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Cite as: [2003] ScotSC 27

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Ferguson v. Herd [2003] ScotSC 27 (04 February 2003) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS

A701/99

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		HILDA JEAN FERGUSON
		Pursuer and Appellant
		against
		DAVID HERD
		First Defender and Respondent
		and
		HIGHLAND ACUTE HOSPITALS NHS TRUST (formerly RAIGMORE HOSPITAL NHS TRUST)
		Second Defenders and Respondents

Act: Mr Arthurson, advocate, instructed by Anderson Shaw & Gilbert, Inverness

Alt: Mr MacLean, advocate, instructed by MacNeill & Critchley, Inverness

Inverness: 4^th February 2003

The Sheriff Principal, having resumed consideration of the cause, sustains the appeal and recalls the interlocutor of the sheriff dated 12^th February 2002; excludes from probation the averment in article 3 of the condescendence which reads: "It was the second defenders' duty to take reasonable care for the safety of patients under their care, including the pursuer, and not to expose them to unnecessary risk of injury"; quoad ultra before answer allows parties a proof of their respective averments and appoints the proof to proceed on a date to be afterwards fixed; certifies the appeal as suitable for the employment by both the pursuer and first and second defenders of junior counsel; reserves meantime all questions of expenses both before the sheriff and on appeal and appoints parties to be heard thereon on Wednesday 12^th February 2003 at 2.00 pm.

Note

In this case the pursuer and appellant was referred to Raigmore Hospital, Inverness, by her general practitioner and subsequently admitted for an operation known as a laparoscopic sterilisation. The hospital is operated by the second defenders and respondents and staffed by their employees, one of whom was at the material time the first defender and respondent. He was a consultant gynaecologist at the hospital and it is admitted that the second defenders are responsible for his actings in the course of his employment with them.

In a nutshell the pursuer's case is that various things went wrong before, during and after the operation on account of the fault and negligence of the first defender and she now seeks payment from him and the second defenders of the sum of £60,000 to compensate her for the loss, injury and damage said to have been sustained by her as a result of the first defender's fault and negligence.

The first and second defenders tabled a general plea directed to the relevancy and specification of the pursuer's averments, and after a debate the sheriff by interlocutor dated
12^th February 2002 sustained this plea and dismissed the cause. Subsequently by interlocutor dated 27^th February 2002 he granted the first and second defenders' unopposed motion for the expenses of the cause as the same might subsequently be taxed.

On 7^th March 2002 a note of appeal was lodged on behalf of the pursuer in which it was stated that she appealed on the following grounds:-

The pursuer has averred sufficiently fully and relevantly the facts leading to pursuer's injury, the practice of ordinarily competent surgeons in the field of obstetrics and gynaecology and the manner in which, through his failure to meet the standards of said practice, the first defender caused pursuer's said injuries. The sheriff has accordingly erred in law in sustaining the first plea-in-law for the defenders, finding the pursuer's averments to be irrelevant, and dismissing the cause.

At page 26 of his judgement the sheriff referred to certain of the pursuer's averments in article 2 of the condescendence as being "scattered like confetti", and it is certainly true that, at first blush, it is not easy to discern from the pursuer's pleadings exactly what it is that she maintains that the first defender did wrong. But in the course of his submissions counsel for the pursuer helpfully sought to disentangle the various strands in her case, and it may be of assistance to set out at length the averments in articles 2 and 3 which are said to support each of these various strands. As counsel explained, these fall into three separate time frames, namely (a) before surgery, (b) during surgery, and (c) after surgery.

In the first stage counsel explained that there were two complaints against the first defender. Firstly, the pursuer should have been warned of the risks inherent in the operation which she was to undergo. Thus in article 2 she avers: "She should have been warned by the defenders of the risk of organ damage during the operation and from having a laparotomy, which was not done". Article 3 begins with some fairly standard averments, and then the pursuer avers: "It was the duty of the first defender to provide the pursuer with the standard of care to be expected of an ordinarily competent surgeon gynaecologist exercising ordinary skill and care". Under reference to this first complaint she then avers: "It was his duty, if acting with ordinary competence, to warn the pursuer of the risk of organ damage during the course of the operation and from having a laparotomy. It was his duty if acting with ordinary competence given the pursuer's age, weight and height to consider whether there were other more suitable methods of contraception which were available to the pursuer".

