McEwan v Ayrshire & Arran Acute Hospitals NHS Trust [2009] ScotCS CSOH

"Procedure. The old midline scar was excised and deepened through the anterior abdominal wall. He had dense adhesions in the under surface of the abdomen to the small bowel and these were gently mobilised using sharp dissection. The wound was extended and the site of obstruction seemed to arise in the ileum 1.5 feet from the ileo-caecal valve."

That was simply to show the location of the problem. It went on:

"There was a tight band adhesion here. This was divided and released. Beyond this the bowel was completely collapsed. The small bowel contents were milked into the stomach and the wound was closed with two looped nylon and subuticular Dexon to skin."

There was no reference as to whether the tissue was viable or not because that was self evident. If it was not viable he would not have left it and just sewn up. He was asked why he did not say it was packed up but in answer he said that he thought it was viable. The use of a warm pack was a normal event. It was used partly to stop hypothermia and it possibly had some therapeutic effect in that heat might assist in speeding up the process, although he did not know of any studies comparing warm and cold packs.

[26] The bowel was looking damaged but it was not ischaemic. Ischaemia had a characteristic look to it and the bowel did not have it. It looked bruised but it pinked up.

[27] He did not consider putting that into the notes. He could not say that he never did it although he did do it since he had found himself in this position. If he had written down what had happened he would not be in the witness box. He then went on to say "I was sure that I had done the right thing and I hadn't." He said he was not particularly proud of it.

[28] He did not have the records of his previous operation to say what he noted as a matter of routine and what he did not. His reference to doing the right thing was, he said, based on subsequent events. Mr McEwan was operated on as an emergency two days later and the bowel at the point of constriction was dead. He had made a decision at the first operation that it was viable and he had left it alone.

[29] He was sure it was viable and agreed with Mr Armstrong who suggested that he "knew" it was. He was asked whether he always said that he inspected the tissue four times and he said that he was almost certain he had never said that. He was certain that he had said that he always checked the small bowel before he closed up and he was referred to his previous evidence. He agreed that there were four checks but he had no idea if the number four appeared anywhere in what he had said. He must have looked at the area when he milked the small bowel.

[30] He remembered the operation fairly clearly. He had been trying to take care of the man and he had almost died. He was asked whether he had ever said that only three checks had been carried out and said he did not know. At that point he was referred to the defences, number 8 of process, and to answer 6 thereof. That contains,, inter alia, the following averments:

"During the said surgical procedure Mr Kingsmore examined the whole of the pursuer's bowel checking each section. He checked the front and back of the bowel twice in accordance with his usual practice hereafter returning to check the point of the bowel where obstruction had been identified for a third time."

He said that that was directly related to an expert report which falsely indicated that there was a bowel perforation but I did not quite understand that answer. He agreed that the only person who could have supplied the information in answer 6 was himself and he was asked again whether he checked the bowel three times. In relation to numbers he said that they were not instructions for an air fix kit.

[31] He was then referred to the closed record at page 9A-D where the following is said in answer 4:

"The small bowel at the site of the adhesion was bruised. After release the area 'pinked up' and there was good capillary flow to the area. In the course of the procedure Mr Kingsmore undertook two checks of the whole bowel. He then returned to the area where the adhesion had been and checked that area again. He again returned and checked the said area after milking the contents of the small bowel into the stomach and before closing the surgical wounds. The status and viability of the affected area was therefore checked by Mr Kingsmore four times."

[32] He said that at least four checks were made. The first was when the tissue was released, check two was when it was seen to be pinking up and then there were two checks at the end. He agreed that the answers in the Closed Record might tend to indicate that there were six checks.

[33] He then reiterated the steps he took and said that numbers in relation to checks were completely artificial. Checks were an integral part of the whole procedure. He remembered the operation clearly.

[34] However, there were some things he did remember and other things he did not. For example, he did not remember milking the content of the small bowel into the stomach. He remembered clearly dividing the band and checking whether the tissue was viable because of what happened two days later. There was hardly a day went by when he did not think about the purser.

[35] He was asked how often he looked at the tissue to see if it had pinked up and he said that he could not be certain about the number of times. He looked at the area when he first released it, did so again when he was reviewing it and must have done so when he milked the contents of the small bowel. He also saw it twice when he checked at the end. All this was normal practice. He would, however, have looked at the area several times during the course of the whole operation. The checks "were not really a separate part of the process."

[36] The witness agreed that it was in the patient's interests to confirm that the tissue underlying the adhesion was fully viable before the operation was ended and that something would have to be done if it was not fully viable. If after a period of time it did not appear that the tissue was going to revive then the area would be resected and the two ends joined together. If the dead segment was left there were likely to be consequences specifically in connection with the leakage of bowel content into the peritoneal cavity. There would be loss of physical integrity and the patient would suffer from peritonitis and other problems such as sepsis. Organs could be compromised due to septicaemia. The surgery was a straightforward procedure and the checks were concerned were a basic feature which were intrinsic to it. Mr Armstrong suggested that in carrying out the operations he failed to identify that the tissue under the adhesions was not fully viable and he denied that. He said that he did not fail to check but his decision was quite clearly wrong. His technical skill was adequate and he made a judgment on the viability of the tissue which was wrong.

[37] He denied that he had not properly examined it. It was suggested that if he had properly examined it that would have appeared in the note but he said that he did not record that specifically because it was intrinsic to the operation. Many aspects of the procedure were not recorded. He would not record that he checked it and did not find it viable since that would make no sense. He should have written it down for defensive purposes. He agreed that in operations where the viability of tissue was relevant it would be appropriate to note that there was an examination of it and what its state was. He said that in 5% of operations where the bowel was resected there was leakage.

[38] He regretted not writing down what he had done. He agreed that it was a good idea to note the fact of the examination and it would have been a good idea on 23 April 2002.

[39] He was referred to the GP records number 6/2 and to page 96 thereof. Those related to the 1994 operation and at page 97 there was a reference to examination of the tissue and to its looking healthy. He agreed that that was an example of confirmation of an examination and that the state of the tissue was an inherent part of the operation just as it had been in 2002. He was asked why it was appropriate for another surgeon to note that in 1994 but he thought there was no need to do so in 2002. The suggestion was made by Mr Armstrong that there was no record of the examination because it had not been done. Mr Kingsmore said that the operation note in 1994 was a legal document because the need for the operation arose from a car accident and a court appearance might ensue so more information had been noted. He had not regarded the document in this case as a legal defence.

[40] In the second place, the operation in 1994 was a more invasive procedure with a higher risk of complications and the doctor had to justify why he had put the patient at that higher risk. There was a greater onus to mention the examination in the record.

[41] He disagreed with a suggestion that he had not carried out the checks. He likened the operation to taking a car for a MOT. Part of that was to make sure that the rear left tyre was not flat. One would see the tyre around forty times but one would not note that it had been checked forty times. He had manipulated the area and effectively had walked round the car forty times during the operation. He saw it many times during the operation and during this security check at the end of it.

[42] He presumed that the first operation had been in connection with a car crash but when it was put to him that it resulted from a football injury he said that the same procedures would apply because people could be sued for injury on a football pitch. I found this answer to be highly unconvincing.

[43] He was then asked about Mr McGregor's role in the equation. He said that he came in at the end of the operation to see if he was getting on alright. The patient was still under general anaesthetic and he was closing the abdominal wound to his best recollection. He did not note down when Mr McGregor came in and did not recall precisely what part of the abdomen he was closing.

[44] He was referred to 6/7 of process at page 95 and was asked how much time Mr McGregor spent with him. He said that he was not focusing on that because he was performing the operation. Mr McGregor spoke to him when he was doing it. He came into theatre and he saw him. At some stage he came into his field of view and asked him whether everything was alright or something like that. He did not recall if he turned round to see him and did not remember his exact words. In reply he would have said something to the effect that everything was alright and that Mr McEwan had had some adhesions getting into the abdominal cavity. It was of no significance that Mr McGregor's name was not on the note. He was a supervising consultant and that would not be expected. People would have known that he was a supervising consultant because he was the consultant in charge.

[45] He had spoken to Mr McGregor about the operation beforehand. He did not recall the exact words which were used.

[46] He agreed that things did not go well after the first operation and that a second one was needed. The operative note of that is to be found at page 94. The operation commenced at 1845 and finished at 2040 hours, according to the anaesthetic record at page 90.

[47] Mr McGregor's name did appear on that note but he was more involved. The witness himself was scrubbed up on the other side of the patient and the operation was performed by both of them. The witness was aware of what Mr McGregor did in theatre and participated fully himself in the operation. He said that he kept thinking that Mr Armstrong was trying to trick him and in general that was in keeping with his whole approach to the evidence which appeared to me to be somewhat defensive.

[48] A piece of bowel was resected because the section of bowel was dead in a diameter of a few millimetres. On delivering the small bowel to the surface it tore in the hands showing that its structural integrity was compromised. The two millimetre band was dead. He did not remember discussing before the operation what was to happen with Mr McGregor. There would have been some discussion about the previous operation before it. Specifically Mr McGregor wanted to know exactly what he had done to determine why Mr McEwan had his complaint. Whoever said what, the segment of tissue which had been discussed in evidence would be investigated in the course of the second operation. That was because there was a man who was critically ill and if there was an ongoing problem with the abdomen that was not treated he would not recover.

[49] He was then referred to page 54, a note of what happened in theatre but said that that was Mr McGregor's and he was not involved in the content of the note. Similarly Mr McGregor compiled the operation note at page 94.

[50] The piece of bowel which was resected was the same piece of bowel that underlay the adhesion. It was sent to histopathology and a report of that can be found at page 272. In particular the microscopy report said the following:

"Sections from the point of constriction described above show transmural necrosis with extensive necrosal ulceration. Sections from the vicinity of this area show similarly severe ischaemic changes without full thickness necrosis. The changes diminish in severity away from the central area and as one approaches the section margins, they are modest with simple submucosal oedema. There is quite marked serosal inflammation of the section margins but this is generalised throughout the specimen."

He said that transmural meant full thickness so that the piece of bowel under consideration was completely dead through its full thickness at that point.

[51] Notwithstanding that, he still adhered to his denial of the suggested failure to check the bowel. He was asked whether he was saying that the bowel was fully viable when he completed the operation and he said that he checked the area and it appeared viable to him.

[52] In cross-examination, Mr Stephenson first of all embarked on a general exercise to explain the anatomy of the area but I need not go into that in full. Peristalsis ran the length of the small bowel and squeezed material into the back passage. That could be seen if it was working and the abdomen was open and it could also be stimulated by flicking. The small bowel itself had a structure of three different tissues from the inside. There was a soft velvety layer known as the mucosa, then a muscular layer which gave rise to the contractions and then a superficial layer or serosa on top of that. If the abdomen was opened one would see the superficial layer and if it was healthy it would be pink with a shiny or glistening appearance. It had a visible blood supply. Within the mesentery there were blood vessels and these exited into the wall of the bowel and provided it with blood. Blood vessels could be seen both in the mesentery and in the small bowel. They were very small on the surface of the bowel and indeed were capillary vessels. Ischaemia was a general term which meant there was no blood supply and it was implicit in that that there was no oxygen. All tissues needed blood and oxygen and if the blood supply was reduced the tissue could be described as ischaemic. There did not have to be a complete lack of blood supply for there to be ischaemia. If the blood supply to a part of the small bowel was reduced then there might be ischaemia and damage. There were degrees of ischaemic damage. The bowel's functioning might be impaired in a particular area because of a lack of blood supply and there might be other areas adjacent to it lengthwise or depth wise which were more resistant to iscahemia. The area of damage depended upon the precise nature and extent of the compromised blood supply. It was not necessarily the case that if there was reduced blood supply there would be full thickness iscahemia. The damage might be short of that and might occur at different levels in the structures in the bowel. The only visible part of the bowel when a laparotomy was done was the serosa. It followed that if there was no visible damage to that then nonetheless there might be other damage within the structure which could not be seen. The witness was asked what the visible signs of ischaemic damage in the serosa would be. To a naked eye there might be a range of colourations from grey/black dead tissue to lighter shades of purple, red, pink or even white. White would only imply that no blood was getting to the area but that would not indicate the recoverability of the area. Where it was grey or black it was dead.

[53] If the area was red or purple that did not give any indication of the ability of the tissue to recover. If there were ischaemic changes in the serosa it would become dull. Of itself that would not suggest that the changes were irretrievable.

[54] Ischaemia might impede peristalsis. The muscle would become flaccid and be unable to contract. He repeated that flicking the bowel could stimulate peristalsis. If it contracted it would indicate that the muscle was working but if not it might indicate that it was dead. If ischaemia resulted in death of the bowel it might perforate.

[55] He was then asked about the contents of the small bowel. In normal circumstances the stomach acidity would destroy most organisms and the small bowel would not normally contain a lot of them. He would not expect to find many bacteria in the contents of the small bowel compared to the large bowel. Bacteria were aerobic or anaerobic, the former needing oxygen to proliferate and survive and the latter doing so without oxygen. Clostridium was an anaerobic bacterium. If bacteria were present in the small bowel they would not normally be expected to escape into the surrounding tissues. The integrity of the bowel wall would stop that from happening. If the bowel became ischaemic the ability to block bacteria was compromised. A hole was not necessary. The bowel could be structurally intact but nonetheless functually incompetent. The process of moving through the bowel was called translocation. The functional barrier to preclude it relied on both the contents of the small bowel, the condition of the small bowel and the integrity of the wall and where there was severe illness or blockage of the bowel both preventative mechanisms might be incapacitated. Ischaemia could permit it but that was not necessary. When the bowel was blocked the stomach and other organs continued to process food down it and that had the affect of distending the wall. The contents stagnated, allowed the conditions for bacteria to proliferate and compromised the ability of the wall to prevent them from getting out. They could escape into the peritoneal cavity and cause infection. There were many blood vessels on the way through the bowel wall and the bacteria could compromise the blood supply and give rise to a systemic infection or septicaemia. Bacteraemia was simply the presence of bacteria in the blood whereas septicaemia was the consequence of that. The body's response to a blockage was to try to relieve it by having ever more bowel activity to try to squeeze the contents past the blockage. If the blockage persisted there was an inflammatory process. The body would send inflammation cells to the area of constriction and there would be an increase in the local blood supply. If there were bacteria in the stagnant zone they might get into the blood supply. The stagnant contents were an ideal environment for anaerobic bacteria so the obstruction might promote their proliferation. There was not likely to be a problem if the bacteria were contained within the small bowel but if clostridia escaped from it they had the potential to cause very serious infection. One of the infections could be clostridium myonecrosis which could give rise to gangrene or synergetic gangrene. That occurred where there was no blood supply and the ischaemic tissues were an ideal circumstance for the proliferation of clostridia which would spread along the muscle plains and tissues producing gases such as CO₂or other gases. There would be local destruction of tissues and severe septicaemic insult and the body would undergo organ failure. Other toxins would also come into play. One of the infections which led to the destruction of tissues was necrotising fasciitis and clostridium myonecrosis was a subset of that. It was a rare condition. He had come across necrotising fasciitis before but not clostridium myonecrosis. The more usual problem with the abdominal cavity when there was a leakage of content into it was peritonitis, which was an inflammation of the lining of the abdominal cavity marked by severe pain in the abdomen. One would not expect clostridium myonecrosis.

[56] There were recognised treatments for peritonitis involving a laparotomy and the abdominal cavity had to be washed out. If the small bowel was compromised the treatment would depend on what the problem was. At some point the surgeon might want to resect, in other words cut out the compromised section and join the two ends of the line together. That was known as anastamosis. It could be done by suturing or staples. Up to two thirds of the small bowel could be cut out. One would have to be confident of being able to carry out the operation and one did not want leakage from the joined ends. It was well recognised, though, that there was a high leakage rate. This was extremely serious involving a lengthy hospital stay, possible peritonitis and a higher death rate. Had a patient been through one operation having a second operation to repair the leak might be as much as his body could stand and resection was not something to be taken lightly.

[57] Doing a resection was something which was to be welcomed while a surgeon was training. There were various levels of technical skill in any skill-based profession and the higher the difficulty the less likely were the opportunities to do the work. An anastomosis was a key component of basic surgical training. It had to be carried out by the surgeon himself because one had to experience it in order to be able to do it.

[58] If there had been an obstruction with a build up of bacteria and the bacteria had proliferated if the bowel was opened up then there could be gross contamination. That was another reason to think twice before resecting.

[59] He was then asked about adhesions. They bound things together and were the result of an inflammatory process. There were very few congenital adhesions and they were almost exclusively the result of a pathological cause. They could be a result of or a reaction to an injury or surgical intervention. They could form in a few weeks and mature over many years but they did not necessarily give rise to problems. They were a common consequence of surgery. On the bowel they prevented the bowel from functioning and could allow it to twist around itself. One did not interfere with them, though unless they were causing problems.

[60] He had not heard of the concept of a loop adhesion. A band adhesion happened where something like a rubber band constricted the bowel although it did not have to go all the way round. The main point was that it was compressing the bowel. One would not need to go straight to surgery to relieve an obstruction in a bowel. The treatment involved dividing the adhesion and in doing so one would create at least two more. The first port of call was conservative management. A naso-gastric tube might be inserted and further blockage would be prevented by disallowing the patient from taking any food. Even if the problem was resolved people tended nonetheless to have recurrences. If it was not resolved then intervention had to be surgical. If the problem were associated with an adhesion that had to be cut through in order to free the bowel wall. It was not an unusual event to have to free adhesions. It was extremely common especially if there had been prior surgery. It was bread and butter work for a general surgeon and was entirely common. It was not technically demanding.

[61] Everything which had been discussed so far was extremely basic.

[62] At this point Mr Stephenson went on to explore with the witness his surgical training. There was a generally recognised approach. That involved watching, then assisting, then doing procedures with an experienced surgeon watching, then seeking advice if needed and then flying solo. That was the approach which the witness took. He said that he would only expect surgeons he trained to be able to undertake such an operation as the one under consideration when he was confident in their ability. He would expect them to be able to do it in the second half of their training during the higher surgical training. Generally after three years he would expect them to be able to divide adhesions.

[63] He was referred to his CV, production 7/1. That was not prepared for this proof. He graduated MB ChB in 1992 and became FRCS in general surgery in 2004 and MD in 2005. His training began before 1993 when he was a pre-registrar house officer. From August 1993-July 1995 he was in the Western Infirmary, his first ward being Accident and Emergency. He did general surgery, neuro surgery, cardiothoracic and orthopaedic surgery as well as conducting laparotomies. His work included dividing adhesions in the small bowel. From 1995-1998 he was a research fellow at the department of surgery in Glasgow and his duties in theatre were reduced. From August 1998-July 1999 he was a senior house officer III in Vascular/General surgery at Gartnavel Hospital. That also involved the same type of operation. From August 1999-August 2000 he was in the gastro-intestinal unit at Gartnavel dealing with the lower gastro-intestinal area and that would also involve the same type of operation. In year one of his higher surgical training from December 1999 to September 2000 he was involved in renal transplantation at the Western Infirmary. That overlapped to some extent with his work at Gartnavel. He had to do laparotomies not for the purposes of transplants as such but in surgery for people with renal problems. That would include dealing with the small bowel. In year two he was at Dumfries & Galloway in general surgery from October 2000 until September 2001 and he was also doing the same type of operation. In year 3 he was at Crosshouse from October 2001 to September 2002 doing general surgery and including this type of operation. That was the period when the operation under scrutiny took place. Since April 2002 he had continued to be involved in laparotomies. Currently he did elective operations on the abdomen and also in emergency cases and worked on people with renal failures and on transplants and generally patients who needed vascular surgery. He regularly carried out operations involving dividing adhesions in the small bowel. Under reference to page 4 he indicated that he was one of twelve general surgical consultants who provided emergency cover in addition to providing the surgical care of patients with renal failure. This entailed a weekly throughput of 90-100 emergency admissions and the urgent review of 20-40 inpatients. One week in twelve he had to deal with all of these. About 5-10% of his work involved laparotomies. He was asked about his particular role in connection with checking the blood supply to the bowel. He said that that could be compromised either over a period of time or over a period of minutes. He was now responsible for restoring the blood supply to the bowel if such was obtainable. Patients would be referred to him or the vascular surgeon on call and the procedure could be either on an emergency or a non-emergency basis. He would be called into ongoing operations from time to time.

[64] Perfusion was the term used to describe how adequately the bowel would be supplied with blood. He had to consider this question in connection with the small bowel. He did not have that special interest back in 2002 but he did now.

[65] Page five dealt inter alia with his operative experience. It indicated that for general surgery he would perform in a year 15-20 laparotomies as emergencies, 20 appendicectomies, 30-50 hernia repairs, 20-30 cholecystectomies and 15 large bowel resections. That was still the case. He did laparotomies for gastro-intestinal complaints as well as other areas of his practice. As well as large bowel resections he did small bowel resections.

[66] At page eight details were given of his memberships of various organisations. He was a level 2 auditor for the Scottish Audit of Surgical Mortality. He explained that if a patient died having been under the care of a surgeon the case notes were summarised and a level 1 auditor would examine them. If there were areas of concern then the full records were sent to a level 2 auditor for consideration. He had been on the Patient Safety Board under the general ambit of the Royal College of Surgeons at Edinburgh. He and several other people interested in patient safety had formed this body to try to unify the approach to improving the quality of care of patients in Scotland. The Clinical Governance Committee of the Western Infirmary was a body which was concerned with the quality of care, especially in the review of incidents in hospitals, and he was a member of that. Pages 9-13 set out his various publications. He had also published on infections in connection with surgery of the bowel in the Lancet and on necrotising fasciitis after surgery and had written articles in connection with patient records.

[67] 7/2 was prepared by him to set out his surgical experience in the context of this case. It dealt broadly with his experience as a special registrar and as a senior house officer grade 3. Most of the document was in connection with elective surgery but on page two the emergency surgery details appeared. He had prepared a summary at the bottom of page two to draw together the types of operation which most closely corresponded with that in the current case. These were colorectal resections, all laparotomies and small bowel obstructions. 7/5 was a computer printout. He had been asked to look at operations with precisely the same name as the one under consideration but that did not make sense. Experience was gained in breadth and in depth and the ability to perform surgery should be gauged both in connection with the breadth of it and in connection with its specifics. It was unrealistic to look in isolation at operations involving division of adhesions and not consider other operations where that work would have been carried out but where the operation was given a different description because of the main procedure which was involved.

[68] He had carried out 41 colorectal resections as a specialist registrar and 17 as an SHO grade 3. These had been supervised. He had performed 27 alone. The figures for all laparotomies were separate from the colorectal resections. He performed 37 as a specialist registrar and 25 as an SHO all under supervision and had performed 26 of these on his own. The reference to small bowel obstructions was simply to those operations which had been for that alone. There were nine of these as a specialist registrar and 17 as an SHO, all supervised, and 6 on his own. All of these operations had taken place before April 2002.

[69] By April 2002 he had sufficient experience and knowledge to do this operation. He had been undertaking such surgery for a period of time and had no qualms in doing it without a consultant being present. He had no doubts about what he was doing and would not have expected a consultant to insist on being present or checking what he had done. It was normal procedure by April 2002 for him to do it on his own without a consultant being present. If he had thought that a resection was required he would have been able to do it in April 2002.

[70] As far as Mr McEwan himself was concerned the witness was the first doctor to see him on 22 April. That was on the ward to which he had been taken following his admission. Reference was made to 6/7 of process. Page 40 was his entry indicating that he saw him at 8.30 pm. His impression was that there might be a perforation to the bowel and the treatment was to be by intravenous fluids, analgesia, blood tests, x-rays and possibly an operation. He was seen thereafter by a junior doctor at 9 pm. Page 41 gave details of blood tests. The haemoglobin test was not unusual. The white blood count was 12.5, which was mildly elevated. An inflammation or infection might be suggested if there was significant elevation. The bilirubin was at 28. That was as a result of the breakdown of haemoglobin and if it was elevated then it indicated jaundice. A count of 28 was only mildly elevated. The CRP or C reactive protein was 11 which was also very mildly elevated. If it was highly elevated such as 300-400 then it would indicate severe illness.

[71] All of these signs tended to be against a diagnosis of perforation. The x-ray report was at page 285 and indicated that he was examined at 1026 on 23 April. Pages 439 to 441 gave indications of the pre-operative investigations. I need not go into these in any great depth but at the end of the day a laparotomy was indicated. The operation itself started at 1400 hours on an emergency basis. There were other elective operations to be carried out that day. He did not remember what theatre he was in but Mr McGregor was next door some twenty feet away and if advice or assistance was required he could easily have obtained it. The operation note would have been typed the next day and the patient was taken to the high dependency unit afterwards. In April 2002 he did not think it necessary to record something if it was not adverse or where what he did record clearly implied that the other matter had been done. Clearly the viability of the small bowel was integral to releasing the band. The fact that the bowel was not resected implied that it was viable in his opinion. In retrospect he wished that he had recorded the inspection because he felt that it was unlikely that he would be here today. For that reason he did now record such matters. The view that the bowel was viable was a judgement. That involved partly a balancing of comparative risks. He had a memory of this operation although he did not remember every operation in 2002. The patient was operated again within two days and he took part in that further operation. A huge amount of tissue had had to be removed and the patient was close to death. That was traumatic for the patient but also traumatic for the surgeon and was not easy to forget. He was asked to describe what he saw when he divided the band and he said that the bowel was tethered down into the pelvis and he could not deliver it. He retracted the bowel to see where the tethering was and found that it was a band. He used scissors to divide the band and allow the bowel to be lifted out of the abdomen. On releasing it there was a single linear mark on the bowel that was dark red in colour. It was a straight line a few millimetres wide. It went most of the way round the bowel. There was no mark where the mesentery attached. There was nothing else apparent on the surface. He did not recall specifically whether the surface had its sheen on releasing the bowel. He then set aside the particular segment from the rest of the bowel to come back to it later, in other words he put it laterally onto the edge of the wound. It was in the way of his vision. He did not check peristalsis at that stage. Then he wrapped it up in a damp cotton swab to keep it from dehydrating and give it time to recover so he could see if it changed in appearance. Then he completed his inspection of the abdominal contents including the rest of the length of the bowel, the stomach, duodenum, liver, gallbladder and large bowel. There was nothing abnormal. He then returned to the area which had been delivered perhaps five to ten minutes later although he did not take note of the time. He then inspected that area to see if it had changed in appearance and he found that the colour had changed from dark to lighter red. The bowel constricted and on the surface he could see small capillaries. He flicked it and there was peristalsis from above the constricted area to below it. The capillaries were round the area of the tissue where there had been an adhesion and he thought that it was viable. He had no doubts about the matter. The next thing he did was to milk the small bowel contents up into the stomach so that it could be aspirated in the naso-gastric tube and then he checked the small bowel along its entire length before closing the abdomen. His check was to see if he had caused any injury and he found none. During the course of that check he saw nothing to change his opinion about its viability. The area affected would have been in full view throughout the operation but he specifically checked it on a number of occasions. Unfortunately necrotising fasciitis set in and a further operation was set up. The note of that was at page 94. There was no perforation in the small bowel initially but a hole developed later when it was handled. The word friable meant that it had lost its structural strength and the tissue was like wet tissue paper.

[72] He agreed with the proposition that that meant that the small bowel wall at the point where the adhesion had been was not viable. He was asked whether he accepted that there must have been a process between the two operations whereby the small bowel became increasingly unviable and he said he was not sure how to answer that. It was clearly not viable at the second operation but he thought it was viable at the first. He then agreed that there must have been some process ongoing. It was likely that it had begun by the time of the first operation.

[73] He was asked if he accepted to that extent his judgment was ultimately proved to be wrong and he said that it was mistaken. He was asked whether given what he had done to check the small bowel his judgement was a reasonable one. He said that that was hard to answer in the light of what had happened. He thought at the time that it was a reasonable decision. He was not sure that he could say that anymore. In his view the appearances were in line with what one would expect to see in a viable piece of bowel. He had no doubt that other surgeons faced with the same picture would have formed the same judgement.

[74] In re-examination he repeated that he would generally be of the view that those he trained were capable of doing such an operation after three years of higher surgical training. He had been slightly junior to that when he had done the operation. The experience which surgeons gained now was around a fifth of what he had done.

[75] Under reference to 7/2 at page 1 he said that Mr McGregor was not supervising. He was performing the surgery on his own but he came in. Mr McEwan was his patient and he wanted to make sure everything was alright. He was not supervising him as such. He was not scrubbed up but he came in at the end when he was cleaning up the wound. He was the supervising consultant but not necessarily overseeing the operation as such. He agreed that the patient was under the overall care of Mr McGregor.

[76] The next witness was Professor Michael Robert Burch Keighley. He was born in 1943 and was the emeritus professor of surgery at Birmingham University. His CV was 6/12 of process although a number of things had changed since it was compiled in October 2006. He had held a number of posts throughout the world and had written a number of articles. He was an FRCS from Edinburgh as well and became professor of surgery at Birmingham 1984 before becoming head of the department of surgery in 1988. He retired from the university in 2004 in order to engage in overseas voluntary work at a teaching hospital in South India. He was now involved largely in private practice. Along with another author he wrote the principal textbook of colorectal surgery used throughout the world. His CV is an extremely impressive one.

