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CAROLYN ALMOND-ROOTS AGAINST MUFTAH SALEM ELJAMEL AND ANOTHER [2021] ScotCS CSOH_130 (21 December 2021)
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[2021] ScotCS CSOH_130,
[2021] CSOH 130
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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 130
A448/16
OPINION OF LORD UIST
in the cause
CAROLYN ALMOND-ROOTS
Pursuer
against
MUFTAH SALEM ELJAMEL
First Defender
and
NHS TAYSIDE
Second Defenders
Pursuer: Sutherland QC, T Brown; Thompsons
First Defender: Primrose QC, Watts; The Medical and Dental Defence Union of Scotland
Second Defenders: MacNeill QC, Dundas; NHS Scotland Central Legal Office
21 December 2021
[1]
In this action of damages for personal injuries sustained as a result of clinical
negligence I granted decree in terms of a joint minute agreed by all parties against the
defenders for payment to the pursuer of the sum of £2,810,118 net of any liability that the
defenders may have in terms of the Social Security (Recovery of Benefits) Act 1997, with
interest thereon at the rate of 8% per annum from the date of decree until payment. I now
require to decide the question of apportionment of damages between the two defenders
under section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 ("the
1940 Act"), which provides
2
"where in any action of damages in respect of loss or damage arising from any
wrongful acts or negligent acts or omissions two or more persons are, in pursuance
of the verdict of a jury or the judgment of a court found jointly and severally liable in
damages or expenses, they shall be liable inter se to contribute to such damages or
expenses in such proportions as the jury or the court, as the case may be, may deem
just."
No evidence was led but the two defenders agreed the following facts by way of joint
minute.
The agreed facts
[2]
On 4 February 2013 the pursuer attended at the Accident and Emergency
Department at Ninewells Hospital, Dundee. She arrived at 08.25. Her presenting complaint
was noted to be "Right Leg Pain". She was triaged by Nurse Moira Clark at 08.57 and she
was assigned a triage category of = 4. At 09.55 hours she was reviewed by Dr Amy
Knighton, who was at that time a GP ST1 grade trainee doctor assigned to the Accident and
Emergency Department. Dr Knighton noted that the pursuer was a 45 year old woman
suffering from buttock numbness and right posterior thigh pain . Dr Knighton noted the
following history from the pursuer (with explanation of her abbreviations being given in
square brackets):
"Increasing pain thru (sic) the night in R posterior thigh + altered sensation in R
buttock. This has now spread to L buttock also. No pain in back but has had
previous sciatica on R side which was not as severe and had assoc [associated] back
pain. No history of trauma. Describes a pain in rectum and that `wouldn't trust
herself'' with regards to bowels no incontinence as yet but feels an urge. No
urinary symptoms. Has taken paracetamol/ibuprofen to little effect.
PMHx [past medical history] Sciatica. DHx [drug history] nil NKDA [no known
drug allergies]. SHx [social history] Independent; production operative."
[3]
Dr Knighton carried out an examination of the pursuer. She made the following
record of the examination in the pursuer's medical records (with explanation of her
abbreviations being given in square brackets):
3
"o/e [on examination] lower limbs power/ sensation and tone N [normal]
reflexes - patellar [reduced] ankles N [normal]. good ROM [range of
movement] from back, back pain exacerbated on L lateral {illegible} anterior/
posterior {illegible}. Pain also exacerbated on SLR [straight leg raise].
Altered sensation over buttocks + perianally R side > [greater than] left side.
[reduced] anal tone didn't feel she could squeeze my finger".
[4]
ANP Weaver carried out a neurological examination of the pursuer's legs. She
measured the pursuer's straight leg raise at 50 degrees and limited by pain on the right-hand
side and 60 degrees with pain to the right side on straight leg raise to the left side. Tone was
normal on both sides. Power was as follows:
Right side
Hip flexion 5/5
Hip extension 5/5
Knee Flexion 4/5
Knee extension 4/5
Ankle dorsiflexion 5/5
Ankle plantar flexion 5/5
Left side
Hip flexion 5/5
Hip extension 5/5
Knee flexion 5/5
Knee extension 5/5
Ankle dorsiflexion 5/5
Ankle plantar flexion 5/5.
[5]
ANP Weaver checked the pursuer's reflexes and found them to be normal. She
examined the pursuer's sensation and recorded increased sensitivity in the S1 and S2
4
dermatomes on the right-hand side and increased sensitivity in the S1 dermatome on the
left-hand side. She documented her treatment plan as follows:
"not for urgent admission to neurosurgery. GP to optimise analgesia including
pregabalin 75mg BD. Refer for neurosurgical consult through RMS [Records
Management System]. MRI scan as outpatient organised by neurosurgery. GP to
follow up also."
That note was revised after she spoke to the first defender and records her ultimate plan .
[6]
ANP Weaver wanted to admit the pursuer to neurosurgery. She was not allowed to
admit patients without first discussing them with a consultant. She went to speak to the first
defender to discuss admission. She provided the first defender with the clinical history and
details of her examination. She told him that the pursuer had undergone a rectal
examination and was unable to squeeze the examining finger. The first defender told her
that the pursuer did not have cauda equina syndrome and so was not for urgent admission.
She therefore made a visible alteration in her handwritten note, writing "not for urgent
admission" in place of the note that she had written before speaking to the first defender.
She initiated arrangements for the pursuer to undergo an outpatient MRI scan. In her
request she did not specify that the scan required to be done urgently. No follow-up in or
by the Neurosurgery Department was arranged. It was noted that an outpatient MRI scan
had been organised. The pursuer's GP was requested to optimise her analgesia and to start
the pursuer on pregablin. The pursuer was to be referred to neurosurgery if appropriate.
The pursuer was discharged home from the Accident and Emergency Department at
Ninewells hospital by Dr Amy Knighton. She left the department at 12.27. She was given a
prescription for co-codamol [a drug intended for pain relief containing paracetamol and
codeine] on departure.
5
[7]
The first defender was acting in the course of his employment as a consultant
neurosurgeon with the second defenders on 4 February 2013. On that date ANP Weaver
was acting in the course of her employment as an advanced nurse practitioner with the
second defenders. The second defenders are vicariously liable for their acts and omissions
on that occasion, along with the acts and omissions of their other employees.
