Widow sues health board for damages following death of care home resident husband

The judge rejected the health board’s argument that the case should be dismissed as “irrelevant” and held that the widow was entitled to a proof before answer.

Judge Gordon Reid QC heard that after sundry procedure under chapter 43 of the Rules of Court, the personal injury action by Catherine Watson against Greater Glasgow Health Board arising out of the death of her husband Alan Watson was appointed to proceed as an ordinary action under chapter 42A.

At a debate on the defender’s first plea-in-law on relevancy, Mrs Watson claimed that the defenders and its staff failed in their duty of care to properly to look after Mr Watson.

The pursuer’s case was that Mr Watson, who was a long-term resident in a care home owned and operated by the health board, had a history of “unexplained falls” culminating in about January/February 2012 in which he fell at the home and suffered rib fractures, which led to him developing pneumonia from which he subsequently died.

Mrs Watson averred that there was a “systemic failure of care”, absence of adequate training and no adequate care plan, which should have stipulated that Mr Watson should have been under “constant observation”.

She argued that he should have been closely monitored to such an extent that, had he stumbled, he would have been prevented from falling and injuring himself.

However, counsel for the defender highlighted alleged deficiencies said to be so extensive that it rendered the whole case irrelevant for want of specification.

It was argued that the pursuer’s averments as to the need for constant observations lacked specification and were therefore irrelevant, and that the pursuer failed to adequately aver a “causal link” between the lack of constant observations and injury.

It was submitted that there was no such duty owed by the health board, the care home manager or the senior charge nurse, and that in any event the facts averred by the pursuer “did not justify the imposition of such a high standard duty of care”.

But counsel for the pursuer submitted that the averments were “sufficient” to justify proof, which had been provisionally been fixed for a date next year.

She recognised that the case had its difficulties, but these were matters for proof not matters of relevancy, as while risk could never be entirely eliminated, “inferences of fault” could be drawn.

It was submitted that the case had been pled “as clearly as it could be” and was “supported by expert evidence”, which would be adduced in written and spoken form at the proof.

In a written opinion, Judge J Gordon Reid QC said: “To have an action dismissed as irrelevant (whether for want of specification or otherwise), a defender must satisfy the court that even if the pursuer proves all his averments, his action must necessarily fail.

“As a corollary of that, a pursuer need only satisfy the court that he may succeed if he proves all his averments. He need not show that he is bound to succeed if he proves all his averments.

“The approach I take in this case is to consider whether the pursuer has averred the bare bones of a case and given fair notice of it in her pleadings to the defender.

“Within that question I have considered whether such a case with such notice is bound to fail if proved, or whether such a case with such notice may succeed if proved.

“Overall, I consider that the pursuer has averred more than the bare bones of a case and given fair notice of it.

“The defender demands too high a standard of pleading in a case of this nature, even acknowledging that very significant allegations are made, which the defender takes extremely seriously and vigorously denies any liability.”

The judge added that while it may be that the pursuer sought to impose duties on the health board which set far too high a standard of care, and that her prospects of success may be poor, he preferred to take a “broader approach” than that argued by the defenders.

Judge Reid explained: “At heart, this is a personal injuries action.

“I cannot determine at this stage whether the particularisation of the duty of reasonable care which lies at the crux of this case is irrelevant because it sets too high a standard. That issue can only be resolved by way of proof before answer.

“The weighing of the facts for or against negligence often present a delicate task to the tribunal charged with applying law. This is such a case. I therefore cannot say that this pursuer has no case.”