Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 56

A91/14

OPINION OF LADY STACEY

In the cause

JAMES KERR SELLAR

Pursuer

against

GREATER GLASGOW HEALTH BOARD

Defenders

Pursuer:  Mason;  TC Young Wilson Terris

Defenders:  Paterson;  NHS Central Legal Office

31 March 2017

[1]        This case came before me on the pursuer’s opposed motion to allow a Minute of Amendment to be received, to allow answers and a period of adjustment.  The reasons given in writing for opposition are as follows:

“This action relates to events in 2011. The action was raised in 2014 and has been subject to significant court procedure. It is the defenders’ position that the proposed amendment seeks to introduce an entirely new case. An opposed motion in relation to receipt of this minute of amendment previously called before Lady Stacey on 12 May 2016. The motion was dropped at the bar in the course of that hearing. The defenders position remains as before.”

Mr Paterson, counsel for the defenders, expanded those grounds of opposition orally before me.  The issue is whether the proposed Minute of Amendment seeks to introduce a new case after the triennium, and is in any event irrelevant.  In either case counsel argued that I should exercise my discretion by refusing to receive the Minute of Amendment.

[2]        Mr Paterson wanted the argument to be heard at this stage rather than at the later stage of the motion to amend in terms of the minute and answers.  He argued that was a competent course of action, under reference to the case of Sellars v IMI Yorkshire Imperial Limited 1986 SLT 629.  He argued that it would save time and expense, as there would be no need for the defenders to investigate and plead the new case if his opposition succeeded.  I agreed to do so.

[3]        The pursuer pleads that he was diagnosed with transitional cell carcinoma of the bladder in 2004.  He received treatment from doctors employed by the defenders.  In August 2009 he attended Glasgow Royal infirmary for implantation of an artificial urinary sphincter (AUS).  On 8 October 2009 he attended for activation of the AUS.  At a urology outpatient clinic in January 2010 he complained of urinary leakage.  That complaint was investigated by cystoscopy in March 2010, when the AUS was found to be functioning satisfactorily.  Review continued in 2010, when the consultant found that the pursuer was getting used to the AUS and periods of incontinence had become more manageable.  However the pursuer experienced pain and continuing problems and was referred back to Glasgow Royal infirmary by his GP.  On 2 March 2011 the pursuer underwent flexible cystoscopy, performed by Mr Rajan.  That procedure is the subject of controversy between the parties.

[4]        The original pleadings are that prior to passing any instrument into the urethra, such as a cystoscope, it is necessary and normal practice to deactivate an AUS.  It is said to be normal practice to reactivate an AUS after cystoscopy.  The pursuer pleads that there is no record of any steps taken to deactivate or to re-activate the AUS.  He pleads that

“It is likely that after the index procedure Mr Rajan did not reactivate the [AUS] correctly. It is likely that during the procedure to reactivate the [AUS] he [Mr Rajan] mishandled the [AUS] causing the damage hereinafter condescended upon.”

The pursuer pleads that after the procedure he was uncomfortable and could not void his bladder properly.  He was persistently incontinent.  He attended his local accident and emergency department two days later and was sent to the Southern General Hospital, Glasgow.  Thus the original pleadings are that Mr Rajan failed to reactivate the AUS correctly.

[5]        The pursuer then pleads that on 15 November he underwent removal of the AUS.  It was found that the cuff of the sphincter had eroded completely through the urethra.  The pursuer pleads that

“It is probable that Mr Rajan’s manipulation of the pursuer’s [AUS] after the cystoscopy on 2 March 2011 which failed to reactivate the [AUS] also damaged it.”

He then pleads

“Had Mr Rajan not mishandled the pursuer’s [AUS] after the cystoscopy, while attempting to reactivate it, it would not have been damaged at that point.”

[6]        The duty which the pursuer pleads is

“Mr Rajan had a duty to reactivate the [AUS] after the procedure of flexible cystoscopy. Mr Rajan had a duty to manipulate the pursuer’s [AUS] without damaging it. No urologist of ordinary skill exercising reasonable care would have failed to re activate the [AUS] properly and without damaging it after completing flexible cystoscopy. Mr Rajan knew or should have known that if he damaged the pursuer’s [AUS] that further damage would ensue such as erosion of the [AUS].”