[8]
The MRI scan was undertaken at Ninewells Hospital on 20 February 2013. The
second defenders' radiologist reported the scan as showing inter alia (a) between lumbar
discs 3 and 4 a left paracentral disc protrusion which along with facet joint hypertrophy
resulted in severe central canal and left lateral stenosis; (b) between lumbar discs 4 and 5 a
very large central disc prolapse compressing the thecal sac and causing severe central canal
stenosis. The radiologist noted that it appeared the pursuer had clinical cauda equina
syndrome. No action was taken by the second defenders' employees in response to the scan
report. The MRI scan should, in light of the pursuer's presentation at Ninewells Hospital on
4 February 2013, have been arranged on an urgent basis, to be undertaken within 48 hours.
The second defenders' staff were negligent in not arranging an MRI scan within that period
of time. Had an MRI scan been obtained within 48 hours of the pursuer's presentation at
Ninewells Hospital on 4 February 2013 the result of the scan would have been the same as
the result of the scan on 20 February 2013. Had an MRI scan been undertaken within
48 hours of the pursuer's presentation at Ninewells Hospital on 4 February 2013 the pursuer,
because of the result of the scan, would have undergone spinal decompression surgery at
Ninewells Hospital no later than 7 February 2013. Had spinal decompression surgery been
undertaken at Ninewells Hospital no later than 7 February 2013, and had that surgery been
undertaken with the skill and care of a neurosurgeon of ordinary competence exercising
reasonable skill and care, the pursuer's radicular pain would have improved; bladder and
6
bowel function would have been normal; there would have been some impairment of
perianal sensation in the long term with reduced sexual sensation; motor power would have
been normal; there would have been no lower limb cramp; there would have been normal
balance; and there would have been long-term reduced sensation in the S1 dermatomes and
the right S2 dermatome, albeit of no functional significance. She would not have suffered
complete cauda equina syndrome. Had the notional surgery not been undertaken by a
surgeon of reasonable skill and care exercising reasonable skill and care the second
defenders would have been vicariously liable therefor. If the pursuer had elected to
undergo earlier surgery privately (i.e. not at Ninewells Hospital) and that surgery was not
undertaken by a surgeon of reasonable skill and care exercising reasonable skill and care, the
second defenders would not have been liable th erefor.
[9]
The result of the MRI scan came to the attention of the pursuer's GP, Dr Dawn
Dorward, on or about 1 March 2013. The GP telephoned the Neurosurgery Department at
Ninewells Hospital on 1 March 2013 and reported her understanding that the MRI scan
result showed cauda equina syndrome. She further advised that the pursuer was now
seeking private medical care. She referred the pursuer to the first defender on 1 March 2013.
The referral was sent to the BMI Fernbrae Hospital, Dundee, where the first defender had
practising privileges. It was noted on the referral inter alia that:
"the patient's symptoms are currently numbness in her right leg with back pain . She
also has numbness in her right groin. She is now beginning to feel numb in her left
leg. She has saddle paraesthesia, is able to pass urine normally and has been
constipated due to the opiates she has been on but this is manageable with laxido.
She has had no incontinence of stool or retention of urine".
[10]
The first defender saw the pursuer in the outpatient department at the BMI Fernbrae
Hospital, Dundee on 19 March 2013 at 18.00. That hospital is no longer in operation but
was, at that time, a private hospital. The second defenders have no responsibility for the
7
acts and omissions of the first defender while he was providing private medical care to the
pursuer at that hospital. The first defender wrote to the pursuer's GP, Dr Simone Killick, on
19 March 2013 advising inter alia that he had consulted with the pursuer at his outpatient
clinic and he had discussed with her the possibility of undergoing a microdiscectomy. He
noted that the pursuer had no urinary symptoms but that she did have root tension signs.
[11]
The pursuer attended a pre-admission clinic at BMI Fernbrae Hospital on 5 April
2013. It was noted that she was experiencing constant pain in her lower back which was
dulled by pain relief, that she was constipated and using laxido for constipation, that she
had no genitourinary symptoms and no problems with micturition.
[12]
Between 4 February 2013 and 16 April 2013 there was no major deterioration in the
pursuer's neurological condition, which remained stable.
[13]
The pursuer was admitted to the BMI Fernbrae Hospital on 16 April 2013 and there
underwent a lumbar microdiscectomy which was performed by the first defender. During
the operation it is likely that nerve root avulsion/stretching/division occurred. There may
have been a leak of cerebrospinal fluid due to breach of the dura. All of the pursuer's new
neurological deficits appeared during and after the operation on 16 April 2013.
[14]
The surgery performed on the pursuer by the first defender on 16 April 2013 was
undertaken negligently by him, as a result of which the pursuer suffered nerve root damage,
all in the following respects:
(a)
Fault. The first defender negligently performed only left unilateral small
microdiscectomy-type fenestration with minimal undercutting of the facet joints at
both lumbar disc space levels L3/4 and L4/5. A wider bilateral fenestration should
have been undertaken by him at the level of lumbar disc space L4/5.
8
(b)
Fault. The first defender negligently failed by his surgery to achieve effective
decompression of the nerves and discectomy at either L3/4 or L4/5, thereby failing to
achieve the purpose of the surgery. After the surgery (as demonstrated on MRI Scan
on 19 April 2013) the nerve roots at those levels remained clumped with no
cerebrospinal fluid around them. Their appearance remained essentially unchanged
from that shown on the MRI scan taken on 20 February 2013.
(c)
Injury. During the procedure nerve root injury in the form of avulsion and/or
division and/or stretching occurred. In the absence of adequate surgical
decompression of the nerves there would then be little or no space to accommodate
post-operative swelling or haematoma resulting from the nerve root injury. As a
result the pursuer post-operatively developed complete cauda equina syndrome. All
of her new neurological deficits occurred during and after the operation of 16 April
2013.
(d)
Differential outcome. Had the surgery been undertaken with the skill and
care of a neurosurgeon of ordinary competence exercising reasonable skill and care
the pursuer's radicular pain would have improved; bladder and bowel function
would have been normal; there would have been some impairment of perianal
sensation in the long term with reduced sexual sensation; motor power would have
been normal; there would be no lower limb cramp; there would be normal balance;
and there would have been long-term reduced sensation in the S1 dermatomes and
the right S2 dermatome, albeit of no functional significance. She would not have
suffered her complete cauda equina syndrome.
