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Brian Taylor v Forth Valley Health Board
Brian Taylor v Forth Valley Health Board
A1000/08
10:30 to 13:00 then 14:00 until conclusion
Second division
[1] The respondent underwent a right-sided nephrectomy at Stirling Royal Infirmary on 28 November 2005. It had been discussed prior to the operation that there was a small possibility that the procedure could have proceeded laparoscopically, although open surgery was more likely to have been necessary. The respondent consented to the operation on that basis.
[2] On the morning of the planned surgery, the reclaimer sought the respondent’s consent for a different doctor to that initially scheduled to perform the operation. The respondent exhibited considerable anxiety at the change, although consent was eventually given and the procedure went ahead. The surgery was wholly successful but was not performed laparoscopically and the respondent was left with a large scar.
[3] The respondent has since been diagnosed with Somatic Symptom Disorder (“SSD”). Patients with SSD present with physical symptoms, such as pain, fits and seizures, which cannot be explained by traditional pathophysiological processes that can be understood. Somatoform symptoms may be triggered by trauma, and previous adverse experiences significantly increase the risk of developing SSD. The respondent’s symptoms include severe and debilitating pain at the site of the nephrectomy scar.
[4] The respondent raised proceedings in this court seeking reparation for pain, loss and damage suffered as a consequence of the respondent’s negligence. The reclaimer conceded that it acted negligently in that it obtained the respondent’s renewed consent in circumstances where he was too anxious to allow informed consent to be confirmed. The questions for determination by the court were: (i) whether the admitted negligence caused, or materially contributed to, the respondent’s SSD; and (ii) if so, the sum to be awarded in damages.
[5] On the issue of causation, parties each led evidence from expert consultants in neuropsychiatry. Dr Rooney, for the respondent, offered the view that the admitted negligence had caused the respondent’s SSD whereas Professor Carson, for the reclaimer, opined that it had not. On the question of quantum, the reclaimer argued, inter alia, that no award ought to be made for loss of past and future earnings since the respondent, for a substantial period of his working life, failed to properly declare his income and pay the consequent tax.
[6] After hearing evidence, the Lord Ordinary held that the admitted negligence had materially contributed to the respondent’s SSD. He held that there was little difference between the experts led by parties on whether the admitted negligence made a material contribution to the pursuer’s mental state. Where there was a difference between parties’ experts, the Lord Ordinary preferred the reasoning and explanations given by Dr Rooney. Moreover, the Lord Ordinary made awards in damages for solatium, loss of past and future wage loss, future care costs, case management and therapies costs, miscellaneous expenditure together with the costs of installing a chair lift in the respondent’s home.
[7] The reclaimer argues that the Lord Ordinary’s finding that the experts were materially at one on the question of causation was “plainly wrong”. In addition, it argues that the reasons provided by the Lord Ordinary for preferring Dr Rooney’s evidence over Professor Carson’s were inadequate. It invites the court to re-assess the evidence anew and to find that the admitted negligence did not cause or materially contribute to the respondent’s SSD. Moreover, the reclaimer contends that the Lord Ordinary erred in his assessment of quantum since the respondent was unable to properly vouch his loss of earnings. The approach taken by the Lord Ordinary to base the award for wage loss on the average earnings information from the Office for National Statistics Annual Survey of Hours and Earnings is said to be an error.
[8] The Second Division of the Inner House of the Court of Session will hear the reclaiming motion (appeal) on 24 and 25 September 2026, commencing both days at 10:30am.