EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 106
Lady Paton Lord Drummond Young Lord Wheatley	A235/12 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in the cause by TERENCE McGEADIE Pursuer and Reclaimer; against (FIRST) DEEPTI BHATEJA (SECOND) ATOS HEALTHCARE Defenders and Respondents: _______________

Act: Party

Alt: Watson, Solicitor Advocate; Simpson & Marwick

10 December 2013

[1] The pursuer has raised proceedings against the first and second defenders in which he seeks reparation for loss, injury and damage that he alleges to have sustained as a result of his dealings with the defenders. The damages sought are £250,000. In February and March 2012 the second defenders provided services to the Department for Work and Pensions, by assessing applicants for employment and support allowance on their behalf. The first defender is a physiotherapist who was employed by the second defenders at that time.

[2] The pursuer avers that he is currently unable to work owing to disability. He is diabetic with ischaemic heart and kidney failure, and suffers from arthritis in his spine, tinnitus, diabetes, high blood pressure, high cholesterol and untreated depression. He avers that both the first and second defenders were aware of his medical ailments as they were in possession of a form that detailed in full his many and complex medical conditions. In addition, an employee of the second defenders had in 2008 diagnosed him as having untreated mental health issues. He avers that before his assessment by the defenders his health was manageable, but he now has to take prescribed medication which has serious side-effects.

[3] The pursuer further avers that on 24 February 2012 he was required to attend a medical examination at the defenders' place of business in Kirkcaldy. He arrived at 2:35 p.m. for an appointed time of 2:50 p.m., but was not seen until 3:25 p.m.. No explanation was given for the delay. He states that he was informed by a person who appears to have been the receptionist that a "doctor" would be assessing him, concealing the fact that the person concerned, the first defender, was not a qualified general practitioner. That is said to amount to an attempt to mislead the pursuer fraudulently. The pursuer was seen by the first defender, who claimed to be a qualified physiotherapist. The pursuer queried the first defender's qualifications to assess his medical conditions. He avers that both defenders failed to meet the standard of care and skill to be expected of "reasonable professionals" to ensure the well-being and safety of a "vulnerable" person, and to meet certain matters stated in an independent review of working practices within the second defenders' organization. That review had advised that people with complex medical conditions should be seen by a general practitioner.

[4] The pursuer states that the first defender failed to respond to his attempts to determine her professional capabilities, and that she walked out of the room after shouting at the pursuer and causing him fear, alarm and shock. That is said to amount to a breach of the first defender's duty of care towards the pursuer. It is averred that the first defender should in the first instance have told the pursuer that she was not suitably qualified to assess someone with the pursuer's complex medical conditions, and that she should have referred the pursuer to the second defenders' "Mental Function Champion", who is said to have been mentioned in a statement made by the second defenders to the BBC. It is further averred that the second defenders should not have referred the pursuer to the first defender. After the incident with the first defender it is said that the pursuer was asked to leave the building by the second defenders' receptionist, although he stated that he was willing to wait to see any other available assessor; that was refused.

[5] It is then averred that the defenders consistently refused to pay what are described as qualifying expenses to the pursuer for attending the foregoing assessment, although ultimately these were paid after the pursuer complained. This is said to have caused the pursuer financial difficulties because he was out of pocket for so long and had to borrow money from relatives to enable him to eat. It is further said that the second defenders embarked on a series of misleading and contradictory letters in an attempt to confuse and intimidate the pursuer, despite their knowledge of his fragile mental state. The first defender had refused to confirm the pursuer's travel expenses and sign them off on the relevant expenses form.

[6] The pursuer further avers that by letter dated 20 March 2012 he was told that the second defenders had received further medical evidence from his own general practitioner. They had not in fact contacted his general practitioner. The petitioner alleges that that letter was an attempt to intimidate and cause fear to a vulnerable claimant by threatening his benefits. The pursuer was summoned to another examination on 10 April 2012. No taxi arrived for him, although one had been organized. A further examination was arranged for 16 May 2012. The letter asking him to attend threatened that once again he might have his benefits affected. Yet a further examination was arranged for 28 June 2012, but it was cancelled at short notice without explanation. Once again the letters arranging the appointment threatened that the pursuer's benefits might be affected. Further similar letters are said to have been sent thereafter. On occasion appointments were cancelled at short notice, which caused the pursuer "huge upset, anxiety and confusion". The actions of the second defenders are said to have been malicious and misleading causing the pursuer to suffer from many serious medical conditions. In their defences, the second defenders aver that these averments are scandalous and vexatious.

[7] The pursuer subsequently complained to the second defenders and to the Department of Work and Pensions about the second defenders' conduct but he avers that he received no satisfactory response from the second defenders. It had been suggested in one letter from the second defenders that a police officer could be in attendance for the pursuer's assessment, which was said to be a threat to the pursuer. The second defenders had moreover placed a security guard in the waiting room at their medical centre when the pursuer had a further assessment; the security guard is said to have caused the pursuer and his carer great anxiety by boasting of a previous physical altercation with a customer. In addition, it is averred that a non-medically trained employee of the second defenders was within the examination room where the pursuer was to be assessed. This person was dressed in what is described as an inappropriate fashion, in denims, a polo shirt and trainers, "as if ready to fight". The second defenders are said to have insisted that a security guard should be present at any further examination.

