Sheriffdom of Lothian and Borders at Edinburgh
Note
by
Sheriff Kathrine EC Mackie
In causa
JEAN LAMB residing at 177/4 Pleasance Edinburgh EH8 9RU
Pursuer
Against
ALISON WRAY having a place of business at 37 Frederick Street Edinburgh EG2 1EP
Defender
Act: Lugton, Advocate, instructed by Harper MacLeod, Solicitors, Glasgow
Alt: Nicholson, Advocate instructed by MDDUS Glasgow
Edinburgh 11 November 2013
The Sheriff having resumed consideration of the cause sustains the defender's objection to the admission of evidence in relation to the normal and usual or standard practice of a dentist carrying out a filling of a tooth; appoints the cause to a procedural roll hearing and assigns Friday 22nd November 2013 at 9.45am within the Sheriff Court House 27 Chambers Street Edinburgh as a diet therefor.
NOTE
[1]. The pursuer craves damages for personal injury. Prior to the commencement of proof on 3rd October 2013 the pursuer moved to allow the record to be amended in terms of her Minute of Amendment number 17 of process and the defender's Answers thereto number 18 of process. The motion was opposed. After hearing Counsel I refused the motion on the ground that the proposed amendment came too late. Thereafter the pursuer gave evidence.
[2]. In summary on about 1st November 2011 the pursuer attended an appointment with the defender for the purpose of replacing a filling in her lower right 3 tooth. She had been a patient of the defender's for about 10 years. An anaesthetic was administered. During the procedure the pursuer felt a burning sensation. This coincided with liquid, believed to be acid etch, being sprayed onto her tooth. She was unaware of cotton wool rolls being used during treatment. Within an hour after she left the defender's she went to a café for some refreshment. As she was about to eat a soft roll she started bleeding profusely from her mouth. An area inside her lower gum appeared ulcerated and bruised for about two weeks. She suffered pain and discomfort for about five weeks. She attended her GP and was prescribed antibiotics. She was unable to assist her elderly parents for about two weeks or to take part in a Craft Fair between 15th and 19th November 2011 at which she would have expected to sell paintings and other works.
[3]. The pursuer also led evidence from Andrew Mulford BDS, MFGDP(UK), MGDS, RCS(Ireland), MA. Mr Mulford has provided reports in allegations of dental negligence once or twice a month for about 4 years. The majority of his reports have been on behalf of pursuers. He explained that a filling was a common procedure carried out most days in a dental surgery. He had provided training in the procedure since about 1998. In this case he had concluded that the pursuer's injury was caused by dry cotton wool roll adhering to the skin inside her lip.
[4]. During examination in chief of Mr Mulford Mrs Nicholson, Counsel for the defender, objected to a question about what was the standard practice for the removal of cotton wool rolls on the ground that there were no averments on record offering to prove the standard practice for their removal. Mr Lugton responded by drawing attention to Statement 4 of the record wherein it is averred at line 5 "The pursuer felt a burn sensation to her lip during the treatment even although she had received an anaesthetic. The pain was as a result of cotton wool being removed without being sufficiently moistened.". He also referred to Statement 8 wherein it is averred that the claim is based on fault at common law of the defender. Mr Lugton submitted that these were abbreviated pleadings and the averments referred to were sufficient.
[5]. In view of what appeared to me to be a matter of general importance I invited Counsel to address me more fully in relation to the requirements of what are referred to as abbreviated pleadings. The case was adjourned until 4th October 2013 to allow Counsel time to prepare their submissions.
[6]. Mr Lugton submitted that the pursuer was entitled to pursue the case on record. He referred again to the two sentences in Statement 4 and the averment of fault. He submitted that these averments crystallised the issues and were central to the pursuer's case. Based on these averments the pursuer was entitled to prove, firstly, that it was normal and usual practice to check cotton wool rolls were sufficiently moistened before removal and if not to moisten them, secondly, that the defender deviated from that practice and, thirdly, that no reasonably competent practitioner would have so deviated. In the pursuer's Minute of Amendment an attempt had been made to add averments of that nature however it was submitted that under Chapter 36 procedure such averments were not necessary. It was a question of duty rather than fact. I was referred to Baird-v-Cowie [2006] CSOH 168 at para 19; Slessor-v-Vetco Gray UK Limited & Ors [2007] CSOH 130 at para 20 and Clifton-v-Hays PLC & Scottish & Newcastle 7th January 2004 unreported at para 11. It was submitted that the defender was not in the dark about the basis of the pursuer's claim that cotton wool rolls were not sufficiently moistened.
