SCTSPRINT3

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 34

 

A517/11

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

ANNABELLE BELL

Pursuer;

against

ALLIANCE MEDICAL LTD

Defenders;

and

JACKIE McCOLL

Third Party;

and

FORTH VALLEY HEALTH BOARD

Second Third Party:

 

Pursuer:  Mackenzie;  Morton Fraser LLP

Defender:  Dunlop QC, Watson, Solicitor Advocate;  Simpson & Marwick

Third Party:  Weir QC, Reid;  CMS Cameron McKenna LLP

Second Third Party:  Dunlop QC, Watson, Solicitor Advocate;  Simpson & Marwick

 

2 April 2015

The parties
[1]        The pursuer is Annabelle Bell.  She is 49 years old, married and lives in Maddiston, Falkirk.  She was formerly a civil servant but is now unemployed.  This is an action arising out of the cannulation of Mrs Bell’s arm during an MRI scan at Falkirk and District Royal Infirmary on 26 January 2009.  The defenders are Alliance Medical Ltd who were contracted by Forth Valley Health Board to carry out MRI scanning at the hospital and accordingly were responsible for the management and operation of the MRI scanning unit at that time.  The first third party is Jackie McColl, an employee of the defenders and the radiographer who carried out the cannulation of the arm.  The second third party are the Health Board who own and operate the hospital. 

 

Introduction
[2]        In October 2008 Mrs Bell underwent bilateral surgery for the removal of her ovaries.  Following surgery she began to experience severe headaches.  Dr Christian Neumann, consultant neurologist, recommended that she have an MRI scan and lumbar puncture.  Subsequently she was booked in for an MRI scan at the Falkirk and District Royal Infirmary on 26 January 2009.  The MRI scan required the injection of a contrast medium, gadolinium, by means of a cannula inserted into a vein in the antecubital fossa of the left arm.  It is accepted by the defenders and both third parties that it was in fact inserted into the brachial artery.

[3]        Deliberate puncture of arteries is a common feature of surgical practice.  Brachial artery puncture is used for performing such procedures as angiography and coronary artery procedures.  In most cases it is done without any problems.  It is not without risks and inadvertent punctures which go unrecognised can result in clotting or dissection of the artery.  This may in turn lead to ischemia of the limb and gangrene.

[4]        In this case it is accepted that Mrs Bell developed ischemia in her left arm.  This was caused by an occlusion in the brachial artery.  It is also agreed between the parties, on the basis of a consensus of expert evidence, that the occlusion of the artery was caused by the cannulation.  Damages were agreed in the sum of £700,000.  Accordingly the issues as between the pursuer and the defenders were liability and causation.  The defenders in turn claim that any liability on the part of the defenders has been occasioned by the breach of contract on the part of the first third party and that they are entitled to be indemnified by her against any consequential liability to make payment to the pursuer.  If they are not to be indemnified then, on the hypothesis that they are found liable to make payment to the pursuer, they are joint wrongdoers in terms of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 and are entitled to a contribution towards payment from the first third party.

[5]        The first third party denies any liability.  She denies that the defenders are entitled to be indemnified by her.  However she says that if they are so entitled, or if she is found liable as a joint wrongdoer in terms of section 3 of the 1940 Act, she in turn is entitled to a contribution from the second third parties.  That is denied by the second third parties.

 

The pursuer’s case
[6]        The case against the defenders is quite simple.  Mrs Bell says that when the cannula was removed following the MRI scan there was a spurt of blood which left her arm and went on to her trousers.  That is indicative of an arterial puncture.  However she says the spurt of blood was ignored by Mrs McColl.  Mrs Bell says that at that stage medical assistance should have been sought.  Had assistance been sought it is said that it is probable that she would not have suffered the loss and damage which occurred to her. 

[7]        The averments of fault are as follows,

“It was her (the first third party’s) duty in the exercise of reasonable care to identify blood spurting from the skin on removal of the cannula as potentially being indicative of arterial puncture.  It was her duty thereafter to seek immediate medical treatment for the pursuer before she left hospital.”

 

[8]        The defenders and the first and second third parties deny that there was a spurt of blood.  However they all accept that if there was a spurt of blood that should have alerted the first third party, Mrs McColl, to the potential of an arterial breach and she should have sought medical assistance.  Accordingly they accept that, on the hypothesis of fact put forward by the pursuer, the test in Hunter v Hanley 1955 SC 200 would be met.

[9]        There is therefore a sharp issue of fact to be established;  whether there was a spurt of blood on removal of the cannula by Mrs McColl.

[10]      If that issue of fact is established then a further issue of causation arises.  Did the first third party’s negligence cause the injury to the pursuer?

 

Evidence
[11]      The pursuer told the court that prior to 2009 she had been in good health.  She had gone to the gym, played golf, run in a 5k race and helped out in a local pub.  She had been in a road traffic accident which had given her pain in the neck but that cleared with time.  In 2008 however she had had her ovaries removed.  Following this she had suffered severe headaches.  She had been referred to a neurosurgeon who had sent her for an MRI scan at the Falkirk and District Royal Infirmary.  That took place on 26 January 2009.  She had not had an MRI scan before.  She had however had a cannula inserted in her hand.  At the time of the scan she did not know the difference between cannulation into a vein or into an artery.  Her main concern when she went for the scan was that she might have a brain tumour.  She was frightened.  She was wearing a t-shirt and white jeans.  The scanning suite was in a small building attached to the hospital.  She was shown into a small area next to where the scanner was and told to change.  She took off her top and bra and put on a gown.  Two people (the radiographers) were in the scanner room.  She was sat on the bed of the scanner and the cannula was inserted into her left arm.  It is accepted that this was done by the first third party, Jackie McColl.  She described the sensation as being uncomfortable.  She was not asked which was her dominant arm.  She is left handed.

[12]      A scan was taken and she was then injected with contrast before a further scan was taken.  She described the sensation when the contrast was put in as warm and uncomfortable.  She said that she felt it going up her arm towards her shoulder.  It was put to her that she had told Mr Drury that it was agony.  She said that was later but at the time it was very uncomfortable.  She had felt discomfort from the elbow down to the hands.

[13]      After the second scan with the contrast she had noticed that one of the operators had gone away and come back with a man in a white coat whom she assumed was a doctor.  He had looked at the monitor and they had then told her that they were going to do another “burst”.  She was terrified as she thought that meant that they had found something.  She said that she started to cry.

[14]      She was then taken out of the scanner.  She sat up on the bed and the cannula was removed.  A spurt of blood came out and landed on her trousers slightly above her left knee on the inner aspect.  She was asked how much and she said it was the size of a tennis ball though said it might have been that large because she had rubbed at it.  Some blood was also on her arm.  She said that Mrs McColl had laughed and said “I’m getting better at this”.  Mrs McColl had been fast with cotton wool which she had been holding in her other hand when she removed the cannula and placed it over the wound.  She asked the pursuer to hold it while she placed tape over it.  She said that she had not been asked to apply pressure and had not done so.  She was certain that Mrs McColl would have seen the blood.  The pursuer had asked about the outcome of the scan and was told that the neurologist would be in touch.

[15]      She had then left the MRI suite and gone out to the car where her husband was waiting for her.  She told him that she thought that they had found something and explained about the man in the white coat coming into the MRI suite.

[16]      She had gone home.  She said that her arm had got worse in the course of the afternoon.  While she was peeling potatoes for the evening meal about 5pm she found the pain in her hand horrendous, so much so that she dropped the potato peeler.

[17]      The general practitioner’s medical records show that Mrs Bell saw her GP, Dr Stephen Brown, later that day.  Mrs Bell had no recollection of the appointment and Dr Brown did not remember it.  The notes showed that Mrs Bell had had the MRI scan that day and that she was still having headaches.  Mrs Bell’s position was that by that time the headaches had in fact subsided.  In cross examination she was adamant that she had not told Dr Brown that she was still having headaches.  There is no mention of pain in the fingers or arm and no note of concern by Mrs Bell about the MRI scan.

[18]      Her next appointment with her GP was on 4 February.  The notes show that she was feeling better with less headaches.  It also notes that her arm was sore since the “injection” for the MRI scan.  Dr Brown noted a possible diagnosis of phlebitis and thrombophlebitis.  Dr Brown explained that he thought at that point that there was a possible clot in the vein.  Mrs Bell said that she told Dr Brown that from the time of the “injection” her hand had been really sore and that she was unable to use it.  In cross examination she said that she had told Dr Brown on this occasion that there had been a spurt of blood when the cannula was removed.  She also said that Dr Brown had told her at that meeting that he would email Dr Neumann.

