Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 152
A197/09	OPINION OF LORD TYRE in the cause JANICE HANNIGAN Pursuer; against LANARKSHIRE ACUTE HOSPITALS NHS TRUST Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Bain QC, Tait; Russel & Aitken (for Miller Samuel, Glasgow)

Defenders: G Mitchell QC, N Mackenzie; NHS Central Legal Office

21 September 2012

Introduction

[1] In this action the pursuer seeks reparation from the defenders for loss and damage which she claims to have sustained as a consequence of the alleged negligence of a consultant and registrar in gynaecology while carrying out a total abdominal hysterectomy (removal of the uterus) and left salpingo-oophorectomy (removal of the left ovary) on 11 April 1995. It is not disputed by the defenders that in the course of this operation the pursuer's left ureter was unintentionally closed by a suture, necessitating further surgical intervention a month later. The issues between the parties are whether the ligation of the ureter was negligent and, if so, whether there is a causal link between such negligent act and the loss and damage which the pursuer claims to have sustained.

The pursuer's hysterectomy operation
(i) Background to the pursuer's operation

[2] The pursuer was born on 17 September 1962 and was therefore aged 32 at the time of the operation. I detail more of her personal history below but at this stage of my opinion it is necessary only to set out the facts relevant to the carrying out of the hysterectomy. She is married with two children who were born in 1990 and 1992 respectively, both by caesarean section. In 1993 she underwent a sterilisation by laparotomy. In November 1994 she was referred to Law Hospital by her general practitioner, Dr Robert Liddle, for investigation of a recurrence of lower abdominal pain. It is noted in Dr Liddle's referral letter that during the sterilisation procedure it was observed that the pursuer had some adhesions (ie fibrous bands of tissue, often consisting of post-operative scar tissue) within the abdominal cavity concerning the uterus, bladder and peritoneum. These had been divided during the surgical procedure but the pursuer had not obtained relief.

[3] The pursuer was seen on 10 January 1995 by Dr Christopher Lennox, a Consultant Gynaecologist at Law Hospital. Dr Lennox recommended a further laparoscopy, which was carried out on 14 February 1995. The findings at laparoscopy were reported back to Dr Liddle by Dr Lennox as follows:

"At laparoscopy I confirm that this lady has chronic pelvic adhesions involving both tubes, especially on the left side where the ovary was not visible. The right ovary appeared normal. There was no evidence of active disease and the findings were compatible with post-operative adhesions.

It is difficult to know how much of these adhesions are, in fact, causing her persisting and quite severe pelvic discomfort and I am not sure that division of adhesions would be helpful and it may be that a hysterectomy would be the sensible solution."

After discussion with Dr Liddle, the pursuer decided to proceed with a total abdominal hysterectomy and she was admitted to Law Hospital on 10 April 1995 with a view to surgery on the following day.

(ii) Abdominal hysterectomy procedure

[4] Before examining the evidence relating to the pursuer's operation, it is necessary for me to provide a general, albeit brief, explanation of part of the surgical procedure in a total abdominal hysterectomy operation. In the female anatomy the uterus, ovaries and fallopian tubes are located within the abdominal cavity. The membrane lining the abdominal cavity is known as the peritoneum. On each side the uterus is attached to the peritoneum by ligaments which include the round ligament and a fold of peritoneum known as the broad ligament. Within the broad ligament is the infundibulo-pelvic ligament which in fact consists of the ovarian blood supply vessels. These ligaments require to be divided in order to permit removal of the uterus and the adnexa (ie the tubes and ovaries). Behind the peritoneum and posterior to the uterus and ovaries run the left and right ureters which transmit urine from the kidneys to the bladder by means of muscular contractions (peristalsis). At certain locations, including that of the infundibulo-pelvic ligament, the ureters run very close to the uterine blood vessels. The risk of damage to the ureters in the course of a hysterectomy operation is well recognised.

[5] In the course of the proof reference was made to the description of abdominal hysterectomy in a chapter from Rob and Smith's Operative Surgery (Gynaecology & Obstetrics), 4^th edition (1987), contributed by P T Edington, Consultant Obstetrician and Gynaecologist. Subject to one matter, I did not understand this description to be controversial and I shall use it as the basis of my own (less technical) description of part of a hysterectomy operation. Following incision, the abdominal cavity is explored and any adhesions are divided to ensure improved access and mobilisation of the uterus. Two haemostatic clamps are applied, each to include the fallopian tube, ovarian ligament and the round ligament. In cases where the adnexa are to be removed, the round ligament must be divided. Once this has been done, a space is created into which the surgeon inserts a finger to isolate the infundibulo-pelvic ligament. A haemostatic clamp having been applied, this ligament is divided between the clamp and the ovary and sutured at the clamp. The pedicle thus created is then ligated. Division of these ligaments renders the uterus more mobile and the surgeon can proceed to the next stage of the operation, namely identification and mobilisation of the bladder. It is unnecessary for present purposes to describe the operation further. I note, however, at this point that in relation to the clamping and suturing of the infundibulo-pelvic ligament and the ligation of the pedicle, the Edington text includes the observation "Care must be taken to identify and avoid the underlying ureter".

[6] The foregoing is a description of part of a hysterectomy operation uncomplicated by the presence of significant adhesions. One effect of the presence of adhesions is to distort the anatomy so that the various organs and vessels within the abdomen may not bear their usual spatial relationship to one another. Where adhesions are encountered, it was a matter of agreement among the expert witnesses who gave evidence that the aim of the surgeon, when commencing the procedure, is to attempt so far as possible to restore the anatomy to the "normal" situation described above. This is done by separation of the adhesions which, depending on circumstances, may be done digitally or may require instruments. The practice of gynaecological surgeons is variable as regards the extent to which they would continue to employ digital separation without resorting to the use of instruments. The degree to which it is practicable to restore the anatomy to "normal" will vary from case to case but it is unlikely that total restoration to normality will be achieved.

(iii) The pursuer's operation and re-admission

[7] The pursuer's hysterectomy operation was carried out on 11 April 1995 by a registrar in gynaecology, Dr Eloko Ikedionwu, supervised and assisted by Dr Lennox. Both gave evidence at the proof but, in view of the passage of time since 1995, neither had any specific recollection of the operation. For evidence as to what was or was not done in the course of the operation, it is therefore necessary to rely on contemporaneous records and on the surgeons' evidence as to their normal practice. The operation note was completed by Dr Ikedionwu and (with abbreviations expanded) stated as follows:

"Pfannenstiel incision through previous scar. Difficult entry due to bladder adhesions. Left tube and ovary stuck down to posterior uterus and left adnexae. Sigmoid colon stuck to left adnexae and posterior of uterus. Adhesions digitally separated. Normal right tube and ovary - small fimbrial cyst on right tube.

3 pedicle total abdominal hysterectomy and left salpingo-oophorectomy carried out with double ligation of pedicles with vicryl. Haemostasis. Vicryl to vault. Partial visceral reperitonisation. Vicryl to sheath. Subcuticular dexon to skin."

The pursuer was discharged from hospital on 14 April 1995. Dr Lennox's discharge letter to Dr Liddle, dated 1 May 1995, stated inter alia as follows:

"At laparotomy we confirm that the left tube and ovary were involved in extensive adhesions, although on the right side things were much more free. As previously discussed with Janice, we carried out a total abdominal hysterectomy with left salpingo-oophorectomy but conserved her right tube and ovary. The procedure was straightforward and she recovered uneventfully and went home on the fourth day.

Histology of the uterus has shown nothing remarkable..."

[8] During the month following her hysterectomy operation, the pursuer developed left loin pain which became progressively more severe. On 12 May she was re-admitted to Law Hospital as an emergency. An ultrasound scan suggested that her left ureter was obstructed and she was transferred to the care of Mr Michael Smith, a Consultant Urologist. Her pain and discomfort were relieved by a nephrostomy and on 18 May Mr Smith carried out an exploratory laparotomy. It was discovered that the left ureter was totally obstructed, having been encircled by a suture. Mr Smith's view, which is not a matter of dispute, was that this had occurred in the course of the hysterectomy procedure. Mr Smith's operation note records inter alia as follows:

"... A peritoneal cavity was opened and adhesions between the omentum and the anterior abdominal wall separated. It was evident that there was small bowel together with sigmoid colon adherent to the left side of the pelvis and about the area the left ovarian pedicle had been ligated. An approach was therefore made to the left of the descending colon, reflecting this slightly medially and gradually working down to separate the small bowel adhesions and adhesions over the sigmoid colon, leaving a stump of the ovarian pedicle clear. The left ureter was identified and the ovarian vein and the ureter was traced down to where it had entered the adhesive mass but in fact had been dissected off and was still attached to the sigmoid colon. It was quite certain that the distal part was not evident and clearly at some stage had been divided although I could not say whether this had specifically happened during my dissection or a previous one. There certainly appeared to be a ligature around the distal part when freed off the sigmoid colon and a small area of distal ureter was sent for histology.

There then was a rather long and tedious dissection in the area of the pedicle and down the pelvis to try and identify the distal ureter but after an hour and a quarter there was still no obvious sign of it ... As it didn't look as though there was going to be success in identifying the distal ureter, I decided to carry out a transuretero-ureterostomy."

Mr Smith proceeded to carry out a transuretero-ureterostomy: in other words he took the part of the left ureter which he had identified running from the left kidney and joined it to the right ureter, thus enabling urine to pass from the left kidney to the bladder via a junction (or anastomosis) and the distal part of the right ureter. In his evidence to the court, Mr Smith stated that he considered it highly likely that the division of the left ureter had occurred during his own dissection, in the course of attempting to separate it from the sigmoid colon.

[9] The pursuer was discharged once again on 28 May 1995. Mr Smith's discharge letter to Dr Liddle records that the pursuer's post-operative care was "pretty uneventful".

Summary of the parties' contentions on the merits
Pursuer's case

[10] The pursuer claims to have suffered loss and injury as a consequence of the negligence of Dr Lennox and Dr Ikedionwu, for whose actings the defenders are responsible in law. In particular, the pursuer contends that Dr Ikedionwu failed (i) to visualise and palpate the pursuer's left ureter to identify its course and (ii) to satisfy himself that it was clear of the surrounding structures by fully mobilising the infundibulo-pelvic ligament before proceeding to suture. He had a duty not to ligate the ureter. No ordinarily competent registrar exercising reasonable skill and care would have ligated the ureter in the course of what was described by the supervising surgeon as a straightforward operation. The pursuer further contends that Dr Lennox failed, while supervising Dr Ikedionwu, (i) to ensure that the ureter was visualised and palpated and that its course was identified, and (ii) to ensure that it was free from surrounding structures by adequate mobilisation before suturing commenced. Had he been properly supervising Dr Ikedionwu he would have been aware that the ureter had been ligated.

