Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 132

A294/07

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

DARREN CONQUER

Pursuer;

against

LOTHIAN HEALTH BOARD

Defender:

Pursuer:  Smith QC;  Campbell Smith WS LLP

Defender:  Stephenson QC;  Central Legal Office

26 August 2014

[1]        On 30 July 2003 the pursuer Darren Conquer was injured playing football.  He was in goal and hyperextended his right elbow saving a shot at goal.  The ball struck his right arm and biceps.  He landed with his right arm straight out.  He felt pain in his biceps muscle and round the elbow.  His arm went into spasm and his fist clawed.  Later that day he attended Edinburgh Royal Infirmary. 

[2]        He alleges that the defenders who operate the hospital and their employees were negligent in their treatment of him.  The case came before me on the procedure roll on the defender’s preliminary pleas.  Two grounds of fault are alleged.  The defenders argued that the pleadings in support of both grounds were irrelevant and lacking in specification.  Having heard counsel I made avizandum.  Subsequently the pursuer sought and was given leave to lodge a minute of amendment.  That was answered and in due course the record was amended in terms of the minute of amendment and answers.  I put the case out by order on 24 June 2014 when I was informed that the defenders now accept that one of the cases of fault relating to the alleged negligence of a consultant orthopaedic surgeon, Miss McQueen, was now sufficiently averred to allow a proof before answer on that ground.  However they maintain that the other ground of fault should not be admitted to probation.

[3]        The pursuer’s case which is still in contention is to the following effect.  Sometime between 23 February and 19 May 2004 an MRI scan was carried out.  This revealed a complete tear of the distal biceps tendon with retraction of the belly of the muscle.  Such an injury requires to be surgically repaired within 4 to 6 weeks of having been sustained.  If it is repaired within that period then it is more likely than not that that there will be a full restoration of function or at least a substantial restoration of function.  It was not repaired within that time frame and it is averred that he has not enjoyed a full restoration of function. 

[4]        The pursuer avers that there were two occasions within the window of four to six weeks when imaging was requested by medical staff.  On attending the A and E department the pursuer was examined by an orthopaedic registrar, Dr Robertson and admitted to hospital.  On 31 July he was examined by Professor Court-Brown, a consultant orthopaedic surgeon who recommended that the pursuer should have an ultrasound scan to assist with the diagnosis.  A scan was arranged for 11 am the following day but it was not carried out.  The pursuer avers that had it been carried out it was probable that it would have revealed that the cause of the pain that the pursuer was experiencing was a complete tear of the distal biceps tendon with retraction of the belly of the muscle. 

[5]        The second occasion occurred following a review of the pursuer on 12 August 2003.  On that occasion a specialist trainee in orthopaedics (it appears from other pleadings that this was a Dr Reid) noted that the symptoms were “in keeping with a biceps tendon rupture”.  He directed that there be “an ultrasound of the biceps tendon for two days from now and should have a diagnosis at that time.” Again it is averred that this would have diagnosed the tear in the distal biceps tendon.  The pursuer avers, “The ultrasound ordered by Dr Reid was not in fact carried out.”

[6]        The averments of fault so far as relevant are as follows:

“Separatim, the loss, injury and damage suffered by the pursuer was caused by the fault and negligence of employees of the defenders whose identity is unknown to the pursuer, for failing to carry out the requests by the doctors who requested scans to be carried out as averred.  It was the duty of the staff employees to carry out such investigations and to report back to the Doctors.  If the request for such scans had been countermanded by a doctor (and due to the absence of medical records on the issue the pursuer is unaware of the reason for failure to carry out that request), that change of position is one which would fall below the standard of care to be expected of any doctor of ordinary skill in the exercise of reasonable care.  Had the requested scans or either of them been carried out as required by the said doctors, the correct diagnosis would have been confirmed and the pursuer would successfully have been treated.  In each and all of these duties, those for whose acts and omissions the defenders are vicariously liable failed and by their failure caused the pursuer to suffer loss, injury and damage.”

Submissions for defenders

[7]        Mr Stephenson for the defenders submitted that the pursuer had not made out a relevant case of fault.  It was not sufficient to aver facts from which the pursuer may succeed; it was important for the pursuer to set out the facts upon which the pursuer aimed to succeed so that the defenders could have notice of case against them and the facts upon which these are founded.  If the averments were insufficient the court’s duty was to dismiss the action; Morrison v Rendall, 1986 SC 69, per Lord Robertson at p78; Slessor v Vetco Gray UK Limited & Ors [2007]  RepLR 83, per Lord Emslie at paragraph 20; Jamieson v Jamieson 1952 SC(HL) 44, per Normand LP at pp 49,50 and Lord Reid at p 63.  Mr Stephenson referred me to Miller v The South of Scotland Electricity Board 1958 SC(HL) 20 and to Mitchell v Glasgow City Council 2009 SC(HL) 21 per Lord Hope of Craighead at p 42.  He accepted that in claims for damages for alleged negligence it would only be in rare and exceptional circumstances that an action could be disposed of on relevancy.  However he maintained that this did not detract from the rules to protect defenders from misconceived cases.  The pursuer had to aver a negligent act, loss, injury and damage and that the act caused the loss; Kyle v P&J Stormonth Darling WS 1992 SC 57, per Lord McCluskey p 67.