The pursuer's second complaint at the first stage is, in short, to the effect that the operation should not have been performed at all. Thus at page 2 of the closed record in article 2 she avers: "The pursuer was 40 years of age, weighing 78.5kg (12st 4lbs) and was 1.5m in height
(4ft 11in). The pursuer was above average weight. There were other methods of contraception which were available to the pursuer, such as by the administration of progestogenic injections or the insertion of a coil. Such other methods of contraception would have been suitable for the pursuer but were not offered to her by the first defender. Although the pursuer requested a sterilisation, the first defender had to make a clinical judgement as to whether in her particular case it was appropriate to perform such an operation on her given her age, the extent of her obesity and given that other methods of contraception were available. No steps were taken by the first defender to postpone the operation, were he intending to carry it out, until the pursuer had lost weight. Had the operation been postponed until the pursuer was about two stones in weight lighter, the operation would have been easier to perform because the difficulties presented by the pursuer's weight would have been reduced. In the circumstances of the pursuer's case given her age, height and weight no ordinarily competent consultant gynaecologist would have proceeded to offer her a laparoscopic sterilisation without first offering her alternative methods of contraception or delaying such surgery until the pursuer had lost weight". Then on page 3, still in article 2, the pursuer avers: "In the present case, given the pursuer's weight and the use of laparoscopy to carry out the operation, there was a risk that complications would occur during the surgery, such as damage to the bowel in inserting the trocar". And in article 3 counsel drew attention to the averment already quoted, namely: "It was his duty if acting with ordinary competence given the pursuer's age, weight and height to consider whether there were other more suitable methods of contraception which were available to the pursuer".

In the second stage counsel explained that there were three complaints against the first defender. The first of these arose from the difficulty in vision which was experienced by the first defender in the course of the operation. The pursuer describes in article 2 how, when the operation was performed, 4.5 litres of CO2 gas were inserted into her abdomen. She then says that, while the placement of the first trocar was straightforward, insertion of the second trocar was difficult due to her weight and tenting of the peritoneum, requiring three attempts. She also says that maintenance of her abdominal distension would have been difficult due to her obesity. She then avers: "The difficulty in maintaining the abdominal distension due to the obesity of the pursuer would have obscured the vision of the first defender in carrying out the operation". These averments are supported by the averments of breach of duty in article 3 which are, as counsel explained, to the effect that the first defender should not have kept going with the operation when he found that he could not see properly into the second insertion into the pursuer's abdomen. Thus at page 7 in article 3 the pursuer avers: "It was his duty, if acting with ordinary competence, to insert the second port under direct vision, in order to avoid damage to the bowel in so doing and in order to be aware of such damage should it occur. It was his duty, if acting with ordinary competence, having encountered difficulties with insertion of the second trocar and finding his vision of the insertion site and path obstructed, to abandon the laparoscopic sterilisation and convert to an open laparotomy, to which the pursuer had consented prior to commencement of said laparoscopy ...... He knew or ought to have known that failure to see the trocar being inserted would increase the risk of injury to the bowel ...... No ordinarily competent surgeon gynaecologist exercising ordinary skill and care would have proceeded with the laparoscopy if it was not possible to see the second port being inserted".

The pursuer's second complaint against the first defender during the operation itself was to the effect that he had failed to notice that he had perforated her bowel. She avers that he did so by making a hole in the greater omentum passing down to a hole in the anterior aspect of the sigmoid loop, and she also believes and avers that this damage occurred when the first defender was attempting to insert the second trocar. She then avers: "No steps were taken by the first defender during or at the conclusion of the operation to identify whether there had been damage to the bowel". Then in article 3 she avers: "It was his duty, if acting with ordinary competence, when bleeding was noted from the peritoneal edge of the lower entry site, to identify the source of the bleeding prior to the application of clamps and the insertion of sutures to said area ...... He knew or ought to have known that failure to identify the presence of a perforation to the bowel prior to closure of the pursuer's abdominal wound would result in harm to the pursuer".

The pursuer's third complaint against the first defender during the operation was to the effect that he had failed to repair the perforation to her bowel prior to closure of the abdominal wound. In article 2 she avers: "No steps were taken by the first defender during or at the conclusion of the operation to repair the perforation to the bowel". And in article 3 she avers: "No ordinarily competent surgeon gynaecologist exercising ordinary care would have failed to repair the perforation to the pursuer's bowel prior to closure of the abdominal wound".

