Patient of Ayrshire dentist struck off for inadequate infection control procedures loses appeal against dismissal of psychiatric injury case

About this case:

• Citation:
  [2023] SAC (Civ) 23
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Appellant Roger McCallum, who had been treated by respondent Alan Morrison at his Cumnock practice, had sought to establish that he was liable for psychiatric injury he sustained as a result of receiving a letter informing him of a low risk of blood-borne viral infection. The sheriff had previously assoilzied the respondent, who had been found not to have complied with infection control procedures between November 2012 and September 2013, on all aspects of the claim.

The appeal was heard by Sheriffs Principal Derek Pyle and Nigel Ross, with Appeal Sheriff Thomas McCartney. A Smith KC and C Smith, advocate, appeared for the appellant and I Ferguson KC for the respondent.

Not compensatable

On 18 September 2013, the respondent’s dental practices in Cumnock and Drongan were closed by the local health board due to concerns he had failed to comply with dental infection control procedures. He was later removed from the Dentists Register in February 2016, having been found to have inadequately maintained standards between November 2012 and September 2013.

The appellant had been a patient at the Cumnock practice and received treatment from the respondent on two dates in February 2013. In March 2014 he was informed by letter of a low risk of blood-borne viral infection and offered a blood test. He became very distressed that he may have contracted a BBV unknowingly and passed it to others and was diagnosed with an acute stress disorder as a result of receiving the letter. In the event, only 4 patients of 2,250 tested returned a positive test, all of whom were from the Drongan practice.

The appellant’s claim was presented on three grounds, namely breach of duty of care, breach of an implied term under contract, and assault. The sheriff found that his psychiatric injury was not foreseeable and not compensatable, in the light of the decision in Rothwell v Chemical Insulation Co Ltd & Anr (2008).

Counsel for the appellant submitted that the sheriff erred by regarding him as a secondary victim and consequently in considering whether the risk of harm was reasonably foreseeable. Unlike the pursuer in Rothwell, the appellant only became aware of the risk of a BBV over a year after his treatment, and the time lag was all part of the same chain of causation. In the event of success, quantum was agreed at £2,000 as assessed by the sheriff.

Beyond knowledge or control

Sheriff Principal Ross, delivering the opinion of the court, observed: “Sending the March 2014 letter was not a wrongful act or a harmful event. It was no more than a notice of an earlier wrongful act or omission. In effect, therefore, it is directly analogous to the role played by pleural plaques in Rothwell. It bears consideration that the March 2014 letter was drafted in such a way as to make specific references to particularly alarming possibilities, such as HIV, and that the terms of the letter were beyond the respondent’s knowledge or control.”

He continued: “We consider that Rothwell is directly analogous to the present claim, and that we are

bound to follow it. Mr Grieves in Rothwell was alerted long after the exposure to risk. He suffered a psychiatric condition caused by fresh information, not by the exposure itself. His psychiatric condition related to fear of a diagnosis which never occurred. The present appellant’s claim is, in our view, properly analysed in the same way, with the same consequences.”

Turning to the other grounds of the claim, the Sheriff Principal said: “We are unable to find any contract was concluded between the parties. The parties were in a relationship which was regulated by section 25(1) of the National Health Service (Scotland) Act 1978, as amended and the National Health Service (General Dental Services) (Scotland) Regulations 2010. We find no support for the appellant’s submission that the relationship was quasi-contractual. The possibility which the appellant asserts, of there being a co-existent contract, is unexceptionable, but does not by itself prove or imply that a contract existed in the present case.”

He concluded: “The March 2014 letter deemed the risk of physical infection to be very low. If intention is to rely on inference, then reasonable foreseeability of injury becomes central once more. Reasonable foreseeability is not made out in this context. There was no reason to reasonably foresee psychiatric injury to the appellant. There is no basis on which to disturb the sheriff’s finding on this point. Further, we agree with the respondent’s submission that the extremely low risk of infection (and thus the risk of a recognised psychiatric condition) actively points away from the foreseeability of harm.”

The appeal was therefore refused.