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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacKay (AP) v Lothian Health Board [2000] ScotCS 112 (26 April 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/112.html Cite as: [2000] ScotCS 112

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[1] In this action the pursuer sues the defenders for damages in respect of the alleged negligence of Dr C. Robinson who was formerly employed by the defenders. The acts and omission of Dr Robinson, upon which the pursuer founds, took place on 21 April 1991 at the Royal Infirmary, Edinburgh. The present proceedings were served upon the defenders on 11 April 1996. The matter came before me for a preliminary proof in relation to the defenders' first plea-in-law, which is to the effect that the action, being time barred, should be dismissed and also in respect of the pursuer's fourth plea-in-law which is to the effect that esto the pursuers' action is time barred it would be equitable for the court to exercise its discretion to allow him to bring his action in terms of Section 19A of the Prescription and Limitation (Scotland) Act 1973.

[2] The circumstances leading to the pursuer's claim were as follows. On 18 April 1991 the pursuer was jogging. He became aware of a sharp pain in his back. He returned home. He began to experience considerable pain in his back. On the following day, 19 April, at about 5.30pm he consulted his general practitioner, Dr Storey, Gorebridge Medical Centre. Dr Storey told the pursuer that she thought he had a trapped sciatic nerve. She prescribed him painkillers. There was no improvement in his condition. On the following day, that is the 20 April, the pursuer developed further symptoms. He was unable to empty his bladder and his bowels. He was experiencing pins and needles in both of his legs and later appeared to lose sensation from the waist down. He called out another doctor from the general practitioner practice. The doctor who attended was a Dr Lithgow. Dr Lithgow recommended that the pursuer attend the Royal Infirmary, Edinburgh and gave him a note to take to the Accident and Emergency Department.

[3] At the Accident and Emergency Department, the pursuer was seen by a Dr Makin who examined him. He was thereafter sent to the orthopaedic ward. On his admission to that ward he was examined by Dr C.M. Robinson. The examination included a rectal examination during which the pursuer apparently was incontinent of urine. The pursuer related to the doctor the symptoms he had been experiencing, in particular the difficulty that he had previously had been experiencing in passing water and evacuating his bowels. The pursuer claims that Dr Robinson told him that there was "nothing much wrong with him". He said that he would keep him in hospital overnight for observation and bed rest. The pursuer further claims that Dr Robinson said that he had a problem with drink. The pursuer assumed this remark was made by Dr Robinson because he had read the pursuer's medical records and had noted that the pursuer had taken an overdose some years previously when he was drunk. The pursuer told Mr Robinson that if there was nothing seriously wrong with him he would go home. He claims that Dr Robinson said that that was all right since the hospital was not a prison. Nevertheless, the pursuer was required to sign a discharge form in which he acknowledged that he was discharging himself contrary to medical advice.

[4] The pursuer returned home with his wife. The following day 21 April he continued to suffer from the same symptoms of back pain, loss of sensation from the waist down and problems with his bladder and bowel functions. His condition did not improve over the next few days and on 23 April he called out his general practitioner who referred him back to the Accident and Emergency Department of the Royal Infirmary. On his admission to the Accident and Emergency Department he was given morphine to reduce his pain. He was admitted to the orthopaedic ward as an in-patient and on the following day, 24 April he was examined by Mr Court-Brown, a Consultant Orthopaedic Surgeon, who arranged for him to have a lumbar myelogram. The pursuer was diagnosed as having a sequestrated L5S1 disc prolapse. The pursuer underwent surgery on 25 April in course of which a sequestrated disc fragment was found. A further operation was carried out on 27 April to remove suspected residual disc material which, in the event, was not discovered.

[5] In due course the pursuer's back pain reduced significantly but he continued to experience loss of sensation in the lower part of his body. He furthermore continued to experience problems with passing urine but eventually recovered control of that function. He continued, however, to have problems with the evacuation of his bowels which he requires to do manually. He claims that he has continuing problems getting a penile erection. This last mentioned problem affected his relations with his wife, from whom he was separated for some years in part because of this problem. They have now been reconciled. He suffered from depression and was unemployed until very recently.

[6] After the pursuer was discharged from hospital, following surgery, he attended the hospital as an out-patient on a number of occasions. He also consulted a specialist regarding his bowel function and attended regularly at his general practitioners. In evidence he said that once he had undergone the surgery which took place on 25 and 27 April 1991, he realised that Dr Robinson must "have made a mistake" in not arranging for surgery to be carried out when he saw the pursuer.

