Sheriffdom of Tayside Central and Fife at Perth.


By Sheriff M.J. FLetcher

in causa

Stacey Ann Dow, residing at 32 Glengarry Road, Perth Pursuer


Tayside University Hospitals NHS Trust, Perth Royal Infirmary, Perth Defenders

Perth 5th September, 2006.

The sheriff, having resumed consideration of the cause, sustains the defenders' first plea in law; Dismisses the cause; And decerns; Meantime reserves all questions of expenses; Appoints the cause to the miscellaneous roll of 13th September 2006 at 10 am to allow parties to be heard on the question of expenses.


[1] In this action the pursuer sues the Health Board for damages for breach of contract. It is clear from the closed record and from what was said on behalf of the parties by counsel that in an earlier incarnation the action had included averments based on delict but these had been removed at least in part from the record by the time of the debate.

[2] The action arises from a procedure carried out at Perth Royal Infirmary where a surgical termination of the pursuer's pregnancy with Dizygotic twins was carried out. The pursuer avers that the operation to terminate the pregnancies was unsuccessful in that one of the babies remained in the pursuer's womb and in due course a healthy child was born by elective caesarean section on 30th August 2001. She seeks damages for breach of contract.

[3] The pursuer's averments relating to the contract she says was breached are contained in article 2 of condescendence as follows:-

"The pursuer advised Dr Phillips that she sought termination of the pregnancy. The pursuer was advised by Dr Phillips that medical termination, by the administration of a tablet, was inappropriate in respect of multiple pregnancy and that surgical termination was necessary. Arrangements for surgical termination proceeded. The pursuer was given no information, counselling or documentation by Dr Phillips or by others involved with her regarding the prospect of failure of said surgical termination. Dr Phillips was acting as agent of the defenders at all material times. He did not advise the pursuer that there was any risk of failure in the operation to terminate the pregnancies. The pursuer reasonable (sic) believed that there was no risk of failure and nothing in the actings of Dr Phillips or any other agent of the defenders suggested otherwise. The discussion that the operation was to "terminate" the pregnancies clearly implied that the operation would succeed and the success was thus warranted by the defenders through their agent Dr Phillips. ... As previously condescended upon, the defenders (through the agency of Dr Phillips) warranted that the termination would in fact terminate the pregnancy. Had she not had the success warranted, the pursuer would have ensured that she had regular scans following the operation to demonstrate that the womb was empty, and would not have accepted contraceptive treatment which masked her continuing pregnancy... "

Later, in Condescendence 3, she avers:-

" Separatim, the failure in termination was caused by the defenders' breach of contract. The pursuer has suffered loss, injury and damage as a consequence of the breach of contract by the defenders. As condescended upon, the defenders (through their agent, Dr Phillips) warranted that the pregnancies would be terminated. They were not. The failure to terminate pregnancies was accordingly a breach of warranty for which the defenders are liable."

[4] Mr Stevenson for the defenders invited me to sustain the defenders' first plea-in-law and to dismiss the action failing which to sustain the defenders' second plea-in-law and refuse to admit averments of patrimonial loss to probation. He took me to article 2 of condescendence where the pursuer avers the warranty she relies on. He pointed out that there was no averment of express warranty or guarantee or indeed promise but rather the "warranty" was to be inferred from the actions and words of Dr Phillips in that it was averred that no one including Dr Phillips informed the pursuer that the termination might not be successful and secondly the very use of the word "termination" by the doctor meant that he was warranting the success of the operation.

[5] Mr Stevenson argued that no relevant case based on contract was set out on record, in fact no contract was identified at all. Mr Stevenson submitted that where medical services were provided under the National Health Service, there was no contract between the patient and the Health Board but the services were provided under a statutory duty created by Parliament and were received by the patient as a right given to them by Statute. I did not understand senior counsel for the pursuer to take issue with that proposition for the purposes of this action. The only contract which could exist therefore was one created specifically by the parties, in this case averred to be Dr Phillips and the pursuer. Nothing was averred by the pursuer from which it could reasonably be implied that there was a contract. Nothing was averred which would take the case out of the normal National Health Service situation. The pursuer's subjective understanding of what was being said was not relevant. It was the objective meaning of what was said which mattered.