[19]      Mrs Bell said that she cut the tip of a finger on her left hand on a piece of glass from a broken light bulb.  She said that happened a week before her wedding anniversary so she estimated it was on 18 February.  She said that the pain was increasing in her arm and she was having difficulty sleeping.  Her finger was not healing.  She went back to the GP on 23 February.  On this occasion the GP’s notes disclose that on examination Dr Brown found reduced grip and power in her left  hand.  It was cold.  Dr Brown again noted a possible diagnosis of phlebitis and thrombophlebitis.  He prescribed naproxen and noted that he was to write to the consultant neurologist who had referred her for an MRI scan, Dr Neumann.  The referral to Dr Neumann is dated 25 February.  In it Dr Brown records the fact that Mrs Bell had had a CT (sic) scan and was also to have a lumbar puncture.  He continues that:

“She has now developed pain and numbness down her left arm, this has been since she had her contrast injection for her CT scan.  Her left arm is also cold – she is left handed and she now has problems dressing.”

 

Dr Brown asks that he sees Mrs Bell and assess this new symptom in her arm.

[20]      On 2 March Mrs Bell said that she was in such distress that she went to A&E.  She said that she complained about her arm but they were only interested in her finger which was still not healing.  They x-rayed the finger but otherwise she said did nothing for her.  The discharge note records an injury to the left finger but there is no mention of pain in the arm.  The note questions whether she may have vasculitis.  It said that Mrs Bell was advised to keep the finger elevated and exercise her hand “as it was swollen from previous investigations”.  Mrs Bell disputed that she was told to keep the finger elevated or do exercises. 

[21]      Mrs Bell went back to her GP that afternoon.  The notes show that her predominant arm was still sore and swollen.  Once again Dr Brown recorded a possible diagnosis of phlebitis and thrombophlebitis.  According to Mrs Bell Dr Brown did not examine the arm on this occasion and nor did he take her pulse.  She said that he prescribed antibiotics.

[22]      Mrs Bell returned to the GP’s surgery on 16 March.  She said that she told Dr Brown that she felt like killing herself as the pain was so bad.  Dr Brown immediately referred her to Stirling Royal Infirmary.  He wrote a hand written referral letter which records that Mrs Bell has possible ischemia in her left index finger.  The letter noted that Mrs Bell had had pain in her left arm since the injection of contrast and also noted that she now had a cold finger with a gangrenous tip.

[23]      Mrs Bell was admitted to Stirling Royal Infirmary that day.  She told the court that she had explained to doctors on admission that her arm had been sore from the day of the injection, ie the MRI scan.  She said that she thought that she had explained about the blood spurting.  The clinical notes record “+++ bleeding on removal.  ?? in brachial artery.  Symptoms all started then.”

[24]      Mrs Bell was seen by Mr Al Asadi, a consultant vascular surgeon.  According to him Mrs Bell told him of a calamity at the time of the cannulation with lots of bleeding and bandages - “something like that”.  He noted that there was no pulse in the hand or at the elbow.  He confirmed that there was a blockage in the brachial artery.  A CT scan showed a 10cm occlusion of the distal left brachial artery.  However sufficient blood supply had been able to get through the collateral system to keep the limb alive.  There was ischemia in the finger.  He was satisfied that the cause could be traced back to the cannulation.  Mr Al Asadi operated on Mrs Bell on 19 March. 

[25]      Mrs Bell saw a variety of experts and recounted the events to them.  In a report dated 16 March 2010 Dr Peter Keston, Consultant Neuroradiologist at the Western General Hospital said that Mrs Bell was able to give him a very clear, and in his opinion genuine account.  According to him Mrs Bell said that she noticed a fair amount of blood leaking out when the cannula was placed.  The radiographer said, “I must be getting good at this”.  The MRI scan was then carried out.  When it was over the cannula was removed.  Mrs Bell clearly remembered a spurt of blood.  She was surprised at how much blood came out and that it was fast enough to leave the skin surface.  The radiographer used a cotton wool bud to press over the puncture site and asked Mrs Bell to continue to press.  She told Dr Keston that the first thing that she told her husband when she got back in the car was that her arm felt funny. 

[26]      Mr John Drury, a retired consultant general and vascular surgeon, who provided expert evidence for the pursuer told the court that the statements from Mrs Bell that had been supplied to him by the agents had not mentioned a spurt of blood.  However he said that she had been consistent in her account to him of the blood on the removal of the cannula.  He saw Mrs Bell on 9 August 2010 and took a history from her.  He records her as saying that following the removal of the cannula there was a significant spurting of blood that had to be controlled by direct pressure.  He saw her again on 21 May 2012 when she confirmed that the information given on 9 August 2010 was true and accurate.  However she also added that there had been a significant return of blood into the cannula when it was inserted.  She said that the blood from the spurt had gone on her trousers.  A similar account was given to Mr Timothy Lees, a consultant vascular surgeon who gave evidence for the defenders. 

[27]      Mr Dunlop for the defenders led a consultant psychiatrist, Dr Jane McLennan, who was instructed by the pursuer’s agents to give opinion psychiatric evidence.  She saw Mrs Bell on 4 June 2012.  Her account of what Mrs Bell told her is as follows:

“A nurse injected a contrast medium into her left dominant arm;  Mrs Bell recalled that the nurse was rather nippy and somewhat rough.  The insertion of the cannula was exceptionally painful for Mrs Bell and she said so, however the nurse dismissed her complaint.  When the nurse removed the needle from the cannula there was a spurt of blood which the nurse dismissed.  She then injected Mrs Bell with contrast medium which was extremely painful.  Once the procedure was completed and the nurse removed the cannula from her left elbow …  Mrs Bell recalled there being a spurt of bright red blood, which went all over her trousers.  She asked the nurse if this was supposed to happen and the nurse again dismissed her complaints.  She was told to put pressure on her antecubital fossa to stop it from bleeding further.  Mrs Bell felt unwell and a bit faint after her MRI.  However after it was completed she was allowed to leave without further inspection and went to join her husband who was waiting for her in the car park.  She recalled telling him how painful the procedure had been and about the spurt of blood which was down her trousers.”

 

[28]      Dr McLennan said that she observed Mrs Bell to be markedly anxious with low mood and often tearful.  She felt hopeless about the future and guilty at the amount of help she requires from her family.  The effects of the incident preoccupied her.  Her concentration and attention were very poor and she often had to be reminded of the topics under discussion.

[29]      Mr Archibald Bell is the pursuer’s husband.  He drove her to the hospital for the MRI scan.  He recalled that she was wearing a white top and a pair of white jeans that he had given her for Christmas.  She was apprehensive and nervous about the scan.  He could not find a parking place so he parked the car near the entrance and sat in the driving seat while she went for the scan.  She was away for about 45 minutes to an hour.  When she came back he could see that she had cotton wool on her arm and blood on her jeans.  She was crying and said that she thought that they had found something.  She had told him about the man in the white coat coming into the room.  He described the blood as being on the inner aspect of the left thigh about three inches above the knee.  It was about the size of a large orange.  It looked as if she had tried to wipe it.  He added that he thought that she had blood on her hand.  They had gone home.  Her arm was sore.  About 5 o’clock that night she dropped a knife while peeling potatoes.  He said that they had got an appointment with Dr Brown straight away either that night or early the next day. 

[30]      Mr Bell told the court that his wife’s condition had deteriorated between then and March when she went to hospital.  The hand was getting cold and white.  She was not sleeping.  The tip of the finger where she got the cut was going black.

[31]      Mr Bell denied that he had discussed the evidence with his wife before coming to court.  He denied that he was motivated by financial gain.

[32]      As narrated above Mrs Jackie McColl is the first third party and was the radiologist who inserted the cannula and removed it from Mrs Bell’s arm.  Mr Mackenzie accepted that she is an accomplished and highly qualified radiographer.  She is 49 years old and has been a radiologist for 29 years.  She has undertaken the specialist training required for administering intravenous injections.  After qualifying she worked in Glasgow Royal Infirmary.  She joined the defenders in 2000.  She is now a unit manager at Forth Valley Royal Hospital in Larbert having been promoted by the defenders since this incident.  Although her new position has managerial functions she explained that 95% of her work was still clinical. 