Defenders' case

[11] The defenders identified the issues as being (i) whether the infundibulo-pelvic ligament was fully mobilised before being clamped, cut and sutured and (ii) whether there is, on the one hand, a duty positively to identify the ureter by visualisation or palpation before clamping, cutting and suturing or, on the other hand, whether it is sufficient, through palpation and visual examination of tissues, to be confident prior to clamping, cutting and suturing that the ureter is not involved. They contend firstly that there was clear evidence that the infundibulo-pelvic ligament was mobilised before being clamped or sutured and accordingly that this criticism fails on the facts. They contend secondly that by adopting the second of the two practices just described, Dr Lennox and Dr Ikedionwu followed a practice adopted by a responsible body of general gynaecological surgeons and could not therefore be said to have adopted a course "which no professional man of ordinary skill would have taken if he had been acting with ordinary care" (Hunter v Hanley 1955 SC 200, Lord President Clyde at 205).

Evidence of professional practice

[12] In her closing submission senior counsel for the pursuer made clear that the pursuer's case was that the practice adopted by Dr Lennox and Dr Ikedionwu, as summarised above, fell below the requisite standard of skill and care, rather than that the damage to the ureter was caused by casual negligence such as, for example, careless suturing. In support of her case on the merits, the pursuer led evidence from Mr Alastair Milne, Consultant in Obstetrics and Gynaecology, and from Dr Alan Brown, retired Consultant in Obstetrics and Gynaecology. For their part, the defenders led evidence from Dr David Parkin, Consultant Gynaecological Oncologist, and from Dr Philip Owen, Consultant in Obstetrics and Gynaecology. Each of these highly qualified expert witnesses has many years of experience in carrying out hysterectomy operations. It is necessary for me to summarise in turn, firstly, the evidence of the surgeons who carried out the pursuer's two operations in 1995 and, secondly, the evidence of the four expert witnesses. When addressing the evidence of each of these witnesses I do so with particular regard to the following matters:

·        the ordinary practice of a gynaecological surgeon with regard to the identification, by visualisation or palpation, of the ureter prior to application of clamps to the uterine blood vessels;

·        the degree, if any, to which the presence of adhesions in the present case may have affected the process of identification of the ureter; and

·        whether, in the circumstances of the present case, the ureter could and should have been identified by the operating surgeons prior to application of a clamp to the pursuer's left infundibulo-pelvic ligament.

Dr Christopher Lennox

[13] At the time of the pursuer's operation Dr Lennox had held the post of Consultant in Obstetrics and Gynaecology with the defenders since 1987. (He was subsequently appointed Clinical Director for Women's Services, NHS Lanarkshire, and retired from clinical practice in December 2011.) In 1995 he carried out around 25-30 hysterectomies each year and estimated that he would then have carried out around 250-300 in total. I have already noted that he had no specific recollection of this operation and gave evidence based on the pursuer's medical records and his own normal practice. He thought that the decision that the operation would be carried out by the registrar would have been made when the theatre list was made up. He agreed that although the operation was performed by Dr Ikedionwu, the consultant carries ultimate responsibility for it. He accepted that there should have been an attempt positively to identify the ureter by visualisation and/or palpation but did not regard the absence of any reference in the operation note as an indication that there had been no such attempt. Damage to a ureter is a well-recognised hazard of hysterectomy procedure, although it occurs most commonly at a lower level where the ureters are closest to the uterine arteries. So far as identification of the ureter is concerned, all one can do is be as confident as possible that the ureter is not involved in tissue to be clamped and cut. In the absence of adhesions, it would normally be possible to feel the ureter with one's fingers or to see it through the peritoneal tissue. It is quite a thick structure which wriggles when squeezed. In a straightforward case, Dr Lennox considered the risk of damage to a ureter to be low: with normal anatomy and due care, it should never happen. The position was, however, entirely different where there were adhesions. In bad cases it could be difficult to be sure which organ was which. The aim was to restore normality as far as possible but it would not always be possible positively to identify the ureter. Once one reached the stage of placing a finger behind the broad ligament and stretching the infundibulo-pelvic ligament, one could be more confident that the ureter was not included. Having regard to the references in the notes in this case to adhesions, it was likely that the operation had proceeded on the basis of confidence rather than certainty that the ureter was not involved in the tissue being clamped and sutured, because attempting to divide the adhesions could have done more harm than good. When it was put to Dr Lennox that he himself had described the operation as "straightforward" in the discharge letter, he explained that it was important to appreciate the function of the letter: the GP was not interested in whether the operation itself had been difficult; the pursuer had recovered quickly and there was no suspicion that there might be complications later. In re-examination (having been called as a witness by the pursuer), Dr Lennox reaffirmed that he drew a distinction between certainty on the one hand and confidence on the other, especially where the anatomy was distorted.

Dr Eloka Ikedionwu

[14] At the time of the operation Dr Ikedionwu had been a Registrar for approximately one year. He accepted that every clamp, cut or suture would have been supervised by Dr Lennox as consultant with overall responsibility. On the basis of his own contemporaneous note he did not accept that the operation could properly be described as straightforward because of the references to adhesions. Even after digital separation the anatomy would not be returned completely to normal. In cases where there were adhesions it was sometimes necessary to make an intelligent guess as to the course of the ureter by studying the angle of entry or exit. Certainty that the ureter was not involved in clamped tissue was achievable in most but not all cases. If there had been difficulty identifying the ureter one would in normal circumstances expect this to be recorded in the operation note.

Mr Michael Smith

[15] Mr Smith, the consultant urologist who carried out the remedial operation in May 1995, was also asked whether it was possible to identify the course of the ureter during a hysterectomy operation. His view was that in a straightforward hysterectomy procedure the surgeon would see where the ovary and fallopian tube were and in the course of dissection would be able to identify where the ureter was. This would not necessarily require dividing the peritoneum but if it did the dissection would not have to be very extensive. Depending on the thickness of the peritoneum, it might be possible to identify the ureter by palpation.

Mr Alastair Milne

[16] Mr Milne has been a Consultant in Obstetrics and Gynaecology since 1980, and has held that post at the Royal Infirmary of Edinburgh since 1998. His main area of clinical activity has been in gynaecological surgery with a special interest in urogynaecology. His surgical practice commonly involves the procedures of abdominal hysterectomy and salpingo-oophorectomy. He has been nominated by the Royal College of Obstetricians and Gynaecologists to serve as an advisor to the Committee on Professional Performance of the General Medical Council. For the purposes of the present action, Mr Milne produced a written report dated 21 November 2011 and gave evidence at the proof. In his report Mr Milne expressed the opinion that the ordinarily competent gynaecological surgeon should "make every effort" to visualise and/or palpate the ureter especially before application of clamps to tie off the blood supply to the uterus and ovaries. These efforts should be recorded in the operation note as should any difficulties encountered identifying the ureter during the operation as a result of anatomical distortions. In the present case the description of the operation as "straightforward" in Dr Lennox's discharge letter suggested that the anatomical distortion of the left sided structures described in the operation note did not pose a particularly difficult surgical challenge. That being the case, no ordinarily competent gynaecologist would have encircled the ureter with a suture. There is no mention in the operation note of an attempt to visualise or palpate the ureter. If no such attempt was made that would indicate a standard of care below that of an ordinary practitioner exercising due care.

[17] In his evidence to the court Mr Milne stated that the reference in the operation notes to digital separation of adhesions strongly suggested to him that the separation was not challenging. He accepted that in a case of abnormal anatomy, there might be difficulty in identifying the ureter before separation of the adhesions, but what mattered was how the anatomy appeared after an attempt at separation had been made. His interpretation of the operation note was that there was no significant difficulty in identifying the area in which the clamp on the infundibulo-pelvic ligament was to be placed. If there had been any greater degree of difficulty in identifying the ureter then it should have been noted in the operation note and one would also expect to see a reference in the discharge letter. In this case it appeared that the clamp had breached the peritoneum and had been placed very close to or on the ureter which runs just below. When the pedicle was tied off, the suture encircled the ureter albeit the ureter was not severed when the pedicle was cut. It was very rare in an elective operation where adhesions were not rigidly adherent for an encircling injury to the ureter to occur. Mr Milne strongly disagreed with the views expressed by Dr Owen in his report that the ureter was seldom clearly visible and that palpation was an unreliable method of identification. It was uncommon, in Mr Milne's experience, not to be able to feel the ureter. It was not usually necessary to dissect the ureter free from the peritoneum in order positively to identify it. In cross-examination, Mr Milne confirmed that the standard for which he would strive in identifying the ureter would be as near to certainty as one could humanly get. His assessment of this operation, based on the notes, was that the adhesions were separated to achieve a virtually normal anatomy. He did not think that the course of the ureter would have been abnormal, and so it would have been just as possible to visualise the ureter as in a "normal" hysterectomy procedure.

Dr Alan Brown

[18] Dr Brown has been a Consultant Obstetrician and Gynaecologist since 1975, having held this post at various Edinburgh hospitals since 1983. He retired from clinical practice in 2007 but continues to carry on consultancy and medico-legal work. His sub-specialty interests include urogynaecology. He is a specialist advisor in obstetrics and gynaecology to the GMC's Fitness to Practice Panels. For the purposes of the present action, Dr Brown produced a written report dated 13 February 2012 and gave evidence at the proof. In his report Dr Brown quoted a passage from a standard work (Govan et al, Gynaecology Illustrated, 4^th ed 1993, page 344) where under a heading "Injury to the Ureter" it is stated:

"The ureter is most commonly injured:

1. Entering the pelvis

The ureter descends medial to the infundibulo-pelvic ligament, and if displaced by inflammation or tumour, may be so close as to be caught in a clamp applied to the ligament..."

It was Dr Brown's view that this was the mechanism of damage in the present case. There was no mention in the operation note that the ureters were identified at those stages of the operation when they were at greatest risk of being damaged. Identification was particularly necessary when a high risk factor such as severe adhesion formation was present. Dr Brown's view that the adhesion formation was severe was based upon the terms of the operation note and the discharge letter, and he expressed surprise that only digital separation of adhesions had been required. In his opinion, the pursuer sustained ureteric damage around the area of these intense adhesions because of the failure by Dr Lennox and Dr Ikedionwu to recognise the high risk to the ureter as it traversed that area, and because they made no attempt to identify the position of the ureter in relation to all the adhesions. It was Dr Brown's view that the two surgeons deviated significantly from the normal practice of identifying and recording the ureteric position in this "complex operation". This was negligent by reference to the Hunter v Hanley test.

