Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 30
A72/09	OPINION OF LORD UIST in the cause MARIKA NINA MacPHERSON KOMORI Pursuer; against TAYSIDE HEALTH BOARD Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Miss Sutherland; Drummond Miller LLP

Defenders: Fitzpatrick; R F Macdonald

12 March 2010

Introduction

[1] The pursuer in this action of medical negligence, which is at present on the adjustment roll, has enrolled a motion for commission and diligence for recovery of the following documents set out in the specification of documents number 13 of process:

"1. All papers documents and written communications held by or on behalf of the defenders in relation to the investigation of the complaint made by the pursuer in writing on 21/4/2006 and subsequently on 8/1/2007.

2. Failing principles (sic), drafts, copies or duplicates of the above or any of them."

[2] The motion is opposed by the defenders, according to the terms of the notice of opposition, on the ground that the documents which the pursuer seeks to recover are confidential and privileged.

Background

[3] The background to the motion as averred by the pursuer on the adjusted open record is as follows. She was admitted to Ninewells Hospital Dundee on 14 February 2006 (when she was aged 19) under the care of Dr Hisham with a 16 hour history of epigastric pain, vomiting and diarrhoea. She had significant dehydration and a minor degree of renal failure. It was decided that blood gases, which are obtained from analysis of an arterial blood sample, were required. The first blood sample was successfully taken. A further sample was required at about 11 pm. A junior house officer, Dr Eva Vasela, made a number of unsuccessful attempts to take the sample. She initially attempted to obtain a sample from the left wrist on three occasions and then made four or five forceful attempts to obtain a sample from the right wrist. She kept stabbing at the wrist and was forceful in her attempts. She was becoming increasingly obviously flustered and was shaking her head. The pursuer was aware that these attempts were significantly different from the previous sample (sic) taken by another doctor. When the previous sample was taken the needle was gently introduced into the artery. Dr Vasela used a stabbing motion with force to attempt to introduce the needle. During the attempts she obtained a fresh set of needles. The pursuer was becoming extremely distressed during these repeated attempts, which were extremely painful. This was obvious to the doctor. The pursuer's mother was in attendance and she told the doctor to stop and left to find the nurse on duty. A nurse attended with the pursuer's mother and watched the junior house officer attempt to take the sample. The nurse stated that this was not good and told Dr Vasela to stop. She indicated that she would ask another doctor to come and take the sample. The sample was eventually successfully taken by a more senior doctor on the first attempt. The needle was gently introduced into the artery. The pursuer's right wrist was extremely painful and bruised following the unsuccessful attempts to obtain the sample. When the pursuer returned home she noticed that her right wrist remained bruised and extremely sore and she was unable to lift anything of weight. Her grip was also affected. She attended her GP and attempted physiotherapy. On 1/3/2006 the pursuer's GP noted bruising at the Venflon site and also on the right wrist. The GP suggested that she try Arnica. The pursuer attended the GP again on 14/3/2006 as she was still concerned about the bruising on her wrist and the fact that she was unable to draw. The GP advised her that it would take time to heal. On 1/6/2006 the pursuer was referred to Mr Oliver at the Murrayfield Hospital and he concluded that there was some damage to the radial artery slowing the blood flow. She was not offered follow up. The pursuer wished to get better and decided to seek a private referral. The pursuer attended Mr Field at the Cheltenham and Gloucester Nuffield Hospital and on 2/11/2006 he performed an arthroscopy and found a hole in the ligament capsule. The pursuer continues to suffer significant pain in her wrist as a result of the unsuccessful attempts to obtain the arterial sample. She wrote a letter of complaint to the defenders and was advised that the matter had been discussed at length with the junior house officer involved, who accepted that she should have sought the assistance of a more senior colleague at an earlier time. Following the involvement of the Scottish Public Services Ombudsman a letter was written to the pursuer indicating that, while it was appropriate to take an arterial blood sample, the repeated attempts to take the sample by a junior house officer were inappropriate and assistance should have been sought at an earlier time. In a letter to the pursuer dated 9/5/2006 Grant Franklin, Specialist Registrar, indicated that he had personally spoken to Dr Vasela and he stated that she recognised that her repeated attempts to take blood were inappropriate and that she should have sought help when she was unsuccessful. He indicated that she had learned from the experience and would not put other patients through a similar experience. He stated that he had given her additional guidance on techniques to reduce pain and discomfort.

