Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

PD460/08

JUDGMENT

of

SHERIFF PRINCIPAL C A L SCOTT, QC

in the cause

Ann McDermott

Pursuer

against

 

Dr Colin Guthrie & Another

Defenders

                                                                        

 

 

 

Glasgow, 4 December 2013.

 

The sheriff principal, having resumed consideration of the appeal, Allows same in part; Adheres to the sheriff's interlocutor dated 11 March 2013; Recalls the sheriff's interlocutor dated 31 May 2013; Sustains the first defender's first plea in law and Dismisses the action; Finds the pursuer liable to the first defender in the expenses of the action including the appeal; Allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon; Certifies the appeal as suitable for the employment of senior counsel.

 

 

 

 

 

 

 

 

 

 

 

NOTE:-

 

First defender's submissions - grounds of appeal 1 to 6

[1] At the outset of his submission, senior counsel for the first defender informed the court that the action was founded upon an allegation of professional negligence in connection with the provision of treatment at an out of hours unit within Stobhill Hospital, Glasgow. In particular, it was concerned with the pursuer's dealings with the first defender who, at the material time, was working as an out of hours general practitioner at Stobhill. Originally, two defenders had been convened. However, the second defenders were now no longer in the process.

 

[2] Senior counsel for the first defender turned to the note of appeal. He indicated that the main contention on the part of the first defender was to the effect that the sheriff, who heard a diet of debate in March of this year, ought to have dismissed the action for want of relevancy. Senior counsel suggested that the essence of the difficulty was that a fundamental flaw existed within the pursuer's averments such that, even if evidence were to be led, a difficulty quoad causation would remain. Such difficulty was, in senior counsel's submission, insuperable. The action, as drafted, would be bound to fail.

 

[3] Reference was made to the record and to article 2 of condescendence in the first instance. It was averred that the pursuer had attended Stobhill Hospital on 10 January 2006 at approximately 0240 hour, when she was seen by the first defender. The pursuer complained of certain symptoms. It was averred that the first defender briefly examined the pursuer, gave her an injection of 75mg of Voltarol and then asked the pursuer to leave. It was also averred that the pursuer's temperature had not been taken; that no attempt had been made by the first defender to take her urine for analysis; and that her blood pressure had not been measured. Senior counsel observed that the first defender's averments in response had only been met by a general denial on behalf of the pursuer.

 

[4] In short, senior counsel pointed out that the pursuer's case appeared to be that she ought to have been called back for review the following day, viz. 11 January 2006. However, it was averred on behalf of the pursuer that on 12 January 2006, having been taken to the accident & emergency department of Stobhill Hospital, she had been "offered" admission "due to the severity of her symptoms and her general condition." On that occasion, it was also averred that the pursuer had been given intravenous fluids; that blood tests were taken; and that she had been discharged that same day but re-admitted on 13 January 2006.

 

[5] With regard to article 3 of condescendence, senior counsel for the first defender noted a degree of repetition (albeit not necessarily in precisely the same terms) together with elements of confusion. In the final analysis he characterised the pursuer's case as being informed by a breach of duty on the part of the first defender which had precluded the opportunity of a review of the pursuer's condition in hospital the following day. It appeared to be suggested on the part of the pursuer that had she been reviewed such review would have led to an admission to hospital; that she would thereby have received appropriate treatment; and that the loss and damage described in article 5 of condescendence would, therefore, have been avoided.

 

[6] Senior counsel took the court to article 5 and it is important to note two separate sentences therein. The second sentence within article 5 of condescendence is in the following terms:

 

"Had the first and second defenders complied with their duties, then the pursuer and in particular her infection would have been recognised, treated and resolved much more quickly, without leading to acute illness and permanent kidney damage."

 

Further on within article 5 the following sentence appears:

 

"Had the first defender complied with his duties, and admitted the pursuer to hospital on 10 January 2006, then her infection would have been resolved without loss of function to the kidney and without the foregoing psychological symptoms developing."