[7] It is important, in this respect, to have regard to the basis of the pursuer's claim as pled. The specific averments of fault directed against Dr Robinson are that "in the circumstances of the pursuer's admission on 20 April 1991, it was his duty to diagnose a possible acute central disc prolapse. It was his duty to arrange for investigation by means of a myelogram, lumbar CT scan or MRI scan on 20 April 1991. Such investigations would have revealed the problem with the pursuer's back. On the basis of the said myelogram it would have been his duty to make a diagnosis of acute central disc prolapse and to arrange for the necessary surgical treatment that day. No ordinarily competent doctor exercising the knowledge, skill and care expected of him would have failed to carry out said investigations, make said diagnosis and arrange appropriate treatment. In the said duties the defenders' employee failed and so caused and materially contributed to the pursuer's loss, injury and damage. Had he carried out said duties said loss, injury and damage would not have occurred." As refined, in submission before me, the pursuer's case was that for a complete recovery to have been effected, it was essential that surgical intervention should have been carried out as soon as possible after the pursuer's initial admission to the Royal Infirmary.

[8] I heard evidence from Mr E.F. Wheelwright, Consultant Orthopaedic Surgeon. He had examined the pursuer in February 1996 and had produced a report on the pursuer's treatment and condition which was dated 29 February 1996. Mr Wainwright explained, in evidence, that 2% of persons who suffer from a lumbar disc prolapse will experience serious compression of the nerves leading to the lower parts of the body which will, in turn, lead to profound disturbance of function of the lower limbs and difficulty in emptying the bladder and evacuating the bowels. In such cases the unanimous opinion in medical circles is that emergency surgery is required for the relief of the compression of the nerves which is causing these problems. The longer surgery is postponed, the less likely it is that there will be full recovery of the nerves in the long-term. He said that for many years the received wisdom, indeed, was that surgical intervention should occur within six hours of the onset of the symptoms if a complete recovery was to be achieved, but that it was now thought that a longer passage of time might ensue before surgery took place and a complete recovery achieved. Nevertheless the need was for intervention as a matter of utmost urgency. Mr Wainwright considered that any doctor of ordinary competence, including a general practitioner, would be aware of the need for a rapid diagnosis of a person exhibiting the symptoms in question and the need for urgent surgical intervention in the event of that diagnosis being a lumbar disc prolapse.

[9] While, as I previously noted, the pursuer himself considered, immediately after he had undergone surgery, that Dr Robinson must have made a mistake when he examined him on 21 April 1991, he did not think to raise this with anyone apparently until 1995 even though he was seeing doctors including his general practitioner regularly during that period. In July 1995 the pursuer, who at that time was separated from his wife, was living in the matrimonial home. His wife had borrowed from the public library a copy of the Good Housekeeping Family Health Encyclopaedia. She had done so to read up about asthma from which she and one of her sons suffered. The pursuer's daughter had been asked by her mother to return the book to the library. She brought it to the pursuer's house. The pursuer looked up the index for entries relating to back problems. He found his way to the entry dealing with "prolapsed intervertebral disc". There was a description of the common symptoms of such a condition where it was stated "occasionally there is inability to empty the bladder; this is an emergency, requiring urgent surgical treatment". The pursuer said, in evidence, that, on reading that entry, he was quite angry because he considered that Dr Robinson had ignored what he had been telling him. He looked up the Yellow Pages and chose the name of a firm of solicitors at random. The solicitors were Cochrane & Blair Paterson S.S.C. He telephoned them and an appointment was arranged for him to take place a few days later on 1 August 1995.

