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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 68
A201/18
OPINION OF LORD BRAID
In the cause
KEVIN DUNN
Pursuer
against
GREATER GLASGOW HEALTH BOARD
Defenders
Pursuer: Party
Defenders: Fitzpatrick; NHS Central Legal Office
13 July 2021
Introduction
[1]
In this action the pursuer seeks £900,000 damages in respect of an unsuccessful hip
arthroscopy performed on 6 January 2015 by Mr Alastair Gray, consultant orthopaedic
surgeon following an earlier review by Dr Stephanie Spence, an ST4 specialist registrar in
orthopaedic surgery. In summary, the pursuer blames both Mr Gray and Dr Spence for the
unsuccessful procedure. He asserts that his consent was not properly obtained; in
particular, that he was not warned about a risk of the procedure making his symptoms
worse and that he was not offered the option of conservative treatment, which he would
2
have elected for had it been offered. He further asserts that following the procedure his
symptoms are worse, and he seeks to hold the defenders liable.
[2]
The pursuer has averred in some detail (i) the circumstances leading to, as he has it,
the failure to obtain his fully informed consent to the procedure; and (ii) the pain from
which he has suffered since the procedure was carried out. The principal issue for decision
at this stage is whether he has adequately averred a causal link between the procedure and
his subsequent pain.
[3]
I heard a discussion on the procedure roll (a debate) at the instance of the defenders
on their first plea-in-law. They contend that the pursuer has made no adequate averments
in respect of the causation aspect of his claim, and that this failure renders his case irrelevant
and so lacking in specification as to not give the defenders fair notice of what the pursuer's
case is. Separately, the defenders also contend that aspects of the pursuer's fault case are
fundamentally lacking in specification and should not be remitted to probation, should a
proof before answer be allowed.
[4]
The pursuer, who is a party litigant, contends that he has pled a relevant case which
should be allowed to go to proof. I discuss his submissions in more detail below but
essentially the pursuer's position is that if only he is allowed to lead evidence at a proof, he
will be able to establish that the pain from which he suffers was caused by his failed
arthroscopy; and that he should not be penalised for being unable to afford to fund his
action.
[5]
Both parties lodged written notes of argument in advance of the debate, which were
expanded upon in the course of oral argument.
[6]
The debate was conducted through the medium of Webex, which if nothing else
saved the pursuer having to travel from Campbeltown to Edinburgh to appear in person.
3
That said, he did not have a good internet connection, which made conduct of the debate
challenging at times, since it was more difficult to engage him in discussion than it would
have been in court, particularly on the occasions when his video failed. Nonetheless, he was
able to present his argument and appeared to be able to see and hear the proceedings, and I
am satisfied that ultimately I was able to have a good understanding of what the pursuer's
arguments were.
Legal framework
[7]
It is worth stating at the outset the framework within which the court must operate
when considering the adequacy of a party's pleadings in this case, the pursuer's at a
debate. For the purposes of the debate, the pursuer's averments must be assumed to be true:
the court cannot resolve disputes of fact at this stage. That being so, the pursuer's case can
be dismissed as irrelevant only if the defenders succeed in persuading the court that even if
the pursuer proves all that he offers to prove, his action must necessarily fail: Jamieson v
Jamieson 1952 SC (HL) 44. Second, in an action of damages for professional n egligence such
as this, a pursuer must make averments about each of the following: the negligent act; loss
injury and damage; and the causal link between the negligent act and the loss, injury and
damage, with a degree of specification of detail that gives the alleged wrongdoer fair notice
of the facts which the pursuer intends to prove relating to each element: Kyle v P & J
Stormonth Darling WS 1993 SC 57 at 67. In other words, for a case to be allowed to go to
proof, it must not only be relevant but it must give fair notice to the defenders of what it is
that the pursuer offers to prove. Third, in considering the adequacy of pleadings, the court
may look only at the pleadings and not at extraneous material. In particular, it may not
have regard to assertions of fact (whether contained in productions, or made at the debate
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itself) which are not contained in averments in the pleadings. Fourth, the court is not
directly concerned with what evidence a party might be in a position to lead at proof.
However, in a case such as this, if a pursuer has chosen not to obtain, or is unable to afford,
expert evidence on key matters such as what went wrong in a surgical procedure, or the link
between the procedure and subsequent pain, the absence of such evidence may have the
consequence that the pursuer is simply unable to plead a relevant case.
