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RECLAIMING MOTION BY MARGUERITE HENDERSON AGAINST BENARTY MEDICAL PRACTICE [2023] ScotCS CSIH_1 (10 January 2023)
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[2023] ScotCS CSIH_1,
2023 GWD 4-49,
[2023] CSIH 1
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2023] CSIH 1
PD167/21
Lord Malcolm
Lord Pentland
Lord Boyd of Duncansby
OPINION OF THE COURT
delivered by LORD BOYD OF DUNCANSBY
in the Reclaiming Motion
by
MARGUERITE HENDERSON
Pursuer and Reclaimer
against
BENARTY MEDICAL PRACTICE
Defenders and Respondents
Reclaimer: Party; Trevor Turner, lay representative
Respondents: Ferguson KC, MDDUS
10 January 2023
Introduction
[1]
On 28 February 2018 the reclaimer was admitted to hospital with sepsis. Her
condition deteriorated and she underwent life-changing amputations. She raised an action
against the partners and former partners of her local medical practice averring breaches of
duty by reception staff resulting in a delay in her receiving treatment. She claims that this
delay ultimately led to her amputations.
2
[2]
Following proof the Lord Ordinary held that the reclaimer had not established
liability on the part of the respondents and assoilzied the respondents (see [2022] CSOH 28).
The Lord Ordinary explained that the parties had agreed that the real issue for proof could
be narrowed down to the content of a telephone call that took place at 09:34 on Wednesday
28 February 2018 between the reclaimer and Heather Leslie, a receptionist at the
respondents' medical practice. The critical issue concerned whether an appointment
the reclaimer had with the treatment room nurse at 14:55 that day was cancelled at the
reclaimer's own request. If the respondents' position that the reclaimer had cancelled the
appointment was accepted, the respondents would not be liable. The reclaimer's position
was that the court should make findings about what occurred during the call and fix further
procedure to consider the findings. The Lord Ordinary found, as a matter of fact, that
Ms Leslie had cancelled the reclaimer's appointment at the reclaimer's request. The
reclaimer reclaims (appeals) that decision.
[3]
The reclaimer was represented by senior and junior counsel at the proof but was
unrepresented at the summar roll hearing (appeal). Mr Trevor Turner was authorised by
the court to act as lay representative. Substantive notes of argument were lodged by the
reclaimer and the respondents and we heard oral submissions in supplement. Mr Turner
kindly provided the typed version of his oral submissions. We are grateful to Mr Turner
and counsel for their submissions.
Facts
[4]
On 25 February 2018 the reclaimer noticed a cut on her right index finger. The
following day, she noticed a blue-ish spot on the cut and attended the pharmacy. The
pharmacist advised her to make an appointment with her GP. The reclaimer's registered
3
medical practice at that time was Benarty Medical Practice. She spoke with Gillian Simon,
a receptionist at the practice, who arranged an appointment with a treatment room nurse
for 27 February at 15:45. The appointment was cancelled on the morning of 27 February
at the reclaimer's request. She spoke with another of the practice's receptionists,
Brenda McDonald, and advised that she felt too unwell to attend. Ms McDonald
rescheduled the appointment for Wednesday 28 February at 14:55.
[5]
Owing to extreme weather conditions on 28 February, falling within the period when
the UK was facing the "Beast from the East", Heather Leslie made contact with patients that
morning. She spoke with the reclaimer at 09:34 and, while what took place on that call is a
matter of dispute between the parties, Ms Leslie cancelled the reclaimer's appointment. By
the afternoon of 28 February, the reclaimer's condition had deteriorated. She spoke again
to Brenda McDonald at or around 17:00 and reported feeling extremely unwell and
experiencing pain in her arm and underarm. Ms McDonald reported the reclaimer's
symptoms to the on call doctor, Dr Susan Filsell, who called the reclaimer at 17:27.
[6]
Dr Filsell, suspecting that the reclaimer had sepsis, advised her that, as there were
no doctors left at the practice at that time, she should contact the NHS out of hours service
at 18:00. Shortly thereafter, the reclaimer's daughter and her husband visited her.
Concerned about her condition they took her to the emergency department of Victoria
Hospital. Her symptoms were investigated and she was treated for sepsis. However, her
condition deteriorated further. On 3 April 2018 she underwent a left forearm amputation
along with amputation of the fingers and part of the thumb of her right hand. On 12 April
she underwent bilateral below-knee amputations. On 8 May she underwent further
debridement of her right hand. She continued receiving extensive in-patient treatment until
she was discharged on 24 August 2018.
4
[7]
In March 2018 the reclaimer's daughter submitted a complaint to the practice via
Elizabeth Fallas, NHS Fife's patient relations officer. On 5 April 2018 the respondents
responded to each of the points raised in the complaint, in sum denying any liability, and
confirming it would undertake a Significant Event Analysis to identify future learning and
training points. The reclaimer intimated a formal letter of claim alleging negligence via her
solicitors on 19 November 2019.
[8]
On 28 August 2020 the reclaimer released a book about her experiences entitled "My
Story: Sepsis Raw and Real".
