RECLAIMING MOTION BY JD AGAINST LOTHIAN HEALTH BOARD
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 27
A270/15
Lord Brodie
Lady Clark of Calton
Lord Glennie
OPINION OF LORD BRODIE
in the reclaiming motion
by
JD
Pursuer & Reclaimer
against
LOTHIAN HEALTH BOARD
Defender & Respondent
Pursuer & Reclaimer: Party
Defender & Respondent: Pugh; NHS Scotland Central Legal Office
28 April 2017
Introduction
[1] This is a reclaiming motion (appeal) against an interlocutor of Judge R A Dunlop QC, sitting as a temporary Lord Ordinary, dismissing the action at the instance of the pursuer, JD, against the defender, Lothian Health Board. The interlocutor is dated 11 March 2016. The pursuer appeared before this court as a party litigant as has been the case throughout his conduct of the litigation. The defender was represented by Mr Pugh, Advocate.
[2] The pursuer sues for damages in the sum of £125,000 by reason of what the pursuer avers to have been a negligent misdiagnosis of late onset hypogonadotrophic hypogonadism and a consequential or associated failure to investigate further with a view to relating the pursuer’s condition to his childhood asthma. The diagnosis was intimated to the pursuer by a consultant endocrinologist, Dr Stuart Ritchie, at a hospital appointment on 24 January 2013. The summons in the action passed the signet on 2 April 2015.
[3] Although this is a personal injury action to which the procedure under Chapter 43 of the Rules of the Court of Session would otherwise apply, authority was granted to have the action withdrawn from the personal injuries procedure and to proceed as an ordinary action, on the basis that there were exceptional circumstances such as would justify the granting of a motion under rule 43.5 (1). As an action raised after 1 May 2013 it is subject to the case management provisions of Chapter 42A of the Rules. As is provided for by rule 42A.2, the cause was appointed to a hearing on the By Order (Adjustment) Roll before Lord Armstrong on 28 October 2015. At that hearing Lord Armstrong appointed the cause to the Procedure Roll for debate on the defender’s preliminary pleas. Following further procedure which included refusal, on 17 November 2015 and again on 8 December 2015, of the pursuer’s motions for a sist, and further adjustment of the pleadings in terms of interlocutor dated 8 December 2015, the action came before the temporary Lord Ordinary, on 19 February 2016, for the debate which had been ordered by Lord Armstrong. It is the interlocutor of the temporary Lord Ordinary issued following that debate which is the subject of the reclaiming motion.
The debate before the Lord Ordinary
[4] The Lord Ordinary records his view at paragraph [2] of his opinion of 11 March 2016 that, as might be expected where they had not been prepared by a person accustomed to drafting pleadings, the pursuer’s averments contained much extraneous and irrelevant material. The Lord Ordinary further records that the pursuer had readily conceded that that was so and that the pursuer “was content for large tracts of the condescendence to be excised in the event that the action was allowed to continue further”. It would appear from what is stated at paragraph 4 in the defender’s note of argument that the pursuer’s concession followed from the Lord Ordinary having spent time discussing the purpose of the hearing on Procedure Roll with the pursuer. In the course of that discussion the pursuer had explained that his case was restricted to one of misdiagnosis. That is consistent with what appears in paragraph [7] of the Lord Ordinary’s opinion with the qualification, if it be a qualification, that the Lord Ordinary also understood the pursuer to aver that Dr Ritchie had been negligent in not investigating alternative causes for the pursuer’s low levels of testosterone. It is also consistent with the “proposed note of deletions to reflect concession that case relates to ‘misdiagnosis’ by Dr Ritchie” prepared by the Lord Ordinary and included in the court process. By way of amplification of what appears in paragraph [2] of the Lord Ordinary’s opinion, Mr Pugh, who had appeared for the defender before the Lord Ordinary, explained that at the debate the pursuer had intimated that he was not insisting in (in other words not seeking proof of) what Mr Pugh described as the “superfluous” averments and that, with Mr Pugh’s encouragement, the Lord Ordinary had taken a note of what was identified as extraneous and irrelevant with a view to the debate proceeding as a discussion of the case as directed against Dr Ritchie and, in the event of the Lord Ordinary allowing the case to go to proof, the pursuer thereafter amending his pleadings by deletion of these identified averments.
[5] The averments that the pursuer agreed to delete should proof be allowed, as noted by the Lord Ordinary (“to reflect concession that the case relates to ‘misdiagnosis’”), are: all of Article 8 of condescendence; page 17E - “as more astute people than the pursuer can manipulate said spoken matters”; page 18 – “The pursuer found that matters of complaint” through to “be investigated at page 18D; all of Article 11; all of Article 12 except “Explained and averred that Dr Gibb’s letter…” at page 23F; page 25 – from “The pursuer then contacted …” at page 25A through to the end of the article; page 27D “He had never before”; page 38E – “This was clearly a message …” through to “blatantly misdiagnosed him”; page 41B-C – “When NHS Lothian …” through to “… could be done for the pursuer”; page 41 onwards – any reference to “Edinburgh Endocrinologists” to be replaced with “Dr Ritchie”; page 42B – “It was negligent of NHS Lothian …”through to “… in this case however” at page 41D-E; all of Article 21.
[6] The Lord Ordinary records at paragraph [23] of his opinion that, by way of further explanation of what his case was, the pursuer stated that the only causal connection which he sought to establish was that he had suffered the emotional consequences described in his pleadings as a result of the misdiagnosis.
[7] With that preliminary to the debate it was argued on behalf of the defender that the pursuer’s case was irrelevant for three reasons. First, in what was said to be a case of clinical negligence the pursuer had failed to plead such a case by reference to the appropriate legal test: that the clinician who was being blamed had done something or failed to do something which no clinician of ordinary skill acting with ordinary care would have done or failed to do (Hunter v Hanley 1955 SC 200 at 204-205). Second, there were no averments which properly addressed the question of causation. The pursuer did not offer to prove what the cause of his low level of testosterone was. Thus, even if there was a duty to investigate the question of his asthma, a failure to do so led nowhere without averments that but for that failure the outcome would have been any different than what it was. Moreover, Dr Ritchie had, on 24 January 2013, offered testosterone treatment which is the treatment that the pursuer is now receiving and which has alleviated his symptoms. Third, the only damage averred by the pursuer was of the nature of emotional upset. In the absence of physical injury, merely emotional consequences short of psychiatric injury are insufficient to allow recovery of damages (Rorrison v West Lothian College 1999 Rep LR 102).
[8] The Lord Ordinary upheld the first and third arguments advanced on behalf of the defender and accordingly dismissed the action as irrelevant.
Grounds of appeal
[9] The pursuer has now appealed that decision. His grounds of appeal state that an expert in endocrinology, Dr Richard Quinton, had, on 7 November 2013, established that he did not have any type of hypogonadism and that Dr Quinton had dismissed and critiqued the diagnosis of late onset hypogonadotrophic hypogonadism. Dr Quinton has confirmed in writing that he is more than willing to appear as a witness in the case. It was erroneous to have dismissed what was a fact-based case on the basis of Dr Quinton not being the independent medical witness that he clearly is. Having a relevant independent medical witness clearly meets the Hunter v Hanley test. It was negligent of the NHS Lothian Endocrinologists to fail to investigate the pursuer’s childhood asthma which is generally known to cause hormonal failure. The case should be allowed to go to proof. Were the pursuer’s case not allowed to go forward to proof his human rights and particularly his rights which are guaranteed by Article 6 of the European Convention on Human Rights would be contravened.
Procedural hearing
[10] It would appear that the pursuer thought better of what he had agreed with the Lord Ordinary at the Procedure Roll debate. On 13 July 2016 there was a Procedural Hearing in relation to the reclaiming motion before Lord Drummond Young. The minute of proceedings records that the pursuer stated that he had felt “pressganged” into making changes to his pleadings at the Procedure Roll debate and that he wished to present the motion for review of the Lord Ordinary’s interlocutor of 11 March 2016 on the basis of the original pleadings. Lord Drummond Young is recorded as advising that he would allow the version of the pleadings contained in the reclaiming print (that is the pleadings in their original state without any deletions) to be considered at the Summar Roll hearing (the appeal hearing).