Post-operatively the pursuer's condition deteriorated while she remained a patient in BMI
Fernbrae Hospital. At around 17.00 hours on 16 April 2013 she developed bladder and
9
bowel symptoms. She developed symptoms of numbness in both legs and in her groin. It
was noted that the first defender was aware of her symptoms. By 20.00 hours she was still
complaining of numbness to the legs and groin area. The first defender that day prescribed
steroids and pregabalin for her. These are not standard medications for pain after spinal
surgery but can be prescribed when nerve root damage has been caused and is likely to
cause nerve pain. In the exercise of reasonable skill and care the first defender required to
arrange investigation of these symptoms by means of emergency MRI scan of the pursuer's
lumbar spine at around 17.00 hours on 16 April 2013.
[15]
On 17 April 2013 at 07.00 hours it was noted that the pursuer had less numbness in
her legs that morning but that numbness persisted in the pelvic area. She had passed urine.
At 09.00 hours it was noted that she had paraesthesia at both gluteal areas and her groin,
was feeling the desire to pass urine and had no feeling when opening her bowels. At
11.00 hours it was noted that she was again having trouble with numbness in her legs,
trouble with bladder and bowel control and saddle anaesthesia. It was noted that the first
defender was aware of these symptoms and was due to see her. At 13.00 hours she was
noted to have numbness in her legs and groin. She was passing frequent small amounts of
urine. She was reviewed by the first defender at 15.30 hours. It was noted that he would see
her again the following morning. By 17.00 hours it was noted that she was very upset and
incontinent of urine. By 19.30 hours there had been no change in numbness. She was
catheterised at the suggestion of the first defender. At 23.00 hours it was noted that the
catheter was draining well but that a pad and pants were in situ as she had little confidence
in her bowels due to unawareness of any sensation. On 18 April 2013 it was noted that she
remained anxious about her bowels moving. She had a feeling of fullness but was numb
and had no sensation. She was reviewed by the first defender at or about 13.00 hours and it
10
was noted that she was to stay for one more night before being discharged with a catheter in
situ. At 21.00 hours it was noted that, although she was comfortable, she continued to lack
any sensation in her bowel.
[16]
BMI Fernbrae Hospital did not have an MRI scanner and the necessary arrangements
for a scan had to be made with Ninewells Hospital. On 19 April 2013 the pursuer was
discharged by the first defender from BMI Fernbrae Hospital and underwent an MRI scan at
Ninewells Hospital. The MRI scan showed the appearances at L3/4 and L4/5 to be
essentially unchanged since the MRI scan of 20 February 2013, indicating that revision
surgery was required. As a result the pursuer was admitted to the Neurosurgery
Department at Ninewells Hospital, Dundee at 22.10 hours on 19 April 2013. She underwent
lumbar disc revision surgery, which was performed by the first defender in his capacity as
an employee of the second defenders, there on 20 April 2013.
[17]
The first defender was negligent in failing to organise an emergency MRI scan and
emergency revision surgery at around 17.00 hours on 16 April 2013. With revisional surgery
on 16 April 2013 any immediate damage exhibited after surgery would not have improved
but the pursuer would now have less bladder and bowel dysfunction than currently
although it would not be completely normal.
[18]
On 19 April 2013 the pursuer presented at Ninewells Hospital in order to undergo an
MRI scan, but by that time her condition was irreversible. Following upon her scan she was
clerked in as an emergency admission by the ward doctors at 22.10 hours. The presenting
complaint was recorded as frequency/faecal incontinence/left leg numb. It was noted inter
alia that she had frequency of urinary, faecal incontinence and perianal numbness. She was
discharged home from Ninewells Hospital on 7 May 2013.
11
Submission for the first defender
[19]
The submission for the first defender began by pointing out that the second
defenders had elected not to take a plea of novus actus interveniens. It would have been open
to them to seek to establish through pleadings and evidence that the actions of the first
defender in April 2013 were such as to break the chain of causation between events in
February 2013 and the harm ultimately sustained by the pursuer. It followed that they were
held to be taken to accept that damages fell to be apportioned between them and the first
defender. They had attempted to amend their pleadings in May 2021. The proposed Minute
of Amendment introduced an argument to the effect that the wrongs of the first and second
defenders were separate and distinct and thus that the pursuer's conclusion for joint and
several liability was incompetent. The motion was refused by Lady Wise. There was
concern on the part of the pursuer and the first defender that the second defenders were
attempting to introduce a plea of novus actus interveniens via the back door. In refusing the
motion to amend Lady Wise stated in terms that the pled position of the second defenders
was one of apportionment of damages, and not of a break in the chain of causation.
[20]
Section 3(1) of the 1940 Act gives the court a broad and unfettered discretion in
relation to questions of apportionment. The court was required to do what it deemed just in
the whole circumstances of a particular case. The authorities indicate that, in considering
what would be a just outcome, the court should have regard to the moral blameworthiness
of the wrongdoers and the causative potency of their respective acts or omissions. The
exercise was a very fact-specific one, and the approach to apportionment will differ
depending on the facts and circumstances of individual cases.
[21]
The second defenders admitted that in failing to arrange for an urgent MRI scan to
be performed within 48 hours of the pursuer's attendance on 4 February 2013 their staff
12
were negligent. They agreed that if the MRI scan had been performed, as it should have
been, the result would have been that the pursuer would have undergone spinal
decompression surgery at Ninewells Hospital no later than 7 February 2013. They admitted
that had that surgery been undertaken by a neurosurgeon of ordinary competence acting
with reasonable skill and care the pursuer would essentially have recovered without any of
the long-term sequelae from which she now suffers. She was entitled to the benefit of the
presumption that the surgery which ought to have taken place would have been performed
competently: Wright v Cambridge Medical Group (CA) [2013] QB 312 at paragraph [75]. Had
it been, the overwhelming majority of the pursuer's current problems would have been
avoided. Accordingly, the agreed position was that the second defenders negligently failed
in their management of the pursuer. Absent this failure, she would have been promptly
diagnosed and operated on and would have been left with reduced pain, normal bladder
and bowel function, no problems with cramp, no balance difficulties and no complete cauda
equina syndrome. In addition, she would have been spared the additional pain and
suffering which arose from her condition being left untreated between 7 February 2013 and
her eventual surgery on 16 April 2013.