[77] In connection with this case he had prepared a report dated 10 May 2008 which was number 6/11 of process. He went through that with Mr Armstrong. Pages 3 and 4 of the report set out a brief history of the pursuer's progress following admission on 22 April till after the second operation. The only relevant past medical history was the previous laparotomy in November 1994. It was noted in the report that at the second operation with which we are concerned there was turbid fluid in the peritoneal cavity and there was an area of ischaemia at the site at which the previous band adhesion had been divided which probably dehisced during mobilisation of the bowel. This meant that it was intact at the start of the operation but then broke down.

[78] Page 6 set out the medical records which he had seen and he had taken the opportunity to examine the pursuer that morning. He had not appreciated previously what the extent of the defect was.

[79] The 1994 operation undoubtedly gave rise to the adhesion which was the subject of the operation on 24 April.

[80] Pages 8 and 9 set out details of the clinical notes before the first operation. The patient was examined at 8.30 pm and the impression was a possible perforation. That appears at page 40 of the medical records, 6/7 of process. There is an earlier entry at 9 pm which is in the records before the entry of 8.30 pm and which notes a three day history of abdominal pain and refers to the 1994 operation. Blood tests are set out on page 41 and these can be seen at page 8 of the report.

[81] As far as these tests were concerned, he said that the white blood cell count of 12.5 was very slightly raised. There was a range between about 6 and 11 for people which could even fluctuate if tests were taken on the same day on the same person. The count indicated that there might have been an infection but not so gross as to suggest peritonitis or at that stage infarction of the bowel. The bilirubin count was also slightly raised and might indicate a relatively unimportant infection.

[82] The operation note at page 95 was set out at page 10 of the report. He said that that was an interesting note. In the first place this was an emergency operation and he found it unusual that the note was typed. Nurses and doctors would want to know what had been happening and this note was typed the following day.

[83] In the second place the surgeon had only described part of what one would expect an operation note to indicate. It indicated that he had gone inside and found lots of adhesions and the wound was extended. It was indicated where the site of obstruction was. All this was very useful. It was also indicated that there was a tight band adhesion. The note then said that this was divided and released. Once it was divided and released one could see the bowel. That really should be described. This was a crucial part of the procedure. If the bowel was normal then that was fine but if there was a tight, straight band across the bowel it was important to describe what was found. There was always a puckering across the bowel at least and there could be more and in this case there must have been more - something that looked like an electric burn across the gut. If the bowel was normal one would expect to see that noted. One would obviously expect to see a note if it was not normal. It was bound to be abnormal anyway because the band had caused the blockage.

[84] There was bound to be something to be seen there and described such as a disparity between the size of the bowel upstream of the adhesion compared with the collapsed state of it beyond. Normally that would be described and then it would be indicated whether the bowel at that point was healthy.

[85] One would expect to see a record of the condition of the bowel. That was absolutely standard practice and was a very important observation. The position was the same in 2002. Doctors were told to record things which were seen in patients and time had not changed that.

[86] He had in his report made certain drawings in the page immediately after page 40. These were rough drawings to show broadly speaking what the position would have been. The top left drawing showed what he would have expected the bowel to have looked like on admission. The line is the adhesion band. He believed that it was quite localised. Above the band the bowel wall was thickened and swollen because of the obstruction. There would be undigested food in it. The obstruction was caused by the band and was made worse by the swelling of the bowel wall and the food present. Unless it settled down it would get worse.

[87] The picture at the top right was what it must have looked like at the first operation. The wall was thicker and more swollen.

[88] The bottom left hand corner shows how it should have looked after the adhesions were divided. The obstructed bowel could be seen and there was a mark which he believed would have been seen, a linear area of doubtful viability which was known to be dead bowel from the subsequent histology. The bottom right hand picture showed what caused the gas gangrene. The bacteria got through the linear mark, into the peritoneal cavity and then into the recent incision in the abdominal wall, causing damage to it.

[89] There would still be a mark there when the abdomen was sewn up. Doctors had to make a judgement, not an easy one, whether the mark represented a bowel with reduced blood supply (ischaemic) which could recover or whether the process of reduced blood supply was irreversible, that is infarction implying necrosis or death of tissue. One could try to work out whether it was ischaemic or infarctic and he described these in the report as careful observations, with the use of warm packing to see if the colour would change. If there was no change in colour after about five minutes of observation then one assumed that it was dead and needed removal. In his opinion that process should have been recorded as having been done. He thought that if it had been done it would have been recorded.

[90] It was standard practice to carry out that process and that was the case in 2002.

[91] Reference was then made to page 10 of the report which dealt with the medical records at pages 42 and 43. This related to the clinical notes from when Mr McEwan came back from theatre and these notes went on until about page 16 of his report. He noted that there was a retrospective entry which complicated matters. He read the entry for 25 April 2002 from his report and made reference to the TPR chart. He said that he would worry about the entry for 25 April. This was a patient who had had a straightforward operation and one would not expect to find bloodstained urine or reduced urine output or tenderness. The blood pressure was low per the TPR chart and this was not a man who was well.

[92] The notes for 26 April 2002 were read from the bottom of page 10 of his report to the middle of page 11. These covered pages 43-44 of the medical records. There were concerning aspects. One would not expect severe pain and swollen testicles after a straightforward operation two days earlier to divide a band of adhesions. The blood stained urine was not to be expected and the erythematous area on the right side was an abnormal finding. Something was going on and to have very swollen testicles which were tender on palpation confirmed that. He would not be sure what that was on seeing it for the first time but he would be very concerned, especially in view of the blood pressure of 90 over 60. The patient was in shock with a pulse of 114. It was said that he was not in clinical shock but that was not the case. One would not expect cellulitis. He would want at that stage to have checked the blood and done a CT scan. He then turned to the note at page 44 which was written in retrospect and referred to the position at 1700 hours on 25 April. That was more or less a repeat of the last entry which related to the position at 0415 hours on 26 April. The patient had therefore had that condition from 1700 hours the previous day and that was very evident when the charts were examined.

[93] At the foot of page 44 there was a further retrospective note which was dealt with at page 11 of the report and noted the position at 2230 hours on 25 April. This made him very worried that there might be a form of septicaemia. There was low blood pressure and jaundice had developed. The patient had developed signs suggesting septicaemia coming from the abdomen where he had had a recent operation and his urine output was borderline, although he had been having a lot of intravenous fluids. He might have been developing renal failure and the presence of jaundice was very very significant. One did not suddenly become jaundiced after an operation unless something serious was happening. It would have been presumptuous at that stage to have thought of gas gangrene but that was one of the key features. The medical personnel must have realised he was ill, with low blood pressure, swollen testes, jaundice, borderline urine output and low oxygenation.

[94] Page 12 of the report dealt with the notes from 0445 hours on 26 April at page 45 of the records. Even in the half hour after the note from 0415 he had deteriorated. The blister indicated a form of infection and with a lot of serous exudate, i.e. a lot of fluid. That could not possibly be compatible with the earlier diagnosis of epididymo-orchitis which they had made earlier and which they were still looking at. One did not get blistering with that. Blistering was one of the things which was found in gas gangrene especially if it affected the scrotum.

[95] Cellulitis was also of significance. It was rapidly spreading, from all accounts. That was highly suggestive of a serious soft tissue infection affecting inter alia the lower abdominal wall and with the jaundice the diagnosis of gas gangrene should have been entertained at that stage. Cellulitis was a common feature of gas gangrene, often with bubbles of gas in it.

[96] The patient was ultimately confirmed as having necrotising fasciitis. Looking back retrospectively his view was that it began in the early hours of the morning of the 25^th, less than twenty four hours after the original operation. In this connection he had regard to page 472 of the notes, the charts. At 1900 hours on 24 April the blood pressure was 125 over 65 and the pulse was 100. They were fairly regular until about 0600 and 0700 hours the following day but from then on the blood pressure fell to unacceptable levels. At 12 noon it was 100 over 48 and the pulse was 100. Thereafter going to the end of the page the pulse was at 120 with blood pressure at 90 over 70. The readings were grossly abnormal from around 12 noon on the 25^th. The chart was the sort of thing one would find at the end of a bed and doctors and nurses would always look at it. They indicated that the patient was unwell and that was a grossly abnormal response to an operation for division of adhesions. Taking the clinical information into account it was highly suggestive of a septacaemic process with a serious subcutaneous infection involving the abdominal wall and the scrotum. He then dealt with page 13 of the report and the notes for 26 April 2002 at page 46 onwards. He said that it was not understood why the patient was jaundiced and the staff were exploring whether perhaps he had gallstones or an acute gallbladder infection so they arranged an ultrasound of the top half of his stomach but it was normal. That did not take them anywhere, other than to eliminate a potential cause of the jaundice.

[97] He then carried on reading his report dealing with the notes from page 47 onwards and the position from 1030 on 26April. He indicated that there was no crepitus in other words no gas in the tissue. There was an opinion from a gastro-enterologist. The jaundice had become a focal point in the thought processes. They asked a non-surgeon, who would not have understood potential post-operative complications the way a surgeon would have done, to give a second opinion as to why he was jaundiced. He made some suggestions as to what might have been the position including congenital hyperbilirubinaemia, which was rare, septic embolus to the liver, which was also rare, and perhaps a drug reaction. Pages 50-51 of the notes dealt with a CT scan and its consequences at 1640 on 26 April. That is referred to at pages 14 and 15 of the report and the formal report of the CT scan (page 280 of the notes), is set out in the professor's report at those pages. There was shadowing on the lungs because they were not expanding very well. He thought that this was when the blinds were suddenly pulled up and there was a diagnosis. They had suddenly discovered something grossly abnormal going on and this was a red flag for any doctor, however junior, showing that there was a serious infection and indicating that something urgent had to be done.

[98] He was referred to two operation notes, one in manuscript and one in typescript, the contents of which are set out in his own report at pages 16 and 17. As he understood it there was no hole at the start of the operation but a hole was made during the course of it. The infection was transmural rather than through a hole.

[99] The histological report was at page 272 of the notes and in his own report at page 18. As far as the small bowel biopsies are concerned it was as follows:-

"85 mm segment of small bowel with inflammatory/fibrinous exudate on much of the surface at a point close to the centre, there is a band around the small bowel, 4 mm in width, suggesting compression at this point and on one surface the bowel appears ruptured."

He said that the inflammatory/fibrinous exudate was secondary to the peritoneal reaction due to the transmigration of bacteria. There was a reference to turbid fluid in the cavity in the typed operation note and the inflammation was a reaction to that.

[100] He was then taken to the microscopy report, whose contents I have already quoted. He said that the transmural necrosis was an infarction or death due to the lack of a blood supply. The mucosal ulceration was a reaction to the dead bowel wall. It would become black and tissue would slough off leaving an ulcer. Adjacent to the band there were sections of the bowel with impaired blood supply but the 4 millimetre part itself was necrotic, in other words dead. The oedema was secondary to the earlier obstruction and the serosal inflammation was a reaction to the turbid fluid.

[101] He agreed that the external surface was affected by what happened in the peritoneal cavity and the central part was dead throughout its full thickness. That was the part which was impinged upon by the pressure of the adhesion.

[102] The rest of page 18 and onwards till page 23 of the report gave an account of the pursuer's position following the operation. He was not only a very ill man but a very lucky man to survive.

[103] At the top of page 19 there was reference to certain drugs being given on 27 April. These were for cardiac failure in order to try to raise blood pressure. At the top of page 21 there is a note for 25 May 2002. He was still on intermittent haemodialysis. He had significant renal problems.

[104] He was later referred to plastic surgeons.

[105] Page 24 started with a discussion of the bowel obstruction which had already been covered in evidence. Pages 25 from paragraph 5.2, 26 and 27 were then read

"Gas gangrene is caused by bacteria usually Clostridia which grow in the absence of oxygen (anaerobic). Clostridia accumulate either in dead tissue or within the lumen of the bowel.

Gas gangrene is due to rapidly multiplying Clostridia which produce gas and toxins. These toxins which have a profound effect on local tissue perfusion and organ function. (sic)

The toxins cause death from local destruction with gangrene and from distant organ failure. The destruction and putrefaction of local tissues necessitates wide excision (debridement). The toxins enter the blood stream causing cardiac failure, renal shutdown, cerebral dysfunction, liver failure, marrow suppression and adult respiratory distress (a form on pneumonia).

In this case the gas gangrene arose from bacteria within the lumen of the bowel which escaped through a leaky bowel wall as a consequence of localised ischaemia. The bacteria produced gas. The gas forming organisms leaked through the ischaemic bowel so that bubbles disbursed from the bowel onto its outer surface and then through the peritoneal cavity into the incision. This resulted in gas gangrene in the wound and downwards into the root of the penis and scrotum.

5.3 Leaking bowel; ischaemia

The organism (Clostridia) must have arisen from the lumen of the bowel. The bowel wall however was anatomically intact but the blood supply to the wall of the bowel even though it was anatomically intact was ischaemic. Bowel wall is ischaemia then allowed bacteria to penetrate the membranes that normally contained bacteria within the bowel lumen through the wall of the bowel and out onto the serosal surface (outer surface) and thus into the peritoneal cavity. (sic)

The ischaemia was caused by localised vascular necrosis from the immediate pressure effects of the adhesive band made worse by the complete mechanical obstruction and the swelling of the bowel above the obstruction.

The first operation was aimed to relieve the mechanical intestinal obstruction by dividing the band. However a thin rim of localised bowel iscahemia remained. As the thin line of iscahemic bowel had not been resected, bacteria were able to leak through this line of bowel wall ischaemia into the peritoneal cavity, thereby infecting the wound and the root of the penis and scrotum.

5.4 Ischaemic bowel; band

The ischaemic bowel was a direct consequence of the pressure effect of the adhesion constricting the bowel. This localised constriction impaired the blood supply just in the small line of bowel lying underneath the adhesive band (rather like an electrical burn). Eventually this line of localised ischaemia would have caused a perforation in the bowel and peritonitis. In this particular case the linear area of bowel wall iscahemia allowed bacteria to penetrate through it even though it was anatomically intact."

He said that the bacteria must have arisen from the lumen. The bowel wall was normally impermeable and they were not able to get through. If, however, the blood supply was disturbed and died even though it was not perforated then they could get through.

[106] Pages 28-29 discussed possible delay before the first operation but Mr Armstrong did not follow that line. The witness did, however, read the first paragraph of page 29, which is to the following effect:

"There was no indication for an immediate operation on the day of admission on 22.04.02. There might have been an indication for surgical intervention on 23 April 2002 if the abdominal pain had become very much more severe or if there was (sic) signs of bowel ischaemia. The only possible evidence of potential bowel ischaemia was the elevated white cell count. The white cell count was elevated on admission being 12.5 on 22 April 2002 and 12 on 23 April 2002. This moderate elevation in white cell count might imply a segment of bowel ischaemia."

He said that one could not lay one's hat on that and a diagnosis of ischaemia could not be made based on it. It was, however, consistent with it. He was then taken to page 30 and in particular to paragraph 6.2 relating to the conduct of the operation. Paragraph 6.2 which runs from pages 30-32 of the report is in the following terms:

"6.2 Conduct of the operation for bowel obstruction; failure to detect irreversible linear ischaemic bowel injury

I am highly critical of the conduct of the operation on 24.04.02.

It appears that the consent was obtained by Dr Dninon.

It appears that the operation was performed by Dr D Kingsmore who was a trainee to the consultant in question, Mr McGregor. I have no information of the experience of Mr Kingsmore. However most trainees will undertake emergency surgery for bowel obstruction.

The operation describes multiple adhesions making entry into the peritoneal cavity difficult and thorough examination of the contents of the peritoneal cavity difficult without enlarging the wound. The operation note states that there was an obstruction from a band adhesion which was compressing the small bowel 1 1/2 feet from the ileocaecal valve. The band adhesion was divided and the bowel underneath it released. What is not mentioned in the operation note is the appearance of the bowel itself. The operation note merely states that the bowel below the obstruction was collapsed. This type of band will have left a linear constriction ring on the surface of the bowel which (will) have been red or purple in colour. The surgeon under these circumstances would need to determine whether this colour change on the bowel surface was permanent or temporary. If there was any uncertainty as to whether or not the colour change (indicative of ischaemia) was permanent or temporary, the surgeon should have placed warm packs around the bowel and have re-examined the bowel 5 or 10 minutes later. If there was no change in the colour of the bowel, it must be assumed that the bowel was ischaemic at that point and must be excised. ( The witness explained that the word "ischaemic" should read "necrotic"). Failure.... would lead to subsequent perforation and peritonitis. If on the other hand placing a warm pack around the discoloured line on the bowel surface resulted in substantially (sic) improvement in the appearance of the bowel, a further period of waiting and placing warm packs around the bowel would be used to see if there was further improvement over another 5-10 minute period. If there was doubt about the viability of the bowel and a decision had been taken not to resect it, then relaparotomy should have been arranged for 24 hours later to re-inspect the bowel.

In this case the appearance of the bowel is not described at all. Failure to describe the appearance of the bowel amounts to a breach of duty. Given the subsequent events we know that the bowel will have had a linear mark across it which was purple. This line of purple colour would not have changed or improved with hot wet packs because we know that the bowel was ischaemic

( this should read necrotic) when the relaparotomy took place 48hr later.

Thus there was a failure to describe the appearance of the bowel. There was also a failure to act on the linear discolouration of the bowel so as to determine if there was any improvement with warm packs and time. It was negligent to close the abdomen without undertaking this simple exercise. Failure to do so resulted in gas gangrene and Clostridial myonecrosis.

If the trainee surgeon was insufficiently experienced to know whether the bowel was ischaemic under the constricting adhesive band, he should have called a senior person, if necessary his consultant, to come and observe the bowel and make a decision about the need to resect it. Thus irrespective of the seniority of the surgeon, it was either a breach of duty not to have tested for colour change with time or to have called a senior surgeon if there was any doubt about the viability of the bowel.

Given the subsequent findings, the linear band of ischaemia under the constricting adhesion should have been excised and the bowel ends closed as was undertaken 48hr later on 24.04.02."

He was referred to 7/1 and in particular to page 3 thereof in connection with Mr Kingsmore's experience. He would have expected him to be perfectly competent to manage the sorts of problems encountered during a resection of ischaemic bowel and the witness was somewhat surprised that he had not recorded his findings.

[107] I asked him about the suggestion that warm packs would be placed around the bowel and it would be examined 5 or 10 minutes later, after which a further period of waiting time with warm packs would come into play. He said that one would only do that if the bowel had not returned to normal. If it was improving one might want to go and have a cup of tea and come back to look at it later. If there was still uncertainty a decision had to be made. Should there be a resection or should the wound be closed up and a further operation carried out twenty-four hours later?

[108] We knew in this case that the line of purple colour would not have changed or improved with hot wet packs because the bowel was necrotic when the relaparotomy took place forty-eight hours later. I asked him about the evidence given by Mr Kingsmore to the effect that it had been dark red when he first saw it and appeared lighter later on after he had placed warm packs against it. His opinion was that it would not have got lighter.

[109] Mr Armstrong referred the witness to the findings that the resected specimen had full thickness necrosis and he said that given the subsequent events we knew that the bowel would have had a linear mark across it which was purple. Mr Armstrong asked whether in every case of a bowel adhesion division there would be a mark. That was the case but it would not normally be purple. It could be a range of colours. The most common finding was no major colour change and just a constricting band. If there was a colour change, though, it had to be assessed. Red indicated mild ischaemia, purple was more severe and black meant death. If it had been black at the time it would have been more obvious and holding the bowel might have resulted in its breaking down, as it were, in the middle. There was a gradation.

[110] Some time before the second operation full thickness necrosis occurred. He could not say exactly when that was but he could tell the consequences of it. The chart suggested that on the night and into the early hours of the morning of 25 May the bacteria had started getting through. There had to have been full thickness necrosis then. He suspected that that was the position there was at the time of the operation but that it had not been there long enough to cause blackness and falling apart. Mr Kingsmore's position was put to him and I mentioned to him that the latter had indicated that he had flicked the bowel to check for peristalsis and he thought that that was present. The witness was asked what he thought about the state of the tissue at the time. He said that he was interested in the question of flicking. That was done to assess not a small segment of bowel but a large segment. Bowels could get twisted on themselves and a whole length of bowel could potentially be dead. That was when it was flicked and if there was a colour improvement also that would make one more confident. When there was a very very small line then one would not flick that. He said that he was absolutely certain based on the pathology that that line would not have changed colour.

[111] He was referred to the chart at page 472 and said that it suggested that bacteria were leaking out by around 0600 or 0700 on the 25^th. He thought that the mark would not be completely black at the time of the operation but the line would not have revived using the packs. There was surrounding ischaemia according to the report and it was possible that the surgeon might have found the rest of the bowel with impaired blood supply had pinked up but he very much doubted whether the linear mark would have changed. Under reference to page 32 he said that he believed the band must have been a dark purplish colour and would have been irreversible. There may have been some discolouration caused by the band and that might have been one of the things spoken about by the surgeon when he was talking about colour change but it was the linear area which was in point. If the band remained dark purple after about five or ten minutes it was an indication for resection.

At that point the witness referred to paragraph 6.3 in his report which runs as follows:

"6.3 Delay in diagnosis of gas gangrene

On 25.04.02 at 15.00hr there was a record of severe abdominal pain and there was bloodstained material in the urinary catheter. Furthermore the urine output had tailed off even though the patient was adequately hydrated. At 17.00hr there was a record of pain in the right testis and tenderness in the right iliac fossa and suprapubically. The right testis was described as swollen and tender. Although no blood tests in the biochemistry records, (sic) there are some results which have been filed in the surgical high dependency unit records (page 313). In the blood results entered the only gross abnormality was a rise in Bilirubin (63) thus the blood tests themselves on 25.04.02 were not sufficient to indicate reintervention. At 22.30hr there was a further medical entry indicating erythema in the right iliac fossa with low abdominal fullness and tenderness in the right iliac fossa and also in the lower abdomen. By this stage he was obviously jaundiced. These observations have all been written in retrospect presumably because no actual records took place until the morning of 26.04.02. The retrospective records continue and indicate that at 04.45hr on 26.04.02 there was increasing swelling in the right testis and increasing pain in the right iliac fossa. The pulse rate had risen to 112, there was hypotension with a blood pressure of 90/60 and some hypoxia with 93% saturation on air. By 05.15 there was a senior review because of the jaundice, tenderness and increasing erythema associated with guarding in the right iliac fossa, absent bowel sounds and the blister on the scrotum. There was increasing swelling and the senior review concluded there was spreading cellulitis.

The presence of spreading cellulitis and jaundice in a patient who was hypotensive and had a poor urinary output should have indicated sepsis and should have prompted a CT scan."

This was under reference to pages 44-46 of 6/7. The CT scan showed bubbles of gas in the abdomen.

[112] He was asked whether it was possible to identify when the clostridia had entered the peritoneal cavity. He said that, based on the chart, he believed that the bacteria translocated probably when the low blood pressure was first recorded, that is in the early hours of the 25^th. The germs got through and into the fluid in the peritoneal cavity and then into the abdominal wound where they multiplied. Where there was a recent wound bacteria would proliferate because of the lack of oxygen. If an operation was carried out the tissue was traumatised. Proliferation was very rapid. One organism could turn into a hundred thousand three hours later. He thought that the beginning of the gas gangrene was between 0400 and 12 noon on the 25^th.

[113] He was referred to page 472, the chart. I asked him about the difference between infarction and ischaemia and he said that the band was the external problem. Under the band was the tissue area. It must have been infarctic rather than ischaemic. If ischaemic one hoped that it would recover and that was what he thought the surgeon thought. He thought that death started from the inside and worked out because the most fragile membrane was the mucosa. One used the term infarction when the ischaemia was irreversible. Sometimes the process causing impaired blood supply created an irreversible situation. If one vessel supplied a target organ and was blocked then the organ would die. If, say, only one of twenty vessels was blocked then there was a chance of recovery. In this case the pathology showed the irreversible nature of the problem and if that was the position forty-eight hours later then he believed that it was irreversible at the time of the first operation.

[114] It was the little piece of tissue which had let the bacteria through and it had been constricted for five days.

[115] He had no criticism to make of the second operation or the subsequent care. Paragraph 7.2 at page 35-36 was then read as follows:

"7.2 Resection of the ischaemic band on 24.04.02

Had the line of bowel ischaemia been recognised and tested it would have been evident that this linear discoloration was permanent from irreversible ischaemia in the wall of the bowel. Consequently this segment of bowel would have been excised and the bowel would have been excised and the bowel ends sutured together as took place on 26.04.02. Given that the bowel healed after the segmental resection under much more severe circumstances on 26.04.02, it is certain that the same operation undertaken on 24.04.02 would have resulted in complete healing of the bowel anastomosis without any complications.

Consequently, resection of the ischaemic band on 24.04.02 would have resulted in a normal postoperative course, that is to say discharge from hospital by the end of April and return to work in six weeks without loss of the abdominal wall, without a prolonged illness on the Intensive Care Unit and without obstructive infertility."

He pointed out that the irreversible ischaemia in the second line meant infarction.

[116] Had resection been carried out on the 24^th then there would have been a normal recovery.

[117] His conclusions were then read from pages 38 and 39 as follows:

"8. Conclusions

Bowel obstruction is a common surgical emergency.

Bowel obstruction in this case was caused by a previous episode of peritonitis which caused adhesions. In this case the adhesions were localised to form a band which obstructed the small bowel approximately two thirds of the way down its length. The obstruction was complete and had become irreversible.

The band adhesion had caused irreversible death to the wall of the bowel beneath the adhesive band. The result of the irreversible bowel wall death was that organisms, in this case Clostridia within the lumen of the bowel permeated through the dead bowel wall onto its surface into the peritoneal cavity. The organism in question (Clostridium) produced gas and the gas bubbles dispersed through the peritoneal cavity into the recent abdominal midline wound. The gas was a manifestation of the organisms (sic) ability to produce gas and toxins which cause death (necrosis) of muscle and fat. In this case there was death of muscle in the abdominal wall and death of tissues in the root of the penis and the scrotum. The Clostridium toxins also caused a very serious systemic disorder resulting in a form of liver failure, acute tubular necrosis, ARDS, cardiac failure and at one stage early evidence of marrow suppression. Normally gas gangrene under these circumstances is fatal.

The patient was very lucky to survive. The surgical treatment necessary to resolve the gas gangrene from ischaemia in the wall of the bowel necessitated a wedge excision of the bowel and radical debridement of dead tissue in the abdominal wall, the root of the penis and the scrotum. The patient suffered a very prolonged severe illness which prevented him returning to work and has long-term consequences; a large abdominal wall defect and obstructive infertility.

There may have been some delay in the initial surgical intervention for bowel obstruction. Had the Claimant been operated upon on the morning of 24.04.02 it is just possible that at this stage division of the adhesion, as took place, would have allowed recovery of the ischaemic segment in the wall of the bowel such that gas gangrene did not occur. The timing of operating for intestinal obstruction is not a precise science, it could well be argued that there was no delay in surgical intervention for bowel obstruction.

There was a gross breach of duty by the surgeons on 24.04.02 when operating for acute intestinal obstruction not to have described the appearance of the bowel itself. There was a linear segment of full thickness ischaemia to the bowel wall underneath the adhesive band. This should have been recognised and should have been resected with primary anastomosis as occurred 48hr later on 26.04.02. Had this occurred (resection with anastmosis) there would have been no complications."

[118] He felt very strongly about the lack of recording of the appearance. He was asked whether his view was that the tissue under the band was beyond recovery. It was put to him that the position of Mr Kingsmore was that when he released the band the bowel underneath was bruised or dark red and he wrapped it in damp material and then warm packs were applied and he looked at again after 5 or 10 minutes when it was lighter red. He flicked it as well as seeing capillary vessels and was satisfied. Mr Armstrong suggested that the law allowed a range of acceptable errors and asked whether he considered that acting in the way he did the surgeon's conduct fell below the acceptable level. He said that dead bowel was a death sentence and had to be got right. Every surgeon in training was taught that. It was absolutely critical and any surgeon especially in training knew that sometimes one got things wrong. If one was sure that bowel was dead it was taken out, if absolutely sure it was back to normal you would leave it alone, if you were in between you would operate the next day and if you were in training and unsure you would ask a senior colleague. It was put to him that Mr Kingsmore said that it had gone lighter red and that he was sure it was viable. He said that he did not think one could be sure unless it had returned to a completely normal colour. If it had returned to a normal colour the patient would have been able to go home. His opinion was that unless the band had returned to normal colour he could not have been certain of its viability and if he had been a third year trainee in those circumstances he would have called someone senior. If there was any doubt at all and if a senior was not available then he would have resected it. There must have been some doubt in his mind because the bowel did not return to its normal colour. One of the things they kept telling juniors was that there was never any harm in asking for advice. If it did not return to its normal colour it was highly indicative that it was not going to recover and he would have expected a trainee to seek the opinion of a senior colleague. He did not and that was remiss of him. He was asked about the consequences for the pursuer and the prospects of his employment and in particular whether he might have to retire early. Objection was taken to this on the basis that there was no Record for his situation worsening. I allowed the line subject to competency and relevancy. He said that it might be that he would be able to work up to his normal retirement age. He was certainly at a disadvantage. There was no Record for early retirement and objection was taken to this. Again I allowed the line under reservation. His understanding was that the pursuer was a trained engineer and held a relatively sedentary job. He was based largely in an office rather than a building site. Whilst his present job and job description remained as they were he did not see any likelihood of change. If he were made redundant and sought new employment then he might be considerably compromised in the labour market if the job description involved physical work. There was no abdominal wall muscle and that was the major problem. The bulges were relatively well contained partly because of the support and also because there was so much scar tissue. Abdominal muscles were needed to get out of bed. That disability was very considerable and as one aged it would get worse. He was compensating by using other muscles but they too would deteriorate with age. He was asked about his impression of the possibility of corrective surgery and he said that would be impossible and also highly dangerous. The pursuer had suffered a huge defect. It was physically impossible to improve that and it would not just involve general surgery. There would need to be a urologist involved in dealing with the genital defect. There would also require to be plastic surgery and also general surgery. It was reasonable for him to be frightened of that prospect. He was fairly static now and there had been no change in his physical condition over the last few years. He had lived with his condition and managed to cope.

