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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fallone v. Lanarkshire Acute Hospitals NHS Trust [2006] ScotCS CSOH_51 (28 March 2006)
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Cite as: [2006] CSOH 51, [2006] ScotCS CSOH_51

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OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH NUMBER

 

A3557/01

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD BRODIE

 

in the cause

 

VIOLET HELEN JOSEPHINE FALLONE

 

Pursuer;

 

against

 

LANARKSHIRE ACUTE HOSPITALS NHS TRUST

 

Defenders:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

Pursuer: Sutherland, Advocate; Drummond Miller, W.S.

Defenders: Ferguson, Q.C., Mitchell, Advocate; R F Macdonald, Solicitor

 

28 March 2006

Introduction

[1] This action for damages for personal injury came before me on Procedure Roll for discussion of the defenders' preliminary pleas. Miss Sutherland appeared for the pursuer and Mr Ferguson QC and Mr Mitchell appeared for the defenders. Mr Ferguson's motion was to reserve the defenders' first plea-in-law, which was a general plea to the relevancy and specification; to uphold the defenders' second plea-in-law, which was that there being special cause as to why the case was unsuitable for jury trial, issues should not be allowed; and to allow proof before answer on the whole of the parties' pleadings. Miss Sutherland's motion was to allow issues.

 

Pleadings

[2] It is convenient to quote the pursuer's pleading at some length.

[3] Article 2 of condescendence sets out a history of events between October 1997 and 16 June 1998, leading up to the pursuer undergoing surgery in relation to breast cancer. It is in the following terms:

"In or about late October 1997 the pursuer noticed a hard lump on her right breast, just below the nipple. The pursuer was conscious of a change in shape and appearance of the nipple. The pursuer was aware of the importance of breast examination and normally checked her breasts for lumps. The pursuer was concerned that she could have breast cancer. She consulted her General Practitioner, Dr C J Mackintosh, Hunter Health Centre, East Kilbride. He referred the pursuer to Mr Thomson, Consultant Surgeon at the Breast Clinic at Hairmyres Hospital East Kilbride. The pursuer attended the clinic on 24th November, 1997. The pursuer was seen by Mr Ali who was at that time a Surgical Registrar. He examined the pursuer and confirmed the presence of a well circumscribed lump below the right areola which was tethered to the overlying skin. This is a classic presentation of breast cancer. In such circumstances a cancerous lump must be ruled out. Mr Ali arranged a mammogram. This was reported by Dr Rosemary Weir as showing no suspicion of malignancy. All Surgeons working in breast units are aware that mammogram is only one of three investigations required where a patient presents with a breast lump. All Surgeons working in breast units are aware that a negative mammogram does not rule out malignancy. It is well known that mammograms in pre-menopausal women will miss 30% of breast cancers. The report of the mammogram indicated that ultrasound examination was advised. The lump was said to be clinically palpable and to exhibit skin tethering, a classic description of a cancerous lump. No ultrasound examination was arranged by Mr Ali, despite this instruction. No attempt was made by Mr Ali to obtain a sample from the lump either by fine needle aspirate, core or open biopsy. All ordinarily competent Surgeons working in a Breast Unit are aware that where a woman presents with a breast lump triple assessment is required before a malignant lesion can be excluded. Triple assessment includes clinical examination, mammography and cytology or a form of biopsy. The pursuer was given an appointment for review in 3 months. The pursuer re-attended the clinic on 23rd February, 1998 and was seen by Mr Ibrahim who was at that time an SHO in Surgery. He also noted a small lump at the outer quadrant of the right breast at 7 o'clock, and that the skin was tethered. He arranged an ultrasound examination of the lump. On 13th March, 1998 the pursuer underwent an ultrasound examination followed by a fine needle aspirate. A fine needle aspirate takes a small amount of the tissue from the area of the lump for analysis. The sample was poor. The pathology report stated that the appearances were atypical of breast pattern. Following receipt of the cytology Mr Thomson wrote to the pursuer. The pursuer was reviewed at the clinic on 27th April, 1998 by Mr Morely SHO and arrangements were made for her to undergo an ultrasound controlled biopsy on 15th May, 1998. On 10th June, 1998 the pursuer was admitted to Hospital for biopsy of her breast. The procedure was performed by Mr Thomson, who told the pursuer that there was little to worry about. The specimen taken at biopsy was analysed and the report on 16th June, 1998 confirmed that the pursuer had breast cancer. Arrangements were made for the pursuer to attend for further surgery which included wide local excision and axillary clearance. The breast cancer had been present since the time of the pursuer's first presentation to Hospital in November 1997. As a consequence of the delay in diagnosis the pursuer sustained the loss, injury and damage hereinafter condescended upon."

[4] Article 3 of condescendence contains averments as to medical practice in 1997. It is in the following terms:

"In 1997 it was normal and common medical practice to assess breast lumps by a triple assessment procedure. Said assessment included clinical examination, mammography, and cytology or a form of biopsy. Where clinical examination revealed, as it did in the pursuer's case, a palpable breast mass with tethering to the overlying skin, ordinarily competent medical practice necessitated further investigation. Said investigation included both mammography and an attempt to obtain a sample of the lump for both cytology or pathology. Failure to attempt to obtain cells for cytology, or a core biopsy, or to recommend excision of the lump, would be a course of action which no Doctor acting with ordinary care and skill would have taken. When a Radiologist performing mammography recommends further examination to the Surgical Team requesting the original examination, ordinarily competent Medical Practitioners would act upon such advice, particularly in the presence of a tethered breast lump. When atypical breast changes are demonstrated upon fine needle aspirate, as occurred in the pursuer's case in March 1998, ordinarily competent medical practice would necessitate further urgent investigation of the abnormality, and not a further delay of three months before a definitive biopsy was performed."