[8] By way of loss, the pursuer avers that he suffers great chest pain and discomfort because of the failure of the defenders to act in a proper manner. He had subsequently obtained medical attention from his doctor for anxiety and depression caused by the first and second defenders' action. He continued to suffer chest pain caused by the anxiety of what are described as the second defenders' intimidating and contradictory letters. He suffers side-effects from a drug prescribed by his general practitioner to treat his mental condition. He is now concerned that his life expectancy will be shortened as a result of the defenders' actions, causing great physical and psychological distress with a risk of heart attack. The pursuer avers that his depression was brought on by the stress caused by the first defender's actions by shouting at him and the second defenders' actions as previously averred. Reference is made to reports in the media to the effect that many people had suffered the onset of depression after attending assessments with the second defenders. The pursuer avers that he will require counselling to overcome the multiple mental health conditions caused by the defenders, and surgery appropriate to deal with his chest pain, putting him at risk of death under a general anaesthetic. He further avers that according to media reports 1100 claimants died shortly after being put in the "work-related activity group" following examination by the second defenders.

[9] Following finalization of the pleadings, the action proceeded to a discussion on the procedure roll. On 6 February 2013 the Lord Ordinary dismissed the action, for reasons set out in detail in his opinion of that date. We may say that we are in complete agreement with both his conclusions and his reasons for reaching them.

[10] The pursuer has reclaimed against the Lord Ordinary's decision. In his grounds of appeal he criticizes the Lord Ordinary for failing to reach a decision on the whole of the arguments presented by the pursuer, including the pursuer's motion for jury trial. In addition, he makes a number of specific complaints about the Lord Ordinary's opinion, which we discuss below.

[11] We are satisfied that the pursuers' averments are irrelevant, and that the Lord Ordinary was accordingly correct to dismiss the action. In approaching the relevancy of the pursuer's pleadings, we must, of course, follow the test laid down in Jamieson v Jamieson, 1952 SC (HL) 44, at 50 per Lord Normand:

"[A]n action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved. The onus is on the defender who moves to have the action dismissed, and there is no onus on the pursuer to show that if he proves his averments he is bound to succeed".

[12] The pursuer's case is based on negligence; that is apparent from his first plea in law. The basic requirements of a relevant case based on negligence were set out by Lord Maxwell in Jamieson v Allan McNeil & Son, 1974 SLT (Notes) 9, in the following terms:

"But it is my understanding that our system of pleading still requires in actions for damages for negligence first, that the essential facts relied upon should be set out with a reasonable clarity; second, that the duties alleged to have been breached should be plainly stated and should be duties which the court can be satisfied at least might have been incumbent upon the defenders in law in the circumstances averred...; third, that it should be reasonably apparent how any alleged loss is claimed to be attributable to any one or more alleged breaches of duty; and, fourth, that in so far as the nature of any head of patrimonial loss permits, at least some notice should be given of the amount claimed under that head and, in any event, of the basis of quantification proposed to be relied upon".

In our opinion the second, third, and fourth of those requirements are obviously lacking in the pursuer's pleadings. First, he does not aver any relevant case of fault and negligence against either of the defenders. No statement is made of the duties that are said to have been breached. Nor is it stated how those duties were breached. Secondly, the pursuer does not indicate how the loss claimed, which is said to consist of exacerbation of the pursuer's existing heart condition and damage to his mental health, was attributable to any breaches of duty on the part of the defenders; the causal links that are essential to establish liability are not averred. In the third place, the pursuer's averments of loss are rudimentary. That could no doubt be cured by amendment. The first two problems, however, the lack of proper averments of fault and negligence and the lack of any proper averments of causation of loss, are fundamental.

[13] In relation to fault and negligence on the part of the defenders, the pursuer nowhere states the steps that should have been taken by either the first or the second defenders in fulfilment of their duties of care and skill. Four passages in the pursuer's pleadings may be intended as attempts to set out a duty, but none of them appears to us to come anywhere near averring a duty in intelligible terms. First, it is said that both defenders failed to meet the standard of care and skill to be expected of reasonable professionals to ensure the well-being and safety of vulnerable persons and to meet points in the independent review of the second defenders' working practices; that review had advised that anyone with a complex medical condition should be seen by a general practitioner. It is nowhere stated, however, what the usual and normal practice is in cases of this nature; nor is it said that the first or second defenders failed to meet such a standard: Hunter v Hanley, 1955 SC 200. The fact that an independent review recommended that persons with a complex medical condition should be seen by a general practitioner will not suffice; it is not stated that the particular recommendation of the review represents usual and normal practice among those carrying out assessments on behalf of the Department of Work and Pensions. Furthermore, the standards expected to ensure the well-being and safety of vulnerable persons are not stated. It is obvious that persons who might be considered "vulnerable" cover a wide range, and it is not said what should have been done in the present case beyond, possibly, having the pursuer seen by a general practitioner rather than a physiotherapist. Nevertheless, to the extent that the pursuer's physical capabilities require to be assessed, a physiotherapist might be ideally qualified. Finally, we find it difficult to understand how any duty to ensure the well-being and safety of vulnerable persons can be said to have been breached, beyond the fact that the pursuer was seen by a physiotherapist rather than a general practitioner and an altercation developed between the pursuer and the physiotherapist.