[19] In his evidence to the court Dr Brown stated that the fact that the adhesions could be digitally separated, and the absence of any mention of bleeding, indicated that they were milder adhesions but which could still cause distortion of structures. It was absolutely vital to identify the ureter and in a straightforward operation he would always make sure each was well out of the way. He always checked by digital palpation that the ureter was well clear of where the clamp was being put. The ureter is identified mainly by visualisation: it is a strongly muscular structure which can often be seen behind the peritoneum. If not, he would palpate. He considered it to be normal practice for the operation note to record the manner in which the ureter had been identified and the steps taken to secure it. Adhesions increased the risk and made identification even more important. The adhesions in the present case were extensive and created a "highly complex at-risk scenario". The surgeon should not proceed to clamp in the area of the infundibulo-pelvic ligament until he was certain he had identified the ureter in order to know that it was out of harm's way. The absence of any reference in the operation note to identification suggested that having separated the adhesions digitally, Dr Lennox and Dr Ikedionwu were lulled into a false sense of security and assumed (incorrectly) that everything was back to normal. When Dr Brown's attention was drawn to Mr Smith's evidence that the ureter had probably been cut not during the hysterectomy procedure but by himself during the subsequent operation, Dr Brown revised his opinion as to the mechanism of damage and stated that it was more likely that after the infundibulo-pelvic ligament had been clamped, the suture included more tissue than had been clamped. This was not within the range of acceptable surgical complications (I interject to reiterate that it is not the pursuer's case that the ligation was caused by careless suturing). Dr Brown also disagreed with the views expressed in Dr Owen's report. Even if the ureter could not be identified by sight or palpation, minimal dissection of the peritoneum would be needed and damage to any vital structure would not be likely. As regards Dr Lennox's evidence, Dr Brown disagreed that it was sufficient to proceed on the basis of confidence that the ureter was not involved: confidence could only be based upon positive identification. Any gynaecological surgeon who failed to ensure that the ureter was not in close proximity to the infundibulo-pelvic ligament when the latter was clamped and cut was taking risks.

Dr David Parkin

[20] Dr Parkin has been a Consultant Gynaecological Oncologist at Aberdeen Royal Infirmary since 1996, having previously been a Consultant Obstetrician and Gynaecologist there since 1989. Since the 1990s he has been concerned mainly with cancer surgery but also assists colleagues with difficult non-cancer operations. For the purposes of the present action, Dr Parkin produced a report to the defenders which was not lodged and he gave oral evidence at the proof. When asked to describe the steps taken to identify the ureter in a hysterectomy operation, ie where the anatomy was normal with no adhesions, he considered that in the majority of cases very little would be done because it would be assumed that the ureter was safe. That was what every gynaecological surgeon was taught then and, to some extent, still is today. In a "normal" case the ureter would never be less than 2 cm clear of the ovarian vessels. Creation of a hole in the broad ligament would further increase the distance. Visualisation of the ureter was sometimes possible if the patient was of slim build. Attempts to identify the ureter by palpation were not as informative as some thought. One could only be confident if one had a finger down each side of it, which was possible only if the peritoneum was widely opened; otherwise one would simply be feeling an area of thickening of the peritoneum without knowing what it was. In cases where there are adhesions, the peritoneum becomes thicker. There is less space between structures, especially between the ureter and the ovarian vessels and one cannot see through these thickened tissues. Attempting to divide adhesions in order to find the ureter might do more harm than good. The method which Dr Lennox had described in evidence as his normal practice was in accordance with the way Dr Parkin had been trained and how he saw senior colleagues operating in the early 1990s. When the opinions of Mr Milne and Dr Brown were put to him, Dr Parkin stated that he never saw positive identification of the ureter. The statement that it was absolutely essential for the course of ureter to be identified and made safe before application of the clamp was easy to make but very difficult to achieve in real life. Even at his level of expertise as a cancer surgeon, confident identification of the ureter in the presence of adhesions could be highly challenging and sometimes impossible. He thought the normal practice was that when the gynaecologist was confident that some semblance of normality had been restored the clamp could be applied. Hysterectomy was based on confidence, not certainty. There was no scenario here that was risk-free. He did not think that in 1995 it was normal practice to record identification of the ureter in the operation note. In the course of cross-examination Dr Parkin expressed the view that in the vast majority of cases the ureter cannot be identified with certainty.

[21] As regards the pursuer's anatomy at the time of the hysterectomy operation, Dr Parkin's view, based on the laparoscopy findings and the operation note, was that this was quite an abnormal situation. It was not possible to give a definite answer but it seemed likely that the ureter was not in its normal position in relation to other organs. It is unlikely that it could have been seen or felt through the peritoneum. Separation of the adhesions could not be expected to restore the anatomy to normal because the tissue would still be thickened. Because it could not be assumed that normality had been restored, one was back to the pragmatic approach: the ureter would be out of the way the vast majority of the time. When asked in cross-examination whether he considered that a surgeon who, in 1995, sutured a ureter without having positively identified it was not negligent, his response was that the discriminating feature was whether the anatomy was normal. If so, encircling of the ureter would be negligent, but the present case was not routine. It was impossible to tell whether, following separation of adhesions, the anatomy had been restored to normal or whether the ureter was displaced. Nothing could be inferred from the fact that Dr Lennox had been content to allow a registrar to proceed to carry out the operation under his supervision. Dr Parkin's final position was that it was highly unlikely that the anatomy had been restored to normal.

Dr Philip Owen

[22] Dr Owen is a Consultant Obstetrician and Gynaecologist who has held that post with North Glasgow NHS Trust since 1997 and currently works at Glasgow Royal Infirmary. He had previously been a Senior Registrar and subsequently an Honorary Consultant at Ninewells Hospital, Dundee since 1993. His specialist areas of interest are in the field of obstetrics but his clinical workload has included both obstetrics and gynaecology and he regarded himself as a generalist obstetrician and gynaecologist. He currently performs around 30-40 hysterectomies in a year but performed more than that in the past when there were fewer recognised alternatives. For the purposes of the present action, Dr Owen produced a written report dated 18 December 2011 and gave evidence at the proof. In his report he expressed the opinion that the ureter is seldom clearly visible and palpation is an unreliable method of identification. Confirmation that the ureter is not involved in a clamp would require the ureter to be surgically dissected free from overlying structures, which carries its own hazards and is not a skill routinely within the range of abilities of a general gynaecologist. His interpretation of Dr Lennox's use of the word "straightforward" was that despite the technical difficulties posed by the adhesions, the surgeons were able to overcome these and complete the hysterectomy in a straightforward manner, with no immediate post-operative complications or notable blood loss. The fact that Mr Smith was unable to identify the distal ureter on the left side whilst undertaking the laparotomy to repair the ureteric damage was an indication that the anatomy was distorted to such a degree that the ureter could not be located in its usual anatomical position. This would have made it particularly susceptible to injury at the time of the hysterectomy. The injury was an unfortunate complication but did not indicate that the hysterectomy was performed in a negligent manner.

[23] In his evidence to the court Dr Owen stated that in normal anatomy there is a distance of at least one centimetre between the infundibulo-pelvic ligament and the ureter, which was a safe distance. Sometimes the ureter could be seen under the peritoneum, sometimes not. Palpation was not a reliable method of identification because it was not possible to hold the ureter between finger and thumb. Ordinary practice would be to rely on an assumption that if anatomy is normal, or has been restored to normal, there is a safe distance to allow the surgeon to clamp and cut. When the infundibulo-pelvic ligament is lifted up it is visualised and palpated prior to being clamped and cut. The absence therein of a structure resembling the ureter would give additional confidence, though not certainty, that the ureter was not involved. Dr Owen did not agree that dissection of the ureter from surrounding structures was routinely within the skill of the ordinary gynaecological surgeon. Where there were adhesions, it was all the more important to be conscious of avoiding the ureter, but this was not the same thing as positively identifying it. He regarded Mr Milne's opinion that the ureter had to be identified with certainty as a counsel of perfection that most ordinary gynaecologists would be unable to achieve. Dr Owen accepted that his practice differed from that described by Mr Milne and Dr Brown but considered that his more closely reflected ordinary practice. As regards the effect of the adhesions on the pursuer's anatomy, Dr Owen's view was that it was reasonable to surmise that even after separation of the adhesions the ureter remained in an abnormal position relative to that of the infundibulo-pelvic ligament. It was not possible to be certain which was out of position but one could say with greater confidence that the increased proximity of the two was the cause of the injury which occurred. There had been no departure from usual practice and it was unfortunate that injury had resulted.

General observations on the expert evidence

[24] Having heard the four expert witnesses give evidence and having been provided with full details of their respective professional qualifications and clinical experience, I am in no doubt that each is eminently well qualified to provide an expert opinion with regard to the issues that arise in this case. There was some suggestion by Mr Milne and Dr Brown, prompted by senior counsel for the pursuer, that Dr Owen was primarily an obstetrician with limited involvement in gynaecology; having heard Dr Owen's evidence I am satisfied that this is not so, and no such suggestion was ultimately made by counsel in closing submissions. I feel able, with respect to all of the expert witnesses, to assess the substance of their evidence without any concern that any of them strayed beyond a field in which they are all highly qualified and experienced. All gave reasoned opinions and were able to elaborate upon their reasoning when challenged, so no question of "oracular pronouncement" (Davie v Magistrates of Edinburgh 1953 SC 34, Lord President Cooper at 40) can be said to arise in this case.

[25] That said, it has to be acknowledged that there are very significant disagreements among the witnesses with regard to critical matters in this case. It is perhaps not unduly surprising that a range of opinions should emerge on matters of clinical judgment, but I do for my part find it somewhat surprising that there should be such sharp disagreement on matters which seem to me to be questions of fact: in particular, the practicability of positive identification of the ureter where it passes close to the ovary but behind the peritoneum. A stark conflict of evidence occurred even in relation to procedure in a straightforward hysterectomy operation where, for example, Dr Brown stated that he would "always" identify the ureter and ensure that it was out of the way, yet Dr Parkin stated that visual identification was "sometimes" possible and that identification by palpation was unreliable. This conflict cannot be explained merely as a difference of emphasis. Nor did I understand any of the witnesses to have fallen into an error of describing current practice as opposed to practice, if different, in 1995. I accept that each of the witnesses was accurately describing his own professional practice and the practice of other gynaecologists with whom he has worked both now and at the time of the pursuer's operation. I am accordingly bound to conclude that within the gynaecological profession, even in a country as small as Scotland, there are significant variations in both professional training and clinical practice in relation to this particular factual matter. Before examining the evidence further, it is accordingly necessary to review the authorities on assessment of expert evidence, so far as material to the issues in the present case.

The court's approach to evidence of professional practice

[26] The starting point is of course the well-known dictum of Lord President Clyde in Hunter v Hanley 1955 SC 200 at 206. Since the present case is based upon an allegation of deviation from ordinary professional practice, it is worth quoting the relevant passage:

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three his case will fail."

In applying that dictum to the present case, however, I bear in mind the following observations of the Extra Division in Gerrard v Royal Infirmary of Edinburgh NHS Trust 2005 SC 192 at paragraph 77:

"Clearly Lord Clyde is not saying in the passage quoted that professional negligence cannot be established where the claim arises out of circumstances in which no normal medical practice is proved to exist, since the Lord President himself stated at an earlier stage (p 205): The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. As Lord Clyde pointed out, it is the third of his three facts which is of crucial importance, that is 'that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care'."