[6] Mr Stevenson then turned to the identification of the contract. He submitted that there was no identification in the pleadings of anything which could be described as a contract. The pursuer described the words of Dr Phillips when he called the operation a "termination" as a warranty of success but Mr Stevenson submitted that no unilateral promise which was enforceable was averred. There was no suggestion of a collateral warranty leading to the entering into of a contract. Indeed, the pleadings did not demonstrate details such as when the warranty was made, or by what means it was made, or what it was to do, or what mutual obligation was to be carried out. A breach of contract relying on a breach of warranty could not be relevant when the basis of the contract was not set out and averments were required setting out what the actual contract was. Here, the pursuer simply says that Dr Phillips used the word "terminated" without setting out the context in which it was said or the exact words which were used.

[7] In any event there could not be a relevant case on contract as National Health Service patients do not enter into a contract in relation to their treatment. A distinction had to be drawn between private patients and National Health Service patients. In relation to the former, a contract was entered into in relation to the treatment which was to be provided but in the case of the latter no such contract required to be set up but the provision of health care was in terms of the Statute. Prior to the setting up of the national health service private hospitals were run by charities or local authorities and gradually hospital managers had provided buildings equipment and food and there would be business administrators providing these items. Doctors would largely be outside contractors not employees of the hospital managers and their contract for provision of services as independent contractors would be entered into with the hospital managers. He referred me to Macdonald -v- Glasgow Western Hospitals 1954 SC 453 for the proposition that even after 1947 medical services are still provided by doctors who were officers of the board but not servants whose skills in treating patients are not to be interfered with by the Boards. It also made it clear that there was no contract between the doctors providing the medical services and the patients themselves as did Reynolds -v- The Health First Medical Group [2000] Lloyd's LR 240. Mr Stevenson also referred to a series of textbooks published in England on the subject of medical law where the authors were also of the view that there was no contract in the ordinary case between the national health service patient and his doctor.

[8] Next Mr Stevenson moved on to look at the terms of the alleged warranty. He pointed out that that there was nothing averred by the pursuer which would support the contention that the agent of the defender had given a guarantee of success. The words spoken by the doctor would have had to have conveyed objectively that the doctor guaranteed the success of the operation. In this case the discussion was that the pursuer's pregnancy was to be terminated and the allegation in the averments was that no advice was given as to the risk of failure so there were two aspects to the matter, first of all the word "termination" was used and secondly nobody said that it might not succeed. That could not imply a contractual guarantee that the operation would be successful. The word "termination" being used was the description of the operation not a warranty that the operation would succeed. If the use of the word "termination" implied automatically a guarantee of success no one would be able to use such medical terms or there would be a warranty on every occasion. The averments in this action were not sufficient to amount to the giving of a guarantee. There were three English Court of Appeal cases relating to the question of guarantee, Eyre v Measby [1986] 1 All ER 488 at page 491, Thake v Maurice [1986] 1 All ER 497 and Gold v Haringey Health Authority [1987] 2 All ER 887. It was clear that the test was an objective one and that it did not matter what the pursuer subjectively thought was being said to her. The words which were used were simply a description of the operation.

[9] Counsel then moved on to deal with his second plea-in-law. He submitted that the averments relating to economic loss were irrelevant. They were contained in article 4 of condescendence relating to the financial burden of the care, upbringing and aliment of the child and relating to her marriage prospects. She made nothing more than bare statements of loss with a complete absence of notice of how they arise. In any event the House of Lords had made it clear in McFarlane v Tayside Health Board 2000 SC (HL) 1 that economic loss was not recoverable in cases based on delict although the judges had each given different reasons for coming to that decision, and unless there was express agreement to the contrary, he argued that the position was the same in cases based on contract. The same public policy considerations apply in contractual cases as applied in delictual cases and the same difficulty of balancing the benefit of having a child with the cost of bringing the child up exists. He also referred to Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 which applied that case and to Jones on Medical Negligence at pages 91 and 92 and its first supplement at page 8.

[10] Mr Smith for the pursuer moved me to allow a proof before answer. He explained that the case had been presented on the basis of a breach of contract not because it was thought that it would facilitate a claim for compensation for the cost of bringing up the child but rather because it was recognised that the defenders had not been in breach of their statutory duty to the pursuer. He also indicated that it was accepted that the basis of the provision of medical care to the pursuer was the fulfilment of a statutory duty under the National Health Service (Scotland) Act 1978. However he argued that there was no prohibition against proceeding on the basis of contract, in this case an expression of warranty or guarantee by the doctor treating the pursuer that the operation to be carried out would have the effect of terminating her pregnancies. He referred to the well known test for relevancy set out in Jamieson v Jamieson 1952 SC (HL) 44.