The pursuer’s case as set out in the Closed Record
[11] The pursuer’s pleadings are extensive. They disclose a number of respects in which the pursuer has been dissatisfied with the treatment and care he has received from the defender and more than one general practitioner, the steps he has taken to complain about this, and his dissatisfaction with different complaints’ procedures. I would agree with the Lord Ordinary’s description of much of what is pled by the pursuer as being extraneous to his case of negligent misdiagnosis and failure to investigate. However, the pursuer’s averments are generally comprehensible and are set out in chronological order. In so far as supporting the pursuer’s case of negligent misdiagnosis and failure further to investigate, they can be summarised as follows.
[12] The pursuer’s date of birth is 1 June 1970. From his teenage years he has experienced signs and symptoms which can be regarded as falling within two categories. The first category included severe breathlessness on exertion which was only diagnosed in 2010 as an asthmatic condition described as severe obstructive ventilator defect. The second category included erectile and ejaculatory dysfunction, a lack of sexual drive, excessive body fat, stretch marks on the stomach and hips, and limited bodily hair. In October 2012 the pursuer requested his general practitioner to prescribe the drug Viagra with a view to improving his erectile and ejaculatory function. His general practitioner advised that it would be necessary to carry out some investigations before prescribing the drug. Blood samples were taken. On 18 October 2012 the pursuer attended the Endocrinology Unit of the Western General Hospital for further investigation. As part of these investigations he attended a consultation with a Dr Mathur. An MRI scan was arranged for 13 November 2012 but as the pursuer felt claustrophobic in the chamber this was postponed.
[13] On 14 January 2013 the pursuer attended an appointment with a general practitioner, Dr Dunlop. The purpose of the appointment had been related to charting the pursuer’s respiratory peak flow, a matter pertinent to his asthmatic condition. However Dr Dunlop took the opportunity to advise the pursuer that “the results of the endocrinology testing carried out by the Hospital had shown he (pursuer) had suffered from a condition of lifelong hypogonadism which had inhibited his testosterone production and pubertal growth” and that the pursuer should “prepare for physical and mental change after receiving the testosterone treatment”. That the pursuer accepted this diagnosis and proposed course of treatment appears from his averment that “it was just absolutely fantastic news as [the pursuer] had known since high school that he had not developed anything like his peers.”
[14] The pursuer had an appointment for a consultation with, Dr Ritchie, on 24 January 2013. In preparation for that consultation the pursuer carried out some research (“gleaned as much information as was possible”) into hypogonadism. As a result of that he concluded that:
“the only endocrine condition listed among the medical conditions which the pursuer knew for sure he could not have had because of his poor pubertal experiences and poor bodily growth was the endocrine condition hypogonadotrophic hypogonadism.”
The reason was that:
“Hypogonadotrophic hypogonadism affects people who proceed through puberty without any problem and is a menopausal type of condition that affects people much later in life which is definitely not the pursuer’s experience.”
[15] On 24 January 2013 the pursuer attended the consultation which had been arranged with Dr Ritchie. At the beginning of the consultation Dr Ritchie gave the pursuer the diagnosis of hypogonadotrophic hypogonadism. On the pursuer’s questioning, Dr Ritchie confirmed his diagnosis was that of later onset menopausal post pubertal type (in the pursuer’s notes of argument he describes this diagnosis as being one of acquired hypogonadotrophic hypogonadism). The pursuer challenged Dr Ritchie’s diagnosis on the grounds that he had never experienced proper erectile/ejaculatory function and had acquired stretch marks on his stomach at pubertal age and all the other symptomatic pointers of a lifelong condition that had inhibited pubertal growth. However, Dr Ritchie “would not budge a millimetre”. Dr Ritchie examined the pursuer’s testicles but having done so declared that he would not be changing the diagnosis. He offered the pursuer treatment with testosterone. The pursuer declined treatment “as he knew something was dreadfully wrong with Dr Ritchie’s diagnosis.” At no time did Dr Ritchie ask any questions as to the pursuer’s underlying health issues such as his severe asthma condition.
[16] The pursuer did not accept Dr Ritchie’s diagnosis. His averments set out in detail how he continued to challenge it and what he considered to be the antagonistic response to this challenge on the part of clinicians and administrators employed by the defender. This included being informed that Dr Mathur had recorded the pursuer as having advised Dr Mathur that he had fathered a child “normally without help”, something that was false. However, as far as the pursuer’s case for damages is concerned the next event of importance is the pursuer’s attendance on a consultant endocrinologist, Dr Richard Quinton.
[17] Dr Quinton consults at the Royal Victoria Infirmary, Newcastle upon Tyne. The pursuer had requested that the defender refer him for a second opinion to NHS Newcastle upon Tyne Hospitals. The pursuer attended on Dr Quinton on 7 November 2013 when, the pursuer avers, Dr Quinton advised him that: “You do not have hypogonadism” and “I could show a picture of your testicles to every expert around the world and not one of them would diagnose you with hypogonadism”. The pursuer goes on to aver: “Dr Quinton was amazed that any endocrinologist would diagnose the pursuer with a hypogonadic condition.” As a result of Dr Quinton providing him with a copy of his blood results “for the first time since being diagnosed with an endocrine condition on account of his shortage of testosterone [the pursuer] became aware of just how severely low his testosterone levels actually were”. Thereafter, as a result of his receiving a further letter from Dr Quinton, the pursuer was made aware that chronic breathing conditions such as asthma can and on occasions do cause inhibition in testosterone production.
[18] Despite having initially declined to do so, in June 2014 the pursuer attended the Edinburgh Royal Infirmary Endocrinology Unit for what he avers to be “the urgently needed treatment of testosterone”. He goes on to aver that as a result of this treatment he has lost weight and gained body hair.
[19] At Article 20 of condescendence the pursuer states that he “still awaits a correct diagnosis”. He further avers that there were a number of negligent acts on the part of the defender including a failure to investigate his underlying asthma given that it is a proven cause of hormonal failure, but he goes on to aver:
“however the pursuer is litigating on the fact that NHS Lothian’s endocrinologists negligently misdiagnosed the pursuer. This was proven by the second opinion carried out in Newcastle by the equivalent endocrinologist Dr Richard Quinton... Dr Quinton also stated no other expert anywhere would have diagnosed the pursuer with the condition the Edinburgh endocrinologists did”.
[20] The pursuer avers his damage at Article 22 of condescendence, as follows:
“As a result of the failure of the defender’s employees the pursuer has suffered loss, injury and damage. The pursuer has suffered from critically severe humiliation and stress at the large number of people who learned of his body disfigurement and sexual dysfunction which would not have occurred save for the misdiagnosis. The pursuer suffered from shock, emotional distress, anxiety, sleep deprivation and fear as he sought to prove the diagnosis to be the misdiagnosis he knew it to be. The pursuer lost all the trust he had prior to the misdiagnosis made by NHS Lothian. The pursuer was informed of his unknown to him ‘record’ of being a reason for NHS Lothian staff not to want to consult with him and he was warned by a gp that NHS Lothian hospitals would not be for him as he was challenging a NHS Lothian misdiagnosis. The pursuer suffered almost a two year wait for urgent hormone treatment as a direct consequence of the misdiagnosis and the pursuer was kept in the dark as to just how urgent the hormonal treatment was until he accessed his medical records a year after the misdiagnosis. The defenders’ failed to inform the pursuer that there were other non-endocrine conditions that could have caused hormone failure. They also failed to investigate the pursuer’s underlying severe asthma condition which is medically proven to cause hormonal failure. A direct result of the misdiagnosis and directly linked negligence has resulted in the pursuer three years after still without the correct diagnosis which may not be answered sometime in 2016. And furthermore they made false hurtful claims that the pursuer had fathered children which he has definitely not, and had employees inform the pursuer that they were in possession of secret reports which caused him fear and alarm.”