These dicta do not directly address a scenario where, according to the evidence, there exists more than one usual and normal practice, each supported by a body of expert professional opinion. In such a case it appears to me that attention must focus, in the ordinary way, upon the third of Lord Clyde's three facts.

[27] The next issue arising as a matter of law is the approach which the court should take when faced with a body of expert evidence led by one side that the course adopted by the defenders' employees was negligent according to the Hunter v Hanley test and a body of expert evidence led by the other side that it was not. Both parties referred in their submissions to a recent summary of the relevant legal propositions by Lord Hodge in Honisz v Lothian Health Board 2008 SC 235 at paragraphs 39-40 and I gratefully do likewise (with references added):

"[39] First, as a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, Lord Scarman, p 639F-G). Secondly, however, the court does not defer to the opinion of the relevant professionals to the extent that, if a defender lead evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority [1998] AC 232, Lord Browne-Wilkinson, pp 241G-242F, 243A-E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct. This will rarely occur as the assessment and balancing of risks and benefits are matters of clinical judgment. Thus it will normally require compelling expert evidence to demonstrate that an opinion by another medical expert is one which that other expert could not have held if he had taken care to analyse the basis of the practice. Where experts have applied their minds to the comparative risks and benefits of a course of action and have reached a defensible conclusion, the court will have no basis for rejecting their view and concluding that the pursuer has proved negligence in terms of the Hunter v Hanley test (see para 36). As Lord Browne-Wilkinson said in Bolitho (p 243D-E), 'it is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmark by which the defendant's conduct falls to be assessed.'

[40] An example of such a rare case is that of Hucks v Cole [reported at [1993] 4 Med LR 393 but decided in 1968], which Lord Browne-Wilkinson discussed in Bolitho. In that case a general practitioner failed to give penicillin to a lady in a maternity ward who had a septic spot and as a result she developed fulminating septicaemia. The defendant knowingly took a risk that the lady could develop puerperal fever because the risk was small and he was supported in his decision by distinguished expert witnesses. Nevertheless the judge concluded that he was negligent and the Court of Appeal upheld his decision, Sachs LJ holding that there was a lacuna in professional practice and that the defendant knowingly took an easily avoidable risk which elementary teaching had instructed him to avoid. As, in the court's judgment, there was no proper basis for the practice of not giving penicillin it was not reasonable for the medical practitioner to expose his patient to that risk."

Discussion: whether negligence proved

[28] I begin my assessment of the expert evidence with a matter upon which there seemed to be a degree of consensus. In the case of a hysterectomy operation which is properly described as straightforward, ie where the anatomy is normal and there are no adhesions to separate, it appeared to me that all four witnesses were in agreement that the occurrence of damage to the ureter at the location of the infundibulo-pelvic ligament would raise an inference that the operation was not carried out with due care. That was the expressly stated view of Mr Milne and is implicit in Dr Brown's opinion that no ordinarily competent gynaecological surgeon would put a clamp in that area without identifying the ureter and ensuring that it was out of harm's way. Dr Parkin accepted that if the anatomy was restored absolutely to normal, damage to the ureter would be negligent. Dr Owen's opinion that the occurrence of injury in the present case did not imply negligence appears to have been based upon his judgment that normal anatomy was not restored by separation of the adhesions. An appropriate starting point is therefore to consider whether a finding can be made as to whether or not separation of adhesions did result in this case in the restoration of normal anatomy. I have set out above the views of the four experts on this matter, and it can be seen that only Mr Milne expressed the opinion that separation of the adhesions had created "virtually normal anatomy" and that the course of the ureter would not have been abnormal. This opinion was founded upon the fact that the adhesions were digitally separated, and on Mr Lennox's own description of the operation as straightforward. Dr Brown's view that Mr Lennox and Dr Ikedionwu had been "lulled into a false sense of security" as regards restoration of normality was based upon the extent of the adhesions disclosed by laparotomy and described in the operation note. Dr Parkin and Dr Owen each expressed the view that there would have been a reduced distance between the ureter and the ligament which was to be clamped and cut. Like Dr Brown, Dr Parkin based his opinion on the extent of the adhesions recorded in the laparoscopy report and in the operation note. Dr Owen's view appears to be based partly upon the laparoscopy findings and partly upon the difficulty experienced by Mr Smith in locating the left ureter a month later. As regards the latter, however, Dr Owen did ultimately accept that there would probably have been more adhesions at the time of Mr Smith's operation than there had been a month previously.

[29] In my opinion the view of the majority of the expert witnesses on this point is to be preferred. I accept the view expressed by Dr Parkin in particular that it would be wrong to read too much into the fact that Dr Ikedionwu was able to separate the adhesions digitally. Whilst this may be an indication that the extent of the adhesions was not at the most severe end of the scale (as would be encountered, for example, in a case of endometriosis) and accordingly may not have posed a particularly difficult surgical challenge during the operation, I am not persuaded that it can be regarded as a reliable indication as to the restoration or otherwise of normal anatomy. Nor, in my opinion, should too much be read into Dr Lennox's use of the word "straightforward" in the discharge letter. I am happy to accept Dr Lennox's own explanation of what he would have meant by this, and that it cannot be taken to imply that normal anatomy was fully restored. It is clear from the operation note that the adhesions encountered in the course of the procedure were not confined to the bladder adhesions which created difficulty at entry. Prior to separation of the adhesions involving the left adnexa and the uterus, the anatomy was abnormal. Each of the witnesses made the point that it was impossible to be certain on the basis of available information as to the spatial relationship, following separation of adhesions, between the left ureter and the ovarian blood vessels which were to be clamped and cut. However, for the reasons explained by Drs Brown, Parkin and Owen I am not satisfied on balance of probabilities that the pursuer has established that normal anatomy was fully restored and, in particular and crucially, that the distance between the left ureter and the left infundibulo-pelvic ligament following separation of adhesions was the "safe" margin of 1-2 centimetres that could be expected in a straightforward case.

[30] I therefore proceed to assess the issue of normal practice against a factual scenario in which separation of adhesions has been effected but where this has not had the effect of restoring the "normal" gap between the left ureter and the left infundibulo-pelvic ligament. I now have to address the conflicting evidence regarding positive identification of the ureter.

[31] At the core of the pursuer's case is the contention that the surgeons who carried out the operation were under a duty to satisfy themselves (i) that they had positively identified the left ureter by visualisation and/or palpation and (ii) that it was free from surrounding structures before proceeding to cut, clamp and suture the left infundibulo-pelvic ligament. In order to establish a breach of duty on the part of Dr Lennox and Dr Ikedionwu, it is therefore a necessary element of the pursuer's case to prove that they did not, as a matter of fact, positively identify the ureter. Dr Lennox agreed in his evidence to the court, firstly, that an attempt to identify the ureter by visualisation or palpation should have been made and, secondly, that with the benefit of hindsight the only explanation for what occurred was that the ureter had not been positively and correctly identified. I have little difficulty in accepting the second of these two matters of fact: if the left ureter had been positively and correctly identified then it is difficult to believe that it would have been closed by a suture. I would have more difficulty in making any finding as to whether or not an attempt was made to identify the ureter. Both surgeons said in evidence (although they had no recollection of this operation) that such an attempt would have been in accordance with their normal practice. There is no reference in the operation note to such an attempt being made but, echoing the remarks of Lord Maclean in Loughran v Lanarkshire Acute Hospitals NHS Trust 2000 Rep LR 58 and of Lord Reed in McConnell v Ayrshire and Arran Health Board 2001 Rep LR 85 at 86, I am not prepared to assume that an operation note, especially one written as long ago as 1995, contains a comprehensive record of events. Given that it was Dr Lennox's practice to proceed on the basis of confidence rather than certainty that the ureter was not involved in the tissue to be clamped, cut and sutured, it would not be inconsistent with this practice to proceed to clamp having made an unsuccessful attempt positively to identify the ureter.

[32] In the end, however, I do not consider that it is necessary to make a finding in fact one way or the other on whether an unsuccessful attempt was made. This is not, as it seems to me, the critical issue which divides the parties. The position of the pursuer, supported by Mr Milne and Dr Brown, is that ordinarily competent gynaecological practice required certainty - or (in Mr Milne's words) as near to certainty as one can humanly get - that the ureter was free from the tissues to be clamped. The position of the defenders, supported by Dr Parkin and Dr Owen, is that the ordinary practice of gynaecologists was to proceed on the basis of confidence, not certainty, that the ureter was not involved and that positive identification of the ureter was not always possible and in any event not always necessary. On the pursuer's evidence, the making of an unsuccessful attempt to identify would not absolve the defenders from liability if the surgeons proceeded to clamp without the requisite degree of certainty that there would be no damage to the ureter. On the defenders' evidence, the making of an unsuccessful attempt to identify would not prevent the surgeons from proceeding to clamp if they were nevertheless confident that the ureter was not involved. It is not suggested on behalf of the pursuer - nor could it have been, on the evidence - that Dr Lennox and Dr Ikedionwu proceeded to clamp, contrary to Dr Lennox's normal practice, without being confident that the uterus was not within or at least in dangerously close proximity to the tissue clamped. On the contrary, I find, on the basis of Dr Lennox's evidence as to his ordinary practice, that the clamping, cutting and suturing of the pursuer's left infundibulo-pelvic ligament proceeded on the basis of confidence but not certainty on the part of Dr Ikedionwu, as the surgeon carrying out the operation, and on the part of Dr Lennox, as the consultant supervising and directing the operation, that the left ureter was not within or in dangerously close proximity to the tissue clamped.

[33] I pause to summarise my findings thus far. By the time the clamp was applied to the pursuer's left infundibulo-pelvic ligament, the adhesions described in the operation note had been digitally separated but the anatomy had not been fully restored to normal. There was probably a reduced gap between the ligament and the ureter behind the peritoneum, increasing the risk of damage to the ureter if the ligament was clamped, cut or sutured. The surgeons carrying out the operation did not positively identify the ureter but proceeded to clamp on the basis of confidence that the ureter was not involved in tissue to be clamped, cut or sutured. To this scenario I must now apply the Hunter v Hanley test: was the course which Drs Lennox and Ikedionwu adopted one which no professional man of ordinary skill would have taken if he had been acting with ordinary care?