 

Therefore, senior counsel acknowledged that the pursuer appeared to aver that an admission to hospital would have resulted in recognition of the existence of an infection followed by appropriate treatment which would, in turn, have resulted in a more expeditious resolution. However, he stressed that by way of the pursuer's own averments in article 2, the fact remained that the pursuer did go to hospital on 12 January 2006 and that a deliberate medical decision had been taken which resulted in her being discharged as opposed to being retained within the hospital for the purpose of assessment, treatment and the like.

 

[7] The sheriff's judgment from 31 May 2013 was analysed, in conjunction with paragraph 3 of the note of appeal. Senior counsel for the first defender alighted upon paragraphs [76] and [80] within the judgment which, respectively, are in the following terms:

 

"[76] While admiring the rigour of Mr Dawson's analysis of the pursuer's averments in relation to causation, and at the same time recognising that the chapter of events at the hospital on 12 and 13 January presents obvious difficulties, nonetheless adopting the broad approach taken by Mr Sheldon, which is described at paragraph [61] above I do not think it can be said that the pursuer's case must necessarily fail on causation.

 

"[80] That the pursuer's presentation on 12 January was not regarded by the hospital as warranting an operation presents a problem for the pursuer which Mr Sheldon did not shy away from, however, I consider that proof is necessary before any conclusion can be reached about whether any failure to provide a safety net created a delay and whether any such delay had an impact on the pursuer's outcome."

 

Senior counsel also referred to paragraph [61] within the judgment when it came to the submission advanced on behalf of the pursuer before the sheriff.

 

[8] It was submitted on behalf of the first defender that the court required to be cautious when it came to relying too readily upon what senior counsel described as the "well known, broad approach". That, he argued, was no substitute for analysis of what a pursuer actually avers in an action. By 12 January 2006, the pursuer had been so concerned about her condition that she had contacted her own general practitioner who recommended admission to hospital. It was clear, submitted senior counsel, that the pursuer was describing a developing or worsening condition. That was known because the essence of the pursuer's case on record was that earlier hospital admission would have resulted in earlier treatment and resolution of the condition.

 

[9] It had to follow, contended senior counsel, that, if the pursuer were to establish her case, she had to be in a position to aver the basis upon which it could be said that earlier admission to hospital would have given rise to the consequence of avoiding the loss and damage described in article 5. All that required to be spelled out precisely because it was known that the pursuer had gone to hospital on 12 January 2006 owing to the severity of her symptoms. And yet, on her own averment, the infection was not discovered, treated or resolved.

 

[10] Senior counsel for the first defender criticised the terms of paragraph [80] within the sheriff's note. His decision that proof was necessary was not, submitted senior counsel, underpinned by any rational thought process. Senior counsel reminded the court that it had been the same patient, viz. the pursuer, who attended hospital on 12 January 2006 and, moreover, it was the same hospital.

 

[11] In the bundle of authorities for the first defender, reference was made to the case of Morrison v Rendall 1986 SC 69 and, in particular, to the observations on the part of Lord Robertson at page 78. Inter alia, his Lordship had stated that:

 

"It is not the function of pleadings to justify an enquiry which may result in evidence being led which might establish the pleader's case: on the contrary the pleadings must set forth clearly and specifically the facts upon which the pleader aims to succeed in his pleas, so that the other party may have notice of the case against him and the facts upon which it is founded. In my opinion, the pleadings in this case do not satisfy this test, and I am prepared to allow the appeal on this primary ground alone."

 

[12] Senior counsel submitted that standing what took place on 12 January, one searched in vain for any averment as to why the position would have been any different on 10 or 11 January 2006. It was pointed out that the first defender's representatives were entitled to proper fair notice as to the precise nature of the case being advanced against him. Senior counsel contended that there was no realistic prospect of the pursuer establishing at proof that she had been deprived of the opportunity to receive hospital treatment as a result of the first defender's negligence when, on her own averments, she received hospital treatment on 12 January 2006 that did not result in the resolution of her condition in the way that she avers. Therefore, it was maintained that the sheriff ought to have dismissed the action on the basis that the difficulty with causation flagged up by senior counsel in the course of his submission, was, indeed, insuperable.

 

[13] Paragraph 4 in the note of appeal was said by senior counsel to be superfluous and was, therefore, not insisted upon.

