[2016] CSOH 13




(Sitting as a Temporary Judge)

In the cause






Pursuer:  McCauley QC, L Sutherland;  Balfour + Manson

Defender:  Kinroy, QC, Khurana;  NHS Central Legal Office

15 January 2016

[1]        This action came before the court as a preliminary proof on limitation in terms of sections 17(2)(b)(ii) and 19A of the Prescription and Limitation (Scotland) Act 1973.  The context was one of alleged clinical negligence on the part of accident and emergency staff at Borders General Hospital in the course of dates in February 2007 following upon the pursuer’s admission to that hospital with severe pain in her left leg.  Two failures in duty were contended for on the part of the pursuer, namely (i) a failure to ask for an immediate orthopaedic review;  and (ii) a failure to consider a diagnosis of infection with compartment syndrome and to refer the pursuer for orthopaedic review.  The pursuer’s case accordingly amounted to an allegation of harmful delay in reaching the correct diagnosis and consequent provision of the correct treatment. 

[2]        When the correct diagnosis was made by a consultant orthopaedic surgeon on 19 February 2007, a series of surgical procedures followed leaving the pursuer with significant sequelae in terms of loss, injury and damage.  Issues of quantum, causation and the merits were not canvassed at the preliminary proof;  instead, the issues addressed by parties were related solely to the primary matter of consideration of the time bar plea tabled on behalf of the defenders relative to section 17 of the 1973 Act and to the secondary question of whether relief sought by the pursuer in terms of section 19A of the Act should be granted by the court.  For the pursuer, two witnesses were led, namely the pursuer herself and Dr Laura Ryan, formerly the clinical lead at the Borders Emergency Care Service.  The defenders led no evidence.  A joint minute dealing with the provenance of relevant documentation and medical records helpfully limited the scope of parole evidence led before the court. 


The evidence
[3]        The pursuer was aged 47 when she gave evidence, having formerly worked as an ambulance technician based in Kelso.  On 15 February 2007 she had attended the gym, not having done so for a long time, for a one hour assessment.  She advised that she did not injure herself during that session but that later on that day, some two to three hours later, she had noted pain behind her left knee and calf.  She proceeded to undertake a night shift commencing at 11.00pm that date.  On 16 February 2007 she attended her general practitioner who thought that she had pulled a hamstring or sustained a possible calf strain and provided analgesia.  That evening she telephoned a 24 hour NHS out of hours service and later that evening attended Kelso Hospital where muscular injury was diagnosed and codeine added to the treatment by the out of hours doctor.  On 17 February 2007 in the morning the pursuer’s husband telephoned the out of hours service and the same doctor from the evening before attended the pursuer at her home.  On 18 February 2007, she described herself as being in agony and reported that her husband had required to drive her to Borders General Hospital where she attended at 11.20 hours.  A diagnosis was made following an examination at 11.54 hours of “cardio-vascular-pulmonary embolism”.  The pursuer recalled in her evidence that after this initial examination had been completed, a nurse whom she happened to know said that “she thought it was compartment syndrome”, and not a deep vein thrombosis (“DVT”).  She was admitted to ward 5 and at a ward round at 16.00 hours another doctor provided a diagnosis of a “probable DVT”.  On 19 February 2007 the pursuer’s case was discussed with a consultant orthopaedic surgeon who indicated that compartment syndrome required to be considered.  Significant cellulitis was noted up to the mid-thigh.  The admission note by the orthopaedic surgeon of the same date states clearly that he thought that the pursuer either had significant compartment syndrome or necrotising fasciitis.  He noted that the pursuer’s renal function was deteriorating and she was transferred to theatre on an emergency basis for decompression and debridement of the left leg.  Sundry surgical procedures followed and the pursuer was discharged home on 14 March 2007. 