Submissions for the defenders
[8]
In support of their central contention that the pursuer's averments about causation
are inadequate, counsel for the defenders submitted that the pursuer's case appears to
proceed on the assumption that if only he had not been offered a hip arthroscopy, he would
have avoided his current chronic pain condition. Counsel drew attention to the following
averments: first, in article V of condescendence:
"If the pursuer had been advised of the option of not operating and managing his
condition conservatively he would have chosen not to have surgery and he would
not have sustained any loss, injury and damage";
and in article VIII:
"As a result of the fault and negligence and breach of duties by Stephanie Spence
and Mr Gray, the pursuer has suffered loss, injury and damage. He is in constant
pain and is unable to carry out normal day-to-day activities. He is disabled. He
cannot play with his children. He is unable to work. He has sustained a loss of
earnings. He requires assistance from his family with showering and putting on his
clothes
Counsel submitted that the pursuer has not averred any plausible causal link between the
performance of his arthroscopy and his alleged current disability. Instead, he merely
described his current condition, and his case was advanced on the apparent basis "post hoc
ergo propter hoc" ("after this, therefore because of this"). In article III the pursuer avers:
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"The pursuer proceeded with the left hip arthroscopy and developed significant
medical complications subsequent to the operation. He developed significant pain in
left hip (sic) which continues to be present. He developed Bursitis as a result of
surgery as depicted in the first post operative scan which was not related to the
pursuer when the question about what was wrong was raised, nor was the cause or
condition ever explained thereafter."
However, even if that averment were proved, that would not explain all of the pain suffered
by the pursuer of which he now complains.
[9]
The defenders further complained that they had tabled extensive averments in
answer with which the pursuer has completely failed to engage (answer 8):
"The pursuer was already in significant pain prior to his arthroscopy, and his ability
to carry out day-to-day activities was already compromised. The pursuer's surgery
did not lead to the hoped-for benefit, but nor did it cause his current pain and
disability, which reflect the natural course of his underlying condition. His current
condition may have been the same had he not sought surgery. The reported
worsening in pain since his arthroscopy is not what would be expected from a failed
arthroscopy procedure ... There is no evidence that any significant complication
occurred during the surgery or the post-operative rehabilitation phase. There is no
evidence to suggest the articular surface within the hip joint was severely damaged
or that there is any other condition that would account for the level of pain and
disability currently described by the pursuer. It is likely that he is now significantly
exaggerating his current level of musculoskeletal symptoms for the benefit of his
claim."
The pursuer's only response to these averments was in the form of a blanket denial of the
averments in answer. He did not offer to prove that anything had gone wrong with the
procedure, or that his hip had been damaged during it. This reinforced the defenders'
submission that the pursuer's case amounted to no more than an assertion that since his
pain followed his arthroscopy it must have been caused by it, which was insufficient.
[10]
In short, the defenders' submission was that the pursuer has no averments offering
to prove any basis upon which his post-operative deterioration was to be taken to represent
anything other than a progression of his underlying condition. Not only did the averments
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not give fair notice of the pursuer's position (lack of specification) but on the pleadings there
was no basis upon which the pursuer could succeed, rendering his case irrelevant.
[11]
Counsel for the defenders further submitted that in certain respects the pursuer's
averments about fault are lacking in specification. In article II of condescendence, the
pursuer avers, in relation to Dr Spence, that:
"[s]he did not discuss with him the possibility or likelihood [emphasis added] of
failing to achieve an improvement of his symptoms. She did not discuss with him
the possibility or likelihood of a worsening of his symptoms ... She did not advise the
pursuer that he was a higher risk candidate".
The defenders did not understand the basis for suggesting that there was a likelihood of
worsened symptoms nor the suggestion that the pursuer was a higher risk candidate. They
were entitled to know the explanation for these assertions and the basis if any for making
them. Similarly, in the averments directed against Mr Gray, in article III of condescendence,
the pursuer averred that:
"Mr Gray did not consider or discuss the fact th at the pursuer was a poor candidate
for this procedure given his type of impingement. Mr Gray did not discuss the
higher statistical rates of patients with FAI having a less than satisfactory outcome."
The defenders did not understand the suggestion that the pursuer was a poor candidate for
the procedure, nor what he meant by "his type of impingement", nor the oblique reference
to statistical outcomes. Again, they were entitled to know the explanation for these
assertions and the basis for making them.
