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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 96
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A2096/02
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SUPPLEMENTARY OPINION
OF LADY PATON
in the cause
MAUREEN TONER
Pursuer;
against
JOHN M McLEOD
Defender:
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Pursuer: Springham, Advocate; Digby Brown
SSC
Defender:
Gilmore, Advocate; Shepherd & Wedderburn
22 June 2006
Proof or jury
trial: professional negligence
[1] Following
my earlier opinion issued on 8 February 2006, the pursuer amended the
Closed Record by inserting in Article 3 of Condescendence at page 7D-E, after
the word "treatment", the following:
"No ordinarily competent
dentist if exercising reasonable skill and care would have failed to give the aforementioned
advice, explanation and instruction to the pursuer, and take the aforementioned
steps."
The amendment was not opposed.
Liability and contributory negligence
[2] Both
counsel acknowledged that the fact that a case involves issues of professional
negligence will not per se render it unsuitable for jury trial. Indeed a leading authority on professional
negligence, Hunter v Hanley,
1955 SC 200, involved a jury trial.
[3] In
this particular case, I have not been persuaded that the question of liability
is too complex or difficult for a jury.
A jury will be well able to assess issues of fact, such as the diagnosis
made by the defender in 1991 and 1995, and the information and advice given to
the pursuer on those occasions. Expert
evidence relating to standards of proper professional care on such occasions
would not, in my view, be too complex for the jury. If at any stage there is competing evidence,
the jury will be able to decide which evidence they prefer. Thereafter, depending upon what facts they
find proved, the jury (guided by such expert evidence as they accept, and by
appropriate directions from the judge) will be able to assess whether what
occurred on those occasions amounted to acts or omissions which no ordinarily
competent dentist acting with reasonable skill and care would have done or
omitted to do.
[4] Turning
to the averments of contributory negligence on the part of the pursuer, while I
accept that it is rare to find an allegation of contributory negligence against
a patient in the context of medical or dental treatment, I am not persuaded
that the matter is too complex or difficult for a jury. Again, the jury will be able to assess issues
of fact, such as the pattern of the pursuer's visits to the dental practice; her
standard of oral hygiene at relevant times; and whether and to what extent she
complied with any advice or instructions given by the defender. Thereafter the jury,
guided inter alia
by such expert evidence as they accept and by appropriate directions from the
judge, will be able to assess whether, and if so, to what extent, the pursuer
failed to take reasonable care for her own dental health.
Decision
[5] For
the reasons given in this opinion and my earlier opinion, I am not satisfied
that the matters outlined by counsel for the defender, taken individually or
cumulatively, amount to special cause such that the case should be withheld
from a jury. I shall therefore grant the
pursuer's motion and allow issues. I
reserve all questions of expenses to enable parties to address me on that
matter.
