Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 93

 

A341/15

OPINION OF JUDGE J GORDON REID QC

In the cause

CATHERINE WATSON

(as executor of the late Alan Watson)

Pursuer;

against

GREATER GLASGOW HEALTH BOARD

Defender:

Pursuer:  Nicholson;  Drummond Miller LLP

Defender:  Doherty;  NHS Scotland Central Legal Office

5 July 2016

Introduction
[1]        This opinion, following a procedure roll discussion, considers the question whether the pursuer’s averments in her action for damages for personal injuries arising out of the death of her husband, Alan Watson (Mr Watson), should be dismissed as irrelevant for lack of specification. 

[2]        After sundry procedure under chapter 43 of the Rules of Court, the action was withdrawn from that procedure and appointed to proceed as an ordinary action under chapter 42A.  A debate on the defender’s (the health board) first plea-in-law (the usual general plea to relevancy) was fixed.  The pleadings are lengthy and, in one sense at least, detailed, contrary to the current rules and practice relating to personal injury actions.  The Record extends to over 30 pages in the usual font and type size.

 

The pursuer’s case
[3]        In essence, the pursuer’s case is that Mr Watson was a long term resident in a care home owned and operated by the health board.  The pursuer avers that Mr Watson had a history of unexplained falls culminating in about January/February 2012 in which he fell at the home while under the care of the Health Board and suffered rib fractures.  This led to him developing pneumonia from which he subsequently died on 16 February 2012.  His death is said to be attributable to what might broadly be described as the defender’s failure properly to look after him.  The failure, breach of duty, and any consequences are all strongly denied by the Health Board, although there is some common ground about some of the background facts and general duties of care.  I make no comment on the truth or soundness of the pursuer’s averments.  In accordance with the court’s practice, her averments are assumed to be true for the purposes of this part of the proceedings. 

[4]        The pursuer sets forth at some length a wide array of duties said to be owed by the Health Board and/or its staff.  These include averments that there was a systemic failure of care, absence of adequate training and no adequate care plan, which should have stipulated that Mr Watson be on constant observations in certain circumstances.  This would have meant that when he was walking within the care home he would have been closely monitored to such an extent that, had he stumbled, he would have been prevented from falling, and had he deviated towards some object such as a shelf he would have been prevented from colliding with it and injuring himself. 

[5]        Most of these averments seem to be designed to create a background of inadequate care leading up to what counsel for the defender contended was the crux of the pursuer’s case, where the pursuer avers at page 18D-E of article 3 of the Condescendence that: 

“A care plan would have provided for the deceased to have been placed on constant observations.  The deceased ought to have been placed on constant observations.  Esto, the deceased ought not to have been placed on constant observations all the time (which is denied) he ought to have been placed on constant observations whilst mobile and walking around the home.  This would have enabled the staff to closely observe him while he was walking and intervene if necessary.”

 

And, at 19C-21A (article 3 of the Condescendence), that: 

 

“Had the deceased been placed on constant observations staff would have been able to intervene to prevent the deceased from walking or falling into objects including shelves.  Staff could have prevented him from wandering and directed him away from objects such as shelves.  They would have been able to assess what his mobility was like and if his mobility was less good on a particular day they could take such steps as walking beside him, taking his arm and limiting his periods of walking around.  The deceased’s bruising, abrasions and fractured ribs were caused by his walking or falling into a sharp cornered object such as shelves ‘the object’.  It is likely that the deceased’s mobility on the day he walked or fell into the object was poorer (or less good) than usual.  It is likely that he was wandering.  It is likely that he deviated from his  path.  Staff would have noticed this.  (20A) Esto they would not have noticed it, they should have.  Staff would have taken steps to reduce the risk to the deceased by walking beside him, taking his arm and limiting his periods of walking.  They would have directed him away from objects such as shelves.  Esto they would not have taken these steps, they ought to have done so.  Had the deceased been on constant observations it is likely that staff would and should have prevented him from walking or falling into the object which caused his injuries…….(20D) Esto he would not have been placed on constant observations all  the time (which is denied) he would have been placed on constant observations whilst mobile and walking around the home.  As hereinbefore condescended upon, staff would  have then been able to intervene to prevent the  deceased from walking into objects such as shelves and it is likely the fall would have been averted.  No ordinary nursing staff exercising ordinary skill and care would have failed to do so (21A).”