[5] Article 5 of condescendence contains the pursuer's averments of the damage she alleges is consequential on the negligence for which the defenders are liable. It is in the following terms:

"As a result of the delay in diagnosis of her breast cancer the pursuer sustained loss, injury and damage. When the pursuer felt the lump initially she was concerned that she did have breast cancer. She did not feel re-assured after her attendance at Hospital and following examination by Mr Ali. She did not feel that he listened to her concerns and felt he was dismissive. The pursuer was aware that the lump was changing during the period between November and June and also felt that it was increasing in size. She suffered pain in the area and frequently woke from her sleep in distress. The pursuer was convinced that she did have cancer and spent many hours lying in the dark in her bedroom crying consumed by an overwhelming fear that she was going to die. The pursuer was extremely distressed when the diagnosis was eventually made. She broke down in tears certain that her worst fears had now been confirmed. She was immediately aware that there had been a delay in diagnosis and treatment of the lump. The pursuer refused to believe that she would not die. As a result of the delay in diagnosis the pursuer has developed an Adjustment Disorder with depressed mood. The pursuer continues to suffer psychologically as a result of the delay in diagnosis. The pursuer has lost all confidence in medical professionals. This will have implications for any treatment she requires in the future. The pursuer has lost self confidence and suffered a loss of self esteem as a result of the delay in diagnosis. The pursuer's marriage broke down as a result of her psychological problems directly related to the delay in diagnosis of her breast cancer. Prior to this the pursuer had been happily married for 28 years. A diagnosis should have been made within a week of the clinic visit on 24th November. Had the diagnosis been made in November it is likely that the pursuer would have coped with the diagnosis and undergone treatment without any continuing psychological problems. The pursuer required to undergo 18 weeks of chemotherapy commencing on 6th August, 1998. The sessions of chemotherapy were lengthy and distressing for the pursuer. The pursuer suffered nausea, tiredness and sore eyes which are side effects of the chemotherapy treatment. Had the diagnosis been made in November it is likely that the pursuer would not have required chemotherapy. As a result of the chemotherapy the pursuer lost her hair. This caused her great distress. In the circumstances the sum sued for is a reasonable estimate of the loss, injury and damage suffered by the pursuer."

 

Submissions of parties
Submissions for the defenders

[6] Mr Ferguson, on behalf of the defenders, explained that, after some preliminary remarks, his submissions would fall into three chapters: consideration of the terms of the Closed Record; a submission in support of the contention that the pursuer's pleadings were of doubtful relevancy and specification; and a submission in support of the contention that, in any event, the claim presented difficulties in the assessment of damages which made it unsuitable for a trial by jury.

[7] In his preliminary remarks, Mr Ferguson drew my attention to the terms of sections 9 and 11 of the Court of Session Act 1988. The present action was one of a class that is enumerated in section 11 of the Act. Subject to section 9(b) of the Act, an enumerated cause shall be tried by jury. The qualification to that provision which is introduced by section 9(b) is that the Lord Ordinary may allow a proof in such an action if special cause is shown. The question was essentially a matter for the discretion of the court, the object being to select as between the alternative methods of enquiry, which type of tribunal would best secure justice as between the parties to the action: Graham v Associated Electrical Industries Limited 1968 S.L.T. 81 at 82.

[8] Mr Ferguson then took me through the Closed Record. He summarised the case as one of negligent delay in diagnosing breast cancer, the only fault alleged being that of Mr Ali, the Surgical Registrar who had seen the pursuer on 24 November 1997. The fault attributed to Mr Ali was his failures to have carried out the third investigation required for a triple assessment of the suspected breast cancer and to arrange for an ultrasound scan. The pursuer's averments attributed the whole of the delay between the end of November 1997 and 16 June 1998 as being due to the fault of Mr Ali. That, submitted Mr Ferguson, could not be so, given the pursuer's further averments which disclosed that she re-attended the breast clinic on 23 February 1998 when she was seen by Mr Ibrahim after whose examination there took place all the investigations desiderated by the pursuer, and in consequence of which a diagnosis of breast cancer was made on 16 June 1998. No criticism is made of what was done by Mr Ibrahim or by anyone else, on or subsequent to 23 February 1998. It is not averred that anything should have been done more urgently. The subsequent history is simply presented as narrative.