[22]
Instead of undergoing the surgery in early February 2013, as she ought to have done,
the pursuer underwent a routine MRI scan on 20 February 2013 and when the results were
received she sought a private referral in the hope of securing earlier treatment (which by
that point she ought already to have had). She thereby came to be a patient of Mr Eljamel at
the BMI Fernbrae Hospital. After an outpatient consultation she elected to proceed with
surgery which she underwent on 16 April 2013. The first defender accepted that the surgery
which she underwent on 16 April 2013 was negligently performed by him and that had he
performed the surgery to the correct standard the pursuer would not have suffered her
13
complete cauda equina syndrome and would have been left with comparatively minor
deficits. It was also accepted that the first defender did not respond adequately to the
pursuer's post-operative symptoms and should have organised an emergency MRI scan and
emergency revision surgery after the pursuer's condition deteriorated at 17.00 hours on
16 April 2013. It was also agreed that this failure would not have avoided the immediate
damage which was apparent after the surgery.
[23]
Recent guidance on the approach which the court should take in determining a just
outcome on the question of apportionment was provided in Widdowson's Executrix v Liberty
Insurance Limited 2021 SLT 539. The first defender endorsed the approach taken by the court
in that case and submitted that the same analysis should be applied in the present case.
Mr Widdowson died as a result of injuries sustained in a road traffic accident. His next of
kin sued the driver who had caused the accident (by driving at excessive speed, losing
control and crossing the carriageway into the path of Mr Widdowson's oncoming vehicle).
The insurers of the driver at fault served third party notices on both NHS Grampian and
NHS Highland. Mr Widdowson had attended at Dr Gray's Hospital in Elgin (for which
NHS Grampian were responsible) in the immediate aftermath of the collision . He was kept
there overnight for observation and discharged the following day. After his return home his
condition deteriorated and he was admitted to Raigmore Hospital in Inverness (for which
NHS Highland was responsible) where his internal injury was diagnosed following a CT
scan but where the treating surgeons elected to manage his presentation conservatively. He
subsequently died. There were a number of similarities between Widdowson and the present
case. If the first medical team had identified the internal injury which Mr Widdowson had
sustained in the accident and treated it (as they should have done) when he was admitted to
Dr Gray's Hospital the negligent treatment he received at Raigmore Hospital would never
14
have taken place as his condition would already have been dealt with by that point. The
same analysis applied here. An appropriate response by the second defenders in February
2013 would have prevented the events of April 2013 from happening and avoided the harm
the pursuer ultimately suffered.
[24]
At paragraph [45] in Widdowson Lady Wise summarised the exercise which the court
had to undertake when assessing the relative contributions that should be made by different
defenders. It was agreed by counsel for all three defenders in that case that the correct
approach was as set down by Hobhouse LJ in Downs v Chappell [1997] 1 WLR 426 at p445.
At paragraph [46] Lady Wise made reference to the Supreme Court case of Jackson v Murray
[2015] UKSC 5 in which there had been discussion of the concepts of relative
blameworthiness and causal potency in assessing apportionment, although she drew a
distinction between the exercise of deciding an apportionment of liability between defenders
and the exercise of deciding what proportion of blame a pursuer ought to bear in respect of
contributory negligence. At paragraph [47] she held that issues of relative blameworthiness
and causal effect were essentially matters of fact, direct or inferred. It was a matter of
agreement between the first defender and the second defenders in the present case that they
were both responsible for negligent treatment of the pursuer.
[25]
At paragraph [50] in Widdowson reference was made to the submission from the third
defenders about the difference between acts and omissions. The second defenders in the
present case were attempting to draw a distinction between negligent acts (making things
worse) and negligent omissions (not making things better) and suggested that the former
was of greater causal potency than the latter. In the context of the present litigation that
analysis was flawed. It was an artificial distinction and had no place in the context of a
clinical negligence claim where doctors can be held liable for both negligent acts and
15
negligent omissions. An omission in a clinical negligence claim could cause harm or even
death just as much as a negligent act.
[26]
The case of Poole Borough Council v GN [2020] AC 780 was referred to at
paragraph [50] in Widdowson. That was not a case about apportionment of liability but about
whether a duty of care arose out of the statutory powers and duties of the local authority
under the Children Act 1989 to safeguard and promote the welfare of children. The Act
provided duties and powers to enable the local authority to discharge those functions. The
question was whether the local authority could be liable at common law for a breach of duty
of care in relation to the performance of its functions under the Act. The passage from the
case quoted in Widdowson referred to there being a distinction between acts and omissions
because, in general, public bodies did not owe a duty to fail to confer benefits (not making
things better). That distinction did not apply in circumstances where the public body had
either created the source of the harm or, as in the present case, assumed responsibility to
protect the claimant from harm. Thus, while there may be a distinction between acts and
omissions for the purpose of deciding whether there can be legal liability in certain
circumstances, that did not mean that omissions were always of less causal potency than
negligent acts, particularly in the context of a clinical negligence claim. All such
considerations were fact-specific.
[27]
In any event both instances of negligence, the negligence in February 2013 on the
part of the second defenders to arrange a scan and to operate, and the negligent execution of
the operation in April 2013, were properly characterised as omissions. The failure of the first
defender at the BMI Fernbrae Hospital was a failure to carry out the operation with the
requisite degree of skill and care. The pursuer in article 8 of condescendence characterised
the acts of negligence which occurred during the operation on 16 April 2013 as failings, in
16
that the first defender "failed to decompress the disc at L4/5" and pleaded that "this failure
was the reason that the pursuer suffered from cauda equina syndrome post-operatively and
now has permanent symptoms." In Widdowson a distinction was drawn between acts and
omissions because those responsible for the latter bore much less share of the blame and the
positive act of the car driver was "by far the more culpable" (paras [60] and [61]). When the
first defender carried out the operation in this case he did not cause the disc prolapse: what
he did was to fail to perform the operation correctly to alleviate the prolapse and avoid the
cauda equina syndrome.