The evidence
[9]
The Lord Ordinary sets out the evidence in detail in her opinion: see paras [7]-[47].
What follows are the pertinent parts of the evidence relative to the issues which arise for
determination in this reclaiming motion.
The reclaimer's belief of whom the appointment was with
[10]
This dispute centres on the 26 February call between the reclaimer and Gillian Simon
when the initial appointment was booked. In her evidence the reclaimer stated that she
believed the appointment was with a doctor, not a treatment room nurse. It is not in dispute
that the appointment as booked was with the latter.
[11]
In her statement Ms Simon states that she would routinely confirm various details
with patients at the end of a call booking an appointment, that is, the date and time of the
appointment and who it was with. She was of the view that she would have also done this
on the call with the reclaimer. That evidence was not challenged.
5
Whether the reclaimer told Brenda McDonald she had a virus
[12]
The reclaimer cancelled her initial appointment on 27 February by calling the
practice and speaking with Brenda McDonald. The reclaimer was unclear in her evidence
as to the timing of the call. She initially claimed that she had called the practice before 09:00
and disputed a typed note by Brenda McDonald which suggested the call was at 13:43.
When faced with records from the audit trail supporting Ms McDonald's note, she conceded
that her recollection of the timing must be wrong. However, she stated that she was clear
about what she had said on the call. She said that she had "flu like symptoms". She did
not mention her finger. Ms McDonald then told her that there was a "virus going about".
[13]
Brenda McDonald spoke to being on first name terms with the reclaimer. The
reclaimer told her that she was not feeling well that day, that she had been sick and thought
she had picked up a virus. Ms McDonald responded saying something to the effect that
"you could be right...it's maybe a wee virus". While they had both mentioned a virus, it
was not possible that Ms McDonald had mentioned it first.
[14]
Elizabeth Fallas, a patient relations officer with NHS Fife, assisted the reclaimer's
daughter in framing the initial complaint to the respondents. In the complaint Ms Fallas had
noted, on the family's behalf, that the reclaimer, when speaking with Ms McDonald,
identified she might be suffering with a virus. The reclaimer disputed this. In her statement
Ms Fallas noted that she could not confirm with any certainty the detail of her conversation
with the reclaimer's daughter when formulating the complaint.
The cancellation of the appointment on 28 February
[15]
The Lord Ordinary noted that the real issue between the parties at the proof was the
content of the telephone call on 28 February at 09:34 between the reclaimer and
6
Heather Leslie. It was at or around this time that the reclaimer's appointment for that
afternoon was cancelled. The issue arising was whether this had been done at the
reclaimer's request.
[16]
The reclaimer stated that she had been woken from sleep by the call. She was
drowsy and drifting in and out of sleep all day. Ms Leslie said she was calling to enquire
whether patients with appointments that day still needed appointments in light of the
extreme weather conditions. The reclaimer said she did. She had been feeling worse than
the day before. She described some of her symptoms and the pain she was experiencing
to Ms Leslie. The reclaimer's position regarding whether she mentioned her finger to
Ms Leslie on that call was unclear, however she was adamant she had not said it was feeling
better. She was told that the appointment would be left "as is". The reclaimer was of the
view that Ms Leslie was not really listening on the call. She only wanted to cancel or
reschedule the appointment. She did not ask the reclaimer how she was feeling. That
said, the reclaimer did accept it would have been odd for Ms Leslie to have cancelled
the appointment where she had said in terms she needed it. Furthermore, she had some
recollection of Ms Leslie saying that a replacement nurse was available that day but only
recalled being asked whether she wanted to cancel or reschedule.
[17]
Heather Leslie recalled that 28 February was an unusual day because she had to
contact all treatment room patients and inform them another nurse was available to see
them. It was not any busier than a normal day. She remembered the reclaimer saying she
did not think she needed the appointment. She thought her finger was getting better and,
while Ms Leslie said that a nurse would still be there and she could be seen, the reclaimer
said she would "leave it just now". In order to cancel appointments Ms Leslie had to follow
a two-step process, first, by bringing up the patient's name on the screen and clicking
7
"cancel" and, secondly, by clicking again to confirm the cancellation. The conversation
between Ms Leslie and the reclaimer was very brief. She estimated it lasted no more than
a minute. The reclaimer did not tell her she was feeling worse or had to see a doctor. Had
she done so, Ms Leslie would not have cancelled the appointment. She denied being on a
mission to cancel appointments that morning. While she wanted to get home safely, she was
not trying to get away from work early.
[18]
Dr Filsell spoke with the reclaimer on the evening of 28 February. In her statement
she said that had the reclaimer told Ms Leslie about her symptoms and that she needed
a doctor to look at her finger, it is likely she would have been passed straight through to
Dr Brown. Dr Brown had just finished dealing with a patient at 09:33. She did not see her
next patient until nearer 10:00. Alternatively, she could have been given an emergency
appointment, which were available with Dr Filsell that day, or a home visit could have
been made.