[119] Lastly he said that the reference in his report to the pursuer's enjoying playing football and golf was meant to be a historic one. It was not suggested that he was doing that now.

[120] In cross-examination he said that he retired from the National Health Service in 2004 but he continued in voluntary work and was in a teaching hospital in South India for three to four months of the year. Page 41 of his report set out his special interests which were inflammatory bowel disease, colorectal cancer and anorectal incontinence. He was also engaged in emergency surgery. He was not exclusively involved in the large bowel and the rectum. He also worked in Crohn's disease dealing with the small bowel. He had been involved in dividing adhesions since leaving the National Health Service. He was on call one day a week and in India he sometimes came in to assist with such operations. They were done by trainees, which was no different from the position in the UK. While he was in the National Health Service he remained on call and could be called in on an emergency basis. He carried on doing that until he retired.

[121] In India he was involved, amongst other things, in the supervision of operations to remove small bowel adhesions. He was in a big teaching hospital and clinical practice there was the same as in Britain.

[122] He was referred to page 30 of his report in connection with the information about Mr Kingsmore's experience and indicated that he thought he had seen his CV some time after preparing his report. He had, he thought, passed the information to the solicitors and in particular told them that he thought that Mr Kingsmore had had sufficient experience. He had no criticism of the fact that he was allowed to carry out the operation but he did not remember conveying that opinion to the solicitors.

[123] He was then referred to the expert declaration at page 43 of his report and in particular to heads one, three, four, seven and eight thereof. I am not entirely sure what the point of that exercise was. He said that he was not a pathologist but he had done a great deal of research in micro-biology throughout his career and he was still doing it. Some of that was relevant to gas gangrene. Earlier in his career he ran a micro-biological lab where Clostridia were grown and looked at in connection with their effects on the bowel. That was from 1985 until 1997. He also looked at the effect of bacteria on tissue in relation to blood flow and he had published on these matters. He had in all produced over 500 publications. He was not a radiologist but doctors and surgeons looked at charts every day. It was like having an extra hand. Radiologists sometimes did not understand the clinical context. Looking at CT scans was something that surgeons did all the time and they were interpreted and discussed with radiologists. He would not necessarily defer to a radiologist.

[124] He agreed that there was usually a range of surgical practices but there were certain fixed rules. In some incidences you certainly would not do particular things.

[125] He was asked about the meaning of ischaemia and whether that meant inadequate supply of blood. He said that he had already said that he was disappointed that he was not more rigorous in his use of words in the report. He should have used the words reversible and irreversible. Ischaemia was something which might improve and infarction was the position if tissue was dead. These terms were used rather loosely. It was reduced blood supply and it could cause tissue death or it might not. Infarction was irreversible. He was asked whether that meant an area which was already dead and he said it was. There was a process and at the end of it there was cell death but the speed and the prospects of recovery were influenced by a number of factors. The death of tissue was cell death. In any tissue there was a consistent process of cell death and removal and interference with the blood supply affected that process. In certain circumstances the process was much quicker and more likely to be irreversible. He was asked to assume that the blood supply to the bowel wall was compromised. The path from the first compromise to death would vary. There were several factors at play, including the initial health, the extent of the reduction of the blood supply and the localised area which was affected. If there was no blood, death would be very quick, indeed immediate. If the blood supply was reduced the time depended on other factors. He was asked whether the process began at microscopic level and he said that that depended. All the cells might die at the same time. That was a strong possibility in this case because of the nature of the ishaemic process. In this case there was pressure due to a very localised band which compressed fragile tissue and lasted for a period of five days and getting worse. Both the cells and the capillaries would be compressed. He was less concerned with the capillaries and more concerned with the pressure to the cells. Effectively they would be squeezed and blood would not get to them. Death would be likely to start from the inside or the mucosa where the blood supply to the bowel was affected. In this case, where there was direct pressure, that did not apply. The mucosa did die first when the blood supply was occluded but in the context of direct pressure the outer layer or serosa would be the part of the bowel first affected. He was asked whether the damage to the bowel had anything to do with ischaemia and he said it was like someone having a crushed foot. The blood did not get to the tissues and ischaemia was created. It was the outside of the "hosepipe" in terms of the bowel which got the worst of the injury. Normally the mucosa died first in ischaemia but that was in relation to the arterial supply. This was a different set of circumstances. The real issue was whether the purple line was reversible or irreversible. There were occasions where there was a twist of the small bowel, which was called volvulus. The mesentery would also be twisted and occluded and the loop of bowel would become ischaemic. In those circumstances the mucosa would die first.

[126] He was then asked about the operating note. He said it was critical to record details about the appearance of the bowel before and after. He was asked whether of itself a failure to record meant that the procedure had not been carried out but he said it made it difficult for medical or nursing staff to understand what problems might be met later. Nurses looked up the note and if it had said "dark band seen and assessed and it improved but no complete resolution was obtained" then it would have indicated that there was a point of potential injury that might cause trouble. That would have made a difference at 0600 hours.

[127] It was put to him that checking the viability of the bowel was an integral part of the process. He said that that depended upon the judgment of the doctor. If the doctor was not troubled about the viability he would not do the test. One would hope that he would look at it. Sometimes doctors got carried away by dividing the adhesions and then sewed up. It was essential to look at the bowel. It was an inherent part of the procedure if it was done properly. It was suggested that the fact that no resection was carried out carried with it an implication that the bowel was checked. He said that that was pure conjecture. Trainees were told not to compromise on writing notes. He was asked whether it was in the range of reasonable standards of care not to record the nature of the bowel and he said that he would not have said what he said in his report if he thought that it was acceptable. There was no difference of opinion about that. All surgeons would criticise a failure to describe the bowel. It was put to him that he had accepted that the surgeon had the necessary experience and he repeated that these things happened. A young eager surgeon might be so pleased about the division that he might close up, although he accepted that division of adhesions was not difficult.

[128] He was then referred to page 30 of 6/11 where he wrote the following:

"This type of band will have left a linear constriction ring on the surface of the bowel which (will) have been red or purple in colour."

He said that there would have been a range and he believed that it would have been purple given that the obstruction had been present for five days. He was not looking at that retrospectively. He preferred to express his opinion in terms of a range in his report.

[129] He was asked what produced the red or purple colour and he mentioned the compression of the tissues under the band and the swelling on either side of it, more particularly upstream. The pressure changed the cells and prevented the supply of blood. There were damaged cells and blood which had been compressed and spilt throughout the tissue. Cells in any event change colour when they were dying. It was suggested that this was a bruise and he agreed with that but said that it was a bit more complicated. If blood was spilt and stopped in a tissue for a long time it would change colour from pink to dark red to purple and then black. It was suggested that if one sustained an ordinary type of bruise on the arm, for example, the fact that it was black did not mean that it was not recoverable. He said that that depended. If you drop something on your toe then the nail may fall off. A bruise usually involved a wider area of tissue but this was a very narrow band we were dealing with. It was like a ligature but not all the way around. I understood him to accept that the bruising process accounted for some of the colour but surgeons would not look at it in terms of being a bruising process. They would think of it as being a linear segment of bowel ischaemia using that word in its proper sense. He agreed that colour change was to be used as an indicator as to whether the damage was recoverable or not. He was asked whether he would hope to see some change and he said that one might see change or no change. The normal colour was pale pink/white by which I understood him to mean off-white with a tinge of pink. It was put to him that if he hoped the mark would disappear that would be impossible if there was a bruise. He said that if the position was reversible the bowel colour would return to normal. There would also be some kind of constriction band where the adhesion had been but the colour would return to normal. He was not entirely happy with the bruise analogy. It was not the case that it was a bruise as ordinarily understood. It was suggested to him that if the band had been purple it was very unlikely to return to normal because of what he had said. He said that it might return to normal but if it was purple it was much less likely to. It was suggested to him that another surgeon might say it would not completely disappear and he said he was not saying that. One would be left with a mark. It was not discoloured though. There was very little difference if there was no ischaemic element. He was asked whether it would be slightly darker and he said he did not agree with that. If the mark were red it might return but if it were purple it was very unlikely. He was asked whether, having removed the compression, one would be releasing a restriction on the venous drainage for that area and he said he did not think so. That would be the case where the bowel was twisted as well as the mesentery. Blood entered the bowel through the mesentery and where there was a blockage of that nature then it would be affected. A band adhesion was anti-mesenteric in other words on the other side of the mesentery so only the local supply would be affected at that point. The impact of the compression was directly on the tissue and the immediate vessels. Venous drainage was not involved because the mesentery was not involved. The circumstances were entirely different with a loop or twist. It was put to him that another surgeon opined that only in that situation would there be a complete resolution of colour and he said that in the present case his understanding of the position was that there was external compression from a band. Sometimes the secondary effect of a band was to allow twisting or volvulus and any responsible surgeon would say if that had occurred. On untwisting it there would be, if reversible, a resolution of the colour and that is when one would flick it to see if there was peristalsis. That was not the mechanism in the current operation. It was suggested that in a band adhesion there would not be a complete resolution and the witness indicated that if the colour was purple then that was correct. There was, however, a range. He agreed that part of the mechanics was bruising. A change of colour, if there had been severe compression, was less likely. In those circumstances there was a very high risk that the change was irreversible and a resection would have to be carried out. If the colour had not returned there was a very low threshold for resection. He was asked whether there was a difference of opinion about that and he said that that depended on the circumstances but in the circumstances here, where there was a line of compressed tissue, then he believed there were very few surgeons who would not operate within that very low threshold. It was well recognised that such a situation was dangerous. He was asked about his reference to the judgement not being easy and he said that every case had a difficulty. No one ever fulfilled the requirements of the textbook. Pragmatically one would release the adhesion and would want to know if the colour was going to pink up. One might go away and have a cup of tea and if after five minutes there was no change then one would resect. If it had improved one might have another cup of tea and assess it again. Surgeons wanted it to disappear, more or less. He was asked whether it was acceptable to leave it if it was still red and he said that it might be. If a surgeon was not sure he could reopen in twenty-four hours. That was a well recognised practice. Uncertainty always arose. I understood him to accept that there was a body of opinion who would close up if it had not returned to almost the same colour. He represented the majority opinion in this matter. However he reiterated that if one was not certain then one had to go back in. A dead bowel was a death sentence. It might also depend on circumstances. If a young man of thirty years old was involved one might be more inclined to be unsure. If an elderly person with heart disease was involved then one might resect. The division might be deferred until the next day and if so that would be recorded so that everybody would know. If the bowel was still red you would have to be very very sure before you sewed up and did not come back. He was asked whether when he talked about substantial improvement he was referring to his own practice and he said that that was not the case. Some surgeons were taught to make these decisions. He would be very surprised if other surgeons thought that a dark red line was acceptable. That would be outwith the bounds of reasonable opinion. He was then referred to 6/9, a report from Professor J H Scholefield and in particular to paragraph eight on page 13 thereof, which is in the following terms:

"In order for the bowel to have been sufficiently ischaemic to show full thickness necrosis within thirty-six hours of the original laparotomy it is likely that there were demonstrable changes in that area of bowel at the time of division of the band adhesion. It is very important after dividing a band adhesion to look very carefully at the bowel underneath the obstructing band adhesion to check its viability. Discolouration of an area of bowel under an adhesion is always a concern in this type of surgery. A responsible body of surgeons would wait for five or ten minutes and apply warm packs to see whether the bowel regains a healthy pink colouration, or remains dusky or black. In the latter case it is good practice to resect the area."

The word dusky was not one which he would have used. It suggested a rather diffuse change in colour. He essentially agreed with Professor Scholefield but he did not want to be too prescriptive about words. There was a big difference between being healthy pink and being purple and black. The word "regain" suggested a change back to near normality and the word "remains" suggested no change. He would concentrate on those two words. If the colour remained unchanged then he would resect.

[130] He said that if the line was black one would undoubtedly resect and indeed one would not even put packs on it. He thought that "dusky" suggested a purplish colour and so he probably agreed with the professor. It was put to him that dead bowel tissue was pale and greyish. He said that was a very good question but it was a very unusual colour for local pressure necrosis. When the bowel became twisted it became purple and one might say dusky and then it became black and lost its sheen. Before it perforated it went grey but that was a colour change seen in the volvulus situation not where there was direct pressure. It was put to him that another surgeon opined that he would only resect if the area was white and the witness said that that would be a very unusual and dangerous opinion and one not held by the majority of surgeons.

[131] Flicking was useful in a volvulus situation but this was completely different. For this type of injury colour was the key. Flicking would give no information at all if it were done. All that had to be considered was the line of purple, which was very narrow, and if the bowel was flicked one would not get any information. It was different if one was flicking a length of bowel, say, 12 centimetres long. He was asked about capillaries and said that these were microscopic. If a piece of bowel was inflamed one could see blood vessels on the surface. It was put to him that Mr Kingsmore had said that he could see capillaries cross the area of the mark and he said that that might be due to the inflammation but it did not help in determining whether there was ischaemia. If blood vessels had been seen on the serous wall that would be neutral.

[132] He had not seen the samples examined by the histopathologist and in any event that would have been outside his area of expertise. He could only comment on the report. It was absolutely crucial. It told when the Clostridia got into the abdominal wall. The tissue was dead all the way through and that explained why there was blood pressure change on the night of the operation or early hours of the following morning. In his opinion, at the time of the operation the bowel was dead and should have been resected. The band would have been purple, deep/red purple and he did not think that the colour change would have improved because forty eight hours later the tissue was dead. The clinical evidence showed that bacteria were coming through eight to twelve hours after the operation. The area was probably dead at the time of the operation. He was asked whether he could exclude the possibility that the colour started as dark red and improved to a lighter red. He said that the surgeon who was there saw it but there were certain givens. Forty eight hours after the event the tissue was dead and only a few hours after the operation it was sufficiently dead to allow bacteria through. It was highly improbable that it was not dead at the time of the operation. One did not require full thickness necrosis to allow translocation of bacteria. One required impaired blood supply. The bowel could be ischaemic and not yet dead. It was suggested that if about four o'clock in the morning bacteria were passing through that did not imply anything about the ischaemia. He said that the point of resecting the bowel was to stop exactly that happening. It was put to him that it did not mean that the bowel was already dead at the time of the operation and he said that the whole thing was a process. The purpose of resection was to prevent the translocation of bacteria through an ischaemic gut. It took a long time for sections of bowel to die and it was very dangerous to leave it in. He was asked whether, if it was not fully dead at 0400, it was possible that at 1400 hours it was better. He agreed that there was a process but in this case it was a pressure necrosis process. In his opinion the tissue was dead at the time of the operation. Ischaemic cells might die at different times but this was a pressure scenario.

[133] He had been keen to see the CT scan. Bubbles could be seen in it and they appeared to be gas. He agreed that in a laparotomy one let air into the stomach which would not normally be there. It could be seen up till around thirty-six hours later, although he did not demur to the suggestion that it might take up to five days for it to disperse. He denied absolutely a suggestion that the bubbles could have been attributable to this so-called retained air. The appearances were completely different. Air which was left inside rose and went to the top of the internal surface but the bubbles were tiny and were not at the top of the surfaces. They were very small and multiple. They were an absolute indicator of gas gangrene and were categorically not retained air.

[134] Mr Stephenson then went on to ask him about differential outcomes, i.e. explored whether the patient might have suffered complications even if there had been a resection at the first operation. In due course he intimated that he was not pursuing that line so I need say no more about it.

[135] He had carried out an examination of the pursuer for about ten minutes before giving his evidence, which was as long as was necessary to assess the defect. He had not met him before but had read reports from other experts and had some information as to what his work entailed and what he was able to do in terms of recreation. He had also seen the photographs which were quite old by now.

[136] In re-examination he reiterated his opinion that at the time of the first operation the tissue was dead. If, contrary to that, the tissue was not yet dead at 0400 hours he was asked to comment on what the colour of the underlying tissue would have been. He said that it would have been slightly less ischaemic simply on the basis of the passage of time.

[137] It was very unlikely that it could have improved at the time of the operation and then gone downhill again later. It only went one way. He believed that it was dead at the time of the operation.

[138] His views on resection were consistent with those of the majority of responsible surgeons as were his other views.

[139] The next witness was Mr John Robert McGregor the consultant surgeon. He had been in overall charge of the pursuer's case.

[140] He agreed that the viability of tissue had to be checked in an operation such as this and that was standard surgical practice. He delegated the operation to Mr Kingsmore who was a senior enough trainee to do it with back-up nearby if it was needed. The witness had been involved in connection with the patient's management throughout but not in the first night. He was involved the next day through ward rounds and serial assessments. Before the first operation there would have been a discussion with Mr Kingsmore about how to approach the work and what to do once he was inside the abdomen. He did not recall the details. The witness himself was operating nearby and went in to check that Mr Kingsmore was happy. He could not recall the details of the conversation before the operation but plans were discussed between trainees and consultants.

[141] As he had indicated, he was present briefly during the operation. He was nearby taking out a gallbladder and while preparations were being made he took the opportunity to have a look at Mr Kingsmore's operation. The abdomen was open and the bowel was exposed. Mr Kingsmore was happy with what was happening as was he. There was a short exchange between them but he could not recall the exact stage of the operation.

[142] He remembered walking up to the operating table but he was not in for as long as fifteen or twenty minutes. If the anaesthetist had been unhappy he would have spoken to the witness. The patient did not recover as anticipated and indeed the witness said that he had suffered absolutely unfortunate and devastating post-operative complications. A second operation was necessary and he was directly involved in that. He was asked whether that had been discussed between him and Mr Kingsmore. He said that there would have been discussions involving decision-making and the operative procedure. He made the diagnosis that afternoon and there was a need for radical debridement. It was of interest to know how this had come about. He had been a gastro-intestinal surgeon for around twenty-five years and had been involved in several cases of necrotising fasciitis but not one after surgery like this. Possible causes went through the mind but the aim was to deal with the problem rather than worry about the causes. It was an evolving process. He decided to open up in the end. It was not just necrotising fasciitis, which did not involve muscle, only skin and soft tissue. There was clearly much more involved because of the CT scan and the muscle debridement which was required. The commonest source of clostridia was the intestinal tract and it was important to undertake a certain amount of planning knowing that the operation had to be got right first time. There was systemic sepsis. He agreed that one possibility was bacterial translocation through the whole of the bowel wall and that he had that in mind. He was asked whether he considered the fact that the state of the underlying tissue might be significant and he agreed with that. One had to consider all options. He had a talk with Mr Kingsmore about the underlying tissue on the day of the first operation. I understood part of the teaching process was to discuss matters retrospectively. There was considerable discussion prior to the second operation. The picture was confusing with rapidly progressing jaundice and liver failure. He could not specifically say that he discussed the assessment of the validity of the tissue at the time of the first operation. The focus was on the problem rather on something which had happened previously. I understood him to agree that he would certainly have discussed the assessment of the tissues viability if that had been the only problem. The failure was systemic, not just in the abdomen and all possibilities had to be considered. The piece of bowel which had been underlying the original band was resected. He had it in mind that he would have to check it, the diagnosis being that the problem was likely to be Clostridium. That was why he opened the abdomen. Any tissue compressed by a band adhesion was going to be changed to some degree. He made a hole in the tissue by playing with it as part of his assessment. One needed to feel it and test it and not just look at it. He opened up the abdomen and found no evidence of free gastro-intestinal tract perforations. There was no sign of a perforation or contamination of the cavity with gastro-intestinal contents. He was manipulating it to check its integrity and a hole developed. He would have been squeezing it to test its tone.

[143] He was referred to page 94 and to the operation note. The piece was far from healthy and to be able to cause a hole like that it must have been necrotic. The biopsy confirmed that. He was happy with the timing set out in the first paragraph of the operation note. It was clear that the major deterioration was overnight from the 25 April into 26 April and continuing thereafter. He spoke to Mrs McEwan, the pursuer's mother, who had been a nurse. It was normal practice to speak to the family. It was put to him that he had indicated that he had gone back into the bowel and that there was an area which was red and friable which had been cut out. He said he doubted if he would have said it was red but he agreed with everything else. It was suggested that he was going back in to check it and he agreed with that. He was not going in to determine the cause as such but to put right the problem and the right thing was done at the time. He agreed that when manipulating the piece of bowel and causing a hole it had become apparent that that might have been the cause of the problems but the operative word was "might". The patient had been sick for sixteen hours. The body preserves blood supply to vital organs and shuts down the blood supply to those which are less vital, including the gut. He had had a low blood supply to that area for sixteen hours. It was the subsequent histology which showed what the cause was.

[144] He was referred to a letter of 8 July 2002 at page 83. The suggestion in that letter that there was no obvious cause of the problem was said to be inconsistent with his evidence. He said that it was consistent because that was merely setting out the findings on first opening the abdomen. There was no evidence of free gas or gastro-intestinal content when the abdomen was reopened. In any event the General Practitioner would have seen the operation note. It was suggested that the words "rather traumatised" in the letter were somewhat understated but he said that he had seen bowels a lot more traumatised. In any event the real record was contained in the operation note. He denied that the letter was indicative of a defensive stance.

[145] In cross-examination he was taken through his CV. That is 7/6 of process. He graduated MB ChB in July 1983 and had held various teaching posts and other roles. He was currently the clinical director for general surgery at Crosshouse Hospital and had managerial responsibilities. He was the lead clinician for colorectal cancer, having taken that post in 2006. That was his particular speciality but he also had a general surgical practice.

[146] His clinical appointments were listed at page 2 as were certain duties which he carried out for the Royal College of Surgeons. He was chairman of a UK and Ireland committee for basic surgical examinations.

[147] His publications were listed at page 3. He had a longstanding interest in gastro-intestinal surgery in general and had spent two years as a research fellow in the Western Infirmary. He had published articles on anastomoses. In April 2002 he believed Mr Kingsmore to be competent as a surgeon and experienced enough to carry out the laparotomy. He would not have allowed him to do it had he not been. It was the sort of operation which was done by trainees, depending on their level and experience. His assessment was not just a personal one. There were annual assessments with a panel of around fifteen people as well as trainers' reports to be taken into consideration. He himself had carried out such operations on many occasions and indeed had undergone one himself. Adhesions were commonly caused by operations. 1% of operations would require an operation again within a year and 3-5% would require such an operation within the patient's lifetime. If a patient had one operation to divide an adhesion then he would be prone to have recurrences.

[148] Dead bowel was not red but was black or green. The green colour was because of putrefaction in the wall, or bowel staining. A band would be across the bowel but the bowel itself would be difficult to assess although it would be easier if the mesentery was involved. If so the effect would be like a tourniquet and when it was released it would pink up. It might be dusky, in other words bluish/purple, before it was released. If the band adhered directly to the bowel it was much more difficult to assess. Essentially there was bruising or tissue trauma. Sometimes an adhesion could compromise the blood supply to the bowel from the mesentery. The judgement was a subjective one and was affected by a number of factors. The blood flow, the oxygen level, whether the bowel was distended, the bruising effect and the contents influenced the matter. The bowel wall was a very thin structure. Most people would regard it as a pale pink colour when it was healthy. When the mesentery was compromised it might be dusky because of a change in the haemoglobin. If it was occluded the occlusion acted like a tourniquet. Oxygen would come out. Venous pressure was lower than arterial pressure and was occluded before arterial occlusion. Deoxygenated blood went from red to deeper red or blue. When the adhesion to the mesentery was released one would flush out the deoxygenated blood and it would pick up again. There would be hyperaemia as a result of metabolites building up and the blood would be very bright red. It was like seeing cold hands heating up in the house after being outside in the winter.

[149] In Mr McEwan's case the mesentery was not involved. There was a difference in such a case. The viability was much more difficult to assess and was not based just on colour. When there was a band adhesion across the bowel there was local trauma to the bowel much like a tight string around a wrist. There would be bruising. It involved a rupture of capillary blood vessels. If there was bruising in the bowel it normally occurred primarily in the sub-mucosal level. There were four layers, the mucosa, the sub-mucosa (the main blood vessel layer), the muscle layer and the peritoneal surface or the serosa. If there was direct trauma to the bowel the blood vessels in the sub-mucosa would be affected and there would be blood lying deep to the muscle layer causing a purple colour. He was asked whether, when the adhesion was divided, that bruising would disappear and he replied in the negative. That was where the difficulty lay. Bruises took several days to resolve. It was common to see a bruise unless surgical intervention was very quick but usually conservative treatment was tried first. In Mr McEwan's case he was operated on on 24^th April and he had had a couple of days before that where treatment had been conservative, so one would expect bruising in his case.

[150] He was asked how one tested whether the area was viable. This was multi-factorial. The unequivocal signs of death were a black or green colour. The bowel had a peristalsis reflex in it which happened spontaneously and could also be encouraged by tapping or flicking gently. One would look at that. Did it run right across where the band adhesion had been? If it did then the tissue was alive. One also looked at the muscle tone. He would place a hand on either side of the band and give it a little squeeze to see if that area distended more than the other. If so, then that was a bad sign. One also looked at the sheen or the surface appearance. The normal appearance was a healthy glistening one. The bruising itself would not change. It was a very difficult clinical judgement if the mesentery was not affected and there was no fail safe test. If the area was black or green then it was dead but a localised area of bluish discolouration did not per se mean that there was an infarction. One would not necessarily get any colour change if there was a bruise to the bowel and no twisting. I asked him what the position would be if there was no twist and pressurised contact. Once the bowel was released would there be any change of colour? In most cases conservative management would be tried and if a person had a problem for thirty six hours it was going to bruise. He was asked about checking for blood vessels passing across the area and said that he would do that test. That was more of a global test rather than being of assistance where the direct pressure was. The blood vessels were too small to see. One could see where the vessels joined the bowel. All that one could tell was whether blood was flowing into the segment but that did not indicate what was happening in the segment itself. It was put to the witness that there was a dark red line according to Mr Kingsmore where the band had been and after five to ten minutes it went lighter red. He said that a red line was a favourable sign. The blood supply was being restored and the area was hyperaemic. That suggested that the area of bowel was going to recover. Judgments might be wrong. It happened to well respected surgeons.

[151] I asked him how a change from dark to brighter red with the restoration of a blood supply could square with the fact that bruising would not improve and he said that the change could be seen through the bruise with enough blood going through it. He indicated that one would not necessarily get any colour change if there was a bruise and there was no twisting. One would get a colour change if one went in quickly in such circumstances but of course in the current case Mr McEwan had been conservatively managed.

[152] He was then asked about bacterial translocation. It was possible that that had occurred in this case and was most likely the cause of the clostridial infection. The bacteria passed through the bowel wall and into the blood stream. The gut barrier was a physiological barrier. Normally the small bowel was sterile although the large bowel had a lot of bacteria. An obstructed small bowel would get colonised and if the gut barrier broke down it allowed bacteria to escape. Failure of the gut barrier did not mean that there was cell death. It failed before that. A whole lot of factors could cause it including surgery and even reversible ischaemia. It was not necessary for bacterial translocation that there be full thickness necrosis. It was recognised in gastro-intestinal surgery in general and he gave the example of pancreatitis in alcoholics. It was very wrong to suggest that full thickness necrosis was necessary.

[153] The contents of the small bowel were mostly sterile but stagnation would cause problems. We knew in retrospect in the current case that there was irreversible damage to the area of bowel underlying the band adhesion and that would have caused failure of the gut barrier. As I understood him, that would have given rise to bacteraemia or bacteria in the blood stream. A new wound was fertile soil. The bacteria seeded into the wound in the abdominal wall. The mechanism was a movement from the gut to the bloodstream and into the abdominal wall rather than spreading directly across the abdominal cavity. The small bowel had been obstructed for a few days. It was stagnant and colonised by bacteria including clostridia. They multiplied in there. The gut barrier failed. It was easy to say it failed because of the state of the gut wall but it could have occurred anyway. The bacteria became absorbed into the bloodstream and they disseminated through the body. At a very late stage it was possible to say that they went through the bowel wall into the abdominal cavity but that was later. It was more likely that the problem was caused by bacteraemia, in other words bacteria going into the blood supply than their going through the bowel wall. Even if they were seeded in the bowel wall they needed time to multiply and spread. He became systematically unwell before going to the theatre and that indicated to the witness that the problem was more likely to have been blood borne. He himself had suggested the CT scan. He had no issue with the suggestion that that scan was indicative of gas gangrene. He made that diagnosis himself. He disagreed, though, with Professor Keighley's interpretation of the question of beads of gas in the abdominal cavity. That was not mentioned on the radiological report but he had looked at the CT scan himself and he did not know what Professor Keighley was talking about. If the abdomen was open then air was allowed in. It took five days or so to be absorbed. If one x-rayed five to seven days after an operation one would expect to see signs of gas in the peritoneal cavity. It was just residual air. He went over the scans with a consultant radiologist whose view was even more emphatic than his own. The beads of gas which could be seen were above the liver.