[28]
The second defenders' approach to the question of causation in this case was
erroneous. They sought to argue that they should be entitled to a 0% apportionment on the
basis that the failure to scan the pursuer and carry out an urgent operation, which should
have happened had the scan been done, did not cause the pursuer any loss or damage. This
could not possibly be correct. First, it disregarded their sole responsibility for the pain and
suffering the purser endured between February 2013 when she should have been
successfully operated on by the second defenders and April 2013 when she eventually
sought private surgery from the first defender. Secondly, it was a matter of agreement that
had the first act of negligence not occurred (a failure to scan and thereafter arrange for an
urgent operation) the pursuer would have been treated and she would not have undergone
the subsequent negligently performed operation. In these circumstances it was clear that the
first act of negligence had a part to play in the occurrence of the secon d, and had a causative
effect. To put matters in the traditional language of causation, "but for" the first act the
second would not have occurred. The second defenders should therefore clearly be liable to
some extent.
17
[29]
A similar approach to the causative effect of a first tort, even in the absence as a
defendant of the hospital which committed the second tort, was taken by the Court of
Appeal in Wright v Cambridge Medical Group (a Partnership) [2013] QB 312. Elias LJ at p336,
paragraph [89] summarised the facts as follows:
"To summarise the essential features in a nutshell, the claimant ought to have been
referred by her doctor on the Wednesday; in fact, she was referred on the Friday
evening. Had appropriate steps been taken by the hospital at that time, the
permanent damage to the hip would have been avoided. However, she was not
given the appropriate antibiotics and by the Sunday it was probably too late.
Accordingly, by the time the consultant saw the patient on the Monday, nothing
could be done to prevent the permanent injury."
The defendants contended that they could not be held liable for the permanent damage
caused by the failure of the hospital to identify the "super infection" and that their liability
was limited to the loss suffered by the delay in referral (para [29]). Lord Neuberger
analysed why the defendants' argument that they could not be liable for the effects of the
subsequent wrong committed by the hospital was wrong as follows:
"29
The defendants' case under this head is that their duty as the claimant's
general practitioners was to refer her to a hospital to enable her condition to be
properly treated. They accept that they should be liable for having failed to refer the
claimant when they should have done, but they contend that they complied with
their duty by referring her on 17 April, which was well in time to have her hip
condition remedied: it was only because of the hospital's negligence after 17 April
that the condition was not remedied. In other words, the argument is that the
defendants' breach of duty was in having referred the claimant to the hospital later
than they should have done, but not too late to be treated, and that, as a result, the
damages she should recover from the defendants should be for the loss she suffered
from having been referred later than she should have been, not for having been
referred too late for her condition to have been remedied.
30
It seems to me that this argument raises two questions. The first is whether,
on a fair view of the facts, the defendants' negligence was a cause of, or, to put it
another way, significantly contributed to, the claimant's permanent injury. The
second question is whether that injury was, to use the traditional expression, too
remote, or, to put it in more modern terms, whether that injury fell outside the scope
of the defendants' duty. I shall consider these two questions in turn, although I think
that the reasoning on the first question also has a part to play when discussing the
second.
18
31
So far as causation is concerned, although it may very well have been that,
had it been a party, the hospital would have been held to be more to blame than the
defendants, I would reject the contention that the defendants' admitted negligence
did not contribute to the claimant's permanent injury. The defendants' case to the
contrary, as summarised in para 29 above, has obvious attraction. However, it
should be examined critically, because of the obvious point that, where there are
successive tortfeasors, it cannot be right that each can avoid liability by blaming the
other.
32
Accordingly, where there are successive tortfeasors, the contention that the
causative potency of the negligence of the first is destroyed by the subsequent
negligence of the second depends very much on the facts of the particular case. In
many cases where there are successive acts of negligence by different parties, both
parties can be held responsible for the damage which ensues, so that the issue is not
which of them is liable, but how liability is to be apportioned between them. The
mere fact that, if the second party had not been negligent, the damage which
subsequently ensued would not have occurred, by no means automatically
exonerates the first party's negligence from being causative of that damage. As
Lord Denning MR said in Lloyds Bank Ltd v Budd [1982] RTR 80, 83 `the doctrine of
last opportunity is gone forever'."
In the present case the causative potency of the initial act of negligence committed by the
first defender while in the employment of the second defenders cannot be said to have been
eclipsed by his negligence at the BMI Fernbrae Hospital. Had the pursuer had an MRI scan
and then been referred for an operation in February she would have been left with little in
the way of permanent sequelae and would still have been able to lead a normal life. Instead
the scan was delayed and when it did come it was followed by the negligent operation.
Accordingly, the failure to scan and to operate at an earlier stage and the negligent operation
were both causative of the damage to the pursuer. Had the negligence of the first defender
not occurred while he was acting in the course of his employment with the second defenders
there would have been no subsequent operation. As in Wright there was a presumption
that, had the pursuer been referred earlier, she would have received competent and
appropriate treatment.
19
[30]
There was a further reason why the court should not accept the proposition that the
second defenders' liability should be apportioned at nil. The 1940 Act allowed the court to
apportion liability between joint wrongdoers according to the proportions which it deemed
just. If only the second defenders had been sued, and an attempt had been made to hold the
first defender liable for all of the loss occasioned by the pursuer as a result of the initial
failure to refer for an MRI scan he could not have argued that he should not be found liable
in respect of his negligent omission on 4 February 2013 on the basis that, even if he had not
committed that breach the damage would have occurred anyway because he would have
committed the subsequent breach of duty while acting as a private consultant at the BMI
Fernbrae Hospital. Such a possibility was explicitly rejected by Lord Browne-Wilkinson in
Bolitho v City & Hackney Health Authority [1998] AC 232 at p240 and in Wright
Lord Neuberger affirmed what he described as the "generally accepted proposition" and
sought to explain its basis at paragraphs 56 to 58 and 61. That being so, it was not just that
in a situation where the second defenders have been convened in the action they can argue
that they should have no responsibility for the damage suffered by the pursuer and that the
first defender's acts while in their employment should be viewed as of no causal
significance. This was particularly so because in this case, unlike that of Wright, both acts of
negligence were, very unusually, committed by the same surgeon. It would not be "just and
equitable" to allow the second defenders to escape liability for the first wrong committed by
the first defender on the basis that he then went on to commit a further wrong in his private
practice. He should not be allowed to profit from his earlier wrongdoing in this manner .