[33]      Mrs McColl said that she simply could not remember Mrs Bell.  She had no recollection of any spurt occurring at any time.  She had never knowingly punctured an artery.  If she had seen such a spurt she would have recognised it as being indicative of an arterial puncture.  She was trained in what to do if she had seen such a spurt of blood.  In that event she would have applied pressure to the puncture wound and sought medical assistance.  It was impossible for her not to have noticed such a spurt.  She accepted that if a radiologist saw a spurt of blood when a cannula was removed it would be negligent to ignore it.  She knew the possible consequences of inadvertent arterial puncture if not recognised at the time.  She said that it would be very unusual for a patient who was having a head scan to have to remove their top and wear a gown.  There would be no reason for the pursuer to have removed her bra even if it was under wired.  Mrs McColl said that the patient would have been lying on the table when the cannula was inserted;  it was much easier there.  She could not account for someone in a lab coat coming in.  A doctor did not wear a lab coat.  She accepted that she might have said something like, “I must be getting good at this”.  She said it was the sort of thing that she might say to put the patient at her ease. 

[34]      She refused to accept, despite the admission made on her behalf and the expert medical evidence, that she had in fact inserted the cannula into Mrs Bell’s brachial artery. 

[35]      Linda McKeown is a radiologist of 22 years’ experience who was on duty with Mrs McColl on the day of Mrs Bell’s MRI scan.  Like Mrs McColl she had no recollection of Mrs Bell.  At the time she would have been at the control area.  She would not normally be paying attention to Mrs McColl removing a cannula though she could have observed her if she wished.  She was not aware of any problem with any patient.  She held Mrs McColl in high regard.  She accepted a description of the idea that Mrs McColl would have ignored a spurt of blood as fanciful and outlandish. 

 

Medical evidence
[36]      I heard medical evidence from a number of experts.  Mr John Drury and Dr Peter Keston were called as witnesses for the pursuer.  Mr Drury was until 2009 a consultant general surgeon with an interest in peripheral vascular surgery working for NHS Greater Glasgow.  He continues to work in private practice.  Throughout his professional life he has had administrative and teaching responsibilities in both general and vascular surgery.  He has been involved in giving expert opinion and court work since 1988.  In particular he has given expert evidence in the Court of Session in general, vascular and laparoscopic surgery.  Dr Keston is a consultant neuroradiologist at the Western General Hospital in Edinburgh.  He has been a consultant since 2004.  His practice involves the supervision of diagnostic imaging procedures with the use of interventional procedures necessitating arterial puncture and cannulation.  He personally performs approximately 200 every year.  He is involved in training for the College of Radiographers leading to certification.  He is able to give opinion evidence on the standard of care to be expected from a radiographer of ordinary competence.  Mr Timothy Lees is a consultant vascular surgeon at the Freeman Hospital, Newcastle upon Tyne.  He has been a consultant in this field for 19 years.  He examined the pursuer on the instructions of the defenders’ agents.  Professor Peter Gaines was called as a witness for the first third party, Jackie McColl.  He is a consultant vascular radiologist at the Sheffield Vascular Institute, Northern General Hospital in Sheffield.  He has held this position for some 15 years.  The Sheffield Vascular Institute is the largest in the UK.  It performs 500 to 700 interventional and 1000 diagnostic procedures a year.  He is a past President of the British Society of Interventionist Radiologists.  His textbook, “Vascular and Endovascular Surgery” is now in its 4th edition.  He described himself as probably one of the most experienced interventionist radiologists in the country. 

[37]      The usual procedure for insertion of a cannula in the antecubital fosse is to identify a suitable vein.  A tourniquet is then applied above the site of insertion.  That dams the blood flow and distends the vein.  If no restriction is seen then the vein is palpated with the finger.  The stylette is inserted quite flat – a normal angle would be about 15̊.  There should be a feeling of entering the vein.  The stylette and the cannula are then separated and the stylette is withdrawn.  The equipment is then flushed either with saline or with anti-coagulant.  The patient will then be scanned.  A contrast medium is then inserted through the cannula into the vein and the patient is scanned again.  When the procedure is finished the patient will be told that the cannula is to be removed and it is then removed.  A degree of pressure is applied to the puncture site.  That should be enough to stop the bleeding.  If all is well the patient can then leave.  If bleeding does not stop then the operator should look for a reason.

[38]      There was much agreement between the experts.  In particular they agreed that it was probable that the brachial artery had been punctured during the cannulation for the MRI scan.  They also agreed that if there was a spurt of blood and that had been ignored by the radiologist that would fall short of the standard of care to be expected from a radiologist of ordinary skill exercising reasonable care.  However there was a difference of emphasis on the likelihood that an inadvertent cannulation of the artery would result in a spurt of blood.

[39]      Mr Drury’s evidence was to the effect that it was likely that if an artery was punctured it would spurt.  Professor Gaines was of the view that sometimes when an artery has been punctured the blood coming out may not be pulsatile.  He said that this was particularly a problem when a small bore needle is used to puncture the artery may not sit nicely within the lumen of the artery.  Mr Drury said he would bow to Professor Gaines’s experience but this would be an unusual situation.  He would still expect it to spurt.

[40]      Dr Keston was asked how likely it was that blood would spurt.  He replied that he would not expect it to happen in every case.  He agreed with Professor Gaines that sometimes blood coming out may not be pulsatile.  He explained that that can happen when there is a small bore needle and a small diameter of artery. 

[41]      Mr Mackenzie asked Dr Keston about the evidence given by Mrs Bell to the effect that she was not asked and did not require to exert pressure on the wound.  How likely was that if she was correct in her evidence that there was a spurt of blood?  He replied that in his opinion Mrs Bell had given a compelling story and that it was possible that blood would accumulate under the skin producing a bruise.  That would explain why little pressure would be needed.  In his written opinion Dr Keston said that he considered that there were several aspects of her account that a member of the public would find difficult to fabricate.

[42]      Mr Timothy Lees told the court that he often operated on arteries.  An arterial spurt was difficult to miss.  However an arterial puncture would not necessarily result in a spurt.  Bleeding could occur but you might not see a spurt.  This could happen if there was a spasm and the tissues of the artery folded in on themselves.  The orientation of the cannulation might affect this.  If there was tissue between the surface of the skin and the artery that might affect whether there was a spurt.  The smaller the cannula size the more likely that there would be no spurt. 

[43]      Professor Gaines, in oral evidence, speculated that the cannula had been inserted into the wall of the artery and the gadolinium injected into the surrounding tissue.  That would account for the delayed occlusion.  That was an unusual occurrence and there was no science behind it.

 

Liability
Submissions for pursuer
[44]      Mr Mackenzie began by referring me to the dicta of Hobhouse LJ in Joyce v Merton, Sutton and Wandsworth Health Authority [1996] PIQR 121 at 147 where he said this:

“Sometimes a professional man who is accused of malpractice may only be able to defend himself by referring to what his normal practice was and stating his belief that he did not depart from his normal practice on the occasion in question.  Such evidence is evidence to be taken into account and given the appropriate weight.  But when there is evidence from the aggrieved party or other witnesses that he did not follow what he says was his normal practice and, furthermore, the documentary evidence shows that proper practices were not followed on the occasion in question, then the weight that can be given to such evidence must be limited.  It is a truism that even competent and experienced practitioners can on occasion make careless errors.”

 

[45]      He also referred me to Campbell v Borders Health Board [2012] CSIH 49 and Stalker v Lothian Health Board [2008] CSOH, paragraphs 126 to 129.

[46]      Mr Mackenzie asked me to accept the pursuer as credible and reliable.  He accepted that the description given by her of the MRI scan had not always been identical.  It would be surprising if it was.  She was preoccupied by what might have been on the MRI scan and it would be surprising if every detail of the procedure had been accurately recalled.  The history given to the expert witnesses had been consistent in its essential elements.  Mr Mackenzie criticised Dr Brown’s evidence;  he was not an impressive witness and considering the number of patients he saw on a daily basis and the time that he had to devote to each one (7 minutes) little if any weight should be placed on his evidence. 