[4] The averments of fault are that Dr Vasela had the duty to exercise the skill and care of an ordinarily competent junior house officer in medicine acting with ordinary skill and care. She had a duty to exercise ordinary care and skill in taking blood for the arterial sample. In the exercise of ordinary skill and care she had a duty not to use a stabbing, forceful motion with the needle to obtain the blood. No ordinarily competent junior house officer would have done so. In the exercise of ordinary skill and care she had a duty not to repeatedly and forcefully attempt to obtain an arterial sample from the pursuer's right wrist. No ordinarily competent junior house officer would have continued to do so. In the exercise of ordinarily skill and care she had a duty to request assistance from a more senior member of the medical team. No ordinarily competent junior house officer would have failed to do so. Had she done so the pursuer would not have suffered injury to her wrist.

[5] In answer the defenders aver that the sample was taken at about 0100 hours on 15 February; that it was important and clinically necessary to obtain it; that Dr Vesela made no more than three attempts altogether to take the sample before seeking assistance, and that it was reasonable for her to do so in the circumstances. They also aver that the pursuer was discharged from hospital on 18 February 2006 and that extensive investigations have shown no abnormality in her wrist.

[6] The letter of complaint (6/26 of process) to which reference is made in the pursuer's pleadings is dated 21 April 2006 and was addressed to the Registrar, Ward 15, Ninewells Hospital. In it the pursuer stated, inter alia:

"... because of the state of my kidneys the doctors needed to keep a record of my arterial blood, taking blood from my wrists. I had this done on me throughout my period in hospital but on the first night after being admitted I had a doctor called Eva who was to take an arterial blood sample. I had had a couple done already so I knew that they were quite uncomfortable. However, when this particular doctor tried, first on my left wrist, I found it extremely sore and so she moved onto my right wrist to try again. This time it was even more forceful and despite numerous and quite forceful attempts she still could not succeed in getting the blood. By this time my mother who was with me had to go and fetch the nurse who was on duty to ask her if she could get the doctor to stop and get someone else to try. ...

I wish to just let you know that I find it difficult (sic) that I was admitted with a gastro-entiritus (sic) virus and my admittance to the hospital resulted in a temporarily damaged wrist and what has been over two months of pain and frustration. I would not like to think that what happened to me could happen to anyone else and the fact that the person who took the blood was a qualified doctor concerns me.

It has taken me until now to write to you with my concerns as I have found the whole thing extremely harrowing and was unable to bring myself to have to think about it let alone write about it until now."

[7] On 9 May 2006 Dr Grant Franklin, Specialist Registrar, replied to the pursuer (letter 6/27 of process) in which he stated that he had investigated the issue which had concerned her, that he fully understood she found her time in hospital extremely harrowing and he was very sorry to hear that she had experienced significant problems after she went home. He continued as follows:

"I have spent some time reviewing the notes regarding your admission, and, while I was not directly involved in your care, I can fully appreciate that you were very unwell on your admission to hospital. As you are probably aware, arterial blood samples are vital in the assessment and management of someone as unwell as you and I do feel that it was appropriate for the tests to be taken and repeated.

To address your concerns, I have personally spoken to Eva and she was very distressed to hear about your experience. She was the most junior member of the team who initially looked after you and is still in a period of supervised training. She now recognises that her repeated attempts in your case were inappropriate and that she should have sought help when she was unsuccessful. However, I hope you will understand, to some extent, the pressures on a junior trainee who correctly assessed the need for these vital tests to be carried out and was keen to ensure that the test was performed as quickly as possible.

I am certain that Eva learned from this experience and that she will not put other patients through a similar experience. I have given her additional guidance on techniques to reduce the pain or discomfort caused when taking arterial samples and she is putting these into effect in her own practice. I am also addressing the wider issue of other trainees potentially being involved with other patients by ensuring the trainees I am involved with are taught the best ways to minimise discomfort and the risk of damage to structures in the wrist.

I hope this goes some way to address the concerns you have addressed in your letter and I would be very happy for you to contact me if you have ongoing concerns."

[8] On 8 January 2007 the pursuer wrote a formal letter of complaint to the defenders. It was acknowledged by letter of 10 January 2007 (6/28 of process) from Wendy Warden, Complaints and Advice Co-ordinator, in which she stated, inter alia:

"An investigation into the issues raised is currently taking place and once this is complete you will receive a written response from the Chief Operating Officer or his Deputy. ...