[31]
Furthermore, to allow the second defenders to escape liability in the circumstances of
this case would, as Lord Neuberger put it at paragraph 46 of Wright "involve resurrecting
the discredited last opportunity doctrine". As he mentioned at paragraph 32, the mere fact
20
that, if the second party had not been negligent, the damage which subsequently ensued
would not have occurred by no means automatically exonerates the first party's negligence
from being causative of that damage. The attempt by the second defenders to rely on cases
Arden LJ at paragraphs 42 and 45 and McEwan v Lothian Buses plc 2006 SCLR 592 at
paragraphs 32-34 was not helpful. The ratio of these cases is that non-causative factors
count for little in the assessment of apportionment. That reasoning did not apply in the
present case because there was significant causal potency in the first act of negligence by the
first defender, namely, the failure to carry out an urgent scan which would have resulted in
the performance of an operation which would have allowed the pursuer to live what would
have been, to all intents and purposes, a normal life.
[32]
Moreover, there was a significant element of moral blameworthiness attached to the
failings of the first defender on the morning of 4 February 2013 when he refused to admit the
pursuer or send her for an urgent scan. That morning the pursuer was seen at Ninewells
Hospital by a junior doctor, Dr Knighton, who felt it necessary to discuss her condition with
a senior colleague, Dr Tonge. There was then a recognition that the pursuer's presenting
complaints merited a discussion with the neurosurgery department and she was seen by
Neurosurgery Advanced Nurse Practitioner Weaver. It could be taken that ANP Weaver
had specialist knowledge of, and experience in, neurosurgery. She carried out a full
examination of the pursuer and formed the view that she was suffering from lumbar
radiculopathy. She wished to admit the pursuer to neurosurgery and provided the first
defender with the clinical history and details of her examination. The first defender, despite
the fact that he had not even examined the pursuer, told ANP Weaver that the pursuer did
not have cauda equina syndrome and that she was not a case for urgent admission. He
21
made a decision without reviewing the patient and in the face of a request for admission
from an Advanced Nurse Practitioner who herself carried out a detailed examination. An
urgent scan was not arranged, nor was any follow-up organised. It was admitted that had
the scan been undertaken as it ought to have been within 48 hours of the pursuer's
presentation at Ninewells Hospital it would have shown the presence of cauda equina
syndrome and that spinal decompression would have followed.
[33]
Significant moral blameworthiness should be attached to the first defender's failure
even to examine the pursuer, to seemingly dismiss the concerns of an experienced Advanced
Nurse Practitioner out of hand and then to fail to ensure that an urgent MRI scan took place.
Simply to tell ANP Weaver that the pursuer did not have cauda equina syndrome without
he himself having carried out an examination, while seemingly recognising that this was a
possible diagnosis and while, as a consultant neurosurgeon, being well aware of the
potential for catastrophic long-term effects from such a condition was quite simply reckless.
This conduct was equally as "morally reprehensible" (to use the language of the second
defenders) as the subsequent failure to arrange a further MRI scan in light of his knowledge
of an intra-operative injury.
[34]
paragraph 28 (in a case relating to contributory negligence rather than failings by multiple
defenders):
"It follows that apportionment of responsibility is inevitably a somewhat rough and
ready exercise (a feature reflected in the judicial preference for round figures), and
that a variety of possible answers can legitimately be given. This is consistent with
the requirement ... to arrive at a result which the court considers `just and
equitable'."
In this case the pursuer was badly served by successive medical teams and suffered injury as
a result. The second defenders failed to arrange for an urgent MRI scan despite the fact that
22
a specialist neurosurgery Advanced Nurse Practitioner was so concerned about the pursuer
that she felt she should be admitted to the neurosurgery ward as an emergency. In addition
to the failure to arrange a scan within 48 hours there was also a failure to arrange emergency
neurosurgery following upon receipt of the result of the scan . But for these failures the
pursuer would not have suffered most of the loss complained of in the present action.
Because of these failures, and because of the negligently inadequate response of the second
defenders to the pursuer's presentation in February 2013, the pursuer ended up seeking
private treatment with a view to trying to expedite her recovery. Absent the failures of the
second defenders she would never have been in the position of requiring to seek private
treatment. Admittedly, the treatment she was provided with on a private basis by the first
defender was also negligent, both in terms of the performance of the surgery and the
reaction to her symptomatology after the operation was complete, but the critical causative
role played by the second defenders in her ending up on the operating table at BMI Fernbrae
Hospital in April 2013 could not simply be disregarded.
[35]
In cases where the court found itself unable to apportion damages between different
defenders with reasonable precision the authority suggested that the burden should simply
be shared equally: Drew v Western SMT Co Ltd 1947 SC 222, referred to in Widdowson
at p553. Ultimately this was the approach which Lady Wise took in the Widdowson case.
There was detailed medical evidence about the relative blameworthiness of the two health
boards. The circumstances were very much analogous with those of the present case. The
deceased required surgery. The first health board failed to identify the necessity for surgery
to be performed and arrange for it to be carried out. The second health board was aware of
the injury, having performed a CT scan, but negligent in their treatment of it. There was
evidence about which of the two medical teams had been worse. Ultimately Lady Wise
23
apportioned 30% of the damages to the medical defenders and 70% to the negligent driver .
The 30% damages apportioned to the medical defenders was simply split on a 50/50 basis,
with each of those defenders bearing a 15% share. This was the approach which the court
should take in the present case: in the circumstances a just and equitable approach would be
to apportion the damages on the basis that the first defender was responsible for a 50% share
and the second defenders are also responsible for a 50% share. There was no basis to justify
a departure from this default approach. Both defenders could and should have acted in
such a way as to prevent the majority of the harm taking place and both failed to do so .
While the operation was undertaken negligently by the first defender when working at the
BMI Fernbrae Hospital he had some weeks before, while employed by the second defenders,
simply dismissed the possibility of cauda equina syndrome when concerns were raised by
ANP Weaver without even carrying out an examination himself. The purser had been let
down by them both and should be equally compensated by them both. It was not in the
public interest for a health board to be allowed simply to evade responsibility for their
admitted negligence in failing to secure timely treatment which would have prevented an
unfavourable outcome where they have no plea of novus actus and where they nonetheless
seek to argue that they bear no share of the responsibility for the ultimate outcome. By
failing to refer the pursuer for an MRI scan on 4 February 2013 the first defender, while in
the employment of the second defenders, deprived the pursuer of the opportunity to be
treated properly by the hospital and if she had been she would not be in the seriously
disabled state in which she finds herself today. In these circumstances it could not be
correct, from the point of view of fairness and reasonableness, to say that the second
defenders should bear no responsibility for the damage suffered by the pursuer . The
intuitive reaction to the circumstances described in the pleadings is that the second
24
defenders ought to be liable because the pursuer would never have had the operation at the
BMI Fernbrae Hospital if they had fulfilled their duty towards her and arranged an MRI
scan and subsequent surgery in February 2013. Their failure to do so was a direct cause of
her permanent disability, although not the only cause.
