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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 34
A448/16
Lord Justice Clerk
Lord Turnbull
Lady Wise
OPINION OF THE COURT
delivered by LORD TURNBULL
in the reclaiming motion
by
CAR
Pursuer
against
(1) MUFTAH SALEM ELJAMEL
First Defender and Reclaimer
and
(2) NHS TAYSIDE
Second Defenders and Respondents
First Defender and Reclaimer: Primrose QC, Watts; MDDUS
Second Defenders and Respondents: MacNeill QC, Dundas; NHS Scotland Central Legal Office
12 August 2022
Introduction
[1]
This reclaiming motion (appeal) arises out of an action for medical negligence
brought against Muftah Salem Eljamel (the first defender), a Consultant Neurosurgeon, and
NHS Tayside (the second defenders). Mr Eljamel was employed by the second defenders at
2
Ninewells Hospital Dundee and also had practising privileges at the BMI Fernbrae Hospital,
Dundee, which provided private medical care.
[2]
The action was settled by joint minute in which the first and second defenders
agreed that they were jointly and severally liable to make reparation to the pursuer in the
sum of £2,810,118, subject to any apportionment as between them as determined by the
court. By interlocutor dated 21 December 2021 the Lord Ordinary's decision on the
application of section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940
was that a just apportionment of damages was 100% contribution by the first defender and
0% contribution by the second defenders. The first defender seeks to challenge that decision
on apportionment in this appeal. The pursuer plays no part in this appeal, which is between
the two defenders.
The agreed facts
[3]
The relevant facts upon which the Lord Ordinary was invited to exercise his power
under the 1940 Act were agreed by joint minute. They can be summarised quite shortly. On
4 February 2013 the pursuer attended at the Accident and Emergency department of
Ninewells Hospital with complaints which suggested nerve root compression, or other
neurological condition. She was reviewed by a neurosurgery advanced nurse practitioner
who considered that she required to be admitted to the neurosurgery department. Having
discussed matters with the first defender, who was the relevant consultant, the nurse was
instructed not to admit the pursuer. Instead, it was arranged for the pursuer to undergo an
outpatient MRI scan and she was discharged to the care of her GP.
[4]
An MRI scan was undertaken at Ninewells Hospital on 20 February 2013 which
showed that the pursuer was suffering from a left paracentral disc protrusion between
3
lumbar discs 3 and 4 and facet joint hypertrophy which resulted in severe central canal and
left lateral stenosis. In addition, between lumbar discs 4 and 5, the scan disclosed the
presence of a very large central disc prolapse compressing the thecal sack causing severe
central canal stenosis. The radiographer performing the scan noted that it appeared the
pursuer had clinical cauda equina syndrome ("CES"). No further action was taken on this
report.
[5]
On 1 March the pursuer's GP became aware of the scan results and, at the pursuer's
request, referred her for private medical treatment at the BMI Fernbrae Hospital where she
came under the care of the first defender. On 16 April 2013 the pursuer underwent a lumbar
microdiscectomy
operation performed by the first defender. That operation was performed
negligently and, as a result, the pursuer suffered nerve root damage, all to the extent
specified in the joint minute.
[6]
Post-operatively the pursuer's condition deteriorated and the first defender
negligently failed to organise an emergency MRI scan and emergency revision surgery. On
19 April 2013 the pursuer was discharged from the BMI Fernbrae Hospital by the first
defender and told to attend at Ninewells Hospital in order to have an MRI scan performed.
A number of conclusions associated with these facts were agreed:
In light of the pursuer's presentation at Ninewells Hospital on 4 February 2013 an
MRI scan ought to have been arranged as a matter of urgency and undertaken within
48 hours.
Had this occurred the pursuer would have undergone spinal decompression surgery
at Ninewells Hospital no later than 7 February 2013.
An MRI scan undertaken within 24 hours of her presentation would have shown the
same results as those shown on the scan taken on 20 February 2013.
4
The pursuer's neurological condition remained stable between 4 February 2013 and
16 April 2013.
Had revision surgery taken place on 16 April 2013 any immediate damage exhibited
after surgery would not have improved but the pursuer would now have less
bladder and bowel dysfunction than currently although it would not be completely
normal.
By 19 April 2013 when she presented at Ninewells Hospital in order to undergo an
MRI scan the pursuer's condition was irreversible.
Had spinal decompression surgery been undertaken by a neurosurgeon of ordinary
competence, exercising reasonable skill and care, either by 7 February 2013 or on
16 April 2013, the outcome would have been the same. As a result of competent
surgical intervention on either date the pursuer's radicular pain would have
improved; bladder and bowel function would have been normal; there would have
been some impairment of perianal sensation in the long term with reduced sexual
sensation; motor power would have been normal; there would be no lower limb
cramp; there would be normal balance; and there would have been long-term
reduced sensation in the S1 dermatomes and the right S2 dermatome, albeit of no
functional significance. The pursuer would not have suffered complete CES.
