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OUTER HOUSE, COURT OF SESSION

[2022] CSOH 83

A142/19

OPINION OF LORD CLARK

In the cause

JAMES McGRAW

Pursuer

against

GREATER GLASGOW HEALTH BOARD

Defender

Pursuer: Mackay KC; Lloyd; Friends Legal

Defender: Doherty KC; Drysdale; NHS Scotland Central Legal Office

23 November 2022

Introduction

[1]

The pursuer seeks damages, alleging negligence on the part of a pathologist, a

surgeon and a radiologist. The case called for a diet of debate, at which the defenders

challenged the relevancy and specification of the pursuer's pleadings in the claim against

the radiologist.

Background

[2]

In November 2012, the pursuer had a lesion on his right cheek. He went to see his

GP and was referred for further examination. In 2013, a biopsy found that it was a form of

skin cancer, known as basic cell carcinoma (BCC). A further lesion had in the meantime

appeared on his left temple and this was considered to be another area where BCC was

present. In 2014, surgery took place to excise the BCC in each area. After the surgery

the pursuer was advised that it appeared that the BCC had been completely excised.

[3]

However, following further symptoms he was given scans and biopsies and the

view was reached that in fact the cancer had spread further into his left temple. He was

given surgery again in November 2015. Post-operative CT and MRI scans were carried

out and reports on them were prepared by a consultant radiologist. Matters were then

considered by a multi-disciplinary team. Further surgery was recommended. Another MRI

scan was done and reported upon by a radiologist. The further surgery then took place in

late December 2015, carried out by a consultant surgeon (Mr Wales). Part of the surgery

involved the pursuer's left eye being removed.

[4]

The pursuer makes three claims of negligence against medical practitioners. The

first allegation is that a pathologist who prepared a report in 2014, after the initial surgery to

remove the BCCs, failed to recognise the existence of an aggressive basosquamous tumour

on the pursuer's left temple. If it had been recognised, the pursuer claims that there would

have been re-excision at that time, avoiding the need for the more extensive surgery later

which caused the loss of his left eye. The second allegation is that Mr Wales failed in certain

respects, including not discussing the range of options open to the pursuer and not taking

steps which, had they been taken, would have shown there was no need to remove the left

eye. The third allegation is that, to the extent that Mr Wales relied upon particular CT and

MRI scan reports by the radiologist, these were wrong and the radiologist was negligent in

preparing them.

[5]

At the debate, the defenders argued that the pursuer's case against the radiologist

(the third allegation above) was irrelevant et separatim lacking in specification, on both

breach of duty and causation, and that as a consequence a number of averments should

be excluded from probation. The pursuer's averments in respect of the first and second

allegations were not challenged and it was accepted that they are suitable for a proof before

answer. On behalf of the pursuer, it was argued that the pleadings on breach of duty and

causation relating to the radiologist were relevant and gave sufficient specification.

Averments on fault and negligence

[6]

The Closed Record is lengthy and the pursuer makes a number of averments

referring to the radiologist, but there are two short passages of particular importance for

present purposes:

"Explained and averred that the MRI scan did not show tumour extension into

the lateral wall of the orbit or suspicion of malignant dural involvement. The scans

were reported to a standard below that to be expected of an ordinarily competent

Consultant Radiologist exercising ordinary reasonable care." (Article 8)

...

"Further, to the extent that Mr Wales relied upon the reports of the radiology, the

pursuer suffered the loss of his eye as a result of the fault and negligence of the

reporting radiologist." (Article 15)

Submissions

Submissions for the defenders

Breach of duty

[7]

The test for establishing negligence in diagnosis or treatment is whether the doctor

has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of,

if acting with ordinary care (Hunter v Hanley 1955 SC 200, Lord President Clyde at 204-5).

The pursuer makes certain averments as to what the scans on 1 December 2015 did and did

not show. It is a separate question whether or not the reporting radiologist was negligent.

The Hunter v Hanley test applies to that question (Penney v East Kent Health Authority [2000]

PNLR 323, Lord Woolf MR at 329C-330G). Other than the general allegation (in the first of

the passages of averments quoted above), no indication is given of the manner in which

the radiologist was negligent. The pursuer has not averred that (1) there was a normal

and usual practice in December 2015, (2) that the radiologist did not adopt that practice, or

(3) that the course that the radiologist adopted was one which no consultant r adiologist of

ordinary skill would have taken had they been acting with ordinary care. The pursuer made

further averments that the report following the MRI scan performed on 18 December 2015

was inaccurate. Again, the pursuer made certain averments as to what the scan did and did

not show but had not averred any of the points (1), (2) and (3) mentioned above. The second

passage of averments quoted above was also irrelevant as no averments are made setting

out the legal or factual basis for the assertion of fault and negligence by the radiologist.