[11] Mr Smith submitted that there were more than sufficient averments set out by the pursuer. The question was what was meant by what the doctors said when discussing the operation to be carried out. It was averred he had used the words "the pregnancies will be terminated" and it would only be after a proof before answer, since that was challenged, that it would be able to be decided whether or not that was a warranty or guarantee. The main issue therefore was whether one could bring a claim for a breach of warranty on the basis that the doctor had promised to end the pregnancies. There was no direct Scottish authority but there were cases in England which had failed because the plaintiffs had been unable to demonstrate any "consideration" for the promise or warranty. That was irrelevant in Scotland because it was perfectly possible to have a unilateral contract which was enforceable and which could be breached. The door had been left open for such actions in the aforementioned cases. It was accepted that actions based on contract usually arose in the private sector where contracts for the provision of medical services were entered into but why should there be a difference between the private sector and the public sector? He referred to Jones Medical Negligence at paragraph 2 -010 which expressed the view that it was theoretically possible for a doctor to give a contractual warranty but that the court would be slow to infer such a warranty in the absence of an express term.

[12] There had been recognition in the past that contractual claims in some circumstances did exist. At paragraph 2-012 Jones gave an example of a Canadian case La Fleur v Cornelius (1979) 28 NBR (2d) 569 where an assurance that there would be "no problem. You will be very happy." was held to be an express warranty of success. He also referred to Jackson and Powell on Professional Negligence at paragraph 2-008 and 2-010, and Medical Negligence Case Law by Rodney Nelson-Jones and Frank Burton. The latter work discussed Scuragia v Powell 123 SJ 406 where the court awarded damages in respect of the negligent termination of a pregnancy for loss of earnings and for the impairment of the plaintiff's marriage prospects. He also pointed to paragraph 12-005 where the authors expressed the view that there was "almost certainly" no contract between the National Health Service patient and those by whom he was treated. Similarly, in the case of Reynolds -v- The Health First Medical Group [2000] Lloyd's Rep Med 240 it was said that there was not "in this instance" a contractual relationship between the claimant and the defendant. Further under the heading "Contract" in Medical Negligence Litigation by Denis Carey at page 3 it was not stated that no National Health Service patients entered into any contractual relationship with a doctor or the health authority but rather that very few did so.

[13] It could be seen from the citations given above that the door to a contractual claim had been left open. No one was suggesting that it was not possible to proceed with a contractual claim.. Even under the National Health Service (Scotland) Act 1978 which provided the duties to provide medical care, it was not prohibited to enter into a separate contract. The difficulty illustrated in England in relation to lack of consideration did not apply in Scotland where a unilateral obligation was enforceable. I was referred to Gloag on Contract and in particular McBryde on Contract paragraph 2-02.

[14] In relation to damages Mr Smith argued that it was entirely a matter for proof to be dealt with after a proof before answer. The question of whether it would be appropriate to a award damages for the cost of bringing up a child born after an unsuccessful termination in an action based on contract had not been decided in the way it had been in relation to a delictual action.

[15] Lastly Mr Smith emphasised that it should be clear that in allowing an action to proceed on the basis of a warranty by the doctor would not open any floodgates of claims or impose a great burden on the medical profession because they would simply require to ensure that they made it clear that there was no absolute guarantee of success and they would do that either at the time they were giving the advice or alternatively it could be contained in the consent form signed by the patient.

[16] In reply Mr Stevenson pointed out that Jamieson -v- Jamieson made it clear that where there were insufficient averments the action should be dismissed and there was no reason to put the parties to a proof where it was clear that there was no possibility of success. Before a case could be relevant based on a unilateral promise of success, an express intention to guarantee success in clear words was required. Here there were no such words on record because the averments set out only the discussion about termination from which it was said it could be implied that the doctor was guaranteeing success. That was insufficient.