 

[14] Esto the court did not find favour with the first defender's principal contention to the effect that the action ought to be dismissed, senior counsel drew the court's attention to paragraphs 5 and 6 in the note of appeal which were headed up "The defender's alternative contentions". In returning to the themes of repetition of averment and confusion, senior counsel recognised that the language used by the pleader, on behalf of the pursuer, particularly regarding what, it was claimed, ought to have happened, varied throughout. Once more, senior counsel referred extensively to articles 2 and 3 of condescendence much of which are taken up with averments about the administration of Voltarol followed by the first defender's failure to have the pursuer remain on the premises to determine the effect or otherwise of the Voltarol. By way of example when it came to variations albeit of a similar theme, senior counsel pointed to Voltarol being associated with resolution of the pursuer's symptoms; any improvement in her condition; complete resolution of her symptoms; and a failure to lead to complete resolution of her symptoms.

 

[15] Senior counsel for the first defender submitted that the pursuer seemed to be incapable of articulating what the first defender ought to have been looking for when it came to the context of symptoms and diagnosis. He maintained that the broad approach favoured by the pursuer and sanctioned by the sheriff was wholly inappropriate where, as in the present case, a pursuer's pleadings were tainted with confusion and inconsistency. The court was invited to excise from the pursuer's pleadings a series of passages which, it was submitted, ought not to be remitted to probation.

 

[16] The reference within article 2 of condescendence to a letter written by the first defender dated 28 March 2006 was scrutinised by senior counsel for the first defender. The averment, which appears on page 4 of the record, is in the following terms:

 

"In a letter to the Pursuer's GP Dr Gaw dated 28^th March 2006 the First Defender stated in relation to his examination and treatment of the Pursuer on 10^th January that 'I normally check on the condition of patients who have had treatment before they go home. On this occasion it is clear that I have failed to do this. If I had checked on her condition before she left the centre and found no improvement or deterioration in her condition, then I might well have decided (sic) that hospital admission was advisable'."

 

Senior counsel argued that the terms of the foregoing letter were neither here nor there when it came to assessing the relevancy of the pursuer's pleadings. The quotation taken from the letter did not, he submitted, innovate upon the confusion which the pursuer's pleadings disclosed. What the first defender may have subsequently reflected upon did not elide the requirement for the pursuer to plead a relevant case. The terms of the quotation from the letter could not be used to interpret the meaning of averments which were patently confused.

 

[17] With regard to paragraph 6 in the note of appeal, senior counsel for the first defender referred to paragraph [77] in the sheriff's judgment. That paragraph is in the following terms:

 

"The absence of express averments in regard to what testing would have shown is not a fatal flaw as Mr Dawson contended, because of the pursuer's averments in relation to symptoms such as shivering and feverishness, which should have raised concerns. Proof of a failure to carry out tests might hold significance in relation to other issues than causation."

 

[18] In adhering to the terms of paragraph 6, senior counsel for the first defender submitted that there was nothing to indicate that anything of causal significance would have been shown up by the tests referred to.

 

Pursuer's submissions - grounds of appeal 1 to 6

[19] In reply, senior counsel for the pursuer submitted that the general outline of the pursuer's case was clear and that there was a relevant case for inquiry including a relevant case on causation. Reference was made to Macphail on Sheriff Court Practice (3^rd Edn) at paragraph 9.33 and to the cases of Miller v SSEB 1958 SC (HL) 20 and Miller v GGHB 2011 SLT 131. The broad approach countenanced by these authorities was, submitted senior counsel, the approach which the sheriff had taken in the present case.

