Personal Injury Court refuses health board’s bid to remit medical negligence case to Court of Session 

A sheriff in the All-Scotland Personal Injury Court ruled that while the case was “important and difficult” those factors alone did not merit a remit from the specialist court to the superior court.

Sheriff Kenneth McGowan heard that the pursuer Michael Cocker, 73, raised a damages action against Dumfries and Galloway Health Board and Mr Rupert Ferdinand following an operation to treat persistent pain in his lower back caused by pressure on the nerves in his spine.

The pursuer had a decompressive laminectomy in April 2014, but argued that he would have had a better result from that treatment had he had it earlier, and claimed that there was a delay in his diagnosis as the defenders had the opportunity to properly diagnose the treatment required between November 2013 and May 2014. 

Importance and complexity

The case came before the sheriff on the first defender’s opposed motion to (i) discharge the diet of proof and fix a new diet, with consequent alterations to the timetable and (ii) to remit the case to the Court of Session in terms of section 92(2) of the Courts Reform (Scotland) Act 2014 to proceed under Chapter 42A of the Court of Session Rules (CSR); and the pursuer’s opposed motion to withdraw the cause from Chapter 36 of the Ordinary Cause Rules (OCR) and to allow the action to proceed under Chapter 36A OCR.

The first defender said it was clear that the case was of importance to the pursuer, but submitted that it was also important to the health board as five members of staff were blamed and their professional standing had been put in issue.

Furthermore, the claim involved a large sum and there was concern about the potential impact of such a claim on public funds.

The first defender also submitted that the issue of liability was “complex” because blame was levelled at a number of different people across a number of medical specialties, meaning that there would require to be evidence about what the duty of each of these persons was in the relevant circumstances and whether those duties had been breached. 

The issue of causation was also likely to be “extremely complex”, which flowed through to the issue of quantification of damages.

It was argued that the cumulative effect of the matters relied on as demonstrating importance and complexity made it “appropriate” to remit the case to the Court of Session, which had “sharper” case management tools at its disposal to progress the case towards proof.

‘Remit not appropriate’ 

However, the first defender’s motion was opposed by the pursuer on the grounds that the remit was not appropriate. 

It was accepted by the pursuer that the case was important to all parties and that it was complex, but it was submitted that neither of these factors was sufficient in degree to justify a remit.

It was accepted that the issue of professional standing was important, but that applied in all professional negligence cases whether or not they were of a significant value.

The pursuer argued that whichever judge heard this case would require to consider the evidence from a number of medical witnesses concerning whether each or any of the clinicians had been negligent and what the outcome would have been if that was established, and the question of quantum flowed naturally from decisions about liability and causation. 

This was typical in personal injury cases and the same questions required to be asked and answered whether the case proceeded in the Court of Session or the Sheriff Court.

‘No novel question of law’

The sheriff ruled that while case was “evidently important” to the parties, it raised “no issues of public policy or novel questions of law” which required resolution.

In a written judgment, Sheriff McGowan said: “The case is undoubtedly far from straightforward but professional negligence cases rarely are. There may be additional complexity here because of the number and different categories of medical professionals who are blamed which means that issues about the duty of care will be particular to each element of the case. But whether there is one or five alleged breaches of duty does not in my opinion in itself make the case so extraordinarily complex as to require remit.

“I acknowledge also the questions of causation may not be straightforward as may be the questions of quantum. But even in relatively straightforward injury cases, where for example there are pre-existing conditions and loss of future employment or pension responsibilities these types of questions arise in many cases.”

He added: “It must be acknowledged that Outer House judges are appointed to and are sitting in a court superior to this one in the hierarchy, albeit still at first instance level. On the other hand, this court was specifically set up to deal with personal injuries (including clinical negligence) cases and the judiciary here have been selected for their knowledge and experience of these cases and the matters arising in them.

“Before turning to the practicalities, it is clear that it was envisaged that Chapter 36A cases would require greater case management than those proceeding under Chapter 36. In short, particular provision was made in the rules for that to happen in Chapter 36A cases, whereas in Chapter 36 cases, the timetable which provides the structure for case-flow and judicial involvement is limited (unless a case goes ‘off the rails’ procedurally) until the hearing itself.

“But the reality is this. A substantial number of clinical negligence cases proceed in this court. Very often – and this is a reflection of the skill and professionalism of those routinely dealing with and instructed in these cases – there is a large degree of co-operation and hence common ground as to how the cases should be dealt with. 

“For example, very often parties, in their written proposals for further procedure, are very much in agreement. Accordingly, whilst in theory a significant amount of judicial case management is required in Chapter 36A cases, the reality is that that is the exception rather than the rule.”

In summary, the sheriff concluded: “The case is important and difficult. It is not so important or so difficult that those factors alone merit a remit to the Court of Session.

“This court has concurrent jurisdiction; the case was brought here; this is a specialist court.

“There are no issues about expense, location and so on which would justify a remit. As this case proceeds, access to the court or its judiciary is not likely to be limited in the way suggested.

“The case is likely to reach proof materially earlier if the motion to remit is refused than if it is granted. That is in the interests both of the pursuer and those who are criticised. 

“Looking at the circumstances as a whole, I have concluded that the first defender’s motion should be refused. The pursuer’s motion to remit the action to Chapter 36A OCR will be granted.”