[47]      Mr Mackenzie emphasised the evidence from Mr Al Asadi and the notes made by the medical staff on admission to Stirling Royal Infirmary on 16 March 2009.  That evidence showed that the pursuer had told medical staff about blood appearing at the cannulation during the MRI scan.  At that stage she had no knowledge of what might have happened to her arm.  She had no way of knowing that it might have arisen from the cannulation or the mechanism of casing the injury.  In particular she could not have known at that time that there had been a puncture of the artery instead of the vein.  What the court was being asked to accept was that someone who was not medically qualified or familiar with such procedures would have researched the matter online, appreciated that there had been an arterial puncture and make up a story about blood appearing on the cannulation so that she could claim compensation.

[48]      Mr Mackenzie accepted that Mrs McColl was an accomplished and highly qualified radiographer.  Her evidence about procedures was measured and entirely reasonable.  However she saw 21 patients that day with others before and after the pursuer.  She remembered nothing of the pursuer’s appointment.  While she was prepared to accept that mistakes happen in the abstract she refused to accept even the possibility that she might have made a mistake in this case.  She refused to accept that she had in fact cannulated the pursuer’s left artery, a position which was directly contradictory to the minute of non-admission and the evidence of all the experts, including her own.

[49]      The expert medical evidence also supported the pursuer.  An artery which was punctured was likely to spurt because the blood is pulsatile.  Professor Gaines did not acknowledge that general proposition and had advanced a theory about the cannula not sitting properly in the lumen of the artery.  There was nothing on record to support that evidence.

 

Submissions for defenders
[50]      Mr Dunlop began his submissions by referring me to two cases viz;  Goodman v Central Capital Limited [2012] DTLC 58 and Morrison v J Kelly & Sons Ltd 1970 SC 65.  In Goodman His Honour Judge Brown QC had made observations on the role of the judge in assessing issues of reliability in particular in the absence of corroboration or documentary support.  In Morrison the court had considered the role of the court in assessing evidence where corroboration might be available but was not placed before the court.  In particular Mr Dunlop submitted that in failing to call Dr Neumann the pursuer had failed to call a witness who could have corroborated her account.  Dr Neumann wrote a letter, dated 17 June 2009 and contained within the joint bundle of medical records in which he wrote:

“She describes that she attended MRI and received an injection.  She felt a twinge going down her left arm.  She developed increasing pain over the next few weeks.”  

 

Mr Dunlop submitted that the pursuer had been quite clear that she had told Dr Neumann about the spurt.  Yet the letter was contrary to that evidence.  In his written submission Mr Dunlop said that this failure was worthy of note.  In oral submissions he went further under reference to what Lord President Clyde had said in Morrison (page 79) and submitted that in the absence of evidence from him I could not be satisfied that the pursuer had proved her case.

[51]      Mr Dunlop pointed out that Mr Bell had not said that his wife told him that there was a spurt of blood; only that he had seen blood on her jeans.  He went through the various discrepancies which he said could be found in the account that the pursuer had given in court and what she had told expert medical witnesses.  What had been said by the pursuer to medical staff on her admission to Stirling Royal Infirmary did not support the pursuer.  He asked me to accept, as Mr Mackenzie had done, that Mrs McColl was “an accomplished and highly qualified radiographer”.  It was true that she had no direct recollection of the pursuer.  That was not surprising.  The dicta of Hobhouse LJ in Joyce was not applicable because there was no documentary evidence to show that proper practice had not been followed.  The vascular evidence did not support the view that an inadvertent cannulation of the artery must mean that there would be a spurt on removal of the cannula.  It was entirely possible that there was no spurt.  The pursuer’s account of treatment of the spurt merely by applying a cotton wool bud without pressure was not possible. 

 

Submission for first third party
[52]      Mr Weir adopted the submissions of Mr Dunlop.  However he went on to address the criticism of Mrs McColl as being dogmatic in refusing to accept that she had inadvertently inserted the cannula into the pursuer’s artery.  She had never come across a spurt of blood before.  Her position was that it did not happen on this occasion.  As that is what she understood as evidence of an arterial breach her evidence that it did not happen was not surprising.

[53]      Mr Weir also submitted that all the ingredients were present in this case for there not to be a spurt of blood on removal of the cannula.  He pointed out that Mr Al Asadi had said that the pursuer had slim arteries.  The cannula was narrow.  That supported Professor Gaines view that it was eminently possible that there would be no blood when the cannula was removed. 

 

Assessment of evidence on liability
[54]      There is no doubt that the pursuer has suffered significant injury.  Since damages were agreed I did not hear much evidence about her present condition.  However the amount of agreed damages, the averments on record and my own observations leave me in no doubt that she has suffered, and continues to suffer, significant impairment.  Putting the issue of causation to one side for the present there is no doubt in my mind that the starting point for her present condition is a medical error;  the cannulation should have been in the vein and not in the artery.  The person responsible for the error is an employee of the defenders who in turn are contacted to operate the MRI scanner at Falkirk and District Royal Infirmary.

[55]      The question though is whether there was negligence on the part of the employee, Jackie McColl.  That is focussed on whether or not there was a spurt of blood which was ignored by Mrs McColl.  It is not suggested that cannulation of the artery would of itself constitute negligence in terms of the Hunter v Hanley test.

[56]      As Mr Mackenzie accepted Mrs McColl is an accomplished and highly qualified radiographer.  Her evidence about the setup of the MRI suite and her account of what should happen in the event of an inadvertent arterial breach was entirely measured and reasonable.  In evidence Mrs McColl accepted that a radiographer who ignored a spurt of blood sufficient to reach the patient’s trousers would be acting in a way which no radiographer with ordinary skill would act if exercising ordinary care.  She is clearly highly regarded by the defenders having been promoted by them since this incident.

[57]      Mr Dunlop submitted that it was incredible that Mrs McColl having seen the spurt of blood and being aware of its significance would simply put cotton wool over the wound and send the pursuer home with the obvious risk to her health.  However as Hobhouse LJ noted in Joyce v Merton, Sutton and Wandsworth Health Authority (p147) noted it is a truism that even competent and experienced practitioners can on occasion make careless errors.  (Other than making that observation I do not think Hobhouse LJ’s dicta assists the pursuer.  There is no documentary evidence to the effect that normal procedures were not followed.)

[58]      The difficulty with Mrs McColl’s evidence is that she was not prepared to accept that she made a mistake.  According to her it simply did not happen.  That evidence ran counter to all the expert evidence that the cause of the clot in the artery was the puncture of the artery during the MRI scan.  It was also contrary to the admission made on her behalf.  Mr Weir submitted that her evidence could be explained;  she had never come across an arterial spurt.  As that was what she understood as evidence of an inadvertent arterial puncture her evidence that it did not happen was not surprising.

[59]      I found her dogmatism in the face of the evidence to be troubling.  She had so far as she was aware in the many years of practice as a radiographer never been responsible for the inadvertent puncture of an artery.  She had never seen an arterial spurt.  I think it is possible that she was unprepared for the possibility that she might make such an error and the evidence that she had made such an error did not register with her as it should have.

[60]      Admitting of that possibility does not mean that there was a spurt of blood.  It is therefore necessary to examine the evidence that there was a spurt of blood.

[61]      The starting point is the pursuer’s evidence.  There is no doubt that some of the details in the pursuer’s evidence about how the MRI scan was carried out were not correct.  For example she got the colour of the radiographer’s uniform wrong and there was some question as to whether she was lying or sitting when the cannula was put in and then withdrawn.  There was also a question as to whether or not cotton wool or a swab was used.  I did not think that these details were material.  I accept that she was very anxious about the scan and what it might show and one would not expect her to remember all the details especially after 6 years.  She was anxious in giving evidence and was at times emotional.  I found that understandable given the effect this has had on her life.

[62]      I found her evidence as to what happened when the cannula was removed to be clear and cogent.  Mr Dunlop suggested to her in cross examination that she had financial difficulties and was worried that if she did not win the case the result might be that she and her husband would be unable to keep up the payments on the house.  As I understood her evidence she accepted that there would be financial difficulties.  That seems to me obvious as she is now unemployed.  But the clear implication of Mr Dunlop’s line of questioning, which was entirely legitimate, was that she had made up the account in order to secure compensation to which she was not entitled.  Of course that is always a possible motivation for any pursuer seeking compensation as a result of an accident.  She denied that she was motivated by financial considerations and I was inclined to believe her.  Mr Dunlop put the same point to Mr Bell as he would have had to collude in this evidence.  He accepted that they would have financial difficulties but I believed him when he said that he would never lie in court in order to get money. 