[7]        The pursuer seeks to amend by introducing an averment that deactivation involves pressing the pump to deflate the double cuff system and then pressing the switch above the pump to deactivate the device in the ‘open’ position.  He seeks to state

“Mr Rajan did not take any steps to deactivate the device before inserting the cystoscope.”

He then seeks to delete the averment that it is likely that during the procedure to reactivate the [AUS] he mishandled the [AUS] thereby causing damage.  He seeks to plead:

“It is likely that Mr Rajan deactivated the device after the procedure with the double cuff system inflated, thereby locking the device in the ‘closed’ position.”

He then seeks to plead that the insertion of the cystoscope through the inflamed cuff damaged it and resulted in erosion of the AUS.  The pursuer seeks to add that it is probable that Mr Rajan locked the device in the closed position after the procedure.  He seeks to delete the averment that damage was done by Dr Rajan while attempting to reactivate the AUS.  He seeks to substitute the following:

“Had Mr Rajan deactivated the device before the cystoscopy he would not have caused pain discomfort and urethral erosion of the device. Had Mr Rajan not deactivated (locked) the device in the ‘closed’ position after the cystoscopy he would not have caused the pursuer to have overflow incontinence ….”

No amendment to the duties is proposed.

[8]        Mr Paterson argued that the amendment was an attempt to introduce a new case after the triennium.  The existing case was that Mr Rajan failed to reactivate the AUS properly, thereby causing discomfort and damaging the AUS.  The new case is that Mr Rajan did not take any steps to deactivate the AUS before he inserted the cystoscope.  He then deactivated the AUS with double cuff inflated, thereby locking the device in the closed position.

[9]        Mr Paterson argued that was a different allegation.  It came nearly six years after the event, and nearly three years after the action was raised.  Therefore the proposed amendment should be refused as it introduced a new case after the triennium, with no reason given for that.  He further argued that if he was wrong in arguing that the amendment amounted to a new case, in any event the pleadings are irrelevant because there are no pleadings of a duty to deactivate before insertion.  Counsel argued that the report from Mrs Webber, a witness, referred to below did not support the averments proposed by the pursuer.

[10]      Counsel argued that the history of the action was relevant.  The action was raised in February 2014, presumably to avoid the expiry of the triennium.  It was sisted for legal aid.  There was a dispute about the action having been settled, which led to an order of the court on 10 June 2015 for a minute and answers.  That dispute was resolved by a hearing in July 2015 in which the minute was refused and an order made for the pursuer to lodge a Statement of Proposals by 16 September 2015.  There were a number of continuations as the pursuer was awaiting a report from a Mr Dunne.  On 9 February 2016 a statement of issues for the pursuer was produced, in which two witnesses, Mrs Webber and Mr Stewart, but not Mr Dunne, were listed.  On 10 February 2016 the court continued the case until 16 March 2016 and appointed the pursuer to lodge a Minute of Amendment if so advised within four weeks.  Further time was allowed on 15 March and the case was continued until 13 April 2016.  There was a further continuation until 11 May 2016.  On 10 May 2016 I allowed counsel for the pursuer to drop a motion to have a Minute of Amendment received, as I was told that counsel did not consider it a proper motion to make, and I continued the case until 8 June 2016.  On that date the court continued the case once again to 29 June 2016.  There was no appearance for the pursuer on that date and I granted the defenders’ motion for decree by default.  The pursuer reclaimed and the reclaiming motion was allowed.  The case then called before me on 22 February 2017.  The pursuer moved to have the Minute of Amendment received.  It was the same minute which had been the subject of the motion dropped at the bar on 10 May 2016. 

[11]      Amendment in the Court of Session is covered by Rule of Court 24.  Counsel were agreed that it a matter for the discretion of the court; amendment might be allowed if it is necessary for the purpose of determining the real issue in controversy between the parties.  They were also agreed that amendment to introduce a new case after the triennium is competent but the court had to take account of the policy behind limitation legislation.  