For your assistance, a copy of our 'Making a Complaint about the NHS' leaflet is enclosed. This leaflet includes details of other organisations which may assist you."

[9] The pursuer received a reply dated 6 February 2007 from Professor J S Forsyth, Medical Director, Single Delivery Unit, NHS Tayside, in which he stated, inter alia:

"I note from Dr Franklin's response this matter was discussed at length with the junior doctor concerned. She accepts that with the benefit of hindsight she should have sought assistance from a more senior colleague at a much earlier time.

Arterial blood sampling is a standard procedure which students have to get signed off as competent to do prior to qualifying as a doctor in Dundee. As several thousand of these procedures are done each year it would not be possible to supervise all junior members of the team undertaking them. However, if any doctor indicated that they were unsure of the procedure, lacked experience in the procedure or were experiencing difficulties, supervision can and would be offered.

Your experience has been brought to the attention of the Clinical Director responsible for the medical staff in the Medicine / Cardiovascular Clinical Group. He will ensure this matter is brought to the attention of the staff responsible for the training of junior medical staff to highlight your experience and to reiterate the importance of recognising when to involve a more senior colleague. I appreciate this will not change your experience. However, I trust you will be reassured that this matter has been treated with the utmost seriousness. ...

If ... you feel the issues you raised have not been fully addressed and you do not wish to try further local resolution you may approach the Scottish Public Services Ombudsman. For your assistance I have enclosed a Scottish Public Service Ombudsman leaflet, which explains more about this service."

[10] The pursuer subsequently complained to the Scottish Public Services Ombudsman (SPSO). By letter dated 19 June 2007 a complaints investigator in the SPSO office wrote to the pursuer stating that the defenders had acknowledged that it was appropriate for blood samples to be taken but that the repeated attempts by the junior doctor were inappropriate, and that she (as she herself also accepted) should have sought assistance from a more senior colleague at an earlier time. He added that additional training in the taking of blood samples provided to the junior doctor and guidance to other trainees to minimise discomfort and the risk of damage to the structures of the wrist when taking arterial blood samples were measures which should reduce the risk of a similar occurrence. He decided not to investigate her complaint as, were he to do so, he would be unable to achieve an outcome that she herself had not already achieved.

Submission for the pursuer

[11] It was submitted for the pursuer that the documents which she sought to recover were part of the fact-finding exercise in answer to her complaint about her treatment. That complaint had been dealt with at a local level in the hospital and then by the SPSO. The documents being sought were highly relevant should the case come to proof. There were issues about the number of times the junior house officer attempted to obtain a sample from the pursuer. It was nonsense to provide the pursuer with the conclusion to the inquiry without the basic material behind it.

[12] Confidentiality in a case such as this rested with the pursuer: it was she who had sought information about her treatment at the hospital. It was not appropriate that the treating doctor should have confidentiality; if it was, it had been waived on her behalf in the letters written from the hospital. A doctor had a duty of candour to the patient about what had happened and what went wrong in the course of treatment. The duties of a doctor registered with the General Medical Council included a duty to give patients the information they wanted or needed in a way they could understand.

[13] The post litem motam rule was accepted. It was set out by Lord President Normand in Anderson v St Andrew's Ambulance Association 1942 SC 555 at p 557 as follows:

"The general rule is that no party can recover from another material which that other party has made in preparing his own case."

At p 559 Lord Moncrieff stated:

"I think it is not only settled in practice, but it is a proper consequence of principle that a litigant, in the course of making preparation for the presentment of his ex parte case, is not subject to finding himself having inadvertently made preparation for presentment of the case against him."

[14] In Young v National Coal Board 1957 SC 99 the Lord Ordinary (Walker) stated at p 101:

"The principle that after an accident, and even before any claim has been made, each party having a possible interest should be entitled to pursue his own investigations into the cause of the accident free from the risk of having to reveal his information to the other side suffers at least one exception .... That exception ... relates to reports by employees present at the time of the accident and made to their employers at or about that time. It appears to be an arbitrary exception, incapable of being extended to cover other reports ..."