[8]

The pursuer required to have averments about the following four questions. Firstly,

what was to be seen on each scan. Secondly, why no radiologist of ordinary skill would

have failed to see it. Thirdly, how a radiologist with ordinary skill should have reported it.

Fair notice required the pursuer to explain what the radiologist should have done, thus

specifying what the fault is or how it can be inferred (see Argyll & Clyde Health Board v

Strathclyde Regional Council 1988 SLT 381). Lastly, whether no radiologist of ordinary skill

would have reported as the radiologists did here. While there were some limited averments

on the first point, there were no averments on the other matters. The suggestion by the

pursuer in his Note of Argument that the averment in the last sentence in the first passage

quoted above was simply a way of expressing this test or standard was not correct. There

had to be an averment that no radiologist would act in this manner. In passing, while not

a pleadings point, there was nothing in the pursuer's expert report addressing this test.

Moreover, in relation to averments about one of the scan reports (the MRI scan on

18 December 2015), the pursuer did not specify who wrote the scan report and whether it

was a junior doctor or a consultant, a matter relevant to the standard required to be met.

In relation to Mr Wales, there was no averment that he relied upon the radiologist's report

and the allegation was not founded upon "esto" he had done so.

Causation

[9]

The averments in relation to the radiologist were irrelevant because the pursuer must

aver a causal link between allegedly negligent reporting and the loss of the eye. No chain of

events was set out and no causal link was stated. The pursuer avers that the decision to

proceed to surgery was a multi-team decision. The pursuer makes no averments about what

decisions about treatment would have resulted if something different was said in the reports

nor does the pursuer say that Mr Wales did not review the MRI scan. There were no

averments of what would have happened had the reporting been non-negligent. Nowhere

does the pursuer aver that with non-negligent reporting there would have been no surgery

at all or it would have been performed differently. It was unfair to leave it to the defenders

to deduce what the reports should have said. The pursuer should spell that out.

Submissions for the pursuer

Breach of duty

[10]

The sum total of the pursuer's case was that he had his eye removed for no reason

at all. Following upon the radiology imaging there was further imaging and then a

multi-disciplined meeting, at the end of which it was determined there should be an

operation. The pursuer accepted that the test set out in Hunter v Hanley is the touchstone

but as Lord Clyde noted every case must depend on its own particular circumstances. The

case of Penney v East Kent Health Authority was to some extent analogous to the present case.

The first question to be answered was what was to be seen in the imaging. In the present

case the pursuer avers what was seen and that it was not what was reported by the

radiologist. As stated in Penney, the judge deals with matters of fact as to what the slides

show. The pursuer avers here that a reasonably competent radiologist should have seen, if

exercising reasonable care, what was shown in the scan images. The judge has to consider

the expert evidence but make his or her own findings on the issues of fact, including on

negligence. It was accepted that the specific form of wording used in Hunter v Hanley was

not stated in the averments. However, the pursuer offered to prove that the conduct fell

below the standard, and that standard was that no competent radiologist would have

reported what was in fact reported.

Causation

[11]

The pursuer avers that according to the report by the radiologist on the CT scan on

1 December 2015 the cancer had not been excised in the first operation, but had only been

partially excised and had spread to the bony orbit. It is also averred that in fact the image

showed that the soft tissue mass noted pre-operatively had been excised. There was

excision of tumour and not bone destruction by the tumour. The pursuer therefore averred

what the scan did not show and in fact what it did show. In relation to the report on the

MRI scan of 1 December 2015, there are averments as to why it is incorrect. The pursuer

also sets out the reasons for the MRI scan on 18 December 2015, which was the extent of the

tumour spread. This presupposed the existence of a tumour as identified in the previous CT

scan on 1 December 2015, according to the radiologist's report on that scan. What the report

said is set out and it is averred that the report is inaccurate. In essence, it is averred that the

images identified in the report as apparently showing cancer being present in fact showed

just the consequences of the earlier operation, including post-operative scarring. The

references in the pleadings to the reports being inaccurate about the cancer having spread

plainly implied that what should have been said in the report was that there was no such

cancer spread. Fair notice was given.

