Sabri-Tabrizi v Lothian Health Board
| Jurisdiction | Scotland |
| Judgment Date | 17 December 1997 |
| Docket Number | No 38 |
| Date | 17 December 1997 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Nimmo Smith
NegligenceCausationNovus actus interveniensVolenti non fit injuriaPursuer undergoing sterilisation but becoming pregnantAfter termination of pregnancy pursuer having sexual intercourse and again falling pregnantWhether intercourse in knowledge that not sterile voluntary assumption of riskWhether novus actus interveniens
The pursuer underwent a laparoscopic sterilisation procedure in September 1991 but fell pregnant in 1992 (the first pregnancy) and had an abortion in June 1992. In July 1992 the pursuer again became pregnant (the second pregnancy) after having had sexual intercourse with her husband on a number of occasions following the termination of her first pregnancy. Complications developed during the second pregnancy and the pursuer was delivered of a stillborn child and required to undergo an operation to remove the afterbirth. The pursuer brought an action of damages against the health board for the negligent sterilisation resulting in, inter alia, the second pregnancy and its consequences. At procedure roll the health board sought exclusion from probation of the averments relating to the second pregnancy on the ground that the pursuer's conduct in having intercourse after discovering that the sterilisation had been unsuccessful, was novus actus interveniens and that the pursuer had thereby voluntarily assumed the risk of negligence.
Held (1) that the principle volenti non fit injuriahad no application because the acceptance of risk had to occur before or contemporaneously with the act or omission constituting the negligence, and not, as here, after it; but (2) that the pursuer's decision to have intercourse in the knowledge that she was not sterile constituted anovus actus interveniens, breaking the chain of causation with the result that the health board could not be held liable for the second pregnancy and the consequences thereof; and averments anent the second pregnancy excluded from probation.
Winnik v Dick 1984 SLT 185 applied.
McKew v Holland and Hannen and Cubitts (Scotland) LtdSC1970 SC (HL) 20followed.
June Sabri-Tabrizi brought an action against Lothian Health Board concluding for damages in respect of alleged negligence in performing a laparoscopic sterilisation procedure on 19 September 1991 at the Royal Infirmary, Edinburgh.
The full facts and circumstances and averments of parties appear sufficiently from the opinion of the Lord Ordinary (Nimmo Smith).
The cause called on procedure roll before the Lord Ordinary on the defenders' first plea in law relating to the relevancy and specification of the pursuer's averments.
Cases referred to:
Emeh v Kensington and Chelsea and Westminster Area Health AuthorityELR [1985] 1 QB 1012
Fowler v Tierney 1974 SLT (Notes) 23
McCaig v Langan 1964 SLT 121
McKew v Holland and Hannen and Cubitts (Scotland) LtdSC1970 SC (HL) 20
Wardlaw v Bonnington Castings LtdSC 1956 SC (HL) 26
Winnik v Dick 1984 SLT 185
Textbook referred to:
Walker, Delict (2nd edn), pp 211ff, 219224
At advising, on 17 December 1997, the Lord Ordinary sustained the first plea in law for the defenders and excluded from probation the averments complained of.
Lord Nimmo Smith's OpinionThis action of reparation came before me on the procedure roll, when counsel for the defenders moved me to sustain the first plea in law for the defenders, which is a general plea to the relevancy of the pursuer's averments, to the extent of excluding certain averments from probation. Apart from this, it was agreed between counsel that there should be a proof before answer of the parties' averments on record, subject to certain consequential amendments which would be necessary in the event of my sustaining the defenders' motion.
The pursuer avers that she was born on 17 August 1955. She is married. She has two children, a boy born on 10 April 1990 and a girl born on 30 July 1991. As a result of complications arising from the second pregnancy and delivery the pursuer was admitted on about 19 September 1991 to the Royal Infirmary, Edinburgh, for a laparoscopic sterilisation procedure to be carried out on her by medical practitioners employed by the defenders. During the course of the operation clips were attached to both her fallopian tubes. The right fallopian tube was not occluded successfully, and as a result the pursuer was not sterilised. The pursuer avers that the medical practitioners who carried out the operation were negligent in failing to occlude the right fallopian tube. I am not at this stage concerned with these averments of negligence, which I must take pro veritate. The defenders aver that failure of sterilisation is rare but can occur in the absence of negligence by those performing the procedure, as was explained to the...
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Nram Plc Against Jane Steel And Bell & Scott Llp
...of reasonable care and the risk of loss (McCaig v Langan 1964 SLT 121, per Lord Kilbrandon at p 124; Sabri-Tabrizi v Lothian Health Board 1998 SC 373). Nor was there any basis for concluding that the loss had been caused through the sole fault of the pursuers. It was accepted that damages f......
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