[154] It was put to him that it might be suggested that a general surgeon having seen the histopathology might be able to count backwards to know when full thickness necrosis was present and when the ischaemic process began but he said it was very difficult to give timescales. A later histology indicated that there was irreversible damage at the time of the first operation but it came down to the judgement of the surgeon. One could not count back and see what must have happened. There was no evidential base for doing this. He could not go back and say that it must have been apparent that there was irreversible damage. A different surgeon might have made a different judgement and sometimes surgeons just got it wrong.

[155] In re-examination I understood him to say that his view as to how the bacteria permeated would be the accepted view. There was a disagreement over the interpretation of the CT scan. He had a high volume of expertise as a gastro-intestinal surgeon. Translocation was by and large spread through the blood stream.

[156] The last witness for the pursuer was Professor John Howard Scholefield. He was a professor of surgery at University Hospital in Nottingham. His experience and qualifications are set out in his CV number 6/18 of process. He was a consultant general and colorectal surgeon and had been involved in research for a number of years and had sat on a number of committees and produced a number of publications. It was part of his job as a professor to keep up to date. His report in the current case was 6/9 of process. The factual background was set out at page 4 but I need not go into that. Page 5 set out his summary of conclusions, pages 8-11 set out a history of the case and pages 12-14 set out his expert opinion before his conclusions were drawn at pages 15-16. Paragraph one of page 5 was in the following terms:

"The operative note on 26^th. April is not clear about whether perforation of the small bowel occurred pre-operatively or intra-operatively. However, when reviewed with the histopathology report from the resected piece of small bowel, it seems likely that the necrotising fasciitis resulted from bacterial translocation through an ischaemic and ulcerated segment of small bowel.

He was told that a hole occurred when the surgeon manipulated the bowel and proceeded thereafter on that basis. Paragraph two is in the following terms:

"The extent of the ulceration and full thickness necrosis described by the Histopathologist make it very likely that this segment of bowel under the band adhesion was ischaemic at the time of the original laparotomy by Mr Kingsmore on 24^th. April."

He said that there was a time scale involved. His view was that the tissue must have been ischaemic at the time of the first operation. He was asked whether it would have been obvious. His position was that a reasonably competent and experienced surgeon would have recognised that this was the case. If the bowel tissue became like wet tissue paper fifty-two hours after the previous operation then that confirmed his view that it could not have been viable at the time of the original operation. Paragraph three is in the following terms:

"The most likely sequence of events is that there was a patch of ischaemic bowel lying beneath the band adhesion which was divided on 24^th. April. This area subsequently underwent full thickness necrosis and led to bacterial translocation from the gut lumen to the peritoneal cavity some time on 25^th. April, and within a few hours of this occurring Mr McEwan developed severe abdominal pain and the downward spiral began."

He said that the bowel need not be necrotic to its full thickness for bacterial translocation to occur. It could occur once the sub-mucosal barrier was broken down. If there was an insult such as a period of ischaemia then that barrier was often broken down and full thickness necrosis was not required. The ischaemia could be transient or permanent. He was referred to the chart at page 472 and asked about the condition of the tissue during the first operation. It was put to him that it had been suggested that around 0440 hours on the 25^th until around twelve noon that day there was a deterioration in the patient's health and that must have been when the infection took hold. He noted from the chart that the blood pressure dropped after about 10 am and stayed down throughout the 25^th and the pulse rate was increasing from the 24th when it was 100 to about 120. That was compatible with the onset of the septic episode. He was asked about the condition of the tissue and asked how the chart helped. He said that the readings suggested a trend involving Mr McEwan becoming bacteraemic and one could infer from that that he was septic and that bacteria were translocating from the gut wall. It would therefore have been sufficient ischaemia to allow that. I understood him to say that the bacteria would escape into the peritoneal cavity and then into the blood stream from there.

[157] Paragraph four of his report read as follows:

"A responsible body of surgeons acting reasonably would be very careful to examine the viability of the bowel wall underlying a band adhesion at operation. The area under such a band is commonly dusky initially but pinks up within a few minutes of the band being released. This inspection and the decision over the viability of the bowel wall is such a critical part of the operation that no reasonable body of surgeons would fail to undertake this part of the operation or to record it in the operation note. There is absolutely no mention of the colour of the bowel after dividing the band adhesion, nor of any ischaemic patches. I believe this to be evidence of provision of a substandard level of care."

[158] He was referred to the operation note at page 95. He said that any reasonably experienced and competent surgeon conducting such an operation first divided the adhesion and then looked at the bowel underneath. That was the next most key element after the division. It was common to see a discolouration caused by the compression and usually it looked unhappy, sometimes bluish. Then the surgeon's responsibility was to establish that it was either viable or that it needed to be resected or oversewn. Sometimes it picked up and became hyperaemic and sometimes one needed to put packs round it and wait five or ten minutes before going back to inspect it. It was absolutely core.

[159] If one looked at a normal small bowel it was the colour of the inside of one's mouth. If it was compressed by a band adhesion and released it would be the sort of colour one had if one had blue lips and on recovering its normal blood supply it would become hyperaemic or cherry red. If it was not viable it would stay blue. If dead it went greeny blue, which indicated necrosis and gangrene.

[160] The decision when to resect was based on a value judgement based on how the bowel looked initially and then a few minutes later. If it stayed clearly blue then most surgeons would be unhappy to leave it like that and if it went cherry red then it would be alright. He was asked whether during the first operation the ischaemia would be patent. He said that if visible there would be an element of bluish discolouration that did not improve. I did not think that that really answered the question. At the second stage the condition of the bowel, which was like wet tissue paper, was important. That inferred that at the earlier operation it was not healthy tissue and there would on the balance of probabilities been some fairly clear signs that it was not. To go from viable to necrotic in forty-eight hours was rather unlikely. It usually took a bit longer than that. This was a very short space of time for it to go from healthy tissue to a state of disintegration. The patient had had a three day history of abdominal pain before being admitted on the 22^nd. By the time of the operation he had had at least five days of it. It depended on how tight the constriction was but it was obviously a long history. It was a long time to be obstructed and increased the risk of the band being ischaemic. It was more reliable to work backwards rather than to infer anything from this five day period and go forwards.

[161] Paragraph 5 of his report at page 5 dealt with Mr Kingsmore's experience. Amongst other things it said the following:

"The fact that an area of ischaemia in the small bowel was not recognised implies that Mr Kingsmore should not have been operating alone in this case."

He was told that Mr Kingsmore was in his third year of higher surgical training and he had done operations of this type previously. That did not alter his view. A third year specialist registrar might not have spent all of these three years in general surgery. These were subjective judgements and required a degree of experience. He probably did not have a log book for the surgeon. The fact that he did not record anything led the witness to think that he could not place any credence on how experienced he was. He did not think that any responsible surgeon acting reasonably would have failed to recognise the non-viable state of the small bowel then. In terms of paragraph six he opined that had the area of ischaemia been identified and resected then the patient would have probably made an uncomplicated recovery from his illness. Paragraph two on page 12 read as follows:

"Mr McEwan has clearly suffered a very serious illness as a consequence of developing necrotising fasciitis in his abdominal wall and scrotum. The most likely cause of the necrotising fasciitis that it occurred due to synergistic gangrene caused by bacterial translocation through an ischaemic patch of small bowel underlying the band adhesion, following surgery to relieve an intestinal obstruction caused by a band adhesion (sic)."

He agreed that we had been discussing the transfer of bacteria into the peritoneal cavity. He was asked whether bacteraemia had a role to play and said that it was a cascade. Bacteria got into the cavity and then into the bloodstream and then the toxins got into the bloodstream causing septicaemia. That moved on to multiple organ failure. Once the bacteria got into the cavity and the bloodstream, systemic sepsis was almost inevitable. The first process was transfer of bacteria into the cavity itself and then into the bloodstream. One led to the other. It was possible for bacteria to get into the bloodstream before they reached the abdominal cavity but that was not so likely in this case. The gut had not been opened in the first operation and there was no obvious mechanism for the bacteria to get into the system. Paragraphs four and six were in the following terms:

"4. The Histopathology report identifies extensive mucosal ulceration and full thickness necrosis of the bowel wall under the band like area which was probably the site of the band adhesion. One of the features of the operation to relieve intestinal obstruction caused by a band adhesion is to confirm the viability of the bowel wall underlying the band adhesion. Often the area will appear dusky at first, but on warming (by return to the abdomen or wrapping in saline soaked swabs) the viability of the bowel can quickly be established. Failure to do this or to record that the bowel viability was checked is to omit a key part of the operative findings. A responsible body of surgeons acting reasonably would not omit such an important detail from the operation note."

"6 The time period between the first laparotomy at 1400 hours on 24^th. April to Mr McEwan developing signs of necrotising fasciitis at 1615 hours on 26^th. April is approximately fifty hours, but Mr McEwan became unwell at 0400 hours on 26th...."

Having seen the chart he said that it looked as if the blood pressure dropped on the 25^th and got progressively worse until the 26^th. That meant there were signs of systemic sepsis during the afternoon of the 25^th, the blood pressure dropping from about 12 noon that day. The paragraph referred to the perforated bowel but he retracted that in view of what he now knew about the second operation. The paragraph went on as follows:

"There is approximately thirty-six hours between the original laparotomy and Mr McEwan developing jaundice, testicular pain and spreading cellulitis of the abdominal wall. Histopathology of the resected small bowel from the second laparotomy showed full thickness necrosis of the small bowel wall at the site of the division of the band adhesion. This would have allowed bacterial translocation...In any event, the development of full thickness necrosis of the small bowel would have allowed bacterial translocation and initiated the process of necrotising fasciitis..."

Even if one proceeded on the basis that Mr McEwan became unwell at around 0400 hours at 26^th that did not alter his opinion as to the condition of the tissue at the time of the first operation. By the 26^th he was really unwell. Paragraph eight ran, inter alia, as follows:

"8 In order for the bowel to have been sufficiently ischaemic to show full thickness necrosis within thirty-six hours of the original laparotomy it is likely that there were demonstrable changes in that area of bowel at the time of division of the band adhesion."

He was asked whether there had indeed then been full thickness necrosis and he said it was difficult to know exactly when that happened and to some extent that was not wholly relevant. The fact that he became septic and developed synergistic gangrene was due to translocation. One could have full thickness necrosis without its falling apart but it was well established in the tissues which are resected. If it was more established it started to digest itself and became more like wet blotting paper. Paragraphs nine and ten ran as follows:

"9. There is no evidence from the operation note that Mr Kingsmore identified an area of ischaemia under the band adhesion, or undertook precautions to make sure the bowel was viable. Nor did he make any note or comment as to the state of the bowel underlying the band adhesion. In this regard I believe the standard of the care provided was less than might reasonably be expected of a competent surgeon.

10. Mr Kingsmore's comment that he divided the adhesions of the small bowel to the abdominal wall by sharp dissection, indicate reasonable surgical practice. It is generally accepted that sharp dissection of such adhesions is often better than blunt dissection, which may result in the tearing of the bowel wall and iatrogenic perforation."

Paragraph 11 is as follows:

"11. The onset of Mr McEwan's deterioration appears to have started from around 1500 hours on 25^th.April, from which point he rapidly became deeply jaundiced, dehydrated, anuric and very septic. A discolouration of his scrotum in the early hours of the following morning was undoubtedly a manifestation of the necrotising fasciitis caused by the clostridial infection. These organisms were released from gastro-intestinal contents released from site of the perforation in his small bowel. The severity of the jaundice and the renal failure are also a consequence of this rapidly spreading clostridial infection which causes tissue necrosis and multi organ failure..."

He was asked whether it mattered at what point the patient became ill and he said that it mattered for those trying to look backwards for evidence that the bowel was necrotic at the time of the first operation and I understood him to say that looking at the records it became more clear that there must have been a significant change at the time of the first operation and it must have been pretty understandably and recognisably so. He was asked whether he was confident that the mechanism involved the bacteria translocating into the cavity and he said that it was possible that it went into the blood supply if there was mucosal ulceration. He said that there was no real difference at the end of the day whether it got into the cavity first or into the bloodstream first. Pages 15 and 16, setting out his conclusions, were really a reiteration of the summary.

[162] In cross-examination he was taken through his CV and agreed that one of his special interests was diseases of the colon, rectum and anus especially pre-malignant cancer. He had a number of wide ranging publications. He did not just concentrate on the large bowel but worked in gastro-intestinal disease generally. He also dealt with Crohn's disease, which affected any part of the bowel. He regularly dealt with the small bowel. He would do operations to divide band adhesions. Registrars did these under supervision to varying degrees and it was commonly done by trainees with a level of supervision depending on their experience. He said that band adhesions compressed the lumen and could also cause damage to the wall. He could not say that in every case one would expect some degree of damage to the small bowel. If there was an obstruction caused by a band adhesion which persisted for a time the risk of damage to the bowel wall was greater but if the adhesion persisted for a short period then often there was no damage. In the current case there had been obstruction for about five days so there was a high risk of damage. He was told that it had been suggested that one of the effects of compression was bruising and he said that that was an interesting phenomenon. Bruising was really blood leaking into tissue because blood vessels were damaged. He did not think that he had ever seen that as a result of a band adhesion and he would not expect to see it. A band adhesion caused gradual compression of the bowel wall and one normally saw a clear band where it had been. If there was bruising it would spread out and that would be seen. It was suggested to him that a band adhesion was like a ligature and he said that a ligature was usually tied tightly but a band adhesion was more of a gradual compression. He had never seen bruising in the bowel.

[163] He agreed that checking the bowel condition was an inherent part of the procedure. It was a core element. The operation to relieve the bowel involved, in the first place, releasing the band and then the key thing was to check the bowel's viability. If a person did not make a check that would suggest he did not know what he was doing. If he did know what he was doing he would expect him to check but he would also expect him to write it in the operation note.

[164] He was then asked about colour change. There might sometimes be little discolouration. The colour depended on how compressed it had been. If it was dead it would be black or green but if it was viable it would quickly blush or go hyperaemic. A healthy bowel was pink with a sheen like the inside of a mouth. It was not light pink or almost white. The colon was a paler colour than the small bowel and had muscle bands along it which were almost white and one could get white patches which were very fine but that was not the same as when there was a band adhesion.

[165] He was asked if one would see a dark red line on dividing the band and he said that it was variable. The return of blood to tissue would give a blush. If tissue was compressed there could be red hyperaemia as it recovered. Venous blood could give a bluish discolouration and as oxygenated blood got in there was hyperaemia. It could be that all one saw was a red line. If doctors were happy then the wound could be closed but, if not, one could resect or come back twenty-four hours later. He was asked whether if all he saw was a red line that might be seen as viable and he said that he would always wait a few minutes. When bands were divided one could see discolouration, sometimes blue. A line might become more hyperaemic before it faded. If hyperaemic, it was brighter red than normal. He put more weight on the histopathology than the chart. He was asked whether he was really able to say that the state of the band must have been patently compromised. The histopathology was the strongest evidence we had. In addition the band was like wet tissue paper fifty hours after the first operation. It was very unlikely that it was viable at that earlier time. That was based on his experience of gangrenous bowels and from going back in to operate. They did not go from being fully gangrenous to blotting paper in less than thirty-six hours so he thought that at the first operation there must have been something to indicate that it was not viable. It was very unlikely that it was viable at the time of the first operation. If the operation was done by a responsible surgeon it was very likely that he would have expected its non-viability to be identified. He based that on his own clinical experience and on discussions with colleagues during meetings and the like. They had not discussed this case particularly but there had been audit meetings and experience of going back into theatre after twenty-four hours. He said that the reference to thirty-six to forty-eight hours was a rough estimate where it appeared at item seven of page 13 of his report. It was suggested that since there was no perforation other than one caused during the operation and that occurred more than fifty hours after the first operation and, if he was correct, that suggested that most of the ischaemia had not occurred until after the first operation. He said that there was no difference between what was in his report and what he was saying in evidence. There was no substantial difference between the timescales. People were not machines. Perhaps he should have put it in his report as an approximation and should not have said that clinical experience dictated that the period between the onset of ischaemia and perforation was thirty-six to forty-eight hours. In answer to a question by me he said that the perforation he had in mind was one which occurred without surgical intervention and it seemed to me that there was no real difference between his report and what he was saying. He could not be 100% sure that the bowel must have been ischaemic but he was fairly sure that there were clinical signs of it. It would look dusky and would not pink up. There was nothing in the notes about its state and that worried him. That suggested that the surgeon did not understand the principles or know what he was dealing with. He was referred again to the histopathology report. That recorded extensive mucosal ulceration and that process would allow the translocation of bacteria before there was full thickness necrosis. In other words it could allow it into the bloodstream before it got into the cavity. The mucosa was usually the first part of the bowel to be compromised. The strongest layer was the sub-mucosa.

[166] In re-examination he said that the appearance of a dark red line would be consistent with what he knew, looking back. It was put to him that Dr Kingsmore indicated that there was a dark red line and he applied warm packs to it. When he came back five to ten minutes later it had changed to lighter red. He said that that was not consistent with what he would have imagined. He would have expected that if it was viable. If the band was going to recover he would have expected it to go from a dark to a redder colour. He would also have expected that to be included in the note because it was a key feature of the operation. It would surprise him if it went from a dark red to a lighter red. If it was like wet tissue paper some fifty hours later then he would have expected the mark to stay dark and discoloured and there would not have been any change.

[167] With that the pursuer's case was closed.

[168] The only witness for the defenders was Professor Zygmunt Henderson Krukowski. He was born in 1948 and was the Professor of Clinical Surgery at Aberdeen University as well as being a consultant general surgeon at Aberdeen Royal Infirmary. He was a surgeon to the Queen in Scotland. 7/7 of process was an abbreviated CV. He graduated MB ChB in 1972 and had held a number of posts. He was on the editorial board of the British Journal of Surgery from 1996-2002, the Medical Research Council, The Royal College of Surgeons of Edinburgh, took part in work with the Scottish Executive/Home and Health Department as well as being involved with Grampian Health Board, Aberdeen Royal Hospital NHS Trust and being the president of the British Association of Endocrine Surgeons. He had a special interest in emergency abdominal surgery and was the co-editor of the third edition of Jones on Emergency Abdominal Surgery (1998). He had a particular interest in infective complications of diverticulitis with regular invitations to lecture including bi-annually at St Marks in London. That was the premier hospital in the UK for dealing with colorectal surgery. He had written a chapter on sigmoid diverticulitis in the first four editions of the companion to the Specialist Surgical Practice series and had additional experience in severe abdominal infections, laparoscomy and abdominal wall reconstruction. He had been on the Faculty of Meetings on this topic and given invited lectures to the Royal College of Surgeons in Edinburgh and the Annual Meeting of the Association of Surgeons of Great Britain. He was interested in surgical infections and in the prevention and treatment thereof. One of the most severe complications was the loss of tissue in the abdomen through severe infection, and he had spoken on that. He had been involved in most of the cases of that nature which had passed through Aberdeen and which had been referred to them.

[169] The sort of loss which was sustained by Mr McEwan was of particular interest to him. It was an infrequent event but he was interested. In his practice he managed patients who had suffered loss of abdominal tissue and he undertook surgical reconstruction.

[170] In connection with Mr McEwan he had been given the pleadings, various statements and reports, medical records and radiological images. He had seen the reports from Professors Keighley and Scholefield and had examined the pursuer in Aberdeen on 21 May 2008 before producing a report, number 7/8 of process. Paragraph one set out the history he was given by Mr McEwan and paragraph two dealt with his treatment in Glasgow Royal Infirmary and his current position. Paragraph three gave an account of Mr McEwan's infertility and paragraph four was a report of the examination. Paragraph five ran as follows:

"The loss of the abdominal musculature has resulted in an extensive hernia of the abdominal viscera but the protrusion has not progressed over the last few years. This may be due to the effect of the elasticated abdominal garment. He has no cutaneous sensation over the extensively skin grafted area."

It might be a combination of the scar tissue and the abdominal support which had prevented the protrusion from progressing.

[171] Paragraph seven was in the following terms:

"Mr McEwan presented as a reasonable individual, not excessively psychologically disturbed by this traumatic experience. There is a considerable reduction in the quality of his life following this episode. He cannot take part in physical activity involving his trunk muscles including former sporting and many normal domestic activities."

That was what Mr McEwan had reported to him and he accepted that it would be the case. Paragraph ten was as follows:

"There is the potential for him to undergo reconstructive surgery to refashion his abdominal wall. This should improve the appearance, potentially improve function and reduce the chance of progression of herniation. If successful, this could remove the requirement for the external support garment. However, reconstruction requires major surgery. Depending on the plan, this could involve tissue expansion to increase the availability of normal skin. Mobilising the skin graft over the abdominal viscera, and the remaining normal skin, subcutaneous tissue and muscles of his abdominal wall would permit some approximation of existing normal tissue but the lost abdominal musculature and tendon requires extensive replacement with prosthetic material. Covering prosthetic material would require extensive mobilisation of healthy abdominal skin with subsequent secondary defects."

In other words, the witness thought that Mr McEwan could undergo reconstruction but it would be more than one procedure and would be major surgery. The fact that he was unwilling to do so was a reasonable position for him to take.

[172] Paragraph eleven read as follows:

"Further surgery to the abdominal wall carries risks of bowel injury, infection and technical failure and he is understandably apprehensive about undergoing further surgery. I would consider these risks acceptably low in his situation were he to decide to proceed."

He reiterated that Mr McEwan's position was a reasonable one to take.

[173] He said that far and away the likeliest cause of the patient's clostridial infection was translocation of the clostridia from the gut lumen. He agreed that he had an extensive systemic infection by the early hours of 25 April.

[174] He was of the opinion, having seen the documentation including Mr Kingsmore's CV, that the latter was sufficiently experienced and trained to carry out the operation, which was quite a common one. As far as the colour of a normal small bowel was concerned, he said that it would be fair to describe it as like the inside of the mouth. It would not normally be off-white. However, he was colour blind.

[175] It was a necessary part of a division to check the validity of the bowel wall underneath the band. What one would expect to see was a function of the tightness of the compression and how long it had been in place. The band could be compared to a piece of string lying across the bowel and compressed bowel was paler than normal. The longer the compression, the paler it would be. It was made pale because of the restriction of the blood supply. If blood was oxygenated it would be red but if the bowel was compressed and no blood going through it would turn pale. On releasing it, if the bowel was viable it would change colour. There were degrees of change. Sometimes the bowel wall would be dead at one extreme and sometimes it would return quickly to its normal colour. Sometimes there would be sufficient potency of the tissue underneath that would allow some colour to return. As the blood returned the colour to which it returned would be variable. I understood him to say that if there was damage then there would be leakage of small blood vessels causing bruising. If there was no change at all the surgeon would be unhappy. If the tissue was necrotic or damaged it would be pale. If small blood vessels were damaged and the blood supply was restricted one would get leakage of blood supply into the tissue. If it was damaged beyond recovery there would be no return of blood flow. There might be bruising if the tissue was damaged but not dead.

[176] He was asked about the scenario if the band was not divided but still pressed on the wall and had been there for some time such as two or three days. He agreed that the constriction would have been pressing on the serosa. During the period when it had been pressing it would have constricted the blood vessels. If it had done that it could cause bruising but it need not. He was asked whether it was possible that there was a bruise under the band which could not be seen because of the band and he said that depended on how tight it was. One could not see what was under it when it was still in place. It was possible that there might be a degree of bruising. He talked about his recent experience and indicated that there could be some bruising round about. He was asked about the process of bruising and said that it was the leakage of blood from within blood vessels into the tissues. Blood started off red and over time it darkened and along with dead tissue went through various colours till it was reabsorbed. There was a process by which it changed through various colours having started out as red. When blood was oxygenated it was red and when it leaked into the tissues the haemoglobin broke down and it went through several colours until it was reabsorbed. In other words it bled into the tissue, being red at first, and then it decomposed and broke down causing changes. He was asked how long it took to go from the red colour to a darker colour and said it took minutes for the oxygen to be used up, half an hour at maximum. It would then break down over a period and change colour until it was all reabsorbed completely. It was a necessary part of the operation to check the area underneath and see if it was viable. Surgeons wanted to look at the degree of compression to see if the tissue, which could be a very narrow area, re-coloured or pinked up. One wanted to see if it was contractile between the two edges of the band. If it remained white and did not change colour and was non-contractile then it was dead tissue. Sometimes it recovered very quickly and in between there was a range. There would always be a residual mark.

[177] One was not looking for peristalsis as such but a reaction to flicking. One wanted to see if there was such a reaction between the two edges of the band. He agreed that one of the other matters to look at was colour change and when he was asked if there was anything else he said it was not so easy in a narrow band but one had to look at the sheen. Furthermore, dead tissue might just give way.

[178] As far as colour was concerned, he said that initially one would expect the mark to be pale or white. If it was severely contracted it was pale. He was asked what the position was if there had been bruising and he said that the condition was usually pale. He could not recall a contraction where there was bruising under the band. One would, though, hope to see return of blood. I understood him to say that if the mark was pale and blood came back in, capillaries having been damaged previously, then one would get leakage and it would turn red. It would be dark red if it was bruising which was concerned. If there was no distinct change then he would be worried. If it changed colour he would be less worried. Blood could return in front of the surgeon's eyes. It could pick up very quickly and that was relatively reassuring. If one was not entirely happy one would come back a little later and have another look. He would not always use warm packs. Generally he would put the bowel back into the cavity. Packs could not be put on if the abdomen had not been opened. He was not all that keen on them since in any event they might cool down. The bowel would generally be left around ten minutes and if one was not happy then perhaps longer. One was hoping to see that the colour had improved, that the narrow strip had a sheen and that it was contracting. If it remained a red colour it was reassuring. One had to make a judgment if resection was required. Inevitably when resection was not thought necessary there would be occasions when a surgeon would be wrong. He said that if the line was dark red it probably would not improve over the course of an operation. A dark red line was more likely to be due to leaked blood. where there was a bruise it would not change colour over the course of an hour.

[179] He was asked then about reactive hyperaemia. If blood supply was restricted for a period and then allowed to come back in, the blood vessels would dilate and it would appear redder. It would be a good sign. He was asked what would happen if there was bruising and then reactive hyperaemia and he said that it would be hard to distinguish that in amongst the bruising, especially in a narrow constricted band. If it was obscured by bruising one would not see it.

[180] He agreed that one had to make a judgment and balance risks. There were risks in leaving it and risks in resecting it. As far as going back twenty four hours later was concerned, that was something he might do if a patient had had a number of operations and lost a lot of bowel tissue. It would be more imperative then to try not to lose any more. With a young fit man he would be less likely to leave it twenty four hours and would decide there and then whether to resect or not.

[181] It was put to him that Mr Kingsmore said that he saw a dark red line, that he put it in warm packs and got on with checking other organs and came back five to ten minutes later. When he looked at the site he saw that it was a lighter red and he also flicked it, noticing that there was peristalsis across the band and he saw small blood vessels going across it. There was nothing in that which was impossible. If that was what he saw then he said that it was reasonable to think that it would survive.

[182] If the area was black or green that would imply that it was already necrotic. If green, it would be a stage on from white but he had not seen a black line. If it was necrotic there would be other indications as well, such as softness, and the fact that it would probably fall apart. The stage of being green or black was further on from the stage of whiteness.

[183] He was asked about the histopathology report. It was likely that there was a process ongoing in the sub-bowel at the time of the first operation. It spoke for itself. He was asked whether it followed that one could infer that the changes were patent. He said that clearly in this case the right decision was not made but one could not draw that conclusion. There was a spectrum. He had seen patients suffer a perforation two days after a band adhesion and he was also aware of them where the wrong judgment was made but where fibrous adhesions developed, this being seen years later. Sometimes the decision would be wrong but it was infrequent.

[184] A modern French prospective study was done and showed that in three out of seventy three cases when a bowel was said to be viable it was the wrong decision. He said that they had been collecting data since 1977 on surgical infection and he could only recall two occasions when there was perforation after a band adhesion, so it was infrequent. Therefore if Mr Kingsmore's judgement was wrong, it was not unique.

[185] In cross-examination he was asked about bruising. Damage could cause blood to leak into surrounding tissue. The amount of damage to the tissue could determine the extent of the bruising. It would depend upon the size of the blood vessels which leaked and the pressure applied. In his experience there could be bruising round about a band or adjacent to it. His experience of bands themselves was that they were pale. It was possible that there would be bruising in the surrounding areas, particularly upstream of the band where there was congestion and distension.