[10] On attendance at the solicitor's offices he saw Mrs Nicole Pickavance, who was a qualified legal assistant. She took a precognition from him and got him to complete legal aid forms. Unfortunately, as recorded in her file note relating to her interview with the pursuer, and as confirmed in her evidence given in court, she was labouring under the error that the appropriate time limit for raising a claim in respect of medical negligence resulting in personal injury was five years from the date of the negligent act or omission, as opposed to three years. She accordingly proceeded thereafter upon the footing that the period for raising proceedings did not expire until 20 April 1996. That was the date she had in mind when making her subsequent investigations and when taking other steps preparatory to instructing the drafting of a summons by counsel. It was, in particular, the date she gave to Mr Wheelwright, the Consultant Orthopaedic Surgeon, who was instructed on 10 November 1995 to prepare a report. Mr Wheelwright did not, in the event, produce his report until 29 February 1996. Having considered the contents of the solicitor's file of correspondence and notes, I am satisfied that had the solicitor been correct in thinking that she had until 21 April 1996 to raise the proceedings she could have been said to have been acting with reasonable expedition in processing matters. She frankly admitted in evidence, however, that had she realised the time for raising proceedings had in fact prima facie expired some 17 months before the pursuer consulted her, she would have acted with a much greater degree of urgency and would have applied for emergency legal aid to allow a summons to be drafted without delay. I agree with counsel for the defender that had the solicitor realised the true position with regard to time bar, she could and should have raised proceedings no later than 21/2 months after being first consulted by the pursuer. Accordingly there was, in my opinion, a further delay of some six months in the raising of these proceedings which was attributable to the mistake made by the solicitors.

[11] Against that factual background, counsel for the pursuer invited me to hold that by virtue of the provisions of Section 17(2) of the Prescription and Limitation (Scotland) Act 1973 (as amended), the time bar did not begin to run until the date when the pursuer read the health encyclopaedia. If I was not persuaded that that was so, he invited me to exercise my discretion under Section 19A of the 1973 Act in that it would be equitable to allow the pursuer to bring the action against the defenders notwithstanding the expiry of the time limit.

[12] Section 17(1) of the Prescription and Limitation (Scotland) Act 1973 provides "This section applies to an action of damages where the damages claim consists of and include damages in respect of personal injuries, being an action ... brought by the person who sustained the injuries or any other person". Section 17(2) then provides as follows:

It is now well established that the onus is on the pursuer to aver facts and circumstances as to why it was not reasonably practicable for him, in the circumstances, to become aware of the relevant facts until the date upon which he did become so aware, that date being more than 3 years from the date on which the relevant act or omission occurred see Webb v BT Petroleum Development Ltd 1988 S.L.T. 775, Hamill v Newalls Insulation Co Ltd 1987 S.L.T. 478 and Cowan v Toffolo Jackson & Co Ltd 1998 S.L.T. 1000. It has been accepted, however, that the circumstances amounting to impracticability might be established by inference see Cowan v Toffolo Jackson at page 1002h-i. In the present case the pursuer's position, in relation to Section 17(2)(b) was a short one. While it was accepted that he realised, as soon as he underwent surgery, that Dr Robinson must have made some mistake in his treatment of him, in not having diagnosed his condition as being appropriate for surgery, it was contended on his behalf that he did not realise that Dr Robinson's failures in this respect had resulted in the pursuer not making as full a recovery as he might otherwise have made. Although he continued to be under the care of medical practitioners for some time after undergoing surgery, it was said by his counsel that there was nothing to prompt him to ask the question if Dr Robinson's acts or omissions had resulted in his condition being worse than it might otherwise have been. It was only on his chance reading of the entry in the medical reference book that he became aware of the fact that his condition was attributable in whole or in part to Dr Robinson's acts or omissions. That approach has, perhaps, a superficial attraction but I am satisfied that it is misconceived. It amounts to saying that the pursuer had a reasonable excuse for not asking the relevant question until prompted to do so by his reading of the medical reference book. In Elliot v J & C Finney 1989 S.L.T. 208 Lord Sutherland, in considering the terms of Section 17(2)(b) stated:

See page 210L to 211A (that case was appealed to the Inner House in relation to another matter but Lord Sutherland's approach to Section 17(2)(b) was not subject to any criticism - see 1989 S.L.T. 605).