[9] Moving to the second chapter of his submissions, Mr Ferguson said that it was trite that a properly drawn record that properly focused the issues was necessary if issues were to be allowed. Jury trial was only an appropriate mode of enquiry if the pursuer's pleadings were clearly relevant and specific on all material points: O'Malley v Multiflex (UK) Inc. 1997 S.L.T. 362 at 363; Boyle v Glasgow Corporation 1949 S.C. 254 at 261-262; and Moore v Stephen 1954 S.C. 331 at 334. There was no such thing as a "trial before answer": Moore supra at 334. If a pursuer's averments were of doubtful relevancy, then that was special cause rendering a case unsuitable for jury trial: Boyle supra at 263; Irvine v Balmoral Hotel Edinburgh Ltd 1999 Rep L.R. 41 at 43 and para.8-08. Mr Ferguson identified three respects in which he submitted that the pursuer's pleadings in relation to the issue of fault were of doubtful relevancy. First, notwithstanding that the averments of fault in article 4 of condescendence appeared to be directed solely against Mr Ali, there were averments at pages 13C to D and at 14C of the Record which might be relied on to make a case against others. At page 13C, after mention of "the Surgical Team" there are references to "ordinarily competent medical practitioners" and "ordinarily competent medical practice" without explanation as to just whose medical practice was being referred to. At page 14 C, the pursuer averred that her loss "was caused, or at least materially contributed to by the fault and negligence of the medical staff employed at the said Hospital." If it was only Mr Ali who was being blamed, why this reference to "the medical staff employed at the said Hospital" and why the averment, at page 13C to D:

"When atypical breast changes are demonstrated upon fine needle aspirate, as occurred in the pursuer's case in March 1998, ordinarily competent medical practice would necessitate further urgent investigation of the abnormality, and not a further delay of three months before a definitive biopsy was performed."

Secondly, Mr Ferguson complained of a reference at page 13A to "further investigation" without there being any specification of what that investigation should have involved. He did not accept that it necessarily referred to ultrasound examination, as mentioned at page 6E, given the reference at page 13B to "excision of the lump". Given this reference at page 13B, the defenders were entitled to know what it was that Mr Ali was expected to have done which he did not in fact do. If it was the instruction of ultrasound examination (which it was averred at page 6E was advised by the radiologist in the report of the mammogram carried out in November 1997) then the pursuer should say so. If it was something else then the pursuer should say so. That the pleadings were open to both interpretations meant that there would be problems as to the admissibility of evidence. Thirdly, Mr Ferguson complained about the averment at page 13B that no doctor acting with ordinary care and skill would have failed to attempt to obtain cells for cytology, or a core biopsy, "or to recommend excision of the lump" given that it was no part of the case of fault against Mr Ali (as set out in article 4 of condescendence) that he had not recommended excision of the lump. Mr Ferguson took the word "both" where it occurred before "cytology or pathology" at page 13A to be a typographical error but interpretation of the pursuer's pleadings was not made any easier, he said, by the reference to "cytology or pathology" and then "core biopsy". Up until this point Mr Ferguson had focused on the pursuer's averments of fault. He turned to her averments of loss. In his submission, these too were of doubtful relevancy. Again, he had three criticisms to make. First, the whole of what was said to have been a delay was laid at Mr Ali's door whereas no criticism was made of what had happened after 23 February 1998 when the pursuer was seen by Mr Ibrahim (other than the reference to "further delay" at page 13D which was not taken forward to any averment of breach of duty). Indeed, it would appear that Mr Ibrahim did in February 1998 exactly what it is that the pursuer avers Mr Ali should have done in November 1997. Why then was Mr Ali blamed for the outcome of events subsequent to February 1998? What was set out in the pursuer's pleadings is what in fact happened to the pursuer. What was lacking was any explanation as to why any different series of events would have occurred had Mr Ali done in November 1997 what Mr Ibrahim did in February 1998. It was averred, at page 16E, that a diagnosis should have been made within a week of the clinic visit on 24 November 1997. There is, however, a failure to explain why that should have been so. Mr Ferguson's second criticism was of the averment at page 16D: "The pursuer has lost all confidence in medical professionals. This will have implications for any treatment she requires in the future." This, said Mr Ferguson, was entirely inspecific. There was no indication of what treatment was meant. Was it intended to be a reference to the pursuer's treatment in respect of her adjustment disorder? The defenders were left entirely in the dark. They were entitled to have at least a broad indication of what the pursuer maintained was her loss. They had not been provided with that. Thirdly and finally, under this chapter, Mr Ferguson drew attention to the pursuer's averment at page 17B that had the initial diagnosis been made in November 1997 it is likely that the pursuer would not have required chemotherapy. Again, there was no explanation as to why the pursuer maintained that this was so.

[10] In the third chapter of his submissions, Mr Ferguson contended that in addition to the doubtful relevancy of the case, it presented difficulties in the assessment of damages. There was difficulty in fact, difficulty in law and difficult in relation to specification. Taken together that amounted to special cause not to allow jury trial. Mr Ferguson accepted that the difficulty or complexity of the facts did not, per se, justify refusing a jury trial. He did not, for example, argue that simply because this was a case of alleged medical negligence it could not properly be tried by jury. However, there were particular complications here. The jury would be asked to distinguish the psychological sequelae flowing from delay in diagnosis by reason of the fault of Mr Ali, from those flowing from the fact of the diagnosis itself. This was complicated by the pursuer blaming Mr Ali for all of the alleged delay between November 1997 and June 1998. There was a real problem as to how the elements of the pursuer's case fitted together. Mr Ferguson therefore invited me to sustain his second plea-in-law, to refuse issues and to allow proof before answer.