Submissions
For the pursuer and reclaimer
[21] The pursuer began by reminding the court of his status as a party litigant. His case was one of misdiagnosis and failure to investigate. He remained misdiagnosed. At the hearing before Lord Armstrong it had been said that he had no expert witness to call on. That was not so. Dr Quinton had confirmed that he would happily agree to attend and to give evidence. The proceedings so far, and in particular the outcome of the hearing before the temporary Lord Ordinary had been unfair, an absolute nonsense and a breach of the pursuer’s human rights. The reasons for dismissing the pursuer’s case had been simply plucked from the air. The Lord Ordinary had got his facts wrong. It had not been the case that he had attended Dr Quinton for treatment; it was for a second opinion, in order to clear up whether the pursuer had been misdiagnosed. Dr Quinton was an expert on matters of endocrine conditions which inhibit puberty. The pursuer’s condition was probably the result of childhood asthma. Dr Quinton had confirmed that asthma can result in the inhibition of testosterone production.
[22] In response to a question from the bench, the pursuer agreed that Dr Quinton’s remark, reproduced in the pleadings, that “I could show a picture of your testicles to every expert around the world and not one of them would diagnose you with hypogonadism”, might be taken as one way of formulating the proposition that no competent doctor in the field could have reached that conclusion. Whereas the Lord Ordinary had rejected that as a “bald assertion”, it was entirely to the point, it followed on an examination of the pursuer’s testicles and could be further explained by Dr Quinton when giving evidence.
[23] The pursuer began to develop a submission that Dr Quinton’s opinion had greater weight than that of Dr Ritchie as he had a particular expertise on matters of endocrine conditions which inhibit puberty whereas, according to the pursuer, Dr Ritchie’s principal interest was in diabetes. However, again in response to a question from the bench, the pursuer agreed that if a clinician holds himself out as competent in, for example, the field of endocrinology which includes study of the production and release of testosterone, then he should be judged by reference to the expertise that he professes. Accordingly, Dr Quinton’s superior expertise did not disqualify him from expressing an opinion on Dr Ritchie’s competence.
[24] On the question of whether he had averred recoverable damages, the pursuer submitted that being misdiagnosed was a tangible result which causes great anxiety. He had had to write openly and honestly to all and sundry about his medical condition. This and the shock of being misdiagnosed had caused great anxiety.
[25] The pursuer’s attention was drawn by the bench to his averment in Article 22 of condescendence that he had suffered almost a two year wait for the urgent hormone treatment as a direct consequence of the misdiagnosis and he was asked whether the continuation of his symptoms might be regarded as physically disabling in some way. He answered in the affirmative. However, he also accepted that, as appeared from his averments, the “urgent hormone treatment” referred to in Article 22 was the same as the “urgently needed treatment of testosterone” referred to in Article 18. As appears from the pursuer’s averments at Articles 7 and 18 of condescendence, Dr Ritchie had offered the pursuer such treatment on 24 January 2013 but the pursuer had declined it and had only “finally submitted and agreed to attend the Edinburgh Royal Infirmary Unit for [that] urgently needed treatment” in June 2014. The pursuer accepted, in answer to a question by me, that it was his decision to decline the administration of testosterone until a date in August 2014 and that when it was administered its effect had been almost immediately beneficial: he had lost weight, he had gained body hair, he had become more confident, a skin condition had improved, and he had become happier with his sexual prowess.
[26] The pursuer concluded by submitting that the Lord Ordinary’s interlocutor should be recalled and the case returned to the Outer House for proof. To refuse the reclaiming motion and to deny the pursuer the chance to prove his averments would be a contravention of his human rights.
For the defender and respondent
[27] On behalf of the defender, Mr Pugh adopted his note of argument and moved the court to refuse the reclaiming motion. He submitted that the Lord Ordinary had been right to dismiss the action for the reasons that he had given in his opinion. As the Lord Ordinary accepts at paragraph [20] of his opinion, the pursuer’s averments do not give the defender fair notice of the case that it requires to meet. While the remark attributed to Dr Quinton might appear to conform with the test set out in Hunter v Hanley, it is no more than a bald assertion with no explanation of the basis upon which the statement is made. The Lord Ordinary noted the pursuer’s inability to explain the matter further. The averment, taken with its accompanying narrative, fails to take account of, on the one hand, the information available to Dr Ritchie on 24 January 2013 following on the investigations carried out in October 2012 and, on the other, the information available to Dr Quinton on 7 November 2013. There was nothing which described the clinical picture. Albeit that he informed the pursuer that he was not changing his diagnosis after his examination of the testicles, Dr Ritchie had come to his diagnosis on the basis of the earlier investigations. There was no averment as to the nature of Dr Ritchie’s alleged fault and there was no explanation of the basis of Dr Quinton’s conclusion. There was no intention on the part of the pursuer to obtain a report from Dr Quinton which might provide that explanation, despite the need for such a report having been identified to the pursuer by Lord Armstrong at the hearing on the By Order (Adjustment) Roll.
[28] As far as the pursuer’s case is based on failure further to investigate, as the Lord Ordinary noted at paragraph [21] of his opinion, the matter is even clearer; there are no averments whatsoever that would satisfy the test in Hunter v Hanley. The Lord Ordinary had been correct in finding this aspect of the case to be irrelevant.
[29] Further and in any event, the pursuer had failed to aver anything which can properly be regarded as damage caused by any act or omission for which the defender is responsible (see Rorrison v West Lothian College).
Decision
[30] In Scotland, and in other jurisdictions, if a party wishes to present a claim to a court or to defend a claim which has been made against him, he must put his claim or his defence in writing. These written statements of claim or defence are the pleadings in the case. In the Court of Session the claim is made by way of a document referred to as the summons and the defence is put forward in a document referred to as the defences. A claimant is referred to as the pursuer and the party defending the claim is referred to as the defender. In the summons there is set out in the conclusions the order which the pursuer wishes the court to make; in the pleas-in-law a brief reference to the legal basis of the claim; and in the condescendence a statement of facts which the pursuer says he can prove and which, if proved, entitle him to the order or orders that he seeks. In the defences the defender admits such of the condescendence as he accepts to be accurate, then states any additional facts which he says he can prove and which give him a defence to the claim made against him. There are also the pleas-in-law for the defender, again a brief reference to the legal principles relied on. The statements of facts, whether by the pursuer or by the defender, are called averments, because they are what the respective parties say to be true and offer to prove. It will be assumed that a party will only make an averment once he has satisfied himself that he can prove it. It is not a matter of a party making averments that he would like to be able to prove or hopes he might be able to prove; a party is expected to have prepared his case and that includes finding out from potential witnesses exactly what they are able to say in response to specific questions. It is what potential witnesses say that they will say if required to give evidence that provides the basis of properly made averments. The process of finding out what potential witnesses are able to say is referred to as precognition (foreknowledge). Parties are expected to have precognosced (interviewed their witnesses in order to find out what they can say); only in exceptional circumstances will it be proper to lead a witness without having previously ascertained exactly what evidence he is able to give. In the case of skilled witnesses the most efficient mechanism for doing that may be to instruct the skilled witness to prepare a report on the issues on which the skilled witness will be asked to give evidence.
[31] In Court of Session procedure the opportunity is given to parties to adjust their pleadings in the light of what the other party has pled with a view to narrowing the issues by admitting averments or providing further detail when that appears necessary in order to strengthen the claim or the defence. Through this process it can be seen where the parties agree and where they differ. The points of difference are the issues in the case. Once finally adjusted parties’ pleadings are brought together in a single document referred to as the closed record.
[32] The principal function of pleadings is to explain what a party’s case is about. The explanation is given to the party’s opponent and to the court. That is because the opponent requires to know what case he has to answer and the court requires to know what case it has to adjudicate.