[4]        In the course of close questioning by her own senior counsel and cross‑examination by senior counsel for the defenders, the pursuer came across as a patient who had found herself, understandably, to be utterly bewildered by such a swiftly moving deteriorating set of circumstances as those which befell her in February 2007.  Such were the sequelae for her that she has never returned to work.  She entered court in a wheelchair to give her evidence.  She has continued to take significant and varied medication for a considerable period and repeatedly described herself as being in a “bubble” within her own world and continuously very tired.  Her focus after these events was very much upon getting well.  Nevertheless she was able, she accepted, to attend her general practitioner in August 2007 in order to obtain letters for an insurance company and an airline in order to allow her to take a holiday to Cyprus.  On 10 January 2008 she confirmed with her treating physiotherapist that she was happy to be referred to a pain clinic, and, such a referral having been made by her general practitioner on 1 February 2008 following a consultation with her on 28 January 2008, the pursuer had duly attended the pain clinic from late April 2008. 

[5]        There was a significant chapter of evidence concerning the pursuer’s dealings with the Borders Citizens Advice Bureau (“CAB”).  A letter from CAB dated 27 March 2008 was sent to the defenders in the form of a formal complaint.  An undated letter from the pursuer was attached to that letter.  That undated letter, in terms, set out the background circumstances and narrated that “It has now been 6 months since this happened”.  The letter set out nine numbered questions, stating at the end that “There is also talk of pain clinics to deal with continuing problems.”  This formal complaint procedure continued until December 2008, the defenders replying initially at some length on 1 August 2008 in a letter which included a reference to the opinion of Dr Ryan, who also gave evidence at the proof, to the effect that the unusually large amount of pain relief provided prior to admission was a “red flag” for consideration of admission to hospital for further assessment.  A further letter from CAB was sent on 24 September 2008 on behalf of the pursuer and there was a final lengthy reply on behalf of the defenders on 1 December 2008.  It was of note that at an early stage during this process before the defenders’ lengthy reply of 1 August 2008, a caseworker for CAB wrote to the complaints officer at Borders General Hospital on 20 June 2008 stating that “my client firmly believes her condition was misdiagnosed by the Bordoc doctor … in the BGH A&E department.”  The pursuer’s position in respect of the complaint procedure was that the anniversary of the events in February 2007 had acted like a trigger making her think about whether or not her illness might have been avoided if she had received the correct diagnosis.  She and her husband had carried out internet research for a period of two to three weeks following the anniversary.  This process had led to the undated letter which accompanied the initial complaint letter from CAB.  The pursuer emphatically denied that her undated accompanying letter predated the pain clinic referral of 1 February 2008.  Her position was that it was only from the anniversary later that month that she had started to relive her experience and think along lines leading to the position set out in her undated letter and in due course to her firm belief of misdiagnosis as set out in the letter from CAB dated 20 June 2008.  In cross-examination, however, she accepted that she had realised that there had been a delay in diagnosis when her undated letter accompanying the initial CAB letter of complaint had been drafted, and further that she had realised then that there had been something wrong about the diagnosis.  Her firm belief in a misdiagnosis was, she accepted, what her accompanying letter was all about;  indeed, even before the defenders’ response of 1 August 2008, she told the court that she and her husband “had that in mind” and were asking questions.  Put short, this passage of evidence confirmed that by the time her undated accompanying letter was drafted, she believed that there had been a misdiagnosis by the Bordoc doctor (the out of hours service) and staff at accident and emergency at Borders General Hospital, and that, in her own words, “time had been lost”. 

[6]        Dr Laura Ryan’s evidence was in short compass and covered the terms of the response letter from the defenders dated 1 August 2008 to which she had contributed, as already referred to.  She expressed the view that when she met with the Bordoc doctor in April 2007 and reviewed the notes there were aspects of note taking that she felt that could properly be the subject of criticism and that at the time she considered that there could be later litigation on the basis that she felt that questions could reasonably asked about the choice of care and whether that had had an impact on the outcome for the pursuer. 