 

Submissions for the pursuer

[11] Miss Sutherland began by emphasising that it was for the defenders to show special cause not to allow jury trial. Such special cause had to be specific to the particular case: Walker v Pitlochry Motor Co 1930 SC 565 at 575. It had to be a real ground of substance, not a mere hypothetical difficulty conjured up by the ingenuity of counsel, something capable of articulate formulation and not a mere generality: Graham v Paterson & Sons 1938 SC 119 at 127. The pleadings had to be taken as a whole. It was not a proper approach to manufacture hypothetical difficulties by looking at passages of the pleadings in isolation. The question was whether the judge would be able to give an adequate and effective direction which could be readily understood by the jury: O'Malley supra at 363J. It was relevant to consider whether the pleadings gave fair notice, but the fact that complex and complicated medical evidence might be required did not necessarily make a case unsuitable for jury trial: Irvine v Balmoral Hotel Edinburgh Ltd supra at 43 para.8-20; Thomson v McAleer 1996 Rep L.R. 128 at 129 para.35-07. She recognised, however, that limited assistance was to be gained from looking at other cases. In exercising what she accepted was a discretion, the court had to consider the particular case before it. This case was very simple and straightforward. The pursuer had gone to Mr Ali with a view to the investigation of her condition. Mr Ali had failed to do what he should have done. There had, as a result, been a delay in diagnosis. No case was made against Mr Ibrahim or any other practitioner. What was averred in Article 2 of condescendence is what had actually occurred. Mr Ali could have cut short that process by making a prompt diagnosis. It could not be assumed that the events which actually followed the negligent failure to diagnose would have necessarily followed a diagnosis made in November 1997. Miss Sutherland referred to the decision of the House of Lords in Chester v Afshar [2005] 1 AC 134. Miss Sutherland conceded that the averment at page 13B: "to recommend excision of the lump" should not have been included in the pleadings. Quite simply, the pursuer's case was based on Mr Ali's negligent failure to order a biopsy for the purpose of cytology with the result that he failed to obtain the tissue sample from which a diagnosis would have been made. He had a choice as to precisely what method he adopted but he had to take a sample. The pursuer's case was that he did not do so with the result that a diagnosis, which should have been made in November 1997, was not made until June 1998. The question was whether the case was suitable for jury trial. That essentially involved consideration of whether fair notice had been given and whether an adequate and effective direction could be given to the jury.

[12] In relation to the criticism levelled at the averment that the pursuer had lost all confidence in the medical profession, Miss Sutherland submitted that this was a case where a jury had a particular contribution to make. The averment raised what was very much a jury question. The question was no more difficult than the sort of question that criminal juries were regularly asked to determine. As far as the averments in relation to chemotherapy were concerned, it was clearly averred by the pursuer that had the diagnosis been made in November 1997 then she would not have needed chemotherapy. It was for the pursuer to prove that averment. She was offering to do so. In concluding Miss Sutherland returned to what she had said at the beginning of her submissions: it was not for the pursuer to satisfy the court that the cause was suitable for the jury, it was for the defenders to show that there was special cause not to allow jury trial. In Miss Sutherland's submission the defenders had failed to do this. She moved for issues.

 

The further submission for the defenders
[13
] In a very brief second speech, Mr Ferguson submitted that it was incorrect to take the question as to whether clear directions could be given as the test for allowing a jury trial. The clear directions point only arose once it was determined that there was a properly relevant and specific record. Only then did one have to address the question of special cause.

 

Discussion and decision
[14
] Parties' counsel were at one on a number of matters. If an action is one of the enumerated causes, as this one is, a pursuer is entitled to jury trial. It is for a defender wishing another mode of inquiry to establish why the alternative should be adopted. In contemporary parlance, jury trial is the default position. Determination of whether there is special cause to withhold a cause from jury trial is a matter for the discretion of the Lord Ordinary. What that means in this context was explained by Lord Clyde in Walker v Pitlochry Motor Co supra at 575:

"Whether this or that special feature - or some combination of special features - amounts to special cause is a question to be determined, not by reference to any legal principle or category, but as a matter of sound discretion, and the discretion rests mainly, and in the first instance, with the Lord Ordinary...".

Moving closer to the specifics of this particular action, parties were also agreed that just because it involves an allegation of medical negligence that, of itself, does not make a cause unsuitable for jury trial. Miss Sutherland reminded me that the tests for medical negligence that are most frequently referred to in Scotland and England respectively were enunciated in Hunter v Hanley 1955 SC 200, in an opinion given in relation to a motion for a new trial, and in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, in the course of a charge to the jury. Similarly that a case would require the leading and understanding of technical or complicated evidence did not, of itself, make that case unsuitable for jury trial. Juries in criminal trials are frequently required to consider quite complex medical evidence and do so successfully.

[15] Needless to say, counsel did not agree on everything. I think that Mr Ferguson was correct in identifying a difference in approach as between himself, on the one hand, and Miss Sutherland, on the other, and that that was focused by the weight given by Miss Sutherland to the consideration of whether an adequate and effective direction could be given to and applied by the jury. This, she said on more than one occasion was "the test" as to whether a case was suitable for jury trial. Not so, submitted Mr Ferguson. First there had to be clear, relevant and specific pleadings. Then one might consider whether an adequate and effective direction could be given. Without necessarily adopting the precise way in which Mr Ferguson formulated the matter, I consider there to be force in his submission. The passage from which Miss Sutherland took her reference to this test is found in the opinion of Lord Gill in O'Malley supra at 363J. Three paragraphs earlier in his opinion Lord Gill had said this, at 363G:

"The recent revival of interest in jury trial makes it necessary for pleaders to keep in mind that jury trial is an appropriate mode of inquiry only if the pursuer's pleadings are clearly relevant and specific."