[34] I remind myself of the approach, set out in the passage from Honisz v Lothian Health Board quoted above, which I must adopt. Where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other, unless the court can be satisfied that the opinion of one of the schools cannot logically be supported at all. In the present case there is a body of expert opinion, represented by the evidence of Dr Parkin and Dr Owen, that the course adopted by Drs Lennox and Ikedionwu adopted was in accordance with the normal practice of ordinarily competent gynaecological surgeons. The fact that there is another body of expert opinion, represented by the evidence of Mr Milne and Dr Brown, that the practice adopted was not in accordance with normal practice does not entitle me to reject the school of thought represented by Dr Parkin and Dr Owen unless I consider that it cannot logically be supported. In my opinion there is ample logical support for the practice of proceeding on the basis of confidence rather than certainty, especially in circumstances where anatomy is not normal. As the expert witnesses explained, the risk of damage to the ureter by proceeding without certain identification must be balanced against the risk of damage to the ureter or to some other structure by the further surgical dissection which would be required in order to achieve certainty. Dr Owen described this as the horns of a dilemma: the situation where the ureter is most at risk is also the case where dissection to achieve certain identification is most likely to cause iatrogenic injury. As Dr Parkin put it, there was no alternative that was risk-free other than abandoning the operation and leaving the pursuer in pain. In such circumstances it does not seem to me to be an irrational or illogical practice for the surgeon to proceed on the basis that the need to be as confident as one can be must be balanced against the potential risk of injury by further surgical intervention. The present case seems to me to be a long way removed from the circumstances of Hucks v Cole in which Sachs LJ observed (p 399) that the defendant "... knowingly took an easily avoidable risk which elementary teaching had instructed him to avoid" and where the lacuna in professional practice was so unreasonable that it could not be relied upon to excuse the medical practitioner in an action for negligence.

[35] Lest there be any doubt, my acceptance of the defenders' evidence that there is a body of opinion which regards the practice adopted by Drs Lennox and Ikedionwu as being in accordance with ordinary practice does not mean that I reject the evidence of Mr Milne and Dr Brown that their practice and that of others is different. I have already commented upon the range of opinion among the witnesses in this case as to the practicability of positive identification of the ureter; I accept that there is also a range of opinion as to the need for positive identification - and hence a need to carry out whatever surgical steps, if any, as may be necessary to achieve it - before proceeding with the operation. But I am unable to hold on the basis of the whole evidence before me that the procedure which the defenders' witnesses describe as ordinary practice is so unreasonable that the fact that it is commonly adopted cannot be used to excuse it in an action for negligence.

[36] I therefore hold that the injury to the pursuer which occurred when her left ureter was ligated in the course of the clamping, cutting and suturing of the left infundibulo-pelvic ligament was not caused by negligence, measured according to the Hunter v Hanley test, of the surgeons who carried out the operation. The defenders accordingly fall to be assoilzied.

[37] I should note that in the course of her submissions on behalf of the pursuer, senior counsel referred me to three English cases concerning damage to ureters in the course of hysterectomy operations, namely Hendy v Milton Keynes Health Authority (No 2) [1992] 3 Med LR 119, Bouchta v Swindon Health Authority [1996] 7 Med LR 62 and Hooper v Young [1998] Lloyds Rep Med 61. I found these to be of interest but of limited assistance in reaching my decision, which obviously has to be based upon the evidence led before me and not upon evidence led in these cases or learned commentary accompanying the reports of them. None of the three was concerned with an issue of deviation from normal practice: in Hendy and in Bouchta the negligence consisted of want of proper technique with the appropriate practice not in dispute, and in Hooper the Court of Appeal reversed a finding of negligence on the ground that, on the evidence, the damage caused to the ureter by the placing of a stitch too close to it could have occurred without negligence. Ultimately the present case falls to be decided by the application of well-recognised principles to its own particular facts and circumstances.

Causation of loss and damage

[38] In the light of my decision on liability, it is perhaps not strictly necessary for me to address the issue of whether the losses which the pursuer claims to have sustained since 1995 were caused by the damage to her ureter in the course of the hysterectomy operation. Since, however, this issue occupied a substantial proportion of the proof, it is right that I should deal with it in my opinion.

Pursuer's employment and medical history

[39] At the time of the hysterectomy operation the pursuer was employed by the Royal Bank of Scotland, for whom she had worked since leaving school at age 16. She married her husband Philip (who gave evidence) in 1986. She was then working full time and was the main breadwinner in the family, earning more than her husband and qualifying for a number of valuable employee benefits including a mortgage at a reduced interest rate and life insurance. Having begun her bank career as a bank officer (working as a teller and on other duties) in a local branch in Wishaw, the pursuer had received training in Edinburgh and in 1986 had moved to the international banking division in Glasgow. Her job there appears to have consisted of administering transfers of funds in different currencies between corporate accounts in various countries, still at the grade of bank officer. Over the next four years she gained experience in that division and was on secondment to consumer finance in Edinburgh when she became pregnant with her first child, who was born in 1990. She applied for and was granted a five-year break under the bank's Career Break Scheme with a view to having her family and resuming full-time work at the end of the five-year period. During her career break she worked part-time, at her request, at branches of the bank in Hamilton which were nearer to home. By the time of the operation in 1995 she wished to return to full-time work and progress her career with the bank.

[40] The pursuer's pre-operative medical records contain a number of significant entries. It is relevant to note that the GP records disclose that the pursuer was a regular attender at the surgery both before and after the operation with which this action is concerned. In his written report, Mr Timothy Hargreave, a Consultant Urological Surgeon called by the pursuer and whose evidence I discuss below, stated that between October 1983 and December 1994 there are approximately 95 GP consultation notes, and in his oral evidence he observed that this was a pattern one sees with people who are very anxious about their health or who feel symptoms more keenly than others. Of possible relevance to the issue of causation are the following: symptoms of abdominal pain and increased bowel sounds in March 1989; two diagnoses of possible urinary tract infection in May 1990 (when the pursuer was pregnant) and June 1993; a finding of tenderness from the right iliac fossa to the right loin over the bladder in October 1991; symptoms of tenderness in the left iliac fossa and loin in November 1991; abdominal pain and tenderness in January 1993, March 1993 and April 1993; pyrexia, abdominal pain, dysuria and a finding of tender left iliac fossa in June 1993; tender abdomen especially while passing bowel motions and urination in August 1993; irritable bowel and tender abdomen in February 1994. I have already mentioned the abdominal pain later in 1994 which led to the hysterectomy operation.

[41] By the time of her readmission to hospital in May 1995 the pursuer was in what she described as extreme pain. The nephrostomy was a highly unpleasant experience and she was very anxious as investigations continued to identify what was wrong with her. Following the transuretero-ureterostomy operation she was discharged from hospital on 28 May.

[42] Mr Hargreave noted in his report that from June 1995 until February 2007 there are approximately 100 entries in the pursuer's GP consultation notes, and he set out at length those which relate to urinary problems. There are about 15 of these plus references to correspondence with Mr Smith and other specialists. It is unnecessary to set out here in full the entries identified by Mr Hargreave, although I refer to some of them below. In summary, they record the following symptoms and/or findings: diagnosis of right-sided urinary tract infection in November 1995; continuing abdominal pain, pyrexia etc in November 1995; issues with bladder control in April and June 1996; pain in the right iliac fossa, dysuria and pyrexia and a diagnosis of urinary tract infection in August 1996; emergency admission to hospital in August 1996 with left renal colic; re-admission to hospital in September 1996 with right iliac fossa pain; a diagnosis by Mr Smith of yoyo reflux (which I discuss below) in October 1997; abdominal pain at various dates in early 1998; loin pain, abdominal discomfort and urine in blood in February 2002; increased urinary incontinence in February 2007. In addition to these entries regarding urinary problems there are entries referring to irritable bowel syndrome and, between 1997 and 1999, depression.

[43] In her evidence to the court, the pursuer described her experience after the operations as follows. From 1995 she had five years of misery. She was very anxious about her health, especially the risk of damage to her kidneys by an infection. She attempted to return to work in 1996 but found herself unprepared for the challenge of coping with significant changes in banking practices which were then taking place. Utilisation of the skills which she had acquired prior to taking her career break would have required travel to a city, which she did not feel able to do. She regarded the opportunities available to her in the local branch as inadequate. Physically she was suffering from symptoms including irritable bowel syndrome. She was aware of her body and embarrassed by other people's awareness of it and by her need to remain in proximity to toilet facilities. Her abdominal pain persisted. In order to avoid urinary tract infections she took antibiotics on a long term basis whenever she felt that symptoms were about to begin. In June 1997 her employment was terminated by the bank. She accordingly lost her salary and the important employee benefits mentioned earlier. In 1997 she was diagnosed as suffering from depression.

[44] In 2001 the pursuer was referred by Dr Liddle to Modyrvale Medical Centre Counselling Service and she began a course of therapy which she considered to have been beneficial. This appears to have been something of a turning point for her. She developed a coping strategy and since February 2002 she has not required anti-depressant medication. In the course of the last ten years the pursuer's physical symptoms have also eased. In particular she is no longer troubled by symptoms that she would attribute to urinary tract infection. By about 2006 she felt she was in control of her physical issues and began more actively to seek to return to work. In 2007 she obtained employment with North Lanarkshire Council, initially as a classroom assistant to a group of PE teachers, which she found tiring. Two years later she was transferred by the Council to work in its Municipal Bank, a type of work which the pursuer finds suitable in view of her previous banking experience. However she finds it tiring to work for more than three days each week.

[45] The pursuer considers that if the hysterectomy operation had not resulted in damage to her ureter and the consequent need for further remedial surgery, she would have implemented her planned career with the Royal Bank of Scotland. She would have returned to full time working in 1996. At that time the bank was opening call centres and she had been asked if she was willing to move to Edinburgh to help to set one up. Another option would have been to return to the international division where she could have expected promotion. She would have had access to further employment benefits including a profit-sharing scheme and a company car. These opportunities, together with the benefits which she already had through her employment by the bank, were removed from her by the error made during the hysterectomy operation.

Causation issues
[46] There are two separate causation issues here which must be disentangled. The first is the extent to which the pursuer's ureteric damage has caused or materially contributed to symptoms which she has experienced since 1995. The second is the extent to which symptoms attributable to the ureteric damage, as opposed to symptoms not so attributable, have adversely affected the pursuer's everyday life, and in particular whether they caused her to be unable to work for many years after 1995. I address each of these in turn below. I begin, however, with some observations in relation to the expert evidence on this aspect of the case.

[47] I have already noted that evidence was led by the pursuer from Mr Hargreave, a retired Consultant Urological Surgeon who ceased clinical practice in 2008. Mr Hargreave was a consultant at the Western General Hospital, Edinburgh from 1978 until 2002. Since then his work has been principally with the World Health Organisation, Geneva, and, among other responsibilities, he trains surgical technicians to undertake male circumcision operations in high HIV prevalence African countries. He continues to provide medico-legal reports, and for the purposes of the present case he had two consultations with the pursuer in October 2008 and March 2011 and provided a consolidated report dated 3 October 2011. Expert evidence was led by the defenders from Mr Ian Conn who has held the post of Consultant Urologist at the Southern General Hospital, Glasgow since 1993. His sub-specialty interests include urinary tract reconstruction. He has not met the pursuer but provided a report dated 6 January 2012 based upon scrutiny of the pursuer's medical records. In addition there was the evidence of Mr Smith who, as previously mentioned, carried out the remedial operation in May 1995 and who resumed responsibility for the pursuer's care from August 1997 until about 2000. Mr Smith provided reports on the pursuer's condition and progress in 1997, 2000 and 2003. Not surprisingly, considerable weight was placed on the information contained in these contemporaneous reports by both Mr Hargreave and Mr Conn in the expression of their respective views. I am in no doubt whatever that all three urologists are eminently well qualified to provide expert opinion on the issues arising in this case. There are, however, certain significant differences of opinion as between Mr Hargreave and Mr Conn which I must address.