Submissions for the pursuer
[12]
Much of the pursuer's written Note of Argument related to his averments of fault,
namely, that he had not been fully informed of the risks inherent in the arthroscopy and
thus had not properly consented. However, other than as narrated in paragraph [11] above,
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the defenders do not dispute that those averments are sufficient to entitle the pursuer to a
proof in relation to that aspect of the case, and so this part of the pursuer's argument does
not assist the court in resolving the issue in dispute which is whether or not the pursuer has
adequate averments about causation. Much of the remainder of the Note of Arguments
contains material not to be found within the pursuer's averments, or refers to cases which
are not pled. For example, he states in the final paragraph:
"Harm, [d]amage and loss, from a procedure that was needed, that I stated I
wouldn't have should there be moderate risk, and a procedure that according to later
MRI scans, didn't even remove the impingement, but did remove good cartilage and
leave hefty scar tissue along with pain and immobility."
Nowhere in the pursuer's pleadings is there a reference to any MRI scan which showed that
the impingement was not removed, to good cartilage being removed or to hefty scar tissue
being left. Consequently, none of those statements in the Note of Arguments can be taken
into account in considering the adequacy of the pursuer's pleadings. This criticism can be
levelled at much of the content of the Note of Arguments. Going through that Note
paragraph by paragraph, the pursuer states in paragraph 1 that the impingement was not
fully removed; in paragraph 2, that the wrong hip may have been operated on ; and in
paragraph 3, that he should have been seen by a consultant prior to the operation. None of
those cases are advanced in his pleadings. In paragraph 4, he challenges Dr Spence's
version of events. That is a dispute of fact which cannot be addressed at debate. In
paragraph 5, he refers to a Freedom of Information request made by him in relation to the
number of complaints against the doctors concerned. That is irrelevant to the issues in the
case. In paragraph 6, he challenges the defenders' assertion that he is exaggerating his
symptoms. Again, that is a dispute of fact. In paragraphs 7 and 8 he develops his assertion
that he was not properly consented. In paragraph 9 he acknowledges that he is unable to
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afford to instruct an expert to prepare a report or to appear as a witness at any future proof.
In summary, nothing in the written Note of Arguments provides an answer to the
defenders' criticisms of his pleadings.
[13]
In his oral submission, as in his written Note of Arguments, the pursuer devoted
much time to a matter which is not in issue at this stage the lack of proper consent, and the
failure to advise him fully on the risks inherent in the procedure. That is clearly a matter
about which he feels very strongly, and into which he has conducted much research and
devoted a great deal of time and energy. He also made assertions which went beyond what
is contained in his pleadings about the arthroscopy, and why it might have caused the pain
from which he is now suffering. Under reference to a passage in Montgomery v Lanarkshire
Health Board 2015 UKSC 11 where a 10% risk of an adverse event was described as
substantial (at paragraph [94]), he submitted that the failure rate of arthroscopies was up
to 20% which must therefore also be substantial, and was a risk of which he should have
been advised. A lateral tear was supposed to be removed in the procedure but had not
been. There was a CAM impingement which had only been partially removed. He
suggested that had he been offered conservative treatment, his condition may have
improved. He pleaded for an opportunity to lead evidence so that he could advance these
various points at proof. It would be unfair if he was denied a proof simply because he could
not afford to pay for expert evidence to support his claims.
Decision
[14]
As I have identified earlier, the principal issue to be decided at this stage is whether
or not the pursuer has made adequate averments about the causal link between the
arthroscopy procedure and the pain from which he now suffers. It should be observed that
9
there are two aspects to causation in this case. The first is whether the pursuer has pled a
causal link between any negligence in obtaining his consent and his decision to undergo the
procedure. There is no doubt about this: he has, as the first excerpt from his pleadings,
quoted at paragraph [8] above, clearly demonstrates. However, it is in relation to the second
aspect, which is whether the procedure caused his subsequent pain, that the pursuer's case
runs into difficulties. Apart from a fleeting reference to bursitis which the pursuer avers he
developed as a result of the procedure, the pursuer makes no averments whatsoever about
how, or in what respect, the procedure not only did not improve his symptoms but made
them worse. He does not explain what it was about the procedure that went wrong, or
carried an inherent risk that his pain might be made worse. Insofar as there is an assertion
about bursitis, he does not aver the mechanism by which the procedure caused his bursitis
to develop, nor even that his bursitis is the root of all his current pain. I agree with the
submission made by counsel for the defenders that the pursuer's case proceeds upon an
assumption that because his pain is worse now than it was before, the procedure must have
been the cause but that simply does not follow, either as a matter of logic, or as a matter of
medical science. If at proof the pursuer succeeded in proving all that he offers to prove,
namely that the defenders were at fault for not obtaining his fully informed consent, which
led to his undergoing a procedure he would not otherwise have undergone, and that he now
suffers from significant pain, his action would nonetheless be bound to fail because of a
failure to establish a causal link between the procedure and the pain. The pursuer's position
in submissions is that the operation did cause his pain, but several comments fall to be made
about that. First, as Kyle v P & J Stormonth Darling WS (above) makes clear, the defenders are
entitled to at least some degree of specification, as a matter of fair notice, as to how the
operation caused the pain, and there is currently no specification about that whatsoever.