[15] The above statement of the law was approved by Lord Mackintosh (at p 106) in the Inner House. He said:

"The Lord Ordinary has stated ... succinctly, and, in my view, correctly, the basic principle which obtains in our law in the matter of the recovery of documents in accident cases, and also the exception to that principle which has been established in our practice to the effect of allowing a pursuer to recover reports by employees who were present at the time of the accident and made to their employers at or about that time. He points out that the principle is an arbitrary one and incapable of extension. In saying this the Lord Ordinary has behind him the authority of many previous expressions of judicial opinion on this matter."

[16] Lord Justice-Clerk Thomson stated at p 105:

"The court has inherent power to compel the parties to a cause to produce documents which may have a bearing on the issues between them. The court will not, however, in the ordinary run of things, order production of documents which have been prepared in anticipation or in development of a party's case. Once the parties are at arm's length, or are obviously going to be at arm's length, the details of their preparation of weapons and ammunition are protected as confidential. Just when the parties come to be at arm's length may often be a difficult question, especially as some potential defenders prepare well in advance against the contingency of accidents, and indeed, under modern conditions, few accidents, and particularly few industrial accidents, can happen without it occurring to one or other party at any early stage that questions of disputed liability may arise.

However that may be, there is a long series of cases where reports made immediately after the occurrence of an accident by a responsible person to his employers to inform them of what has happened have been allowed to be recovered. The underlying theory is that, if such a report is made as part of routine duty, and as a record of the reporter's immediate reaction before he has had the time, opportunity or temptation to engage in too much reflection, it may well contain an unvarnished account of what happened and consequently be of value in the subsequent proceedings as a touchstone of truth. The same theory underlies the reception in our criminal law of de recenti statements in support of credibility, and the preliminary act in Admiralty causes.

This doctrine is of limited scope, both as to the authorship and character of the reports sought to be recovered and as to the time at which they are made. If the scope of the doctrine were extended, it would be apt to handicap the legitimate investigations of defenders, paralyse their remedial measures, and indeed rob the reports of that spontaneity which may be their virtue."

[17] Lord Blades at p 108 was to the same effect.

[18] In Johnstone v National Coal Board 1968 SC 128 Lord President Clyde stated at p 133:

"In our opinion the basic principle in Scots law regarding reports and records of accidents prepared by or on behalf of one side is that they are not recoverable under a specification of documents by the other side. The reason for this principle is that 'after an accident, and even before any claim has been made, each party having a possible interest should be entitled to pursue his own investigations into the cause of the accident, free from the risk of having to reveal his information to the other side'. See Lord Walker's opinion in Young v National Coal Board 1957 SC 99 at p 101, repeated and adopted by Lord Mackintosh when the case went to the Inner House (at p 106). A similar view is expressed by the other judges in the Inner House. See Lord Justice-Clerk Thomson at p 105 and Lord Blades at the foot of p 108. To this general rule, however, all these judges recognise that there is one exception. The exception relates to reports by employees present at the time of the accident and made to their employers at or about the time of the accident. Moreover, all the judges who took part in the decision in Young's case recognised that this was an exception which was incapable of being extended to cover other reports."

The Lord President then went on to cite from the opinion of Lord Justice-Clerk Thomson in Young in which the latter stated the justification for this exception.

[19] In the much earlier case of Whitehill v Glasgow Corporation 1915 SC 1015 the pursuer suffered injury and loss in a tramcar accident. The Lord Ordinary granted commission and diligence for the recovery of reports made to the Corporation by its employees at the time of the accident and relating thereto. The defenders refused, on the ground of confidentiality, to produce a report by the driver and conductor of the tramcar written on a form supplied by the defenders and headed "For the use of the Corporation solicitors to enable them to defend should litigation ensue". The report had been made shortly after the accident and before any question of a claim for damages had arisen. It was held by the First Division that the defenders were bound to produce the report as a report which fell within the category of recoverable reports as a report made for the information of the employers by responsible officers while the occurrence was fresh in their memory, presumably made for no other purpose than to put the owners in possession of the true facts (Lord Low in Scott v Portsoy Harbour Co (1900) 8 SLT 38). Lord President Strathclyde stated that the words on the report could not alter its character. He pointed out at p 1017:

"There was no claim made, and no claim threatened, and there was no litigation in contemplation at the time when this report was made and received."