Submissions for the pursuer
[7]        Senior counsel for the pursuer moved the court to repel the defenders’ plea in law in respect of limitation and to allow the closed record to be opened up and amended in terms of the pursuer’s minute of amendment and the defenders’ answers, the terms of which had been included within the scope of the proof in terms of interlocutors of the court dated 23 May 2014 and 15 July 2015.  Senior counsel submitted broadly that the essence of the pursuer’s case was one of omission.  His primary submission was that the action was not time barred in terms of section 17(2), and that esto it was time barred, relief should be granted to the pursuer in terms of section 19A of the 1973 Act.  It was not disputed that the writ in the action had been served on the defenders on 17 February 2011, over three years after the pursuer’s hospital admission and operations.  Senior counsel accepted that he required to engage the terms of section 17(2)(b) of the Act in order to establish a date subsequent to the date of the omissions criticised by him on behalf of the pursuer.  In the context of section 17(2)(b), he founded upon the opinion of Lord Hodge in Morrison v ICL Plastics 2014 SC 222 at para 84 to the effect that “awareness” in this subsection:  “does not require certainty but it needs more than mere knowledge of possibilities.  The pursuer must know the specified facts with sufficient confidence for him to be able to take the necessary steps to prepare a legal claim based on them, by obtaining appropriate legal and other advice and collecting evidence of those facts to present to a court or other tribunal.”

[8]        Senior counsel submitted then that while awareness was not certainty, it was a level of knowledge closer to certainty that to mere knowledge of possibilities.  The essential facts to be specified in this case were, he submitted, the matters of the delay in diagnosis and consequent treatment.  This pursuer did not become aware, senior counsel submitted, that her condition could be the result of delay in diagnosis and treatment until she had carried out her internet research after the anniversary in 2008 of the admission to and operations at Borders General Hospital in 2007.  It was clear from the tenor of her evidence taken as a whole that the trigger for the thought processes leading to awareness was the anniversary of her hospital ordeal, as senior counsel put it.  Actual knowledge on her part in terms of section 17(2)(b) was therefore only obtained some two to three weeks after the February 2008 anniversary, thereby placing the raising of her action in February 2011 within the triennium.  She had, as a matter of fact, not been seen personally at the pain clinic until late April 2008, and accordingly all of the references to pain clinics within the records could indeed reasonably be referred to as “talk of pain clinics” which would chime well with the final section of her undated letter accompanying the initial CAB complaint letter sent on her behalf in late March 2008. 

[9]        With regard to constructive awareness, senior counsel urged the court to adopt a test which was mainly objective but contained a subjective element, under reference to Agnew v Scott Lithgow Ltd (No 2) 2003 SC 448 and Carnegie v Lord Advocate 2001 SC 802.  The proper question to ask was:  when would it have been reasonably practicable for the pursuer, in her particular circumstances, to have become aware of the relevant statutory facts in section 17(2)(b).  It was of note that the injury in this case was a result of a developing medical condition;  and, further that a changing diagnosis does not, in the ordinary course of things, become a trigger for a patient to investigate such matters.  These matters were of course recognised by the well-known notion in medical practice of a “differential diagnosis”.  While Dr Ryan had made it clear that she thought that something had gone wrong in the hospital, and indeed had used the phrase “red flag” which was in turn referred to in the response letter of 1 August 2008, this required to be seen in its context as an ex post facto investigation, and it was surely of note that the pursuer herself had not been told of these findings by Dr Ryan.  The pursuer was, on her own evidence, severely compromised by health problems, and her fragility, senior counsel submitted, was relevant to consideration by the court of whether she could have become aware of her injuries being attributable to omissions by the defenders’ employees within the time frame under consideration. 

[10]      Turning to equitable considerations and the application of relief in terms of section 19A of the 1973 Act, senior counsel submitted that esto the court was against him on his primary position on limitation, nevertheless the action should be allowed to proceed.  He referred to the following well known authorities:  B v Murray (No 2) 2005 SLT 982, Donald v Rutherford 1984 SLT 70, and AS v Poor Sisters of Nazareth 2008 SC(HL) 146 per Lord Hope of Craighead at paras 23 to 25. 