[7]. In response Mrs Nicholson submitted that even in abbreviated procedure there was a clear requirement for the pursuer to aver the nature of the fault or breach of duty relied upon. She referred to the form of Summons in Chapter 43 procedure. In particular she drew attention to the style that appears in the annotations to rule 43.2 in the Parliament House Book. Paragraph 12 of that style suggests that particular duties of care are specified. In this case the pursuer seeks to establish clinical negligence. It was not enough for her just to aver that her claim was based on fault at common law. I was referred to Hunter-v-Hanley 1955 SC 200 and the three facts that the Lord President stated required to be established. It was suggested that nothing Lord Carloway had said in Baird meant that it was not necessary to aver duties.
[8]. In this case the pursuer was not offering to prove a standard or usual and normal practice. The pursuer had attempted to amend her pleadings by adding an averment about it being standard practice to check whether the cotton wool rolls are moist before removing them and to moisten them if they are not. It may be inferred that the pursuer considered that such an averment was necessary otherwise she would not have sought to amend in such terms at such a late stage. Although the style of summons is abbreviated the pursuer could have averred the nature of the fault or breach of duty on the part of the defender as had been attempted in the Minute of Amendment. The issue was whether fair notice had been given. The defender can only prepare to meet the case on record.
[9]. In any event, the pursuer's evidence did not support the averment that "The pain was as a result of cotton wool being removed without being sufficiently moistened.". Accordingly that averment could not be proved. The pursuer's expert cannot say what caused the pursuer's pain and can only offer an opinion about the injury. Even if evidence were led about the standard practice in relation to the removal of cotton wool rolls it would not assist the pursuer.
[10]. This action proceeds in terms of Chapter 36 of the Sheriff Court Rules. These rules largely mirror those in Chapter 43 of the Court of Session Rules. Rule 36B.1 provides that the initial writ in a personal injuries action shall be in Form P11 and there shall be annexed to it a brief statement containing, inter alia, averments relating only to those facts necessary to establish the claim. The form of the Initial Writ, P11, shows that unlike the form of Initial Writ in an Ordinary Cause there is no requirement for pleas-in-law. The form of Summons in Chapter 43 is in virtually identical terms. In paragraph or statement 4 the pleader is invited to "state briefly the facts necessary to establish the claim". The next paragraph or statement invites the pleader to state the personal injuries suffered and the heads of claim. In paragraph or statement 6 the pleader requires to state whether the claim is based on fault at common law or breach of a statutory duty. While on the face of it there is no requirement to set out, ad longam, as was previously common practice, duties said to be incumbent upon a defender it is clearly necessary to state, albeit briefly, the basis of fault and any statutory provisions relied upon.
[11]. The rules contained in both Chapters 36 and 43, as Lady Smith said in Clifton, are intended to simplify written pleadings in actions for personal injury and to avoid complexity. Where the Sheriff is satisfied that exceptional reasons exist, having regard to the need for detailed pleadings and the length of time required for preparation of the case, the action may proceed as an Ordinary cause and the provisions of Chapter 36 will not apply. No application to disapply the provisions of Chapter 36 was made in this case.
[12]. While Lord Emslie in Slessor appears to disagree with Lord Carloway's perception of the procedure in Chapter 43 as set out in Baird both their Lordships appear to me to be agreed that notwithstanding the simplified form of pleadings the customary rules still apply. As Lord Carloway said in paragraph 19 "The customary rules of relevancy (including fair notice) will be applicable to those pleadings subject to the new abbreviated styles of averring fault or breach of statutory duty...". In Slessor Lord Emslie said at paragraph 20 "In my judgement it is still primarily to the parties' pleadings that the court must look in order to gain some idea of the nature and extent of the disputed issues...". Similarly Lady Smith said in Clifton at paragraph 11 " Whilst the rules contained in that chapter (43) are designed to simplify written pleadings and avoid complexity where possible I do not understand anything in those rules as detracting from the principle that defenders are entitled when presented with a summons to be able to ascertain without undue difficulty the nature of the case against them.......The new rules are directed towards relieving pursuers of the burden of setting out in the pleadings all the flesh needed to clothe the bare bones of the case but they are still in my opinion obliged to set out those bones in the summons. Unless they do so I cannot see that they are complying with the requirement to state the facts necessary to establish the claim as set out in Rule 43.2."