[63]      There are undoubted difficulties with the pursuer’s evidence.  In the first place there is no record within Dr Brown’s notes of a spurt of blood, although Mrs Bell said that she had told him about it.  He was quite sure that if he had been told about such a spurt that would have been diagnostically significant and he would have noted it.  I was not impressed by Dr Brown as a witness.  Even for a GP his notes seemed brief.  In fairness to him however he had no reason to believe that there had been any problem with the cannula injection.  His focus would have been on the pursuer’s headaches and whether they were improving or not.  That after all was the reason for the MRI scan.

[64]      There were also some differences in her evidence to the details of the accounts which are recorded by Dr Keston and to some extent Dr Drury.  There was also a question as to whether the pursuer had told her solicitors about the spurt.  It was put to Mr Drury that there was no mention in the statements that he had been given about the spurt and he appeared to agree to that proposition.  It is difficult to know what to make of that in the absence of the statements themselves.  The most serious question mark over the pursuer’s credibility is the account which she gave Dr McLennan.  When the account was put to her the answer was that she could not remember what she had told Dr McLennan.  I found that unconvincing.  I accept that she did say these things.  It is clearly exaggerated.  The account was given when she was in low mood, tearful, feeling hopeless about the future and preoccupied about the effects of the incident.  Dr McLennan diagnosed a mild depressive illness. 

[65]      It was suggested to Mr Drury that the pursuer had not been consistent in her account.  However he said that so far as he was concerned she had been consistent about the spurt of blood.  Dr Keston said that the pursuer gave him a clear and concise account. 

[66]      The difference between the experts seemed to me to be a matter of degree and emphasis.  I was not particularly impressed with Professor Gaines speculation in the witness box as to how the cannula might have been sited within the lumen and the gadolinium injected into the tissue.  I had the impression that he was trying a little too hard to explain why there might not have been a spurt of blood.  However I accept the evidence that there may be situations, such as the one which occurred here, in which that would not happen because of the way in which the cannula might sit within the lumen of the artery.  The question is how far this takes either side’s case. 

[67]      My conclusion is this.  I am inclined to the view that since arterial blood is pulsatile the expectation is that there would be a spurt.  However I also accept it is possible that there was no spurt for the reasons set out in the medical evidence.  Accordingly I do not think that it can be said that there must have been a spurt of blood.  Nor can it be said that a spurt of blood could not be expected in the circumstances.  On the whole I consider that the medical evidence offers marginal support for the pursuer but is far from decisive. 

[68]      I do not consider that the evidence of Dr Neumann could properly be characterised as corroborating the evidence of the pursuer.  He was not there.  His only potential oral evidence would be to confirm what he had been told by the pursuer when she saw him on 17 June 2009.  His evidence properly construed reflects on the credibility and reliability of the pursuer, not on whether the spurt occurred or not.  It seems to me that it was equally open to the defenders to call him as a witness had they so wished.  However I frankly doubt that, five years after the meeting with Mrs Bell, he would have been able to say anything other than what is in his letter.  Apart from Linda McKeown, who was at the control desk, the only two people who can speak to whether there was a spurt or not are the pursuer and Mrs McColl.  If corroboration was necessary then the pursuer’s case would necessarily fall even if I accepted the pursuer as credible and reliable.  The rule was abolished by section 9(2) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1968 for precisely this situation. 

 

Conclusion on liability
[69]      I have not found this an easy task.  However after a good deal of thought and review of the evidence I have come to the conclusion that on the balance of probability there was a spurt of blood which was ignored by the first third party.

[70]      The starting point is the evidence of the pursuer herself.  As I have already noted her evidence is not without problems.  But my own assessment having seen her in the witness box is that she was genuinely trying her best to give truthful and accurate evidence.  There were details about what happened in the course of the MRI scan where the evidence of Mrs McColl was more accurate than the recollection of the pursuer.  However the pursuer was under stress at the time.  She was worried about the outcome of the scan and what might be shown up on it.  In those circumstances it is not surprising that the detail given by the pursuer may not be wholly reliable. 

[71]      The account given by the pursuer to Dr McLennan was clearly exaggerated.  It is this more than anything which has caused me to hesitate before accepting the pursuer’s evidence.  I am not clear that I have a full explanation for that account though the pursuer was found to be suffering from a mild depressive illness.  She was clearly very upset and angry when she spoke to Dr McLennan.  The anger and distress is entirely understandable but it is not acceptable to exaggerate events and symptoms when speaking to professionals during the course of litigation.  In her favour the pursuer did not attempt to repeat that exaggerated account in court.

[72]      In my opinion the key to this lies in the account that was apparently given to medical staff on admission to Stirling Royal Infirmary on 16 March 2009.  At that point the pursuer had no reason to know that she had sustained a breach of the artery during the MRI scan.  The GP, Dr Brown did not suspect this.  He diagnosed possible phlebitis and thrombophlebitis.  No one else could have suggested this to her.  Apart from the fact that she knew that her problems appeared to have started with the MRI scan and the injection that she received she had no reason to believe that the cannula had been inserted into her artery and not her vein.  Even if she knew that she would have been unaware of its significance.  We do not know what precisely she said to the medical staff on admission but the notes record “+++ bleeding on removal”.  While that does not record a spurt of blood it does denote excessive or inordinate bleeding which would not normally have occurred.  Mr Al Asadi did speak of being given an account of a calamity with lots of bleeding and bandages but added the words “something like that”.  I considered that while I could accept his account of what he had found on examination I thought that the foundation of this part of his evidence was shaky, as he appeared to concede.  I thought that in trying to convey the essence of what he was told it had become a little exaggerated.  He himself had not taken the account noted in the medical records; it was done by an unidentified junior doctor. 

[73]      If I was to find against the pursuer on this point I would have to accept that she had formed an understanding of what had happened to her before she went to Stirling Royal Infirmary at a time when her own GP did not suspect the true diagnosis.  She would then have had to research the symptoms and collude with her husband to make up a story about a spurt of blood which she then sustained through investigation and into evidence in the witness box. 

[74]      Mr Drury in his evidence said that the pursuer had been consistent in her account to him that there had been a spurt of blood.  Dr Keston referred to the pursuer as giving a compelling story.  It is of course for the court to assess issues of reliability and credibility.  However it is I think significant that Dr Keston said that there were several aspects of her account that a member of the public would find difficult to fabricate.

[75]      One other matter caused me to hesitate and that was the evidence of the pursuer that she had not been required to apply any pressure to the wound and that there was not a significant amount of blood on the swab when she took it off later in the house.  However, as Mr Mackenzie submitted, the act of holding a swab over a wound does involve the application of pressure.  Dr Keston in his evidence explained that it was possible that blood might collect under the skin and that one might not see significant flows of blood following the initial spurt when the cannula was removed.

[76]      Looking at the evidence as a whole I have found that on the balance of probability there was a spurt of blood from the pursuer’s arm when the cannula was removed from the artery.  Since it occurred while Mrs McColl was removing the cannula it is inconceivable that she was not aware of it. 

 

Causation
Evidence
[77]      There was general agreement as to what should be done where there had been an inadvertent puncture of an artery.  A radiographer who appreciated that there had been an inadvertent puncture should apply pressure to stop the bleeding and seek medical help.  There was always a consultant radiologist on duty at the hospital and the evidence was that in an emergency medical staff could be in the MRI unit within about a minute. 

[78]      Mr Drury gave evidence as to the treatment that would follow.  It was not seriously challenged.  As I understood it the patient would be kept in the radiology department for a few hours during which they would be examined and monitored.  The medical staff would take a pulse and look for paleness in the limb.  They would also listen to what the patient told them.  There would then be an escalation of advice depending on these results and on whether the patient complained of pain on the application of pressure.  A consultant radiologist or vascular surgeon would be involved.  If they or suspected found poor blood supply then they would have an ultrasound done or an angiography.  If a blood clot was found then anti spasmodic or anti-coagulant drugs may reduce the effect of the clot.  A blood clot was highly unlikely to resolve by itself.  If surgery was necessary to remove the clot it would need to be done within 12 hours of the occlusion.  In that event the patient would be admitted as an in-patient. 

[79]      Mr Drury’s opinion was that had the pursuer been treated in this way and the clot discovered and removed there was a 90% likelihood of a substantially better outcome.

