Carolyn Almond-roots Against Muftah Salem Eljamel And Another
| Jurisdiction | Scotland |
| Judge | Lord Uist |
| Neutral Citation | [2021] CSOH 130 |
| Date | 21 December 2021 |
| Docket Number | A448/16 |
| Court | Court of Session |
| Published date | 21 December 2021 |
OUTER HOUSE, COURT OF SESSION
[2021] CSOH 130
A448/16
OPINION OF LORD UIST
in the cause
CAROLYN ALMOND-ROOTS
Pursuer
against
MUFTAH SALEM ELJAMEL
First Defender
and
NHS TAYSIDE
Second Defenders
Pursuer: Sutherland QC, T Brown; Thompsons
First Defender: Primrose QC, Watts; The Medical and Dental Defence Union of Scotland
Second Defenders: MacNeill QC, Dundas; NHS Scotland Central Legal Office
21 December 2021
[1] In this action of damages for personal injuries sustained as a result of clinical
negligence I granted decree in terms of a joint minute agreed by all parties against the
defenders for payment to the pursuer of the sum of £2,810,118 net of any liability that the
defenders may have in terms of the Social Security (Recovery of Benefits) Act 1997, with
interest thereon at the rate of 8% per annum from the date of decree until payment. I now
require to decide the question of apportionment of damages between the two defenders
under section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (”the
1940 Act”), which provides
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“where in any action of damages in respect of loss or damage arising from any
wron gful acts or negligent acts or omissions two or more persons are, in pursuance
of the verdict of a jury or the judgment of a court found jointly and severally liable in
damages or expenses, th ey shall be liable inter se to contribute to such damages or
expenses in such proportions as the jury or the court, as the case may be, may deem
just.”
No evidence was led but th e two defenders agreed the following facts by way of joint
minute.
The agreed facts
[2] On 4 February 2013 the pursuer attended at the Accident and Emergency
Department at Ninewells Hospital, Dundee. She arrived at 08.25. Her presenting complaint
was noted to be “Right Leg Pain”. She was triaged by Nurse Moira Clark at 08.57 and she
was assigned a triage category of = 4. At 09.55 hours she was reviewed by Dr Amy
Knighton, who was at that time a GP ST1 grade trainee doctor assigned to the Accident and
Emergency Department. Dr Knighton noted that the pursuer was a 45 year old woman
suffering from buttock numbness and right posterior thigh pain. Dr Knighton noted the
following history from the pursuer (with explanation of her abbreviations being given in
square brackets):
“Increasing pain thru (sic) the night in R posterior thigh + altered sensation in R
buttock. This has now spread to L buttock also. No pain in back but has had
previous sciatica on R side which was not as severe and had assoc [associated] back
pain. No history of trauma. Describes a pain in rectum and that ‘wouldn’t trust
herself’’ with regards to bowels – no incontinence as yet but feels an urge. No
urin ary symptoms. Has taken paracetamol/ibuprofen to little effect.
PMHx [past medical histo ry] Sciatica. DHx [drug history] nil NKDA [no known
drug allergies]. SHx [social history] Independent; production operative.”
[3] Dr Knighton carried out an examination of the pursuer. Sh e made the following
record of the examination in the pursuer’s medical records (with explanation of her
abbreviations being given in square brackets):
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“o/e [on examination] lower limbs – power/ sensation and tone N [normal]
reflexes - patellar [reduced] ankles N [nor mal]. good ROM [range of
movement] from back, back pain exacerbated on L lateral {illegible} anterior/
posterior {illegible}. Pain also exacerbated on SLR [straight leg raise].
Altered sensation over buttocks + perianally – R side > [greater than ] left side.
[reduced] anal ton e – didn’t feel she could squeeze my finger”.
[4] ANP Weaver carried out a neurological examination of the pursuer’s legs. She
measured the pursuer’s straight leg raise at 50 degrees and limited by pain on the right-hand
side and 60 degrees with pain to the right side on str aight leg raise to the left side. Ton e was
normal on both sides. Power was as follows:
Right side
Hip flexion 5/5
Hip extension 5/5
Knee Flexion 4/5
Knee extension 4/5
Ankle dorsiflexion 5/5
Ankle plantar flexion 5/5
Left side
Hip flexion 5/5
Hip extension 5/5
Knee flexion 5/5
Knee extension 5/5
Ankle dorsiflexion 5/5
Ankle plantar flexion 5/5.
[5] ANP Weaver checked the pursuer’s reflexes and found them to be normal. S he
examined the pursu er’s sensation and recorded increased sensitivity in the S1 and S2
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