Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 19
A235/12	OPINION OF LORD MALCOLM in the cause TERENCE McGEADIE Pursuer; against ATOS HEALTHCARE and ANOTHER Defenders: ________________

Pursuer: Party

Defenders: G Watson, Solicitor Advocate; Simpson & Marwick

6 February 2013

[1] The pursuer has raised an action seeking damages of £250,000 from ATOS Healthcare and from a member of their staff. At the material time it provided medical services to the Department for Work & Pensions (DWP). Applicants for employment and support allowance were referred to ATOS for an assessment. According to their literature, the purpose was to provide a medical opinion as to how an applicant's illness or disability affects him or her in everyday life. It would be conducted by "a fully registered specially trained and approved healthcare professional". After an assessment, a report was sent to the DWP.

The case for the pursuer
[2] The pursuer's pleadings can be summarised as follows. He avers that he has been unable to work because of disability. In February 2012 he attended at the Kirkcaldy premises of ATOS for an examination. He states that the person who was to conduct the examination (the first defender) concealed from him that she is not a qualified GP, all in an attempt to "fraudulently mislead" him. People with complex medical conditions should be seen by a qualified doctor. The first defender failed to respond to the pursuer's attempts to ascertain her professional competence to assess him. The pursuer claims that she shouted at him before walking out of the room, causing him fear, alarm and shock. This was a negligent act which breached her duty of care towards him. In response the defenders aver that the pursuer was argumentative, intimidating and abusive towards the first defender. She was upset and left the examination room. The pursuer was asked to leave the building, and initially refused to do so.

[3] The pursuer complains that, at least initially, ATOS refused to pay his expenses for the attendance, causing him financial difficulties which required him to borrow money from relatives in order that he could eat. He seeks compensation for his "embarrassment and hurt feelings" in respect of the debt which he incurred to others. ATOS then embarked upon "a series of misleading and contradictory letters in an attempt to confuse and intimidate (the pursuer)". Some of the correspondence is said to be "libellous at least, with possible criminal and fraudulent implications". The actions of ATOS were "malicious and misleading". In response the defenders say that these averments are "scandalous and vexatious". Throughout, the pursuer emphasises that the defenders knew of his vulnerability because they were in possession of his medical records and history.

[4] The pursuer has complained about these matters to the DWP and to a Government Minister. He makes reference to correspondence from ATOS which said that a police officer might be in attendance for the pursuer's next assessment. There is then a complaint that at a second assessment a security guard was in the waiting room. This person caused "great anxiety" to the pursuer because he boasted of a physical altercation with a customer at a previous DWP place of employment. He was dressed in an inappropriate fashion, wearing denims, a polo shirt and trainers, "as if ready to fight". The insistence upon the presence of a security guard was a "threatening attempt to intimidate the pursuer". In response ATOS state that they are under a duty to protect their staff and members of the public visiting their premises when someone is known to pose a threat of harassing or intimidatory behaviour.

[5] The pursuer avers that the defenders' conduct has caused him great chest pain and discomfort. He has required treatment for anxiety and depression, including prescription medicines which have had serious side effects. He is concerned that the defenders' actions have shortened his life expectancy. A heart attack is the likely outcome of the stress and shock, especially given his angina. The pursuer will need counselling and surgery to overcome the multiple health conditions caused by the defenders. The necessary surgery will put him at risk of death while under a general anaesthetic. It is averred that 1,100 claimants died shortly after being put in the "work related activity group" following an ATOS examination. This caused the pursuer concern as he prepared to attend the examination centre.

The debate
[6] At a debate, on behalf of the defenders, Mr Watson asked the court to dismiss the action. It was incompetent in that it should have been raised under chapter 43 of the Rules of Court. No relevant case of fault has been put forward in the pleadings. The averments of loss are irrelevant and lacking in specification. There is no causal link between any medical complaints of the pursuer and the alleged conduct of the defenders. There are no relevant pleas in law, and a large number of "scandalous" averments.

[7] In response the pursuer accused Mr Watson of a conflict of interest in acting for both defenders. He submitted that if an averment is true, it is not scandalous. In support of his claim, the pursuer referred to several well known cases on the law of negligence. He stressed that his averments are true, and that his injuries were foreseeable, in that he suffers from complex medical complaints. In terms of Donoghue v Stevenson 1932 SC (HL) 31, a duty of care was owed to him.

[8] As the pursuer addressed the court it became clear that his main complaint is that he was entitled to an examination at the hands of "a proper doctor". He was asked to undergo an examination by, as he saw it, an under-qualified person. He was expecting to receive an examination from a "fully qualified person". He told the court that the expenses claimed amounted to £72, being a round trip by taxi. There were no buses to the assessment centre. To his severe embarrassment, he had to borrow that money. People attending ATOS were terrified of losing their benefits, and media reports indicated that, after attending such an examination, 32 people died. The pursuer said that ATOS is "a terrible company", and that the government has now transferred its business to another organisation.

[9] The pursuer submitted that fair notice has been given of a relevant case. After the defenders' conduct, he was prescribed medication. Although no medical reports have been lodged, experts will be brought to give evidence in support of his claim. With reference to the various letters from ATOS, this was "outrageous conduct". He now requires an operation. The hospital in Edinburgh is "not keen on doing this", so he will require to have it carried out in the USA at a cost of some $175,000.

Decision
[10] I require to apply the well established test as narrated in Jamieson v Jamieson 1952 SC (HL) 44. In my view it is clear that the bulk of the pursuer's averments do not disclose anything approaching a relevant case of fault triggering a liability in damages on the part of ATOS, nor of any of its staff. As explained by the pursuer at the hearing, they amount to various complaints as to the methods, practices and procedures of ATOS. Thus, for example, while the correspondence between the parties may be evidence of somewhat disorganised and bureaucratic procedures, having read it, I see no prospect of it justifying a claim in damages. Similarly I see no legal basis for a claim arising out of the attendance of security personnel. It is plain that the pursuer offers to prove that ATOS disappointed his expectation of an examination by a qualified GP, but, in itself, this does not provide a foundation for a legal wrong sounding in damages.

[11] The closest the pursuer comes to pleading a relevant case concerns the alleged events at the first examination in the Kirkcaldy premises in February 2012. However, on the averments, it was at most an altercation prompted by the pursuer's insistence upon the attendance of a qualified doctor. There is no prospect of proving wrongful conduct foreseeably causing any of the conditions complained of by the pursuer. In any event, there is no sensible basis pleaded for attributing all or any of the various medical complaints averred by the pursuer to that incident. The pursuer frequently pleads terms such as "fraudulent, malicious, libellous" etc, but the factual averments do not support such inferences.

[12] In these circumstances I shall dismiss the action. It is not necessary to deal with the submission on competency. If it had been, I would not have dismissed the action on that basis. I make it clear that my decision, though dismissing the pursuer's claim for damages, involves no comment on the merits or otherwise of his general complaints. For example, perhaps there was a delay in settling the expenses claim, but this is not a delict sounding in damages for pain and suffering. Similarly, I am not expressing any view on whether it would have been better if the pursuer had been seen by a fully qualified doctor.