[36]
In respect of culpability and blameworthiness there was little to choose between the
failings of the first defender when he was employed by the second defenders and his failings
when he treated the pursuer as a private patient. Each consisted of a failure to meet the
requisite standard of care of a reasonably competent neurosurgeon exercising reasonable
skill and care. On the one hand, he failed completely to take the step which would have
resulted in the pursuer being operated on in February 2013 and according to the
presumption of competent treatment a microdiscectomy procedure which would have
allowed her to lead an essentially normal life. On the other hand, when he carried out the
operation himself he failed to do so competently and this led to her sustaining the
disabilities from which she now suffered. Both defenders had the chance to take steps
which would have resulted in the relief of the prolapse and both failed to take the
opportunity which they had. The acts of the defenders were very similar. Even if the
second defenders were right to characterise their failure to arrange an MRI scan in
February 2013 as an omission and the failure competently to carry out the operation in April
as a positive act, this was a distinction of little significance. Both the act and omission are
similar in character (a failure to meet the requisite standard of care for a medical practitioner
of the first defender's standing) and similar in causal potency and blameworthiness. The
circumstances of the present case are very far removed from those in Widdowson where the
driver of the car which had initially caused the accident had committed the deliberate act of
driving round a bend at a speed of 80mph or thereabouts with the inevitable consequence
25
that he lost control of the vehicle. That conduct, described as "morally reprehensible" by
Lady Wise, was contrasted with the far less blameworthy conduct of the medical teams who
had tried to save him.
[37]
In the whole circumstances the correct apportionment of responsibility in this case
ought to be 50% to the first defender and 50% to the second defenders.
Submission for the second defenders
[38]
The second defenders invited the court to find that the first defender was 100% to
blame for the damage sustained by the pursuer and the second defenders were 0% to blame.
[39]
The following principles should guide the court's approach to apportionment:
i.
It is a fundamental principle of delict that a party should bear the
consequences of the damage which they caused, subject to foreseeability and
remoteness.
ii.
The question of apportionment is one of fact, to be determined with reference
to all of the evidence presented to the court and the relative blameworthiness and
causal effect of the defenders' respective acts and omissions (Widdowson at para [47]).
iii.
A distinction falls to be drawn between causing harm (making things worse)
and failing to confer a benefit (not making things better): Poole Borough Council v GN
[2020] AC 780, Lord Reed at paragraph 28. The former is of greater causal potency
than the latter and ought to carry with it a greater degree of responsibility.
iv.
Failing to take positive action which would have avoided an outcome is not
the same as committing an act which directly causes harm: Thompson v Toorenburgh
(1973) 50 DLR (3d) 717 at 721, cited in Widdowson; Jones, Medical Negligence, 5th Ed,
paragraphs 5-150.
26
v.
The extent of a defender's responsibility involved both the degree of their
fault and the degree to which it contributed to the damage in question: Downs v
vi.
In a case of contributory negligence the apportionment is made having regard
to the claimant's share in responsibility for the damage, not responsibility for the
accident: Law Reform (Contributory Negligence) Act 1945, section 1(1), emphasised
approach is adopted in relation to joint wrongdoers, albeit the only expressly
stipulated statutory consideration in section 3 of the 1940 Act is what is "just and
equitable".
vii.
In considering what is just and equitable the claimant's share of responsibility
cannot be assessed without considering the relevance of each party's acts in causing
the damage apart from his blameworthiness: Stapley v Gypsum Mines Ltd [1953] AC
663, Lord Oaksey at p682.
viii.
Acts and omissions which are not causative of loss can be considered for the
purpose of assessing apportionment but non-causative factors play a very limited
role in that assessment. Causative responsibility is the most important factor in
assessing apportionment: Brian Warwicker Partnership plc v HOK International Ltd
identical, English provision of the Civil Liability (Contribution) Act 1978, section 2.
ix.
Blameworthiness involves consideration of a defender's conduct. Relevant
factors include whether a party's conduct is dishonest or whether they have tried to
do their best in the circumstances, albeit negligently. Where one party has
committed a wrong deliberately and another has not this factor will be taken into
27
account when determining apportionment. Negligent and dishonest conduct attracts
a greater degree of liability than negligent but honest conduct: Goff and Jones, The
Law of Unjust Enrichment, 9th Ed, paragraphs 20-96 to 20-98; Widdowson at
paragraphs [56], [59] and [60].
x.
Mathematical precision is not required when assessing apportionment: the
assessment should be qualitative and not quantitative. It is open to the court to find
that one defender is 100% to blame: Re-Source America International Ltd v Platt Site
Services Ltd [2003] EWHC 1142 (TCC) at paragraphs 201 to 203, a finding upheld on
situation, that the degree of causative potency of another defender's act is not of
sufficient significance to trigger a finding of apportionment: McEwan v Lothian Buses
plc, 2006 (SCLR) 592 Lord Emslie at paragraphs [32] [34].
The basis of the pursuer's case was that she suffered from cauda equina syndrome. The
second defenders contended that the first defender was entirely to blame for causing this
and, in accordance with the principles noted above, it was just and equitable that he should
bear the full consequences of his causal responsibility, for the following reasons.
i.
The admitted negligence of the second defenders consisted of a failure to
arrange an urgent MRI scan on 4 February 2013. It was a one-off failure. It was not a
positive act. It failed to confer a benefit (i.e. earlier treatment, with pain being
experienced for a reduced length of time). It did not make the pursuer's condition
worse. Failing to confer a benefit was less culpable than positively making things
worse. Moreover, an MRI scan was arranged, just not on an urgent basis. The
second defenders' staff did recognise that a scan was required and took steps to
make that happen, which it did. There was no omission of follow-up care.