[17] The first general question which was discussed in this case related to the legal relationship between the pursuer and the defenders. Mr Stevenson spent a little time demonstrating that there was no contractual relationship between the pursuer and the defenders but rather the services provided by the defenders were provided in implement of a statutory duty imposed by the National Health Service (Scotland) Act 1978. I understood Mr Smith not to challenge that assertion but rather to suggest that it was not impossible for there also to be a contractual relationship. In my opinion, except in unusual circumstances the relationship between the patient and his doctor is not a contractual one but rather the implementation of a statutory duty imposed on the Board and a statutory right given to the patient to receive it. The position would be different where the patient/doctor relationship was a private one rather than one under the National health service. In these circumstances the relationship would be a contractual one and the terms of the contract would be the ruling factor in the relationship. The cases and textbooks cited are quite clear that the relationship is not contractual, the only doubt being a slight possibility that a contract exists between a general practitioner and patient and in any event that is not relevant to this case.

[18] I gave some consideration to the question as to whether it made any difference if the treatment being provided was not strictly treatment of "illness". In this case the treatment could perhaps be described as elective since it is not suggested that the pursuer was ill but rather that she was pregnant. The procedure which was carried out was not treatment advised by the doctor for the care of her or her baby but rather was a procedure requested by her to end the pregnancies. Could that be said to be "treatment" provided entirely under the National Health Service (Scotland) Act 1978? Or was it provided under some other relationship such as contract? No argument was presented which suggested that the procedure was anything but one which was provided under the terms of the scheme and so I proceeded entirely on the basis that it was.

[19] Mr Smith for the pursuer submitted that while it was accepted that the main relationship was a statutory one there was no authority for the proposition that a contract was not possible and he cited a number of authorities in which there were indications that the possibility of a contract existing was not excluded. I agree that there could possibly be a contractual relationship in addition to the one imposed by statute but I consider that that would be so only where it was clear that the doctor concerned was exceptionally entering into a contract and was not relying on the statutory relationship alone. Having said that it is not easy to envisage a situation in which a doctor providing services under the National Health Service would consider it appropriate to enter into an additional contract in relation to the services. The question arises as to why and in what circumstances the doctor would do so? Perhaps he might find himself being asked by a patient whom he had advised to undergo specific treatment, to guarantee its success before the patient would accept the advice, and in order to persuade the patient to follow the advice he might find himself unwisely guaranteeing it. Clearly that would not be an appropriate response to the patient's misgivings when it might result in its being held that that was a unilateral promise of success. That unlikely scenario in some ways demonstrates the inadvisedness of such a separate contract since the doctors were already under an obligation in terms of the Act to act with proper skill and care so that there would be no need to enter into a contract imposing on themselves additional burdens or duties. The authorities, apart from those dealing with private medical treatment, do no more than leave the door to a contractual relationship slightly ajar.

[20] If that is so, then any additional contract, such as a guarantee of success, would require to be expressed in clear terms so that the parties would be clear as to exactly what is guaranteed and indeed clear in the case of the doctor that he is in fact giving a guarantee and in the case of the patient what exactly is warranted. I do not think that it could arise for instance because of the careless use of an expression describing a procedure which was to be carried out. Nor could it be implied from the use of general medical terms used to describe procedures to be carried out, nor from the use of simple language understood more readily by patients untutored in medical terms. There would need to be demonstrated an intention to add an additional liability on the part of the doctor. That would correspond with the requirements for a unilateral promise in any circumstances which would not be implied but would require expression in clear terms (see Gloag on Contract and McBryde on Contract).

[21] Mr Stevenson criticised the pursuer's pleadings on the basis that the averments of the pursuer did not set out clearly the terms of the guarantee claimed to exist by the pursuer. I have set out the averments relating to this above. The first comment that I would make about these averments is that it is perhaps surprising that the averments which would be required to found the whole basis of the action should be so vague in their terms. The nature of the guarantee or its exact terms are not spelled out in detail. The pursuer avers in article 3 of condescendence that Dr Phillips warranted the termination of the pregnancies but the matrix of fact upon which that is based is scant. The pursuer avers that she sought termination of the pregnancy. She avers she was advised by Dr Phillips that medical termination was inappropriate and that surgical termination was necessary. The averments are set out as indirect speech which might be normal for pleadings, but since the formation of any promise or warranty was said to be done verbally it might be expected that the exact words used by the Doctor as heard by the pursuer would be set out, especially if the significance of the words were said to go beyond just discussing the type of operation which was to be carried out.