[11]      Senior counsel founded upon the conduct of the pursuer as a relevant factor and in particular upon her physical and mental health up until February and March 2008.  He accepted that there was a gap between the end of the complaint process in December 2008 and the raising of the action in February 2011 but sought to fill the gap by referring to the brief and uncontested passage in his pleadings about the pursuer contacting solicitors in February 2010, being unhappy about the outcome of the complaint procedure.  A decision in favour of time bar could lead, absent relief being granted, to real prejudice to the pursuer who would lose the opportunity of pursuing the action.  Contact with the solicitors was made in February 2010, close to the time when an action would require to be raised if it was to be raised within the triennium, and prima facie therefore there must be some basis for pursuing an alternative remedy, subject to the pursuer obtaining the expert opinion of a solicitor advising that an action should in these circumstances have been raised within the triennium.  This was not to be discounted, but the matter was not clear and would inevitably involve delay in the pursuer obtaining her remedy, together of course with additional significant expense.  Senior counsel accepted that in the event of relief being granted to the pursuer the defenders would be prejudiced in so far as they would lose the protection of their time bar shield.  The complaint procedure had, however, resulted in the defenders conducting what appeared to have been a thorough investigation into the matters now focused in this litigation.  The consultant orthopaedic surgeon who made the correct diagnosis had given a report to the defenders, and Dr Ryan had made an investigation.  It was further clear from the defenders’ answers to the pursuer’s minute of amendment that they had been able to make detailed averments in respect of the pursuer’s averments of fault.  These were not accordingly circumstances in which it could be said that the pursuer had served a writ upon the defenders out of the blue.  The balance on the scales of substantial prejudice was, senior counsel submitted, against the pursuer on this chapter of the case, and therefore relief in her favour should be granted by the court. 


Submissions for the defenders
[12]      Senior counsel for the defenders, in addressing the issue of the application of section 17(2)(b) of the 1973 Act, submitted that this was not properly to be seen as a case of differential diagnosis in the context of consideration of omission.  He submitted that the point at which a switch from one diagnosis to another becomes an omission is not when a provisional diagnosis is rejected in favour of a correct diagnosis, for in such circumstances these diagnoses are all part of one assessment.  The point at which omission arises is where there is a lost chance to diagnose a condition correctly and effectively.  On her own evidence the pursuer herself understood at a certain point that the earlier diagnoses were incorrect and that these were lost chances to diagnose her condition correctly.  Having offered this insightful and astute analysis, senior counsel pointed out that it was for the pursuer to aver and prove herself within the terms of the subsection and submitted that the court and the defenders should expect detailed averments of actual awareness.  It is the pursuer who is in the best position to set out the circumstances in which, on her contention, she first became aware of the relevant facts.  With regard to constructive awareness, the context and circumstances relevant to a developed awareness of all relevant facts must also largely be within the knowledge of the pursuer, and accordingly complete silence in her pleadings on matters pertaining to constructive awareness would not constitute a relevant invocation of section 17(2)(b):  Agnew v Scott Lithgow Ltd 2001 SC 516 per Lord Hamilton at para 10.  Further, a pursuer cannot be dilatory about such matters, and requires to take all reasonably practicable steps to inform herself of all the facts that she needs to know.  There is no room for “dithering time”:  Agnew v Scott Lithgow Ltd (No 2) 2003 SC 448 per Lady Cosgrove at para 23. 

