Case Overview

Citation: [2025] CSOH 103 (Outer House, Court of Session).
Judge: Lord Ericht.
Date: 14 November 2025.
Parties: Brian Taylor (Pursuer) v Forth Valley Health Board (Defender).
Representation: Pursuer — E Mackenzie KC, A Sutherland; Defender — Reid KC, Clair.
Procedural posture: Liability admitted (lack of informed consent); proof on causation and quantum.

This decision addresses two questions, both of wide practical importance:

• Whether admitted negligence in allowing surgery to proceed (amid last-minute change of surgeon and consent) materially contributed to the pursuer’s subsequent Somatic Symptom Disorder (SSD).
• How to approach wage-loss claims where the claimant historically failed to declare income and pay tax, and there is poor financial vouching.

The court found that the consent breach materially contributed to the pursuer’s severe SSD. On quantum, the court held that historic tax non‑compliance does not bar recovery of wage loss; loss can be assessed using ASHE data despite poor records. Substantial damages of £904,000 were awarded (interest reserved).

Summary of the Judgment

• Negligence admitted: The Health Board accepted that, given Mr Taylor’s anxiety and significant changes discussed on the morning of surgery, proceeding that day was wrong; surgery should have been delayed (para [2]).
• Causation: The court preferred Dr Rooney’s analysis and held the breach materially contributed to—and, but for the breach, it was unlikely Mr Taylor would have developed—severe SSD (paras [57]–[61]). Even the defender’s expert accepted the negligence would have materially affected his mental state (para [59]).
• Counterfactual: If properly consented by Mr Tweedle with appropriate preparation, and if conversion from laparoscopy to open surgery had been required, Mr Taylor might have suffered anxiety/depression for 1–2 years but likely would have returned to work and exercise, avoiding a long‑term disabling SSD (para [61](d)).
• Tax and wage loss: The court refused to disallow wage‑loss claims as a matter of policy due to historic tax non‑compliance, aligning with English authorities and applying Grubb v Finlay in Scotland (paras [37]–[40]). Loss was assessed using ASHE data and a conservative approach, less post‑injury earnings estimated at £50,000 (paras [81]–[84]).
• Quantum: Total award £904,000 (interest to be addressed later) (para [124]). Key heads:
  • Solatium (SSD and scarring): £67,000, with SSD assessed under JCG Chapter 9 (Pain Disorders) rather than general psychiatric damages (paras [66]–[67]).
  • Past wage loss: £350,000 (ASHE‑based) (para [84]).
  • Future wage loss (to age 70 on reduced hours): £60,000 (para [86]).
  • Future paid care: £381,000 using £30,000 p.a. with adjusted multiplier 12.7 (paras [97]–[99]).
  • Case management/therapies: £24,000 (accepting OT and case management; no psychological therapy costs awarded) (paras [100]–[104]).
  • Equipment: £6,300 (para [106]).
  • Future miscellaneous: £12,700 (para [111]).
  • Accommodation: stairlift only (£3,000); large property purchase rejected (paras [117]–[121]).
• Evidence handling: The court carefully calibrated the weight of the pursuer’s evidence given the recognised features of SSD (poor historian) and cross‑checked with independent evidence (paras [4], [120]–[121]).

Note: References in paras [41] and [57] to “28 November 2025” plainly read as typographical slips; the index surgery occurred on 28 November 2005.

Detailed Analysis

1) Precedents and Authorities Cited and Their Influence

• Grubb v Finlay 2018 SLT 463 (Inner House): The Inner House refused to dismiss a claim as an abuse of process where the claim was good but exaggerated. Lord Ericht invoked Grubb to emphasise that honest liability-admitted claims should not be struck out for collateral dishonesty unrelated to the existence of liability (para [39]). This underpinned refusal to dismiss or deny wage loss for historic tax non‑compliance.
• Summers v Fairclough Homes Ltd [2012] 1 WLR 2004 (UKSC): Cited in submissions to frame dismissal for abuse of process as exceptional, reserved for fundamentally dishonest claims. The defender did not seek dismissal given admitted breach; the court acknowledged dismissal is a high‑threshold remedy (para [35]).
• Kemp & Kemp Quantum of Damages (paras 8-054 to 8-056): Cited for the English position that failure to declare income to the tax authorities does not bar recovery for loss of earnings. Lord Ericht effectively adopts this approach for Scotland (paras [38]–[40]).
• Newman v Folkes [2002] PIQR; [2002] EWCA Civ 591: The Court of Appeal allowed wage loss notwithstanding the claimant’s undeclared income and unreliable records, characterising the wage-loss claim as “scandalous” yet still compensable. Lord Ericht uses Newman as a touchstone to reject a policy bar on wage loss in cases of prior tax non‑compliance (para [38]).
• Dullar v South East Lincs Engineers [1980] 5 WLUK 12: Consistent with Newman, reinforcing that undeclared income does not nullify wage loss.
• McGhee v National Coal Board 1973 SC (HL) 37; Andrews v Greater Glasgow Health Board 2019 SLT 727: The defender invoked a material contribution approach to causation. Lord Ericht’s analysis accepts material contribution in the context of psychiatric injury (SSD), noting even the defender’s expert conceded a material contribution (paras [56]–[61]).
• Judicial College Guidelines (17th ed., 2024): The court used JCG Chapter 9 (Pain Disorders) specifically for SSD, rather than Chapter 4 (Psychiatric Damage Generally), signalling a categorisation preference for SSD quantification (paras [63], [65], [67]). The court noted the 10% Simmons v Castle uplift does not apply in Scotland (para [65]).
• Simmons v Castle [2013] 1 WLR 1239: Cited to note the English 10% uplift is not adopted in Scotland; valuations to be adjusted accordingly (para [65]).
• F v Chalmers [2025] CSOH 3; Bullock v Atlas Ward Structures Ltd [2008] EWCA Civ 194; Blamire v South Cumbria Health Authority [1993] PIQR Q1: These authorities informed the court’s choice of method for wage loss—multiplier/multiplicand rather than a broad‑brush Blamire award, despite evidential difficulties (para [68]).
• Ogden Tables: Used to select multipliers for future loss and future care (paras [85], [98]).