Lord Gill then expressed the view that the averments which had come under particular attack in that case (relating to a claim for wage loss and for a loss of employability) were of doubtful relevancy. He then said that absence of clarity as to the relationship between the two claims provided a further reason for these averments being of doubtful relevancy. Then, at 363J, he said this:

"A useful test in these cases is to consider whether on the pursuer's pleadings an adequate and effective direction could be given to, and applied by, the jury on the contentious question. Counsel for the pursuer had difficulty in suggesting a form of direction which would explain to a jury, on the basis of the pursuer's pleadings, how they should calculate the two heads of claim and how they should discriminate between the two."

With all respect to Miss Sutherland my impression was that she was offering an adequate and effective direction test as the touchstone as to whether jury trial was appropriate as the mode of inquiry without taking into account the context where the reference to a test is found in Lord Gill's opinion or taking into account how such a test might be applied. Lord Gill was looking at particular averments: "on the pursuer's pleadings" bearing on a particular issue: "on the contentious question". In his opinion the averments were of doubtful relevancy (in other words they might or might be relevant depending upon precisely what was revealed by the evidence led in support). That could be tested by posing the question as to whether "on the pursuer's pleadings" an adequate and effective direction could be given "on the contentious question", which, in the particular case, was how the two heads of damages were to be calculated and how they were related one to the other. I would accept that doubtful relevancy is likely to give rise to difficulty in giving a direction and that therefore difficulty in giving direction may well be an indicator of doubtful relevancy. For that reason I am not inclined entirely to divorce the question as to whether the pleadings are sufficiently relevant and the question as to whether there would be difficulty in giving directions, which seemed to be the approach suggested by Mr Ferguson. However, one can only ask the question whether on the pursuer's pleadings an adequate and effective direction could be given to, and applied by, the jury on the contentious question, if one has identified, with a degree of precision, a contentious question. In other words, one must be able to focus on a particular issue or topic in the light of the way the pursuer's case is pled. I did not understand Miss Sutherland to focus on any particular topic in the light of the pleadings. Rather, she encouraged me to look at the case as a whole. It was, she said, a very simple straightforward case. As I understood her, it was because Miss Sutherland characterised the whole case as simple and straightforward that she invited me to answer the question as to whether an adequate and effective direction could be given to the jury in the affirmative. In other words, it appeared to me that Miss Sutherland's repeated references to the adequate and effective direction test were really no more than reassertions of her characterisation of the case as being one that was simple and straightforward. She was not, in any way that I was able to follow, pointing me as to how I should apply this test when considering the averments that were under particular scrutiny with a view to determining the issue in her favour. I shall return to Miss Sutherland's characterisation of the case as a simple and straightforward one later in this opinion.

[16] Miss Sutherland did not seek to dispute the proposition, stated in Lord Gill's opinion in O'Malley, that jury trial is an appropriate mode of inquiry only if the pursuer's pleadings are clearly relevant and specific. The rationale is explained by Lord Justice-Clerk Thomson in the two cases cited by Lord Gill in O'Malley supra at 363H. In Boyle supra at 261 Lord Justice-Clerk Thomson said this:

"A properly drawn record is essential in a jury trial, and the points at issue ought to be clearly focused. One wants to avoid wrangling as to the admissibility of evidence. That is undesirable in itself and sometimes operates prejudicially against the party taking objection. ... It seems to me that it is in the interests of all parties that the relevant and substantial points should be stated and clearly stated in the record, and that the facts relied upon, the grounds of action and the pleas-in-law should be adequately presented ...The function of a record is to convey what the case is about and to make the legal issues clear, and it is really intolerable that it should be left to the court, with the assistance of counsel, to try to extricate from the averments what the points in the case are."

In Moore supra at 334 he put the matter this way:

"The subsumption on which a jury trial proceeds is that all questions of relevancy have been disposed of and that the trial is to proceed on the basis of the record, which is looked on as conclusive of relevancy. This is shown by a number of considerations. No judge could exclude evidence from the jury's consideration if the party leading it could show that he had sufficient record for it. So, too, the courts, when invited to send a case to proof rather than to jury trial, are frequently affected by the consideration of the doubtful relevancy of the record, and the courts have frequently emphasised the desirability of records in case going to juries being clearly stated so as to focus for the jury the points in controversy. ...It is only on a relevant record that the proper respective functions of judge and jury can satisfactorily be operated."

[17] Is this then a record that clearly focuses the points in issue and clearly states the facts which, if proved, will entitle the pursuer to the remedy that she seeks? I am not satisfied that it is.