 

[6]        Around these averments are various averments of fact and references to a number of documents.  In summary, these assert that Mr Watson was a vulnerable gentleman (born 7 December 1950).  He had a history of falls and a high risk of doing so due to his condition while at the care home where he had resided for several years before his death.  He had hallucinations.  He was a dementia sufferer and susceptible to petit mal seizures.  Various risk factors are identified in the pursuer’s pleadings.  Had they been taken account of as they should have (according to the pursuer), a standard care plan would have been prepared to reduce risk to a minimum.  Such a care plan would have provided for the deceased to have been placed on constant observations at least while walking around the home.  It is averred that this

“would have enabled the staff to closely observe him while he was walking and intervene if necessary. (19B).”

 

[7]        The pursuer then sets out the responsibilities of the care home manager for ensuring that the residents received the requisite standard of care, essentially reviewing/ auditing and updating risk assessments and suitable care plans, ensuring that Mr Watson was placed under the correct level of observation and the actions to be taken to minimise the risk of a fall during those observations while he was mobile and walking around the home (21A-C).  All this was said to constitute standard practice to which the care home manager and senior charge nurse failed to adhere (page 22 A-D of article 4 of the Condescendence).  These duties are said to have been breached by the care home manager who is averred to have had overall responsibility for patient care as manager of the home (page 21E). 

[8]        At page 21C, the pursuer avers that the care home manager had a duty to ensure that staff cared for the deceased by having

“had adequate training in how to care for his particular needs, including dementia and variable mobility, which training required to be refreshed at least once a year.”

 

[9]        The duty of training is also referred to in article 4 of the Condescendence, page 28C.

[10]      At page 22E (article 4 of the Condescendence), the pursuer avers that:-

“There was a systemic failure in the defenders’ management system: adequate procedures were not in place to ensure that the risk assessments, care plan and treatment plan dated 14.3.11 were reviewed, reassessed and updated in accordance with standard practice following a fall especially an unexplained fall against a background of increased falling incidents.”

 

These averments are elaborated upon at page 25B-27B of article 4 Condescendence.

[11]      At page 23D (article 4), the pursuer avers that the various measures in the treatment plan were necessary to keep Mr Watson safe and to protect him from injury.  Certain aspects of the treatment plan were not followed.  If they had been, staff would have been aware of his mobility on any particular day and would have been ready to intervene to prevent a fall.  Had the treatment plan been followed, Mr Watson would have been observed constantly while walking and that would likely have prevented the fall which led to his death (24D).  The defender is said to be responsible for all these staff failures (25A-D).

[12]      The remaining articles of Condescendence (5 and 6) relate to damages and I do not need to consider them. 

 

The defender’s criticisms
[13]      Counsel for the defender, Ms Doherty, supplemented her detailed Note of Argument, which largely highlighted alleged deficiencies said to be so extensive that it rendered the whole case irrelevant for want of specification.  She advanced five propositions. 

[14]      In summary, Ms Doherty submitted first, that the crux of the pursuer’s case is that but for the defender’s breach of duty, Mr Watson would have been placed on constant observations. 

[15]      Secondly, the pursuer’s averments as to the need for constant observations lack specification and are therefore irrelevant.  Thirdly, the pursuer does not adequately aver a causal link between the lack of constant observations and injury. 

[16]      Fourthly, the pursuer’s averments of duty of care said to be owed by the care home manager and the senior charge nurse and the alleged systems failures lacked specification, and were all irrelevant.  Fifthly the averments relating to the breach of duty relating to the recording of the alleged fall are irrelevant, there being no causal link to the death.

[17]      Ms Doherty addressed what she said was the crux of the pursuer’s case (referred to above) submitting that there was no such duty owed or, perhaps more accurately, that the facts averred by the pursuer did not justify the imposition of such a high standard of and consequent duty of care.

 

The pursuer’s response
[18]      Counsel for the pursuer submitted that the pursuer’s averments were sufficient to justify proof (which has provisionally been fixed for a date next year).  She recognised that the case had its difficulties, but these were matters for proof not matters of relevancy.  The case had been pled as clearly as it could be and was supported by expert evidence; expert evidence reports would be adduced in written and spoken form at the proof.  Whether or not Mr Watson was having a good or bad day when he fell in February 2012 is not fatal to the claim.  While risk can never be entirely eliminated, inferences of fault can be drawn. 