[12]

There was no way for the pursuer to know what influenced the decision by

Mr Wales of what surgery should take place. All the pursuer has is the medical records, so

his advisors cannot discover the extent of the influence of the imaging evidence. Questions

had been asked of Mr Wales, but they remained unanswered. To the extent that Mr Wales

relied upon the radiologist's reports, the pursuer suffered loss of his eye. The pursuer could

make no averments that he did so rely, because they had no evidence to that effect, but it

was likely that the imaging was critical to his decision and the imaging was negligently

reported upon. There were sufficient averments on causation.

Decision and reasons

[13]

The principles for determining questions of relevancy and specification are set out

in widely-known and regularly cited authorities. In view of their common application, the

relevant dicta need not be rehearsed in full here, but these are four key points:

"The true proposition is that an action will not be dismissed as irrelevant unless

it must necessarily fail even if all the pursuer's averments are proved. The onus

is on the defender who moves to have the action dismissed, and there is no onus

on the pursuer to show that if he proves his averments he is bound to succeed."

Jamieson v Jamieson 1952 SC (HL) 44, Lord Normand at 50.

"...it is undesirable, except in a very clear case, to dismiss an action on the

ground that the pursuer's averments are irrelevant and insufficient in law."

Miller v South of Scotland Electricity Board 1958 SC (HL) 20, Viscount Simonds,

at 32.

"In claims of damages for alleged negligence it can only be in rare and

exceptional cases that an action can be disposed of on relevancy...It is

hardly necessary to say in a Scottish case that the law of negligence in Scotland

proceeds on principles of culpa, breach of the duty to take that care which the

circumstances demand from a reasonable man. These circumstances in any

particular case will normally have to be ascertained by evidence. They vary

infinitely. The facets and detail of a case on which an assessment of the law

must depend cannot be conveyed to the mind by mere averments of the bare

bones of the case, and the weighing of the facts for or against negligence may

often present a delicate task to the tribunal charged with applying the law."

Ibid, Lord Keith of Avonholm, at 33.

"Despite the general caution that lies behind the decision in Miller, it remains

the law that the pursuer must aver facts and circumstances from which fault

can be inferred; the pursuer must give notice either of the precise fault founded

upon or of facts and circumstances which, in the absence of a better explanation,

infer some fault on the part of the defender." Argyll & Clyde Health Board v

Strathclyde Regional Council 1988 SLT 381, Lord McCluskey, at 383J-K.

Breach of duty

[14]

As noted above, senior counsel for the pursuer entirely accepted that the test which

falls to be applied is that stated in Hunter v Hanley: that "no ordinarily competent" skilled

person of the kind in question, exercising ordinary care, would have done the act. The

central issue is whether the pursuer's averments on breach of duty require to follow the

precise wording articulated as the legal test in that case and, if not, whether the wording as

expressed by the pursuer equiparates sufficiently with that test. It is no doubt undesirable,

and indeed risky, to deviate from the wording in that key authority. Indeed, when dealing

with the alleged negligence by the surgeon Mr Wales the pursuer avers that "No ordinarily

competent Surgeon exercising ordinary reasonable care would have failed...to do so", and

hence closely follows the wording. However, there is no absolute requirement for the

pleadings to mirror that wording exactly and the fundamental point is whether the

pursuer's version in relation to the radiologist properly corresponds with the test.

[15]

The court was not taken to any authorities which might show examples of usages

of language similar to the pursuer's use. But, on a brief perusal of the case law, it can be

seen that alternative versions of wording have been used to express the test, referring to

the standard of the ordinarily competent skilled person. In Whitehouse v Jordan

[1981] 1 WLR 246, at 257G-258D, Lord Edmund-Davies said:

"The principal questions calling for decision are: (a) in what manner did Mr. Jordan

use the forceps, and (b) was that manner consistent with the degree of skill which a

member of his profession is required by law to exercise? ...

But doctors and surgeons fall into no special legal category, and, to avoid any

future disputation of a similar kind, I would have it accepted that the true doctrine

was enunciated -- and by no means for the first time -- by McNair J. in Bolam v.

Friern Hospital Management Committee [1957] 1 W.L.R. 582, 586 in the following

words, which were applied by the Privy Council in Chin Keow v. Government of

Malaysia [1967] 1 WLR 813:

`... where you get a situation which involves the use of some special skill or

competence, then the test as to whether there has been negligence or not is

not the test of the man on the top of a Clapham omnibus, because he has not

got this special skill. The test is the standard of the ordinary skilled man

exercising and professing to have that special skill.'"