As a result of the negligently performed operation on 16 April 2013 post-operatively
the pursuer developed complete CES and all of her new neurological deficits
occurred during and after that operation.
The Lord Ordinary's decision
[7]
The Lord Ordinary heard competing submissions during the course of which
5
reference was made to authorities including: Wright v Cambridge Medical Group
McEwan v Lothian Buses Plc 2006 SCLR 592 and Re-Source America International Ltd v Platt Site
reasoning and decision at paragraphs [41] to [46] of his opinion.
[8]
The Lord Ordinary concluded that the moral blameworthiness and causative potency
of the negligence for which the second defenders were responsible was vastly outweighed
by that of which the first defender was responsible. In arriving at this view he rejected the
first defender's submission that there was a similarity between the circumstances of the
present case and those in the case of Widdowson. He accepted the submission for the second
defenders that the negligence for which they were responsible did not cause any significant
harm to the pursuer and did not cause her any neurological deterioration. At most it might
have resulted in her experiencing pain for an additional two weeks and it did not contribute
to the damage for which reparation was sought, CES having developed only after the
operation negligently performed by the first defender. Accordingly, he accepted the
submission that the causative potency of the negligence of which the second defenders were
responsible was nil.
Submissions for the first defender and reclaimer
[9]
Senior counsel for the first defender sought to challenge the Lord Ordinary's decision
on the basis of six propositions.
6
Error in interpreting the joint minute
[10]
It was submitted that the Lord Ordinary was wrong in concluding that CES
developed only after and as a result of the first defender's negligence and not as a direct
consequence of the failure to arrange an urgent MRI scan. In reaching this conclusion he
had failed to take account of the implication that the pursuer was already suffering from
CES by 4 February 2013 which, it was said, was confirmed by the scan which was performed
on 20 February 2013. The Lord Ordinary failed to give adequate weight to the fact that there
was an earlier opportunity to perform an operation which, as was agreed, would have led to
a significant improvement in the pursuer's condition.
Widdowson's Executrix v Liberty Insurance Ltd
[11]
It was contended that the Lord Ordinary erred in rejecting the submission that the
circumstances of the case of Widdowson were comparable with the present case and went to
support the first defender's contention as to the appropriate level of apportionment. Each of
the two health boards in the case of Widdowson had an opportunity to interrupt the fatal
consequences for the pursuer of the serious abdominal and bowel injuries which he
sustained in a road traffic accident. Through their negligent treatment each failed to do so
and each was held liable to a 15% apportionment of the damages awarded.
[12]
In his analysis the Lord Ordinary ignored the fact that but for the negligence of the
second defenders in the present case the negligently carried out operation would never have
happened. By comparison with Widdowson, the second defenders in the present case were
presented with an opportunity to identify and treat the condition which the pursuer was
suffering from and had they done so her condition would have been alleviated. It was
therefore wrong to say that the second defenders' negligence was of insubstantial causal
significance.
7
Causative potency
[13]
It was contended that the Lord Ordinary erred in concluding that the causative
potency of the negligence of which the second defenders were responsible was nil. Because
of the second defenders' negligence the pursuer underwent the subsequent operation. The
second defenders should bear some responsibility for what happened. Support was sought
for this proposition from the cases of Rahman v Arearose Ltd [2001] QB 351, Webb v Barclays
Medical Group.
Moral responsibility
[14]
It was contended that the Lord Ordinary provided no reasoning to explain why he
thought the moral blameworthiness of the first defender was so much worse than that of the
second defenders. When the pursuer presented at Ninewells Hospital on 4 February 2013 it
was recognised that her condition merited discussion with the neurosurgery department.
The experienced advanced nurse practitioner in that department carried out a full
examination and wished to admit the pursuer. Without performing an examination, the first
defender concluded that the pursuer did not have CES and that she was not a case for
urgent admission. An urgent scan was not arranged nor any follow-up organised.
[15]
These constituted significant acts of moral blameworthiness, including on the part of
the first defender for whose conduct at that stage the second defenders were responsible.
There was a lack of care and a failure to examine despite the concerns of a senior member of
staff. In these circumstances there had not been an adequate exercise of weigh ing up the
conduct for which the two defenders were responsible, nor any explanation of the
conclusion reached.
8
The period between 7 February and 16 April 2013
[16]
As was agreed, but for the second defenders' negligence the pursuer would have had
an operation by 7 February 2013. Her condition between that date and 16 April 2013 was
attributable to the actings of the second defenders and was not something which the first
defender could be held liable for. The Lord Ordinary should have at least made an award to
reflect the extent to which the pursuer continued to suffer pain and discomfort throughout
that period.