[186] He agreed that translocation of bacteria from the gut lumen through the small bowel would occur where the gut barrier ceased to be effective. He said that if that happened it was probably dead. At least the mucosa would be ulcerated and dead and it was then a question of how lax the muscle and other tissue were. It would be very damaged. The key tissue was the mucosa. Once that was breached it was easier for bacteria to get through, although the tissue thereafter would not necessarily be dead.

[187] Where the band constriction was relatively narrow the flicking test would not be as constructive as one in a large piece of bowel. In the current case the band did not go round the whole circumference of the small bowel but he said that that would not happen normally in a band adhesion. He was asked whether that was significant and said that part of it might not have contracted but it was not the most reliable test.

[188] It was put to him that it was suggested that one could see blood vessels where the mesentery joined the small bowel and he agreed with that. He was asked whether it was unlikely to see them on the surface of the small bowel itself and he said that he could see that there would be circumstances where that would arise.

[189] With that the defenders case was closed.

Submissions for the Pursuer

[190] In opening his submissions Mr Armstrong invited me to find in favour of the pursuer, to sustain his first plea in law and to repel pleas three and four for the defenders. He indicated that he was not insisting in the case against Mr McGregor and invited me to disregard the pleadings referable to that to be found in Article 7.

[191] It was not his intention to refer generally to the clinical notes and he invited me to have regard to Professor Keighley's report, 6/7 of process, where these notes were handily summarised between pages 7-23.

[192] It was plain that Mr McEwan attended the hospital with a history of pain, conservative treatment did not work and he was operated on on 24 April whereafter he deteriorated. There was the onset of multiple organ failure followed by a second operation and he was lucky to be alive.

[193] He said that ongoing disability was less significant. The treatment in hospital would have a bearing on disability but his ongoing disability arose from the second operation itself.

[194] The real controversial area was the first operation and exactly what happened.

[195] He indicated that he had submissions on two fronts.

[196] The first case was that Mr Kingsmore wholly failed to perform the operation to the necessary standard of professional practice. In that regard his credibility and reliability came into sharp focus and I was invited to disregard his evidence. If I did so, then judgement in the pursuer's favour would follow.

[197] The secondary case was that if I accepted Mr Kingsmore's account then he failed to carry out the necessary standard professional practices properly and reached a clinical judgement which no ordinary competent specialist registrar in general surgery would have reached.

[198] He then turned to some general comments about Mr Kingsmore. There were two aspects which he wished to look at. The first of these was his demeanour and the second was the quality of his recollection. As far as his demeanour was concerned, Mr Armstrong submitted that he appeared defensive, sometimes more defensive than others and also agitated, although in fairness he did not make much of that given that Mr Kingsmore's professional reputation was to some extent on the line.

[199] As far as his recollection was concerned, he said that it was eloquent that there were aspects of the operation which he could clearly remember apparently and others where his recollection let him down. The two principal aspects about which he was clear were that (a) on dividing the band he saw a thin dark red line which changed to lighter red and (b) that he had no doubt about the viability of the tissue using such words as "no doubt", "sure" and "certain". Otherwise his memory was less than complete. Mr Armstrong gave five examples as follows:

1. As to the presence of Mr McGregor in theatre and the conversation they had, Mr Kingsmore's account was that Mr McGregor effectively put his head round the door, although Mr Armstrong was not sure if that was the expression used, asked if everything was going well and received a positive response from Mr Kingsmore. The premise of all that was that he was nearing the end of the operation and in the act of closing up the abdomen. Mr McGregor's account, on the other hand, was different. He did not just put his head around the door but was actually in the theatre and at the patient's side. The operation was ongoing with the abdomen still open.

2. He said that he could not recall the sheen of the area of underlying tissue, in respect of its significance.

3. He said that he saw small capillaries or blood vessels on the surface of the small bowel at the point of constriction. There was a difference of opinion as to whether that was possible. Mr McGregor said that that could not be correct because these vessels were microscopic. One could see vessels where the mesentery joined the small bowel but not in the small bowel wall itself. The significance of it was that Mr McGregor said that from seeing the blood vessels at the joint all one could say was that there was a blood supply to the section of bowel rather than to the particular point of constriction. If Mr McGregor was right then Mr Kingsmore's account could not be. In fairness, though, Professor Krukowski said that it might be possible to see small blood vessels perfusing when the blood supply returned.

4. Mr Kingsmore was unable to give any details of any discussions between himself and Mr McGregor between the two operations. Something had obviously gone wrong and one would expect discussions. Mr McGregor agreed that conversations had taken place about what had happened so why was Mr Kingsmore's memory not consistent with that?

5. Mr Armstrong had asked him questions about the frequency of his checks of the underlying tissue. The original position in the defences at answer six was that he checked three times but when it came to the Closed Record at page 9 there were four checks. In examination in chief, as it wore on, it appeared that there may have been any number of checks up to six. Mr Armstrong accepted that in an operation of this type no doubt he would be conscious of the bowel throughout but nonetheless he submitted that it was odd that he could not be more certain about what he had actually done.

He had no perfect recall. His recollections were apparently clear on the critical matter of the state of the tissue and its colour and vague about everything else.

[200] On the matter of the condition of the bowel there was a further aspect. The action was raised in 2005, three years after the operation and it was now six years since these events. The elephant in the room was that the operation note at page 95 of the records was silent as to the condition of the bowel. It was strange, therefore, that his evidence on that was clear.

[201] Mr Armstrong submitted that Mr Kingsmore had simply failed to carry out the standard practice of checking the viability of the tissue.

[202] I should have regard to his powers of recollection and approach that recollection with caution.

[203] Furthermore, the opinion evidence was against his version of events, especially that of Professor Keighley. His position was that the tissue underlying the bowel must have been non-viable and to have appeared so. Professor Scholefield said that it was very likely to be non-viable and to have appeared so.

[204] Professor Krukowski appeared to accept that the ongoing process had begun before the first operation.

[205] Five aspects supported this contention. The histopathology at page 272 was of significance. According to Mr Kingsmore, the appearance of the resected bowel was like wet tissue paper at the second operation. It was not just necrotic therefore but had reached a further stage and was falling apart in the surgeon's hands. There was full thickness necrosis with all four layers affected. Professor Scholefield was confident to work backwards and his initial timeframe of thirty-six to forty-eight hours in his report was described by him as an approximation. He had no difficulty with a period of fifty-one hours (although the operations might have been fifty-one hours apart) and did not see that as a problem. He was confident that one could assess the condition of the underlying tissue at the time of the first operation by reference to the histopathology report.

[206] Professor Scholefield's assessment was that it was based on his own experience and also on that of his professional colleagues with whom he discussed matters in morbidity follow-up meetings. Professor Keighley's view was that his opinion was consistent with the majority opinion of ordinary competent surgeons. He was also happy to work back from the histopathology report. Each of these gentleman thought that the underlying tissue would have been purple in colour and went on to say two things.

(a) If it was purple then there was a high risk that it was not viable and

(b) If it was purple (particularly Professor Scholefield) one would expect there to be no change in colour.

[207] In passing, said Mr Armstrong, it was of interest that in terms of the standard practice there had been a range of opinions given about assessing viability but there was one standard position taken and that was that there should be a change of colour. That was critical. If there was a change then one would feel happier than if there was none. In this operation Professor Scholefield would have expected no colour change and Professor Keighley was even more emphatic. He stated that the tissue could not have been viable and that fact could not have been missed, assuming it was checked.

[208] The second aspect of the evidence was this. The particular circumstances of this band adhesion were that the mesentery was not constricted which had a significance in connection with venous return and colour and there was no evidence that the bowel was twisted. In these circumstances, Mr McGregor said he would have expected there to be no colour change. He began by suggesting one would not necessarily see it and when asked when one would see it his ultimate position was that one would not. Interestingly in the context of a discussion about bruising Professor Krukowski had said that if the tissue underneath was dark red at first it probably would not improve in colour over the duration of the operation and also if there had been bruising followed by hyperaemia (a bright vivid red) it would be hard to distinguish the change of colour from the bruising in a narrow band. If there was hyperaemia it would be obscured by the bruise and one would not see it. All of this completely contradicted Mr Kingsmore's evidence that it was changed from dark red to lighter red. The third aspect was the chart at page 472. Professor Keighley said he had not seen this before compiling his report and at page 30 of the report he indicated that he concluded that at the time of the first operation the tissue must have been red or purple. Having seen the chart, he said that it must have been purple and discounted redness. The chart was an indicator that the infection had taken hold between 0400 hours and 1200 hours on 25 April, around twelve hours after the first operation, and it followed that the small bowel must have been sufficiently ischaemic to allow translocation to occur. Per Professor Krukowski this meant that the barrier in the wall at the mucosal layer was probably dead twelve hours after the first operation. How ischaemic must it have been at the time of the operation? There was an issue concerning how the infection came about and there had been two theories. One was that the bacteria entered the bloodstream without migrating across the bowel wall and the second was that the bacteria migrated through the thickness of the wall into the peritoneal cavity before entering the bloodstream through an inflammatory process, according to Professor Scholefield. It was significant that the bowel was dead at most twelve hours after the first operation. Mr McGregor gave evidence about bacterial translocation into the cavity and said that sort of translation could occur but it would be "late on." That led to the inference that the ischaemia must have been pretty serious at the time of the first operation and also obvious. The fourth point was the three day history of the patient on admission. By the time of the operation there had been five days of constriction causing painful obstruction. That sort of condition produced ischaemia. That was consistent with what we had heard from Professor Keighley that the ischaemia leading to the histopathology report had been ongoing prior to the first operation.

[209] The fifth point was that the pursuer's white cell count was mildly elevated on admission, per the notes at page 41. The evidence from Professor Keighley was that that would be consistent with ischaemia.

[210] These five aspects supported the contention that what Mr Kingsmore said he did could not be true. The tissue could not have been dark red and could not have revived.

[211] A sixth aspect was the non-recording of the operation. There were two aspects to that. The surgeon should record the procedure undergone and certainly it should describe the viability of the tissue. Both aspects were missing from the notes and both were described as critical. Both Professor Scholefield and Professor Keighley said that they would expect these matters to be recorded in the note. There was evidence by Mr Kingsmore that he considered that such recording was not standard practice but there was an illustration by example of a proper operation note from the operation in 1994 at pages 96-97 of 6/2 of process.

[212] Mr Kingsmore said that he considered the operation to be bread and butter and straightforward and Mr Armstrong suggested to him that it was so straightforward that he forgot to check. The fact that there no record of the check meant that the assessment was not carried out. If the practice was so critical that it was carried out it would be in one's mind and one would record it in the notes. If it was not recorded it suggested that it was not done.

[213] The evidence was incompatible with Mr Kingsmore's account about his assessment of the tissue's viability. He could not have found dark red tissue and there could not have been signs of revival by its changing to a lighter red. Mr Armstrong relied on the histopathology, the state of the bowel with the mesentery not being involved and no colour change being expected, the charts, the history before and after admission, the elevated white cell count and the lack of recording in the operation note. Mr Kingsmore's account could therefore not be accepted and, if so, there should be a finding in favour of the pursuer.

[214] Mr Armstrong also dealt with two other matters. The first of these was the bruising. Mr Kingsmore and Mr McGregor gave evidence about bruising in the context of compression of tissue by the adhesions and blood leaking from the blood vessels into the tissue. The opinion evidence of these witnesses should not be accepted. Neither could be said to be impartial and independent. Both were interested parties and there were, or at least had been, allegations against each. Each had an interest in the action and Mr McGregor was still working at Crosshouse Hospital. Mr McGregor in particular expressed an opinion on three aspects viz (a) the mechanism of bacteraemia; (b) the interpretation of the CT scan (pages 280-281) apparently showing beads of gas and (c) the relevance of the histopathology report. Mr McGregor took issue with Professor Keighley's interpretation of the CT scan and indicated that the histopathology report was not relevant to the assessment of the timing of events. Mr Armstrong invited me to hold that he was not an expert but in any event to treat his evidence with great caution. The real controversy amongst experts was between Professor Keighley and Professor Scholefield on one hand and Professor Krukowski on the other,

[215] Ignoring what Mr Kingsmore and Mr McGregor said, Professor Scholefield said that he had not seen bruising as a result of a band adhesion and would not expect to see it. Damage to blood vessels would be caused by gradual compression rather than trauma and that would not result in bruising. The comparison with a ligature was inept because one would expect a ligature to be drawn tight and that was not the case here. Furthermore the band was not wholly round the bowel wall. The part of it attached to the mesentery was not constricted.

[216] Professor Keighley said that he would expect bruising but over a wider area and spoke of diffuse leaking into tissues. He contrasted that with the circumstances of this case where the band was narrow. It was not consistent with diffuse leakage.

[217] Professor Keighley said that such bruising as there might be would not be confined to a narrow band and would extend beyond it.

[218] The second aspect under this general submission related to the question of bacteraemia leading to septicaemia and systematic sepsis. This was raised in cross-examination of Mr McGregor but had not been put to Professor Keighley, so we did not know what he would have said about it. Mr McGregor said that he would expect bacteria to get into the bloodstream while within the bowel wall. When asked Professor Scholefield said that he accepted that that was a possible mechanism but he expected that there would have been translocation into the peritoneal cavity and thereafter it would get into the bloodstream by a process of inflammation while in the cavity.

[219] There was therefore a divergence of opinion and I was invited to prefer Professor Scholefield.

[220] The relevance of this issue was that it might affect the timing of events. There was no doubt that there was multiple organ failure but that should be viewed as a parallel process to what was happening in the abdominal cavity itself, in other words the emergence of the gas gangrene and the attack on the abdominal muscle. I should accept the evidence of Professor Keighley, who had in mind that the damage had been caused by bacteria getting into the peritoneal cavity and did not consider septicaemia in that context but it was not put to him. Reference was made to his report at page 38 where he indicated the mechanism he had in mind.

[221] The second leg of Mr Armstrong's general submission was made under reference to the tri-partite test in Hunter v Hanley 1955 SC 200. He submitted that the three parts were proved.

[222] If Mr Kingsmore's account was to be accepted, then on dividing the adhesion he saw a dark red linear narrow mark a couple of millimetres wide. He used a damp swab to keep it hydrated and warm packs to prevent cooling, leaving it for five to ten minutes before going back to check it. When he looked the second time, it had turned a lighter red. In doing that he failed to reach the standard of care to be expected of a reasonably competent specialist registrar. Mr Armstrong relied principally on the evidence of Professor Keighley. Mr Kingsmore's account was put to him on a hypothetical basis although the professor's view was that it could not have happened that way. There were three aspects to be considered.

[223] Professor Keighley said that having seen the light red colour he should nonetheless have left the bowel for a further period because he should have been looking for a pink colour.

[224] In the second place, the flicking test was inappropriate. That might be appropriate where volvulus was involved but it was of no significance where a narrow band was involved. There could still be apparent constriction but because of the narrowness of the band it was difficult to determine if anything was wrong and the test would be misleading.

[225] If weight had been put on the result of that test by Mr Kingsmore then he attached greater weight than he ought to have done.

[226] In the third place, Mr Kingsmore could not remember the sheen of the tissue. In the context of the tests for colour, contraction and sheen he appeared to have placed all of his decision making on the change of colour which he said occurred, if we accept that the flicking test was not helpful. Mr McGregor said that there was a very difficult clinical judgement to be made in the context of there being no twisting of the small bowel and the mesentery not being involved but despite that, Mr Kingsmore said that he had no doubt. He should have had doubts and should have resected.

[227] It seemed to be accepted that there was a need to minimise the risk of making the wrong decision and judgements had to be careful and measured. Professor Keighley had given evidence about the consequences of a wrongful decision being conceivably a death sentence. There should be a low threshold for resection. Mr Kingsmore conceded that he had in fact made the wrong decision and that the ischaemia was ongoing between the operations, having already begun before the first operation. He regretted not dealing with it differently although that was not prayed in aid. His qualifications and progress since the date of the first operation were not relevant, the matter having to be judged as at 24April 2002. In that context he did not properly carry out the procedures. He should have had a doubt and there should have been a resection. He was negligent.

[228] As far as the second operation was concerned, Mr Armstrong made a submission upon which he did not place great weight. There were discussions between Mr Kingsmore and Mr McGregor between the operations and one would expect that. On the evidence it was reasonable to infer that Mr McGregor had a concern that the tissue underlying the band might be a possible cause of the problem. With hindsight it was accepted that it was the most likely cause but he suggested that it must have been in Mr McGregor's mind to go back to that band of tissue to check it. We had heard from Mr McEwan's mother, who remembered an exchange with Mr McGregor. After the second operation he said that he had gone back to find the tissue red and he had cut it out. He thought it unlikely he would have described it as red and it was reasonable to assume that Mrs McEwan had simply got that bit wrong. He did accept however that the conversation had taken place and he had cut out part of the small bowel. He also said, according to Mrs McEwan, that he had gone back to check the small bowel. That was consistent with him having in mind the need to check that part of the operation. The significance of that was the letter he wrote to the general practitioner which can be found at pages 33 and 34 of 6/7. Reference has already been made to that in my opinion. It was suggested that the use of words like "rather traumatic" was an understatement and Mr McGregor may have been defensive. He was a consultant in charge of the operation and if he had doubts about the matter it was consistent with Mr Kingsmore's having doubts.

[229] He indicated that this might be thought to be somewhat tenuous. I agreed with him and will say no more about it.

Submissions for the Defenders

[230] Mr Stephenson, in his helpful written submissions, drew my attention to the case being made against Mr Kingsmore in Article 6 of condescendence. He also drew my attention to the pursuer's averments as to the normal practice in 2002 which was said to have been as follows:

"... to examine carefully the area of tissue under the adhesion in order to assess its viability, to note areas of discolouration suggestive of ischaemia, to allow a period of five or ten minutes for re-examination after the application of warm packs to see if discoloured areas regained a healthy pink colouration, and, if the tissue appeared non-viable, to resect or oversew the area."

He drew my attention to the fact that the case against Mr McGregor had been withdrawn. His evidence had been criticised because he had an interest in the case but it was only because the case against him had not been dropped at an earlier stage, as it should have been.

[231] Mr Stephenson mentioned the case of Hunter v Hanley, to which reference has already been made. In order to succeed the pursuer had to prove that the doctor said to have been negligent was guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. Where a deviation from normal medical practice was averred the pursuer had to prove (i) that there was a usual and normal practice, (ii) that the doctor had not adopted that practice and (iii) that the course that the doctor adopted was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. He referred to a number of other authorities but I do not need to concern myself with those since I regard the test as uncontroversial. Mr Stephenson submitted that the pursuer needed to establish a causal connection between the alleged negligent acts or omissions and the injury and again that is uncontroversial.

[232] He submitted that expert evidence fell to be tested by reference to the criteria in Bolitho v City & Hackney Health Authority [1998] AC 232. Where there were competing bodies of opinion in relation to matters of medical or surgical practice it was not for the Court to prefer one to the other. He referred to the Opinion of Lord Hodge in Honisz v Lothian Health Board [2006] CSOH 24, 10 February 2006. At paragraph 39 Lord Hodge said the following:

"First, as a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the Court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman at p. 639F-G). Secondly, however, the Court does not defer to the opinion of the relevant professionals to the extent that, if a defender leads evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all case conclude that there has been no negligence. This is because, thirdly, in exceptional cases the Court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City & Hackney Health Authority, Lord Browne-Wilkinson at pp. 241G-242F, 243A-E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct. This will rarely occur as the assessment and balancing of risks and benefits are matters of clinical judgement. Thus it will normally require compelling expert evidence to demonstrate that an opinion by another medical expert is one which that other expert could not have held if he had taken care to analyse the basis of the practice. Where experts have applied their minds to the comparative risks and benefits of a course of action and have reached a defensible conclusion, the Court will have no basis for rejecting their view and concluding that the pursuer has proved negligence in terms of the Hunter v Hanley test. ... As Lord Browne-Wilkinson said in Bolitho (at p. 243D-E), 'it is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmark by which the defendant's conduct falls to be assessed."

[233] Mr Stephenson submitted that each of the medical witnesses was prima facie qualified to express an opinion on the matters in dispute as each claimed to undertake the surgical procedure. The principal interests of Professors Keighley and Scholefield and Mr McGregor lay elsewhere, in colorectal disease and/or bowel cancer. Accordingly they were essentially general surgeons in relation to the matter under dispute.

[234] Mr Kingsmore had since 2002 developed a particular interest in his role as a vascular surgeon in the assessment of and restoration of blood supply to the small bowel. He was the only one of the witnesses who had sub-specialist knowledge and experience with direct relevance to the case. He could bring retrospective analysis based upon his subsequently acquired experience to the events of 24 April 2002. Professor Krukowski had a special interest in emergency abdominal surgery and was experienced in relation to severe abdominal infections. He undertook abdominal wall reconstruction surgery in cases similar to the pursuer's.

[235] Mr Stephenson submitted that the lack of unanimity among the witnesses on material matters relating to normal practice was surprising.

[236] He accepted that Mr Kingsmore appeared defensive and was not always articulate. On the other hand, the fact that he held a consultant post in a major Scottish surgical centre and his professional appointments suggested that he was well regarded. He was obviously upset by what had happened which showed how conscientious he was, and he had no direct financial interest in the outcome.

[237] The fact that he remembered the important parts of the operation was understandable. He submitted that Mr Armstrong's five bases for his attack on Mr Kingsmore's recollection did not bear scrutiny. He turned first of all to the supposed discrepancies between the accounts of Mr Kingsmore and Mr McGregor in relation to the latter's presence in theatre and the conversation which took place. I need not go into his submission in detail since I agree with him that there was no material difference between the two accounts. There was only a short exchange following which the operation continued and it is not a matter on which I would have expected the evidence to be exactly the same in every small detail.

[238] Mr Armstrong had submitted that Mr Kingsmore was unable to recollect the sheen of the piece of tissue under the band adhesion and that this was indicative of unreliability generally. Mr Stephenson said that Mr Kingsmore was not asked in examination-in-chief about the sheen. On being asked about it in cross he had said that he did not recall on immediately releasing it whether there was a sheen but the matter was taken no further and was not visited in re-examination. There was no basis for holding that he did not consider the sheen at a later point. Nonetheless, it seems to me that the sheen is one of the aspects of the tissue which should have been looked at and I do not consider that Mr Armstrong's point is entirely without substance. Of itself it does not amount to very much but I consider it to be an adminicle of evidence which does in fact assist the pursuer's case.

[239] Mr Stephenson then turned to the supposed inconsistency between Mr Kingsmore and Mr McGregor in relation to the observation of small capillaries on the outer surface of the bowel wall at the point of constriction. He submitted that Mr McGregor's evidence was not particularly clear. He initially said that one could very easily see small blood vessels and he would look for that before going on to say that they could only be observed where the mesentery joins the bowel. It was not clear whether there was any real different between this position and Mr Kingsmore's, which was that he saw small capillaries on the surface of the bowel. Perhaps Mr Kingsmore was simply generalising without appreciating the potential significance of his comment. The matter was not covered with him in re-examination and it was appropriate to be cautious about attaching any weight to this matter. Both accounts were consistent insofar as it was contended that the small blood vessels would be something to look for. Professor Keighley had agreed in cross-examination that one would normally be able to see small blood vessels running through the serosa of a healthy bowel, although they were not particularly prominent.

[240] Whether capillaries themselves can be seen, the issue seems to me to be whether blood could be seen returning, and I will return to this point in due course.

[241] Mr Stephenson then submitted that there was nothing in the contention that Mr Kingsmore was unable to recollect whether he conversed with Mr McGregor in the period between the two operations and certainly was unable to recollect any detail of such conversations. Again I agree with Mr Stephenson that there was nothing in this criticism.

[242] The fifth point made by Mr Armstrong concerned Mr Kingsmore's response to questions about the number of checks he had carried out. As Mr Stephenson correctly reminded me this was a part of the evidence where Mr Kingsmore became agitated. It might be considered, submitted Mr Stephenson, that he did so because he never deviated from his core position that he checked the bowel on release of the adhesion, proceeded with the rest of the laparotomy and then returned to revaluate the area under the band adhesion. It was submitted that the confusion largely arose from Counsel's attempts, in pleading the case and in conducting it, to distil a precise number of "checks" from his account. He was not inconsistent on the critical issue, namely the viability of the bowel and it was submitted that the lawyers' desire to reduce surgical procedure to a comprehensible list did not justify casting doubt upon Mr Kingsmore's evidence generally. This was a valiant attempt by Mr Stephenson but the pleadings are what they are and Mr Kingsmore's evidence was what it was. Whether he performed these checks or he did not is a crucial matter and his agitation seemed to me to be a factor which I ought to take into account.

[243] Mr Stephenson then questioned whether there was at the material time a usual and normal practice in respect of examination of the small bowel following release of a band adhesion and if so what that practice was. He submitted that there was consensus that the small bowel had to be checked for viability and that this was an essential part of the procedure. There was also consensus that the risk was that irreversible ischaemic damage had been caused to the small bowel, that, if there was, then an area of bowel wall would die because it had become infarcted or necrotic resulting in perforation and the leakage of bowel content into the peritoneal cavity, giving rise to peritonitis and the risk of infection. There was also consensus that the check for viability was by examination of the external surface of the bowel wall (the serosa) where the adhesion had been, that such a check for viability included visual inspection by reference to the colour of the serosa, that the area beneath the area where the adhesion had been would tend initially to be a different colour from that of normal healthy serosa, that unless one could be certain at once that the bowel wall was viable it was necessary to wait for a period of between five and ten minutes to check for improvement as measured by change in colour and that an assessment of viability required the surgeon to make a judgement, which could be a difficult one to make.

[244] As far as it goes I agree with those submissions.

[245] It seemed to be accepted, said Mr Stephenson, that there was a known incidence of such judgements being subsequently proved wrong. Mr Kingsmore was saying they were of the order of 5% with Mr McGregor suggesting that a recent paper in France threw up a lower incidence, namely 3%. Professor Krukowski had referred to a French study which indicated that in 3 out of 77 cases the decision that the bowel was viable had turned out to be wrong.

[246] I have certainly no reason not to accept that evidence but I did not think that it took us very far.

[247] Mr Stephenson reminded me that Mr Kingsmore's evidence was that he was not initially happy with the colour of the bowel and he placed it in warm packs before coming back to it later. His evidence, expressed in various ways, was that it had improved colour, having gone from a dark red to a lighter red. He repeated this at various stages. He said that the bowel wall looked bruised, not ischaemic and in his opinion it was viable. The single linear mark was dark red and was a few millimetres wide but with no indication that the mesentery had been constricted. He said also that on the surface he could see small capillaries and he thought it was viable.

[248] Mr Stephenson suggested that I should not reject this account, which, as I have said, was repeated throughout his evidence.

[249] Mr Kingsmore had said that a normal healthy small bowel serosa was pink, Professor Keighley said pale pink or white and that under normal circumstances it was just off-white. Mr McGregor agreed that it was light pink and Professor Scholefield said that it was a pink colour like that of the inside of the mouth. It was not an almost white colour although this was the colour of the external surface of the large bowel.

[250] Professor Krukowski said that it was pink to red and not off-white, although the colon was.

[251] It seemed to me that there was no real difference between these descriptions, which are, in any event, somewhat subjective.

[252] So far as the cause of the discolouration beneath an adhesion band was concerned, Mr Kingsmore attributed it to bruising. Professor Keighley said that it was because of compression of tissue under the band. The pressure prevented blood reaching the cells and there was fluid from the damaged cells and blood. It was a bruise. It changed from pink to dark red to purple and eventually to black and the band was like a ligature that did not go all the way round. Mr McGregor attributed it to bruising with the subsequent change being due to reactive hyperaemia, that is increased blood flow. Professor Scholefield referred to reactive hyperaemia, the return of blood to vessels which had been deprived of it and said that he had never seen bruising. He would not expect bruising to be caused because the effect is of gradual compression of the bowel wall.

[253] Professor Krukowski said that the colour would be white due to restriction of the blood flow to the area caused by compression of the band. There might be bruising. There was bleeding on restoration of the blood supply to the area into the tissues giving them an initially red colour which would then darken over time as part of the bruising process.

[254] Once again it seemed to me that there was no significant difference amongst the medical personnel, with perhaps such differences as there were being attributable to terminology rather than being differences in substance.

[255] Mr Stephenson then turned to the evidence about the range of colours which might be encountered when a band was first released and what their significance was. In chief Mr Kingsmore referred to a viable tissue being pink and dead tissue being grey. In cross-examination he said that there could be a range of ischaemic damage resulting in different colours with obvious grey, black tissue at one end of the scale to lighter shades of purple, red, pink or even white. Grey or black was indicative of death while purple was indicative of some bruising but was not diagnostic of the ability of tissue to recover. I was reminded that he specialised in this area.

[256] Professor Keighley had referred to puckering across the bowel. In this case there was more, something that looked like an electric burn across the gut. In fact he said that there "must have been more" then referred to an electric burn.

[257] He agreed that in almost every case a band adhesion was divided there would be a mark underneath but it was not normally purple. Red colour would indicate mild ischaemia, purple more severe and black would indicate death. He accepted that at page 30 of his report he said there would be a red or purple constriction ring and contrary to the pursuer's submission he adhered to this as he would prefer to allow a range of red to purple. That was his position in cross. At page 31 of the report he said,

"Given the subsequent events we know that the bowel will have had a linear mark across it which was purple. This line of purple colour would not have changed or improved with hot wet packs because we know that the bowel was ischaemic when the re-laparotomy took place 48 hours later."