[13]      In any event, senior counsel submitted, an important distinction required to be drawn between the concepts of actionability and awareness.  Actionability involved input from a solicitor in the form of advice, whereas awareness was personal to a pursuer and was a matter necessarily precedent to considerations of actionability.  Senior counsel, under reference to the speech of Lord Hoffmann in A v Hoare [2008] 1 AC 844 at paras 33 and 34, submitted that the idea of the test being partly objective and partly subjective, as contended for on behalf of the pursuer, was a confusing one.  He developed his submission along the following lines:  one takes into account what a particular pursuer knows, but supplements this with the fuller knowledge of the hypothetical reasonable pursuer.  In this case, there was no impediment to the pursuer knowing enough to ask the simple but critically important question of whether there was a harmful delay in diagnosis in her case.  If the answer to such a question in this case was simply that “it might be”, senior counsel submitted that that was enough to satisfy the test, namely when it would have been reasonably practicable for the pursuer to have become aware of the statutory facts.  Senior counsel made reference to the dictum of Lord Glennie in the Outer House in M v O’Neill 2006 SLT 823 at para 36, and submitted that it was incumbent on this pursuer, as it would be on any pursuer, to take all reasonably practicable steps to inform herself of all the material facts as soon as she was put on notice of any of these, the onus being upon the pursuer do to do.  The question is not whether a pursuer has a reasonable excuse for not taking steps but whether it would have been reasonably practicable to do so.  He submitted that, on the facts, the action was time barred.  The pursuer had failed to demonstrate that the terminus a quo was the later one identifiable within section 17(2)(b), and accordingly in that event the court was thrown necessarily back upon section 17(2)(a).  The terminus occurred, on the defenders’ submission, in March 2007 at the latest, because by then it was reasonably practicable for the pursuer to have become aware of all the relevant statutory facts.  The pursuer knew enough before or in any event by March 2007 to ask if there had been a harmful delay in diagnosis in her case, on her own evidence.  Even while she was within the hospital intensive care unit, when emerging from unconsciousness, she knew, senior counsel submitted, that the consultant orthopaedic surgeon’s diagnosis was one of compartment syndrome with necrotising fasciitis, and subsequent acute renal failure and septicaemia.  In her evidence she had accepted, he contended, that she understood that she had a serious infection in her left leg and accepted that the orthopaedic surgeon’s diagnosis was the correct one, and that accordingly the preceding diagnoses were incorrect.  She accepted that she knew early on that her leg infection was of a type where early treatment was required and that delay really mattered.  In these circumstances she knew enough to ask whether, if there was a delay, it was or was not a harmful one.  It was thus the defenders’ position, on the facts, that at least by March 2007 the pursuer was constructively aware of the statutory facts set out in section 17(2)(b)(i) to (iii) of the 1973 Act. 

[14]      Senior counsel accepted, however, that the court might wish to focus instead upon the undated complaint letter from the pursuer which accompanied the original CAB letter of complaint of March 2008 to the defenders.  The difficulty with this letter was of course that it was undated, but it was plain on the evidence that the letter could not have been drafted later than 28 January 2008, being the date when the pursuer knew that she was being referred to the pain clinic.  Had the letter been drafted later, rather than describing “talk of pain clinics”, the pursuer in the letter would have said something such as “I have been referred to the pain clinic”.  In the event that that undated letter was written by or before 28 January 2008, this placed the pursuer’s actual awareness of the statutory facts in excess of three years prior to service of the writ.  Further, in terms of points five to eight and her conclusion set out in point nine of her undated letter of complaint, the pursuer had accepted in evidence that no internet research was required, and senior counsel in these circumstances submitted that even if she did not write the letter until February 2008, there was no reason that should could not have done it sooner.  The rather perplexing section in the letter suggesting that it was written six months after her admission and operations at Borders General Hospital should be taken literally.  The complaint letter had indeed been drafted at that time and when it accompanied the March 2008 CAB letter this reflected a decision on the part of the pursuer to go ahead with the complaint.  This tied in with the defenders’ primary contention that the pursuer must have been asking awareness related questions from as early as March 2007.  The anniversary founded upon by her in her evidence may have been a prompt for the complaint procedure, but senior counsel for the defenders submitted that the pursuer knew enough long before the anniversary to ask the vital question whether there had been a harmful delay in diagnosis in her case. 

[15]      Senior counsel for the defenders proceeded to make submissions in respect of section 19A of the 1973 Act, founding in particular on the dicta of Lord Drummond Young in B v Murray (No 2) 2005 SLT 982 at paras 21 to 35, which include reference to the analysis of the legislative principles of limitation set out by McHugh J in Brisbane Regional Health Authority v Taylor [1996] 186 CLR 541.  With regard to the presumptive prejudice to be borne by a defender in the event of relief being granted by a court, senior counsel observed that with regard to decisions made by doctors, which are essentially discretionary judgments, the components therein comprising a subjective history provided by the patient, an objective examination by the clinician and a subsequent process of reasoning by that clinician (as contained within medical notes), these components, with the passage of time, may not always be clear to those advising a health authority some years down the line.  A degradation of brute facts may occur less quickly accordingly than a degradation of such subtle facts as are involved in these reasoning processes.  The effect of an exercise of discretion in favour of a pursuer would be to re-impose a liability which had already been removed by the expiry of the limitation period.  It would be more in accordance with the legislative policy of limitation provisions in general that a pursuer’s lost right should not be revived.  The burden must rest on the party who seeks to obtain the benefit of the remedy:  AS v Poor Sisters of Nazareth 2008 SC(HL) 146 at para 25 per Lord Hope of Craighead.  In the context of such a burden upon the pursuer, it was of critical importance that those advising the pursuer provide a reasonable explanation for the passage of time since the occurrence of the alleged omission(s) in treatment, rather than the time since the expiry of the triennium.  Under reference to Cowan v Toffolo Jackson & Co Ltd 1998 SLT 1000 per Lord Nimmo Smith at 1003 I to J, senior counsel observed that when considering the application of section 19A, if a pursuer’s averments on section 17(2)(b) are lacking, it becomes very difficult for a court to even begin to apply section 19A. 