[13] As counsel for the defenders submitted, the pursuer, in the present case, by the expiry of the 3 years from the acts and omissions upon which he founds, was aware of three important matters; first, that Dr Robinson had failed to diagnose that there was something serious wrong with him, secondly, he was aware that Dr Robinson had omitted to arrange investigations and consequent surgery which the pursuer did in fact go on to have; and thirdly, he was aware that the delayed surgery had not effected a complete recovery and that apart from the alleviation of his back pain he had continued to suffer from serious symptoms thereafter. The one material fact that remained to be ascertained was whether there was any link between Dr Robinson's failures and the pursuer's continuing condition and the question is whether it was reasonably practicable for the pursuer to have discovered any such link. Counsel for the defenders submitted that, having regard to the proper construction of the relevant statutory provisions, the pursuer was not entitled to say that he had no constructive knowledge of the link until he was in some way actually put on enquiry or was prompted to enquire. The purpose of the relevant statutory provisions was to avoid stale claims. That would be completely defeated if the pursuer could simply take his stance on the basis that if there was no prompting of him to obtain the information it was not reasonably practicable for him to obtain it. The logic of the pursuer's position was that he could bring his claim, as of right, under Section 17(2)(b) until whenever he saw the medical reference book, no matter how long after the alleged acts or omissions, this was. My attention was drawn to the explanatory notes to the clause which is appended to the draft Bill to the Scottish Law Commission's Report No. 74 at page 49, the terms of which clause are reflected in section 17(2)(b) in its present form. In those explanatory notes it is stated that the words "reasonably practicable for him in all the circumstances" are designed to reflect the fact that the test of knowledge "is mainly objective, but not wholly so." The last quoted words, in my opinion, simply reflect the fact that some regard has to be had to the particular circumstances of the pursuer's position. Counsel for the defenders submitted that it should have been reasonably practicable for the pursuer to discover, very much earlier than he did, the link between Dr Robinson's acts and omissions and the fact that the pursuer did not make a complete or satisfactory recovery after those acts and omissions. As was pointed out Dr Robinson's advice to the pursuer that "nothing was seriously wrong with him" ought to have looked very remarkable to the pursuer a week later. And indeed on the pursuer's own admission, he considered Dr Robinson's advice bad at the time and realised that Dr Robinson must have made a mistake, when he was subsequently operated upon on 25 and 27 April. The potential link between that bad advice and the pursuer's failure to make a full and satisfactory recovery after surgery, ought to have been something that should have at least occurred to the pursuer well before 1995. It was not sufficient for the pursuer simply to sit back and do nothing until such time as the link was actually stumbled upon by him or volunteered to him by others. It was perfectly clear from the evidence of the pursuer's own medical witness, Mr Wheelwright, that the existence of a link between the delay in the surgery and the continuing symptoms was readily ascertainable information, well known as it was among medical practitioners, including general practitioners. It would have been perfectly possible for the pursuer at any time to ask either the hospital doctors or his general practitioner, after the surgery was seen not to have effected a relief from some

[14] I agree with those submissions. It was, in my opinion, correct to say, as counsel for the defenders put it, that what the pursuer had established is that he did not ask the appropriate questions, not that he could not have reasonably done so. It appears to me that the pursuer's position, as presented by his counsel, entails a licence to the pursuer in such a case to indulge in a degree of passivity which the statutory provisions do not countenance. I accordingly reach the conclusion that the claim was time barred when it was raised, in that it would have been reasonably practicable for the pursuer, in all the circumstances, to have become aware of the facts set out in Section 17(2)(b) some time well before 11 April 1993.