 

[20] Senior counsel for the pursuer asserted that the causative link which the pursuer sought to establish focused upon the failure on the part of the first defender to have the pursuer return to hospital on 11 January 2006. In essence, senior counsel for the pursuer adhered to the submission advanced before the sheriff which was encapsulated within paragraph [61] in the sheriff's note in the following terms:

 

"Turning to causation Mr Sheldon open (sic) by accepting that there was no doubt in the present case that causation might prove to be a difficult issue; there was the chapter of events at the hospital on 12 and 13 January. Counsel for the defender had described it as a fatal flaw in the pursuer's case that she made no averments about what the outcome would have been if she had returned for review or had she undergone further tests. Mr Sheldon sought to deal with the points which had been made on behalf of the defender, as he put it, all of a piece. He approached matters in this way, he said, because what was critical was the bigger picture, namely that the pursuer was a lady who presented with certain symptoms, which to the ordinarily competent GP would be suggestive of an infection. No safety netting was put in place and it was expressly averred that her symptoms continued between 10 and 11 January such that, in that period of time, the infection was there to be discovered. Appropriate tests, for example urine tests, which should have been done on the first day, would upon the pursuer's averments have revealed the presence of infection. Counsel submitted that it was an entirely fair and proper reading of the pursuer's pleadings that had she returned for review on 11 January, as she says she would have done had she been told or asked to, then that review would have revealed the presence of the infection and critically that then would have brought everything forward by at least one day. What the pursuer offered to prove was, that this being so, what happened to her afterwards would have been materially less severe."

 

[21] Following various exchanges between the bench and senior counsel for the pursuer regarding the integrity or otherwise of the pursuer's case in light of senior counsel for the first defender's arguments, the appeal hearing was adjourned for lunch. After the luncheon adjournment, and no doubt having reflected upon his position, senior counsel for the pursuer sought leave to amend. No proposed minute of amendment had been formulated and, notwithstanding further dialogue as to the nature and effect of any proposed amendment, the pursuer's approach to the acute issue of causation remained somewhat opaque.

 

[22] In light of the apparent recognition that there were defects within the pursuer's pleadings which required to be cured by amendment, senior counsel for the defender was afforded an opportunity to comment. He adhered to his earlier submissions and reiterated what he regarded as being the inescapable force of his argument. The pursuer herself had averred that, when seen on 12 January, at the same hospital, and complaining of the same condition, her underlying condition had been neither discovered, treated nor resolved. Senior counsel for the first defender argued that no matter how the pursuer sought to approach the factual narrative in the case, the "causation point" as he described it did not go away and would not go away.

 

Ground of appeal 8

[23] It will be seen that the first defender also appeals against the interlocutor of Sheriff Reid dated 11 March 2013. The appeal is brought to challenge the sheriff's decision regarding the expenses of a diet of debate assigned for 29 January 2013 which required to be discharged. It was the first defender's contention that the sheriff ought to have awarded expenses against the pursuer's agent personally. The argument which was presented by senior counsel for the first defender is amply set out within paragraph 8 in the note of appeal. Similarly, the sheriff's reasons for refraining from making an award of expenses against the pursuer's agents personally are set out within his full and helpful note dated 21 October 2013.

 

[24] Senior counsel for the pursuer submitted that the action was not one which had been raised without any foundation. It was not frivolous. An expert report had been obtained from Dr Watt who, admittedly, was not a general practitioner. However, any error in instructing medical opinion from a medical practitioner whose qualifications differed from those of the first defender was said to be understandable and excusable in the circumstances of the case. For the court to have awarded the expenses of the discharged debate against the agents personally would have amounted to an undue penalty being visited upon them. The court was urged to refuse this ground of appeal.

 

Decision

Grounds of appeal 1 to 3

[25] I had little difficulty in recognising the force of the submissions advanced by senior counsel for the first defender in respect of what came to be characterised as "the causation point". In particular, I agree with the submission that for the pursuer to establish her case, she requires to aver the basis upon which it might be said that earlier admission to hospital would have given rise to the consequence of avoiding the loss and damage described in article 5 of condescendence. In circumstances where it is beyond dispute that the pursuer attended hospital on 12 January 2006 owing to her symptoms, the precise basis for the avoidance of such loss and damage must be explicitly averred and that because she herself offers to prove that even on 12 January the infection was not discovered, treated or resolved.