Apportionment
[17]
The correct level of apportionment which should have been arrived at by the Lord
Ordinary was 50% as between each defender.
Submissions for the second defenders and respondents
[18]
Senior counsel for the second defenders submitted that the challenge to the
Lord Ordinary's decision was based on a fundamental mistake. This proposition became
clear when the first paragraph of the note of argument lodged on behalf of the first
defenders was considered. The question there framed was whether the Lord Ordinary was
correct to treat the negligence of the second defenders as "of no causal importance and the
second defenders as not blameworthy". Here lay the mistake in the analysis for the first
defender. The issue for the Lord Ordinary was not causal connection; that had been
admitted. What the Lord Ordinary was required to undertake was a comparative exercise
comparing the blameworthiness and the causal potency of the respective defenders. It was
an incorrect reflection of his decision to say that he treated the negligence of the second
defenders as of no causal importance or blameworthiness. He correctly compared the two
and came to a decision that he was entitled to reach.
9
[19]
The Lord Ordinary had not misunderstood the joint minute. The pursuer presented
on 4 February 2013 with a condition which required treatment and which was described
(after the 20 February 2013 scan) as having the appearance of CES. The second defenders
were not responsible for her condition at the date of presentation and it was agreed in the
joint minute that she developed complete CES after the operation performed by the first
defender.
[20]
Counsel submitted that the authorities relied upon by the first defender were of no
assistance as they were concerned with issues of causation rather than apportionment , or
were otherwise distinguishable. In the present case the second defenders took appropriate
action in arranging for an MRI scan. Their negligence was in failing to prioritise that. This
negligence did not make the pursuer any more vulnerable to the subsequent negligently
performed operation. Her condition remained stable until the time of the operation. In
these circumstances the task for the Lord Ordinary was to compare the respective negligence
of the two defenders. In this exercise causative responsibility, or causative potency, was
likely to be carry more weight than moral blameworthiness Brian Warwicker Partnership Plc
v HOK International Ltd per Arden LJ at para 42.
[21]
The comparative negligence was, on the one hand, a failure to prioritise the carrying
out of a scan and, on the other hand, the negligent infliction of harm during the cour se of an
operation followed up by a failure to carry out further investigations and revision surgery.
Viewed from this perspective, counsel submitted, it was plain that the Lord Ordinary had
been correct to conclude that the moral blameworthiness and causative potency of the
negligence for which the second defenders were responsible was vastly outweighed by that
for which the first defender was responsible. He was also correct to decline to apportion a
level of damages to reflect the period between 7 February and 20 February 2013 since an
10
award of damages for ongoing pain and discomfort in this period would be of such a small
percentage of the agreed award of £2.8 million as to be inappropriate. That was the correct
period to consider as thereafter the pursuer was in the care of private health providers and
no explanation had been provided for the apparent delay in operating prior to 16 April 2013.
Discussion
[22]
The decision brought under challenge in this reclaiming motion was made in
exercise of the discretionary power granted to the Lord Ordinary by the terms of section 3(1)
of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, which provides:
"where in any action of damages in respect of loss or damage arising from any
wrongful acts or negligent acts or omissions two or more persons are, in pursuance
of the verdict of a jury or the judgment of a court found jointly and severally liable in
damages or expenses, they shall be liable inter se to contribute to such damages or
expenses in such proportions as the jury or the court, as the case may be, may deem
just ..."
[23]
For the purposes of determining the appeal parties helpfully set out a number of
agreed propositions in a joint minute as follows:
i
In matters of apportionment, an appellate court should not undertake to alter the
proportions fixed by the judge who tried the case save in exceptional circumstances.
See: Owners of the "Boy Andrew" v Owners of the "St Rognvald" 1947 SC (HL) 70 at 78
per Viscount Simonds.
ii
An appeal court will not readily upset the assessment of apportionment by a trial
judge unless there has been some error in law or fact. The nature of the error has to
be such that it can be said that the Lord Ordinary has manifestly and to a substantial
degree gone wrong. See: McCusker v Saveheat Cavity Wall Insulation Ltd 1987 SLT 24
per the Lord Justice Clerk (Ross) at page 29, Lord Robertson at pages 3132 and
Lord Dunpark at page 34.