He then went on to quote what Lord President Dunedin said in Admiralty v Aberdeen Steam Trawling and Fishing Co Ltd 1909 SC 335 (a case of a collision at sea) at p 340:

"I think that the practice which has grown up of allowing reports in these circumstances to be recovered in the case of collisions is a right one, and I think that the distinction taken by Lord Low in the case quoted (Scott v Portsoy Harbour Co) is also a proper one, namely, that while reports written shortly after the collision may be recovered, you cannot recover anything that has passed between the owners and any of their servants post litem motam - I do not mean merely after the summons has been raised, but after it is apparent that there is going to be a litigious contention between the parties."

Lord President Strathclyde in Whitehill thereafter continued at p 1018:

"Now, at the time when this report was issued and was received, it was not apparent that there was going to be a litigious contention between the parties. No doubt, if and when litigation ensued, this report would be valuable information in the hands of the defenders' solicitors to enable them to consider the question of the probable success or failure of the action and to enable them to get up the evidence necessary for the defence, if defence was resolved upon. But, inasmuch as there was no litigation then threatened or mooted, it appears to me that the report must be regarded exactly as a report made by the servant for the purpose of informing his master of the accident at a time when the occurrence was fresh in the servant's memory."

[20] The case of Marks & Spencer Ltd v British Gas Corporation 1983 SLT 196 involved the question of the recoverability of a report made immediately after a gas explosion to the defenders following upon examination of sections of a fractured main. Lord Hunter held that the report was recoverable. At p 197 he said:

"So far as any clear rules can be derived from the numerous authorities bearing upon this area of law and practice, one principle would appear to be that reports prepared shortly after an accident for a person who subsequently becomes a party to litigation arising out of the accident will not be recoverable if they are prepared and submitted post litem motam, using that term in the particular sense which it is understood to convey in the present context. .. It is a question of circumstances whether this particular case has been reached in any particular case, but in general it may be said that the contrast is between reports which are designed to put the person concerned in possession of the true facts, on the one hand, and reports made in contemplation of judicial proceedings, on the other. ... No doubt it is true that there are at the present day few accidents which are not likely to bring in their wake some likelihood of civil claims being made against those thought to be responsible. But the words of Lord President Dunedin (in the Admiralty case) suggest that as a general rule the situation must have developed considerably further than that for matters of confidentiality to arise. ... Having read with attention the report for which in the present case confidentiality is claimed, both the content and tone are in my opinion wholly consistent with a purpose of presenting the facts scientifically and objectively rather than with an aim to provide a basis for contesting a pending or projected litigation. I conclude accordingly as a matter of general principle that no information has emerged during the discussion before me or on consideration of the report itself to show that by the time the report was prepared and submitted matters had reached a stage at which it was apparent that there was going to be a litigious contention between the parties."

[21] The documents which the pursuer sought to recover from the defenders were not part of the preparation of the defenders' case. Some complaints to the NHS went no further after the result of the investigation was known. The position in this case was distinct from that of an investigation carried out by insurers after an accident. The information in question was not confidential or privileged. The court had to consider the common law duty on doctors to inform patients what went wrong: there was a duty of candour on doctors. The defenders' response to the pursuer's request for the documents was to say that she was entitled to know the conclusion of the investigation but not the information on which it was based. The defenders here had not carried out an investigation for the purpose of litigation but for the purpose of candidly answering a patient's inquiry about what went wrong when.

Submission for the defenders

[22] The general proposition for the defenders was that the documents in question were confidential, having been provided post litem motam. No recognised exception to the general rule applied here just because the pursuer had made a complaint. Communications between the defenders' employees in the investigation of the complaint were privileged. The cases referred to in the submission for the pursuer were founded on as well as the following cases.

[23] In More v Brown & Root Wimpey Highland Fabricators Ltd 1983 SLT 669 a scaffolder had fallen from a ladder and sued his employers. At open record stage he sought to recover documents including photographs of the locus which he believed to have been taken shortly after the accident by the defenders' health and safety officer. Recovery was refused by the First Division. Lord President Emslie said at p 671:

"The general rule has always been understood to apply to reports and records prepared by or on behalf of one side or the other after a real likelihood of a claim and a disputed question of liability has emerged. The particular formulation of the rule which has existed since 1957 has simply reflected recognition by the courts that in modern conditions there are few, if any, accidents, and especially industrial accidents, which do not give rise to a real likelihood of a dispute about liability, and that in the interests of certainty it must now be recognised that confidentiality ought to attach to all records and reports of investigations made after an accident has occurred."