[13]. The function of written pleading is to give notice to the opponent of the case to be met and to give notice to the court of the issues on which parties require a judicial decision. A party is not entitled to establish a case of which the other party has not received fair notice upon record. To disregard such principles would lead to injustice. In my opinion the provisions of Chapter 36 do not relieve the pursuer of the obligation to give fair notice of his or her case. In terms of Rule 36B.1 the pursuer requires to make averments relating only to those facts necessary to establish the claim (my emphasis). These are the bones referred to by Lady Smith. What the pursuer does not require to do in an action proceeding under Chapter 36 is to fully clothe those bones. Accordingly the pleader has to have careful regard to what facts are necessary to establish the claim to be made.
[14]. In this case the pursuer craves damages for injury averred to have been suffered as a result of dental care administered by the defender. Thus the case involves an allegation of professional or clinical negligence. Professional negligence is indicated, as Lord President Clyde stated in Hunter-v-Hanley at page 206, "where there has been such a marked departure from the normal standard of conduct of a professional man as to infer a lack of that ordinary care which a man of ordinary skill would display." Deviation from ordinary practice is not necessarily negligent and depends upon the facts and circumstances of the case. As the Lord President said "To establish liability...where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course..adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care." The correctness of that approach has been affirmed many times.
[15]. In my opinion the facts necessary to establish the pursuer's claim, as opposed to the duties, must include those facts identified by the Lord President. It is clear from Mr Lugton's submissions that he recognises the need to establish these facts. I agree with Mrs Nicholson that it may be inferred from the proposed amendments that it was recognised, at least by Mr Lugton once instructed, that the pursuer's pleadings were deficient in not averring what was the usual and normal or standard practice for a dentist such as the defender in carrying out the procedure involved in this case and in not averring that no dentist of ordinary skill would have failed to follow that practice if acting with ordinary care. It would seem from the pursuer's evidence that it cannot be proved, but even if it could be proved the averment "The pain was as a result of cotton wool being removed without being sufficiently moistened." is, in my opinion, on its own insufficient to allow the pursuer to establish all the facts necessary to prove professional or clinical negligence.
[16]. As Lord Emslie said in Slessor "I cannot believe that the framers of Chapter 43 thought it appropriate for defenders to have to guddle about in other documents to ascertain the likely nature of the case against them.". Similarly I cannot believe that the framers of Chapter 36, based as it is on Chapter 43, thought it appropriate for defenders to "guddle about" to find, or even have to guess at, the pursuer's case. Fair notice still requires to be given so that the defender knows the basis of the case to be met, even if only the bare bones of it. Further, the court requires to have notice of the issues in dispute in order to make a judicial determination on them. Unless the pursuer has averred, and by so doing offered to prove, the facts necessary to establish the claim the court will be unable to make the relevant findings in fact in any determination, assuming that the averments are proved. Even if evidence were to be led without objection unless the pursuer has, or is allowed to introduce by amendment, a basis in his or her pleadings the court would be unable to make relevant findings in fact.
[17]. Accordingly if in an action of professional or clinical negligence it is necessary to establish that there is a usual and normal or standard practice the nature of that practice requires to be averred, albeit briefly. Similarly if it is necessary to establish that the course adopted by the defender was one which no professional person of ordinary skill would have taken if acting with ordinary care then that must be averred. Without such averments the pursuer has not complied with the requirements in Rule 36B.1, has not given fair notice of the case to be met, and would not be entitled to establish such a case against the defender.
[18]. In the absence of any averments on record or allowed by amendment and for the foregoing reasons I shall sustain the defender's objection to evidence being led in relation to what may be the usual and normal or standard practice in relation to the removal of cotton wool rolls during treatment for a filling provided by a dentist such as the defender.
[19]. Counsel indicated that my decision in relation to the admission of this evidence may be determinative of this case. In these circumstances the case will be appointed to a procedural hearing to consider what further procedure, if any, is appropriate.