Attribution of the pursuer's symptoms to the ureteric damage
[48] It is not, ultimately, contended on behalf of the pursuer that all of the symptoms described in the foregoing paragraphs are directly attributable to the ureteric damage, although it is contended that some are indirectly attributable and therefore also caused by it for present purposes. I find it convenient to begin with two of the pursuer's complaints which I consider cannot be attributed to the ureteric damage.

[49] Irritable bowel syndrome. The pursuer's GP records include references to irritable bowel syndrome both before and after the 1995 operations. In this connection the pursuer also described grumblings and wind which caused her embarrassment. Somewhat greater detail regarding these symptoms is contained in a passage from Mr Smith's report of his consultation with the pursuer on 19 August 1997 which I set out below. Mr Smith did not regard the pursuer's bowel symptoms as having been caused by the damage to her ureter or by the remedial operation. There was no support for any such causal link in the evidence of Mr Hargreave or Mr Conn. It was suggested by counsel for the pursuer in submissions that the pursuer's irritable bowel syndrome could have been caused by anxiety which was in turn caused by the damage sustained during the operation. I find no support for this in the evidence of the urologists nor, indeed, in the evidence of Dr Livingston, Consultant Psychiatrist, whose view was that irritable bowel syndrome could be aggravated by mental health problems - or indeed vice versa - but who expressed no view as to whether or not this was so in the present case. I therefore hold, on balance of probabilities, that the pursuer's symptoms of irritable bowel syndrome, and her other bowel-related symptoms, are not causally linked, directly or indirectly, to the ureteric injury.

[50] Urinary incontinence. The pursuer's GP records contain references to problems with bladder control and in the report of his consultation with the pursuer on 30 October 2008 Mr Hargreaves narrates that she told him that she had had problems with continence of urine in the past. In her evidence to the court the pursuer stated, in the context of her attempt to return to work, that she was embarrassed by her incontinence. There was no support in the evidence of any of the consultant urologists for any causal link between the ureteric damage and the pursuer's incontinence problems. Mr Hargreave's view was that hysterectomy itself was associated with a worsening in continence status which may be due to pelvic floor weakness or bladder over-activity. In his report of the consultation on 3 March 2011, Mr Hargreave noted that since the previous consultation the pursuer had learned to do pelvic floor exercises and that incontinence was no longer a problem. I hold that the pursuer's symptoms of incontinence are not linked, directly or indirectly, to the ureteric injury. Mr Hargreave and Mr Conn agreed, however, that any incontinence problem would be likely to be aggravated by urinary infection which would cause increased urinary urgency.

[51] Abdominal pain and urinary tract infections. I now turn to address the symptoms whose causation is more contentious. The pursuer's GP records covering the three years or so after the 1995 operations contain frequent references to abdominal or loin pain, sometimes left-sided, sometimes right-sided and sometimes unspecified. In his report dated 19 August 1997, Mr Smith recorded her loin pain symptoms as follows:

"Mrs Hannigan has a number of current complaints. She has intermittent 'spasms' in the area of the right loin which may last for some 2-3 days. At times she feels discomfort in the left loin, both can be felt at the same time but not necessarily so. Pain relieving tablets and rest are sufficient to ease the discomfort."

In December 1997 Mr Smith recorded the pursuer's loin spasms as "intermittent and variable in length". In May 2000 he described her as still having these aches but much improved. When he saw her again in May 2003 she described right loin pain coming on every two months or so but with a background of constant awareness. At times she had spasms lower down which seemed to be triggered by emptying her bladder first thing in the morning. At her first consultation with Mr Hargreave in 2008, she told him that she experienced left sided cramping abdominal pain when she started to pass urine but that she had learned to control this by taking a deep breath and then gradually breathing out as she passed urine. By 2011 she told Mr Hargreave that she felt occasional right loin pain if for some reason she had to delay emptying her bladder, but had learned to cope with this and to use abdominal pressure to ensure bladder emptying. Mr Hargreave described her pains as being of minor severity and not causing the pursuer a significant problem any longer. In her evidence to the court the pursuer confirmed that she has suffered abdominal pain since the operations but that this has now reduced and no longer worries her. She has always been more worried about infection and the risk of loss of one or both of her kidneys.

[52] There are occasional references in the pursuer's GP notes to "UTI", ie urinary tract infection, but never as a firm diagnosis, and usually without specification of the symptoms on the basis of which such a provisional diagnosis has been made. On each occasion when a sample of urine was sent for growth of bacterial culture, negative results came back. When the pursuer was admitted to Law Hospital as an emergency on 8 August 1996, at which time Dr Liddle had made a reference in her notes to urinary tract infection, the diagnosis by the consultant at the hospital was "UTI unlikely ??adhesions". In his report dated 19 August 1997, Mr Smith noted:

"She complains of discomfort, particularly first thing in the morning when emptying the bladder, not burning, more of an ache. Although it had been thought that she might have had urinary tract infections, it is my information that there has been no positive culture of bacteria from the urine, specifically in September 1995, November 1995, August 1996 and on 12 July 1997. She has however been on a low dose of antibiotic on a daily basis since mid-1995, the purpose of which is to prevent the development of infection in the urine. This is a well tried and proved method of managing patients who have recurrent urinary tract infections."

The pursuer herself when giving evidence stated that she made sure that she did not get urinary tract infections because she was afraid of kidney failure. She has for many years taken precautionary measures, including antibiotics and fluids.

[53] In September 1997, Mr Smith identified reflux of urine, particularly from the left ureter up towards the right kidney, as a possible cause of the pursuer's abdominal pain. In order to investigate whether this was occurring, he instructed the carrying out of a retrograde ureterogram. It is worth quoting Mr Smith's theatre note of 10 October 1997 at some length:

"A catheter was able to pass into the right ureteric orifice and up the right ureter. It was initially sited below the point of the ureteric anastomosis and dye was passed retrograde. It passed with ease up the right ureter and also into the left ureter the junction at level of sacroiliac joint. Dye in distal ureter drained freely into the bladder. The catheter was then advanced past the anastomosis with ease. The upper ureter was filled and the catheter again removed. On screening it was evident that initially some dye reflux from the right ureter into the left ureter and drainage was inefficient with peristalsis occurring but not that much dye draining into the distal right ureter. At times both left and right ureters were dilated at the same time, suggestive that yo-yo reflux if it occurs, is not very significant because there was no clear pattern of one ureter emptying into the other. There is however delay in draining both ureters, the delay being at the point of anastomosis, and it is assumed therefore there is a mild narrowing..."

The term "yo-yo reflux" describes a situation in which at the anastomosis urine passing down one ureter initially passes some way up the other ureter instead of draining distally. This can occur because peristalsis operates in each ureter independently of the other, and when muscular contractions in one ureter bring urine to the anastomosis, further drainage may be delayed by the presence of urine delivered by peristalsis of the other ureter.

[54] There was much discussion during the proof as to whether it had been demonstrated, by the 1997 investigation or otherwise, that yo-yo reflux was occurring in the pursuer's urinary system. As the above theatre note indicates, Mr Smith considered that he had observed it and, despite having expressed reservations in a letter dated 5 February 1998 to Dr Liddle as to the reliability of this conclusion based on the test carried out, he reiterated this view in his evidence to the court. However he found it difficult to understand how it could contribute to the pursuer's symptoms. Mr Conn stated in his written report that it was impossible to say whether the pursuer had yo-yo reflux, but in his evidence to the court he accepted that because there was no valve at the anastomosis, there would almost certainly be yo-yo reflux. He did not, however, consider that a mechanism had been demonstrated which would cause the pursuer's abdominal pain. Mr Hargreave considered that the existence of yo-yo reflux had been proved, although in his oral evidence he stated that he preferred to call it "incomplete emptying of the upper urinary tract", and that there was a causal link to the pursuer's pain, as follows. As the urine goes up either of the ureters it creates pressure at the kidney outlet, causing intermittent minor pain. When the bladder is full, additional pressure is needed to push urine into it. This would tend to aggravate the situation above the anastomosis and would explain the occurrence of increased pain first thing in the morning and at other times when the pursuer's bladder was full. It would also explain why pain could occur on either the left or right side.

[55] Mr Hargreave went on to express the opinion that a further consequence of incomplete emptying of the upper urinary tract was an increased risk of urinary infection. If more than 30 ml of urine remained in the urinary system, the rate of bacterial growth would exceed the rate at which it could be expelled. This would explain why the pursuer had suffered from symptoms indicative of urinary tract infection. In recent years, she had learned a method of expelling this residual urine from her system by taking a deep breath and pushing as she passed urine. This explained why the incidence of urinary tract infection had reduced virtually to nothing during the period between her two consultations with Mr Hargreave in 2008 and 2011. Mr Hargreave acknowledged that none of the urine samples taken from the pursuer on various occasions over a period of years had produced a bacterial culture, but this could have been because she took prophylactic antibiotics as soon as she felt symptoms of urinary tract infection beginning.

[56] Mr Conn did not accept that the mechanism described by Mr Hargreave would produce pain. The flaw in the theory was that peristalsis is a continuous process which does not only operate when the bladder is full. This meant that if the theory was correct the pain experienced by the pursuer would be continuous and not intermittent. Yo-yo reflux would only cause pain if there was a blockage in the distal ureter, which there was not. So far as urinary tract infection was concerned, Mr Conn considered that there was no evidence of infection. No culture had been grown. Although this could possibly be explained by the antibiotics which the pursuer was taking, other tests had also proved clear. Mr Conn's conclusion was that the pursuer's symptoms which had been attributed to urinary tract infections were in fact attributable to something else. Moreover, even if the pursuer had suffered urinary tract infections, he did not consider that it had been proved that these resulted from the need for the transuretero-ureterostomy operation. The figure of 30 ml mentioned by Mr Hargreave was arbitrary and unsupported by literature. There was no reason why urine in the upper urinary tract due to an obstruction should become infected and, if it did, antibiotics would not clear it up.