2) Legal Reasoning

a) Causation of SSD: Material contribution and the counterfactual

Both psychiatric experts agreed Mr Taylor has severe SSD. The key divergence lay in aetiology. Dr Rooney modelled a cycle of pain, negative beliefs, anger, and maladaptive cognition triggered by the consent breach, the surgeon change, and the unexpectedly large scar—factors he said would likely have been ameliorated had there been proper pre‑operative preparation and consent by the original surgeon (paras [46]–[48], [53]). Professor Carson emphasised other life events (cancer diagnosis, mother’s death, marital breakdown) as sufficient causes, but accepted that even if the pursuer’s version were taken at its highest, the negligence made a “material contribution” to his mental state (para [50]).

Lord Ericht held:

• The breach materially contributed to the SSD; but for the breach, SSD was unlikely to occur (paras [57], [61](a)).
• Anger and sense of injustice over the surgery events and scar were pivotal in both development and persistence of symptoms (para [61](b)).
• On a realistic counterfactual (proper consent, expected scarring, earlier exercise and coping), any psychological reaction would likely have been markedly less severe and non‑chronic (para [61](d)).

The analysis exemplifies a flexible application of material contribution in psychiatric injury where precise causation cannot be dissected with biomedical certainty, consistent with McGhee‑type reasoning and Andrews.

b) Treatment of claimant credibility in SSD cases

The court explicitly recognised that severe SSD can render claimants unreliable historians, producing inconsistent or distorted accounts for complex reasons that need not imply malingering (para [4]). Accordingly, Mr Taylor’s evidence required corroboration from independent or contemporaneous sources, and the court relied heavily on medical records, expert reports, and objective observation (paras [4], [120]–[121]).

c) Wage‑loss despite historic tax non‑compliance

Rejecting a proposed policy bar, Lord Ericht affirmed that Scottish courts should not dismiss meritorious claims or refuse wage loss simply because the claimant failed to declare income historically (paras [37]–[40]). The court drew on Newman v Folkes and Kemp & Kemp to hold that claimants are still “entitled to be compensated for loss of earnings even though [they] had in the past failed to disclose them to the Inland Revenue” (para [38]). Grubb v Finlay supplied Scottish authority against dismissal for non‑fundamental dishonesty (para [39]).

In consequence, where HMRC or business records are unreliable or incomplete, “ASHE” data from the Office for National Statistics may serve as the multiplicand benchmark if reasonably aligned to the claimant’s occupational profile (paras [81]–[84]). On facts, the court used the defender’s proposed occupational category and conservative earnings, then made a sensible deduction for post‑injury earnings estimated at £50,000 (para [84]).

d) Classification and valuation of SSD

Critically, the court placed SSD under JCG Chapter 9 (Pain Disorders) rather than Chapter 4 (Psychiatric Damage Generally) (para [67]). This matters because:

• It recognises SSD as a pain‑disorder category with its own ranges and descriptors, rather than as “general psychiatric damage.”
• It helps ensure parity by using guidelines expressly tailored to SSD’s clinical profile and functional impact.

The court awarded £65,000 for SSD within Chapter 9, and a modest £2,000 for scarring—recognising that open nephrectomy (with smaller scarring) was likely even on the counterfactual (paras [66]–[67]).

e) Accommodation, care, and corroboration

Lord Ericht declined a large accommodation claim (purchase and significant renovations) and instead awarded the cost of a stairlift (£3,000). Key reasons:

• Independent evidence (including the judge’s own observation) contradicted the extent of physical limitations reported to the pursuer’s experts—e.g., walking unaided in court, walking the dog, managing stairs in principle, and tolerating more varied diet than asserted (paras [120]–[121]).
• Given functional capacity, a stairlift was sufficient and proportionate (paras [118]–[121]).
• Even had purchase been necessary, the court would have allowed a pared‑down amount (£160,000) on a broad‑brush basis due to speculative renovation items (paras [122]–[123]).