[33] Part of the adjudication process is determining what procedure needs to be followed in order to determine the issues in the case. Evidence may have to be led at a proof. It may not; a case may be capable of being decided on the pleadings. That is the question the Lord Ordinary was addressing at the Procedure Roll debate on 19 February 2016. He was able to do so by considering the pleadings, having regard to their function as described above. In the present case the parties are at issue in respect of a number of facts but that does not necessarily mean that a proof will be necessary to decide the case. Before allowing the pursuer proof of his averments, the Lord Ordinary had to be satisfied that there was a purpose for doing so. In other words he had to be satisfied that if the pursuer proved the averments which he has averred to be true are indeed true, he would then, as a matter of law, be entitled to the remedy he seeks (an award of damages). This exercise is described as determining the relevancy of a party’s averments. The relevancy of averments is determined by assuming that a party proves everything he sets out to prove, no more, no less, and then asking the question: in these circumstances does the law give him the remedy he seeks? If the answer to that question is in the negative then there is no purpose to leading evidence to prove the averments and the action must be dismissed as irrelevant.
[34] What is meant by the contention that pleadings are irrelevant was explained by the late Professor W A Wilson in his Introductory Essays on Scots Law (2nd edit) p66 as follows:
“The effect of the relevancy plea is neatly shown in the American lawyer’s classification of defences into three types. There is ‘No, I didn’t’—a denial of the facts; then there is ‘Yes, but’—the facts are admitted but the action cannot succeed because of some other facts... thirdly there is ‘So what?’ —even if the facts are true they do not afford the remedy sought—that is exactly the idea of relevancy.”
[35] Here the Lord Ordinary found against the pursuer on the “So what?” basis. In other words, he assumed that the pursuer’s averments were true and then asked himself the question: on these averments is the pursuer entitled to a remedy in law? He then answered the question in the negative and dismissed the case, it being unnecessary to hear evidence because even if the pursuer proved everything he set out to prove he could not succeed in law. The defender says that the Lord Ordinary was right to do so and that for two reasons: (i) there is no averment which satisfies the test set out in Hunter v Hanley in respect of any part of the pursuer’s treatment; and (ii) there is no proper averment of actionable loss or damage suffered by the pursuer. I shall look at these reasons separately, beginning with reason (i).
[36] In Hunter v Hanley 1955 SC 200, Lord President Clyde said this at 204:
“To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty to take care which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances – Caswell v Powell Duffryn Associated Collieries [1940] AC 152, per Lord Wright at pp. 175–176. But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care—Glegg, Reparation, (3rd ed.) p. 509.”
[37] It is Lord President Clyde’s “true test” which has been applied ever since in order to determine whether a professional person has been negligent in the exercise of his or her professional expertise. Therefore in order to plead a relevant case of professional negligence the pleader must offer to prove that the professional person being sued did something or failed to do something that no equivalent professional person would have done or failed to do if he was exercising reasonable care. The way of doing that is to make an averment in these terms in the pleadings. The pursuer has not done that. Does that, of itself, matter? In my opinion, the answer to that is no. There is no question but that the test for determining whether an act or omission by a professional person in the exercise of his or her profession is negligent is that set out by Lord President Clyde. That accordingly is the test that the court would apply in this case should it be necessary to determine whether what is said to be a misdiagnosis by Dr Ritchie and the associated failure to investigate further was negligent. However, while this might not be the way in which it would be put by a more experienced pleader, I would regard the pursuer’s adoption of what he quotes Dr Quinton as having said (“I could show a picture of your testicles to every expert around the world and not one of them would diagnose you with hypogonadism”) as a sufficient averment of what, if proved, might support a case of negligence. If these words are to be taken literally it would of course be a narrow and extreme case in that the proposition put forward is that, irrespective of what other investigations might have suggested, the visual appearance of the testicles would have excluded the possibility of a diagnosis of hypogonadism. It would also be a case where the pursuer’s precise complaint has shifted over time, at least if the term hypogonadism is being consistently used in the pleadings to mean a condition of low level of functioning of the gonads with consequent absent or limited production of male hormones which can be effectively treated by the administration of testosterone. The pursuer’s initial dissatisfaction with Dr Ritchie’s diagnosis would seem to be directed at Dr Ritchie’s view that the pursuer’s condition, identified as hypogonadotropic hypogonadism (or, as the pursuer describes it in his notes of argument, acquired hypogonadotropic hypogonadism) , was of late rather than early onset whereas, by adopting what Dr Quinton is quoted as saying, the pursuer would appear to be making the much more fundamental criticism of Dr Ritchie’s diagnosis that the pursuer’s condition does not in fact have anything to do with gonad dysfunction. Yet, notwithstanding that, the pursuer adheres to the position that he “urgently needed treatment [with] testosterone” and that now he has received that treatment the results have been entirely effective in remedying the signs and symptoms which led the pursuer to seek medical advice in the latter part of 2012.
[38] Faced with the suggestion that the pursuer’s pleadings did indeed address the Hunter v Hanley test, Mr Pugh submitted that while that might be so in a formal sense they did not provide the defender with fair notice of what it was about the pursuer’s presentation that would have led any relevant clinician of ordinary skill to exclude a diagnosis of hypogonadism. The pursuer’s averments said nothing about the results of investigation available to Dr Ritchie and they said nothing about the investigations carried out by Dr Quinton. If, as it appeared to be suggested, it came down simply to the appearance of the testicles, what was it about their appearance which was said to be critical? The pursuer’s averments did not provide an answer to that question.
[39] I have sympathy with Mr Pugh’s complaints of lack of fair notice. However, where a pursuer is not professionally represented I consider that the court should be slow to dismiss his case on that ground alone where there is an alternative means of providing his opponent with the notice to which he is entitled. In the present case difficulty has arisen because the pursuer has not instructed a medico-legal report from Dr Quinton, as he should have done if it is his intention to lead Dr Quinton in evidence with a view to supporting a case of negligence. Accordingly, had the court only been concerned with the defender’s point (i) I would have proposed that the reclaiming motion be allowed and the cause remitted to the Outer House but proof not be allowed, that being a matter to be determined by the Lord Ordinary after a further hearing on the By Order (Adjustment) Roll as provided for by Rule of Court 42A.4. Precisely how that hearing would be conducted and what issues would be addressed at it would be for the Lord Ordinary to decide, but I would anticipate that, having regard to all his powers including his powers under Rule 42A.6, he might consider ordering the pursuer to instruct and lodge a report from any medical expert he intends to lead in evidence, with a view to demonstrating how the pursuer proposes to establish negligence. Among the consequences of failure to lodge such a report might be the cause being again appointed to debate in which event the court might well be justified in taking a strict approach to the pleadings.
[40] The Lord Ordinary observes at paragraph [21] of his opinion that the irrelevancy of the pursuer’s case founded on a failure to investigate is even clearer than that founded on misdiagnosis since when it comes to failure to investigate there are no averments whatsoever that would satisfy the Hunter v Hanley test. That may be true, but whatever the precise parameters of the failure to investigate case may be, it seems necessarily to be closely connected with the case of negligent misdiagnosis. Were this court to remit the cause to the Outer House I would not propose that it make any order in relation to the averments of alleged negligence by reason of failure to investigate. Again, that is a matter which could be addressed at a further By Order (Adjustment) Roll hearing.
[41] I am now about to turn to the defender’s point (ii), which is that the pursuer has not pled a case of actionable damage arising as a result of what he avers to have been negligence. However, before doing so I must gratefully acknowledge having had the opportunity of considering in draft the opinion of your Lordship. As your Lordship takes a different view of this aspect of the case than I do, this has allowed me to reflect further on my reasoning and to attempt to develop it in response to the considerations put forward by your Lordship.
[42] The pursuer sets out what he says to be his damage at Article 22 of condescendence. The core averment would appear to be:
“The pursuer suffered from shock, emotional distress, anxiety, sleep deprivation and fear as he sought to prove the diagnosis to be the misdiagnosis he knew it to be.”
That seems to be the essence of the pursuer’s complaint, that he suffered various emotional consequences in the course of disputing what he claims to have been a misdiagnosis. It is true that he also avers:
“The pursuer suffered almost a two year wait for urgent hormone treatment as a direct consequence of the misdiagnosis and the pursuer was kept in the dark as to just how urgent the hormonal treatment was until he accessed his medical records a year after the misdiagnosis.”