[57] I should deal at this point with an objection made by senior counsel for the pursuer to evidence given by Mr Conn. In the course of his evidence in chief, Mr Conn expressed the opinion that the most likely cause of the pursuer's abdominal pain was intra-abdominal adhesions as yet undiagnosed and investigated. This evidence was objected to on the ground that there was no record for it and that it had not been put to Mr Hargreave. After hearing argument I allowed it subject to competency and relevancy. Mr Conn was giving his evidence on the last of the days set down for the proof in February and I granted a motion to adjourn the case after he completed his evidence in chief in order to allow time for preparation of cross-examination. When the proof resumed in June, senior counsel for the defender indicated that he did not intend to found on Mr Conn's suggestion of intra-abdominal adhesions as the cause of the pursuer's abdominal pain but would be relying on Mr Conn's evidence simply as the basis of his submission that the court should reject Mr Hargreave's explanation of the cause. Despite receiving this indication, senior counsel for the pursuer proceeded to cross-examine Mr Conn on his adhesions suggestion. Given that this was little more than an alternative theory proposed by Mr Conn without the benefit of investigation and not a firm diagnosis, I do not intend to attach any weight to it. I shall instead restrict myself to considering the experts' competing views regarding the mechanism propounded by Mr Hargreave.

[58] I remind myself that in reaching a view as to whether to prefer the evidence of Mr Hargreave or of Mr Conn, I should apply the usual civil standard of balance of probabilities. In this regard I bear in mind the observations of Lord Hope of Craighead in Dingley v Chief Constable, Strathclyde Police 2000 SC (HL) 77 at 89:

"The function of the judge in a civil case is to decide where the truth lies or whether the case has been made out, on a balance of probabilities. One cannot entirely discount the risk that, by immersing himself in every detail and by looking deeply into the minds of the experts, a judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved - instead of assessing, as a judge must do, where the balance of probabilities lies on a review of the whole of the evidence."

Approaching the matter with these observations in mind, I have concluded, as regards the pursuer's abdominal pain, that I should prefer the opinion of Mr Hargreave. My impression was that in his assessment of whether Mr Hargreave's explanation for the pursuer's abdominal pain was sound, Mr Conn was applying a somewhat higher test more akin to the standard he would apply if making a diagnosis. In my opinion, the mechanism described by Mr Hargreave was consistent with the pursuer's account of experiencing pain predominantly when she had a full bladder, and consistent also with intermittent pain on both sides of the abdomen. It explains why the level of pain or discomfort experienced by the pursuer has diminished as she has learned appropriate voiding techniques. I consider that, despite his assertion to the contrary, Mr Conn was disadvantaged by not having had an opportunity to meet the pursuer and obtain first-hand information from her regarding her urinary problems and coping strategies. I bear in mind that the pursuer had suffered from abdominal or loin pains from time to time prior to 1995, but I hold, on balance of probabilities, that the left and right abdominal or loin pains which she has suffered since 1995 have been predominantly attributable to the ureteric injury and repair. I do not go so far as to say that all of the pursuer's abdominal pain since 1995 is so attributable: Mr Hargreave attributes only "a significant element" of her post-operative abdominal pain to yo-yo reflux, and I do not consider that there is evidence that would entitle me to go beyond that formulation.

[59] I am not, however, satisfied on balance of probabilities that the pursuer has suffered urinary tract infections which can be attributed to the ureteric injury and repair. I regard it as of significance that no bacterial culture has ever been produced from the pursuer's samples and that other tests have similarly proved negative. Provisional diagnoses of urinary tract infection in the GP notes have not been confirmed by further investigation. I do not feel able to make any finding as to whether the absence of any evidence of infection is attributable wholly or partly to the pursuer's own preventative measures, but for whatever reason I hold that it has not been proved, on balance of probabilities, that she has to any material extent suffered symptoms correctly diagnosed as caused by urinary tract infection since the remedial operation in 1995.

[60] Renal function. As Mr Hargreave explained in his written report, each kidney normally contributes half of total function. In the case of the pursuer her left kidney contributes around 39-40% of the total function. Mr Hargreave and Mr Conn both described this as a slight deterioration in the functioning of the left kidney, and both considered that this was mostly attributable to the blockage of the left ureter for several weeks in April/May 1995, although it could also have been contributed to by childhood infective injury. Perhaps more importantly, Mr Hargreave and Mr Conn agreed that the pursuer's renal function is now stable and that it is unlikely that she will have any future impairment of renal function. There is no doubt that at least during the three years or so following the 1995 operations the pursuer was very anxious indeed about the possibility of future kidney failure. This is exemplified by an entry in her GP records dated 11 October 1995 (ie only five months after the remedial operation and before any entries indicating abdominal pain, urinary infection or any of the other symptoms that I am discussing) which states

"Kidney scan suggests poor function + scarring. Discussed possibilities. Advised her to take antibiotics prophylactically... Agreed that she might require early retirement."

Dr Liddle explained this conversation as having been an opportunity for the pursuer to talk to someone about the future and to express her fears. Whilst I regard the pursuer's concern regarding kidney failure as entirely understandable, I can identify no occasion upon which she was given anything other than reassurance that no further impairment of renal function was likely.

[61] Sexual function. The pursuer was not asked any questions about adverse effects of the aftermath of the ureteric damage on her sexual function, although it is mentioned in the submissions on her behalf as an element of the loss and damage claimed to have been sustained. She did mention to Mr Hargreave in 2008 that sexual activity with her husband did not resume until some time after the 1995 operations and that she was unable to tolerate sexual intercourse in a particular position. By 2011 she reported only minor disturbance of normal sexual activity. Mr Hargreave's opinion was that although in the early years following her operation there may have been a variety of factors contributing to sexual discomfort, the most significant one, and the only one now, is the vertical abdominal wound that was made to explore the blocked ureter. In the absence of any evidence to the contrary I find that such interference as there has been with the pursuer's sexual activity has been largely caused by the remedial operation necessitated by the ureteric injury.

[62] Tiredness. There are references to complaints of tiredness in the pursuer's GP records both before and after 1995. In August 1997 Mr Smith noted the pursuer's complaint of "feeling tired all the time". He did not attribute this directly to the ureteric injury and repair but regarded it as "a very non-specific feeling which accompanies many illnesses". When she met Mr Hargreave in 2008, the pursuer continued to complain of general tiredness. Mr Hargreave's view was that there was no direct relationship between the pursuer's tiredness and the injury to the ureter, except as regards the first few post-operative months during which tiredness is a consequence of the healing process. He suggested that the most likely cause of subsequent tiredness was worry and depression and the need to try to help with a young family but observed that he was not the appropriate expert to give an opinion on psychological matters. In his oral evidence he estimated that following the operations undergone by the pursuer it would take up to a year to return to full physical function. On the basis of this evidence I find that tiredness experienced by the pursuer during the year following the remedial operation is partly attributable to it and partly to the hysterectomy operation itself, but that thereafter there is no causal link between the ureteric damage and repair and the pursuer's tiredness except in so far as it constituted a component of her depressive symptoms, to which I now turn.

[63] Depression. The first reference to "early depression" in the pursuer's GP records is in February 2007. There are further references in December 1997, June 1999, December 1999, November 2000 and September 2001 before the pursuer was referred for counselling in October 2001. According to the pursuer her depression probably began when she was not getting better after the operations. She was dealing with a lot of health issues and financial issues and so mental health was pushed to one side. After five years she began taking small steps towards recovery.

[64] Evidence was led on behalf of the pursuer from Dr Martin Livingston, Consultant Psychiatrist. Dr Livingston prepared two reports, the first (dated 29 June 2011) after a consultation with the pursuer, and the second (dated 11 November 2011) after sight of her GP records. On the basis of his meeting with the pursuer, Dr Livingston expressed the opinion that she suffered clinically significant mental health problems during a five year period following surgery in April 1995. Her depressive symptoms included depressed mood, impaired concentration and fatigue, sleep dysfunction, marked weight gain due to comfort eating, loss of libido and loss of interest and pleasure in previously enjoyed activities, together with social withdrawal. During this period she would have fulfilled the diagnostic criteria for a moderately severe major depressive episode in terms of DSM IV. She also has anxiety-based symptoms including a fear of medical procedures, inability to trust doctors and other figures perceived to be in authority and anxiety when she feels that she is not in control of the situation. These symptoms fulfil the diagnostic criteria for a chronic adjustment disorder which persists until the present time. She was unfit for work until about 2006, her poor mental health being a significant contributor to that impairment. After review of the pursuer's GP records, Dr Livingston revised his opinion by postponing the likely time of onset of depression to February 1997. In a letter to the pursuer's agents dated 20 January 2012, Dr Livingston reiterated his view that she was unfit for work until about 2006 and that adjustment disorder was having a minor impact on her work capacity, the main impact being from her physical health. In the course of his oral evidence, Dr Livingston accepted that the pursuer's depression could have been caused by multiple factors, including the failure to obtain the hoped-for pain relief from the hysterectomy operation, and the loss of her employment, but considered that her depressive episode was mostly linked to her abdominal surgery and subsequent physical symptoms.

[65] It is not disputed by the defenders that the pursuer suffered from a depressive illness between 1997 and 2001. However, it was submitted that the evidence of Dr Livingston did not provide a sufficient basis for a conclusion that the ureteric injury was responsible for the pursuer's mental condition or that depression affected her ability to work.

[66] It is noteworthy that Dr Livingston does not in either of his reports express any opinion as to the causative factors underlying the pursuer's depressive symptoms. This is unsurprising given that he did not meet the pursuer until about ten years after the symptoms had resolved. He observed in the course of re-examination that there is no objective means of quantifying the contributors to mental illness. It is apparent even from the pursuer's own evidence that not all of the factors which she identifies as contributing to her mental condition can properly be attributed to the ureteric damage and its aftermath. However, I reject the defenders' contention that it has not been demonstrated that her depression has, at least to some extent, been caused by the sequelae of the ureteric damage. In my opinion the effects of the ureteric injury and repair have made a material contribution to the pursuer's depression and so the causal connection is established (cf Simmons v British Steel plc 2004 SC (HL) 94, Lord Hope of Craighead at paras 25-27; others concurring). I also accept that to the extent that the pursuer has suffered and continues to suffer from adjustment disorder, this is attributable to the occurrence of the ureteric damage. I address below the separate question of whether her depression has in turn affected her ability to work.

[67] Summary. Summarising my findings regarding the attribution of symptoms to the ureteric damage and repair, I find it to have been proved, on balance of probabilities, that there is a direct or indirect causal link with the following:

·        a significant part of the left and right sided abdominal pain throughout the period from 1995 to date;

·        deterioration in function of left kidney (asymptomatic and not likely to increase);

·        some sexual discomfort;

·        part of tiredness during the year after the 1995 operations

·        depression between 1997 and 2001 (partly attributable only);

·        adjustment disorder continuing to date.