[16]      In the circumstances applying in this case by way of evidence and averment, the pursuer’s explanation of her conduct was quite inadequate to allow discretion to be exercised in her favour, and here indeed the absence of a clear and reasonable explanation from the pursuer in respect of the passage of time was fatal to the application of section 19A.  Dr Ryan’s investigation dealt only with the Bordoc doctor, and not with the other hospital doctors against whom the pursuer has directed her case of fault.  The defenders held no precognition by a solicitor of that Bordoc doctor.  There was real prejudice to the defenders in the loss of the time bar defence which had accrued to them.  The presumptive prejudice founded upon by senior counsel as analysed by McHugh J in Brisbane Regional Health Authority, supra, had not been displaced. 


Discussion and decision
[17]      In this case I have no difficulty in finding, on the evidence led, that the pursuer’s action has been barred by limitation of time and accordingly in sustaining the defenders’ first plea in law as tabled in respect of time bar.  The action therefore falls to be dismissed.  Despite the order for proof in terms of the antecedent interlocutors of 23 May 2014 and 15 July 2015 encompassing consideration of matters raised in the minute of amendment for the pursuer and answers for the defenders, standing my finding on the primary issue of limitation, I decline to accede to the pursuer’s motion for amendment in terms of the said minute of amendment and answers, and accordingly there is no plea in respect of section 19A of the 1973 Act extant on record for the court to repel.  In the event that such a plea had been on record, I would have repelled it.  I propose now to set out my reasoning for rejecting the pursuer’s submissions on limitation in terms of section 17(2)(b) and the grant of any relief in terms of section 19A of the 1973 Act. 

[18]      The evidence of the pursuer was entirely determinative of the outcome in this case.  Dr Ryan’s evidence was of tangential relevance.  I should record at this stage nevertheless that I found Dr Ryan to be an entirely reliable and credible witness doing her best to assist the court in respect of all matters put to her by counsel.  The position with the pursuer was rather different.  In the bulk of her evidence I found her to be a credible and reliable historian.  One could not fail to have considerable sympathy for her predicament in the course of the terrible events besetting her in February and March 2007 and indeed over the following years as she has sought to recover.  She was a considerably empathetic and likeable witness.  Nevertheless, I have determined, on consideration of the evidence as a whole and having particular regard to the chapter of evidence about the pursuer’s undated letter of complaint sent by CAB with their letter of 27 March 2008, set against the medical records and other documents produced to the court, that the pursuer must have written that undated letter, doubtless alongside her husband, prior to her referral to the pain clinic by her general practitioner on 1 February 2008.  In the light of that finding, standing that the writ in this action was served upon the defenders on 17 February 2011, it follows that the pursuer’s action is barred by limitation of time. 