[22] In order to succeed in this action the pursuer would require to convince a court that in advising the pursuer that a medical termination (one using medication) would not be appropriate and instead a surgical termination would be required, Dr Phillips was somehow warranting the success of the operation beyond the duties imposed on him in terms of the Act. On the averments set out in the pleadings that seems to me to be impossible. To equiperate the description of the procedure with a guarantee of success simply because the word "termination" was used or to suggest that because the word "termination" was used the pursuer was entitled to take it that success was guaranteed does not bear examination. In my opinion in order to be held to have guaranteed the success of the operation the doctor would have had to have expressly said that he was doing so. He could not be held to have done so impliedly or because he used the word "termination" per incuriam. I am of the view that he would have to have had the intention to give a warranty of success and it would not matter a great deal what the pursuer subjectively thought the use of the word "termination" implied. In my opinion the interpretation sought to be put on the discussion averred by the pursuer is not sustainable

[23] The pursuer, of course, is not actually asking me to sustain that interpretation at this stage. Mr Smith urged me to allow a proof before answer and suggested that the matters in dispute should be decided only after the full facts are known. Certainly, that has a an attraction, because it would no doubt allow the pursuer and defenders to explore with both the pursuer and Dr Phillips in detail what took place during their discussions. If, however the evidence accepted showed nothing more than what is averred by the pursuer the matter would be no further forward in my opinion. The pursuer does make a specific averment in condescendences 2 and 3 that Dr Phillips warranted that the pregnancies would be terminated but that averment is merely a re-enforcement of the earlier averments because it is commenced with the phrase "As condescended upon" I considered whether that type of bare averment might be sufficient to allow a proof before answer on the basis that that averment itself gave fair notice of the case the pursuer offered to prove and the averments contained in article 2 of condescendence were in fact unnecessary and were the pleading of evidence. I am clearly of the view that that proposition would be incorrect. It is obvious that the pursuer, in any action based on breach of contract, would require as a minimum to aver the nature of the contract said to have been entered into between the parties and to specify the terms which had been breached so that it would not be sufficient simply to aver that the doctor had warranted the success of the operation without further specification. The averments in this case would not allow proof of any different method of warranting the success. The case of Eyre v Measday [1986] 1 All ER 488 decided a similar point in relation to advice that sterilisation would be "irreversible" which was claimed amounted to a guarantee of success, but did so only after a proof. It may be that the procedure in England differs in relation to the importance of pleadings or it may be that the allegations of warranty were more robustly stated. Whatever is the explanation I am of the view that a proof in this case is not necessary to decide the question of whether the conversation amounted to a guarantee of the success of the operation.

[24] In these circumstances I am of the view that a proof before answer is not appropriate in this case. The test as to whether an action should be dismissed is set out in the oft cited case of Jamieson v Jamieson that an action will not be dismissed on the grounds of relevancy unless it must necessarily fail even if all the pursuer's averments are proved. I am of the view that the defenders have shown that even if the pursuer proves the conversation or advice which she avers in condescendence 2 it could not be held that the doctor thereby guaranteed success. The averments do not demonstrate anything more than the use of words to describe the type of procedure or method of treatment to be undertaken. The averred guarantee is said to have arisen from the use of the word "termination" during the discussion which implied that the operation would succeed and it seems to me that a decision on that question can be made without putting the parties to a proof.

[25] In my opinion the action is irrelevant and should be dismissed. I shall sustain the defenders' first plea in law.

[26] That is sufficient for the decision but counsel for the defenders covered the possibility that a proof before answer might be allowed by moving that the averments relating to the loss said to be sustained by the pursuer in relation to the financial burden of bringing up the child should be excluded from probation. He argued that such a loss was not recoverable in a contractual action in the same way as it was excluded in delictual actions following McFarlane v Tayside Health Board. There was no reason why there should be any difference when the action was founded on contract. I agree that the same considerations have to be taken into account in relation to the assessment of loss for the cost of rearing the child and if I had been allowing a proof before answer I would have excluded the averments relating to the claim for the financial burden of the care, upbringing and aliment of the child from the middle of line 4 of condescendence 4 commencing "She has the financial burden" to "marriage prospects" in the second last line.