[19]
Dr Katy Green encountered the reclaimer following her admission to Victoria
Hospital. In a note she took of the reclaimer's history, she noted that the reclaimer had a cut
on her right finger which "appears to have settled". She also recalled the reclaimer having
told her the finger was improving over the preceding day. She noted that Dr Pugh, who
examined the reclaimer following her admission to hospital, referred in his note to a cut,
healing finger.
The reclaimer's knowledge that the appointment was cancelled
[20]
The reclaimer gave evidence that, when speaking with Brenda McDonald on
28 February, she believed her appointment that day was still to come. She accepted that
this call took place just before 17:00, however she said that her condition was such that she
8
was unaware the appointment had already passed. It was put to the reclaimer that her
account was inconsistent with a letter sent to MDDUS by her solicitors related to the
complaint her daughter made on her behalf. The letter stated that the reclaimer was advised
by Ms McDonald when she called the surgery for help that afternoon that all appointments
had been cancelled due to the weather. A note taken by Laura Adams, the practice
manager, following her meeting with the reclaimer's daughter and her husband in relation
to the complaint posed a question of why Heather Leslie had cancelled the appointment.
The reclaimer disputed the contents of both. She was unaware her appointment was
cancelled until some months later when the case was reviewed. In her initial discussions
with her daughter she was under the influence of strong medication. She did not call the
practice to advise she was too unwell to attend the appointment. The passage in the
summons averring that she had was wrong.
[21]
Brenda McDonald said she received the call not long after 17:00. The reclaimer
sounded totally different from when she had spoken to her on 27 February. She recalled
asking the reclaimer whether she had attended her appointment that afternoon to which the
reclaimer responded "no". She did not ask the reclaimer why she had not attended. The
reclaimer did not say that she had missed the appointment, nor did Ms McDonald recall
any reference on the call to the appointment having been cancelled.
[22]
Ms Fallas, while noting that she could not confirm with certainty the details of her
discussions with the reclaimer's daughter, spoke to a typewritten note stating the reclaimer
had been unable to attend due to weather conditions. The initial terms of the complaint
stated she could not be seen due to bad weather. Ms Fallas could not explain the difference
in emphasis between the two. Following the respondents' response to the complaint, which
9
she received and forwarded to the reclaimer's daughter, she had no further involvement
with the family.
The replacement treatment room nurse
[23]
In their evidence both the reclaimer and Heather Leslie spoke to there being mention
on the 28 February call that a nurse was available to see the reclaimer, who was, irrespective
of the reclaimer's knowledge, booked in as a treatment room patient.
[24]
Laura Adams gave evidence relating to an appointment book kept by the practice.
On 27 and 28 February it was recorded that the treatment room nurse, Louise Thomson,
could not make it to the practice. NHS Fife were noted to have provided a replacement,
Kara Mackie. Ms Adams stated that NHS Fife were also Louise Thomson's employers.
[25]
Kara Mackie gave a signed statement. Her evidence was unchallenged. She stated
she was a community staff nurse. Due to heavy snow she had been unable to travel to her
own work base on 28 February. She was advised to call to her nearest GP practice to cover
essential visits. She called to Benarty Medical Practice. She was asked to see a couple of
treatment room patients in the afternoon and, under reference to her 2018 diary, spoke
to having seen and treated one patient that afternoon. She left the practice sometime
after 15:00.
Audit trail of appointments on 28 February
[26]
Laura Adams gave evidence relating to audit trails sh e had conducted of the clinical
system relating to the reclaimer, restricted to actions taken between 26 and 28 February 2018,
both dates inclusive. She spoke to the initial booking of the appointment and the first
cancellation processed by Brenda McDonald. She also confirmed that Heather Leslie had
10
cancelled the reclaimer's 28 February appointment following their call at 09:34. Under
reference to the appointment book she noted that patients had been seen by the practice
nurse, Dr Brown and Dr Filsell on 28 February. Dr Filsell had seen patients in the afternoon
with the last patient leaving at 15:31.
[27]
Heather Leslie confirmed, under reference to the audit trail, that on 28 February
some appointments were cancelled and others were booked. An appointment was
booked for 10 minutes at 15:50. The audit trail illustrated that at 09:30 she had booked
an appointment for a patient to attend the treatment room in the afternoon of 28 February.
This was because the treatment room was an afternoon clinic, notwithstanding she had been
trying to put appointments into the morning to free up the afternoon. The reclaimer had
been given three 5 minute slots on 28 February. All of these slots were cancelled following
the 09:34 call.
[28]
Kara Mackie's statement, as already noted, spoke to having treated a treatment room
patient in the afternoon of 28 February.
The handwritten statements
[29]
In her evidence Laura Adams said she followed her normal practice when receiving
complaints. She requested statements from Brenda McDonald and Heather Leslie before
sending a letter of response. She had no further input once she requested the statements.
Ms McDonald and Ms Leslie would have handwritten the statements and then typed them
up.