Lord Fraser of Tullybelton, at 263D-F, put it this way:

"My Lords, this is an action of damages for professional negligence against a senior

registrar at Birmingham Maternity Hospital. After a long trial, the learned judge

held negligence established against the registrar, but the Court of Appeal by majority

(Lord Denning M.R. and Lawton L.J., with Donaldson L.J. dissenting) reversed his

decision. They did so not because they considered that the learned trial judge had

misstated the relevant law. Clearly he did not; he said, rightly in my opinion, that

negligence for the purposes of this case meant

`a failure ... to exercise the standard of skill expected from the ordinary

competent specialist having regard to the experience and expertise that

specialist holds himself out as possessing.'

...The true position is that an error of judgment may, or may not, be negligent; it

depends on the nature of the error. If it is one that would not have been made by

a reasonably competent professional man professing to have the standard and type

of skill that the defendant held himself out as having, and acting with ordinary care,

then it is negligent. If, on the other hand, it is an error that such a man, acting with

ordinary care, might have made, then it is not negligent".

Lord Russell of Killowen, at 268C-D, added:

"My Lords, I wish at the outset to emphasis one matter. Some passages in the Court

of Appeal might suggest that if a doctor makes an error of judgment he cannot be

found guilty of negligence. This must be wrong. An error of judgment is not per se

incompatible with negligence, as Donaldson L. J. pointed out. I would accept the

phrase `a mere error of judgment' if the impact of the word `mere' is to indicate that

not all errors of judgment show a lapse from the standard of skill and care required

to be exercised to avoid a charge of negligence".

[16]

In Investors in Industry Ltd v South Bedfordshire DC [1986] 1 All ER 787 professional

negligence was alleged against a firm of architects and Slade LJ in the judgment of the court

said, at page 808:

"Expert evidence from suitably qualified professional persons is, in our judgment,

admissible to show what competent architects in the position of Hamiltons

Associates could reasonably have been expected to know and do in their position

at the relevant time. Indeed, in our judgment, there could be no question of the

court condemning them for professional negligence on account of their failure to

appreciate points (3) and (4) and to take the suitable consequential action, unless

there were appropriate expert evidence to support the allegation that their conduct

fell below the standard which might reasonably be expected of an ordinarily

competent architect (cf. Worboys v. Acme Investments Ltd (1969) 4 B.L.R. 133 at 139

per Sachs L.J.)"

[17]

In D v Lanarkshire Acute Hospitals NHS Trust [2017] CSIH 30 (First Division)

Lord Malcom said:

"21. The Lord Ordinary notes that all the experts agreed that to use excessive

traction in a case of shoulder dystocia would fall below the standard of an

ordinarily competent midwife. On behalf of the Trust it was conceded that, if that

was the proven factual situation, there was no other probable cause for C's injury.

25. Having regard to the evidence led at the proof, plus the terms of the

Lord Ordinary's judgment and the parties' submissions, we are wholly unpersuaded

that the Lord Ordinary reached a wrong or unreasonable result."

[18]

In Campbell v Borders Health Board [2012] CSIH 49 (Second Division) at para [5], the

Lord Ordinary was quoted as saying:

"...midwife Davidson's actions would properly be found to be below the standard

to be expected of the ordinarily competent midwife exercising ordinary skill and

care, and a proof before answer on causation would be required. I am satisfied that

the pursuer has succeeded in establishing this first ground of negligence."

The court agreed with the Lord Ordinary's decision.

[19]

The words used in Hunter v Hanley ("no ordinarily competent") make it clear that

if any ordinarily competent (in this case) consultant radiologist of ordinary skill exercising

ordinary care would have done what was in fact done, the test is not met. The use of the

word "no" is taken to set a high bar. A test which is lower will not do. But it is possible

to express the test as a standard and make it clear that falling below that standard will be a

breach of duty, without the need to use the word "no". The language used by the pursuer

in the first passage of averments quoted above sufficiently reflects the test that requires to

be met. The word "reasonable" is superfluous, but the reference to the reports being of

"a standard below that to be expected of an ordinarily competent Consultant Radiologist

exercising ordinary...care" comes close to the language used in the cases noted above.

The reference to "that" must be taken to be a reference to the standard to be met. That

standard is what is referred to in Hunter v Hanley; it is what all ordinarily competent

consultant radiologists exercising ordinary care require to meet. There is no suggestion

in the pursuer's pleadings that any such consultant would not be negligent if his reporting

fell below that standard. The pursuer is therefore not averring that some lower standard

than that stated in Hunter v Hanley is to be applied.