28
ii.
The admitted negligence of the second defenders did not cause any
significant harm to the pursuer. It did not cause any major, indeed any, neurological
deterioration. At most it might have resulted in the pursuer experiencing pain for an
additional two weeks, being the period between the date she would have had a scan
(6 February 2013) and the date she in fact did have one (20 February 2013). It did not
contribute to the damage for which reparation is sought in the current action: cauda
equina syndrome developed only after (and as a result of) the first defender's
negligence, not as a direct consequence of the failure to arrange an MRI scan
urgently. The omission of the second defenders' staff was less culpable than the
positive act which caused the pursuer's major neurological deterioration. The
causative potency of the second defenders' negligence, in relation to the actual harm
suffered by the pursuer, was nil. That should be reflected in the court's approach to
apportionment.
iii.
The first defender's approach to surgery was negligent. It was a positive act.
A positive act bore a greater degree of culpability than an omission on the basis that
the act positively made the pursuer's condition worse.
iv.
As a result of his positive act the first defender caused an intra-operative
injury to the pursuer, major neurological deterioration and cauda equina syndrome.
All of these had an incalculably greater effect on the pursuer's condition and
prognosis than the failure to arrange an urgent MRI scan on 4 February 2013. The
causative potency of these acts eclipses any potency of the omission for which the
second defenders are responsible. In other words, the cause of the pursuer's current
condition was the admitted negligence of the first defender and that should be
reflected fully in the apportionment of damages.
29
v.
In addition to his positive act of negligence the first defender also failed to
follow up on the fact that the pursuer's condition was worse when she came round
from surgery. He ought to have arranged an urgent MRI scan on 16 April 2013. Had
he done so, the pursuer would have had a materially better outcome. His negligent
omission was more blameworthy than the negligent omission for which the second
defenders are vicariously liable: at the time of their omissions, and prior to his
negligence, the pursuer did not have cauda equina syndrome. On the other hand,
after his negligence she did have cauda equina syndrome due to his negligence. He
failed to remedy his negligence, despite evidence that he knew he had caused an
intra-operative injury. Failing to take immediate action, in the knowledge that he
had caused an intra-operative injury to the pursuer, was morally reprehensible
conduct which demonstrated a flagrant disregard for professional duties, being a
clear breach of the General Medical Council's guidance in relation to the duty of
candour. It ought to attract a significant degree of culpability when apportioning
damages.
[40]
Against the above background the first defender's negligent acts and omissions were
of far greater causative potency than the single omission, which did not cause cauda equina
syndrome, for which the second defenders were responsible. It was just and equitable that
he should bear the consequences of the damage which he caused and thereafter failed to
mitigate. It was not just and equitable to hold the second defenders responsible for that .
Thus, he should be found 100% liable for the pursuer's loss, injury and damage.
30
Discussion
[41]
In carrying out the exercise of apportionment I am enjoined by section 3(1) of the
1940 Act to decide what contribution to damages or expenses by the first defender and the
second defenders respectively I deem just. It follows, therefore, that I must not make a
finding which I do not consider to be just. In reaching my decision I must consider moral
blameworthiness and causative potency. In the words of Hobhouse LJ in Downs v Chappell
"The extent of a person's responsibility involves both the degree of his fault and the
degree to which it contributed to the damage in question. It is just and equitable to
take into account both the seriousness of the respective parties' faults and their
causative relevance."
I do not find myself unable to apportion damages in this case and so no question of a
50%/50% apportionment arises as a default approach. In any event I doubt the soundness of
such an approach, which seems to me to involve the court abdicating the jurisdiction
conferred upon it by section 3(1) of the 1940 Act to make an apportionment which it deems
just.
[42]
Following the above approach, it seems to me that the moral blameworthiness and
causative potency of the negligence for which the second defenders are responsible is vastly
outweighed by that for which the first defender is responsible. I think it is correct to say, as
was submitted for the second defenders, that their negligence did not cause any significant
harm to the pursuer and that the causative potency in relation to the neurological harm
suffered was nil. The negligence for which they were responsible was part of the sequence
of events leading up to the serious negligence of the first defender which caused the nerve
root injury. All new neurological deficits appeared after the operation carried out by the
first defender on 16 April 2013: there was no major neurological deterioration before then .
31
No doubt the negligence for which the second defenders are responsible was a sine qua non
of the subsequent negligence by the first defender (the causa causans), but that does not in
itself mean that it is just that the second defenders should contribute to the damages for the
neurological injury caused by the first defender during and after the operation on 16 April
2013.
[43]
I reject the submission for the first defender that there is a similarity between the
circumstances in the case of Widdowson and the circumstances of the present case. In
Widdowson the major damage was caused by the negligent car driver and that was
compounded by negligence on the part of the two hospitals at which Mr Widdowson was
treated. That situation is quite different from the situation in the present case, in which it
was the negligence of the first defender at and after the operation which caused the
pursuer's cauda equina syndrome for which she has been awarded damages.
[44]
Moreover, I think it is unhelpful to draw a general distinction between acts and
omissions in the present context. What matters is the moral blameworthiness and causative
potency of the negligent act, whether it be a positive act or an omission. An omission,
particularly in the field of clinical negligence, is capable of causing serious harm or even
death.
[45]
In my opinion the submission for the second defenders that the negligence of which
they are responsible did not cause any significant harm to the pursuer and did not cause her
any neurological deterioration is correct. It is also correct to say that at most it might have
resulted in her experiencing pain for an additional two weeks and that it did not contribute
to the damage for which reparation is sought in the present action, cauda equina syndrome
having developed only after and as a result of the first defender's negligence, not as a direct
consequence of the failure to arrange an urgent MRI scan . I agree with the submission for
32
the second defenders that the causative potency of the negligence for which they are
responsible, in relation to the actual harm suffered by the pursuer, is nil. In my judgment it
would be unjust to find the second defenders liable to contribute to the damages for the
cauda equina syndrome which the pursuer has suffered. This conclusion does not involve
resurrecting the last opportunity doctrine: it is reached by an application of the statutory
provision in light of the guidance given by Hobhouse LJ in Downs v Chappell [1997] 1 WLR
426
Decision
[46]
For the above reasons I conclude that a just apportionment of damages and expenses
is 100% contribution by the first defender and 0% contribution by the second defenders.