[30]
Brenda McDonald said she was asked to make a note of her recollection of events a
few weeks after the complaint was received. The events had stuck in her mind because of
11
what she learned about the reclaimer's condition later. She did not have notes to prompt her
recollection. She wrote the initial statement at the beginning of April 2018.
[31]
Heather Leslie also said she handwrote the statement in April 2018 shortly after the
complaint was received. She signed it but it was undated. She handed the handwritten
statement to Laura Adams whom she believed typed it up. She recalled going over the
typed note with Ms Adams and comparing it with her handwritten statement. She was
confident that she would have checked it but, in any event, was content that it accurately
reflected what she had said in her handwritten statement.
The significant event report
[32]
The report was put to Heather Leslie. She said Laura Adams had shared it with her,
she believed, because of her involvement in the events. Ms Leslie was asked about the
section of the report headed "What went wrong" where "communication between patient
and practice" and "extreme weather conditions" were noted. Ms Leslie disputed there was
anything wrong in the communication between her and the reclaimer.
The Lord Ordinary's decision
[33]
The Lord Ordinary considered that all witnesses had been doing their best to tell the
truth. The matter turned on which of the witnesses' recollection had been accurately
retained (Onassis v Vergottis [1968] Lloyd's LR 403, Lord Pearce at 431) and the internal
and external consistency of their evidence (Gestmin SGPS SA v Credit Suisse (UK) Ltd &
Another [2020] 1 CLC 428, Leggat J at paragraphs 16-20). Their demeanour was of little
assistance. There was one issue of dispute between the respondents' witnesses namely who
prepared the typed statements. On this issue the Lord Ordinary preferred Heather Leslie's
12
evidence over Laura Adams'. She considered that Laura Adams had been responsible for
typing up the handwritten statements.
[34]
In terms of the contents of the call on 28 February 2018 at 09:34, the Lord Ordinary
preferred Heather Leslie's account. She gave three principal reasons for doing so. First,
there was no reason for Heather Leslie to cancel the appointment. It was inexplicable that
she would have done so where the reclaimer had expressly stated that she still needed the
appointment. The reclaimer herself recognised that this would have been odd. She recalled
there being some mention of a nurse being available to see her in the afternoon if required.
The cancellation of appointments was a two-step process. This made it unlikely that
Heather Leslie cancelled the appointment inadvertently. The short duration of the call
supported Heather Leslie's account that the reclaimer did not describe her symptoms.
The Lord Ordinary accepted the evidence of Dr Filsell that, had the reclaimer done so,
Heather Leslie would have passed the call to a doctor. The reclaimer's contention that she
kept the 28 February appointment, when on her own account she was feeling worse than
the day before, was inconsistent with her having cancelled the appointment on 27 February
because she felt too unwell to attend. In the course of cross-examination, it became clear she
had given no thought to how she would get to the practice for the appointment.
[35]
Secondly, there was evidence that some appointments at the practice were still being
kept and new ones made for that day including with the replacement treatment room nurse.
The audit trail illustrated that appointments had been booked for that day. This
contradicted the reclaimer's claim that Heather Leslie was "on a mission" to cancel
appointments.
[36]
Thirdly, Heather Leslie's account that the reclaimer said her finger was getting better
was consistent with the note taken by Dr Green shortly following the reclaimer's admission
13
to hospital. Senior counsel for the reclaimer accepted that the reclaimer had been
inconsistent about whether she mentioned her finger on the call. Dr Green's notes, as well
as those of Dr Pugh who examined the reclaimer later that day, both recorded that the cut on
the reclaimer's finger was healing. There were other reasons why Heather Leslie's account
was to be preferred. While the reclaimer criticised her statement on the basis it was not a
contemporaneous account, it was provided within weeks of the event. There were sound
reasons why she would be able to remember that day, namely the serious adverse weather
conditions; the actions she had to take as a result; and what she learned of the reclaimer's
condition soon thereafter.
[37]
In terms of the 27 February call between the reclaimer and Brenda McDonald, the
Lord Ordinary preferred Brenda McDonald's account. She regarded it as inherently
unlikely that an experienced member of non-medical staff would have suggested the cause
of a patient's symptoms. Brenda McDonald's evidence was supported by the terms of the
initial complaint submitted by Ms Fallas on the reclaimer's behalf. The call between the
reclaimer and Brenda McDonald on 28 February added nothing. The external evidence
indicated that she was aware the appointment had been cancelled. Brenda McDonald could
not speak to this. She gave evidence that the reclaimer informed her she did not attend but
did not explain why. However, a note prepared by Ms Fallas following her meeting with
the reclaimer's daughter suggested the reclaimer had been unable to attend the appointment
due to weather conditions. The Lord Ordinary concluded that the reclaimer's position was
untenable when assessed with reference to the unchallenged evidence. It was based on
"wishful thinking" (Onassis v Vergottis supra).