[18] I was not impressed by all of Mr Ferguson's criticisms. I shall have something more to say about the averments at page 13C to D in relation to events in March 1998, but it appears reasonably clear that the pursuer is seeking to make a case against Mr Ali in respect of what he failed to do in November 1997 and not against anyone else. Miss Sutherland expressly disclaimed any other case and I consider Mr Ferguson's anxiety on this score to be unjustified. Miss Sutherland conceded that the words "to recommend excision of the lump" which are found at page 13B should not be there. She did not, however, seek leave to amend by deleting the words. While it is not for the court to revise a party's pleadings, had these words been all that stood between the pursuer and a jury trial I would have brought the case out by order with a view to giving the pursuer the opportunity to amend by deleting these words. Connected to the criticism of the inclusion of the words at page 13B was Mr Ferguson's submission that the expression "further urgent investigation" at page 13A was of doubtful relevancy by reason of lack of specification. It might, he suggested, include excision of the lump. It might include ultra-sound investigation. Insofar as there was a basis for this criticism I would consider that it would be addressed by deletion of the words at page 13B but I was not persuaded that this criticism was soundly based. It appeared to me that, on a fair reading, the pursuer is doing no more than setting out how the triple assessment procedure should be applied: when certain findings are apparent on clinical examination then further investigation is required. The pursuer specifies what she means by further investigation in the following sentence: "Said investigation included both mammography and an attempt to obtain a sample of the lump for ... cytology or pathology." While I agree with Mr Ferguson that it is not entirely clear what is meant when the pursuer uses the words "biopsy", "cytology" and "pathology", these are or may be terms of art requiring explanation by suitably qualified witnesses. That the layman who has not had the benefit of such evidence does not understand what is intended by these words is no more reason to refuse a jury trial than it would be to refuse a proof. In fairness to Mr Ferguson he did not suggest otherwise.

[19] I found Mr Ferguson's criticisms of the relevancy of the pursuer's averments of the causation of damage to be more formidable. At this point it is convenient to take an overview of the action. That involves consideration of Miss Sutherland's characterisation of the action as simple and straightforward. The pursuer avers that Mr Ali was negligent in failing to see that two further procedures were carried out in November 1997 when the pursuer attended for investigation of the hard lump she had noticed in October of that year : biopsy, because it was part of the triple assessment; and ultra-sound scan, because it had been advised by the radiologist. By reason of these failures it is averred that Mr Ali caused or at least contributed to the whole of the pursuer's loss consequent upon what the pursuer asserts was a delay in diagnosis as between the last week in November 1997 and 16 June 1998. The pursuer avers, at page 8B, that her breast cancer had been present in November 1997. She avers, at page 14D, that had Mr Ali both arranged an ultra-sound and obtained a sample for biopsy the diagnosis would have been made in November 1997. She does not aver what would have been apparent in November 1997 to a reasonably competent investigator had these two investigations in fact been carried out. Now I shall have to return to that part of the averment that concerns the date on which the diagnosis would have been made but no criticism was made by Mr Ferguson of the averment that a diagnosis of breast cancer would have been made (and, indeed, made earlier than it in fact was): understandably so, because the pursuer has averments that when the procedures that she avers should have been carried out were carried out a diagnosis of breast cancer was made. Proof that a diagnosis was made at a later date as a result of specified investigative procedures being carried out at least permits the inference that it would have been made at an earlier date if the same procedures had been carried out earlier where, as in the present case, an important sign (the lump) was present at that earlier date. Thus far, I would accept that the action can be regarded as simple and straightforward. However, there are further complications.

[20] What Mr Ferguson did criticise was the averment that, in the event that Mr Ali had done what any ordinarily competent registrar would have done, a diagnosis would have been made in November 1997, as opposed to, say, some four months later. I give the instance of some four months later because it appears from the pursuer's averments that the pursuer having been seen by Mr Ibrahim on 23 February 1998 and Mr Ibrahim having arranged that the investigative procedures desiderated by the pursuer be carried out, it was only on 16 June 1998 that the diagnosis was made. The way Mr Ferguson put it was to ask why all the delay was being put at Mr Ali's door when no criticism was being made of what had in fact happened after 23 February 1998. Miss Sutherland's response was that it could not and should not be assumed that what happened in February 1998 would have happened in November 1997. She mentioned the decision of the House of Lords in Chester v Afshar supra as possibly supportive of her position but it was not the subject of detailed discussion.

[21] Chester v Afshar was a case of a surgeon failing to obtain informed consent. A random risk that the claimant should have been warned about by the defendant eventuated albeit that the surgery was carried out without negligence. As the judge had not found that the claimant would never have undergone the surgery had she been given an appropriate warning, applying conventional principles she could not satisfy the test of causation. The majority of the House of Lords was, however, prepared to make what Lord Steyn described as a narrow and modest departure from conventional principles with a view to the vindication of the claimant's right of autonomy and dignity (supra at 936D). Without more detailed argument I am unable see to see how this applies to the present case. A more obviously applicable authority is Bolitho v City & Hackney Health Authority [1998] AC 232. In that case there was an issue as to whether the plaintiff had proved that the admittedly negligent failure of a senior paediatric registrar, Dr Horn, to attend a child in respiratory difficulty had caused the damage caused by reason of his respiratory collapse. For the damage to have been prevented it would have been necessary that the child be intubated prior to the final catastrophic episode. The evidence of Dr Horn was that had she attended, she would not have intubated. Evidence was led as to whether not instituting prophylactic intubation in the circumstances would have been in accordance with a responsible body of professional opinion. The trial judge held that it would have been in accordance with such a body of opinion and therefore not negligent not to intubate. He accordingly held that the plaintiff had failed to prove that the child's damage was caused by Dr Horn's fault in not attending when requested to do so. Bolitho is usually cited for the discussion by Lord Browne-Wilkinson, in the only reasoned speech, of the necessity of assessing medical negligence by reference to a responsible body of medical opinion. However, in a portion of his speech headed The Bolam test and causation, Lord Browne-Wilkinson also considered the question of what a plaintiff need do in order to establish that a negligent omission caused the relevant damage. At 240B to G he said this:

"Where, as in the present case, a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Wilsher v Essex Area Health Authority [1988] AC 1074. In all cases the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure by a doctor to attend) that factual inquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred. ...Therefore in the present case, the first relevant question is 'what would Dr. Horn or Dr. Rodger have done if they had attended?' As to Dr. Horn, the judge accepted her evidence that she would not have intubated. By inference, although not expressly, the judge must have accepted that Dr. Rodger also would not have intubated: as a senior house officer she would not have intubated without the approval of her senior registrar, Dr. Horn...

However in the present case the answer to the question 'what would have happened?' is not determinative of the issue of causation. At the trial the defendants accepted that if the professional standard of care required any doctor who attended to intubate Patrick, Patrick's claim must succeed. Dr. Horn could not escape liability by proving that she would have failed to take the course which any competent doctor would have adopted. A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter. I have no doubt that this concession was rightly made by the defendants. But there is some difficulty in analysing why it was correct. I adopt the analysis of Hobhouse L.J. in Joyce v Merton, Sutton and Wandsworth Health Authority [1996] 7 Med. L.R. 1. In commenting on the decision of the Court of Appeal in the present case, he said, at p. 20:

'Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action. The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault. The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken. In the Bolitho case the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated.'

There were, therefore, two questions for the judge to decide on causation: (1) What would Dr. Horn have done, or authorised to be done, if she had attended Patrick? and (2) If she would not have intubated, would that have been negligent? The Bolam test has no relevance to the first of those questions but is central to the second."

[22] I agree with Miss Sutherland to the extent that it does not necessarily follow that what actually ensued after Mr Ibrahim arranged in February 1998 for the carrying out of ultrasound and biopsy (and, in particular, the passage of time between the various steps which eventually led to a diagnosis being made on 16 June 1998) would have ensued had Mr Ali made similar arrangements in November 1997. The pursuer is entitled to assert, as she does at page 14D of the record, that had Mr Ali arranged an ultrasound scan and the obtaining of a sample of the lump for analysis, a diagnosis would have been made in November 1997. However, she must prove that averment. Looking at the averments of primary fact in her pleadings it is by no means clear how she proposes to do that. As Lord Browne-Wilkinson identifies, we are in the realms of hypothesis: the question is what would have happened if an event which by definition did not occur had occurred. Here the event (or events) that did not occur was the arranging of an ultrasound scan and the obtaining of a sample of the lump for analysis. The pursuer's case is that had a scan been arranged and had a sample been taken in November 1997 the results of the scan and analysis of the sample would have been such that a diagnosis of breast cancer would have been made and made in November 1997. Now, adopting the analysis of Hobhouse LJ, Lord Browne-Wilkinson explained that a party in the position of the pursuer in the present case can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the pursuer required that he take that action. In the present case it would appear from the pursuer's averments at page 7C to 8B which narrate what actually happened after the pursuer saw Mr Ibrahim on 23 February 1998 that there was more than one "relevant person" who would have been involved in scanning and analysis but it would appear from the bald averment at page 14D that it is the first of the alternative means of discharging the burden of proof on causation indicated by Hobhouse LJ that the pursuer in the present case is opting for. A difficulty pointed to by Mr Ferguson is that there is no averment which attempts to explain why the relevant persons would have scanned and analysed any more quickly in November 1997 than did the relevant persons in February 1998 and thereafter. While Miss Sutherland accepted that there was no allegation of negligence on the part of anyone other than Mr Ali and accordingly that it was not being said that those who treated the pursuer on and after 23 February 1998 were negligent, it is true that there is in the pursuer's pleadings what I take to be criticism of the performance of those responsible on and after 23 February 1998, at page 13C to D of the record. It is as if the pleader was at least half-minded to opt for the second of the alternative means of discharging the burden of proof on causation indicated by Hobhouse LJ. The averments do not, however, go the distance of alleging negligence on or after 23 February 1998 and Miss Sutherland did not suggest that they did. Nor do I find averments to the effect that failure to diagnose breast cancer in the pursuer's case within a week of Mr Ali arranging an ultrasound scan and taking a sample in November 1997 (the events that did not occur) would have been negligent. In the result, the pursuer's case, at least insofar as it relates to four of the seven months' alleged delay is perilled on proving that those responsible for scanning and analysis in November 1997 would have come to a diagnosis of breast cancer very much more quickly than those who were responsible in February 1998. This is in a context where the pursuer provides quite detailed averments demonstrating how the process may take some four months and no averments at all (other than the bare assertion) explaining why it should take less than a week. I agree with Mr Ferguson's submission that this part of the pursuer's case is of doubtful relevancy.