Turning to the third stage, counsel explained that the pursuer had only one complaint against the first defender which was to the effect that he had inappropriately discharged her from hospital after the operation. She describes how she was discharged from the hospital on the evening of the operation and she then avers: "She called her general practitioner at half past midnight on 7^th August 1998 (which was the day after the operation) following pain and distress. She was seen at 1.00 am that morning and was noted to have abdominal tenderness with decreased bowel sounds. She was apyrexial. A diagnosis was made of acute abdomen following a laparoscopic sterilisation and the pursuer was admitted to Ward 8 of said hospital. The first defender saw the pursuer at 5.30 pm on 7^th August when she was noticed to be afebrile mobile but nauseated. She had generalised abdominal tenderness, slight abdominal distension and infrequent bowel sounds. The first defender made a diagnosis of peritonism following a bleed from the lower abdominal incision. The first defender saw the pursuer on 8^th August and was satisfied with her condition. Her pulse was 70/minute. The abdomen was soft and she was told she could return home. Pursuer was discharged from hospital around 3.00 pm on 8^th August. The pursuer was seen by her general practitioner on 10^th August complaining of generalised abdominal pain, nausea, flatulence and loose stool. Her abdomen was distended and tender. She was next seen on 13^th August still complaining of pain. It was assessed the pursuer should be re-admitted and she was re-admitted to Ward 8 on 13^th August. She was treated with intravenous fluids and antibiotics. A laparotomy on 14^th August 1998 showed a hole in the greater omentum passing down to a hole in the anterior aspect of the apex of the sigmoid loop. The abdomen was cleaned, abscesses drained and proximal end of the sigmoid colon brought to the left iliac fossa to act as a colostomy. The pursuer was sent to the Intensive Treatment Unit and had a stormy post-operative period with control of sepsis and drainage of multiple abscesses causing difficulties. In the circumstances of the pursuer's case, given her age, height and weight and the circumstances of the operation, no ordinarily competent gynaecological surgeon would have discharged the pursuer without first arranging for her attendance at the gynaecology ward about three days after the operation to confirm whether there had been any organ damage in the course of the operation. Had the pursuer been examined in the gynaecology ward about three days after the operation the abdominal signs which were apparent on her admission on
13^th August 1998 would have been noticeable then. Had remedial surgery been carried out earlier her post-operative symptoms would have been reduced". Then in article 3 the pursuer avers: "In the circumstances of the pursuer's case, given her age, height and weight, and the circumstances of the operation no ordinarily competent gynaecological surgeon exercising ordinary care would have discharged the pursuer without first arranging for her attendance in the gynaecology ward about three days after the operation to confirm whether there had been any organ damage in the course of the operation".

Counsel concluded his consideration of the various strands of the pursuer's case by referring me once again to the general averment of duty, already quoted, towards the beginning of article 3 to the effect that it was the duty of the first defender to provide the pursuer with the standard of care to be expected of an ordinarily competent surgeon gynaecologist exercising ordinary skill and care. Counsel suggested that this was a clear averment of duty in the standard formula which might be expected in a case of medical negligence. All the subsequent duties of care which were said to have been incumbent on the first defenders referred back to this general duty of care. Finally there was an averment at the foot of page 7 in article 3 where it was stated: "In each and all of said duties, the first defender failed and by his failure caused the pursuer's condition".

Counsel for the pursuer referred to a number of well known authorities on the general principle to be applied in determining whether or not an action should be dismissed on the ground of a want of relevancy in the pursuer's pleadings. He drew attention to Jamieson v Jamieson 1952 SC (HL) 44 where Lord Normand stated, at page 50: "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". This test was applied by the Second Division in Wilson v Norwich Union Fire Insurance Society Limited 1999 SLT 1139 - see Lady Cosgrove at pages 1140H and 1141E. Counsel mentioned also Miller v South of Scotland Electricity Board 1958 SC (HL) 20 in which Viscount Simonds observed, at page 32: "..... but it appears to me that in this branch of the law, where, perhaps unfortunately, the result must often turn on fine distinctions, 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". Likewise, at page 33 Lord Keith of Avonholm stated: "In claims of damages for alleged negligence it can only be in rare and exceptional cases that an action can be dismissed of on relevancy". Counsel submitted that on a fair reading of the pursuer's averments in the present case it could not be said that her claim must necessarily fail assuming all her averments to be true. The appropriate course would be to allow a proof before answer leaving questions of relevancy to be examined after enquiry.