14
Submissions
Reclaimer
[38]
The reclaimer contends that the Lord Ordinary's reasons are unsatisfactory and that
this court is entitled to interfere (Thomas v Thomas 1947 SC (HL) 45). The three principal
reasons given for preferring the evidence of Heather Leslie are vitiated by errors the
Lord Ordinary made in assessing the evidence, namely that she made critical findings in fact
with no foundation in the evidence; failed to take into account relevant evidence; and
misunderstood the evidence. Heather Leslie's account was unreliable when assessed both
internally and against the external evidence. She was able to provide limited information
about the day of the event and the precise words she used on the call. The external evidence
suggests no treatment room was to be run on 28 February. It was an afternoon clinic.
Kara Mackie, who Laura Adams was speaking about in her evidence, was covering essential
visits. She had not been arranged to attend the treatment room as a replacement for
Louise Thomson at the time of Heather Leslie's call with the reclaimer. This does not appear
to have been arranged until a later call. Heather Leslie was speaking about a different nurse,
Karen Gold, the practice nurse, who ran a morning clinic and who was also unavailable in
the afternoon. As there was no replacement nurse available, Heather Leslie could not have
offered to keep the appointment.
[39]
Heather Leslie's evidence that all the appointments she cancelled were done at
the request of patients was incredible. It was not suggested that she had cancelled the
reclaimer's appointment inadvertently, but there were ample reasons for her to do so,
namely the unavailability of a replacement nurse; the extreme weather conditions; and
that those conditions were to deteriorate in the afternoon when the treatment clinic would
usually run. The short duration of the call, which based on the audit trail could in fact have
15
lasted up to 3 minutes, indicates Heather Leslie was not listening to the reclaimer. Had she
done so, she would have recognised the reclaimer was suffering symptoms of severe sepsis,
required urgent medical attention and the amputations would not have been required.
Heather Leslie's employment relationship with the respondents, which meant she had a
stake in the proceedings (Gestmin supra), was also left out of account. The Lord Ordinary
found she had not typed her own statement. Her handwritten statement was not available
at proof. These were all matters which should have led the Lord Ordinary to reject her
evidence.
[40]
Neither the audit trail nor the appointment book, both of which were before the
Lord Ordinary at the proof, demonstrate that an appointment was booked for the treatment
clinic in the afternoon. Laura Adams did not suggest there was. The only evidence to this
effect was from Heather Leslie. To this extent the Lord Ordinary was misled. None of the
appointments that took place with doctors in the afternoon, of which there were three, was
new either. Dr Brown's appointments were brought forward from the afternoon into the
morning, meaning she could not have carried out a home visit to the reclaimer had she
requested this.
[41]
The Lord Ordinary failed to recognise the distinction between "community staff"
and "treatment room" nurse. Kara Mackie was the former. While she treated a treatment
room patient in the afternoon, her role was to cover for the community staff nurse and carry
out essential home visits. The other patient she was supposed to treat failed to attend. It is
likely he got the message the appointment was cancelled. There were also inconsistencies in
Dr Filsell's evidence, as between the contemporaneous note she prepared following her
call with the reclaimer on 28 February and the email she sent to Laura Adams almost
immediately thereafter. There was a discrepancy as to whether the reclaimer had mentioned
16
that the pain in her right axilla into her breast started that day or the day prior. Dr Filsell's
statement makes clear that the latter is correct. Nor was there any mention of a red swollen
fingertip in the contemporaneous note. The reclaimer's fingertip was never affected; the cut
was near to the knuckle on her right index finger. It is likely this information was added
following Dr Filsell's call with Brenda McDonald shortly after the call with the reclaimer,
during which time Brenda McDonald is shown to have accessed the reclaimer's file.
Dr Filsell's contradictory position is also highlighted by Dr Green's note which records
that the pain had developed the day before and the reclaimer's finger was not causing her
concern. The Lord Ordinary, in accepting Dr Filsell's evidence that Heather Leslie would
have passed the reclaimer to a doctor had she been informed of her symptoms, expressly
"[left] aside" the reclaimer's evidence that she already thought the appointment was with
a doctor. The reclaimer need not have given much thought to how she would attend the
practice given her house is in close proximity and various friends and family lived nearby to
assist her.
[42]
In terms of the 27 February call between the reclaimer and Brenda McDonald, the
latter ought to have recognised the reclaimer was suffering sepsis. Brenda McDonald's
handwritten statement, which refers to the reclaimer stating she thought she may have
"picked up a bug", was inconsistent with the typed statement which refers to "a virus".
The handwritten statement supports the reclaimer's account that she never mentioned
having a virus to Brenda McDonald. The introduction of desk aids and the contents of
the significant event report are indicative of the respondents' having accepted their
receptionists' negligence. The latter, which was relied on by senior counsel at proof,
suggests the partners recognised clinical decisions were being made by receptionists, asked
them to consider their actions and reiterate that they do not make clinical decisions. The
17
clinical decisions included: Gillian Simon booking the appointment with a nurse rather than
a doctor; the cancellation of the reclaimer's appointments resulting in a delay in her seeing a
doctor; and the failure by reception staff to report her deteriorating symptoms promptly.
The report was a crucial document and was not considered in its entirety. The
Lord Ordinary only referred to section 3. Neither Heather Leslie nor Laura Adams have
explained why receptionists were considered to have made clinical decisions or what
prompted the partners to call on them to consider their actions and reiterate they do not
make clinical decisions.