However, the Lord Ordinary records at paragraph [23] of his opinion that at the debate the pursuer stated that the only causal connection which he sought to establish was that he had suffered the emotional consequences described as a direct result of the misdiagnosis. On that presentation the Lord Ordinary was not inclined further to consider the defender’s second argument which was to the effect that the pursuer’s averments did not establish a causal relationship between what was said to be negligence on the one hand and what were said to be the consequences of negligence on the other.
[43] Leaving aside for the moment what is to be made of the pursuer’s averment about his wait for hormone treatment, what he avers as damage is emotional upset: “shock, emotional distress, anxiety, sleep deprivation and fear”. As is explained in Rorrison and White v Chief Constable of South Yorkshire Police [1999] 2AC 455 at 469B, 491D and 501F, which is cited in Rorrison, not every unpleasant consequence of a distressing event is regarded as damage in law. In the case of an action based on negligence, where there is no physical injury, damages are simply not awarded for shock, fear, anxiety or grief, unless they go the distance of amounting to an identified psychiatric illness. On this ground alone, in other words because the pursuer does not offer to prove any physical injury or any identifiable psychiatric or psychological disorder or condition, the Lord Ordinary held that the action could not succeed and should be dismissed. In my opinion he was right to do so. The point that the pursuer also complains about his wait for hormone treatment was not before the Lord Ordinary. The reason for that was that the pursuer had explained his case as being about the purely emotional consequences of what he alleges to have been negligence, as opposed to anything else.
[44] The point that damages are not recoverable in law in respect of emotional upset where the action is based on negligence is not addressed in the pursuer’s grounds of appeal. Neither is anything said about the wait for treatment, although that matter is touched on in the pursuer’s notes of argument and he assented to the proposition put to him by your Lordship in the course of the hearing of the reclaiming motion that the continuation of signs and symptoms over the period between January 2013, when he attended Dr Ritchie, and August 2014, when the pursuer’s treatment with testosterone began, might be “physically disabling in some way”. Accordingly, like your Lordship, the point having been raised I see it as appropriate that it be considered. When so doing, I am equally content, as your Lordship appositely puts it, to look at the written pleadings and to see what can properly be taken from them.
[45] Allowing for a change of mind on the part of the pursuer I am of opinion that his averments about damage remain irrelevant and that, in part, because if the pursuer’s pleadings are to be interpreted as including delay in treatment as part of the damage in respect of which he sues, it is not something that in any reasonably comprehensible way can said to be have been caused by a negligent act or omission on the part of the defender or for anyone for whom the defender is responsible.
[46] As a matter of generality, I would accept that if a patient is suffering from the adverse physical or psychiatric consequences of some medical condition and he seeks diagnosis and treatment from an appropriately qualified clinician or someone who holds himself out to be an appropriately qualified clinician but, through negligence on the part of the clinician, the patient’s condition is not properly diagnosed with the result that otherwise available effective treatment is not given to the patient and the patient therefore continues to suffer adverse physical or psychiatric consequences for a longer period than would have been the case had it not been for the negligence, then the patient has suffered damage for which he could sue the clinician. However, that is not what the pursuer avers here. True, he avers that there was a misdiagnosis but it was not a misdiagnosis which had the result that Dr Ritchie did not give the pursuer what the pursuer avers to have been the “urgently needed treatment” of administration of testosterone. Dr Ritchie offered precisely that treatment because that is what (on this matter agreeing with the pursuer) he considered that the pursuer’s medical condition required. The pursuer did not receive what he avers to have been the appropriate treatment in January 2013, not because of any misdiagnosis, but because he refused it. He then continued to refuse it until June 2014 when “the pursuer finally submitted and agreed to attend the Edinburgh Royal Infirmary Endocrinology Unit for urgently needed treatment of testosterone”. Thus, on the pursuer’s averments, far from what he characterises as a misdiagnosis having prevented him receiving what he identifies as the “urgently needed treatment” the misdiagnosis appears to have indicated the desirability of the very treatment which the pursuer says was “urgently needed”, with the result that the pursuer was immediately offered it.
[47] Your Lordship observes that relevancy is to be determined on the assumption that the pursuer proves everything that he avers and that here the pursuer avers that he “suffered almost a two year wait for urgent hormone treatment as a direct consequence of the misdiagnosis”. Of course what that averment lacks is any indication of what facts the pursuer proposes to prove with a view to inviting the conclusion that the wait was the “direct consequence” of the misdiagnosis. Indeed, I would see your Lordship as recognising that in that he finds it necessary to suggest a possible line of evidence which might establish a causal connection between what the pursuer saw as a misdiagnosis and his decision to decline treatment, there being no such averments on record.
[48] Your Lordship also observes that the defender has not cross-appealed the Lord Ordinary’s decision on the second ground on which it had been contended that the action was irrelevant. That is true, the decision no doubt having been informed by how the pursuer had presented his case in the Outer House. It is however also true, as again your Lordship observes, that Mr Pugh did not seek to resile from the defender’s decision not to cross-appeal in the face of the pursuer’s change of position. Notwithstanding that, as will be apparent, it is my opinion that pleadings that at one and the same time aver (a) that the pursuer has suffered damage by reason of delay in receiving a specific treatment because of a particular diagnosis and (b) that as a result of that particular diagnosis he was offered precisely that specific treatment, are irrelevant.
[49] However, if I am wrong in my approach to the averments relating to the pursuer’s wait for urgent hormone treatment, either because it is going too far too fast to decide a causation issue on the pleadings or because the defender has not taken the point in the reclaiming motion, reserving it for the Outer House should that be necessary, it would then be necessary to consider what the pursuer avers to have been the consequence of his treatment being delayed between January 2013 and August 2014 and whether that is of the nature of physical or psychiatric damage.
[50] The pursuer avers that he was dissatisfied with certain aspects of his bodily appearance and his sexual function. At article 3 of condescendence he describes this as having caused him to hide his body from the sight of others due to “severe embarrassment”. The aspects of bodily appearance and sexual function with which the pursuer was dissatisfied have now been remedied by the administration of testosterone. As long as he had not been administered testosterone I would take it that he remained dissatisfied with his bodily appearance and his sexual function, but from anything that can be discerned from the pleadings the consequences went no further than dissatisfaction, together with the emotional reactions to which I have already referred, including embarrassment. As I understood his position, on the authority of White and Rorison, Mr Pugh submitted that that does not amount to recoverable damages in an action based on negligence. I agree.
[51] I would accordingly move your Ladyship and your Lordship to refuse this reclaiming motion with the result that the action is dismissed, reserving all questions of expenses.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 27
A270/15
Lord Brodie
Lady Clark of Calton
Lord Glennie
OPINION OF LADY CLARK OF CALTON
in the reclaiming motion
by
JD
Pursuer & Reclaimer
against
LOTHIAN HEALTH BOARD
Defender & Respondent
Pursuer & Reclaimer: Party
Defender & Respondent: Pugh; NHS Scotland Central Legal Office
28 April 2017
Summary
[52] I have had the advantage of reading in draft the opinions to be issued by your Lordship in the chair and by Lord Glennie. For the reasons given by your Lordship in the chair, I agree that this reclaiming motion should be refused; the action dismissed and all questions of expenses reserved.
Some Further Observations and Reasons
[53] I agree with Lord Glennie that new procedures in the Court of Session would have allowed the court at an early stage in October 2015 at the by order (adjustment) roll to focus on a major problem for the pursuer in this case which is the absence of an expert report or reports focusing issues relevant to negligence, causation and loss. It is unfortunate that the court did not at an earlier stage insist on the pursuer providing such a report as a precondition to the consideration of any further procedure. Such report or reports are meant to provide the foundation for the written pleadings. It is not surprising therefore that there are very significant difficulties with the pleadings in this case.