[15] Section 19A(1) provides "where a person would be entitled, but for any of the provisions of Section 17 ... of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision". It was a matter of agreement between counsel that the onus was on the pursuer to persuade the court that it would be justified in exercising the statutory discretion contained in Section 19A in his favour, it being equitable to do so, having regard to the particular circumstance of the case and the legitimate rights and interests of the parties. In reaching a decision in such a case a court is engaging in a balancing exercise of the relevant factors pointing, on the one hand, in favour of and, on the other hand, pointing against the exercise of the discretion. As has been pointed out in previous cases, the starting point, in any such exercise, is that if the discretion is not exercised in favour of the pursuer he will suffer the disadvantage of not being able to bring his action. On the other hand if it is exercised in his favour the defender loses what would otherwise be a cast iron defence to that claim. As it was put by Lord Nimmo Smith in Crown v Toffolo Jackson & Co Ltd 1998 S.L.T. 1000 at page 1003 I-J. "The prejudice to the pursuer if the case does not proceed and to the defender if it does are obvious and cancel each other out." Accordingly, in the normal case the pursuer will require to aver circumstances going beyond the mere consequences of the operation of Section 17 of the Act, however serious that may be for him. In the present case I am not satisfied that the pursuer has averred or proved any such additional circumstances. On the other hand I am satisfied that the defenders have established a number of factors, going beyond the loss of immunity to the claim itself, which supports their case that the equitles point against the exercise of the discretion in favour of the pursuer. These factors are as follows. In the first place the defenders would be significantly handicapped in defending this claim because of the absence of adequate records of what actually transpired between the pursuer and Dr Robinson. A former employee of the defenders, Mr Robert Purves, who had been responsible for collating the relevant records when any claim was brought against the defenders, explained, in evidence, that there was very scant information in the records of the Orthopaedic Department of the Royal Infirmary about the circumstances surrounding the pursuer's examination by Dr Robinson and his self-discharge. There was, in fact, apparently, no written record of any examination which Dr Robinson carried out. The certificate of self-discharge was witnessed by Dr Robinson and a nurse named as J. F. Donoghue. It was ascertained that the nurse was not employed by the defenders, but by Lothian Health Board, at the material time, and was working for the defenders on an agency basis. Mr Purves tried to trace the nurse through the services manager without success. He had exhausted all attempts to trace Nurse Donoghue. Defenders' counsel, justifiably in my opinion, stressed that the lack of a written record of precisely what transpired between the pursuer and Dr Robinson constituted a very serious disadvantage to the defender especially when taken together with the fact that the nurse who was apparently in attendance for at least part of the time could not be found. While these disadvantages might while have existed even if the claim had been raised timeously, protection against them afforded by the time bar would be lost if the court were to exercise its discretion under Section 19A. Reference in that connection was made to McCabe v McLellan 1994 S.L.T. 346 at page 354B-D. I accept also that the evidential difficulties faci

[16] The second factor that the defenders relied upon in seeking to resist the application of the Section 19A discretion was that the pursuer is legally aided. The consequence of that is that, should the defenders be successful in resisting the claim, they would be unable to recover their expenses. They were neither insured for damages claims nor for litigation expenses. This is a factor which I consider to be relevant, although I accept that, standing on its own, it is not normally to be regarded as a very significant factor see Anderson v John Cotton (Colne) Ltd 1991 S.L.T. 696.

[17] The third factor relied upon by the defender was the prima facie weakness of the pursuer's case. Without in any sense pre-judging the matter, the evidence which I heard from Mr Wheelwright, the pursuer's own medical witness, satisfied me that, at this stage, it cannot be said that the pursuer's prospects of succeeding in this claim, if it were to proceed, can be considered to be very high. In his report, dated 29 February 1996 produced for the pursuer, to which Mr Wheelwright referred in evidence, he stated "on the basis of the evidence available to me therefore I am unable to reach any definite conclusion about the presence or absence of medical negligence". In his evidence Mr Wheelwright on a number of occasions stated that it was possible that, had Dr Robinson made the proper diagnosis, and thereafter there had been immediate surgery on the pursuer, the pursuer's condition would be better today than it was. It is true that under pressure from the pursuer's counsel, in re-examination, Mr Wheelwright stated that "on the balance of probabilities" he thought the pursuer's condition would have been better if earlier surgical intervention had taken place. Taking his evidence as a whole, however, and having regard to the fact that he is the specialist upon whose opinion the pursuer relies in bringing his claim, I was left with a serious doubt as to whether the pursuer would be able to establish negligence in this case or, at least, that there was a causal connection between his condition and any breach of duty on the part of Dr Robinson. In sum the pursuer's case is not one which I can describe as clearly strong.

[18] The last factor which I consider the defenders are entitled to rely upon, in seeking to resist the exercise of the Section 19A discretion, in favour of the pursuer, is the conduct of the pursuer and his agents. The pursuer himself did not seek any advice for four years three months after the relevant incident. Thereafter his solicitors delayed for a further 81/2 months before raising proceedings. As previously observed, that further delay was contributed to by the error of the legal assistant with regard to when the time for bringing the case expired. While I accept that that error may well not, in the circumstances of this case, provide the pursuer with any remedy against the solicitors, it contributed to further prejudice to the defenders in that, in my view, further unnecessary delay of approximately 6 months in bringing the proceedings ensued, which made the claim all the staler.

[19] Having regard to the cumulative effect of all the foregoing factors I am satisfied that the equities lie with the defenders and that I should refuse to exercise my discretion in the pursuer's favour under Section 19A. I accordingly sustain the defender's first plea-in-law, repel the pursuer's fourth plea-in-law and dismiss the action.