11
iii
It is not enough that the appellate court looking at the matter anew considers that it
might have come to a different decision on the evidence than that which the Lord
Ordinary reached. It is only when the judge has been plainly wrong, that an
appellate court is entitled to interfere with the exercise of discretion made at first
instance. See: G v G (Minors: Custody Appeal) [1985] 1 WLR 647 per Lord Fraser of
Tullybelton at p651652.
iv
When determining the apportionment of damages between joint wrongdoers, the
court requires to consider the degree of each party's fault together with the degree to
which it contributed to the damage in question. In so doing, the court requires to
consider the seriousness or moral blameworthiness of the respective faults and their
causative relevance or potency. See: Downs v Chappell (supra) at p.445H per
Hobhouse LJ and Widdowson's Executrix v Liberty Insurance Ltd (supra) at 552 per
Lady Wise.
[24]
The question for this court is therefore whether the Lord Ordinary has made an error
in law or in fact such that it may be said that he has manifestly and to a substantial degree
gone wrong.
[25]
The first issue to be addressed is whether he erred in interpreting the terms of the
joint minute presented to him. At paragraph [42] of his opinion the Lord Ordinary stated:
"... The negligence of which they (the second defenders) were responsible was part
of the sequence of events leading up to the serious negligence of the first defender
which caused the nerve root injury. All new neurological deficits appeared after the
operation carried out by the first defender on 16 April 2013: there was no major
neurological deterioration before then. ..."
[26]
In so holding he correctly reflected the terms of that joint minute. He went on at
paragraph [45] of his opinion to note that the pursuer's CES only developed after and as a
result of the first defender's negligence, not as a direct consequence of the failure to arrange
12
an urgent MRI scan. In this passage of his opinion it is clear that the Lord Ordinary had in
mind the terms of the joint minute which set out that the complainer suffered complete CES
as a consequence of the manner in which surgery was undertaken. The conclusion which he
sets out in this paragraph also correctly reflected the terms of the joint minute. We do not
consider that he can be said to have made any error of fact or law in interpreting that
document.
[27]
Nor do we consider that the Lord Ordinary can be said to have erred in his analysis
or interpretation of any of the various authorities to which his attention was drawn. As
counsel for the second defenders correctly observed, the case of Wright v Cambridge Medical
Group was concerned with causation rather than apportionment. Each of the cases of Rahman
v Arearose Ltd and Webb v Barclays Bank and Portsmouth Hospitals NHS Trust concerned
circumstances in which one defender was responsible for significant injuries caused to a
claimant which were then compounded by subsequent negligently performed medical
treatment. The crucial distinguishing points in the present case are that the second
defenders were not responsible for the condition in which the pursuer presented at
Ninewells Hospital on 4 February 2013 and that condition did not deteriorate between then
and the date of her operation. Or to put it as counsel for the second defenders did, the
negligence of the second defenders did not make the pursuer any more vulnerable to the
negligence of the first defender. The damages awarded to the pursuer were all in respect of
the CES that she suffered as a consequence of the negligently performed operation.
[28]
The pursuer's circumstances were also quite different from those which were present
in the case of Widdowson's Executrix v Liberty Insurance Ltd, where the negligent health
boards were presented with opportunities to interrupt the fatal consequences of the injury
13
which that pursuer had already suffered in the road traffic accident and failed to do so. Had
they done so the pursuer would not have died from his injuries.
[29]
In the present case the correct approach for the Lord Ordinary to follow was to
consider the comparative blameworthiness of the respective conduct on the part of each of
the two defenders and to consider the respective causative potency of their negligence
Downs v Chappell. As Arden LJ explained in the case of Brian Warwicker Partnership Plc v
HOK International Ltd at paragraph 42, when considering the question of apportionment
under the relevant English statute, causative responsibility is likely to be the most important
factor in the assessment of contribution. The same emphasis can be seen in the judgment of
Laws LJ (with whom the other judges agreed) in the case of Rahman v Arearose Ltd where at
paragraph 33 he stated:
"So in all these cases the real question is, what is the damage for which the defendant
under consideration should be held responsible ..."
[30]
This reflects the approach which the Lord Ordinary took. Whilst he may not have
explained in any detail why he considered the moral blameworthiness of the negligence for
which the first defender was responsible to be far greater than that of the second defenders,
the reasoning is perhaps obvious. More importantly though, his analysis of the causative
responsibility for the pursuer's injuries cannot be faulted. He was correct to conclude that
the negligence of the second defenders did not cause any significant harm to the pursuer
and that accordingly "the causative potency in relation to the neurological harm suffered
was nil" (paragraph [42] of his opinion). The Lord Ordinary concluded that it would be
unjust to find the second defenders liable to contribute to the damages for the CES which the
pursuer suffered. In arriving at that conclusion he addressed himself correctly to the test set
out in section 3(1) of the 1940 Act and arrived at a decision which is beyond criticism.
14
Decision
[31]
For the reasons given the reclaiming motion is refused.
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