Respondents
[43]
The reclaimer should not be permitted to introduce new eviden ce that was not before
the Lord Ordinary (Scotch Whisky Association v Lord Advocate [2016] CSIH 77). She has failed
to identify any proper basis for disturbing the Lord Ordinary's primary findings in fact. The
approach to be taken by the appellate court in such appeals is well-established (Thomas v
Forth Valley Health Board 2021 SLT 695, Lord Tyre at paragraph 25). The Lord Ordinary has a
paragraph 22). She had sight of the whole body of evidence which is not before this court.
She took advantage of seeing and hearing the witnesses and tested their accounts against
extraneous evidence. She found the reclaimer's account to be untenable and was entitled to
do so.
[44]
The first strand of the reclaimer's submission is the suggestion that the
Lord Ordinary left out of account or misunderstood relevant evidence. However, her senior
counsel at proof did not rely on much of the evidence she now seeks to. The Lord Ordinary
18
did not leave out of account that the reclaimer believed the appointment was with a doctor.
She was focusing on the implausibility of the reclaimer's account that Heather Leslie would
have cancelled the appointment despite the reclaimer describing her symptoms and
expressly stating she wanted to keep it. The absence of an audio recording of, or
contemporaneous note from, the call did not preclude the Lord Ordinary deciding which
of the competing accounts she prefers. The issues raised in relation to Heather Leslie's
credibility were put to her at proof. They are insignificant matters and do not undermine
the Lord Ordinary's conclusions, which were clear, cogent and unassailable. Her better
memory of that call was understandable given what she learned of the reclaimer's condition
within a couple of days of it.
[45]
The Lord Ordinary found Heather Leslie's account of the call to be accurate and
established as a matter of fact. The critical proposition that underpins the reclaimer's case
is that Heather Leslie decided to do the exact opposite of what a patient asked her to do.
It does not matter that the appointment was cancelled unless the court accepts that the
reclaimer described her symptoms to Heather Leslie and requested the appointment be kept.
On the morning of 28 February Heather Leslie was contacting patients to check if they
wished to keep their appointments. It was unclear whether Kara Mackie, who the practice
had spoken to early in the day, would have to attend the practice in the afternoon. That
would depend on whether she was required. It does not follow from Heather Leslie
advising the reclaimer a nurse was available that Kara Mackie was at the practice at that
very moment. There is no dispute that Kara Mackie treated one patient. It is speculative
to suggest the reason why the other patient did not attend. Some appointments were kept
and others arranged for that day. It is accepted that the Lord Ordinary was incorrect to
find a new treatment room appointment was booked for the afternoon, but this does not
19
undermine her decision. It was not a critical finding. The preponderance of evidence
supported the Lord Ordinary's conclusions. The short duration of the call is illustrated by
the audit trail which shows Heather Leslie performing an administrative task 1 minute later.
The reclaimer was found to be inconsistent on certain matters. She fails to engage with
the other evidence the Lord Ordinary relied on. Gillian Simon directly contradicted the
reclaimer's evidence about her knowledge of whether the appointment was with a nurse
and the respondents challenged that evidence. In any event the real issue was whether and
why the appointment was cancelled.
[46]
The significant event report played a minimal role at proof. It is a learning exercise;
it is not a forum for attributing blame or acknowledging fault. The Lord Ordinary correctly
recorded the excerpts put to Heather Leslie. The issues with communication noted in the
report arise from the conflicting accounts of whether the reclaimer said to Heather Leslie
that the appointment should be left "as is" or left "for now". The introduction of desk aids
do not yield any inference of negligence either.
[47]
The second strand relies on the apparent distinction between types of nurse. This
did not feature at proof and has no foundation in the evidence. It is a matter of fact that
Kara Mackie treated a treatment room patient. She was correctly understood to be a
replacement for Louise Thomson, irrespective of whether she was known to be attending
the practice when Heather Leslie first started contacting patients. By the time she contacted
the reclaimer, other patients not having answered, she knew a replacement nurse might
have to be available in the afternoon. The appointment books were not before this court.
All the Lord Ordinary accepted from the audit trail was that new appointments were made
"that day", not specifically for the afternoon.
20
[48]
The third strand suggests Heather Leslie's evidence was tailored to match Dr Green's
notes. It was unclear from the oral submissions whether the reclaimer was maintaining this
argument. If she was, it was not advanced at proof and has no foundation. Dr Green's notes
were first made available on 24 December 2019 and she was precognosced on 21 March
2021, long after the event, whereas Heather Leslie provided her statement within only a few
weeks of it. It is fanciful to suggest that Heather Leslie colluded with Dr Green prior to
preparing her statement. The typed statements of Heather Leslie and Brenda McDonald are
not materially different from their handwritten statements. Brenda McDonald's statement
does not support the reclaimer's account. It is of no moment whether she said "bug" or
"virus". No case of fault was pled against her and the reclaimer's case, insofar as it now
alleges negligence by her, is irrelevant. The contents of the 27 February call only bear upon
the general credibility of witnesses.