[80]      Dr Keston said that if an arterial occlusion was overlooked there is a lower chance of being able to repair and a lower chance of problems caused by it being fixed.  He said that a patient who had suffered an inadvertent arterial breach would remain for some time in hospital and monitored.  If it appeared that there were no medical problems then the patient would be sent home but the GP would be notified and there would be a follow up in two to three days.

[81]      Mr Lees told the court that in many instances an inadvertent brachial artery puncture would not cause a problem.  If brachial artery puncture had been recognised at the time then it would be reasonably simple to remove the cannula and observe the arm subsequently.  However once it had been recognised that the radial and ulnar pulses were absent and Mrs Bell had ischaemic symptoms further investigations would have been appropriate.  If arterial occlusion had been diagnosed at that stage it is likely that Mrs Bell would have required surgery but this may have been much more straightforward requiring a short bypass graft or repair of the artery and removal of the clot.  He agreed that there were better outcomes if surgery was performed within 12 hours. 

[82]      He said that he would expect a patient to be kept under observation for two to three hours.  If everything was fine then she would be discharged home.  During observation medical staff would look for signs of ischemia; they would take pulses, and look for signs of tingling, pain or paleness in the limb.

[83]      Mr Lees agreed with the suggestion that the first sign of ischemia in Mrs Bell was at about 5pm that night when she experienced severe pain and dropped the potato peeler.  If that was right then, given that the MRI scan would have finished no later than 5pm it was likely that the first signs did not occur until after Mrs Bell returned home. 

 

Submissions for pursuer
[84]      Mr Mackenzie submitted that the pursuer had set out on record the averments as to what she said should have happened.  These had not been disputed other than by a blanket denial.  The pursuer had been put to the proof.  He relied on the evidence of Mr Drury that there was a 90% chance of a better outcome for the pursuer had the brachial artery puncture been detected within a 12 hour window of opportunity. 

 

Submissions for defenders
[85]      Mr Dunlop submitted that the pursuer had failed to prove causation.  He submitted that the requirements that the pursuer had to satisfy were set out in the decision of the speech of Lord Browne-Wilkinson in Bolitho v City & Hackney Health Authority [1998] AC 232.  In that case a young boy was admitted to hospital with breathing difficulties.  He was monitored by nursing staff.  In the course of a few hours there were three episodes during which his condition deteriorated.  Medical staff were summoned on each occasion but did not attend.  On the first two occasions he appeared to rapidly recover.  However on the third occasion he suffered a cardiac arrest.  By the time that he was resuscitated he had suffered catastrophic brain damage.  It was in the end accepted by the defendants that the paediatric registrar had been negligent in not attending.  The question then turned to what would have happened if she had attended.  The registrar’s evidence was that if she had attended the boy she would not have intubated him as the plaintiffs said should have happened.  However there was difference of opinion between the medical experts as to whether intubation was the appropriate response in the circumstances then prevailing. 

[86]      The test for the standard of care required of a doctor is to be found in the directions given to the jury by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 at 587 (the equivalent of the Hunter v Hanley test in Scotland).  In Bolitho it was argued that the Bolam test had no application to the issue of causation.  Lord Browne-Wilkinson in his speech said that the question in all cases was one of fact; did the wrongful act cause the injury.  However in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g.  the failure of a doctor to attend) the factual inquiry is, by definition, in the realms of hypothesis.  There may be situations where it is not known which doctor would have attended.  However where as in the instant case it was known that there were only two doctors who could have attended the question was what would they have done?  However that test was not determinative of the issue.  If the evidence showed that they would not have intubated it was necessary to show that not do so was negligent.  The Bolam test had no application to the first issue as to what would have been done but was central to second issue.  It could not be said that a decision not to intubate would fail the Bolam test.  Accordingly the plaintiffs had failed to prove causation.

[87]      Mr Dunlop submitted that Bolitho applied to this case.  In essence this was a case about omission.  There was no evidence before the court as to which doctors might have attended or what they might have done.  The evidence showed that the pursuer would have been kept under observation for a few hours but there was no evidence that the problem would have been detected in that time.  Indeed he submitted that the first ischemic changes were not apparent until 5pm that night by which time she would have been home.  There was no evidence as to what might have happened then or whether it would have been picked up by Dr Brown the GP.  He pointed out that the pursuer said that she had told Dr Brown about the spurt of blood.  If I held that there was a spurt of blood then it would follow that Dr Brown had that information but did not act on it.

 

Decision on causation
[88]      As Lord Browne-Wilkinson pointed out in the generality of cases the Bolam test has no application to the question of causation.  It is an exception to the general rule.  It applied in Bolitho because the doctor who should have attended gave evidence that she would not have intubated.  That was a clinical decision on which experts were divided.  In this case there is no dispute as to what should have happened had the spurt of blood been acted upon.  Nor is there any dispute as to what should have happened had the occlusion been noticed timeously.  Accordingly in my opinion Bolitho is not in point. 

[89]      The real issue is whether or not the ischemic changes in the pursuer’s left arm would have been picked up and acted upon if it had been realised when the cannula was removed that there had been a breach of the brachial artery.  Mr Dunlop rests on the evidence of Mr Lees that the ischemic changes would not have been apparent until 5pm when the pursuer was at home.

[90]      Mr Mackenzie complained, and in my view rightly so, that none of this was in the defenders’ pleadings.  The averments regarding causation are to be found in article 3 of condescendence.  They are met with a denial but no positive averments.  Moreover the issue as to whether ischemic changes might not have been apparent until 5pm that night was not put to either Mr Drury or Dr Keston; it only emerged in the oral evidence of Mr Lees after they had given evidence.  There was nothing of this in his two medical reports.  Both Mr Drury and Dr Keston gave careful evidence about causation.  Neither of them flagged up any concern that the changes would not be apparent until later or that they would not have been picked up during the observation of the pursuer.

[91]      For these reasons alone I would find it difficult to accept the evidence of Mr Lees.  However in my opinion the issue goes further.  Mr Lees appeared to base his opinion on the fact that the severe onset of pain came at around 5pm that night when the pursuer dropped the potato knife.  However pain is only one of the signs that is looked for in the course of observing a patient who has suffered an arterial breach.  Other signs include tingling in the arm, paleness of the limb and pulse.  They would also have regard to what they were told by the patient.  In this case they would have been told that the arm was really uncomfortable.  According to the pursuer it remained so during the afternoon.  It seems to me unlikely that this would not have been picked up.  It was after all an error by the radiographer that had put the pursuer in this position.  It was well known that there could be serious consequences if an occlusion went untreated.  The hospital would have a duty of care to ensure that any such occlusion did not go undetected or, if detected, untreated.  I have to assume that they would not breach that duty of care.

[92]      Even if the pursuer had been sent home the evidence was that the GP would have been notified, presumably by a letter given to the patient, as to what had happened.  The pursuer saw Dr Brown later that day.  He would have been alerted to the fact that there had been a brachial artery puncture and would have been able to act upon it.

[93]      Having concluded that Bolitho test is not relevant I consider that the issue is whether or not the pursuer has proved on the balance of probability that there is a causal link between the failure to detect the brachial artery puncture and the injury which she sustained.  I have no doubt on the evidence of Mr Drury and Dr Keston and, setting aside his conjecture as to when the occlusion would have been detected, the evidence of Mr Lees, that the pursuer has discharged that onus.

 

Conclusion on liability and causation
[94]      For the foregoing reasons I conclude that Mrs McColl was in breach of her duty of care to the pursuer and that breach caused her injury.  The defenders, as her employers, are vicariously liable for her breach of duty.

 

Indemnification
Submissions for defenders
[95]      Mr Dunlop submitted that in the event of finding negligence on the part of Mrs McColl the defenders should be indemnified by the first third party.  Alternatively the first third party should be found liable to make a contribution in terms of section 3 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1940.

[96]      In making his submissions on indemnification Mr Dunlop founded on Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555.  This case arose out of an accident in which a lorry driver, employed by the respondents, knocked down and injured his father, a fellow employee.  Mr Lister senior brought proceedings against the company for his personal injuries on the basis of his son’s negligent driving.  The case was proved and the respondents found vicariously liable for their employee’s negligent act.  The employer’s insurers, without the consent of the employers, then raised an action against the son.  The House of Lords held that it was an implied term of the contract of employment that the driver exercise due care, that he committed a breach of it, that the respondents thereby suffered damage and they were entitled to recover damages from him.