Counsel for the pursuer drew attention to the fact that, at page 23 of his judgement, the sheriff had taken as the test of relevance of averments in cases of medical negligence the well known passage in the judgement of the Lord President (Clyde) in Hunter v Hanley 1955 SC 200 at page 206 where his Lordship stated:

"It follows from what I have said that in regard to allegations of deviation from ordinary professional practice - and this is the matter with which the present note is concerned - such a deviation is not necessarily evidence of negligence. Indeed it would be disastrous if this were so, for all inducement to progress in medical science would then be destroyed. Even a substantial deviation from normal practice may be warranted by the particular circumstances. To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three his case will fail. If this is the test, then it matters nothing how far or how little he deviates from the ordinary practice. For the extent of deviation is not the test. The deviation must be of a kind which satisfies the third of the requirements just stated.

Counsel emphasised that this passage applied only where it had been alleged that there had been a deviation from normal practice. Counsel drew attention to the comment of the sheriff at page 25 of his judgement in which he stated: "It is neither unfair nor misleading to say that the passage quoted (in Hunter v Hanley at page 206) lays most emphasis on the third element. In this case, however, the first is the critical one. I turn to consider that first element against each heading, starting with that of the obligation maintained to warn of the risks". Counsel then drew attention to pages 27, 28, 31, 32 and 33 of the sheriff's judgement where he repeatedly commented upon the absence of any averment of normal practice in relation to each of the pursuer's heads of claim. It was clear, said counsel, that the kernel of the sheriff's decision was to be found in his understanding, based on the passage in Hunter v Hanley at page 206, that the absence of averments of normal practice in the present case rendered the pursuer's various heads of claim irrelevant. In this, so counsel argued, the sheriff had fallen into error.

Counsel for the pursuer drew attention to what he described as the better known passage in the judgement of the Lord President in Hunter v Hanley at pages 204/5 where his Lordship stated: "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care". Counsel pointed out that in Maynard v West Midlands Regional Health Authority 1984 1 WLR 634 Lord Scarman (with whose judgement Lords Fraser of Tullybelton, Elwyn-Jones, Roskill and Templeman agreed) observed at page 638G that he did not think that the words of the Lord President in the passage just quoted could be bettered. This passage, said counsel, thus set forth the true test to be applied in cases of medical negligence involving diagnosis and treatment, and in the present case there were ample averments which satisfied this true test. Under reference to Moyes v Lothian Health Board 1990 SLT 444 counsel submitted that this same test fell to be applied in cases in which it was alleged that the negligence of a doctor consisted in his having failed in his duty to warn the patient of the risks involved in a proposed course of operative treatment. Counsel drew attention also to Phillips v Grampian Health Board 1991 3 Med LR 16 in which again the true test as set out by the Lord President in Hunter v Hanley at page 205 was applied. Finally on this branch of his argument counsel drew attention to the terms of the closed record in Hunter v Hanley. He pointed out that there were no averments of normal or acceptable practice, and yet no plea had been stated by the defender to the relevancy of the pursuer's averments.

Relying upon these authorities, counsel for the pursuer submitted that, where a pursuer alleged a departure from normal practice on the part of a doctor, she had to prove all three elements in the test set out by the Lord President in Hunter v Hanley at page 206. But she did not have to aver all these three elements. What she had to aver was the third, or core, test in this passage which reflected the true test set out by the Lord President at page 205 and endorsed in the later authorities to which reference had been made. In any event, said counsel, many cases of medical negligence were not about a departure from normal practice. They were about carelessness, for example in cutting a wrong artery or perforating a bowel, and in such cases an averment of a usual and normal practice was not required. Thus in the present case in relation to the perforation of the pursuer's bowel her position was, not that normal practice had not been followed, but that the first defender had been careless and her position was that no reasonably competent surgeon gynaecologist would have perforated her bowel in this way. Her averment to this effect satisfied the true test as set out by the Lord President in Hunter v Hanley and the sheriff had been in error in thinking that an averment of normal and usual practice was necessary. Counsel for the pursuer submitted that in any event, if there was a point in insisting upon averments of normal and usual practice as desiderated by the sheriff, this was to allow a defender to see the contrast between acceptable and unacceptable practice. In the present case the duties of care said to have been breached by the first defender had been pleaded by the pursuer together with an averment that he had been in breach of these duties, and it was submitted that sufficient notice had therefore been provided to the defenders in respect that notice of normal and usual practice must be seen as having been included in the generality of the pursuer's averments in relation to the breaches of duty alleged. Thus the lack of formal pleadings in regard to normal and usual practice could not be said in the present case to be fatal and to justify dismissal of the pursuer's action.

In summary, counsel for the pursuer submitted that this was not one of those very rare cases in which an action based on negligence could be disposed of on relevancy. There was no fatal flaw in the pursuer's pleadings and a decision on their relevancy should await the outcome of inquiry. The appeal should therefore be allowed, the interlocutor of the sheriff dated
12^th February 2002 recalled and a proof before answer fixed reserving the first plea-in-law for the defenders.