[8]        When dealing with cases of professional negligence, in particular by medical professionals the common law required 3 facts to be established; Hunter v Hanley 1955 SC 200, per Clyde LP at p 206, Lamb v Wray, Edinburgh Sheriff Court per Sheriff K Mackie, at paragraph 17.  Finally he reminded me that the pursuer would not be entitled to establish a case of which there had not been fair notice; Morrison’s Associated Companies Limited v James Rome & Sons Ltd 1964 SC 160, per Clyde LP at pp 182 -183, Lord Guthrie p 190 and Lord Migdale p 184.

[9]        So far as the averments of fact were concerned the pursuer did not say that he was suffering from a complete tear of the biceps tendon when seen by Dr Robertson.  The defenders had put at issue the nature of Dr Robertson’s diagnosis in their answers.  It was not suggested that the pain he was suffering was suggestive of such a diagnosis.  Crucially Professor Court-Brown had not requested an ultrasound but had recommended that course of action; he suspected a haematoma or other soft injury.  This was inconsistent with the belief that it was a tear of the distal biceps tendon.  The purpose in recommending the ultrasound was important for judging any subsequent decision to rescind the recommendation.  There was no suggestion that a tear of the distal biceps tendon was a probable or possible diagnosis. 

[10]      The pursuer averred that on 12 August Dr Reid had made a diagnosis of a possible biceps tendon rupture.  This was the first time that such a diagnosis had been made.  Dr Reid had directed that there should be an “ultrasound of the biceps tendon for two days from now and should have a diagnosis at that time.”  Mr Stephenson said that the use of the word “directed” was wrong.  He referred me to the answers where the defenders admit that there was such a request.  It was addressed to Dr Ian Beggs, Consultant Radiologist.  No averment of fault was directed against him.  The pursuer had called upon the defenders to disclose the reason why the ultrasound scan was cancelled or at least not carried out.  Mr Stephenson said that it was not possible to answer that call. 

Submissions for pursuer

[11]      Mr Smith submitted that the test for dismissing an action on the pleadings was a high one.  The case had to be fundamentally irrelevant or so lacking in specification as to not give fair notice of the case against the defenders.  That test was not reached.  The pursuer had encountered difficulties; the medical records were lacking in detail.  The defenders had the advantage of having access to those who completed the records. 

[12]      So far as the ultrasound issue was concerned the fact was that the defenders had missed two clear opportunities to carry out investigation which would have revealed the tear to the distal biceps tendon.  There was no complaint about Dr Robertson or Dr Reid.  They had made the appropriate requests and no blame could attach to them.  If doctors treating a patient request certain investigations to be carried out then it should be expected that they were carried out unless there was good reason for not doing so.  The pursuer had averred that there was no good reason for not carrying out the ultrasounds but that was simply met with a bare denial with no explanation. 

Decision

[13]      The test in determining whether or not to dismiss an action on the pleadings, or here refuse to admit the case to probation, is whether or not the case must necessarily fail even if all of the pursuer’s averments are proved.  The onus is on the defenders and there is no onus on the pursuer to show that if he proves his averments he is bound to succeed; Jamieson v Jamieson, per Normand LP at p. 50.  I am satisfied that the defenders have not demonstrated that the test is met.  The pursuer’s case is relatively straight forward.  Two doctors either recommended or directed that an ultrasound should be carried out.  If an ultrasound had been carried out then it would have revealed the tear in the distal biceps tendon.  Had that been diagnosed then it could have been repaired within the timescale of 4 to 6 weeks and there would have been a good chance of full restoration of function.  There was no good reason for not carrying out the ultrasounds.

[14]      There is no criticism of either Dr Robertson or Dr Reid.  I do not think it matters that neither Dr Robertson not Professor Court-Brown suspected a tear of the distal biceps tendon.  According to the pleadings Professor Court-Brown made the recommendation to assist in the diagnosis of the cause of the on-going pain and discomfort.  It is true that the purpose was “to see whether there is a muscle haematoma or other soft tissue injury”.  However if, as the pursuer avers, the ultrasound would have revealed the true injury then that in my opinion is sufficient.  It may be, as Mr Stephenson says, that the stated purpose is important in the issue of any decision to rescind a request.  However in the absence of any stated reason for rescinding the request for an ultrasound that seems to me to be speculative. 

[15]      It is true there is no ground of fault directed against Dr Beggs.  Indeed Dr Beggs name only appears in the defenders pleadings where they aver that Dr Reid requested an ultrasound scan by letter dated 12 August 2003 addressed to him.  The letter is referred to for its terms.  In the absence of any averments that Dr Beggs interacted with the request I cannot see how the pursuer could make out a case of fault against him.

[16]      I do not consider it necessary for the pursuer to aver fault against a particular medical practitioner.  Where a medical practitioner, in the exercise of his clinical judgement, requests that a particular diagnostic investigation be carried out it may be argued that the defenders have a duty to comply with that request unless there is good reason not to do so.  In that case it is for the defenders to advance the reason why it was not done.  One can contemplate a number of reasons why the request may not be fulfilled but none are put in issue here.

[17]      Accordingly I have formed the view that there is sufficient in the pleadings to allow this ground of fault to go to probation.  Accordingly I will allow a proof before answer.  I reserve the question of expenses.

[18]      Parties were agreed that I should put the case out by order to discuss further procedure.