 

Submissions for first third party
[97]      Mr Weir submitted that the defenders’ attempt to rely upon Lister was misconceived.  The case only applied where the negligence of one employee caused injury to another employee:  Morris v Ford Motor Co Ltd [1973] 1 QB 792.  That narrow reading of Lister was confirmed by having regard to the “gentleman’s agreement” that was reached with the insurance industry to limit the impact of the decision (Gerald Gardiner:  Report of the Inter-Departmental Committee (1959) 22 MLR 642:  Atiyah, Vicarious Liability in the Law of Torts (Butterworths 1967) pp 426‑427:  Morris per James LJ, 813-814.  The present case was better determined by applying the principle identified by Lord Denning MR in Morris (p801G):

“where the risk of a servant’s negligence is covered by insurance, his employer should not seek to make that servant liable for it”. 

 

[98]      In any event even if Lister ever formed part of the law of Scotland it was founded on ideas of vicarious liability that date from a bygone age.  The law of vicarious liability was “on the move”;  see Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1 at paragraphs 19 and 34;  Vaickuviene v J Sainsbury Plc 2014 SC 147 at para 18;  Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 at paragraph 9.  The policy considerations set out in these cases would be frustrated by holding the first third party liable in this case;   London Drugs Ltd v Kuehne & Nagel International Ltd [1992] 3 SCR 299 at page 340, per La Forest J.  The rule in Lister should be restricted to those rare circumstances where the employee has been guilty of serious or wilful misconduct.  If Lister was correct then employees would require to obtain insurance against the prospect of an employer seeking to be indemnified against their negligence.  The argument that absolving an employee of liability does not incentivise good practice was fallacious as an employee is invariably subject to disciplinary procedures which was more likely to promote “good practices” than any risk of civil liability.  It was open to employers to adopt the rule in Lister by express contract with the employee.  The House of Lords had recognised that when they decided Lister that the view of the law may change.  Whatever the answer was in 1957 the answer today was and should be different.  An employer was expected to carry insurance.  One of the policy considerations in the mind of Viscount Simonds in Lister was that it was wrong for an employee to look for indemnification from his employer no matter how gross his negligence may be.  Since then however, employers have been found vicariously liable where a care worker had sexually abused children;  Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215, and where an employee had harassed another employee;  Majrowski.  The decision in Lister is inconsistent with a modern understanding of the law of vicarious liability;  see, for example, Markesisnis & Deakin’s Tort Law, 7th ed.  pp 581‑582, 887.

[99]      Declining to follow Lister would be consistent with a number of other leading Commonwealth jurisdictions;  see eg Rowell v Alexander Mackie College (1988) ATR 80-183.  In Australia a series of legislative interventions had abrogated the result in Lister in Australia;  see Fleming’s the Law of Torts, 10th ed.  2011, at 11.90 and statutes cited in the footnotes.  In Canada there has been a virtual nullification;  London Drugs Ltd; Douglas v Kinger (Litigation Guardian of) 2008 ONCA 452;  294 DLR (4th) 267.  Although the principle has been accepted in New Zealand (see Bromwich v Pacific Commercial Bank Ltd [1988] 1 NZLR 641 at 644) that has to be set in the context of what the High Court held in Everist v McEvedy [1996] 3 NZLR 348 at 359‑362.  The effect was the same as in Canada;  the virtual nullification of the decision.  The New Zealand approach was consistent with that in Germany;  Markesinis, A Comparative Introduction to the German Law of Torts, 4th ed pp693-702 and 705‑709.

[100]    Declining to apply Lister in this case would be consistent with the response to the decision in England;  Morris v Ford Motor Company Ltd.  The “gentleman’s agreement” had been forged against the background of the government threatening to introduce legislation to reverse the effect of the decision.  The combined effect of the “gentleman’s agreement” and the decision in Morris was that Lister was “virtually a dead letter”;  Clerk and Lindsell on Torts, sisted (2014), 4-36 to 4-38.

 

Response for defenders
[101]    In response Mr Dunlop submitted that Morris did not bear the weight placed on it.  There was a clear point of distinction which was not present here.  Any doubts about the case on the part of Lord Denning had dissipated by 1976;  Esso Petroleum Company Ltd v Mardon [1976] 1 QB 801, see also Janata Bank v Ahmed [1981] ICR 791.  Lister is still followed in England;  Jones v BBC unreported 22 June 2007.  It was recognised as being still good law in the Supreme Court in Woodland v Swimming Teachers’ Association [2014] AC 537, per Baroness Hale at paragraph 9 and in textbooks;  see Chitty on Contracts, 31st ed vol 2, 39-055 -056 and 39-068 – 069, and McGregor on Damages, 19th ed part 1, 31-039.

[102]    Lister was the law of Scotland.  The basis of the decision in Lister was the maxim spondes peritiam artis; see Viscount Simonds at pp572-573 and Janata, per Waller LJ at 796.  That was clearly the law of Scotland;  Dickson v The Hygienic Institute 1910 SC 352, per Lord Dundas at 356, concurred in by Lord McDonald LJC and Lord Ardwell at p357.  There was a clear frontrunner to Lister in Mack v Allan & Simpson (1832) 10 S 349, per Lord Hope LP at 350 and Lord Gillies at p351.  It had been acknowledged as the law of Scotland  more recently;  National Coal Board v Thomson 1959 SC 353, Pinkerton v Hollis Brothers 1989 SLT 165, Ross Harper & Murphy v Banks 2000 SC 509;  see also The Law Commission and the Scottish Law Commission Report on Partnerships, November 2003, Scot Law Com No 192 at paragraph 11-50, T B Smith, A Short Commentary on the Law of Scotland pp684-685;  D M Walker, The Law of Delict in Scotland (2nd ed) at pp151 and 573:  Gloag and Henderson, The Law of Scotland (13th ed) at 17-11.  Reference was also made to Grieve v Brown 1926 SC 787. 

[103]    Even if the rule in Lister was not applied the same result is obtained applying the 1940 Act.  The apportionment should be 100% to the first third party. 

 

Decision on indemnification
[104]    I did not understand Mr Weir to suggest that it was not an implied term of Mrs McColl’s contract of employment with the defenders that she would exercise reasonable care in the exercise of her duties.  Accordingly, on the hypothesis that she was at fault and caused the pursuer’s loss applying Lister I should find that the defenders are entitled to be indemnified in respect of that loss.

[105]    Mr Weir has made substantial criticisms of the decision and invited me not to follow it.  Certainly the language of master and servant used in the speeches is redolent of a bygone age.  One also sees a legal philosophy which proceeds on the fiction that both parties to a contract of employment have equal bargaining power.  In doing so it not only ignores the relative economic strengths of employer and employee but also the power of organised labour. 

[106]    It was the possible trade union reaction that amongst other things led to the government’s appointment of the inter-departmental committee.  If employers routinely brought proceedings against employees for injury caused to fellow employees it was thought that it might lead to strikes and unrest.  It was against that background, with the potential threat of legislation to limit the effect of the decision that the members of the British Insurers Association effected a “gentlemen’s agreement”.  The members agreed that they would not institute proceedings against an employee in respect of death or injury to a fellow employee unless the weight of evidence clearly indicated either collusion or wilful misconduct on the part of the employee against whom the claim was made;  see Morris v Ford Motor Co Ltd, per Lord Denning MR at pp798, 799.

[107]    It is not difficult to appreciate the policy considerations which may be adduced to undermine the foundations of the decision in Lister.  One of the concerns of their Lordships was the effect of granting immunity to a servant who had committed an actionable wrong.  As Viscount Simmonds put it,

“… an action of damages whether for tort or breach of contract, has, even if rarely used, for centuries been available to the master, and now to grant the servant immunity from such an action would tend to create a feeling of irresponsibility in a class of persons from whom, perhaps more than any other, constant vigilance is owed to the community.”

 

Viscount Simmonds had in mind, of course those employed as lorry drivers but the point he makes is more general.

[108]    Nowadays I suspect that rather more weight would be given to the innate sense of responsibility that all citizens, whether employers or employees, should have for the community.  I doubt in this case that it could seriously be contended that if there was no right of action against an employed radiographer that it would create a feeling of irresponsibility towards the patients she attended.  Employers have available a range of disciplinary measures available to them culminating in dismissal.  There are a range of other regulatory regimes, both statutory and professional, which may have investigative and disciplinary powers over those employed in particular sectors.  That is particularly true in the health sector.