In reply, counsel for the defenders submitted that the interlocutor of the sheriff should be adhered to and the appeal refused. He reminded me that pleadings were an important part of our procedure and not a mere technicality. Their primary purpose was to give fair notice to a defender and the court as to the basis of a pursuer's case. They were there to prevent litigation by ambush and were thus required to give a minimum specification of the facts which the pursuer hoped to prove in order to give the defender proper notice of these so that he could prepare properly. The procedure and use of written pleadings thus allowed cases to be dismissed on points of relevancy at debate so preventing a waste of time on the part of the court and of the parties in dealing with a hopeless case - see Macphail's Sheriff Court Practice (2^nd Edn) at paragraphs 9.32 and 9.34. In dealing with cases of negligence at common law, it had to be remembered that there was no duty of insurance. There had to be a breach of the duty to take reasonable care. This was especially clear in cases of alleged medical negligence. A doctor did not guarantee the outcome of an operation. He merely undertook to take reasonable skill and care such as would be expected of an ordinarily competent member of his profession and of his speciality within that profession. Thus in every case of alleged medical negligence a practitioner was always being judged against the standard of care of an ordinarily competent practitioner and hence it was always relevant to know what an ordinarily competent practitioner would do. In certain circumstances the courts had been prepared to go a stage further and to say that even to have done what an ordinarily competent doctor would have done might still be negligent if it could be averred and proved that such ordinary practice was nevertheless unreasonable - see Sidaway v Bethlem Royal Hospital Governors 1985 1 AC 871 and Bolitho v City and Hackney Health Authority 1998 AC 232. But as a first step the court should look at what an ordinarily competent professional man would have done in the circumstances of the particular case. It was not enough to aver and prove that a professional man had taken a particular course of action and that no reasonably competent man would have taken that course of action. Whatever line was taken in a case of alleged medical negligence, negligence could not be assumed from the fact of an accident having occurred. It was always necessary to test what had been done against the standard of care of the ordinarily competent practitioner. It was necessary therefore to aver and prove that there had been a failure to follow that ordinary standard of care or to go further and say that, even if ordinary practice had been followed, such ordinary practice had nonetheless amounted to negligence. Finally it was necessary to aver and prove that the breach of the duty of care had caused the pursuer's losses.

Counsel for the defenders acknowledged the authoritative status of the judgement of the Lord President in Hunter v Hanley. Referring to the passage at pages 204/5 in the judgement, counsel submitted that there were two aspects to the matter, namely the standard of performance to be expected of a doctor of ordinary skill and the fact that the defender in question had fallen short of that standard. It was not enough for a pursuer to plead the second part of this equation and not the first. The proper standard of care would always be relevant as it was against that standard that a defender would be judged. Thus a pursuer always had to aver and prove what the ordinary standard was in order to establish that there had been a failure to meet this standard. Turning to the passage in the Lord President's judgement at page 206, counsel suggested that there the pursuer's case had been that there had been a normal practice and that there had been a departure from this practice on the part of the defender. By contrast, in the present case it was not clear what the pursuer was saying was normal practice. It appeared from what had been said by her counsel that she was not saying that there had been a departure from normal practice but simply that there had been carelessness on the part of the first defender. In this situation, given that it was not said that there had been deviation from normal practice, it was incumbent upon the pursuer to explain why there had been negligence on the part of the first defender in following normal practice.

Counsel for the defenders referred to Sidaway v Bethlem Royal Hospital Governors and Moyes v Lothian Health Board and then summarised this part of his argument by saying that a pursuer could not come into court with a claim for medical negligence and aver that a medical accident had occurred, that no ordinarily competent doctor would have allowed this to happen and that therefore the doctor should be held liable. Pleading a case in this way did not give fair notice of the way in which the defender was alleged to have breached his duty of care to the pursuer. In order to state a relevant case a pursuer had to aver clearly (a) what had actually happened, (b) what it was maintained should have happened as a matter of ordinarily competent practice, (c) how the defender had been in breach of his duty to the pursuer, in other words how his conduct had not accorded with normal practice, and (d) that this breach of duty had caused loss to the pursuer. If a pursuer wished to argue that, even though normal practice had been followed, there had still been negligence on the part of the defender, then he was entitled as a matter of fair notice to be told what the facts were upon which the allegation of negligence was based, and in particular what made the normal practice negligent. In the present case there was no adequate specification of what the pursuer said should have happened, nor was there said to have been any difference between normal practice on the one hand and, on the other, what the defender had done. Since it was not said that there had been a deviation from normal practice, there must have been negligence in some other respect, and the defenders were struggling to see what the case against them was. If the tests which had to be satisfied in a case of departure from normal practice were not applicable in the present case, then there was a gross lack of specification in the pursuer's pleadings if she was seeking to prove that the first defender had followed normal practice but had nonetheless been negligent. In a nutshell, the pursuer could not have it both ways. Either the first defender must be said to have deviated from proper practice, in which event the pursuer must aver what the proper practice was. Alternatively if her position be that he had followed proper practice but had still been negligent, then she must aver how he had been negligent in this situation.