The law
[49]
The applicable law is not in dispute. It was summarised in the respondents' note of
argument as follows. A finding of primary fact made by a Lord Ordinary can be interfered
with if -
a. The Lord Ordinary has made a material error of law.
b. The Lord Ordinary has made a critical finding of fact without there being
any evidence to support it - either because there was no evidence, or because
the Lord Ordinary has demonstrably misunderstood relevant evidence.
c. The Lord Ordinary has left out of account relevant evidence.
d. The Lord Ordinary has made a finding of fact which is "plainly wrong".
e. The Lord Ordinary's reasons are unsatisfactory.
21
[50]
These propositions are derived from a line of authority starting with Thomas v
Valley Health Board 2021 SLT 695 at para [25]. Issues of credibility and reliability having
regard to the other evidence are pre-eminently for the Lord Ordinary; McGraddie v
[51]
Mr Turner accepted that statement of the law and relied on propositions (b) to (e) in
his submissions.
Discussion
[52]
The proposition that the reclaimer sought to advance was that Heather Leslie had
telephoned her "on a mission" to cancel the appointment. The reclaimer had told
Heather Leslie that she did still need her appointment and that she still felt unwell, worse
than the day before. She said she told Heather Leslie that she was lethargic, unable to get
out of bed and that her right arm was aching. She said she had been conscious that she
had not seen a doctor yet about the cut on her finger and mentioned this to Heather. She
said that Heather Leslie told her that she would leave the appointment in place for that
afternoon.
[53]
In the face of that narrative the reclaimer contends that Heather Leslie nevertheless
cancelled the appointment without informing her and leaving her believing that the
appointment was still going ahead. The Lord Ordinary found this to be inexplicable.
[54]
This appears to us to be an implausible scenario especially since that would have left
the reclaimer attending the surgery for her appointment only to find it had been cancelled.
The Lord Ordinary was satisfied that cancellation was unlikely to have occurred
accidentally. In our view the undisputed fact that Heather Leslie cancelled the appointment
22
is more consistent with her account than that of the reclaimer. If the appointment was
cancelled accidentally, given that the reclaimer did not attend the practice that afternoon,
nothing would flow from that.
[55]
Issues of credibility and reliability are pre-eminently for the Lord Ordinary who
had the distinct advantage of having listened to all the evidence and weighed it against the
documentary productions. The Lord Ordinary found that both Ms Leslie and the reclaimer
were credible witnesses but preferred the evidence of Ms Leslie. The reclaimer relied on the
dicta of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd where he noted,
"The nature of litigation is such that witnesses often have a stake in a particular
version of events. This is obvious where the person is a party or has a tie of loyalty
(such as an employment relationship)."
[56]
Three points may be made on this passage. First, the Lord Ordinary quotes the
passage in full at the start of her assessment of the evidence. It is clear therefore that it
was at the forefront of her mind. Secondly, it does not imply that because a witness is an
employee her evidence should be rejected. Thirdly, the dicta apply equally to the reclaimer
as to the respondents' employees. In the course of submissions it was suggested that the
respondents' employees had colluded in their evidence and that Heather Leslie's evidence
had been tailored to fit with that of Dr Green. None of this was suggested to any of the
witnesses at the proof. Nor could it properly have been since there is no evidence to support
such a contention.
[57]
The Lord Ordinary gave sound reasons for preferring the evidence of Ms Leslie. She
noted that there was no reason for Ms Leslie to cancel the appointment; other appointments
were being made for that day and this negates the suggestion that Ms Leslie was "on a
mission" to cancel appointments. The audit trail supports the Lord Ordinary's conclusion
that the call was a brief one which tended to suggest that there was insufficient time to
23
discuss symptoms. The medical records from Dr Green and Dr Pugh support the conclusion
that the reclaimer told them that her finger was improving, providing further support
for Heather Leslie's account. The Lord Ordinary accepted the evidence of Dr Filsell that
Ms Leslie was an experienced receptionist whose general competence was not questioned.
Had Ms Leslie been told of the symptoms in the course of the call it is likely that she would
have passed the call onto Dr Brown who was available in the surgery that morning. While
Ms Leslie's typewritten statement was not in the strictest sense contemporaneous the
Lord Ordinary accepted that it reflected her best recollection within a few weeks of the
incident. Her evidence was consistent with that statement.
[58]
There were inconsistencies in the reclaimer's evidence. The reclaimer said in
evidence that it was Ms McDonald who had first mentioned a virus in the course of the
telephone call on 27 February. That was not consistent with the initial complaint made on
her behalf. The Lord Ordinary concluded that it was the reclaimer who first mentioned a
virus. In her pleadings the reclaimer had indicated that she had told Ms Leslie that she still
needed a GP to look at the cut in her finger. In evidence she initially said that she had not
told her that it was about the cut in the finger. Ultimately she said that she could not recall
whether she had said anything "out loud" about her finger. She could not account for
having told Dr Green that her finger was improving, other than to say that her finger was
not her main concern at the time. There were further inconsistencies in her evidence about
the timing of the call to Ms McDonald in the afternoon of 28 February.