[109]    The “gentlemen’s agreement” does not apply in this case as the injured party is not a fellow employee.  As I understood it the first third party is insured as a result of her membership of the Society of Radiographers.  She is not obliged to be a member of that body.  Nor is she obliged to have insurance either as a condition of her contract of employment or any statutory provision.  There would, at least in theory, be nothing to stop the defender raising an action against the first third party even if she was not insured. 

[110]    A consequence of holding the employee liable in this case may be to shift the economic burden of insuring against the negligent acts of employees from the employer to the individual employee.  A prudent employee, certainly one employed by the defenders, would now seek insurance.  No doubt in the past premiums will have been assessed on the basis that few actions were taken against individuals rather than the employer.  That may change.  Mr Weir asks the rhetorical question as to whether that is fair, just or reasonable in 2014. 

[111]    While the foundations of Lister may be shaky the question is whether or not it remains the law of Scotland.  Mr Weir says that so far as indemnification of an employer is concerned it has never been the law.  If that submission implies that there is a difference between the law of Scotland and that of England and Wales I cannot find it.  In Gloag and Henderson, The Law of Scotland, 13th edition the learned authors, citing Lister, state,

“Where an employer is held vicariously liable for the fault or negligence of his employee, he is entitled to claim an indemnity from the employee for the damages and expenses he has had to pay” (paragraph 17.11). 

 

In Ross Harper & Murphy v Banks Lord Hamilton when dealing with an alleged breach of a contract of partnership, again citing Lister, noted that the House of Lords had no difficulty in holding that a skilled employee in general had a contractual duty of reasonable care to his employer in the performance of his employment.  That had not been questioned in more recent times in an altered industrial climate.  The fact that the right to recover loss incurred to a third party by virtue of the employer’s vicarious liability was rarely exercised did not import that it did not exist (paragraph 31).

[112]    That approach is consistent with earlier Scottish cases;  Dickson v The Hygienic Institute, National Coal Board v Thomson, Pinkerton v Hollis Brothers.  It was not doubted by the Scottish Law Commission in their joint report with the Law Commission on Partnerships. 

[113]    As Mr Weir submits the doctrine of vicarious liability is “on the move”;  Various Claimants v Catholic Child Welfare Society, Lord Phillips of Worth Matravers PSC, paragraph 19.  There have been incremental developments in the law which have extended the scope of the doctrine.  These are outlined by Lord Phillips in the judgement in Various Claimants; paragraphs 20, 21.  However I am not convinced that these developments assist the first third party.  The policy objective underlying vicarious liability is to ensure so far as fair, just and reasonable that liability for a delict is borne by those with the means to compensate the victim.  The employer can usually be expected to insure against such risks;  Lord Phillips, paragraph 34.  The reason the doctrine is on the move is to extend the policy objective and ensure that more people with a claim in delict can succeed against someone with the resources to pay compensation than had hitherto been the case.  That does not affect the liability of the person responsible for the negligent act.

[114]    Mr Weir also referred me to Commonwealth authority.  However it was significant that in a number of cases the rule in Lister has been modified by statute and not by the courts;  Fleming’s Law of Torts 10th edition, 2011 at 11.90 and the footnotes cited therein.  Other cases depend on their own facts and reasoning.  In London Drugs the Supreme Court of Canada declined to take the opportunity to hold that employees did not have a liability in tort to a third party.  Mr Weir took me to the dissenting judgement of La Forest J (pp340‑343) where he analyses the decision in Lister and argues for an indemnity regime as between employer and employee along the lines that exist in Germany as a result of judicial intervention.  However the majority declined to follow that suggestion.  McLachlin J, as she then was, argued that the rule proposed by La Forest J would introduce a change in the common law of tort of major significance (pp460‑462).  She said that however attractive the idea posted by her colleague was the better course was to leave it to the legislatures of Canada to consider the full implications of such a change.  She concluded by citing her own judgement in Watkins v Olafson [1989] 2 SCR 750 at 761 where she said

“… major revisions of the law are best left to the legislature.  Where the matter is one of a small extension of existing rules to meet the exigencies of a new case and the consequences of the change are readily assessable, judges can and should vary existing principles.  But where the revision is major and its ramifications complex, the courts must proceed with great caution.”

 

These are wise words which I endorse.

[115]    In summary while I accept that some of the considerations that underpin the rule in Lister may not be seen as outmoded and out of date the ratio remains the law.  Accordingly in my opinion the defenders are entitled to look to the first third party for indemnification. 

[116]    It follows that there is no issue of contribution by the first third party under the 1940 Act.

 

Contribution from second third party
Submissions for first third party
[117]    The first third party, in turn seeks a contribution under the 1940 Act from the Health Board, the second third party.  Mr Weir submitted that the second third party owes the pursuer a non-delegable duty of care;  Woodland v Swimming Teachers Association [2013] UKSC 66, [2014] AC 537.  He submitted that it would be just to find the Health Board liable to make a contribution to her liability.  He said that the contribution should be equivalent to the share of responsibility as between Mrs McColl and the defenders, her employers.  He gave the example that if Mrs McColl was found liable to make a 10% contribution to her employer’s liability to the pursuer she should recover all but 10% of that contribution from the Health Board.  On this logic presumably if there is a 100% contribution by the first third party she would not be entitled to seek a contribution from the second third party.

 

Submissions for first second party
[118]    Mr Dunlop accepted for present purposes that the Health Board did owe a non-delegable duty of care to the pursuer.  However he submitted that if the Health Board were in breach of duty it was only as a result of the negligence of Ms MsColl.  It would be counter-intuitive to allow a claim for contribution;  it would amount to permitting Mrs McColl to rely on her own wrong doing in order to reduce her liability.  There was no precedent for such a claim.  Such discussion as could be found was adverse to the argument;  Keegan v Young [1963] NZLR 720;  Walker, The Law of Delict in Scotland p125.  In any event the argument was circular.  The Health Board can recover any liability on the basis of breach of contract by the defenders.  They in turn can, on the basis of Lister recover from their employee.  The claim thus asks for something that would immediately require to be handed back.  It is thus flawed on the basis of frustra petisFarstad Supply AS v Enviroco Ltd 2010 SC(UKSC) 87.

 

Decision on contribution by second third party
[119]    I think Mr Dunlop was right to concede that the Health Board owed a non-delegable duty of care to the pursuer.  The analysis by Lord Sumption in Woodland (paragraph 23) supports that concession.  However I consider that he is also correct that it would be wrong in principal to allow the first third party to rely on her own negligence to secure a contribution from the second third party.  I accept that such a decision may have consequences for the relationship between medical staff, whether or not employed by a health board or by contractors to it, and the NHS.  Some of these issues have already been discussed under reference to Lister.  However it seems to me to be a natural consequence of the findings I have reached in this case.  Accordingly I shall decline to make an order under the 1940 Act against the second third parties.

 

Conclusion
[120]    I shall sustain the pleas in law for the pursuer.  I will repel the first, second, third, fifth and sixth pleas in law for the defenders and sustain their fourth plea in law.  I shall repel the pleas in law for the first third party and repel the first, second and fourth pleas in law for the second third parties and sustain their third plea in law.

[121]    Agreement of damages in this case was reached by a novel means.  A minute of tender for the defenders and the second third parties was served on the pursuer and first third party.  Without admission of liability, and under reservation of their whole rights and pleas and without prejudice to the rights and pleas of the defenders and the first and second third parties inter se, they offered to the pursuer and the first third party to agree that in the event that the pursuer established liability the sum of £700, 000 (gross of any liability in terms of the Social Security (Recovery of Benefits) Act 1997) was a reasonable estimate of her loss, injury and damage at the date of tender.  Of that sum £95,000 was assigned as compensation for lost earnings in the relevant period and nil for compensation for cost of care and nil for compensation for loss of mobility during the relevant period in terms of the heads of compensation listed in Schedule 2 to the Social Security (Recovery of Benefits) Act 1997.  Both the pursuer and the first third parties lodged minutes accepting this offer.

[122]    Since all parties were in agreement I was not addressed on the competence of this procedure but I see no reason not to accept the minute of tender and acceptances at face value.  I shall however put the case out by order before pronouncing an interlocutor to discuss the form of the interlocutor.  In particular I would want to be addressed on the date of commencement of interest on the principal sum.