Desmond Mccaffery (ap) V. Greater Glasgow Health Board
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith |
| Date | 28 March 2003 |
| Docket Number | A2686/00 |
| Court | Court of Session |
| Published date | 28 March 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| A2686/00
| OPINION OF LORD NIMMO SMITH in the cause DESMOND McCAFFERY (AP) Pursuer; against GREATER GLASGOW HEALTH BOARD Defenders: ________________ |
Pursuer: Sir Crispin Agnew of Lochnaw, Q.C., Sutherland; Allan McDougall & Co
(for Peter T. McCann, Solicitors, Glasgow)
Defenders: Anderson, Q.C.; R.F. MacDonald
28 March 2003
Introduction
[1]The pursuer was born on 14 July 1972 at the Queen Mother's Hospital in Glasgow, which was then under the control of Greater Glasgow Health Board ("the Board"), who are the present defenders. He avers that he has suffered loss, injury and damage caused or at least materially contributed to by the fault and negligence of the medical staff employed by the Board at the hospital at the time of his birth. The summons in the present action was signetted on 22 and served on the Board on 27 September 2000. The latter date is the date of the raising of the action. The Board plead that the action is time-barred by virtue of section 17 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). The pursuer denies this, but pleads that, esto the action is time-barred, it is equitable in all the circumstances that the Court exercise its discretion to allow the pursuer to bring the action in terms of section 19A of the 1973 Act. The pursuer also invokes Article 6 of the European Convention on Human Rights ("the Convention"). The defenders have tabled a plea to the relevancy of this. The action called before me on the procedure roll, when I heard a debate on these preliminary pleas.
The statutory provisions
[2]Section 17 of the 1973 Act provides:-
"(1)This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.
(2)Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after -
(a)the date on which the injuries were sustained, or where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or
(b)the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the Court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts -
(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;
(ii)that the injuries were attributable in whole or in part to an act or omission; and
(iii)that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.
(3)In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind."
Section 18 applies to actions where death has resulted from personal injuries. By section 22(1) the expression "personal injuries" includes any disease and any impairment of a person's physical or mental condition. By section 1(2) of the Age of Legal Capacity (Scotland) Act 1991 the reference to a person under legal disability by reason of nonage is to be construed as a reference to a person under the age of 16 years.
[3]Section 19A of the 1973 Act provides by subsection (1) inter alia that where a person would be entitled, but for any of the provisions of section 17, to bring an action, the Court may, if it seems equitable to do so, allow him to bring the action notwithstanding that provision.
[4]Article 6 of the Convention, so far as relevant, provides by paragraph 1 that in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time.
The facts
[5]Although in some cases it is appropriate to hold a preliminary proof in order to ascertain the facts relevant to questions arising under sections 17 and 19A of the 1973 Act, neither counsel suggested that this was such a case, and I was invited to dispose of the preliminary pleas on the basis of the parties' pleadings (taking them pro veritate at this stage), the productions and supplementary information provided by counsel, particularly counsel for the pursuer. The only productions are in an inventory lodged for the Board. These are eleven letters passing between the pursuer's solicitors, Peter T McCann & Co, and the Central Legal Office for the Scottish Health Service ("the CLO") on behalf of the Board, between 11 November 1993 and 14 October 1994. I was informed that these letters constitute the entire file of the CLO relating to the pursuer's claim. No productions have been lodged on behalf of the pursuer, even though it was apparent that a file relating to his claim was still in the hands of Peter T McCann & Co, and indeed reference was made to it overnight to answer a question put by me.
[6]It is not necessary for present purposes to set out in great detail the circumstances surrounding the pursuer's birth. He avers that immediately following delivery he was limp and shocked with Apgar scores (based on the evaluation of certain objective signs) consistent with intra-uterine fetal compromise prior to birth. The Apgar score at five minutes indicated that he was severely compromised and required immediate active resuscitation. He did not gasp until twenty five minutes after birth. In the meantime steps were taken to establish respiration. Facial oxygen was administered. There was a failed attempt to give intravenous sodium bicarbonate (to correct metabolic acidosis). He was placed in a pressure chamber at five minutes. He was removed from it at ten minutes because of falling heart rate. At eleven minutes he was given nalorphine by intra-muscular injection. This is an opiate antagonist, to counteract pethidine administered to his mother during labour. At twelve minutes he was intubated and subjected to intermittent positive pressure ventilation ("IPPV"). This improved his heart rate. At twenty four minutes an umbilical venous catheter was inserted and sodium bicarbonate was given. At no time following birth was external cardiac massage given. The pursuer was subsequently diagnosed as suffering from athetoid cerebral palsy.
[7]The pursuer goes on to attribute fault and negligence in particular to the member of staff who resuscitated him, who is believed to have been a neonatologist, who is averred to have failed to exercise the skill and care of an ordinarily competent neonatologist acting with ordinary skill and care. This person had a duty to institute tracheal intubation and IPPV immediately. This was the standard method of resuscitation used at that time for severe cases, particularly where the infant had not gasped. This person also had a duty to give the antagonist nalorphine immediately, given the fact that the pursuer's mother had been given pethidine during the delivery and the pursuer was markedly depressed at birth. This person also had a duty to institute cardiac massage immediately. This person had a duty not to place the pursuer into the hyperbaric oxygen chamber. Given the severity of the pursuer's condition at birth and given the fact that he had not gasped prior to being placed into the hyperbaric oxygen chamber, the use of the chamber was unsuitable and led to a further delay in establishing respiration. It is recognised in the pleadings, although there is no explicit averment to this effect, that the alleged fault and negligence of the person in question falls to be considered by reference to what would have been regarded as normal and proper practice in the relevant circumstances at the material time.
[8]The pursuer avers that he has suffered loss, injury and damage by reason of the athetoid cerebral palsy from which he suffers. His intellect is within normal range but he has marked articulation and motor difficulties and is now confined to a wheelchair. This condition is permanent. Had he been immediately resuscitated it is likely that he would not have had it. Notwithstanding his disability, he has attended a number of schools and colleges and has obtained O and H grades in media studies. He passed an Open University foundation course but withdrew after starting a second year course. Despite his academic achievements, he has not worked because of his disability. His parents originally provided all of his personal care, but he now needs a carer who comes in to assist him with various tasks. He requires equipment. These matters are elaborated to some extent in the pleadings, and reference is made to a report containing details of costs already incurred, and reasonably required to be incurred in the future, for the purchase of equipment, care services rendered to him by his family and others, and additional expenses. It is not necessary to go further into these details. The sum sued for is £1,200,000.
[9]The pursuer further avers that during the course of his life he had no reason to suspect that his physical condition was related to any event which occurred at around the time of his birth. The events surrounding his birth were never discussed with him. He attended disabled schools throughout his life, where he mixed with disabled children like himself. He did not consider that there was a reason for his disability and simply accepted it as a fact. When he was seen and treated by doctors, no doctor ever suggested to him that his condition was related to any act of negligence or lack of...
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