[24] In Hepburn v Scottish Power plc 1997 SC 80 householders sued Scottish Power following a fire which started in the electrical distribution board in their hall. The defenders' loss adjusters had instructed an expert report by forensic scientists who had examined the premises three days after the fire and who had prepared their report a month later. The Extra Division, chaired by Lord McCluskey, held that the report was prepared post litem motam, but that, exceptionally, an excerpting commission would be allowed to recover factual parts of the report (but not those parts bearing on fault and liability), only because the inspection had destroyed or materially altered the electrical apparatus involved. The court explained that it was necessary to make a judgment whether the document sought to be recovered fell to be classified as post litem motam (p 85D-E) and that there was no question of the exercise of a discretion in that regard (p 85H). Moreover, it was not appropriate to take any broad brush approach, as the sheriff had done, based upon regard to the interests of justice and fairness.

[25] In Williamson v Advocate General for Scotland 2006 SLT 611 an airman sustained injury during a firearms exercise. In an action of damages he sought to recover an "internal unit inquiry report". Lord Macphail refused to allow recovery and stated:

"The general rule is familiar and is not challenged, and it is not suggested that the report falls within the single exception to the rule which relates to reports by employees present at the time of the accident and made to their employers at or about the time of the accident."

[26] The pursuer's application should be refused: it was far from being specific and had at best a doubtful foundation on record. The reference on record to a single complaint and the reference in the specification to "the complaint made on 21/4/2006 and subsequently on 8/1/2007" probably consisted of a deliberate attempt to place "the complaint" as near as possible in time to the incident. The specification was couched in the most general terms, apt to cover every piece of paper generated by the pursuer's complaint or complaints. The pursuer was conscious during the incident complained of, with her mother present, and she had been able to plead detailed averments of her version of events. Any legitimate purpose for seeking recovery (for pleading or proof) was unexplained. In any event, records held by the defenders of communications made on their behalf between their employees "in relation to" investigation of the pursuer's complaint were confidential. All such communications were made post litem motam as explained in Young and More. There was no requirement for the defenders to reveal them to the pursuer, as explained in Johnstone. The principle in More now applied to medical negligence actions. There was no question of any recognised exception to the rule having application in this case. There was no warrant for the view that the general rule could be avoided by the making of a complaint before making a claim or raising proceedings.

Response for the pursuer

[27] The response for the pursuer began by drawing attention to the pleadings of both parties about the incident. The defenders averred that the junior house officer was reasonably experienced in taking arterial blood samples and made no more than three attempts to take this sample. That might not have been said by her on an earlier occasion. There was a clear purpose to the motion: if the junior house officer told a different story to the investigators that was relevant.

[28] The documents sought in this case were not covered by the post litem motam rule. This was the case of a young girl who was unhappy at the way she had been treated and did not wish the same thing to happen to anyone else. She had not consulted a lawyer and did not do so until after she had made a complaint to the SPSO. The procedure which she had invoked with the hospital was an independent, free-standing procedure, not a precursor to litigation. The complaints department of the defenders was separate from their legal office. A distinction fell to be drawn between an accident at work and something which happened to someone in hospital. There was no line of authority in medical cases. Many complaints to the NHS were satisfactorily dealt with. This was a completely different situation which arose in the context of a doctor / patient relationship and where the doctor was under a duty to tell the patient what had happened. By providing the explanation which they had given thus far the defenders had waived any argument based on confidentiality. In medical negligence cases precognition of the doctor was often not afforded to the pursuer by the defenders. There had been only one complaint, and it was proximate to when her injury became worse. It was quite clear from the letter of reply to her complaint that the doctor who wrote it did not think that litigation was pending or contemplated.