Counsel for the defenders then turned to the individual allegations of fault against the first defender. The first of these appeared to be that there had been a failure by the first defender to warn the pursuer. But there was no adequate specification of what it was that a warning should have been given about or why. There was no averment of any normal practice, for example that a normally competent surgeon would have warned that there was, say, a 10% risk of damage to the pursuer's internal organs. Nor was there an averment that, had the pursuer been given this warning, she would have declined to undergo the operation. There was no attempt here on her part to address the matter of causation, namely what would have happened if a warning had been given to her.

Turning to the second breach of duty alleged against the first defender, counsel posed the question whether it was his place to offer other methods of contraception to the pursuer after she had been referred to him by her general practitioner. It was to be expected that there would be an averment in this context of normal practice, but this was missing. It was said that, although the pursuer had requested a sterilisation, the first defender had had to make a clinical judgement as to whether in her particular case it was appropriate to perform such an operation on her given her age, the extent of her obesity and given that other methods of contraception were available. No indication had been given by her as to why it was to be maintained that the clinical judgement which the first defender had had to make had been wrongly exercised. There were insufficient averments of fact by which the adequacy of his clinical judgement might be assessed. And on the question of causation, there was no suggestion that, had alternative methods of contraception been offered to the pursuer, she would have preferred these. It was not said how much weight she should have lost before any operation was carried out, nor was it said that the risk to her (whatever that was) would have been eliminated if the operation had been delayed until she had lost weight to this extent. In the circumstances it had to be asked what the pursuer was seeking to prove in order to demonstrate that there had been negligence on the part of the first defender. Likewise, there was a lack of specification as to the degree of risk that complications would occur during the surgery upon the pursuer.

Turning to the first complaint against the first defender in the course of the operation, counsel for the defenders suggested that it was not clear whether the pursuer was saying that the first defender could or could not see during the operation. It was not clear from her pleadings when her bowel had been punctured, nor was it clear what was meant by direct vision in this context. It appeared that it was being said that the damage had been done during the insertion of the second trocar, and it followed that the failure to convert to a laparotomy had not been causative of the pursuer's injuries.

As for the first defender's alleged failure to notice that he had perforated the pursuer's bowel, counsel for the defenders drew attention to the fact that there were no averments of ordinary practice in this context. The pursuer appeared here to be saying that there had been no departure on the part of the first defender from ordinary practice. There were no averments of what would normally have been done to check for damage to the bowel. Nor was it said that the bleeding which was observed had come from her bowel. If this was her position, then she should say so. Effectively she was saying that there was an absolute obligation incumbent upon the first defender namely that, if there was a puncture to the bowel during an operation, then any reasonably competent surgeon would find it. In short, she was saying that there had been an accident and therefore there must have been negligence on the part of the first defender.

On the matter of the alleged failure on the part of the first defender to repair the injury to the pursuer's bowel, she had made no attempt to explain what the first defender should have done in this context. There was no averment of normal practice and no averment of what she intended to prove in this context. It was not enough to state bluntly that no ordinarily competent surgeon gynaecologist exercising ordinary care would have failed to repair the perforation to the pursuer's bowel prior to closure of the abdominal wound. There had to be some factual basis averred in support of this assertion.

Turning to the final stage, counsel for the defenders posed the question what was the relevance of the pursuer's age and weight to the issue of asking her to return to the gynaecology ward three days after the operation. There was no clear averment as to what would have been shown up by her attendance at the ward.

Finally, counsel for the defenders drew attention to the opening section of article 3 of the condescendence where it was said that the pursuer's bowel damage and subsequent condition had been caused by the fault of the medical staff of the second defenders and that it was the second defenders' duty to take reasonable care for the safety of patients under their care, including the pursuer, and not to expose them to unnecessary risk of injury. Counsel suggested that there was no specification as to how any other employees of the second defenders apart from the first defender might have been at fault. At the very least, the averment that it was the second defenders' duty to take reasonable care for the safety of patients under their care should be excluded from probation (and counsel for the pursuer did not oppose this).