[54] In his oral submissions to this court, the pursuer was commendably candid in accepting that in relation to the alleged negligence of Dr Ritchie and any failure to investigate, Dr Quinton whom he identified as his expert, had never provided a report focusing issues relevant to an action of professional negligence. Requiring a party litigant to have a proper foundation for pleadings in a medical negligence case is essential in my opinion. Advocates and solicitors who have rights of audience before our courts have professional obligations and duties to the court not to advance pleadings without proper investigation and support from an appropriate expert or experts who have carried out an expert assessment. That may include, for example, an opinion as to whether or not the expert considers that there has been some act or omission by a treating doctor which falls below an accepted standard of care and identifying what that is. The issues of causation and loss in a case such as this also require to be considered by an appropriate expert.
[55] I do not consider however that the mere availability of an appropriate expert report would obviate the need for focused and relevant pleadings. The pursuer must aver a relevant case in a way which gives fair notice to the defender and also restricts the proof to issues which are properly to be examined in the proof. Thus irrelevant averments about failures by other medical or support personnel or rudeness or lack of concern should not be admitted to probation. The temporary Lord Ordinary at debate attempted to focus the pleadings to identify some relevant case on which the pursuer wished to rely. That was a useful approach which I would support. In my opinion, having identified the concessions made by the pursuer, which are recorded in paragraph 5 of the opinion by your Lordship in the chair, the temporary Lord Ordinary should have invited the pursuer to move to amend the pleadings at the bar if the temporary Lord Ordinary intended to limit his consideration of the pleadings. As no amendment was made, the pleadings remained available in their full and often irrelevant detail for consideration by this court. This was recognised by Lord Drummond Young at a procedural hearing when the pursuer sought to depart from the concessions which he had made before the temporary Lord Ordinary. The temporary Lord Ordinary dealt with the case on the basis of the oral concessions about the pleadings which he had identified with the pursuer as representing what the pursuer stated he wanted to take to proof but the pursuer changed his views thereafter. At the appeal hearing, the pursuer made no attempt to restrict or amend his pleadings to delete averments which on any view could not be relevant to a case against Dr Ritchie or a case based on delay. As a result the pleadings are unfocused and contain much irrelevant detail. Although it may be possible to identify, as your Lordship in the chair has done with such care, a minimal and very narrow case which might be relevant, at least if further specification was given, that does not mean that the only thing wrong with the pleadings of the pursuer is a lack of specification which might be added if, at some future date, an expert report was obtained. It is also not clear to me that the case the pursuer wishes to take to proof is a case of such narrow and specific focus. The pursuer has been aware for a very long time that the court might consider that there was a problem about the lack of an expert report. At the appeal hearing, the pursuer still had no expert report and it is unclear whether or not he will ever have an expert report which might be considered as an appropriate foundation for a professional negligence action. During his submissions to this court, the pursuer did raise the possibility that he might try to obtain an expert report.
[56] I note that there is a reluctance from the other members of the court to dismiss this case if specification in relation to negligence was the only problem but it is not the only problem. I note the comments of your Lordship in the chair in particular at paragraphs 39 and 40. In the context of this case if appropriate conditions in relation to time limits and payment of expenses were made, the disposal, proposed by your Lordship in the chair, might have been acceptable to me provided the pleadings were restricted and focused.
[57] In relation to the second point that the pursuer has not pled a case of actual damage arising as a result of what he avers to be negligence, I agree with your Lordship in the chair. I merely add a reminder that this part of the case is totally unsupported by any expert opinion. Although the pursuer seeks to rely on Dr Quinton in relation to misdiagnosis, he did not seek to rely on Dr Quinton or any expert in relation to any consequences thereof. Indeed it appears that Dr Quinton did not support the treatment which the pursuer avers is the “urgently needed treatment of testosterone”. I accept that the court does not normally look behind the pleadings but I consider that if the court is informed that there is no report founding the pleadings, the court is entitled to do that. If one looks at the letter from Dr Quinton to the pursuer dated 18 December 2013 in which Dr Quinton states that “I am not convinced that you do have true secondary hypogonadism”, he also states:
“In your case, I believe that a slightly low testosterone level serves a ‘warning light’ that your long-term health is at risk unless/until you can lose some weight and maybe get better asthma control. It is probably not a diagnostic marker true hypogonadism and I am not convinced that you would necessarily benefit from testosterone treatment. Moreover, if you did (as I suspect) have undiagnosed/untreated sleep apnoea, it might not be safe to start testosterone treatment anyway until this had first been diagnosed and stabilised”.
[58] My impression from the submissions of the pursuer is that what he would like to achieve is an open-ended investigation by the court of his complaints into the way he has been treated by the various hospital and GP doctors and staff but that is a misunderstanding of the function of this court. This is an action of damages for loss injury and damage caused by professional negligence and such an action must have a proper foundation and focus. In my opinion that can only be achieved by the involvement of suitable experts to consider the issues relevant to negligence, causation and loss injury and damage. The pleadings in this case are in my opinion irrelevant and lacking in specification and in any event should not be sent to proof in the absence of proper expert assessment to provide a foundation for the case.
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 27
A270/15
Lord Brodie
Lady Clark of Calton
Lord Glennie
OPINION OF LORD GLENNIE
in the reclaiming motion
by
JD
Pursuer & Reclaimer
against
LOTHIAN HEALTH BOARD
Defender & Respondent
Pursuer & Reclaimer: Party
Defender & Respondent: Pugh; NHS Scotland Central Legal Office
28 April 2017
Introduction
[59] I have had the advantage of reading in draft the opinion to be issued by your Lordship in the chair, which helpfully sets out the background to this matter and explains the pursuer’s case on record. I gratefully adopt that summary. I find myself in agreement with your Lordship in relation to the defender’s point (i), viz the alleged absence of an averment satisfying the test set out in Hunter v Hanley in respect of any part of the pursuer’s treatment. I agree with your Lordship’s suggestion that, had this been the only point in the case, the appropriate disposal would have been to allow the reclaiming motion and remit the cause to the By Order (Adjustment) Roll in terms of Rule of Court 42A .4. I say more about this later.
[60] However, your Lordship accepts the defender’s point (ii), viz that the pursuer has not pled a case of actionable damage arising from the alleged negligence. Acceptance of that point leads your Lordship to the conclusion that the pursuer’s reclaiming motion should be refused and his action against the Lothian Health Board dismissed. I regret that I am unable to agree with your Lordship on this point and, therefore, with that proposed disposal of the appeal. I shall explain my reasons below.
The Defender’s Point (ii) – Damages and Causation
[61] The relevant averments in the pursuer’s pleadings are set out in your Lordship’s opinion. I need not repeat them here. Part of the pursuer’s case, no doubt a very important part, is, as your Lordship says, that “he suffered various emotional consequences in the course of disputing what he claims to have been a misdiagnosis”. Under reference to cases such as Rorrison v West Lothian College and White v Chief Constable of South Yorkshire Police, your Lordship concludes that such a claim – i.e. a claim for emotional distress not amounting to an identified psychiatric illness – cannot succeed in the absence of any offer to prove physical injury or damage. In those circumstances, your Lordship considers that the temporary Lord Ordinary was right to dismiss the action, since the pursuer explained to him, at the discussion on the Procedure Roll, that his case was about the purely emotional consequences of the misdiagnosis as opposed to physical injury or damage caused thereby. I agree with your Lordship, for the reasons given, that had the claim been of that nature, namely a claim for emotional distress not amounting to an identified psychiatric illness and unaccompanied by any claim for physical injury or damage, the action would have been irrelevant in law and apt to be dismissed.