I find it not to have been proved, on balance of probabilities, that there is a direct or indirect causal link with the following:

·        irritable bowel syndrome and physical manifestations thereof;

·        urinary incontinence

·        the remainder of the pursuer's abdominal pain;

Effects of symptoms attributable to ureteric damage

[68] I turn now to the second branch of the causation issue, namely the extent to which the pursuer has sustained loss and damage as a consequence of the symptoms and other effects which I have held to be attributable to the ureteric injury and repair. Clearly the pursuer has sustained personal injury which would, had I made a finding of negligence, be compensated by an award of solatium. I discuss quantification of solatium below. She would be entitled to awards for services under sections 8 and 9 of the Administration of Justice Act 1982, the quantification of which is also discussed below. It is not disputed by the defenders that these claims were in principle made out, although quantification is contentious. The real issue on this aspect of causation is whether the pursuer has proved that the ureteric damage resulted in inability to work and in particular that it caused the loss of her employment with the Royal Bank of Scotland.

[69] I have set out above the pursuer's evidence regarding her career with the bank prior to 1995, the reasons why her attempt to return to work in 1996 was unsuccessful and the termination of her employment in 1997. In view of the passage of time since these events it is appropriate to test the reliability of her evidence against that of other witnesses and against contemporaneous material. Dr Liddle's view was that the pursuer's concern regarding her ability to return to work was cause by worries regarding her bodily functions: that is, her urinary and bowel symptoms. No witness from the bank gave evidence but contemporaneous correspondence indicates that due to the length of her absence from work the pursuer's salary was reduced to half in April 1996 and then reduced to zero in December 1996. On 26 June 1997, following a meeting at the pursuer's home, a human resources officer wrote to the pursuer as follows:

"During the meeting we discussed the latest Medical Report prepared by the Bank's Medical Adviser and I confirmed that this did not support your retirement from the Bank on the grounds of ill health. Both John and myself explored ways of assisting you in returning to work, including a gradual return, but you advised that at the present time you do not feel fit to return. You expressed your surprise at the report from Mr Mom, but given the length of your absence and taking into account Medical Reports, the decision has been taken based on the information currently available to the Bank.

Taking the above into account I now confirm that the Bank has no alternative but to terminate your employment on the grounds that you are unable to fulfil the role for which you are employed..."

Writing shortly afterwards in August 1997, Mr Smith narrated what the pursuer had told him as follows:

"Mrs Hannigan held the job of clerk with the Royal Bank of Scotland. She is aware that the duties on which she is employed have changed since she had her surgery in April 1995 and that employees are required to take on a much broader and more flexible range of duties which are much more customer orientated. She described this as a 'salesperson' and also as 'retail banking'. Desk jobs are no longer possible. For a full time post she would be expected to stay 2 extra evenings per week which would be part of the hours for which she would be employed, although she felt that all employees were expected to put in extra hours unpaid. Even if she was to carry out a part-time post, she felt that she would be expected to do evening work and do a bit extra as well.

She found that she could not cope when she had tried to return, partly because she is uncertain when she is going to develop loin spasm, and partly because of what she perceives as anti-social effects of bowel rumbles, the noisy passage of flatus which she cannot control and its odour. If she had the opportunity of working in her own office with a toilet close beside, she felt that she probably could cope as she would be much more in control of her bodily functions without the risk of embarrassing others."

Mr Smith expressed the opinion that the pursuer would not find it possible to return to the type of job that had now evolved in the bank, but noted that this was partly unrelated to the ureteric injury.

[70] It may be noted that the pursuer's perception that during 1995-96 there had been "massive changes" in the bank which made it difficult for her to keep up with developments in the nature of work at branch level does not sit easily with the opinion of Mr Keith Carter, an employment consultant who gave evidence on behalf of the pursuer. According to Mr Carter, the pursuer when choosing to resume full-time employment would have been doing so with current banking knowledge and without having lost relevant skills during her lengthy absence from work.

[71] When asked in cross-examination whether she had attempted to find another job following the termination of her employment by the bank, the pursuer stated that this was never discussed because her GP had said that she was unfit for any job.

[72] I have no difficulty in finding the pursuer to be a credible witness in relation to her career plan. I accept in particular that when she took her career break it was her intention to return to full-time work as soon as possible after the end of the five-year break, and that that was still her intention at the time when she decided to undergo the hysterectomy operation, although on the basis of Mr Hargreave's evidence as to the time required to recover from a major operation, and having regard to the pursuer's sensitivity concerning health issues, I consider that even if nothing had gone wrong it is unlikely that she would have returned even to part-time work much before the end of 1995. With regard to her attempt to return to work in 1996, my conclusions, based on the evidence summarised above are as follows. In relation to the type of work offered to her by the bank, her primary worries concerned her bowel and urinary incontinence problems. She lacked confidence to take on duties which required her to spend time dealing directly with customers, as she was embarrassed regarding her bodily functions and also uncertain as to when she might experience a spasm of abdominal pain. My impression - in agreement with that of Mr Peter Davies, an employment consultant who gave evidence on behalf of the defenders - was that the pursuer's pre-career break job in international banking had been of the nature of back office banking work, and that it was to this type of work that she wished to return as it would allow her to work at a location convenient to toilet facilities and without the worry of something unpleasant occurring when she was with a customer. It appears that this type of work was not available to her locally and that because of her bowel and incontinence problems she was unwilling or unable to commit herself to travelling to city-based work. It seems clear from the letter from the bank which I quoted above that the bank was willing to be flexible in assisting the pursuer to return to work, and that in the end it was the pursuer, acting in accordance with the advice of Dr Liddle, who decided that she was not fit to return to work.

[73] On the basis of the evidence of the pursuer and Dr Liddle, and the contemporaneous opinion expressed by Mr Smith, I accept that at the time when her employment was terminated by the bank in 1997, the pursuer was not physically and psychologically capable of resuming work. Whether a different person with a lesser degree of what Dr Liddle described as "hyper-vigilance" regarding her symptoms would have found it possible to return to work seems to me to be beside the point. Critically, however, I do not accept that the causes of her inability to return to work can be attributed to any material extent to the ureteric injury and repair operation. Her concerns, as regards the work which she says was offered to her, related principally to symptoms of irritable bowel syndrome - and its physical manifestations as described by Mr Smith - and to urinary incontinence. None of these symptoms has a causal link back to the ureteric damage and repair. I accept that the pursuer's abdominal pain (a significant part of which I have found to have had such a causal link) was a factor that contributed to her inability to return to work, in that it too caused her worry regarding her ability to work in a customer-oriented setting, but I do not consider, on the evidence as a whole, that it was a factor of the same significance as the others I have mentioned. I am clearly of the view that the pursuer has not proved, on balance of probabilities, that if one were to strip out the factors not attributable to the ureteric injury, leaving only the symptoms which I have listed above as attributable in whole or in part to the ureteric injury, she would have been physically or psychologically unfit to return to work with the bank in 1996 or 1997 or to seek alternative work at any subsequent time. Nor, in my opinion, was there evidence which would entitle me to find that the pursuer's depressive illness was a causative factor as regards her inability to return to work: if anything, the causal link seems to have operated the other way round. In so far as the pursuer may have had an inclination to attribute to the ureteric injury and repair all of the factors which rendered her incapable of returning to work before the termination of her employment with the bank, or of seeking alternative work following such termination, I consider that inclination to have been misconceived.

[74] For these reasons I hold that the losses of bank earnings and pension which have been sustained by the pursuer as a consequence of the termination of her employment by the bank in 1997 have not been caused by the ureteric injury and its aftermath. That being so it is unnecessary for me to address the evidence of Mr Carter and Mr Davies respectively regarding the pursuer's likely career pattern had she remained employed by the bank.

Quantification

[75] For the sake of completeness I give my opinion on quantification of the pursuer's claim on the hypothesis that I found negligence to have been established, but held (as I have done) that the pursuer's loss of bank earnings and pension was not caused by such negligence.

[76] Solatium. I assess solatium on the basis that the pursuer has sustained the following injury and damage: (i) pain during the period prior to the repair operation; (ii) the nephrostomy operation which preceded the repair operation; (iii) the repair operation itself and pain in the immediate aftermath; (iv) tiredness during recovery from the repair operation; (v) the major part of the left and right abdominal pain suffered by the pursuer since 1995; (vi) anxiety during the period following the operation regarding future loss of kidney function; (vii) sexual discomfort; (viii) moderately severe depressive illness between 1997 and 2001; and (ix) adjustment disorder continuing to date. As counsel for both parties recognised in their submissions, the circumstances of this case are such that it is difficult to find guidance either in the Judicial Studies Board Guidelines or in previous reported cases. On behalf of the pursuer a figure of £45,000 was sought, on the basis that the pursuer sustained injury and damage largely as I have just set out, except that the pursuer's assessment includes urinary tract infections and depressive symptoms from the date of the injury. Reference was made to chapters 3(A)(b) and 5(J)(b) of the Guidelines and to cases including Bouchta v Swindon Health Authority (above), George v Tower Hamlets Health Authority 1996 (Kemp & Kemp para K10-002), Young v The Post Office 2001 (Kemp & Kemp para C1-013, and, as regards psychiatric injury, Cowley v Mersey Regional Ambulance Service NHS Trust 2001 (Kemp & Kemp para C1-015). On behalf of the defenders a figure of £10,000 was proposed on the basis that the attributable injury and damage consisted of an unnecessary operation, around a year of tiredness thereafter, and pain during the period prior to and immediately after the repair operation, with the addition of a further £10,000 if a causal connection to the pursuer's depression was found to be established. In my opinion the figure proposed by the pursuer more closely reflects the level of injury and damage sustained in the present case. However, taking account of the fact that the pursuer's depressive symptoms resolved in the comparatively short time of about four years, I would have regarded £40,000 as an appropriate award for solatium. In the peculiar situation of assessing damages 17 years after the injurious event occurred, I would have attributed the whole of this figure to the past and awarded interest at 4% on it.

[77] Services. The pursuer has a claim under section 8 of the 1982 Act in respect of:

·        household services such as cooking and cleaning rendered by her mother who came to stay for two weeks following the pursuers' discharge from hospital and continued to assist for around six months;

·        childcare services provided by the pursuer's parents, sister and husband.

She has a claim under section 9 in respect of:

·        household tasks, including management of family finances, which she had previously undertaken and which now had to be done by her husband;

·        household services previously provided to her mother.

On behalf of the pursuer it was proposed, on a broad brush approach, that she should be awarded £2,500 under section 8 and £7,500 under section 9, inclusive of interest. This would equate to approximately 10 hours per week for 51/2 years. On behalf of the defenders it was submitted that a total figure of £1,000, inclusive of interest, would be appropriate to cover both section 8 and 9 claims. In my opinion the pursuer's calculation overstates both the number of hours per week and the number of years with regard to both claims, but the defenders' figure is too low. I consider that awards of £1,500 under section 8 and £4,500 under section 9, both inclusive of interest, would have been appropriate.

[78] In the light of my findings in relation to causation, the pursuer's claims for past and future wage loss, loss of employability and pension loss do not arise.

Disposal

[79] I shall repel the pleas-in-law for the pursuer, sustain the third plea-in-law for the defender and grant decree of absolvitor. All questions of expenses are reserved.