In summary, counsel for the defenders submitted that the sheriff had been right to find that, in relation to each of her individual heads of claim, the pursuer's pleadings were inadequate to allow the case to go to proof.

In a brief reply, counsel for the pursuer submitted that the pursuer's averments were normative setting out what should have happened in exactly the same way as had been done in Hunter v Hanley. In that case normal practice had been suggested by inference in the pursuer's pleadings, and this was so in the present case too. On the point about causation in her complaint of failure to warn, this had not featured in the defenders' rule 22 note, nor had it been advanced to the sheriff. Accordingly the point should now be ignored. In any event, there was the general averment that the first defenders' failure to perform the duties incumbent upon him had caused the pursuer's injuries, and this was apt to include the proposition that her injuries had been caused by the lack of warning on the part of the first defender. The same point could be made in relation to the suggestion that the first defender ought to have sought alternative methods of contraception.

Turning to the allegation that the first defender had perforated the pursuer's bowel during the operation, her position was that the perforation would not have occurred if the first defender had been looking where he was going. This was at the core of her case against the first defender and it was one of carelessness rather than deviation from normal practice. This part of the case at least required to go to proof and there should therefore be a proof before answer even if there were doubts about other aspects of her case. It was clear from what had been said by counsel for the defenders that their complaint was, not that the duties averred by the pursuer were irrelevant, but that there was a lack of specification in relation to these breaches of duty. It had been said that there should have been clear averments by the pursuer in relation to four factors. The first of these related to what had actually happened, and this the pursuer had averred. In any event the defenders were doctors advised by the Hospital Legal Service and independent specialists. As to what the pursuer said should have happened, notice of normal practice was included by implication in the averments of duty, both general and specific, on record. The breaches of duty alleged on the part of the first defender had been averred by the pursuer and, at the end of article 3, it was said that in each and all of these duties the first defender had failed and by his failure had caused the pursuer's condition. Thus there was also a clear averment that the pursuer's loss had been caused by the first defender's breaches of duty.

In summary, counsel for the pursuer submitted that she had no need to make averments in relation to normal practice. There were no such averments in Hunter v Hanley, these being implied. Besides, the pursuer's case at its highest was one of carelessness in surgery and accordingly the observations of the Lord President at page 206 in Hunter v Hanley did not apply. And even if these observations did apply, there was no need for averments of normal practice since there had been none in Hunter v Hanley and the Lord President at page 206 in that case had stated that the three elements had to be proved, not averred. In any event, averments of normal practice in the present case were clearly implied in the pursuer's existing averments.

It is I think important not to lose sight of the fact that in Hunter v Hanley, as was observed by the Lord President at page 204, "One of the grounds of fault alleged against the defender was that the type of needle employed on the occasion in question was not strong enough, and that 'any doctor possessing a fair and average knowledge of his profession would have known this'. A question therefore arose at the trial regarding what was the normal and usual practice in regard to the type of needle required". It was in this context that the Lord President's comments at page 206 in regard to allegations of deviation from ordinary professional practice were made. That this is so is clear from his interjection towards the beginning of this passage in his judgement of the words "and this is the matter with which the present case is concerned". It does not appear to me that the Lord President is there saying that in every case in which negligence is alleged against a medical practitioner the pursuer must aver and prove that the defender has deviated from usual and normal practice. On the contrary, it is I think plain that this is only one of a variety of ways in which negligence may be established against a medical practitioner. The overriding test, which applies to all such cases, which was approved by the House of Lords in Maynard v West Midlands Regional Health Authority and which has been followed in numerous instances in Scotland, is that set out in the passage of the Lord President's judgement at pages 204/5 which I have already quoted at paragraph 16 above.

As was indicated by counsel for the pursuer, her second complaint at the pre-operative stage was, in short, that the operation should not have been performed at all. On closer analysis of her pleadings, it is apparent that she actually has two distinct complaints here. Firstly she says in effect that the first defender ought not to have proceeded with the operation without first offering her alternative methods of contraception. Thus towards the beginning of article 2 she avers that other methods were available "such as by the administration of progestogenic injections or the insertion of a coil", and towards the end of the same article she avers: "Alternative methods of contraception which could have been offered to the pursuer included a coil (intra-uterine contraceptive device), such as a Mirina coil, Depo-Provera intra-muscular injections or an Implanon implant in the arm. Alternative methods of contraception such as the coil and implant could have been used for between three and five years before requiring renewal". But what the pursuer does not say is whether she would have accepted any of these methods of contraception (which of course are to be contrasted with the more drastic process of sterilisation) if they had been offered to her. It may be that she would not have done, so that, as presently advised, it cannot be said that there was a direct causal connection between, on the one hand, the first defender's having proceeded with a laparoscopic sterilisation without first offering her alternative methods of contraception and, on the other hand, the injuries sustained by her as a result of his having gone ahead with the operation in these circumstances.

