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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Toner v. McLeod [2006] ScotCS CSOH_96 (22 June 2006) URL: https://www.bailii.org/scot/cases/ScotCS/2006/CSOH_96.html Cite as: [2006] ScotCS CSOH_96, [2006] CSOH 96 |
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OUTER HOUSE, COURT OF SESSION [2006] CSOH 96 |
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A2096/02 |
SUPPLEMENTARY OPINION OF LADY PATON in the cause MAUREEN TONER Pursuer; against JOHN M McLEOD Defender: ________________ |
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
"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.
[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.
[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.