[19]      At her discharge from Borders General Hospital on 14 March 2007 the pursuer herself accepted that she knew that the correct diagnosis was compartment syndrome and necrotising fasciitis.  She had learned of these matters in the course of her admission and residence at the hospital.  She accordingly knew that the earlier diagnoses proffered to her by the defenders’ medical staff were incorrect.  On that basis the pursuer in her own evidence accepted that there had been several incorrect diagnoses prior to the correct diagnosis from the consultant orthopaedic surgeon, and that these were all matters which she knew of by the date of her discharge in March 2007.  The pursuer accepted that she realised that there had been something wrong about the diagnosis of DVT when her undated complaint letter was drafted.  In particular she realised that there had been a delay in a correct diagnosis being reached when that letter was drafted.  In getting in touch with Borders General Hospital in 2008 through CAB, the pursuer’s position in evidence was that she and her husband were looking for answers.  Nevertheless, she accepted that prior to the defenders’ response letter dated 1 August 2008 she firmly believed that there had been a misdiagnosis by the Bordoc doctor and subsequently at Borders General Hospital accident and emergency department, all as set out on her behalf by the further CAB letter sent to the hospital dated 20 June 2008.  Her position in evidence was that this firm belief on her part was something that she and her husband had in mind when asking questions.  Her firm belief in these misdiagnoses was what, on her account, led to her undated complaint letter being written.  Certainly, by the date of the initial CAB letter of 27 March 2008, the pursuer considered that time had been lost, on her own evidence. 

[20]      The pursuer nevertheless maintained that her undated letter had not been written six months after her admission in February 2007, and that this was a typing mistake;  she accepted, however, that she did not know the date when it was written.  She further accepted that on 10 January 2008 she had discussed referral to the pain clinic with her physiotherapist and that as a matter of fact a referral letter to the clinic was written by her general practitioner on 1 February 2008 following a discussion with the pursuer on 28 January 2008.  Indeed, the pursuer accepted that the terms of the entry in the GP records for 28 January 2008 about referral to the pain service must have referred to the date when her general practitioner told her that she was referring the pursuer to the pain clinic, that is, making an actual referral.  Notwithstanding all of these concessions, the pursuer continued to assert that her undated complaint letter was not written until round about or just after the anniversary of her hospital admission in 2007.  Her senior counsel put to her in re-examination that the actual initial consultant assessment at the pain clinic was not carried out until 30 April 2008, on the basis of a document in the records, which she accepted.  This, of course, was after the sending of the undated complaint letter, which itself accompanied the initial CAB letter of 27 March 2008. 

[21]      In terms of actual awareness of all the statutory facts in section 17(2)(b) of the 1973 Act, therefore, and in particular of course section 17(2)(b)(ii), namely whether the injuries sustained by the pursuer were attributable in whole or in part to an act or omission on the part of the defenders, and having in mind the approach of Lord Hodge in Morrison, supra, on the pursuer’s own evidence in respect of her undated letter of complaint and state of awareness about matters of delayed diagnosis and consequent treatment, the pursuer was quite clear that these were matters within her actual knowledge when the undated complaint letter was drafted.  That complaint letter is of course undated, and the pursuer volunteered on the subject that she simply did not know the date when it was written.  She maintained that it could not have been written some six months after her admission to hospital and that this must have been a typing error, the letter having been written following the anniversary in 2008 of her hospital admission in 2007 and her internet research of some two to three weeks in duration following upon that anniversary. 

[22]      I cannot accept that part of the pursuer’s evidence, and, on this significant chapter within the case, I find the pursuer to be an unreliable witness.  Having been taken patiently and fairly to the passages in the medical notes about her discussion with her general practitioner of her pain service referral on 28 January 2008 and with her physiotherapist on 10 January 2008 and indeed to the referral letter itself from the general practitioner dated 1 February 2008, when it was put to her by senior counsel for the defenders that the passage at the end of the undated complaint letter stating that “There is also talk of pain clinics” necessarily meant that her undated complaint letter must have been written prior to that 1 February 2008 referral, as otherwise that letter would have stated instead something like “I have been referred to the pain clinic”, the pursuer simply fell back on her assertion that the letter was not written until round about the anniversary of her admission.  I do not consider that this reflexive response is good enough for the pursuer as she seeks to engage the terms of section 17(2)(b)(ii) in such a way as to bring her date of actual knowledge within a three year period prior to service of the writ.  If indeed the anniversary acted as a trigger, in terms of the pursuer’s account, leading to two to three weeks of internet research and the generation of the undated letter of complaint, this would locate the date of that undated complaint letter in early March 2008, being at least one month after the referral letter was issued by the general practitioner on 1 February 2008 and the pursuer’s discussions of this with her general practitioner on 28 January 2008 and with her physiotherapist on 10 January 2008.  Any such fixing of the date of the letter in early March would, in my clear view, place it in a period well beyond one where there was “talk of pain clinics”.

