Introduction

The case of Kevin Dunn v Greater Glasgow Health Board ([2021] CSOH 68) presents a significant examination of the requirements for establishing causation in professional negligence claims within the Scottish legal context. The pursuer, Kevin Dunn, sought £900,000 in damages following an unsuccessful hip arthroscopy performed by consultant orthopaedic surgeon Mr. Alastair Gray, subsequent to a review by Dr. Stephanie Spence. Dunn alleged that his consent for the procedure was not fully informed, particularly regarding the risks of symptom exacerbation and the absence of alternative conservative treatment options. This commentary dissects the court’s analysis and decision, highlighting the implications for future professional negligence litigations.

Summary of the Judgment

The Scottish Court of Session, Outer House, dismissed Kevin Dunn's claim against Greater Glasgow Health Board, finding his plea deficient in adequately averring causation between the performed arthroscopy and the subsequent pain and disability he suffered. While the court acknowledged the pursuer's assertions regarding the lack of informed consent and alleged negligence in obtaining such consent, it found that Dunn failed to establish a clear causal link between the surgical procedure and his worsened symptoms. The court emphasized the necessity for plaintiffs in professional negligence cases to provide specific and detailed averments concerning how the defendant's negligence directly resulted in the claimed harm. As a result, the action was dismissed as irrelevant and lacking in specification.

Analysis

Precedents Cited

The judgment extensively references previous case law to establish the standards for adequate pleadings in negligence cases. Notably:

• Jamieson v Jamieson (1952 SC (HL) 44): This case underscores the principle that a plaintiff’s case can only be dismissed as irrelevant if, assuming all averments are true, the action must necessarily fail.
• Kyle v P & J Stormonth Darling WS (1993 SC 57): This precedent outlines the necessity for plaintiffs to make detailed averments about the negligent act, loss, injury, and crucially, the causal link between the negligence and the harm suffered, ensuring defendants receive fair notice of the claims against them.
• Montgomery v Lanarkshire Health Board (2015 UKSC 11): While primarily addressing informed consent and materiality of risks, the court's discussion on causation—particularly the need to identify specific risks that have materialized—was pertinent, though the court distinguished Dunn’s case from Montgomery based on the lack of a specific risk event in Dunn’s claims.

These precedents collectively reinforced the court’s stance that causation must be explicitly and logically established within pleadings to advance to proof.

Legal Reasoning

Lord Braid, delivering the judgment, dissected the sufficiency of Dunn's pleadings, particularly focusing on the causal nexus required in negligence claims. The court delineated causation into two facets:

1. Consent and Underlying Condition: Dunn asserted that inadequate informed consent led to his decision to undergo arthroscopy, a valid aspect addressing duty and breach.
2. Procedure Caused Subsequent Pain: This was the crux of the issue, where Dunn failed to provide specific averments elucidating how the procedure directly resulted in his claimed pain and disability.

The court found that Dunn’s claim relied on the assumption that worsening pain post-surgery equates causation, which is logically and medically unfounded without substantive evidence or specific causative claims. Additionally, the absence of detailed allegations regarding what precisely went wrong in the procedure (e.g., failure to remove impingement fully, removal of healthy cartilage, etc.) further weakened his position.

Lord Braid highlighted that, according to Kyle v P & J Stormonth Darling WS, pleadings must provide sufficient detail to inform the defendant of the claims’ basis. Dunn’s pleadings, however, were deemed too speculative and lacked the necessary specific causative details, thereby failing to meet the standard required to proceed to proof.

Impact

This judgment serves as a precedent emphasizing the critical importance of detailed and specific causal claims in professional negligence pleadings. Plaintiffs must articulate clear, evidence-based links between the defendant's alleged negligence and the harm suffered. Blind or assumptive claims, without specific causal mechanisms, will likely result in dismissal at the pleading stage. This decision reinforces the stringent requirements for pleadings in negligence actions, potentially influencing how future cases are structured and pleadings are drafted to ensure adequacy in establishing causation.

Complex Concepts Simplified

Averment

An averment refers to a statement or assertion made by a party in a legal document outlining the facts they intend to prove in a case.

Causation

Causation in legal terms refers to the requirement that the plaintiff must demonstrate a direct link between the defendant’s actions (or negligence) and the harm suffered.

Pleadings

Pleadings are formal written statements filed by parties in a lawsuit, detailing their claims, defenses, and other legally relevant information to outline the issues for the court.

Post Hoc Ergo Propter Hoc

The phrase post hoc ergo propter hoc is a logical fallacy meaning "after this, therefore because of this." In legal contexts, it refers to the mistaken assumption that if one event follows another, the first event must have caused the second.

Conclusion

The case of Kevin Dunn v Greater Glasgow Health Board underscores the paramount importance of meticulous and specific pleadings in establishing causation within professional negligence claims. The Scottish Court of Session’s decision highlights that without clear, detailed allegations linking the defendant’s negligence directly to the plaintiff’s harm, a case cannot proceed to proof. Legal practitioners must ensure that their clients’ pleadings meet the necessary specificity to provide defendants with fair notice and to establish a substantive foundation for their claims. This judgment reinforces existing legal standards and serves as a guiding principle for future negligence litigations, emphasizing that assumptions or general allegations are insufficient to advance a case.