Discussion and conclusion

[29] Although the only ground of opposition stated on behalf of the defenders in the notice of opposition to the motion (Form 23.4) was that the documents sought were confidential and privileged, the oral submission for the defenders appeared to go further and challenge the terms of the specification as being too wide. Practice Note No 7 of 1996 (which was stated to be "for an experimental period" but remains in force) provides that "where a party seeks to oppose a motion he shall, at the same time, notwithstanding the terms of Rule of Court 23.4, include therein, and in the intimation thereof, a brief statement of the extent and basis of said opposition". On the style of Form 23.4 there is a section for the reason for opposition to be provided, and that was done in this case. Nothing was said in the reason for opposition about the terms of the specification and I am therefore of the view that it was not open to the defenders to raise this point, of which the pursuer had no notice, at the hearing on the motion roll. In any event I am satisfied that the point is without substance. It is clear from the terms of the letters of 21 April 2006 and 8 January 2007 that the pursuer was making only one complaint about her treatment and I think that it is obvious from the terms of the specification itself that what the pursuer is seeking to recover is the defenders' file containing all documents relating to the investigation of her complaint. I do not see any real prospect of the defenders being confused or uncertain about what is being sought.

[30] The real basis of the opposition to the motion is that set out in the notice of opposition, that the documents sought are confidential and privileged. The reason why it is said that the documents are confidential and privileged is because they were created post litem motam. It is plain from a review of the decisions to which reference was made in the course of the submissions for both parties that in this area of law and practice there is a general rule to which there is one single exception. The rule and the exceptions to it have been formulated over the years by different judges in different language. The general rule was clearly set out by Lord President Normand in the Anderson case at p 557 when he said that it was "that no party can recover from another material which that other party has made in preparing his own case". The single exception always appears to have been one expressed in the context of an industrial or road traffic accident and was stated by Lord Walker in Young at p 101 to "relate to reports by employees present at the time of the accident and made to their employers at or about that time".

[30] It was never suggested that the documents sought in this case fell within the exception, or even some variant of it adapted to the circumstances of a medical negligence case. Accordingly, the question which I have to determine is whether the documents are covered by the post litem motam rule. In considering that question I think it is necessary to have regard to the precise circumstances, and the purpose for which, the documents in question were created. The documents were created because the pursuer availed herself of the NHS complaints system and made a complaint to the hospital about the way she had been treated. I note that the leaflet "Making a complaint about the NHS", which is addressed to the patient in plain words, states the following:

"What can't I complain about?

There are some things that you can't complain about through the NHS complaints procedure, and these include:

·       something which you are taking legal action about."

So, if the pursuer had been taking legal action at the time she made her complaint, there could not have been any investigation by the hospital. She was not taking legal action at the time and her complaint was therefore received and an investigation into it was carried out.

[31] As Lord Justice-Clerk Thomson remarked in the case of Young at p 105, "just when the parties come to be at arm's length may often be a difficult question". Lord .Hunter commented in the Marks & Spencer case that it is a question of circumstances whether the post litem motam stage has been reached in any particular case "but in general it may be said that the contrast is between reports which are designed to put the person concerned in possession of the true facts, on the one hand, and reports made in contemplation of judicial proceedings, on the other". What, then, are the circumstances in which the documents in the present case were created? They were created at the instigation of, and for the benefit of, the pursuer herself. There is no reason to think that, if she had not complained, an investigation would have been carried out by the hospital. The investigation was not carried out by the hospital for its own purposes, but in order to respond to the pursuer's complaint. The investigation was certainly not carried out with a view to preparation of the defenders' case. There was at that time no case, nor any suggestion or hint of a case, in the sense of legal proceedings being brought. The pursuer had not consulted a solicitor, and what she did on being informed of the outcome of the investigation was to go to the SPSO as opposed to a solicitor. When she made the complaint she found herself in the difficult position of all alleged victims of medical negligence in that she did not know exactly what had happened to her and what should have happened. There was no dispute between her and the defenders as she was trying to find out what had happened. It seems to me that she was trying to find out if there had been what I would describe as some form of accident. I do not think it can be said that it was apparent that there was going to be a litigious contention (the Admiralty case at p 340), that litigation was threatened or mooted (Whitehill at p 1018) or that the parties were at arm's length or were obviously going to be at arm's length (Young at p 105). Nor was this a case where the defenders can be said to have been pursuing their own investigations into the cause of the accident, free from the risk of having to reveal their information to the other side (Johnstone at p 133). The documents in question were created in order to put the pursuer in possession of the true facts, and not to assist the defenders in contemplation of litigation. I accordingly conclude that the documents are not covered by the post litem motam rule and that they are recoverable by the pursuer.

Decision

[32] In light of my above conclusion I shall grant the motion.