[20]

Of course, to make such an allegation, expert evidence will require to support that

position. It must support (however it is ultimately expressed) the proposition that no

ordinarily competent consultant radiologist of ordinary skill exercising ordinary care would

act in that manner. Senior counsel for the defenders referred to the pursuer's expert report

and submitted that it did not address the relevant test. This was, however, only an

incidental part of the argument in relation to relevancy and there was no separate motion

to dismiss the pursuer's case on the basis that it was unsupported by expert evidence. I was

not taken to the report in detail. There is some force in the point made by senior counsel for

the defenders that the pursuer does not specify who wrote the report in respect of the MRI

scan on 18 December 2015 and whether it was a junior doctor or a consultant. However,

parties will be, or will become, aware of who was the author and the pursuer's averment

refers to the standard of a consultant. Whether the pursuer does or does not have sufficient

support in the expert evidence remains to be seen.

[21]

Deviating from the language used in Hunter v Hanley, whether in the pleadings or in

the expert report, runs the serious risk of not corresponding with its meaning. In this case,

however, the relevant test has been expressed in an alternative fashion.

Causation

[22]

The next question is the relevancy and specification of the averments in respect of

causation. The alleged breaches of duty by the consultant radiologist must have caused,

or at least materially contributed to, the alleged loss. In this case, where it is said that the

overly extensive surgery by Mr Wales resulted in the loss of the pursuer's left eye, any

negligence by the radiologist can only have contributed if Mr Wales relied upon the terms

of the radiology reports.

[23]

Senior counsel for the defenders referred to the causal chain and how that should

flow in a case such as this. It is true, and indeed undisputed, that while the pursuer makes

averments about what the reports stated, there are no express averments about what the

reports should have said. But it is the pursuer's averred position that the reports are

inaccurate. The nature of the alleged inaccuracies are made reasonably clear. It is sufficient

for the pursuer to identify the inaccuracies and the resulting inference, to be obviously

drawn, is that these should not have been present in the reports. Precisely how the reports

should have been expressed does not need to be averred, when the things that should not

have been said (the spread of cancer) are clearly identified and the implication is that the

reports should have said there was no such spread.

[24]

It is also correct that the pursuer does not expressly aver what would have happened

had the reporting been non-negligent and in particular whether there would have been no

surgery at all or it would have been performed differently. However, it can readily be

inferred from the pleadings that if the points complained about had not been stated in the

reports, there would have been no causal link between the loss and the radiology reports. It

is a case predicated "to the extent Mr Wales relied upon" the allegedly incorrect radiology

reports. That is the averred causal link. It is plainly implicit in this branch of the case that

the presence of the inaccuracies caused the loss and that if the inaccuracies were not present

the loss would not have occurred. If that is not proved, because the loss of the eye would

have occurred even if the reports had been accurately prepared, the case against the

radiologist will fail on causation. That will of course be a matter to be determined on the

evidence.

[25]

Senior counsel for the defenders made the point that the decision on surgery had

been reached by the multi-disciplinary team. It will again be a matter for determination by

the court on the factual evidence as to precisely what their decision was and how, if at all, it

affected the decisions made by Mr Wales. On the averments made, the decision by the team

does not exclude the case against the radiologist.

[26]

In short, this is not a case where it could be concluded at this stage that even without

the alleged negligence by the radiologist the same loss would have arisen and hence that

there can be no causal link. Read fully and in context the point being made is that the

reports were inaccurate and that esto Mr Wales relied upon those inaccuracies in the reports,

the loss of the eye was caused thereby.

[27]

It is of course also correct that the pursuer has not adopted the standard approach

of presenting this part of the case on an esto basis. Instead, the expression "to the extent" is

used. While far from being a helpful approach, when read in context it falls to be viewed as

indeed an esto case. Such a case can be presented as a possibility of what occurred and that

is the position here, because the pursuer does not know whether or not, or the extent to

which, Mr Wales relied upon the radiology reports. The court was advised that questions

have been put to Mr Wales on this issue and it may be that the answers could have some

impact upon the pleaded position, but that remains to be seen.

Conclusion

[28]

The parts of the pursuer's pleadings that are the subject of challenge are not

expressed in the standard or normal fashion. However, I am not able to conclude that this is

a very clear case showing a lack of relevancy or specification. The position adopted in the

pleadings does not bring it within the rare and exceptional criteria noted in the authorities.

From the averred facts and circumstances, relevant and specific allegations of fault and a

causal link can reasonably be seen or, at least, inferred.

Disposal

[29]

The defenders' motion to exclude certain averments from probation is refused and

their plea-in-law on that point is repelled. The case will proceed to a proof before answer on

the parties' whole averments. All questions of expenses are reserved.