The other branch of the pursuer's complaint here is that the first defender ought not to have proceeded with the operation while she remained overweight. Thus in article 2 she avers that "given her age, height and weight no ordinarily competent consultant gynaecologist would have proceeded to offer her a laparoscopic sterilisation without ..... delaying such surgery until the pursuer had lost weight". She does not aver in terms in article 3 that the first defender was under a duty not to proceed with the operation in these circumstances. But this is clearly implicit in her general averment that it was the duty of the first defender to provide the pursuer with the standard of care to be expected of an ordinarily competent consultant gynaecologist exercising ordinary skill and care. If this was indeed his duty, and if no ordinarily competent consultant gynaecologist would have proceeded to offer her a laparoscopic sterilisation without first delaying such surgery until she had lost weight, then it follows that he had a duty not to proceed with the operation while the pursuer remained overweight. And his failure to comply with this duty, and the resulting loss, injury and damage to the pursuer, are clearly averred so that the test of relevancy is in my opinion satisfied in this instance. In a nutshell, to borrow the language of the Lord President in Hunter v Hanley at pages 204/5, the pursuer's case here is that, in performing a laparoscopic sterilisation upon her while she was overweight, the first defender was guilty of such failure as no consultant gynaecologist of ordinary skill would be guilty of if acting with ordinary care. In any event, if this branch of the pursuer's case is to be seen as one in which the first defender departed from a normal and usual practice, in this instance to refrain from performing a laparoscopic sterilisation upon a woman patient who was overweight, then it seems to me to be clearly implied by the pursuer's averments that there was such a practice and that the first defender departed from it.

There remains the question whether the pursuer has given adequate specification of this branch of her claim. Counsel for the defenders commented that it was not averred by the pursuer that to have delayed the operation until she was two stones lighter would have eliminated the risk, whatever that was. He also said that it was not averred how much weight she should have lost before the operation could safely have been carried out. The answer to these points is to be found towards the end of article 2 where the pursuer avers: "...... it is explained that the pursuer was unsuitable for sterilisation using the laparoscope. The body mass index of the pursuer which is constructed by reference to the patient's height and weight was 34, the operation ought not to have been carried out unless the patient had a body mass index of less than 30. In that case the patient ought to be capable of being anaesthetised safely and the technical difficulties in passing needles and trocars through abdominal wall are minimised. The pursuer did not meet such criteria and ought not to have been offered a laparoscopic sterilisation until she did". And earlier on in the same article she avers: "While the placement of the first trocar was straightforward, insertion of the second trocar was difficult due to the weight of the pursuer and tenting of the peritoneum, requiring three attempts. Maintenance of the abdominal distension of the pursuer would have been difficult due to the pursuer's obesity. The difficulty in maintaining the abdominal distension due to the obesity of the pursuer would have obscured the vision of the first defender in carrying out the operation". These averments, and those to which counsel for the pursuer referred me in his opening submissions and which are quoted in paragraph 7 above, in my opinion give the defenders ample notice of the case that is to be made against them in this respect. In particular, the risks of proceeding with the operation while the pursuer was overweight are spelled out, as is the point that these risks would have been minimised if the operation had been delayed until she had achieved a body mass index of less than 30.

It follows in my opinion that the defenders' challenge to this particular aspect of the pursuer's case fails. With the exception of the averment in article 3 directed against other employees of the second defenders it was not argued that any other of the pursuer's averments should be excluded from probation. Rather the submission of counsel for the defenders was, as indicated, that the pursuer's case as a whole should be dismissed. Since I am against him on this the proper course will be to allow a proof before answer in relation to all the pursuer's averments apart from that relating to the other employees of the second defenders. And, this being so, it would not be appropriate for me at this stage to express any opinion on the relevancy of the remainder of the pursuer's averments, or the specification given therein.

It was agreed that I should sanction the employment of junior counsel by both parties at the appeal, and I am satisfied that it would be appropriate to do this. I have reserved the question of the expenses of the appeal.