When he referred to ischaemic he indicated that he should have used the word necrotic. I do not think that Mr Stephenson's submission on this is correct. I recall the evidence of the witness in cross. It was that there would have been a range and he believed that it would have been purple, given that the obstruction had been present for five days. He preferred to express his opinion in terms of a range in his report.

[258] Mr McGregor indicated that dead bowel was black or green and that it was common to see a bruise on dividing a band adhesion. Professor Scholefield said that usually when released the bowel looked unhappy with a bluish discolouration. As it recovered it became hyperaemic and went cherry red over the area compressed. If it was not viable it would not go cherry red and would stay dusky blue or would go greeny brown. Depending how compressed the bowel had been it could be black or green or bluish/purple or it could go straight to cherry red. One might see a dark red line. He appeared to accept that hyperaemia might then cause the red to appear lighter. If one just saw a bit of redness and was happy that it was viable then one would close. It might become more hyperaemic then fade back to a normal colour. Cherry was really a very bright red. A dark red line on the bowel was consistent with what he would expect to be there. Professor Krukowski said that it could return to pink or go back to a bruised strip.

[259] Mr Stephenson then turned to the question of what improvement was sufficient to justify a judgement that the bowel wall was viable or not. He repeated what he said about Mr Kingsmore's evidence. According to Professor Keighley, if there was no change after the tissue was left in warm packs for a period then it had to be assumed the area was dead and required removal. He liked it to return to normal before he would happily close the abdomen. If it remained dark purple after it was put in packs for five to ten minutes that indicated resection. If one was unsure whether it was viable or not then one would re-operate the next day. He could not be sure that it was viable unless it returned to normal. If in any doubt he would have removed it. If the bowel did not return to its normal colour he would expect someone in his third year to seek the opinion of a senior colleague and if the colour did not return to normal there should be a very low threshold for resection. He said that he represented the majority opinion in that regard. If it was not back to light pink then he would defer a decision on resection until the next day. It was very rare that one would not look again if the bowel remained red.

[260] Mr Stephenson suggested that Professor Keighley's position was perhaps the most extreme.

[261] Mr McGregor said that a red line was favourable and suggested that the blood supply was being restored and any damage was reversible. A lighter red colour would be the result of increased blood flow going through the tissues and masking the bruise. Professor Scholefield referred to blushing cherry red.

[262] Mr Stephenson submitted that the Court could not be satisfied that there was a normal and accepted practice in relation to what colour was or was not an indication for resection since, except if the area was black or green the witnesses were not in agreement. No normal and accepted practice existed in respect of colour. The pursuer had not proved his averment that the return of colour required to be a healthy pink colouration.

[263] I do not read the pleadings as requiring the return of colour to be to a healthy pink colouration. The normal practice averred is to examine carefully the area of tissue in order to asses its viability, to note areas of discolouration suggestive of ischaemia, to allow a period of five or ten minutes for re-examination after the application of warm packs to see if the discoloured areas regained a healthy pink colouration and, if the tissue appeared non-viable, to resect or oversew the area. It is not suggested there that the colour has to be a healthy pink one, the main point of the averment being that the check is to see if the tissue appeared to be non-viable.

[264] As I have already indicated, it seems to me that descriptions of colour can be somewhat subjective and the real point of the practice averred is that the surgeon has to see if the tissue appeared non-viable or not. The real point is whether or not there has been a return of colour, however that colour is described. Is there or is there not an improvement?

[265] Mr Stephenson then turned to the question of whether Mr Kingsmore did or did not adopt the normal and accepted practice. He submitted that that question did not arise since there was no such practice but then went on to consider whether the course that Mr Kingsmore did adopt was one which no surgeon of ordinary skill would have taken if he had been acting with reasonable care. He submitted that the pursuer was driven to maintain that Mr Kingsmore undertook no examination of the small bowel wall after dividing the adhesion, there being unanimity that practice did require such an examination. He also had to maintain that ischaemic change sufficient to make resection mandatory must have been present and evident on reasonable inspection at the time of the operation had such inspection been performed because (a) this was the inference from the HDU chart entry for 25 April according to Professor Keighley and (b) this was the inference from the histopathology report according to Professor Scholefield. If Mr Kingsmore undertook no examination of the serosa then his failure to do so was negligent. It was very unlikely that he had so failed. He was experienced in the procedure, examination was an inherent part of it, if he understood what he was doing and was experienced enough to undertake the procedure then he knew he had to examine the serosa and it would be frankly astonishing if he did not do so. No reason was put forward to explain why he might not have done so and the duration of the procedure (about two hours) suggested ample time to examine the serosa. There was no evidence to suggest he was under any time constraint or other pressure that might have led him to take such a risk and at the end of the day Mr Kingsmore said that he did in fact examine the serosa. There was no reason to disbelieve him.

[266] It might have been helpful had he recorded the results of his examination in the operation note but he explained that he considered it implicit in what he had recorded that he had found nothing untoward. The absence of a specific mention in the note did not prove that he did not examine the serosa.

[267] Professors Keighley and Scholefield were at odds with each other as each opted for a different basis for the inferences which they drew. Professor Scholefield saw the histopathology as the important factor and did not regard the chart results as sufficient. He also had regard to the wet tissue paper. That undermined the validity of any conclusion from the charts by Professor Keighley. The latter's position might depend partly upon his initial view that there must be full thickness necrosis before there can be bacterial translocation. If he believed that, he believed that there must have been full thickness necrosis by the early hours of 25 April and therefore a potentially more advanced process of ischaemic damage to the bowel wall at surgery on 24 April than need be the case if translocation can occur before full thickness necrosis. In fairness, he appeared in cross-examination to contradict his previous assertion that full thickness necrosis is necessary for translocation. That being so I do not think that there is any force in Mr Stephenson's submission about this. In any event the majority view is that translocation can occur even without ischaemic damage, for example if there is a process of inflammation within the bowel.

[268] Mr Stephenson submitted that the retrospective exercise undertaken by each was deeply suspect and its only basis appeared to be clinical experience on an issue where it was difficult to see how much if any such experience could be gained and where there appeared to be no certainties. No evidential basis was presented for their assertions by way of published material or studies. Professor Scholefield asserted in his report that the period between the onset of ischaemia and perforation was 36 to 48 hours yet there appeared to be agreement that the onset was before the first operation and there were some 50 to 52 hours between that operation and the second without any perforation.

[269] It seems to me though that one has to look at his evidence as a whole.

[270] Neither Mr McGregor nor Professor Krukowski believed that one could make the inferential judgement that Professors Keighley and Scholefield purported to make. An area of non-viable bowel might take two days or two years to present.

[271] Professor Scholefield accepted that he could not exclude the possibility that the lack of viability of the bowel was not patent at the time of the first operation so his evidence did not exclude acceptance of the evidence of Mr Kingsmore. What in any event are they saying would have been patent? One had to consider any allegedly patent signs in the light of the competing evidence as to the circumstances of colour and colour change in which resection was indicated. If Professor Keighley simply came to the view that there must have been a red or purple mark left on the serosa then that was in any event Mr Kingsmore's evidence. I have already indicated that my understanding of Professor Keighley's evidence was that the mark would have been purple. Professor Keighley would resect or wait 24 hours and look again because he considered that to be evidence to irreversible ischaemic damage. Neither Mr Kingsmore, Mr McGregor nor Professor Krukowski would resect or re-operate in those circumstances. Similarly, if Professor Scholefield's evidence came to be that the presence of a dark red line on the serosa was consistent with what he would expect to have been there in the light of the whole information he now had then again that is what Mr Kingsmore said he initially saw. The only issue he would appear to have with Mr Kingsmore is that he would not have expected the colour to improve.

[272] Mr Stephenson said that there might be little of real significance in this part of the pursuer's evidence. Both Mr McGregor and Professor Krukowski said that if Mr Kingsmore saw what he said he saw then it was reasonable for him to think that the bowel would survive and reasonable not to resect. The issue was whether in the event that there was a red mark on the serosa with some lightening this made resection mandatory. Would a responsible body of surgical opinion accept that there did not have to be resection and had the pursuer shown that body of opinion to be deficient in logic in the manner described in Honisz? Mr Stephenson submitted that no negligence had been proved.

[273] It seems to me that I have to decide whether Mr Kingsmore did in fact see what he said he saw. Could he have done so?

[274] Mr Stephenson then turned to the question of causation. He submitted that even if the pursuer established that Mr Kingsmore was negligent because he did not examine the serosa there was no direct evidence of the appearance of it. The pursuer had to establish that had he examined it he would or should have identified irreversible ischaemic injury so as to impose upon him a duty to resect. The only evidence of this was the inference evidence from Professors Keighley and Scholefield which should not be accepted. If it was accepted then it established no more than that there was probably colour change that would have led some but not all surgeons to resect since Mr Kingsmore, Mr McGregor and Professor Krukowski would not. The pursuer's case then fell on causation.

[275] This part of Mr Stephenson's submission is obviously closely linked to the earlier part. It seems to me that it relies heavily on initial colour of the bowel on release of the adhesion but ignores any question of improvement of the colour.

Discussion on the merits

[276] I have already made a number of preliminary comments on the submissions of counsel. I turn now to the matter in more detail.

[277] I had no difficulty in accepting Mr Stephenson's general submissions on the applicable law, there being no controversy over that as I understood it. As far as the expertise of witnesses is concerned, I have set out their qualifications in some detail and I am satisfied that each of them was in a position properly to speak to the evidence which they gave. I did not consider that Mr Kingsmore for example was now in a better position to give evidence on these issues because of his particular specialism. This area is one with which they are all familiar.

[278] Subject to what I will say about Mr McGregor, there is only one witness whose credibility and/or reliability is seriously in dispute and that is, of course, Mr Kingsmore. It seemed to me that everyone else was doing his level best to tell the truth and give an honest opinion and if there had been a suggestion to the contrary I would have rejected it.

[279] Having said that, there was a suggestion by Mr Armstrong that perhaps Mr McGregor's evidence should be viewed with caution since he had an interest in the case. That interest effectively disappeared when submissions were made but I have to say that I also found him to be a credible and reliable individual and I do not doubt his honesty for a moment. I detected no self interest in anything he had to say.

[280] Mr Kingsmore gave his evidence in a very defensive fashion. He was plainly agitated and accepted that he had got his judgement wrong. That is not an end of the matter of course because the issue is whether that wrong judgement was or was not the result of negligence. He was plainly upset about what had happened to the pursuer. He has gone on to carve out a distinguished career for himself but this matter still preys on his mind. I agree with Mr Stephenson that he is a conscientious individual but my impression of his demeanour is that he was nervous about what happened during the course of the first operation and I am afraid that that calls into question his reliability. I did not think that he was being dishonest but my impression was that he was reconstructing what happened and his precise memory of the operation was perhaps coloured by what he knew should have been done. However, I cannot base my opinion solely on that impression.

[281] As I have indicated already, so far as the facts are concerned any substantial dispute appears to be as to what happened during the course of the operation. There is a dispute about the practice which was prevalent at the time but I have in the first place to make a finding about the operation itself. The only eye witness to the operation is of course Mr Kingsmore. The pursuer's case has to be based on such inferences as can reasonably be drawn on the balance of probabilities from the other evidence in the case. Obviously if Mr Kingsmore is correct in what he did and what he saw then the pursuer cannot succeed. His position is that he carried out the operation with all due care and attention, properly checked the tissue under the adhesion and was entitled to be satisfied that was viable, albeit that judgement later proved to be incorrect. His only failure, if it can be described as such, lay in the completion of the operation note. It seems to me to be plain on the evidence that proper completion of such a note was required by normal practice and that no responsible medical practitioner in Mr Kingsmore's position acting with ordinary skill and care would have failed to complete it properly. It is noteworthy that the other operation notes to which reference was made during the evidence gave a full account of the operation with which they were concerned. Mr Kingsmore's position that the note was not written as a defensive document was both inherently unconvincing and at odds with the purpose of such a document. I was not impressed by the suggestion that it was implicit that the tissue was viable because it was not said not to be, which is what Mr Kingsmore's evidence came to in this regard. If he is right about that one hardly sees the need for an operation note at all unless something particularly wrong is discovered or happens. I do not find the evidence of Professor Keighley about the purpose of such a note to be in any way controversial or unconvincing and I accept it. It is doubtless fair to say, as Mr Stephenson submitted, that the absence of reference in the note as to the condition of the tissue and the steps taken to check its viability does not mean that appropriate checks were not made nor the appropriate steps taken by Mr Kingsmore. However, I am afraid that I regard it as a significant omission. Mr Kingsmore accepted that these were important documents and that it was important for GPs to know why their patient was in hospital and what ongoing treatment he required. This should be accurate and as complete as possible. At the very least it seems to me that the deficiencies in this note weigh in the balance in favour of the pursuer.

[282] Something was made by Mr Armstrong of the number of checks which were made and of what were said to be discrepancies between his evidence and the pleadings both in the original defences and in the Closed Record. I think it has to be remembered that Mr Kingsmore himself is not the defender in this action, though he doubtless supplied the information upon which the pleadings were based. Whatever was said in the pleadings, however, Mr Kingsmore appeared to me to be less than clear about the precise number of checks which were undertaken. He likened the process to putting a car through an MOT. One would not note that a tyre had been checked forty times although one might see it forty times during the examination. He saw the tissue many times during the course of examination and did not think of it in terms of numbers of checks. I can see the force of that but on the other hand it seems to me again to indicate a somewhat casual approach to matters which, although intrinsic to the operation, are an extremely important part of it. One would have thought that particular care would have been taken to make specific checks and note them.

[283] So far I have looked at a number of matters which might be regarded somewhat negatively in the sense that they tend to undermine Mr Kingsmore's position. I have to say that the bulk of his evidence was non-controversial, consisting as it did of a general discussion of the anatomy involved and the standard operating procedures. His position ultimately was that he saw a dark red line which improved to a lighter red. If that is indeed what he saw where the band adhesion had been then it seems to me that the pursuer's case must fail. The question is, did he?

[284] In answering this the pursuer relies heavily on the evidence of Professors Keighley and Scholefield.

[285] I have already referred in some detail to Professor Keighley's evidence and I need not rehearse it here. I am satisfied that he has the necessary expertise to comment on the operation and he is plainly a man of great distinction. I took from his evidence that he would have expected, on examination of the charts and the histopathology to have seen a purple line where the band adhesion had been. He did refer at one point in cross-examination to a dark red/purple line but the preponderance of his evidence was that the line would have been purple. He would not have expected to have seen any improvement based on his examination of the material. He was highly critical of the lack of recording in the operation note although he agreed in fairness that did not mean the checks had not been carried out.

[286] It seemed to me that from what he had to say that the main thing he would be looking for would be some signs of improvement. He seems to have been as satisfied as he could be that there would have been no such improvement at the site of the adhesion and that any improvement seen would have been in the tissues on either side of it. This seemed to me to be a logical opinion and I found him to be a highly impressive witness.

[287] I do not consider that any of Mr Stephenson's criticisms of him hit home.

[288] According to him he knew that the area was dead bowel at the time of the first operation from the subsequent histology. He referred also to the charts but he did not base his opinion only on those and I do not think that Mr Stephenson is right to suggest that he and Professor Scholefield opted for a different principal basis for their inferences. Indeed, Professor Keighley indicated in chief that he was absolutely certain, based on the pathology, that the line would not have changed colour. In cross he referred to the histopathology report as absolutely crucial. He did not, it seemed to me, hold to the view that it was necessarily the case that full thickness necrosis was required before there could be translocation of bacteria and Mr Stephenson's criticisms of him in that regard were unfounded. His examination of the charts and the medical notes seem to me to provide ample support for what he had to say. As I understood his position the purple line would not have changed or improved even with hot wet packs because one knew that the bowel was necrotic when the re-laparatomy took place. Although he did appear to indicate that he would have wished the bowel to return to its normal colour the important part of his evidence, it seems to me, was that he was looking for improvement. In the absence of improvement then resection was indicated. At the very least advice should have been sought from a senior colleague or another laparatomy carried out 24 hours later. Mr Stephenson criticised his evidence and that of Professor Scholefield on the basis that it was not in fact based on any empirical evidence but I reject that criticism. I do not think for a moment that either of these gentlemen would have expressed their opinions if they were not satisfied about the truth of them based on their wide experience and discussions with colleagues.

[289] Mr McGregor had sufficient expertise to comment on the matter. Once again I have set out his experience and qualifications. As I understood it, his position was that the bowel wall would be a pale pink colour when it was healthy. Viability was difficult to assess and was not based just on colour, however. There would be bruising involving a rupture of capillary blood vessels. The bruising would not disappear and in fact took several days to resolve. One would have expected bruising in Mr McEwan's case. There were a number of ways of testing the viability of an area. One could look at tapping or flicking. If it ran across where the band adhesion had been the tissue was alive. One would also look at the muscle tone and the sheen. The bruising itself would not change. He indicated that one would not necessarily get any colour change if there was a bruise to the bowel and no twisting. He would check for blood vessels passing across the area but as I understood him that was more of a global test rather than being of assistance where the direct pressure was. That echoed the evidence of Professor Keighley that the surgeon might have found the rest of the bowel with impaired blood supply had pinked up but that he very much doubted whether the linear mark would have changed. It was put to Mr McGregor that Mr Kingsmore had said that there was a dark red line where the band had been and after five to ten minutes it went lighter red. That suggested that the area of bowel was going to recover. I asked him how a change from dark to brighter red with the restoration of blood supply would square with the fact that a bruise would not improve and he said that the change could be seen through the bruise with enough blood going through it. He did not consider there was any evidential basis for counting backwards from the histopathology but this itself seemed to me to have been something of an assertion and it was not clear to me that there was any evidential basis for what he had to say about it. He did not undermine in my opinion the evidence of Professor Keighley and did not assist me in deciding what Mr Kingsmore was likely to have seen.

[290] Professor Scholefield was a consultant, general and colorectal surgeon who had been involved in research for a number of years. Again I have set out his qualifications and again he seems to me to be a man whose expertise is beyond question. In his opinion it was very likely that the segment of bowel was ischaemic at the time of the original laparatomy. A reasonably competent and experienced surgeon would have recognised that this was the case according to him. If it became like tissue paper 52 hours after the previous operation that confirmed his view that it could not have been viable at the time of the original operation. Once again he referred to the area "pinking up" within a few minutes of the band being released. This was a critical part of the operation which no reasonable body of surgeons would fail to undertake or to record. He believed that the lack of mention of the colour of the bowel was evidence of provision of a substandard level of care. Once again I took from his evidence an opinion that he would look for signs of improvement. The fact that bowel was like wet tissue paper inferred that there would, on the balance of probabilities according to him, have been some fairly clear signs that it was not healthy at the time of the earlier operation. To go from viable to necrotic in 48 hours was rather unlikely because it usually took a bit longer than that. This was a very short space of time for it to go from healthy tissue to a state of disintegration. He thought it was more reliable to work backwards rather than to go forwards. Once again he went through the histopathology report and his opinion was fairly plain as to the condition of the tissue at the time of the first operation. It must have been a significant change at the time of the first operation and it must have been pretty understandably and recognisably so. In cross-examination he seemed to me to look for an improvement in the colour of the line. It is fair to say that he put more weight on the histopathology than the charts. According to him that was the strongest evidence we had. Adding the fact that the tissue was like wet tissue paper 50 hours after the first operation meant that it was very unlikely that it was viable at the earlier time. That was based on his experience of gangrenous bowels. He based his opinion on his own clinical experience and on discussions with colleagues as well. The reference to timescales in his report was really a rough estimate and made no difference to what he was effectively saying.

[291] Nothing in the evidence of Professor Krukowski seemed to me to undermine the pursuer's case. He was also looking for some form of improvement. If there was no distinct change then he would be worried. Blood could return in front of the surgeon's eyes. When what Mr Kingsmore said he saw was put to him he indicated that there was nothing in that which was impossible but it seems to me that that is as far as he went. The pursuer is not bound to eliminate all possibilities. He has only to prove his case on the balance of probabilities and one has to bear in mind Professor Krukowski's opinion that if the line was dark red it would probably not improve in the course of an operation. Professors Keighley and Scholefield were plainly of the view, based on their expertise and the examination of the documentation that Mr Kingsmore simply could not have seen what he said he saw, principally evidence of improvement, from dark to lighter red. It seems to me that the evidence discloses that there is an established practice that improvement is looked for. Mr Kingsmore could not in my opinion have seen any improvement had he looked properly at the area under the band adhesion. I am satisfied that any ordinary surgeon acting with reasonable skill and care would have examined the area carefully and would have either resected or performed a re-laparotomy the following day. It follows that I find that Mr Kingsmore was negligent.

[292] It may be that there is no accepted practice as to what colour requires to be seen following improvement but an improvement is nonetheless required. I am satisfied that there was none in this case. Furthermore, it is not clear under which circumstances the practice of flicking should be carried out but I regard that as a side issue in view of my findings as to the lack of improvement in the colour. Something was made of bacteraemia in the evidence and the precise mechanism by which the clostridia found their way into the bloodstream. I find that the mechanism of translocation was most likely to have been that described by Professor Keighley, to whom, as I recall it, the alternative mechanism was not put in terms. He derives support from Professor Scholefield, whose evidence I also found logical and who seemed not to regard the point as crucial. In any event, the alternative mechanism seemed to me to involve too much of a coincidence in all the circumstances.

[293] As far as causation is concerned, Mr Stephenson submitted that if Mr Kingsmore did not examine the serosa then there was no evidence as to its colour. As he pointed out, though, the evidence for this was the inferential evidence from Professors Keighley and Scholefield. Mr Stephenson submitted that this should not be accepted. He also suggested that if it was accepted it established no more than that there was probably colour change that would have led some but not all surgeons to resect. The case accordingly fell on causation.

[294] I do not accept this. I accept the inferences which Professors Keighley and Scholefield sought to draw and find that there was no sign of improvement. In those circumstances, standing what I have already said about the practice of looking for such a sign then Mr Stephenson's submissions on causation fail.

Damages

[295] The pursuer's evidence was broadly uncontroversial but not completely so. The operation which gives rise to this action took place in April 2002 when he was 38 years of age. His date of birth was 8 July 1963. He married his wife in 1994. She was 36 at the date of the proof. At the time she worked part-time for a clothing manufacturer making curtains and household materials. Mr and Mrs McEwan had a daughter Caitlyn, born 22 June 1998.

[296] At the time the pursuer was in full time employment with his current employer as a manufacturing engineer. He holds a degree in engineering from Paisley College namely a BSC in Industrial Engineering (Honours 2:1) (6/14 of process). His employers are now Clyde Pumps, formally Weir Pumps. In August of 2007 Weir Pumps sold part of their business to Clyde Pumps but otherwise his employment had been constant.

[297] He had been with the same employer since graduating in 1985. I accepted that he and his wife planned to have more children and he intended to carry on working with the same firm in the same field and progressing in due course. Prior to his operations he had been a keen golfer with a handicap of eleven and played two or three times a week at a local club in Kilmarnock. He was also a keen footballer, having been a Scottish amateur internationalist. He played for Scotland from 1990-1994. He then had an accident playing football and was operated on in that year. Thereafter he played again on a recreational basis but not at the same level. He had also started to get into coaching. Before his operation he played five-a-side football. He would train twice a week and played football on Saturdays and Sundays. The earlier injury was a ruptured duodenum which was caused when another player's knee caught him in the midriff. He spent two weeks in hospital in connection with that and was operated on. It led to ten weeks off his work.

[298] Just prior to his operation which is the subject of this matter he began to feel unwell over the course of a weekend. In the early hours of the Saturday morning he was wakened because of pain which lasted three days. He had visits from his GP on Saturday, Sunday and Monday and then his wife took him to hospital on 22 April. He remembered going into the Accident & Emergency Department at Crosshouse Hospital and being seen there but he had no recollection of what happened after that until around twelve days later on the Saturday of the following week in the afternoon. He had not received any pain killers when he had been assessed on the Monday but events were a blur.

[299] His first recollection was coming round in the intensive treatment unit. He was on a ventilator with a tube down his throat. On the following Tuesday he was transferred to Glasgow Royal Infirmary and spent four and a half weeks in the renal department. He had been transferred there to have plastic surgery on his wound but he was taken to the renal department because of kidney failure. Other organs had also failed but they had come back into full operation. He was told that he was suffering from clostridium myonecrosis, a form of necrotising fasciitis.

[300] When he was in the renal unit he was treated with dialysis once a day to clear the fluid which the kidneys could not discharge and then he received it every couple of days. After around four and a half weeks he went for a skin graft operation at the Glasgow Royal Infirmary. A week after the first skin graft he had another operation for the same thing and he spent a further three weeks in plastic surgery before being discharged. All in all he spent nine weeks in hospital.

[301] During the second operation at Crosshouse a lot of muscle was removed from the abdomen and that gave rise to the need for plastic surgery.

[302] The plastic surgery was not easy for him. In fact it was worse than the other operations because he was more alert and it was more painful. In the course of both operations skin grafts were taken from his thighs and placed on the abdominal and groin areas. He had two raw scars on his thighs which were very painful despite the medication. His appearance had been significantly altered and that could be seen in a set of photographs 6/1 of process. These were agreed to have been taken in June 2005.

[303] His position was broadly speaking the same now and an observation of him in chambers indicated that that was the case.

[304] There had been, however, a slight extension in the lower part of his abdomen. On his thigh could be seen the results of the skin graft operation, rectangular areas of about 6 inches by 10 inches on each. The photographs show his state below the rib cage extending to the lower part of his torso. His genitalia are also affected. The infection which is the subject of this action was in that area as well. The only solution to his problem was to cut away the infected areas until good tissue was found and the root of his penis had been affected. His penis and his scrotum had been affected and skin from his thighs had been placed on both of those.

[305] The second photograph in the bundle shows a view from the side. His internal organs are pushing against his skin and that causes him difficulty because he has no support there other than the skin. His sporting pursuits have curtailed significantly. He gave up playing golf in a meaningful way and struggled to play a full round. He could not maintain a swing and lasting eighteen holes was difficult for him. He had resigned his membership and no longer played. He had not been given a lot of medical advice about exercising but there was really nothing he could do because there was no muscle which he could improve. Physical exercise might in fact make things worse.

[306] He wore elastic supports every day and he purchased them himself. 6/15 and 6/16 of process were invoices. Originally he had obtained supports from Glasgow Royal Infirmary but he had then researched the matter on the internet and managed to obtain some from the USA. He purchased one every three or four months at a cost of $29.95 and a shipping charge of $20.00.

[307] His work was 80% desk bound. Sometimes he required to lift heavy objects but only occasionally. When that was required he would get someone else to do it because he simply could not. He could not lift stuff at home. He had to be very careful not to make his condition worse. It was not a major issue at work and he could get round it. Sitting at his desk, however, could be uncomfortable because of his shape and the support which he wore. He frequently had to get up and move around.

[308] He had had surgery in 1994 but he was even more vulnerable now. If he got a knock on his stomach all he had to protect his abdomen from the outside world was a thin layer of skin. He was even careful when he played with his daughter. His friends still played five-a-side football but he could no longer do so. He had no problems watching football in a stadium where he could sit down, football being a passion of his, but he could not venture into a crowd where there would be pushing and jostling.

[309] He had been very sporting minded and that had been taken away from him. His golf, his football and playing with his daughter had all been taken from him to some extent. He took her swimming and part of his wound was there to be seen. That could be commented on by people and he was aware of them looking at him.

[310] On the whole he had managed to get used to his condition. Initially for the first couple of years he was quite angry but he had through time learned to accept his lot and just get on with matters.

[311] Initially he was of the view that he would not want further surgery because he had been through enough. He went to see an expert in Aberdeen who told him certain things which could be done and he had also been to see the plastic surgeons at Glasgow Royal Infirmary. He had been told that a further operation would be a very major one involving a lengthy recovery time and time off work. He had probably settled for what he was, having had enough of operations.

[312] His intimate relationship with his wife had been affected. As could be seen from the photographs, his testes were above his penis, meaning that when he obtained an erection it did not come up as normal but went down. Intercourse was very difficult and painful and his marriage was less physical.

[313] Number 6/4 of process, records of Glasgow Royal Infirmary contained a letter at page 17 from a D McGill, a trauma fellow in burns and plastic surgery dated 13 August 2002. Amongst other things that said the following:

"He does have some scar fixation of the base of the penis which does not allow a lot of movement there."

That was what he had been referring to. He had not been offered the prospect of surgery to rectify his condition. If he had been offered it he would have shown the same reluctance. He did not really know what the chances were of setting something off again.

[314] He still had sexual intercourse with his wife and sometimes the pain of it was enough to put him off. 6/2 of process are a set of GP records. At page 66 there is a letter dated 31 January 2003 from the ITU follow up clinic dated 31 January 2003. That indicated that he was looking well and had reached normal weight, having been seen at the ITU follow up clinic that day. He was still wearing an abdominal support and had suffered loss of muscle from the centre of the wound but he was not keen for any operative intervention.

[315] He had been off work for some six months including the nine weeks in hospital and returned in about November 2002.