[62] But that is not this case. There is here a claim for physical injury or damage alongside the claim for emotional distress. As your Lordship points out, in the course of the hearing before us and in answer to a question from the court about the passage in his pleading relating to “almost a two year wait for urgent hormone treatment as a direct consequence of the misdiagnosis”, the pursuer relied upon the continuation of the symptoms during this two year wait as physically disabling. Such a submission was clearly different from his acceptance before the Lord Ordinary that his case was all about the emotional consequences of the misdiagnosis. I would not wish to hold the pursuer to any such concession made before the Lord Ordinary and neither, as I understand it, would your Lordship. The pursuer is a party litigant, not trained in advocacy, unused to answering questions in court or from the court and equally unused to understanding the significance in legal terms of any answer he might give to a question raised in the course of the debate. Better, in my view, to look at the written pleadings and to see what can properly be taken from them – a discussion on the Procedure Roll is, after all, a debate about what is or is not in the pleadings. Your Lordship accepts, correctly in my view, as a matter of generality, that if a patient is suffering from the adverse physical or psychiatric consequences of some medical condition and he seeks diagnosis and treatment from an appropriately qualified clinician but, through negligence on the part of the clinician, the patient’s condition is not properly diagnosed with the result that otherwise available effective treatment is not given to the patient and the patient therefore continues to suffer adverse consequences for a longer period than would have been the case had it not been for the negligence, then the patient has suffered damage for which he can sue the clinician. I take this to mean that your Lordship accepts that if effective treatment is delayed because of negligent misdiagnosis by the clinician, and that delay in receiving effective treatment results in the patient continuing to suffer from the adverse physical or psychiatric consequences of his medical condition for longer than he would otherwise have done, this prolongation of the suffering until belatedly relieved by the treatment would amount to injury or damage sufficient to support a claim for damages in an action against the clinician.
[63] How, then, does your Lordship come to the conclusion that the pursuer’s claim should be dismissed at debate?
[64] Your Lordship’s reasoning appears to be as follows. Despite the alleged misdiagnosis, Dr Ritchie offered the hormone treatment, which the pursuer avers is the appropriate treatment, in January 2013. The almost two year wait for that treatment of which the pursuer now complains was because the pursuer refused and continued to refuse that treatment until June 2014 when he changed his mind. It was, therefore, because of his own decision that he did not for that period receive the treatment he should have received. The delay in receiving the appropriate treatment cannot in any reasonably comprehensible way be said to have been caused by the alleged misdiagnosis. In other words, the pursuer’s case is bound to fail – and is fundamentally irrelevant – because he cannot show a causative link between the misdiagnosis and the delay in treatment.
[65] In my respectful opinion this line of reasoning suffers from two significant defects, each of which is sufficient to render it unsound as a guide to the disposal of this appeal.
[66] First, as your Lordship has pointed out, at a discussion on the Procedure Roll the relevancy of a party’s averments is determined by assuming that that party proves everything which he sets out to prove. In the present case the pursuer offers to prove that the almost two year wait for urgent hormone treatment was “a direct consequence of the misdiagnosis”. The pursuer may be right on this or he may be wrong, but that is not a matter to be resolved on the Procedure Roll. He has, in my view, made a sufficient averment on causation to entitle him, subject to what I say below, to proof before answer. Your Lordship remarks that the pursuer’s averment lacks any indication of what facts the pursuer proposes to prove in support of the conclusion that the wait for hormone treatment was the “direct consequence” of the misdiagnosis. That appears to be a complaint of lack of specification rather than relevancy, but whether put as a matter of specification or of relevancy, it is, to my mind, unjustified. In Article 7 of Condescendence, in a passage quoted by your Lordship, the pursuer avers that he declined Dr Ritchie’s offer of testosterone “as he knew something was dreadfully wrong with Dr Ritchie’s diagnosis”. In Article 22 he complains that at the time of the alleged misdiagnosis he was “kept in the dark as to just how urgent the hormonal treatment was”. In other words he is saying in his pleadings: yes, it was my decision not to start the hormone treatment in January 2013, but I took that decision because the recommendation of hormone treatment was made on the basis of a diagnosis which I believed to be (and was in fact) wrong; it was not made clear to me then how urgent that treatment was; and, in any case, why would anyone reject the (mis)diagnosis but accept treatment recommended on the basis of that misdiagnosis? Far from that being, as your Lordship characterises it, my suggestion of a possible line of evidence which is unsupported by any averment on record, it is the very case which the pursuer makes in his pleadings. It is trite law that a step in the chain of causation may take the form of a decision made or action taken by the pursuer in response to the negligent action or advice of the defender. Whether the chain of causation is broken by the pursuer’s own conduct will depend on all the circumstances, including the reasonableness and/or the foreseeability of that conduct. These issues are not raised in the defences, but if they had been they would be matters for proof. There is no fundamental irrelevancy or lack of specification in the pursuer’s case.
[67] Secondly, the defender has not sought to argue before us that the averments anent causation are irrelevant or lacking in specification or that the action should be dismissed on this account. In his judgment the temporary Lord Ordinary said that, despite the difficulties which the pursuer might face in respect of his case on causation, he would not have dismissed the action had that been the only ground of criticism. As Mr Pugh pointed out, he took that view because the pursuer told him that the only causal connection which he sought to establish was that he had suffered the emotional consequences as a direct result of the misdiagnosis. But there is no cross-appeal by the defender raising the question of causation before this court. Mr Pugh explained that that was because of the way in which the pursuer is recorded as having presented his case before the Lord Ordinary and the basis on which the Lord Ordinary made his decision. That I understand. But Mr Pugh went on to make it clear that despite the pursuer’s apparent change of position in this court in advancing a case of physical injury, he did not resile from his decision not to cross‑appeal on this point. In other words, he made it clear that he did not seek to argue that the pursuer’s averment of causation was irrelevant, nor did he seek to have the action dismissed on this ground. In those circumstances it would be quite wrong, and unfair to the pursuer, if in this court we were to refuse the appeal only because we considered, despite there being no argument to this effect, that the pursuer’s case on causation was bound to fail. It is not pars iudicis to enquire into the relevancy of a party’s case on record when the point is not raised or insisted on by the other party to the proceedings; still less is it pars iudicis to raise questions of specification in the absence of argument from the other party.
[68] It may be that your Lordship takes the view that the pursuer’s case is bound to fail and it would be better that it be given its quietus now rather than be allowed to proceed to proof with all the attendant expense to the public purse. I have, in general, some sympathy with that view. But there are problems with this approach. First, our Rules of Court contain no provision for what might be called reverse summary decree. Rule of Court 21 allows a pursuer to apply by motion for summary decree against a defender on the ground that there is no defence to the action disclosed in the defences; and the same goes, mutatis mutandis, for a defender who raises a counterclaim and contends that there is no defence to that counterclaim. But there is no reciprocal provision allowing a defender to seek decree (whether of dismissal or absolvitor) on the ground that the claim brought against him has no prospect of success. Perhaps there should be. Whether such a provision would offer a solution in the present case is, perhaps, doubtful, standing the height of the bar identified by the House of Lords in Henderson v 3052775 Nova Scotia Limited 2006 SC (HL) 85. But absent any such provision the exercise is illegitimate. Secondly, it is dangerous to speculate, in the absence of evidence, as to how the matter will ultimately fall to be resolved. As I sought to point out in Heather Capital v Levy & McRae [2017] CSIH 19, our system does not permit trial by pleadings in which the outcome is determined by which party is more persistent and whose case seems the more convincing on paper. Where issues of credibility and reliability may be critical, they should be resolved at proof. In the present case it is noticeable that there are no detailed averments in the defences and, apart from the general denial, there are no averments at all challenging the pursuer’s case on causation by saying that the delay in receiving the appropriate treatment was due to his own refusal to take it earlier rather than due to any misdiagnosis. I have already indicated, under reference to the pleadings, what the pursuer’s response would be had there been any such averment. Depending on what is said on either side the matter should be tested at proof. I readily accept that the pursuer’s case on this point will have to be looked at critically. But that does not mean that it should be refused a proof on this ground.