[12]      Counsel referred to case of Pompa’s Trs v Edinburgh Magistrates 1942 SC 119 as the first in a series of modern cases in which the court noted it would not be correct to allow an amendment which radically altered the pursuer’s case after the triennium.  Mr Paterson referred to the case of Greenhorn v J Smart & Company (Contractors) Ltd 1979 SC 427 for the proposition that the test of whether new averments would be allowed involved deciding if they changed the basis of the case, which is a matter of degree.  He relied on Lord Drummond Young’s Opinion in the case of Perth and Kinross Council v Scottish Water Ltd 2016 SLT 1251 in which his Lordship stated that it would not be a proper exercise of discretion by the court to allow a pursuer to defeat the protection afforded by the limitation statues by converting a case into a new action.  While the court might allow such an amendment in certain circumstances such as where the defenders had deliberately concealed facts from the pursuer, in general the court would be unlikely to allow a fundamentally new case to be inserted by amendment after the expiry of the triennium.  Mr Paterson argued that the case sought was a new case;  there were no circumstances which should allow its reception into the pleadings.  The delays that had taken place in the case already were rather factors pointing in the other direction, militating against any introduction of a new case at this late stage.

[13]      Mr Paterson argued that in any event, the proposed pleadings were irrelevant.  The averments of fault were to be changed, but the averments of duty remained the same.  Thus the averments did not relate to each other.

[14]      Mr Mason, counsel for the pursuer, argued delay in the case had been caused by delay in a medical report being obtained.  Counsel who appeared in May 2016 did not think it proper to move the Minute of Amendment because the doctor had not at that stage spoken to the pursuer.  The case had “gone off the rails” in 2016 due to a failure to appear, but that had been explained and the reclaiming motion granted.  He referred to the case of Dryburgh v NCB 1962 SC 485 for dicta about delay;  he argued in this case delay was not unexplained. Some of the delay had been due the minute and answers procedure insisted in by the defenders in connection with settlement, in which they had not been successful. In any event the delay was not so severe as to cause prejudice.  He argued that this case is about medical negligence and all the witnesses are professional people speaking to records.  Therefore delay is not so significant as it would be were the witnesses members of the public relying on memory of events.

[15]      The nature of the proposed pleadings did not represent a radical change, counsel argued.  It was a simple matter:  there were two people involved, doctor and patient.  The doctor had a duty to manipulate the AUS without damaging it.  The defenders had sought further specification of the pursuer’s case and the amendment gave that.  It was still the same allegation of negligence as made before, that is that the procedure had not been carried out correctly.  He argued that the averment of duty was sufficient for the proposed new averments of fault.

Decision
[16]      Whether there is a new case in the Minute of Amendment is a matter of degree, to be decided in the context of the case.  This is a claim in respect of medical negligence.  The defenders in such a claim are entitled to know what the doctor is alleged to have done wrong; what normal practice he has failed to follow and how any such failure had caused loss.  The original pleadings are to the effect that Mr Rajan erred when manipulating the AUS.  The proposed amendment alleges that he did not deactivate the AUS and inserted the cystoscope through the inflated cuff.  That is a radically different failure from that already pled.  I find that the amended pleadings would introduce a new case, after the triennium has expired.  I accept that the case is concerned with the manipulation of the AUS by Mr Rajan.  It is not enough to argue that the matter of the AUS having been raised, the proposed amendment is simply clarification.  While the original pleadings are not clear, the allegation appears to be that Mr Rajan failed to reactivate the AUS properly.  It is proposed to aver that he did not deactivate it all, and inserted the cystoscope without deactivation. 

[17]      The case has been delayed by the pursuer, seeking continuations, and then by failure to appear.  It does not appear to be well prepared and presented.  While I do not accept a suggestion made by Mr Paterson that delay alone is a sufficient ground to justify refusal, I do accept from him a submission that delay is prejudicial to the conduct of the litigation.  Even though there are records, medical negligence cases depend to some extent on the memory of the persons present.  I find that there is delay which I have to weigh up when considering whether to exercise discretion to allow the amendment.

[18]      It was not suggested to me that there were any unusual circumstances such as the deliberate withholding of information by the defenders which would tend to justify allowing a new case at this stage.  Mr Mason’s submissions were directed towards the assertion that the case had not changed radically.  While I accept that the case is about the proper procedure for cystoscopy when an AUS is in place, I do find that the failure which the pursuer now seeks to plead is radically different from that in the pleadings at present.  To allow the new case would be prejudicial to the defenders as they would lose the defence provided for by limitation, and because investigation and proof is more difficult as time passes.  There is no compelling reason to allow the amendment. I will therefore refuse it.  Thus I refuse the pursuer’s motion to have the Minute of Amendment received. 

[19]      Counsel were agreed that I should make an order of consent for the expenses of the hearings on 12 May and 29 June 2016 in favour of the defenders, which I now do.  No motion was made in respect of the hearing on the motion to have the Minute of Amendment received.