10
Second, it appears that the pursuer does hold a view as to what it was about the operation
that caused his pain (impingement not fully removed; damage to his hip during the
operation) but these assertions are nowhere to be found in the pleadings, and the pursuer
would not be allowed to lead evidence of those assertions at any proof which might take
place. Third, it would in any event be inappropriate for the pursuer to include in his
pleadings any assertions or averments along these lines, since he quite candidly and
properly accepts that he has no expert medical witness who is prepared to write a report or
to give evidence to that effect. He did not seek leave to amend, but had he done so, I would
have refused it for that reason.
[15]
The pursuer did not in fact attempt to persuade me that there was no need for
greater specification than the authorities suggest. As can be seen from the discussion of his
Note of Arguments and oral submission, at paragraphs [12] and [13] above, the bulk of his
argument was devoted to matters which are irrelevant because they relate to allegations of
fault which are not pled and in any event are to a large degree speculative and, in some
instances, would be irrelevant and lacking in specification even if pled.
[16]
The pursuer's reliance on Montgomery is of no assistance to him. He placed much
weight on the court's description of a 10% risk in that case as substantial, compared to his
contention that the risk of failure in his case was 20%. However, as the court also pointed
out in Montgomery, at paragraph [89], the assessment of a risk cannot be reduced to
percentages: the assessment of risk is fact-sensitive. In any event, the question of materiality
relates to whether a risk ought to be disclosed or not which in turn bears upon the first
aspect of causation mentioned above: in other words, whether the pursuer would have
elected to undergo the procedure had the risks been fully explained. As I have said, that is
not what is in issue here. In Montgomery the specific risk which should have been warned
11
against, namely shoulder dystocia, did in fact materialise. There was no dispute in that case
as to the fact that the shoulder dystocia then had dire consequences. That may be contrasted
with the pursuer's case, where he does not aver any specific risk which materialised, causing
him pain. What was said in Montgomery about causation was that "the issue of causation,
where an undisclosed risk has materialised, is closely tied to the identification of the
particular risk which ought to have been disclosed" (paragraph 98). This supports the
defenders' position rather than the pursuer's: there is a complete absence in his pleadings of
the particular risk (be it damage to the hip, failure to remove cartilage, or whatever) which
did in fact materialise and which did in fact cause him injury.
[17]
That is sufficient to dispose of the action: the pursuer's case on causation is irrelevant
and is so lacking in specification that it cannot proceed to proof. However, lest I am wrong
in reaching that view, I will also deal briefly with the defenders' subsidiary argument about
the fault averments identified at paragraph [11] above. I consider that the defenders' points
are all well made, and that the averments in question do not give them fair notice of what it
is that the pursuer seeks to prove. "Likelihood", of course, may mean something less than
probability, but in that event it adds n othing to the averment that there was a possibility of
failure. If it is intended to convey that there was more than a possibility of failure, then the
defenders are entitled to know the basis of that assertion. Likewise, they are entitled to
notice of why the pursuer considers that he was a higher risk candidate, why he was a poor
candidate for the procedure, what is meant by "his type of impingement" and what is meant
by the reference to higher statistical rates of patients having a less than satisfactory outcome
(and what is meant by that last phrase). Had I been allowing a proof, I would not have
admitted any of those averments to probation.
12
[18]
For all of the foregoing reasons, I have sustained the defenders' first plea-in-law and
dismissed the action as irrelevant and lacking in specification.
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