[19]      She referred to Macphail on Sheriff Court Practice^[1] for what lack of specification truly meant – being taken by surprise by evidence or a line of evidence of which fair notice has not been given in the pleadings.  She also referred to Jamieson v McNeil & Son^[2] for the proposition that the duties alleged should be duties which the court can be satisfied at least might have been competent upon the defender in law in the circumstances are averred.

 

The approach to relevancy (and specification)
[20]      In general, a pursuer must set out the material facts and the basis in law which justify the claim being made, thus giving the defender fair notice of the case being made against him.  What constitutes the material facts and the basis in law will vary from case to case.  Not much will be required in a debt action.  In a commercial contract case, particularly where much of the evidence is documentary, it may be necessary to set out some specific terms of the contract, how they were breached and what the consequences were in some detail. 

[21]      To have an action dismissed as irrelevant (whether for want of specification or otherwise), a defender must satisfy the court that even if the pursuer proves all his averments, his action must necessarily fail.  As a corollary of that, a pursuer need only satisfy the court that he may succeed if he proves all his averments.  He need not show that he is bound to succeed if he proves all his averments.^[3]

[22]      In actions for damages for personal injuries, it has long been recognised that, as a matter of pleading, only the bare bones of the case need be pled^[4] although this is sometimes forgotten both by those drafting and criticising pleadings. Rules of court have provided for abbreviated forms of pleading.  Surprisingly, however, there has grown up a practice of increasing the length of pleadings in some types of case by including an elaborate mixture of facts, evidence and argument, a practice which should be discouraged as it may often obscure rather than clarify what lies at the heart of a claim and how it may be established or refuted. 

[23]      The approach I take in this case is to consider whether the pursuer has averred the bare bones of a case and given fair notice of it in her pleadings to the defender.  Within that question I have considered whether such a case with such notice is bound to fail if proved, or whether such a case with such notice may succeed if proved.

 

Discussion
[24]      Overall, I consider that the pursuer has averred more than the bare bones of a case and given fair notice of it.  In spite of the carefully and forcefully presented submissions by Ms Doherty, they cannot be given effect to, at least at this stage of the proceedings.

[25]      The defender demands too high a standard of pleading in a case of this nature, even acknowledging that very significant allegations are made, which the defender takes extremely seriously and vigorously denies any liability.  It may well be that the pursuer seeks to impose duties on the health board which set far too high a standard of care.  The pursuer’s prospects of success may be poor.  Nevertheless, I prefer to take a broader approach than that urged upon me by Ms Doherty.  At heart, this is a personal injuries action.  Even if it were to be viewed as an ordinary action of common law negligence, I would adopt the approach of the House and Lords in Miller bearing in mind the test in Jamieson,  and reach the same result.

[26]      I cannot determine at this stage whether the particularisation of the duty of reasonable care which lies at the crux of this case is irrelevant because it sets too high a standard.  That issue can only be resolved by way of proof before answer.  The weighing of the facts for or against negligence often present a delicate task to the tribunal charged with applying law.  This is such a case.  I therefore cannot say that this pursuer has no case.^[5]

[27]      With reference to Ms Doherty’s five propositions, the pursuer makes it reasonably clear, in the pleadings, that she contends that there was a series of management and administrative failures, that the late Mr Watson should have been subject to constant observations (article 4, page 27A-B, page 27 E-28A) all of which culminated and are said to have led to him falling on 7 February 2012, and his subsequent death.

[28]      In my view, the averments about constant observations, coupled with the background history, the need for training, identification and implement of a care plan, which I consider to have been specified in sufficient, though not great detail, require to be answered at proof.  They may well be answered at proof, but that is not something I can determine at this stage.  The detailed criticisms of the alleged inadequacy of the explanations as to how Mr Watson’s death arose, seem to me to set too high a pleading standard.  These explanations will no doubt be considered in detail at the proof.

[29]      Ms Doherty focused on what was meant by constant observations.  There was said to be a lack of clarity which would be unfair and take the health board by surprise at the proof.  I have considered this and the other arguments specified in her Supplementary Note of Arguments (18 May 2016), number 29 of process, particularly paragraph 5, to which she repeatedly returned.  In my view, the approach of the health board demands too high a standard of pleading practice of the pursuer in this case.  Pleadings should not be construed as a conveyancing document.  Meticulous examination and comparison of every aspect of the pleadings, one with the other, as Ms Doherty attempted to do, is not appropriate.  Ultimately, it is a question of fact and degree whether a pursuer has made out the bare bones of a case and given at least the minimum required to justify a proof.  Here, the pursuer has done so.