[23]      It is for the pursuer in this case to discharge the onus upon her to bring herself within and so to engage the terms of section 17(2)(b) of the 1973 Act.  At best for the pursuer, on her own evidence, this matter is simply non probatum.  At worst, she was untruthful with the court, standing the findings which I have made in this matter, in order to bring her complaint letter and accordingly the date of her actual knowledge within a three year period prior to service of the writ.  I prefer to conclude, however, on a fair reading of the whole evidence available to the court, that the pursuer was instead simply unreliable on the date of the letter, and that her evidence about its date amounted in sum to an attempt by her to displace the onus upon her rather than to discharge it.  She did so, for example, by indicating to counsel on several occasions that her husband wrote the letter.  Those advising the pursuer did not, of course, lead her husband as a witness, and any contribution which he may have made to the whole evidential picture must remain an unknown factor to which I can attach no weight at all.  Indeed, insofar as the pursuer sought to offer her husband as a proxy for herself on the matter of the date of the letter, she increasingly rendered her own position on this chapter of the evidence to be unreliable if not untenable. 

[24]      Having accordingly found that the pursuer’s date of actual awareness must have predated her referral to the pain clinic on 1 February 2008 and that on that basis her action is therefore time barred, I propose to indicate briefly my view in respect of constructive awareness.  Adopting the approach in Carnegie, supra, which was contended for on behalf of the pursuer, I observe that in the light of the evidence of the pursuer to the effect that on her discharge in March 2007 she knew of the correct diagnosis together with the prior erroneous diagnoses, coupled with the adminicle of her particular recollection that, following her initial examination by a doctor in the accident and emergency department on 18 February 2007 at Borders General Hospital, a nurse whom she knew said that she thought it was compartment syndrome, such circumstantial evidence would permit the court in turn to infer that the pursuer was, as at her discharge in March 2007, in possession of constructive awareness of the statutory facts.  In any event, I have little doubt that the pursuer at that stage was at least on notice of the key facts in her case which would render it incumbent upon her to take all reasonably practicable steps to inform herself of all of the material statutory facts:  Agnew v Scott Lithgow Ltd (No 2) 2003 SC 448 and M v O’Neill 2006 SLT 823 per Lord Glennie at para 36. 

[25]      Turning finally to the exercise of section 19A discretionary permission by the court to allow the pursuer to proceed with her action, I note at the outset that the pursuer’s failure to fill the gap between the end of the complaint procedure in December 2008 and the raising of the action in February 2011 gives her an uphill task in discharging the onus upon her to persuade the court so to grant authority:  AS v Poor Sisters of Nazareth 2008 SC(HL) 146 per Lord Hope of Craighead at para 25.  On this matter I conclude in any subject that there is significant presumptive prejudice falling to be weighed by the court against the defenders in the event of the exercise of discretion being granted.  The investigation by the defenders at the time, founded upon by senior counsel for the pursuer, did not involve legal advice and was very limited in its scope.  Given that the pursuer’s averments and proof effectively ended at the closure of the complaint procedure in December 2008 and allowed only the barest hint to be taken that there may be a potential remedy against an unnamed firm of solicitors on an entirely unproven basis, the position adopted for the pursuer in relation to the exercise of discretion is not adequate to allow the court to endorse such a step and remove the time bar defence which has already accrued to the defenders.  The presumptive prejudice to which I have referred, as set out in the authorities canvassed by both counsel, supra, has not been displaced on the evidence led before the court and I cannot accept the pursuer’s submissions on this matter.  The application for section 19A relief accordingly fails. 


[26]      For the foregoing reasons, I will sustain the defenders’ first plea in law and dismiss the action.  I further refuse the pursuer’s motion that the closed record be opened up and amended in terms of the pursuer’s minute of amendment and the defenders’ answers, the matter of amendment being otiose standing the terms of the substantive decision made by the court in this case.  All questions of expenses are reserved meantime.