Legal Watch Scotland

Issue 24: May 2020

Welcome

In this issue:

NB: please click on any of the titles to be taken direct to named page

Welcome to May’s edition of Legal Watch Scotland.

This month we consider two cases that reinforce the limits of some of the more

recent developments in the law of vicarious liability and remind us of the scope of

material contribution and informed consent arguments in clinical negligence –

putting a welcome brake on further extension of these principles.

We also consider the impact of the Liability for NHS Charges (Treatment of

Industrial Disease) (Scotland) Bill, which has recently been introduced into the

Scottish Parliament. It seeks to extend the liability of compensators by including

industrial disease claims in the NHS charges compensation recovery scheme. This

development could add a significant amount to disease claim payouts in Scotland,

although it does not apply to exposure that predates the Bill.

We hope you find this edition both interesting and helpful, and should you have

any queries then please feel free to get in touch.

Meantime stay safe and well.

Cameron McNaught | Partner

Liability for NHS Charges (Treatment of Industrial Disease)

(Scotland) Bill

Case Law

1. Mrs K v Sir Stephen House, Chief Constable of the Police Service

of Scotland

2. McCulloch v Forth Valley Health Board [2020] CSOH 40

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Scottish Parliament News

Liability for NHS Charges (Treatment of Industrial Disease) (Scotland) Bill

This Bill aims to allow the NHS to get back the costs of treating industrial diseases in

the same way that they do for injury claims. The Bill covers not only those who

contracted a disease in the workplace but family members of those exposed at work.

The Bill is not retrospective, so any industrial disease which has been diagnosed before

the Bill comes into force, or harmful event that caused an industrial disease before

that date, are not included.

The latter exclusion will come as a relief to insurers as it will exclude the majority of

asbestos claims. However, in claims where there is exposure that pre and post-dates

this Bill it is envisaged that an apportionment exercise will have to occur. There is no

doubt, therefore, that it has the potential to significantly increase the cost of disease

claims.

The Bill has only recently been introduced and will now proceed to stage 1 where a

committee will examine its contents before it goes before MSPs to vote on whether it

can continue to stage 2.

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Case Law Back in 2019 we reported on the case of Mrs K v Sir Stephen House, Chief Constable of the Police Service of

Scotland, which dealt with the ever-broadening duties imposed on employers to take care of their employees.

The case arose from the Claimant’s treatment by the Force after she had been a “whistleblower” in relation to

alleged misconduct during an undercover operation. The Claimant’s case was successful, heralding in the

adoption in Scotland of an employer’s duty of fair treatment of employees – an accepted concept in England

and Wales but not found in case law north of the border. The judgement was appealed, and on the 28th of

April 2020, the Appeal Court issued its verdict. The Court overturned the original finding in favour of the

Claimant, and in so doing has left open the issue of whether a duty of fair treatment can be applied in Scotland.

One of the significant issues in the case is how it was pleaded and the reliance on vicarious liability. This arises

from the fact that the acts which the Claimant complained of occurred before the inception of Police Scotland.

In the legislation that set up Police Scotland, liabilities for the actions of police officers in the predecessor police

forces were transferred to the Chief Constable of Police Scotland. However, other liabilities, including any

personal liability of senior officers, did not. This meant that the Claimant could not direct her case against her

former senior officer directly. To succeed, therefore, she required to prove that there was fault on the part of

another police officer. The negligence had to be his, and the duty of care breached had to be relevant to a co-

worker, not an employer. The police officer blamed for the adverse decisions was Ch Supt Whitelock. However,

although critical of some of his actions, the Judge at first instance had not made any finding of wrongdoing on

his part.

And that leads to the second difficulty with the way this case was framed. The duty of fair treatment (if it exists

in Scotland) is a direct duty between an employer and employee and is based in the employment contract. It is

also limited to decisions that directly affect the individual employee, not operational decisions that impact the

broader organisation. In this instance, the decisions taken by Chief Superintendent Whitelock were classed as

operational. On every level, the Claimant’s case against the Defendant failed. The Defendant’s appeal was

successful, and the question of whether the duty of fair treatment exists at all in Scotland remains undecided.

The case of McCulloch v Forth Valley Health Board [2020] CSOH 40, also demonstrates the need to look at the

nature and purpose of a duty before applying it to the facts in hand. In this case, the family of a man who had

died in hospital in April 2012 sued the health board claiming that the death was caused by the negligence of a

Consultant Cardiologist, Dr Labinjoh. The deceased had two periods of hospital admission, both initially caused

by chest pain, but he also had a long history of other symptoms. A definitive diagnosis was not easy to make,

and several consultants were asked to review test results. One of those was Dr Labinjoh. It was her actions on

the 3rd of April 2012 (during his second admission) that were the basis of the negligence claim. It was alleged

that she ought to have prescribed certain medication at that point or ordered a further echocardiogram before

his release. The day after his release from hospital he suffered a fatal heart attack. The Claimant was 39 years

old.

While much of the judgement is fact-specific, it provides a useful overview of the approach that must be taken

in medical negligence claims. It also confirms the limits of the material contribution exception to the ‘but for’

test and the proper scope of the duty to obtain informed consent.

The Claimant’s primary case was one of professional negligence. There was conflicting medical evidence of

what normal practice was in terms of the Hunter v Hanley test. The Court made one finding of negligence, but

the Claimant could not prove that this negligence caused the death.

An alternative case was that the failure to prescribe an anti-inflammatory on the 3rd of April materially

contributed to the death. However, the Court concluded that the Claimant could not use this concept in this

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Case Law contd. case. A material contribution argument could be used in medical negligence claims but only where

inadequacies in medical science resulted in the Claimant being unable to prove the full extent of the

mechanism which caused the damage. That was not the case here.

The final argument relied on was that in failing to prescribe the anti-inflammatories, Dr Labinjoh failed to

discuss the risks of taking them, allowing the deceased to make his own informed decision. The Court viewed

this as an attempt to extend the principle of informed consent. Informed consent arguments are used where a

recommended treatment option is not fully explained to the patient. It does not apply to the decisions made by

doctors about which treatment to recommend. That is left to clinical judgement, and if the doctor gets that

judgement wrong, a claim can be made based on professional negligence and the Hunter v Hanley test.

A useful summary and guidance on these principles which are often tricky to apply to the facts of a case.

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Cameron McNaught, Partner

T: 0131 3229 252 | M: 07972 638 356 | E: cameron.mcnaught@plexuslaw.co.uk

Calum Mathieson, Partner

T: 0131 3709 103 | M: 07890 590 105 | E: calum.mathieson@plexuslaw.co.uk

Laurie Traynor, Partner

T: 0131 3229 253 | M: 07972 638 357 | E: laurie.traynor@plexuslaw.co.uk

Julie Fisher, Partner

T: 0131 3229 254 | M: 07972 638 358 | E: julie.fisher@plexuslaw.co.uk

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