by the pursuer and abandonment of the procedure. The only reasonable conclusion to be drawn from Dr Dewart's letter to the GP was that it was intended to mislead. It was telling that there was no proper operation note. Dr Dewart accepted that he had been grossly careless in not writing up a proper operation note. At the very least it was known that the procedure was abandoned, and that must have been because something significant had happened. Dr Dewart did not demur from the proposition that it was unusual for a vasectomy not to be completed. The procedure here had been abandoned, he had written a misleading letter to the GP and had not completed the operation note: he could not have forgotten what happened in this case. His assertion that he could not remember what had happened lacked credibility. His claim that when he wrote his letter to Mr Hargreave he had confused the pursuer with another patient lacked credibility. That letter was bound to have had an impact on other doctors treating the pursuer, as they were being told by the surgeon that he had not proceeded beyond injecting the local anaesthetic. It did Dr Dewart no credit that, once he knew in 1999 that the pursuer had had stitches removed, he did not try to clarify the position with others. His letter to the GP and operation note smacked of a cover-up.

[128] Having considered all the relevant evidence I have reached the conclusion that the substance of the pursuer's evidence about what happened to him at the clinic on 7 May 1996 is both credible and reliable. While there may be grounds to consider that the pursuer is in some respects (for example, in relation to his family background and employment history) a poor historian, I consider that his evidence of what happened at the clinic is consistent with the whole surrounding circumstances and also that there is other evidence which supports his credibility and reliability about what happened at the clinic. My approach to his evidence is as follows. First, I think that his account of events is of something so bizarre having happened that he could not have invented or concocted it. Secondly, what he described as having happened is in accordance with the procedure that would have been followed, and something which he could not have known. Thirdly, I accept the evidence of his wife, whom I found to be a generally credible and reliable witness. Her description of his condition on his return home from the clinic and her evidence of the de recenti statement by him to her supports his account. Fourthly, there was no direct contradiction of the pursuer's evidence by Dr Dewart, who could only speak to the procedure normally followed by him when carrying out a vasectomy under local anaesthetic. By its very nature the pursuer's allegation is that the normal procedure was not followed. Fifthly, it is now, contrary to what Dr Dewart originally asserted, beyond dispute that, as the pursuer claimed, he made an incision on the pursuer in the course of the procedure. The scar was seen by the pursuer's wife and Nurse Arnott, who removed the stitches from it. Sixthly, something must have happened to cause the vasectomy procedure to be aborted. The pursuer has an explanation for that happening: Dr Dewart does not. Seventhly, I draw a sinister inference from the content of Dr Dewart's letter to the pursuer's GP, from his failure to make a note of the operation and from the content of his letter to Mr Hargreave in which he said he had not even proceeded to incision. I conclude that the letter to the GP was calculated to mislead by not disclosing the full extent of what happened and that the operation note was not filled in because Dr Dewart had something to hide and knew that if he recorded what had happened it would be damning of him. There was no satisfactory explanation from Dr Dewart for the content, or rather lack of content, of these two documents, which should have been properly completed on the day of the operation. I infer from these two documents that Dr Dewart wished to conceal the fact that he had even carried out an incision on the pursuer. Moreover, I reject Dr Dewart's explanation for what he said in his letter to Mr Hargreave, namely, that he was at the time confusing the pursuer with another patient. What he said in that letter is consistent with what he said in his letter to the pursuer's GP, which he composed on the day of the operation, when he could not have mistaken the pursuer for anyone else. It is to be noted that there was no mention of who the other patient whom he confused with the pursuer was, or of any attempt to discover who that other patient was. As, according to Dr Dewart, only one or two vasectomies a year at the clinic were not completed by him, I would have thought that at least some attempt could have been made to find out who the other patient was. Eighthly, the evidence of the pursuer's scrotal haematoma and swelling and subsequent neuropathic pain is consistent with what the pursuer said happened to him in the clinic.

[129] The evidence of Dr Dewart suffered from the obvious disadvantage that he apparently could not remember his dealings with the pursuer and was therefore not in a position to contradict the pursuer. Apart from that, on the whole I did not find him to be a satisfactory witness. He was at a loss to explain why he had not written an operation note in the pursuer's case. What happened when Dr Dewart was dealing with the pursuer at the clinic was on any view highly unusual, in that he made an incision on the pursuer but did not carry out the vasectomy. It is significant that the fact that he made an incision was not recorded anywhere by Dr Dewart and that he claims not to remember the pursuer. I have considerable difficulty with his claim not to remember the pursuer, which I do not accept. It was not until he was faced with indisputable evidence in the form of the GP's records showing that stitches had been removed from the pursuer's scrotum eight days after the failed vasectomy that he accepted that he had made an incision on the pursuer. It was submitted on his behalf that, in light of the evidence of Dr Carmichael, Mr McClinton and Dr Zealley on the matter, it was inherently unlikely, indeed almost unthinkable, that any surgeon would knowingly continue with surgery in the face of complaints of pain from the patient. Dr Dewart's own evidence was that it was not possible that he would press on with the procedure in the face of the pursuer's complaints "because what we are talking about here is the centre of the doctor-patient relationship, the trust that an individual puts in his doctor, and I would not betray their trust." I accept that it is unlikely that a surgeon would continue operating in the face of a complaint of pain from the patient, but I am driven to the conclusion that that is what happened in this case. Why Dr Dewart behaved in the manner in which he did I do not know: it may be simply that he was having "an off day".

[130] Accordingly, on the basis of the evidence which I accept, I conclude that Dr Dewart failed to test that the local anaesthetic which he had administered was effective, that he proceeded to make an incision on the pursuer's scrotum in an area not protected against pain by anaesthesia, that the pursuer told him more than once that he felt pain during the incision, that Dr Dewart proceeded to the stage of blunt dissection, involving the insertion of a blunt instrument into the pursuer's scrotum, despite the pursuer's complaints of pain and that the procedure was thereafter abandoned when the pursuer was in pain and vomited. (I should perhaps add that I accept the pursuer's evidence that he did not become unconscious, but that he felt faint. It follows that I do not think the pursuer's memory was affected by loss of consciousness.) The injury to the pursuer's scrotum was seen by his GP, Dr Lang, in the course of a home visit on 9 May 1996 and also by Nurse Arnott when she removed the stitches from the incision on 15 May 1996.

(ii) The pursuer's injury and its cause