 

[26] It seems to me that if the infection was not discovered on 12 January 2006 it simply cannot follow that it was any more likely to have been discovered on the day following the examination on 10 January, viz. 11 January. No matter how broad an approach might be sanctioned on the basis of certain authority, the relevancy of a pursuer's case must still be viewed having regard to its own facts and circumstances. Here, whilst the sheriff seems to have considered that proof was necessary before any conclusion could be reached, for my part, I cannot conceive that the leading of evidence would serve any cogent purpose since it would, in effect, amount to an attempt by the pursuer to re‑write historical fact.

 

[27] The situation in the present case is the sort of situation which the observations of Lord Robertson in Morrison v Rendall were designed to avoid. Even if one takes the pursuer's averments at their highest, those averments fail, in my view, to articulate a case which explains in clear and specific terms why a return for review on 11 January 2006 would have achieved what the pursuer's return on 12 January failed to achieve. Similarly, despite being afforded extensive opportunity to do so, senior counsel for the pursuer was unable to articulate such a case in the course of argument. After all, the circumstances founded upon by the pursuer cannot be viewed as anything other than referring to an on-going, progressive deterioration in her condition.

 

[28] In relation to paragraph [76] in the sheriff's note, in my opinion, the sheriff's conclusion was wrong. In contrast, on the averments as they stand, it can, indeed, must be said that the pursuer's case will necessarily fail on causation. Moreover, in paragraph [80] in the sheriff's note, the sheriff failed to recognise that the "problem for the pursuer which Mr Sheldon did not shy away from" is an insuperable problem and could not be addressed by the allowance of proof. Senior counsel for the first defender's criticism as to the lack of reasoned justification for allowing a proof is also, in my view, well founded. The sheriff has failed to articulate why it is that affording the pursuer an opportunity to lead evidence on the pleadings in the record will overcome the acute difficulty regarding causation. The key question which remains unanswered in the pursuer's averments and which the sheriff failed to address is why any failure on the part of the first defender to arrange for the pursuer to return to hospital on 11 January 2006 would have made any difference in light of the undisputed train of events as they unfolded.

 

Grounds of appeal 5 and 6

[29] Accordingly, I am in no doubt that the first defender's appeal in respect of grounds 1 to 3 ought to be allowed and that the action should be dismissed. Absent dismissal of the action, I am also comfortably persuaded that senior counsel for the first defender's submissions in support of grounds of appeal 5 and 6 were well founded and that various tranches of averment ought to be excluded from probation on the hypothesis that an inquiry were to be allowed. Those averments are as follows: article 2, page 3, lines 5 and 6, the two sentences commencing "Her temperature..."; lines 12 to 14, the sentence commencing "She was not told..."; lines 19 and 20, the sentence commencing "In the light of those..."; line 37 on page 3 to line 3 on page 4, the passage commencing "The pursuer had previous experience..."; page 4, lines 4 and 5, the sentence commencing "By 10 January 2006,..."; and, page 4, lines 23 and 24 the averments commencing "in the hospital" and ending "asked to wait".

 

In article 3, on page 9, line 4, the passage commencing "In light of the symptoms..." and ending "...Voltarol resolved her symptoms"; at the final line on page 9, the sentence commencing "Any ordinarily competent..."; page 10, line 8, the passage commencing "In any event" and ending "complete resolution of symptoms".

 

[30] Of course, as I have indicated, after the luncheon adjournment, senior counsel for the pursuer sought leave to amend. However, I am satisfied that no amount of amendment would serve to cure the fundamental defect in the pursuer's case all as identified by senior counsel for the first defender. Therefore, I would not have been minded to grant leave to appeal. To do so, would not have served the interests of justice in any way.

 

[31] With regard to the appeal directed at Sheriff Reid's interlocutor, I am simply not prepared to interfere. It was a discretionary decision on expenses. Nothing said by senior counsel for the first defender exposed material upon which I might regard myself, qua appellate judge, as being entitled to disturb such a discretionary decision.

 

[32] The substantive appeal against Sheriff Deutsch's decision to allow a proof before answer has been successful. The action has been dismissed. It follows that in these circumstances, the first defender is entitled to expenses. There is, in my view, no clear basis for awarding such expenses against anyone other than the pursuer. I have sanctioned the appeal as suitable for the employment of senior counsel.