For care:

• Past gratuitous care (by the daughter) failed for lack of corroboration; no direct evidence from the daughter (paras [87]–[89]).
• Past paid care claim (by Mr Balloch) failed because the “payments” were circular cash transfers of his own money rather than wages; the services were accepted, but not as paid (paras [90]–[95]).
• Future professional care was allowed on an agreed scenario at £30,000 p.a., capitalised at 12.7 to reflect ageing and background care needs (£381,000) (paras [97]–[99]).

f) Interest

Interest was reserved for a further hearing due to permutations arising from interim payments (£75,000) and the structure of awards (para [125]).

Impact and Implications

1) Medical negligence and psychiatric injury

• Consent breaches can materially cause or exacerbate SSD. Courts will examine the dynamics of consent, timing, preoperative information, and substitute surgeons. Where anger and perceived betrayal compound pain and functional distress, a material contribution finding is plausible.
• SSD may be valued under the “Pain Disorders” chapter of the JCG, aligning the head of loss with the nature of the condition. Practitioners should plead and evidence SSD accordingly, including functional sequelae and care needs.

2) Evidential approach to SSD claimants

• Courts recognise SSD can undermine the reliability of a claimant’s self‑reporting without implying dishonesty. The practical response is triangulation: medical notes, contemporaneous records, witness evidence, and judicial observation.
• Expert evidence should address causation with transparent models (such as Dr Rooney’s “vicious circle” model) and engage with counterfactuals involving proper consent and realistic scarring outcomes.

3) Wage loss where tax was evaded or income undeclared

• The Outer House has provided clear guidance that historic tax non‑compliance does not bar wage‑loss claims in Scotland, echoing English authority. This is significant for personal injury and clinical negligence practice.
• Where records are incomplete, the court may adopt ASHE data for a suitable occupation as the multiplicand, with fact‑sensitive deductions/additions for post‑injury earnings or likely employment patterns.

4) Accommodation and proportionality

• Large capital claims for accommodation require robust evidence of functional need. Where a less intrusive and lower‑cost adaptation (e.g., stairlift) suffices, the court will favour that option. Speculative renovations are unlikely to be allowed.

5) Litigation practice points

• Corroborate care claims, particularly past gratuitous or paid arrangements; cash‑only “wage” arrangements are vulnerable to scrutiny and may fail absent documentary support and credible explanation.
• Where JCG is used in Scotland, remember the English 10% Simmons uplift is not applied; parties should adjust submissions accordingly.

Complex Concepts Simplified

• Somatic Symptom Disorder (SSD): A recognised condition where patients experience real and often severe physical symptoms (e.g., pain, fatigue, functional loss) driven substantially by psychological or behavioural processes. Symptoms are not fully explained by traditional pathology. Patients can be “poor historians,” and symptom focus may shift over time.
• Material contribution: A causation test. If a breach of duty makes more than a minimal contribution to the injury (even where multiple causes exist), causation is established. Particularly useful where precise apportionment is scientifically difficult.
• Counterfactual: A “what if” scenario used to test causation—what would likely have happened had the breach not occurred? Here, proper consent and realistic preparation for likely open surgery would probably have averted the severe, enduring SSD.
• Solatium: Scots law term for general damages for pain, suffering, and loss of amenity. The court here assessed SSD under the “Pain Disorders” chapter of the JCG and awarded a modest amount for scarring.
• ASHE: The Annual Survey of Hours and Earnings (ONS). Courts may use ASHE job categories to estimate earnings (multiplicand) when the claimant’s records are insufficient.
• Ogden Tables: Actuarial tables used to calculate multipliers for future loss, reflecting life expectancy and contingencies.

Key Takeaways and Conclusion

• Consent matters: Proceeding with surgery after significant last‑minute changes and in the face of patient anxiety can have long‑lasting psychological consequences. Courts will recognise material contribution to SSD where evidence supports it.
• SSD is a pain disorder for valuation purposes: Practitioners should generally look to JCG Chapter 9, not general psychiatric damages, for SSD assessments.
• No “tax bar” to wage loss: In Scotland, following this Outer House decision aligned with English authority, historic failure to declare income does not disqualify a claimant from recovering wage loss. Courts will use ASHE data and conservative judgment to assess loss in the face of imperfect records.
• Evidence discipline in SSD: Given the recognised unreliability of self‑report in SSD, independent corroboration is vital. Courts may rely on observation and third‑party testimony to test functional capacity.
• Proportional accommodation remedies: Expensive property purchases will be rejected where more economical adaptations suffice, especially where functional limitations are not corroborated.

This judgment offers practical guidance across clinical negligence and personal injury: it consolidates a principled, evidence‑based approach to psychiatric injury causation and fair quantification in the face of imperfect financial records. Its combined holdings on material contribution to SSD and the permissibility of wage‑loss recovery despite historical tax non‑compliance are likely to be cited in future Scottish cases, shaping how courts, clinicians, and practitioners approach consent, SSD evidence, and the proof of loss.