[30]      Lack of specification has its roots in the view that the defender will be surprised and unfairly prejudiced by evidence led or proposed to be led by the pursuer at proof.  As matters currently stand, I do not consider such surprise will occur, and if it does to any extent, it can properly be dealt with by the judge hearing the case, in the usual way, by short adjournment or otherwise.

[31]      While the phrases constant observations, and closely observe in article 3 of the Condescendence at page 19A-B of the Closed Record, were the subject of discussion, they are at least apt to include physical closeness, which may be a high duty to establish in the circumstances.  Nevertheless, such duties, at least, might have been incumbent upon the defender in law in the circumstances as averred.

[32]      Ms Doherty draws attention to a number of alleged inconsistencies in the pursuer’s pleadings.  Given the nature of the averments about the lack of management systems, training and specification of a care plan, this is not surprising and but this does not defeat the claim as a matter of relevancy or specification.

[33]      Ms Doherty also referred me to Argyll & Clyde Health Board v Strathclyde Regional Council^[6], Gibson v Strathclyde Regional Council, ^[7]Kyle v P&J Stormonth Darling WS,^[8] Graham v East of Scotland Water,^[9] Hunter v Hanley,^[10] and Gregg v Scott.^[11]

[34]      Argyll was not a personal injuries case and discusses specification in an entirely different context.  What amounts to sufficient specification in any case must be question of fact and degree.  Gibson was a personal injury case, but seems to have been a narrow case dismissed on what may have been a technical pleading infelicity.  Gregg says inter alia that the claimant will only succeed if, on balance of probability, the negligence is the cause of the injury; if he only proves negligence as a possibility he fails.  None of that appears to be in dispute.

[35]      The question of standard or normal practice as set forth in Hunter v Hanley is sufficiently covered in the pleadings.  The details of the nature and extent of such practices can, no doubt, been explored in evidence.  Kyle, a professional negligence claim for loss of opportunity, reminds us that negligent conduct, loss and causation are the three ingredients a pursuer requires to both aver and establish in an ordinary claim for damages in the law of negligence.  Whether the pursuer establishes all these ingredients remains to be seen, but the bare bones of them are present.

[36]      In Graham, the deceased drowned in a reservoir; which it was averred should have been fenced at the point where he was believed to have fallen into the water.  The averments were held to be speculative and irrelevant, giving no hint of the way in which the danger alleged in the pleadings was supposed to have caused the accident.  I do not regard the present pursuer’s case as speculative.

[37]      Overall, as I have explained, I consider that the health board has overstretched the plea of lack of specification in this case.  That plea finds its proper application where a defender does not know the case to be made against him and objects to being taken by surprise at the proof.  Given the length of the pleadings, and the further proof preparations which will have to be made, I consider it unlikely that the health board will to any significant extent, be taken by surprise at the proof or otherwise materially disadvantaged by the current state of the pursuer’s pleadings.

 

Particular Averments
[38]      I have carefully considered whether some aspects of the pursuer’s pleadings, such as those relating to training, are irrelevant.  While some may be thin and counsel for the pursuer accepts that there are no averments of breach of training, it seems to me that they form part of the background of the general flavour of the case the pursuer is making.  This carries across and feeds into the contents of the care plan and its implement.  To exclude them, would likely create a somewhat artificial proof.  Although evidence must be kept within reasonable bounds and not stray far beyond the four corners of the Record (although this often happens), at the end of the day, the evidence supersedes the pleadings.  As I have already explained, I cannot say that the pursuer has no case.  The action should therefor proceed to proof.

[39]      There was also some suggestion in the pleadings, by way of calls and in submissions, that efforts have already been made to recover various records of training held by or on behalf of the health board.  It is not clear to me whether that process has come to an end or may be revived in the light of this Opinion.  Further procedure for recovery of documents and further amendment may be required.  The proof has been fixed for June 2017 and matters will not simply stand still between now and then.  The usual proof preparations should now be set in train, if this has not already begun, and it may be that any further identified strengths or weaknesses in each side’s case may encourage negotiation and possible resolution or narrowing of the dispute.

 

Result
[40]      I decline to sustain the defender’s first-plea-in-law at this stage.  Parties were agreed that, in those circumstances, the appropriate procedure would be to allow a proof before answer, rather than simply a proof as specified in the court’s earlier interlocutor dated 3 June 2015.