[23] Mr Ferguson submitted that the averment: "The pursuer has lost all confidence in medical professionals. This will have implications for any treatment she requires in the future.", which appears at page 16D of the record was entirely inspecific. I agree. I have no idea what was intended by the second sentence. To describe it as of doubtful relevancy, which is as far as Mr Ferguson went, appeared to me generous but no doubt Mr Ferguson had reasons for such apparent generosity. To have submitted that it was entirely irrelevant would have had the result of the averment not being admitted to probation which would have meant that it would no longer have presented an impediment to a jury trial. I did not take it that it was Mr Ferguson's object to remove any such impediment but, equally, there was no motion to amend by Miss Sutherland.

[24] At page 17B of the record it is averred that had the initial diagnosis been made in November 1997 it is likely that the pursuer would not have required chemotherapy. No explanation is provided as to why the pursuer maintains that this is so. Mr Ferguson submitted that this averment too is of doubtful relevancy. I agree. We are again dealing with a hypothesis: what would have happened if an event which did not occur (a November 1997 diagnosis) had in fact occurred. Clearly, among the possibilities is that more radical treatment would not have been necessary because the pursuer's condition would not have been so advanced. The averment criticised by Mr Ferguson can be regarded as an invitation to the fact-finder to reach a particular conclusion on the balance of probabilities, the conclusion being that had the hypothetical event occurred chemotherapy would not have been necessary. Such a conclusion can only be reached on a consideration of facts that are proved. A statement of the averment by a witness, even an expert witness, would of itself be of little value: Davie v The Magistrates of Edinburgh 1953 SC 34 at 40. If facts are to be proved they must be averred, at least in summary. Looking to the pursuer's pleadings in the present case I have found little in the way of averments of facts which, if proved, might permit the conclusion that chemotherapy, which it is accepted was an appropriate treatment in June 1998, would not have been necessary in November 1997. It is true, as Miss Sutherland pointed out, that at pages 15E to 16A of the record it is averred that the pursuer was aware that the lump was changing and increasing in size. That may point to a development of the breast cancer over the period but it says nothing explicitly about why such development might have this particular impact on options for treatment.

[25] In addition to his submission that the pursuer's averments were of doubtful relevancy Mr Ferguson contended that the case was unsuitable for jury trial because it presented difficulties in the assessment of damages.

[26] At page 16C the pursuer avers: "As a result of the delay in diagnosis the pursuer has developed an Adjustment Disorder with depressed mood" and, at page 16E: "Had the diagnosis been made in November it is likely that the pursuer would have coped with the diagnosis and undergone treatment without any continuing psychological problems." Difficult as the task of assessing damages will be, looking at these averments in isolation, I would not have concluded that they make the case unsuitable for jury trial. However I consider that the matter is different when they are looked at in the context provided by the pursuer's other averments. She avers that after examination by Mr Ali, she "did not feel re-assured"; she "did not feel that he listened to her concerns and felt he was dismissive." She goes on to aver that she "was convinced that she did have cancer and spent many hours lying in the dark in her bedroom crying consumed by an overwhelming fear that she was going to die", and that she "was extremely distressed when the diagnosis was eventually made. She broke down in tears certain that her worst fears had now been confirmed." These averments at least raise the issue that there were a number of factors bearing on the adverse psychological consequences of the pursuer's experience from the time she became aware of the lump. These would appear to include her perception that Mr Ali did not listen and that he was dismissive, her belief (which proved to be correct) that she did have cancer, her fear that she would die and her immediate reaction to being advised of the diagnosis. While the averment that the pursuer felt that Mr Ali was not listening and was dismissive has a flavour of criticism about it, it is not averred that he in fact did not listen or was in fact dismissive. Importantly, it is not said that he was negligent in the way he communicated with the pursuer. As is underlined by the use of the word "coped" at page 17A, there is at the very least a suggestion in the pursuer's averments that the fact of the diagnosis, confirming as it did the pursuer's fears, had a part in producing the pursuer's psychological reaction. There may therefore be quite significant difficulty in identifying what truly were the consequences of delay in diagnosis as opposed to what were the consequences of other aspects of the pursuer's experience. I agree with Mr Ferguson that the matter is made more difficult by reason of the question as to why it is that the pursuer maintains that Mr Ali's negligence caused the whole of what she characterises as a delay.

[27] Agreeing with Miss Sutherland, I consider that the court should not lightly assume that a case is simply too difficult for a jury. As she observed, in a criminal trial on indictment the jury may be asked to determine quite complex matters,


without, of course, the benefit of opening speeches. That said, the task of a jury in a civil case which is to do justice as between the parties, assessing evidence on a balance of probabilities, is not quite the same as the task of a jury in a criminal trial which is to determine whether the Crown has proved its case beyond reasonable doubt. If I am correct about my assessment of the relevancy of the pursuer's pleadings then I cannot repel the defender's plea to the relevancy and therefore I cannot allow issues. However, even if I am wrong about that, it appears to me, for the reasons that I have set out, that the pursuer's pleadings present sufficient in the way of difficulty in the assessment of damages as to make the case unsuitable for trial by jury.

[28] I shall therefore uphold the defender's second plea-in-law, reserve its first plea-in-law and order a proof before answer on all the parties' averments. I shall reserve all questions of expenses.

 


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