[59]
The reclaimer nevertheless contends that the Lord Ordinary left out of account
critical evidence, and in particular a significant event report which was completed by
the respondents following these events. We are not persuaded that the Lord Ordinary
left the report out of her consideration. It is specifically mentioned in paragraph 41.
24
We understand that other than its use in cross examination of Ms Leslie counsel for the
reclaimer did not seek to found on it in submissions. That is not surprising since it is of no
assistance in determining the content of the telephone call. Mr Turner sought to persuade
us that the reference in section 2 to "cancellation of appointments" as a factor was an
acceptance that the appointment was cancelled by Ms Leslie. We cannot accept that
proposition; there is no dispute that the appointment was cancelled. The report does not
assist in identifying who cancelled the appointment. Section 5 of the report states that
reception staff involved in the incident had considered their actions and reiterated that
they do not make clinical decisions and will continue to inform GPs promptly. Mr Turner
argued that this showed an acceptance by the staff that they had indeed made a clinical
decision in respect of the reclaimer. We cannot accept that interpretation. This was a
reiteration by the staff that they do not make clinical decisions, not that they had done so in
the past. The respondents' introduction of "desk aids" to assist reception staff in identifying
sepsis does not constitute an admission that they failed to do so in the past.
[60]
Nor are we persuaded that the Lord Ordinary was in error in accepting that a
treatment room nurse was available in the afternoon of 28 February. While it is true that
Ms Mackie was a community nurse she was a nurse who had been asked by NHS Fife
to contact her local GP practice and cover home visits. She did so and was asked to see
patients in the treatment room that afternoon and indeed saw one patient. Whether or not
Ms Leslie was referring to Ms Mackie or to another nurse in the practice, Ms Gold, when she
spoke to the reclaimer in the morning does not matter. Ms Leslie knew that a nurse would
have to be available in the afternoon in the treatment room and that is what happened. Had
the reclaimer turned up that afternoon for her appointment she could have been seen by
Ms Mackie, or indeed Dr Filsell who was still in the practice at that time.
25
[61]
The reclaimer complains that the Lord Ordinary relied on what the reclaimer
described as "fake" statements from Ms Leslie and Ms McDonald. Both women had written
statements in hand and these had been typed up later. There was some controversy as to
who typed the statements. The Lord Ordinary did not accept Ms Adams' evidence that she
had not typed them. She did however accept Ms Leslie's evidence that the typed statement
reflected the terms of her handwritten account. The Lord Ordinary was entitled to reach
that conclusion.
[62]
Since the proof the respondents have provided to the reclaimer the handwritten
statements of both Heather Leslie and Brenda McDonald. The reclaimer now seeks to found
on what Mr Turner describes as a discrepancy between Ms McDonald's evidence, which
includes a typed note of the telephone calls she had with the reclaimer, and the handwritten
note of these calls. Counsel for the respondents objected to the introduction of new material
in a reclaiming motion. Ordinarily we would not entertain the introduction of new material
to this stage in the proceedings. We have nevertheless considered the point.
[63]
Ms McDonald's typed note of the call on 27 February is as follows
"27/2/18 Telephone call from patient asking to cancel appt she had to check her
finger. Pt thought she had `picked up a virus' and rescheduled appt to attend
next day"
[64]
The handwritten note of the call which has now become available is in identical
terms except that for the word "virus" in the typed version there is the word "bug".
Mr Turner submitted that this demonstrated the deceit and dishonesty of the respondents'
staff as Ms McDonald had sworn under oath that the typed version was correct.
[65]
We reject this submission. There is no material difference between the words "virus"
and "bug" which are often used interchangeably. "Bug" might be a more colloquial term
than "virus" but in the context of a telephone call between a patient and a receptionist both
26
have the same meaning. Whether one or other of the words was used is immaterial and a
long way short of suggesting that Ms McDonald lied, far less that there was deceit on the
part of the respondents' witnesses. In any event the handwritten note does nothing to
advance the reclaimer's position that it was Ms McDonald who first mentioned that there
was a virus going about.
[66]
Counsel for the respondents conceded that the Lord Ordinary was in error in
para [60] when she stated that new appointments were being made for the treatment room
nurse that day. We agree that such a conclusion is not borne out by the evidence. The rest
of the paragraph however is accurate. Appointments were being kept for that day,
including for the treatment room and new appointments were being made with doctors. We
are satisfied that nothing turns on this point.
Decision
[67]
We recognise the catastrophic consequences that sepsis has had on the reclaimer and
she has our sympathy. We have carefully considered all of the 16 grounds of appeal and the
written and oral submissions. We can however find no error in the Lord Ordinary's opinion
which is cogent, comprehensive and well-reasoned.
[68]
The reclaiming motion is refused. We adhere to the Lord Ordinary's interlocutors of
5 April 2022. We reserve all questions of expenses in the reclaiming motion.