[316] No-one had really told him in detail what could be done for him but he would be reluctant anyway. Page 65 consisted of a letter of 4 April 2003 from Mr McGregor, the consultant surgeon involved in this case. Amongst other things it said the following

"I reviewed Mr McEwan at my clinic today...I realise that he has discussed on several occasions with our colleagues in plastic surgery the possibility of further reconstruction but I think quite understandably he has been unwilling to go ahead with this."

[317] Mr McEwan did not know what the discussions about reconstruction had been but in any event he would have been reluctant. Page 62 consisted of a letter from the consultant plastic and hand surgeon Mr S P Watson dated 7 October 2003. Paragraph 2 thereof is in the following terms:

"...he has been doing very well generally but I have noticed that he has increasing sign of herniation of abdominal contents via the skin grafts and whilst I am loathed (sic) to push him towards further surgery after his previous experiences it appears that it might become a necessity for him to have surgery in the long term. I think to reconstruct his abdominal wall would be a huge challenge and I wanted to ask your advice about what you thought about the practicality and/or timing of such an undertaking."

That letter was sent to Mr Taggart, a consultant plastic surgeon at the Glasgow Royal Infirmary. After the letter was sent he had an appointment with Mr Taggart to look at his position. He got the same answer from Mr Taggart namely that an operation would be a large undertaking involving a lengthy time off work. Very few operations of that type were done and most people in the pursuer's position chose to live with their condition and that was what he would choose to do.

[318] He confirmed that he had wanted to expand his family. The plan was to give Caitlyn a brother or sister. His family was a big part of his life and the inability to provide a sibling for Caitlyn was a big regret. He had noticed at times that Caitlyn at times could be lonely when her friends were away and she lacked company. That saddened him. She would occasionally ask why she could not have a brother or sister and she was told that her father had had an operation. She was not really sure where babies came from and in due course when she got older would be given further details.

[319] He had had tests done and was asked about the possibility of an artificial solution. At page 18 of 6/7 (the Crosshouse Hospital records) there appears a letter to a GP from a Mr Meddings, a consultant urologist, dated 31 March 2004. Mr Meddings was his initial contact at the hospital.

[320] The letter inter alia reads as follows:-

"Thank you for asking me to see Mr McEwan. He had a major problem in 2002 and this has clearly affected the inguinal region and affected the cord tissue which is all tethered there and there is certainly very little testicular tissue to feel on the left side and perhaps some testicular tissue on the right side. On examination the epididymi are palpable on each side just about although there is certainly soft tissue there to feel and no definitive vas.

I suspect that he has got an obstructive azoospermia as well as testicular damage and this was certainly related to the infection and surgery. His wife is 33. I have organised for a repeat seminal count. I have checked FSH, LH and testosterone and if the testosterone is normal it means there is functioning testicular tissue and if the FSH is elevated then it means that we would probably be unlikely to successfully aspirate any sperm cells."

[321] He said that he had had two sperm tests which came back showing no sperm. Page 17 was a letter from Mr Meddings to the same doctor dated 14 June 2004 referring to an ultrasound of the scrotum, reading inter alia as follows:

"The testicles are grossly normal. Normal intra-testicular arterial and venous Doppler signals are obtained. No focal abnormality shown within the testes."

[322] At page 16 there appears another letter from Mr Meddings to the same doctor date 30 June 2004. That indicated that the pursuer's ultrasound did show testicular tissue and in addition his hormonal profile showed that he had an excellent testosterone level of 41. There clearly was functioning testicular tissue and his FSH was in the middle of the road at 12.5 so there was a possibility that he was producing sperm cells and his problem was an obstructive azoospermia.

[323] In other words he was able to produce sperm but the delivery system was not working. It was suggested that there could have been intervention if the health board gave the go ahead. At the time, if that had been offered, they would have jumped at it. It was not, however, offered. He was told that he would need to make representations to the health board but because they had a daughter that broke one of the conditions of funding. He would have had to pay for it himself privately but he could not afford it.

[324] His general reluctance to have surgery also impacted on this. He had discussed the matter with his wife and she was supportive. They did not want to take any more risks.

[325] In hospital be obtained visits from all his immediate family including his parents, in laws, brothers and sisters and his wife. He had spent two weeks in Crosshouse and seven in Glasgow. All the family lived in the Kilmarnock area and mostly used a car to visit him. Things at home had to carry on. Caitlyn had to be looked after and the family mucked in in that regard. The gardening had to be done as well as things round the house. When he got home his wife looked after him. He was in bed for part of the time and up and about for a bit, it being two or three weeks or so when he was most in need of help. She helped him, for example, with getting dressed and tying his shoelaces. He was able to wash himself, however.

[326] She would spend about three or four hours a day looking after him and that continued for the first four to six weeks. By then he was starting to get on his feet and getting a bit stronger. She was looking after the garden and doing all the housework. He used to help with that.

[327] He was pretty keen on DIY but it was no longer a feature of his life. Prior to his operation he had done the average amount for a married man. Now he did part of the gardening and his wife assisted. Beforehand he would have done it all. The garden was about 25 yards square and there was also some garden ground to the front of the house. In addition there were a number of hedges which needed to be cut.

[328] The evidence about his employment prospects was the subject of controversy. He said that his job was largely sedentary but his future was uncertain. Clyde Pumps had taken over in August 2008 and there had been a proposal to move to a new facility in two years. That, however, had been abandoned three months previously. Weir Pumps had sold their premises before the takeover and the land had been earmarked for property development. Manufacturing in the UK was going abroad and his company was no different. They were exploring joint ventures in India and China and that was causing concern for the workforce.

[329] He was concerned about possible redundancy but there was no information coming from the owners. He would be at a disadvantage in the labour market because of his condition. The type of job he did was "few and far between". He would have to look at alternatives to what he did and manual work would be outwith his reach. Engineering generally was a fairly physical operation although he was more involved in the planning side of things.

[330] His gross salary was £31,000 and that had increased incrementally with the cost of inflation as time had gone on.

[331] In cross-examination he confirmed that he had played competitive football and five-a-side football with friends. He was around 38 at the time of the operation so his football was recreational but he had not played since.

[332] He had tried to play golf but he was nowhere near the standard he had been at previously and the game no longer gave him any pleasure. It was a chore and a labour to go round the golf course.

[333] He was referred to a number of letters in the GP records. The first of these was at page 70 and was a letter of 21 October 2002 from Mr McGregor. Paragraph 3 thereof was in the following terms:

"I must say I was delighted to see him looking so well today. His gastrointestinal tract is working normally and he has regained all the weight he lost. He has gradually been increasing his activities over the past couple of months or so and is hoping to return to work very soon. His only real symptoms are of heaviness of his abdominal wall and swelling which is to be expected given that he has really no right rectus muscle to support things."

That was a fair summary of his condition in October 2002. He was just about to start work then. He had recovered some lost weight but he was fairly thin. He had lost two stones.

[334] Page 69 was a letter from a Dr Gillespie, the Weir Pumps company doctor dated 31 October 2002. Inter alia that said the following:-

"I consulted with John and he stated that he was happy to be at his work full-time and that his job mostly involved sitting."

[335] Page 68 was a letter of 7 November 2002 to Dr Gillespie from a GP. It was in the following terms:-

"I enclose the most recent correspondence we have regarding this man's progress. We last saw him ourselves on 23^rd. October when he was well and we performed routine blood tests, which have come back normal. He also received a flu vaccination. He is on no medication currently and I am happy to say that his renal function appears to have returned to normal. It is therefore unlikely in the short to medium term that Mr McEwan will run into any further problems. The consequences of this illness to his future long-term health are obviously difficult to predict but I see no reason why there should be any reason why he should have any further prolonged episodes of work absence."

That was a fair summary. Page 65 was a letter from Mr McGregor to his GP typed on 9 April 2003. Amongst other things it said the following:-

"I was delighted to see him looking very well and he tells me that he is back to all his normal activities both work and social."

That was not right. He was not looking to play football at that time and he had not tried to play golf again. His work was fine but his social activities as far as recreation was concerned were curtailed. He was back working normally other than in respect of lifting things.

[336] The letter went on:-

"He has got two different abdominal supports both of which he finds helpful and he really has no complaints whatsoever. In particular his gastrointestinal tract function is normal with no abdominal pain."

Thereafter the letter discussed the possibility of further reconstruction. He said that once again this letter was a fair summary of his condition at that time other than the reference to his social activities.

[337] Page 23 was a set of clinical notes showing inter alia an episode of low back pain in May 2005 and treatment for a wart on 14 June of that year. It was fair to say that since around 2004 he very rarely went back to his doctor. He went once a year for blood tests and flu jabs.

[338] He told me that he had not done any football coaching since his operation and I accepted that.

[339] At page 7 of Professor Keighley's report the following comments appear:-

"John has an engineering degree. He enjoys playing football as a hobby and he is also a keen golfer."

He had no idea how the professor came to think that and as I indicated previously these were historical observations by the author.

[340] As far as infertility was concerned he confirmed that he had one daughter born in 1998. They had not tried to have another child between her birthday and the operation, it being in their plans to try again once Caitlyn was around four or five.
[341] He was 39 in April 2002 and 40 in July 2002. He still had further children in mind, however. After the operation he and his wife tried to have children and that was what kicked off the investigation. His wife was tested as was he.

[342] Sperm was not being delivered on ejaculation. There was a possibility of investigating IVF but finances were a problem as was his general reluctance to have further surgery and the fact that there was no guarantee of success. He had not made any requests to the health board but he had received a letter from Glasgow Royal Infirmary stating that funding would be unlikely to emerge.

[343] He was a graduate in industrial engineering and described himself as a professional engineer. His firm manufactured components which formed pumps and equipment was necessary for that. He looked at how components were made and what equipment was necessary and was involved in purchasing it. He was also involved in production systems and methods.

[344] Industrial engineers worked in a wide range of fields, not just in manufacturing. They also worked in the service industries looking at processes and systems. They were not exclusive to the manufacturing sector.

[345] As well as looking at the engineering side of it, he also looked at the people side of production. Ultimately it was a fairly broad-based skill which could be used in a variety of employment contexts. Production engineers generally did the same type of work and there was some overlap between them but they were not exactly co-extensive. It depended upon the company which one worked for.

[346] Production engineers perhaps concentrated more on the physical process of manufacturing. He agreed that his job was not really a manual one and was 80% desk based. Clyde Pumps had hoped to move into new premises in Cambuslang. The property was available and it had all the necessary area for the company as well as being close to motorway links and the Clyde which would supply it with water. The witness was not aware that the group of which they formed part had any other premises in Glasgow although he knew that they had others worldwide.

[347] He was not privy to the discussions at higher levels as to why the project had failed. It may have had something to do with the ground not being available or arguments over investments. The site had to be vacated by June 2009 to make way for Cala Homes and there were ongoing discussions about the future. He reiterated his worries about joint ventures in India and China because the labour force would be dispensed with. Clyde Pumps employed around 600 people, mostly at Cathcart but some of them in the service area. They dealt in pump technology and hydraulic engineering and manufacturing. The key markets included power generators and up stream as well as down stream oil and the water industry. The market was very competitive and Clyde Pumps had less than 5 % of the market share worldwide. They sold a lot of material to China who required a lot of their equipment to be manufactured there and that was another worry. Occasionally Clyde Pumps would recruit workers but not on a wholesale basis. They still had programmes for apprentices and had recently set up a pump academy which provided training to all employees. The witness himself might benefit from it.

[348] It was suggested that the company had no lack of confidence in its own future and the witness agreed that that appeared to be the case but said that the facts contradicted it.

[349] He had worked for the same employer since 1985 apart from the takeover and other than his six months off work he had never missed a day through absence. He was a valuable employee and made a valuable contribution to the undertaking. His concerns about redundancy were in the context of the workforce generally rather than seeing himself being selected for redundancy. There would need to be a closure of the Glasgow business for him to be involved.

[350] I had no difficulty in accepting the pursuer's evidence.

[351] The next witness was Keith Carter, an employment consultant, who had prepared a report number 6/16 of process. His CV was attached to the report as Appendix 1. For 24 years he had been the principal of Keith Carter and Associates who had offices in London and Edinburgh. He oversaw the preparation of labour market reports for courts and industrial tribunals as well as giving careers advice and counselling and being involved in management consultancy, salary studies and recruitment processes. Broadly speaking he had spent twenty five years looking at and giving evidence in employment matters.

[352] In preparing his report he had had access to medical reports from Professors Schofield and Keighley, had sight of Mr McEwan's P60s over a period of five years and had also interviewed him. He had sight of Mr McEwan's CV which was also appended to the report. Pages 1 and 2 gave effectively an executive summary, pages 4-11 gave a detailed analysis of factors infringing on Mr McEwan's employability and pages 3, 12 and 13 gave the witness's concluded views.

[356] He was asked first of all to look at paragraph 8 at page 2 which indicated the following:-

"The problems facing Mr McEwan for the future are that:

1. He is a less flexible employee.

2. He may not be able to guarantee that in the future so much of his job will be office based.

3. A factory lay out may be such that a considerable amount of walking to different sections of the site may be necessary, or moving into difficult or small spaces to inspect operations.

4. There may be, bearing in mind the shrinkage of job opportunities, a greater likelihood that some physical component would be necessary in his job."

He said that the pursuer would not be able to apply for certain jobs and if job tasks changed he might not be able to fulfil them. He had difficulty in manual operations and sitting was a problem as well. Around 70% of his work was at his work station although his total time spent sitting down would be about 80% if meetings were taken into account. The place where he worked was an enormous site. He did not know if that was a problem but it was a concern. As far as the fourth element was concerned he foresaw a problem that in a shrinking world he might have to broaden his range of job applications and not just look for desk- bound jobs.

[357] Paragraph 9 is in the following terms:-

"9. The dilemma therefore for Mr McEwan is that he will not be able to seek any job that becomes available but will have to wait until a vacancy appears which he will be able to cope with, although isolating a job does not necessarily mean that he will be appointed as his application will be viewed in competition with others."

He said that had he been fully fit Mr McEwan could have looked through the specialist press as well as the national press and pulled out any vacancies which arose. Now he needed to ensure that a job fitted not only with his skills but his physical capabilities. Paragraph 10 is in the following terms:-

"In changing jobs Mr McEwan is likely to face a loss in earnings, however even in an uninjured state moving jobs after such a long period with one employer may well have reduced his earning capacity."

He said that this was a difficult area and he wanted to put a caveat to his comments. If the pursuer had to leave his job and secure other employment he was likely to face a loss of earnings. He might also be at risk generally because of the recession and if that occurred so that he lost his job anyway he might have had to take a lower salary in any event. If he left because of his disability there might be a loss of earnings. Paragraph 11 reads as follows:-

"The problem in Mr McEwan's case will be:

1. A considerable extension in his job search period.

2. An ongoing vulnerability in the workplace (if job processes change he may find he is no longer able to cope with the position), and,

3. Whether he will now be able to continue in employment through to his chosen date of retirement."

He said that in a small market the number of jobs open to him would be smaller. The length of time to find a job would be extended. If he left his current employer he might have to leave another employer in due course. He might think from a job description that he was able to do the job but not every task was included in a job description and he might have to leave a subsequent job and go back onto the market.

[358] Currently he had a retirement age of 66 but it was likely to be 68 in the near future. He could not comment as to whether or not Mr McEwan could carry on working until that age, that being a medical matter, but if he left his job in his fifties a return to work would be much harder.

[359] Paragraph 12 was in the following terms:

"12. if Mr McEwan should lose or have to leave his present job then, although a difficult question, I would estimate an extension in his job search period of some 9 to 12 months which assuming a potential annual gross salary of £22,000-£40,000 pa gross, would mean a £15,231-£27,692 gross loss in earnings."

He said that this question was like asking how long a piece of string was. The typical length of time for a man in his area and of his age to find a job was six to seven months and factoring in the disability would make that figure much higher. He had not quantified any figures in connection with possible early retirement. He would defer to the medical men on that matter. The Rowantree Trust had done a study but that was based on disabilities in the round and that was a very broad figure. Fifty five was a possible age but Mr McEwan was a very determined character and wanted to continue working. That of course could change later. He was currently earning £31,000 gross per annum so a multiplier would have to be applied to that.

[360] The figures in paragraph 12 were in a range of £22,000-£40,000. He was asked how the pursuer's current income could be factored into that. As it happened that was in the middle but the witness had looked at other jobs available to him in coming up with his figures. Paragraphs 13-15 were in the following terms:-

"13. The second two headings in Mr McEwan's case are more difficult to quantify as they relate to his vulnerability in the workplace and handicap on the labour market.

14. If Mr McEwan were, for example, to have to in the future change job once or twice there would again be a 9 to 12 month extended job search period and as such a further loss in earnings.

15. In an uninjured state Mr McEwan could have expected a default retirement age of at least 66 years of age, but very probably as norms change in the lead up to a default retirement age of 68, an extension on this."

Pages 12 and 13 swept up his conclusions, which were all based on the more detailed information in the intervening pages.

[361] In cross-examination he said that perhaps 75% of his work was related to litigation. He reiterated the sources of his information. The pursuer had in fact worked with his employers while at university because he was there on a work placement. He was aware of the proposal by the employers to relocate. The pursuer told him about this and that one of his jobs was to look at new sites. They decided not to move and he understood from the pursuer that the decision was shelved for the foreseeable future but that rang certain bells and caused concern for the future. He was asked whether the purser had expressed concern about his security in his job and he said that he had given him information about his employers entering a contract in partnership with certain people in China. The contract was for five generators to be built in Scotland and one in China. The following year there would be three in China and two in Scotland and then the following year all of them would be in China. When he asked him if he had any difficulties in his job he very fairly said that he had difficulty in sitting but he could do the job. He thought the pursuer was a very straightforward individual. Nothing had been said to him by the pursuer about the sale of the site to Cala. He had not seen the site himself. The pursuer did not give any indication that he was about to lose his job and he had seen nothing to support the suggestion that the employers were about to go into liquidation. The pursuer was happy there but he was also concerned about his future. He was worried about that in a general sense rather than particularly in connection with his employers. Any loss of income would only arise if he could not cope because of his disability rather than because he was laid off. He could not speculate on that. He was asked what an industrial engineer did. Weir Pumps gave a good example of what he would do. They had a broad based training programme involving man power planning through to maintaining the factory equipment and that could involve maintenance as he moved up the ladder. He could for example go into planned maintenance programmes and emergency ones and the profitability of particular sectors. He believed that he would have gone into the turbines to understand how they were assembled. If he lost his job he would have to look at something which might involve maintenance. He would be surprised if he had not done some activity such as that with his employers although he did not specifically ask him. Any graduate-based training programme would require a full knowledge of the working process. It was suggested to him that an industrial engineer would be more involved with systems and methods rather than spanners etc and that perhaps the witness had proceeded on a misunderstanding. He rejected that suggestion. Mr McEwan was now in a position where he had responsibility in processes and planning but he was dealing with his early employment. He would have expected him to go into all departments including maintenance. If he had been uninjured he would consider a hands on job in the future. He realised that the pursuer had a broad base of experience. He asked him what his job description meant and he was told but it was all very technical. He did not consider the point that industrial engineers might also be found in the service industries. If he had worked in a different company then that might be relevant but he did not believe that he could just look at any job which existed. One had to look at his experience and preferences. It was suggested that if he had a wider skill set and was retrained then different factors would apply and perhaps different salary structures. That was true but the witness did not think it a probable scenario. If he was taken out and retrained and then put back in he would not be at the same level. He had not had a history of absenteeism and in fact had never had a day off since his operation. That would certainly have an impact on his looking for other work. He was asked whether he would expect the pursuer to be involved in lifting and he said that that was a problem. If there was a new turbine and he was overseeing its installation and inspecting it then that might arise. There was no such thing as a light construction job. He would not be expected to pick up spanners but if there was manual work to be done it would be better if he could perform it. At the moment he was coping with his work but if things changed it could not be assumed that he would continue to cope.

[362] Some of the figures in the report related to process managers and production engineers. It was suggested that they were different and the witness said that job descriptions varied widely. He canvassed the various tasks carried out by the pursuer but the problem was that there were no posts advertised which exactly matched his skills so a wider job search had to be undertaken. He did not necessarily assume that the pursuer would start at a lower salary if he got a new job. He only suggested that that could happen. If a new job was started it could not be assumed that the pursuer would inevitably go in at the top although he accepted that in appropriate circumstances there might be an increase.

[363] The next witness was the pursuer's wife Margaret Anne McEwan. At the time of her husband's admission to hospital in 2002 she was 31 and they had a daughter Caitlyn who was now aged 10. The witness worked then as a machinist in soft furnishings in Kilmarnock on a part-time basis for twenty hours a week. Her net monthly income was between £400 and £500. When her husband went into hospital at first she thought he was going in for an investigation, having had pain over the weekend, but matters became more serious. She realised that after the first operation when her mother-in-law telephoned her on the 26^th. She was told to go to hospital having received the call at work at 1400 hours. Her husband was seriously ill and she saw him. She learned afterwards what was happening. Mr McGregor spoke to her after a scan had been taken and indicated that there were air bubbles or gas gangrene like a form of necrotising fasciitis. She could not remember if she was told that the condition was life threatening because it was hard to take it all in. After the second operation she was aware that her husband was very unwell and would have to spend some time in hospital. He was in hospital for some nine weeks. She visited him every day and her mother helped with Caitlyn. The pursuer's mother visited him in hospital. Caitlyn went to nursery from Mondays to Fridays from about 1230 to 1445. Mrs McEwan would take her and her mother would pick her up. The witness would watch the child in the morning and then take her to nursery in Crosshouse. She would spend most of that period with her husband, the intensive care unit being quite open as far as visiting was concerned. She would have to juggle things to get her normal housework etc done. She visited in the evenings also. If Caitlyn was not at her mother's she might be at her brother-in-law's. The witness visited her husband at Crosshouse every evening for some two and a half weeks. These visits lasted an hour or more. She had visited him at Glasgow Royal Infirmary every afternoon and some evenings she would spend time with Caitlyn but she also visited her husband in the evening in Glasgow. There was always somebody there to visit him. She agreed that her visits to Glasgow in the evenings were slightly less frequent than her visits to Crosshouse. She travelled between Glasgow and her home between visits. She drove.

[364] Because of all this she stopped work. She thought that she gave up work in the week after the second operation. She did so in order to be there for her husband and her daughter. It was difficult to cope with work when he was in hospital and someone had to be in the house when he was recuperating. It was not possible for her to juggle her working hours to suit. The curtain shop where she worked was open during normal working hours.

[365] When he came home her husband was, at first, very weak and tired and spent a lot of time in bed. If he needed to get up she would help him for example getting into the bath or into the toilet. There were basic things which he could not do. In fact, there was not a lot he could do for himself. He was able to eat but it tired him and he would go to bed. She had to keep Caitlyn organised and away from him. Her family still came and took Caitlyn from time to time.

[366] He was discharged from hospital on 23 June and the nursery broke up for the summer holidays the following week. Her parents would still come and take Caitlyn. After the nursery closed her parents or perhaps some friends would come and take her. It was her parents who were doing it rather than the pursuers because they were doing a lot of visiting in hospital , although her own parents sometimes visited at night. Most of the time Caitlyn was with her parents when that was necessary.

[367] When her husband was at home Caitlyn was split between her parents and herself and sometimes she went to her brother-in-law's or her friend's house but mostly it was her parents and herself who looked after her.

[368] Her husband was off work for six months and it was a good three or four weeks after his return home from the hospital that he was able to start doing things for himself. If he wanted her she was always there at his beck and call. After a time he could do a bit more and that lightened the load a bit but she would still be helping him in and out of the bath because he had no stomach muscles. She had to do things about the house and outside. Either her husband would do these jobs before or they were shared but she was now doing them all. As time went on it was easing up a bit. Quite a bit of her life was taken up with looking after her husband. Everything sort of stopped just so she could be there for him. She did not have a break when someone else took over so that she could go out unless someone came in while she went out shopping.

[369] She was asked how long it was before his return to work that he was able to get about himself and said that it was probably at the end of August or beginning of September. By then he did not need her to tend to everything.

[370] This was a significant life event and it had affected him. There were a number of things he could not do. He was adjusting at first and took a day at a time. His character had not altered in any way, however, and he did not conduct himself in any different way. He was the same person as before, although he was limited in what he could do. Some things that he used to do, such as gardening and DIY and general household stuff, were no longer available for him. Occasionally they now paid someone to attend to the garden when it was needed. There was very little he did about the house in case he suffered injury. This lady was patently credible and reliable and I accepted her account.

[371] The next witness was Mary-Anne McEwan the pursuer's mother. Some of her evidence related to the merits and some to damages and it is convenient if I simply deal with her as a whole. She lived in Knockentiber, which is only about half a mile from Crosshouse. She had been a nurse latterly at Crosshouse hospital before retiring when she was aged sixty which I think was in 1994. She had some idea what would be involved when the pursuer was admitted. She was aware of what was happening as it was going on and was keen to find out. She spoke to Mr Kingsmore on the Monday night when he was first admitted and was told that they were going to treat him conservatively for a day or two. He told her that the fact that he had been in pain since the Saturday did not alter the position and he would be treated with drips and suction etc. He was no better the following day and the day after that was when he was operated on at first. She was there that night but he had not yet woken and she did not see him until the following day, that is Thursday the 25^th. He was declining and complaining bitterly about pain although that was not something he remembered himself. She spoke to a resident but did not see Mr Kingsmore or Mr McGregor at that time. Her son was in the high dependency unit.

[372] The second operation was radical. No one had told her on the Friday that her son had got worse. She went in for visiting around 1500 hours and there was a flap on involving doctors and consultants. She spoke to a medical consultant and he was asking her if there was anything hereditary which might explain the problem. She also spoke to the anaesthetic consultant who was taking him to be stabilised. In addition, he was going for a scan. She was in the waiting room when Mr Kingsmore and Mr McGregor came in and told her that the scan had revealed gas bubbles and necrotising fasciitis. They were taking him to theatre.

[373] After the operation Mr McGregor came into the waiting room. He said that he had had to go in and remove all the tissue that was infected. He had gone back into the abdomen and had cut out a section of tissue because it was red and friable. She was asked whether he said why he had done that and replied in the negative. She wondered why they had gone back in again and was concerned about the rate the fasciitis was spreading from the Wednesday to the Friday. She though it was strange that they had gone back in. The only answer she got was that the tissue was red and friable but she did not ask about the infection. Mr McGregor told her that he wanted to check the bowel as far as she could remember. He did not say why.

[374] She thought that her son was going to die. By this time most of his organs had "packed in". The intensive care unit had saved his life at the beginning.

[375] She visited him every day for around six weeks in Crosshouse and Glasgow Royal Infirmary travelling from home each day. She spent the whole of the visiting time with him. In the urology unit she probably spent longer.

[376] It took around three quarters of an hour by car to get to Glasgow but sometimes she had to go on the bus, which would be a journey of one and a half hours via Kilmarnock.

[377] Her daughter-in-law's mother looked after Caitlyn quite a bit. She had been doing so when her daughter-in-law's parents were visiting which was around two to three times a week. She would pick her up from nursery and keep her for about six hours until her mother came and picked her up. That was a regular event.

[378] In cross-examination she said that when the pursuer had his first operation he went from the theatre to the high dependency unit. Shortly after the second operation he went to the intensive care unit. These were two different units. His time in the high dependency unit was therefore from the Wednesday evening until the Friday afternoon.

[379] I accepted the evidence of this witness.

[380] The next witness was Mrs Catherine Sweetin, the pursuer's mother-in-law. When her son-in-law was in hospital for nine weeks or so he was visited most of the time by his wife. Her husband and she were involved in looking after Caitlyn. They had her every day, taking her home from nursery and looking after her.

[381] The nursery stopped for the holidays and they had her all of the time because her mother was at hospital every day. Whenever she was at hospital the child was with them. That was the case until he came home from hospital. After that they would go and collect her for the day and take her to their house for lunch before taking her back home at night. That happened when it was necessary. They were always available for her. In an average week she thought that they had her probably every day. Her father could not leave the house and if the child's mother needed them then they would be there. They would have her for some period every day. They would probably go in in the morning, take her for lunch and then bring her back at night.

[382] This happened every day from the time he was in hospital but she could not say how long it went on after his return.

[383] When her son-in-law came home her daughter looked after him. She had her hands full. Apart from looking after Caitlyn they helped with such things as washing, ironing and Hoovering etc if her daughter needed it. Caitlyn would be at her parents' house if the witness was there doing such things.

[384] Her son-in-law was at home for about three months before going back to work. She could not say definitely how long she continued to help with the family. Once they felt that he was able to cope and was on the road to going back to work they more or less stopped.

[385] In cross-examination she agreed that her daughter was working part-time before the pursuer had his surgery. At the time he went through the operation Caitlyn was at the nursery and it stopped thereafter for the summer holidays. At that point she looked after Caitlyn a bit more. If her mother had still been working she would still have been looking after her. If no operation had taken place and her mother was still working they would have been looking after Caitlyn anyway but not for as long. While her mother was working she only had her two days a week while the nursery was open. She would have her every day during the summer if her mother was working.

[386] Once again this witness was perfectly straightforward and plainly telling the truth.