[69] In the penultimate paragraph of your opinion, your Lordship expresses the view that, because by the administration of testosterone the aspects of his bodily appearance (excessive body fat, stretch marks on the stomach and hips, and limited bodily and pubertal hair) and sexual function (erectile and ejaculatory dysfunction and a lack of sexual drive) with which the pursuer was dissatisfied have now been remedied, and because the consequences of that (temporary) impairment caused him nothing more than embarrassment and dissatisfaction during that period, then, on the authority of White and Rorrison, that does not amount to recoverable damages in an action based on negligence. I am conscious that I may not have articulated the point with the elegance and precision it deserves, but it appears to be premised on one or other (or both) of the following propositions: either that the aspects of bodily appearance and sexual function relied on do not themselves amount to physical injury sufficient to instruct a claim in negligence; or, since the only consequence of such physical conditions is an emotional reaction (embarrassment and the like), the claim resulting therefrom is to be regarded as a claim for emotional distress (rather than physical injury) and therefore not recoverable. If I have properly understood your Lordship’s point, I must respectfully disagree with it. Had the proposition not been advanced by your Lordship, I would have regarded it as beyond argument that, say, sexual impairment suffered by a patient as a result of negligent treatment or diagnosis constitutes physical injury sufficient to ground a claim in negligence against the relevant medical practitioner; and that is so even though in a particular case the only impact on the patient is embarrassment in intimate situations and/or difficulty in forming relationships with others. The point is that the embarrassment results from the physical injury. The same is true of a disfiguring skin condition, such as a prominent scar or a pervasive rash, or the retardation of bodily or facial hair growth, where the result of the negligence is physical but the impact on the individual suffering from that physical injury is measured in terms of emotional distress, loss of confidence and embarrassment. The distinction with White and Rorrison is that in those cases the plaintiff/ pursuer sought to recover damages for nervous shock or breakdown without having suffered any physical injury at all. They are not in point here, where the complaint is of physical injury resulting in the emotional consequences already described.
[70] For those reasons I am unable to agree with your Lordship on this issue. It follows that I would have allowed the appeal, but consistently with the view expressed by your Lordship in dealing with the defender’s first argument, I would not have allowed a proof before answer but rather would have remitted the matter to a Lord Ordinary on the By Order (Adjustment) Roll in terms of Rule of Court 42A.4.
Additional Observations
[71] I would like to say a little bit more about procedure in this type of action. In doing so I have in mind that, as your Lordship has pointed out, and as Mr Pugh candidly accepted, the real complaint underlying the defender’s point (i) is not relevancy in the strict sense but rather a lack of fair notice or, as it is called in our procedure, specification. The same might be said of the defender’s point (ii). Allied to that, there is a complaint that the pursuer’s Hunter v Hanley case, though it may be relevant in a formal sense, is not supported (as it should be) by an expert report.
[72] Typically a case is appointed to the Procedure Roll or to debate on a plea by one party to the relevancy and specification of the averments made by the other. Your Lordship has explained very clearly what is meant by “relevancy” in this procedure. A case will only be dismissed as irrelevant if, assuming that the party whose averments are under attack can prove everything he sets out to prove, his case will nonetheless fail as a matter of law: Jamieson v Jamieson 1952 SC (HL) 44, 50 per Lord Normand. If the case is irrelevant in this sense, there is no purpose in allowing it to go any further. A complaint of lack of specification is rather different. It means that the party tabling that plea complains that he does not have fair notice of the case made against him in sufficient detail for him to know what it is and to answer it. In dealing with such a plea at debate the court has to make an assessment, looking at the pleading as a whole, of whether fair notice of the party’s case has been given. If not, the court may refuse to allow that averment, or the averment of which it forms part, to proceed to proof; and, where that averment is critical to that party’s case, may, depending upon which party’s pleadings are under scrutiny, either dismiss the action or grant decree in favour of the pursuer.
[73] The process of resolving issues of specification by debate on the Procedure Roll is, if I may respectfully say so, somewhat crude. Traditionally a party who considers that the other party’s pleading fails to give fair notice of the case which he is having to face does not have the ability to ask the court to order the other party to provide further detail or specification (for example by giving “further and better particulars”). While it has become common for a party to make a “call” in his pleadings for further specification to be given by the other party, there is no obligation on that other party to answer that call and, short of having the case appointed to debate, there is no mechanism for asking the court to order him to do so. A party whose pleadings are under attack may offer to amend to add further specification, but that will usually result in any Procedure Roll hearing or debate which has been fixed being discharged, often at considerable expense, and re-fixed some months down the line for a debate on the revised pleadings, thus causing delay in the ultimate resolution of the dispute. There is no opportunity for the court to focus on the particular complaint by ordering the party to give further specification of particular averments. Absent an offer to amend, the result of the debate, if the plea to specification is successful, will be exclusion of the relevant averment and, possibly, decree for the pursuer or defender. This is not a satisfactory way of conducting litigation in the modern day. To my mind a debate on specification, as opposed to relevancy, should be discouraged. It should be rare for a court to appoint a case to the Procedure Roll or debate on issues of specification, as opposed to relevancy. This is, I think, now being recognised. New procedures in the Court of Session allow for considerable case management, though they are not consistent across different kinds of action and do not yet apply at all to some types of action. In commercial and intellectual property actions (Chapters 47 and 55 of the Rules of Court) issues of specification are raised and resolved at preliminary or procedural hearings. Orders can be made as regards early exchange of expert reports, in cases where such reports are necessary. In actions of damages brought under Chapter 43 of the Rules of Court, a party complaining of lack of specification or the lack of an expert report, where one is required, can raise the matter under Rule 43.6(5)(d), in effect asking the court to order that further specification of a particular allegation is given, or that an expert report is provided, before the matter is allowed to go to proof. This action proceeds under Rule 42A. Rule 42A.4 contains a wide array of case management powers when the case comes before the court on the By Order (Adjustment) Roll. In addition, Rule 42A.6 gives the Lord Ordinary wide powers, at that time or later, to make such order as he thinks fit to secure the efficient determination of the action. This may include orders for further specification or the provision of an expert report. In all such cases it will be open to the court, on the application of either party, to rule on the adequacy of the specification and (where this is in issue) the absence or adequacy of an expert report; and to make it clear that non-compliance with any order made may result in decree passing against the party in default. With respect to your Lordship, there is no need in such circumstances for the court to appoint the case to a debate. The court can determine such issues on the By Order (Adjustment) Roll. And even if the terms of Rule 42A did not deal with the point, the Court has an inherent power, in appropriate cases, to dismiss an action as an abuse of process in a variety of situations, including where a claim for professional negligence is not, as it should be, supported by an expert report: Tods Murray WS v Arakin Limited 2011 SCLR 37, [2010] CSOH 90.
[74] When the matter came before the court on the By Order (Adjustment) Roll in October 2015 the Lord Ordinary was asked by the defender to send the case to debate on the Procedure Roll and this is what he did. He was not required to do so. All the tools which I have mentioned under Rule 42A.4 and 42A.6 and under the inherent power of the court were available to him then. If, as I suggest we should, we were to remit the matter to the By Order (Adjustment) Roll it would be open to the Lord Ordinary hearing the case on that Roll to determine, on the motion of either party, whether and, if so, what further specification is required of either party’s case and whether to order to order exchange of expert reports before sending the action to proof. Of particular relevance in connection with the absence or alleged deficiency of any expert report from one or other party are the terms of Rule 42A.4(4)(c)(x)-(xiii). It is clear, as I have said, that the Lord Ordinary may refuse to allow a party’s case to proceed to proof where there is no expert evidence to support that party’s case and expert evidence is necessary.
[75] Since writing this opinion I have had the opportunity of reading in draft the opinion to be delivered by Lady Clark. Although we disagree as to the ultimate disposal of this appeal, I share your Ladyship’s concerns about the inclusion in the pursuer’s pleadings of averments which are irrelevant to the issue or issues in dispute between the parties, namely those issues going to alleged negligence on the part of Dr Ritchie which might be causative of some loss or damage to the pursuer. The Lord Ordinary went some distance in his efforts to restrict the pursuer’s averments on record to those which were arguably relevant, but since the pursuer’s pleadings were not formally amended to give effect to the proposed deletions they remained part of the record which would have gone to proof had this court allowed a proof before answer. However, this need not have happened if, instead of allowing a proof before answer, this court had simply remitted the matter to the By Order (Adjustment) Roll. That would have provided the judge hearing the case with the opportunity of insisting that irrelevant averments were deleted. I note from your Ladyship’s opinion that there appears to be a significant measure of agreement between us as to the appropriate procedure to be adopted in a case such as this and, in particular, the need for pro-active case management at the hearing on the By Order (Adjustment) Roll. I can only express the hope that this will be taken up in future cases so that matters of specification, expert reports and the like can be dealt with at that stage.