Submissions on Quantum for the Pursuer

[387] Mr Armstrong submitted that the pursuer was reasonably well adjusted and that indeed was the tenor of the evidence. I found him to be remarkably stoical about his whole lot.

[388] Mr Armstrong reminded me that the pursuer had gone back to work in six months and had not had a day off since. He could not have done more to mitigate his loss and had not troubled his general practitioner much. He had got on with his life as best he could.

[389] There were four heads of damage namely solatium, disadvantage in the labour market, services (sections 8 and 9 of the 1982 Act) and miscellaneous expenses including the cost of the elastic supports.

[390] As far as solatium was concerned he submitted that Mr McEwan had been very ill, near death with multiple organ failure, material debridement and plastic surgery. His ongoing problems related to the loss of abdominal muscles and the effect on his sexual organs. He had lost in respect of his quality of life. He did not participate in sports such as golf, football and coaching and had been unable to have a larger family. He had lost some of the pleasure of sexual intercourse. If there was a psychological aspect to his problems it was a fear of further surgical intervention but that was not unreasonable.

[391] I was invited to consider his disability as it stood and not to take account of any possibility of reconstruction.

[392] Mr Armstrong invited me to look at the abdominal injuries themselves and then at the effect on the sexual organs.

[393] As far as the abdominal injuries were concerned he referred to a number of authorities. The first of these was the case of Re Stokle Kemp & Kemp J3-002. This related to a burning injury. It was difficult to find comparable cases but to a large extent the treatment, pain and suffering in burns victims was very similar to Mr McEwan's. In that case (dealing with a CICB award) pain and suffering and loss of amenities were assessed at £70,000 which increased to £91, 700 taking account of inflation.

[394] He then referred to the case of McLeod v BR Board 2001 SC 534 and in particular to paragraph 7, 9 10 and 16 thereof. A jury had awarded the sum of £200,000 for past solatium and £50,000 for future solatium in the case of a twelve year old boy who suffered extensive electrical burning injuries. The burn involved most of the upper point of his body and covered more than 30% of his total body surface. It affected the whole thickness of the pursuer's skin and because of the underlying effects of the electrical burn it was potentially life threatening. He was in hospital for about seven months undergoing at least four or five skin grafting operations involving taking skin from his thighs and putting it on the areas of his arms, the front of his body and his neck where the skin had been destroyed. That process would lead to pain lasting for ten to fourteen days. He required to be bathed every two or three days and new dressings had to be put on. He had to wear splints and have regular physiotherapy. He had been given painkillers and still had to attend hospital as an outpatient. He had been readmitted on three occasions for secondary surgery. By the time of the trial he was 21 and fully grown and had permanent scarring. The visible areas of scarring were on the left side of his face and neck and he also had scarring on the back and front of his right hand. This had been improved by an operation but his little finger was still flexed and this affected his ability to write and to carry things. The jury at the trial were able to see the scars and he was somewhat embarrassed when he lifted his shirt. There were also photographs of his appearance before and after the incident. He said that he had learned to live with the scars round the left side of his mouth and then onto his neck. He was unhappy about taking his shirt off.

[395] The court did not interfere with the award but Mr Armstrong suggested that it was at the higher end of the scale which was acceptable.

[396] The applicant in Stokle had had eight episodes of surgery from November 1991 to November 1994 incorporating skin grafts, scar division and release of contractures. He had been a capable sportsman before the incident but was unable to pursue his activities and his ability to carry out domestic chores was handicapped by the delicacy of the skin on his hands which was prone to blistering. He had suffered full thickness burns to 40% of his upper body including the face, neck, upper limbs and especially the right dominant hand.

[397] Reference was also made to the case of Rye v Fields Engine Service Ltd, Kemp & Kemp, L20-001.1. This was a case of necrotising fasciitis. Infection had got into the abdominal wall and debridement of the abdominal wall had been undertaken. The plaintiff had spent nine days in intensive care undergoing two further debridements and subsequently had skin grafts with skin being taken from his right thigh and laid onto the raw area of the abdominal wound. He also contracted an MRSA infection. He was off work for twenty-seven weeks and he spent a total of eight weeks in hospital. He was 45 years of age at the time of the injury. He was left with a very marked and obvious abdominal wall defect described by a consultant surgeon as a "marked cosmetic defect" and by the judge who had seen two photographs of the defect as "horrific". He had had to live with the defect for more than two years before he had a full abdominoplasty. Following reconstruction he had areas of reduced sensation over the anterior abdominal wall and residual scarring, as a result of which he would not take his shirt off in public. Pain and suffering and loss of amenities were assessed at £30,000 which rounded up to £34,000 after inflation.

[398] Mr Armstrong submitted that there was a clear similarity between the circumstances of the plaintiff in that case and Mr McEwan's circumstances. The area affected, though, was less than the area affected in Mr McEwan's case. Furthermore, he did not simply have a residual scar but a significant abdominal defect and his case was worse.

[399] Mr Armstrong suggested that a figure of £75,000 for the abdominal damage would be appropriate.

[400] As far as intimate relations were concerned, it was clear on the evidence that Mr McEwan was sterile. He was not technically impotent but the mechanics of the sex act were less than usual and involved pain. Reference was made to McEwan & Paton at page 819 and to the paragraphs dealing with the reproductive system, quoting the Judicial Studies Board Guidelines. At page 820 it was indicated that cases of sterility usually fell into one of two categories; surgical, chemical and disease cases (which involve no traumatic injury or scarring) and traumatic injuries (frequently caused by assaults) which were often aggravated by scarring. The most serious cases merited awards approaching £81,500 and the bottom of the range was the case of a much older man, which merited an award of about £10,700.

[401] The pursuer was 38 at the time of the accident with one child and he was now 45. He was sterile. He had conditions aggravated by scarring and he could not have a normal erection. Mr Armstrong submitted that he fell in the middle of the range of cases and an award of around £50,000 would be appropriate under this head. He made reference also to the case of Adamson v Lothian Health Board 2000 RepLR44, where a jury awarded £100,000 in respect of solatium following the wrongful removal of a testicle, with particular consequences, but indicated that he did not seek an award of anything like that under this head.

[402] In the normal case of multiple injuries one would fix a global figure for solatium which would be somewhat less than the sum of the parts but in the unusual case we had here Mr Armstrong submitted that the award should be cumulative. They were very separate disabilities. He had an abdominal disability because of the loss of muscle and that affected how he conducted himself generally. His virility affected his family life. He felt sorry for his child who had no sibling. He felt sorry for himself because he could not have another child and the pleasure of sexual intercourse was denied him to a significant extent.

[403] In these circumstances I should award a total of £125,000 for solatium.

[404] He invited me to find that two thirds of the solatium should be attributable to the past at interest at 4% per annum.

[405] He then turned to the question of disadvantage in the labour market.

[406] The first point to be made was the risk of redundancy. Clyde Pumps had an uncertain future. The evidence of Keith Carter was that it might take the pursuer twice as long as another man to find work. It might take him up to a year. His current earnings were £31,000 gross. P60s were lodged in process and there had been an incremental increase year on year. Allowing for the possibility of redundancy not manifesting itself for two years or so I was invited to allow a figure of £30,000 net under this head.

[407] He then turned to the question of whether the pursuer would be unable to work until his retirement age. Objection had been taken to that on the ground of no Record. There was a general averment to the effect that the pursuer would suffer disadvantage in the labour market. Mr Carter had given evidence about that and no objection had been taken. It was only when the point had been put to Professor Keighley that objection was made. Mr Carter's report had been lodged in process prior to the proof so the defenders were not taken by surprise. The concept of a man being unable to work until his retirement fell within the concept of disadvantage in the labour market. What underlay that was the potential for deterioration or his job becoming more demanding.

[408] I was invited to deal with this on a broad axe basis and Mr Armstrong suggested a figure of £50,000 under this head as well as the £30,000 for the previous aspect of it. The two awards related to different ends of the pursuer's career and different circumstances.

[409] It might have been helpful to ask for one award of £80,000 made up of two parts.

[410] Professor Keighley had said that there could be a deterioration and the pursuer might be affected. It was speculative to some extent. It might or might not happen and that was why a broad axe had to be used.

[411] As far as services were concerned, Mr Armstrong referred me to the evidence from the pursuer, his wife, his mother and his mother-in-law. He had helpfully produced a schedule setting out his calculations. An hourly rate of £5 per hour for the services was used and the schedule dealt in turn with the activities undertaken by the pursuer's wife, mother and mother-in-law. I understood that the £5 per hour came from the schedule for 2007/2008 in the Professional Negligence Bar Association Tables for the Calculation of Damages and was a discounted figure.

[412] The multiplier for the future of 23.88 for the Section 9 claim was taken from table 1 of the Ogden tables but it should be discounted as in any event the pursuer would do less as he got older. I was invited to discount it by a factor of 50% so that the figure for the future in terms of section 9 should be £31,000.

[413] The total figure for loss of services amounted to £62,296. I need not go into detail as to how this was calculated since the figures appear on Mr Armstrong's schedule.

[414] There were miscellaneous costs relating to the abdominal supports. Reference was made to 6/15 of process. Mr McEwan had opted for the less expensive corset at $49.99. He required to replace it quarterly. To date he had required twenty four of these which amounted to $1,200. For the future the same multiplier of 23.88 was taken at $200 per annum and that amounted to $4,776. The total figure therefore was $5,976 which was rounded up to $6,000 and using an exchange rate of 0.575 the Sterling value amounted to £3,030.

Submissions on quantum for the Defenders

[415] In opening his submissions Mr Stephenson renewed his objection to Mr Armstrong's attempt to elicit evidence which, broadly speaking, would show that the pursuer's condition could worsen, leading to early retirement.

[416] He referred to certain dicta of Lord President Clyde in McGlone v British Railways Board 1965 S.C. 107 at 116-117, Lord President Normand in Ward v Coltness Iron Co 1944 S.C. 318 at 322 and Lady Paton in Harrison v West of Scotland Kart Club 2001 S.C. 367 at 396. Broadly speaking his argument was that there was no notice on Record for any suggestion that the pursuer's condition would worsen, the pleadings as to his physical state being couched in the present tense. There were no averments to the effect that any of his physical problems would worsen over time or that any new physical problems would arise. After setting out his physical state there is an averment as follows: "The pursuer is at a disadvantage on the labour market." Mr Stephenson said that it would have been a simple matter for the pursuer to lay a foundation on Record for the line that had been taken namely that the degree of incisional herniation was likely to worsen over time, that the pursuer was likely to experience increasing physical difficulty as a consequence of the fact that he had no abdominal muscle and that but for his injuries he would have worked to a normal retirement age. There was no notice that this line would be taken and it was not implicit in the averments. The averment that he was at a disadvantage on the labour market was not sufficient. The specification of that averment could only be found in those averments which were made and those relating to his current physical state, not any future physical state. The pursuer was disadvantaged because he required to wear an abdominal support, was restricted in his physical abilities and could not lift objects. It was those averments which defined his loss of employability claim. He could not, for example, have substantiated that claim by leading evidence that he was likely to be off work for repeated dialysis or regular physiotherapy. These would go beyond the averments and so did the evidence about any future deterioration. Reference was also made to McDyer v Celtic Football and Athletic Co Ltd (No.2) 2001 S.L.T. 1387. In that case the issue of early retirement was expressly dealt with in the pursuer's expert report which had been lodged in process but that did not happen in this case. In short any distinct future disadvantage on the labour market had yet to come into existence and could not be encompassed within the averments that "the pursuer is at a disadvantage on the labour market".

[417] The defenders were prejudiced. There was nothing in the productions from which it might be said that the defenders ought to have anticipated the line. Mr Carter's report had deferred to medical experts in this regard. Neither Professor Keighley nor Professor Scholefield commented on his future physical state in their reports. The pursuer was only examined by Professor Keighley midway through the proof in the Court building and that raised the possibility that the line was a new departure for the pursuer. The defenders had instructed an employment expert for a critique of Mr Carter's report but he was not in a position to consider what the pursuer's loss was likely to be on the hypothesis that he had to retire early. Mr Carter was not cross-examined about the extent of any loss on that hypothesis and the pursuer himself was not asked during examination-in-chief whether he had received any medical opinion about early retirement or about any potential deterioration in his physical abilities. He was not asked what his normal retirement age would be.

[418] I have already set out Mr Armstrong's arguments on this line. In reply to Mr Stephenson's submissions Miss Tait submitted that the objection came too late. Mr Carter's evidence had already been given that had not been challenged. The defenders had had Professor Krukowski on their list of witnesses and he would have been able to comment in relation to the likelihood or otherwise of any deterioration in the pursuer's condition. It had been averred by the pursuer that his scarring was severe and permanent and that was a good indicator that one was dealing with a future event.

[419] It might be as well for me to deal with this matter now. I do not think that it can be said that the objection came too late. Mr Carter deferred to the medical experts and his evidence in this regard did not amount to anything. Objection was timeously taken when Mr Armstrong sought to elicit the evidence from Professor Keighley. I think that Mr Stephenson is well founded in saying that there is no averment that the pursuer's condition will deteriorate. In the absence of such an averment I am satisfied that the defenders were given no notice that such a line might be developed. The argument presented by Mr Stephenson in this regard seems to me to be a cogent one and I agree with it. Accordingly I uphold his objection.

[420] In relation to solatium Mr Stephenson submitted that any award should reflect the degree of physical disfigurement, the pursuer's altered lifestyle, reduced sexual function and the reduced opportunity to increase his family. The Judicial Studies Board guidelines were of some assistance. They provided that an award of up to £86,500 was appropriate for total impotence and loss of sexual function and sterility in a young man. A further bracket of £25,500 to £46,300 was appropriate for a middle aged man with children where impotence was likely to be permanent. The pursuer was not impotent and had not suffered a total loss of sexual function. He referred to the ranges in the guidelines which I have already mentioned. An uncomplicated case of infertility without any aggravating features for a young man without children would attract an award between £32,800 and £41,250. A similar case but involving a family man who might have intended to have more children would attract between £13,750 and £18,100. Mr Stephenson submitted that the maximum award of £81,500 would be appropriate in the case of a young childless man rendered completely sterile and left with the worst readily visible traumatic injury or scarring. The pursuer's age, the fact that he had a child, that he had the option of seeking assisted conception and that his scarring was normally not visible when dressed all suggested that any award should be well under £81,500. If he had suffered infertility, and only that, he would fit into the range between £13,750 and £18,100. He was not infertile, in that he could still choose to proceed with an attempt at assisted conception but he had, on the other hand, serious abdominal scarring and loss of musculature. Mr Stephenson then referred to a number of authorities. The first of these was Duffy v Mairs 1998 S.L.T. 433. In that case a 20 year old pursuer developed necrotising fasciitis in his right arm which required removal of tissue from the right arm and chest including excision of the triceps muscle. He was left with extensive scarring, a marked reduction in all shoulder movements, occasional pain and swelling in his right arm and a slightly reduced grip in his right dominant hand. He underwent several operations involving pain and discomfort over a protracted period. Solatium was assessed at £20,000 which would now be rounded up to £26,400. He then referred to Rye v Fields Engine Services Limited on which Mr Armstrong had relied and submitted that it was notable that the pursuer in this case had not developed any serious adverse psychological reaction to his scarring. Nonetheless it seems to me that there are certain similarities between Rye and the current case. Mr Stephenson also referred to a number of burns cases but said that they were not necessarily helpful. The injuries in Re Stokle were more severe, involving burns to 40% of the pursuer's upper body, chronic back pain, breathlessness and hoarseness and hands that were prone to blister in sunlight. The plaintiff had been forced to retire, had limited use of his dominant right hand and had hearing loss in his right ear. McLeod involved similarly severe injuries involving electrical burns to most of the pursuer's upper body and extensive permanent scarring to the face but the award of £250,000 was made by a jury and was outwith the norm. In Dunn v Carlin 2003 S.L.T. 342 a 74 year old man sustained full depth burns to 35% of his body, circulation problems, resulting in amputation of his left big toe, pressure sores and extensive scarring to both legs and feet, both buttocks, the left hand and arm. He could not bend his left knee and had no grip strength in his left hand. He required daily tranquilisers for pain in his left foot and solatium was assessed at £40,000 (now £47,200). In Stark v Lothian & Borders Fire Board 1993 S.L.T. 652 a 26 year old man sustained burns to 25% of his body, namely his hands, forearms, upper arms, shoulders, ears, scalp, left lumbar region and left thigh. He had grafting operations and was in considerable pain for several months. He developed post traumatic stress disorder and had periods of depression and alcohol abuse. He also required to take a less satisfying job. Solatium was assessed at £26,000 (now £39,520). The pursuer in Adamson, who had been rendered infertile, was much younger than the pursuer and had no children.

[421] Mr Stephenson submitted that the suggestion that I should arrive at separate awards for the two aspects of the case and simply add them together was accepted by Mr Armstrong to be contrary to practice and he submitted that it was contrary to principal. Solatium was not divisible. I have no difficulty in accepting this submission.

[422] Mr Stephenson went on to submit that an award of £125,000 would be unprecedented. The bottom end of the range of JSB guidelines award for paraplegia was £127,250 as was the bottom end of the range for moderately severe brain injury.

[423] In all the circumstances he suggested that a reasonable award for solatium would be £45,000, one third of which should be apportioned to the past with interest thereon at one half of the prevailing judicial interest rate (ie. at 4%).

[424] As far as disadvantage on the labour market was concerned he pointed out that the pursuer was a qualified industrial engineer with a university degree and was employed as an industrial engineering supervisor by Clyde Pumps. He had worked for the business since graduating in 1985. He said that an industrial engineer was involved in the analysis and planning of work systems and did not therefore work directly on or with machinery. His skills were widely based and transferable outwith manufacturing industry. Industrial engineers could be found working in a wide range of employment including the service industry. The pursuer returned to work after only about six months and had remained there since. He earned approximately £31,000 per annum gross. His job was predominantly desk based and involved no manual or heavy work. If he had to lift something heavy he asked a colleague to do this for him and that was his only current disability. There was a possibility for a time that Clyde Pumps were to relocate but that plan had been shelved. There was some uncertainty as the business might nonetheless need to relocate, its current premises having been retained by the Weir Group and, according to the pursuer, sold by them to a property developer. Despite these concerns the pursuer indicated that his employers had about 5% of the world market in their products and they employed over 600 people at their premises in Glasgow. The pursuer was a well regarded employee who contributed positively to his employer's business. He accepted that his job was secure short of a very major reorganisation or cessation of the business. He did not suggest that he would but for his injuries ever have sought alternative employment. The only evidence led about the business and the pursuer's prospects came from the pursuer himself. Had he wished to make more out of this head of claim he could have led evidence from within the company or from a trade union if applicable. In the view of Mr Carter the pursuer had no loss of future earnings unless he was made redundant in which case he might have a longer job search or he required to retire early. The second aspect of this should not be taken into account in view of the objection which, as I have indicated, I have decided to uphold.

[425] The pursuer had not proved that he had any immediate prospect of losing his current job through redundancy or otherwise. For there to be an award under this head there had to be an identifiable loss that had or would on the balance of probabilities be sustained. It was not a speculative award made in respect of a merely theoretical risk. Such an award was inappropriate in respect of a man who had returned to work for his only employer in the same capacity doing the same job without difficulty or absence and there should be no award under this head.

[426] In relation to services Mr Stephenson turned first to the Section 8 claim. He submitted that the pleadings were sparse. The evidence was that the pursuer's wife gave up her part-time employment during the pursuer's convalescence, that she visited him in hospital daily and that for a period of some weeks once he was home she rendered him assistance with self-care, meals etc. The pursuer's parents visited him in hospital and looked after their child for periods. His parents in-law visited him to a lesser extent but took a larger role in the care of the child until the summer holidays when nursery broke up and they would have looked after her anyway.

[427] The Section 8 claim ended at some point before the pursuer's return to work in late October 2002. It was reasonable to suppose that, for a period before that, any continuing services tailed off as his health improved and he recovered his independence.

[428] There was no evidential basis for the application of particular rates as set out in the pursuer's schedule and Mr Stephenson submitted that I was not entitled to look at a book which had not been spoken to in evidence or tested in order to select rates.

[429] A broad axe was required. He submitted that in respect of the wife the figure should be £2,000, and that there should be £750 for each of the parents and parents in-law. Interest should be allowed at the full judicial rate from the date the rendering of services ceased and a fair date would be 1 September 2002.

[430] The Section 9 claim was based on the pursuer's inability to do gardening and DIY. There was evidence that he formerly did both albeit that he did what "any normal married man" might do, which was not altogether helpful. Gardening seemed to have been a shared task and remained so but with the pursuer's wife undertaking a greater proportion than before and with someone coming in to do what was presumably the heavier work. There were no pleadings and no evidence to support the use of any particular multiplicand. No quotations, invoices or other vouching had been lodged in process and a cautious approach had to be taken. A little over six years had passed since the pursuer's operation and an award of £1,800 for the past would be reasonable with interest at 4% from the end of April 2002. For the future, taking a broad approach, an award of £6,000 would be reasonable. He based that on a figure of £350 per annum with a multiplier of 17 using table 11 of the Ogden tables till the pursuer was aged 69 to 70 on the basis that his ability to undertake gardening and DIY would in any event decline with age.

[431] In relation to additional expenses Mr Stephenson reminded me that the receipt for two abdominal supports and the reasonableness of incurring the costs thereof was agreed in the parties' joint minute. It was accepted that the purser derived benefit from the supports which had been replaced periodically. The pursuer's past figure assumed that they had been used since July 2002 which appeared not to be correct. The pursuer's figure of £3,030 should be rounded down to £3,000.

Reply on quantum for the Pursuer

[432] Miss Tait submitted that the tables referred to in order to calculate an hourly rate for the services were no different from the Ogden tables which were readily accepted and used by the Courts. The Courts had criticised the unnecessary use of care experts because of their expense, the time expended on giving their evidence and the extent to which they actually helped. In fact the figures used in the schedule were less than those set out in the tables.

Discussion on quantum

[433] I have no difficulty in holding that the pursuer, those of his relatives who gave evidence and Mr Carter were credible and reliable witnesses. Accordingly I accept their evidence. That being so the fact that no further evidence was led as to the prospects for his employers is neither here nor there since I accept what he has to say about it. I will deal with that matter at a later stage however.

[434] The first consideration is the question of solatium. I should repeat right away that I accept Mr Stephenson's submission that I have to assess solatium as a whole and not to assess it in relation to particular factors and then perform an addition sum.

[435] It is appropriate for me to take account of the disabilities as they stand. In other words I do not consider it appropriate to take account of the possibility of reconstruction. It is unlikely that the pursuer will proceed with such an operation and Mr Stephenson accepted that it was reasonable for him to take that course. I do not consider it likely that the problem with his ejaculate will be resolved and again I proceed on the basis that that difficulty is permanent.

[436] As always seems to be the case none of the authorities to which I was referred was a parallel with the case under consideration. I do not derive any assistance from jury awards.

[437] All that having been said, the case of Rye is of some assistance. It seems to me however that the pursuer's situation in the current case is worse than that of the plaintiff in Rye, looking at his circumstances as a whole. I need not repeat those here since I have already set them out.

[438] I assess solatium in the sum of £65,000.

[439] It seems to be that the pursuer has very broadly come to terms with his situation and I agree with Mr Armstrong that two thirds of this should be attributed to the past. The interest element by my calculation comes to around £11,791 and I award solatium together with interest in the sum of £76,791.

[440] I turn now to the question of disadvantage on the labour market. The pursuer's case is obviously based upon his own evidence and that of Keith Carter. I have no difficulty in accepting the pursuer's evidence and I do not regard it as fatal that he did not call someone from the business or from the union. Has he proved that there is any prospect of losing his job through redundancy or otherwise? I agree that no award should be made in respect of a merely theoretical risk. The pursuer is obviously concerned about possible redundancy and I accept that his employers were exploring joint ventures in India and China. The premises had been sold before Weir Pumps were taken over by Clyde Pumps and his evidence was that the site had to be vacated by June 2009. While the company appeared to have no lack of confidence in its own future, his position was that the facts contradicted it. The Chinese required a lot of their equipment to be manufactured there. Despite the fact, which I accept, that he is well qualified and that his skills could be transferred to another sector, I am of the opinion that he has shown on a balance of probabilities that there is a substantial risk that he will find himself back on the labour market. I am fortified in this by the evidence from Mr Carter, albeit based on what he was told by the pursuer, about the contracts for generators to be built. Five of them were to be built in Scotland and one in China but the following year there would be three in China, two in Scotland and then in the following year all of them would be in China. I can detect no reason to reject Mr Carter's methodology nor Mr Armstrong's general approach. I shall award the sum of £25,000 under this head.

[441] Had I been persuaded that the evidence as to the likelihood of early retirement was admissible I would have accepted that evidence and I would have made a further award of £40,000 in this regard to reflect the fact that such an eventuality would not be for some time in the future and in particular would be, in my opinion, later than any question of redundancy will manifest itself.

[442] I turn now to the question of services. Once again I accept the evidence which was given in respect to this.

[443] Despite the submissions of the pursuer's Counsel I am not persuaded that it is appropriate to apply an hourly rate. Use of the Ogden tables is well established but no authority was cited to me for the use of hourly rates and multipliers in calculating a claim for services whether under Section 8 or Section 9. I respectfully agree with Mr Stephenson that a broad approach has to be adopted. The pursuer's wife visited him every day in Crosshouse for some two weeks both in the afternoons for about two hours and in the evenings for about an hour. She visited him at Glasgow Royal Infirmary every afternoon and on some evenings. She had to travel between Glasgow and her home between visits.

[444] I would allocate her the sum of £1,000 in that regard. As far as travelling expenses are concerned, she did not go to Glasgow Royal Infirmary twice a day every day and I would award the sum of £2,000 to her in that regard.

[445] It is almost impossible, even if I felt it appropriate, to calculate precisely how many hours were devoted to her husband at home and again a broad axe had to be employed. I would award a further sum of £1,000 in that regard. In respect of the pursuer's wife therefore I calculate the services award as £4,000. I agree with the suggestion by Mr Stephenson that interest should run on that sum at the rate of 8% per annum from 1 September 2002, giving a figure of £2,064 by way of interest and a total award of £6,064.

[446] As far as his mother is concerned, she visited the pursuer every day for around six weeks in Crosshouse and Glasgow Royal Infirmary, the round trip being around one and a half hours when he was in Glasgow if she drove or three hours if she used public transport. She also looked after Caitlyn from time to time when the pursuer's in-laws visited him in hospital although the bulk of that was borne by the in-laws.

[447] In her case I quantify the sum, very broadly, as £2,000. Interest on that, calculated the same way, comes to £1,032 making a total of £3,032.

[448] As far as the pursuer's mother-in-law is concerned, while the evidence was somewhat vague it is fair to say that she and her husband bore the brunt of looking after the child whilst the pursuer was in hospital and also assisted thereafter for a spell until he was on the road to recovery. In all the circumstances I see no reason to distinguish between her and the pursuer's mother and an award of £2,000 is, in my opinion, appropriate also to reflect the services which she had provided. The same interest calculation falls to be made, resulting in an award of £3,032.

[449] I turn now to the claim under Section 9. Mr Armstrong's calculation, based on an hourly rate of £5.00 provides an annual figure of £2,600, with interest from 24 April 2002 to date. For the future he suggested a multiplier of 23.88 from table 1 of the Ogden tables. I agree with Mr Stephenson that a broad approach is required. He submitted that a multiplier of 17 would be appropriate and a multiplicand of £350 per annum. This would take the pursuer to the age of 69/70 on the basis that his ability to undertake gardening and DIY would in any event decline with age.

[450] There are of course a number of variables. It may be that once a garden is established it will require little by way of maintenance, although this will depend on whether or not people are satisfied with it or wish to change it. It may depend on whether the pursuer lives in the same house for the rest of his life or moves perhaps to a smaller house which will require less gardening or a bigger house which may require more. Only so much DIY can be undertaken in any one house. Once shelves are put up there may be no room for any more. On the other hand, moving to a new house may require a fresh start.

[451] While it may be that the ability and, for that matter, the inclination to undertake gardening or DIY may decline with age the opposite may be the case. People may find more time on their hands and may be more inclined to do things at home rather than go out. For all these reasons a cautious and broad approach has to be adopted.

[452] I assess the figure for the past as £4,000 with interest at 4% ( amounting, by my calculation to £1,088) giving a total of £5,088. In relation to the future I award the sum of £12,000.

[453] The last element of the claim is the cost of the abdominal supports. I award £3,000 in respect of those.

[454] The total award is therefore £134,007.

Decision

[455] I shall repel the third and fourth pleas-in-law for the defenders, sustain the first plea-in-law for the pursuer, find the defenders liable to make payment to the pursuer of the sum of ONE HUNDRED AND THIRTY FOUR THOUSAND AND SEVEN POUNDS STERLING (£134,007) and find the defenders liable to the pursuer in the expenses of process as taxed.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McEwan v Ayrshire & Arran Acute Hospitals NHS Trust [2009] ScotCS CSOH_22 (17 February 2009) URL: http://www.bailii.org/scot/cases/ScotCS/2009/2009CSOH22.html Cite as: [2009] ScotCS CSOH_22, [2009] CSOH 22

Scottish Court of Session Decisions