[14] Secondly, the pursuer avers that the first defender failed to respond to his attempts to ascertain her professional capabilities, shouted at him, and walked out of the room. This is said to have caused the pursuer exacerbation of his chronic heart condition and damage to his mental health. Nevertheless, the pursuer does not aver a duty to respond to questions about professional capabilities. Indeed, he appears to have understood that the first defender was a physiotherapist. He states that the first defender, as a qualified physiotherapist, owed the pursuer a duty of care "as per her profession's standards... and by the accepted standards of a medical professional in a consultant situation". What any such duty might amount to is not stated. Furthermore, it is not stated how the first defender breached any such duty. Apart from the lack of proper averments of any duty and breach of such duty, the pursuer fails to aver how the incident led to the suggested consequences for the pursuer's heart condition and mental health. In view of the apparent importance of those consequences, we consider that it is essential that the detailed causal mechanism that is said to have occurred should be averred. For these reasons we cannot regard this averment as a relevant averment of fault and causation of loss.

[15] Thirdly, the pursuer avers that the first defender should have told him that she was not suitably qualified to assess someone with his complex medical conditions, and should have referred him to an official dealing with mental health issues. On this matter, the first defender avers that she explained to the pursuer that she was to carry out an assessment of the appellant's day-to-day functional abilities, not a medical assessment, which is clearly exactly what would be expected of a physiotherapist. Furthermore, it is not averred how, even if the first defender did not state at the outset that she was not qualified to assess his complex medical conditions, that would have caused him exacerbation of his existing heart condition and of his mental health problems. As to the need to refer to an official dealing with mental health problems, it is not at all clear what the function of any "Mental Health Champion" is, nor how he might have assisted the pursuer and in some way reduce the loss that is said to have occurred. The source relied on by the pursuer for information about such an official is a BBC report. By itself, that is scarcely a satisfactory basis on which to aver a claim for substantial damages. Fourthly, the pursuer avers that the second defenders should not have referred him to the first defender. We find it impossible to understand how on the pursuer's averments such a duty can be said to exist, or how it can be said to have caused significant damage to the pursuer's physical and mental health. As we have noted, a physiotherapist is well qualified to assess a person's physical capacity for work. If there are mental health issues or a heart condition, no doubt further references might be required, to a general practitioner or psychiatrist or cardiac specialist. Nevertheless, the fact that an assessment is carried out by a physiotherapist appears prima facie to be a perfectly proper part of the overall assessment.

[16] Furthermore, the pursuer does not aver any basis upon which his alleged losses are attributable to the breach of any duties incumbent upon them. He contends that the Lord Ordinary failed to accept evidence that he intended to lodge in future. That is immaterial at a procedure roll discussion, however; all that matters is the state of the pursuer's averments on record, including any documents that are actually incorporated into those averments. That does not include the further evidence that appears to have been referred to by the pursuer.

[17] In relation to both the lack of relevant averments of fault and the lack of relevant averments dealing with the causation of loss, we note that in Jamieson v Allan McNeil & Son, supra, Lord Maxwell stated that the duties averred must be such as to satisfy the court that they might have been incumbent upon the defenders in law in the circumstances averred. In our opinion the same principle relates to averments regarding the causation of loss. In effect, the court is required to apply common sense to determine whether the duties and causal mechanisms that are averred could plausibly be established. In the present case we are of opinion that it is unlikely that any liability in negligence could be incumbent on the defenders in the manner and in the circumstances that are averred by the pursuer; nor on the averments could any causal mechanism plausibly be established connecting the defenders' acts with the loss that is averred.

[18] At certain points in his pleadings the pursuer makes reference to the defender's leaflets, issued in connection with their work. These merely state the defenders' practice. For a duty of care to exist, there must be a usual and normal practice in the particular branch of the medical profession that is involved, and these leaflets do not by themselves demonstrate any such practice.

[19] In Jamieson v Allan McNeil & Son, supra, Lord Maxwell indicated that at least some notice should be given of the amount claimed under any head of patrimonial loss and the basis of quantification that is proposed. In the present case we can find no basis upon which the sum sued for, £250,000, is calculated. On this ground alone it seems to us that the pursuer's averments are irrelevant.

[20] The pursuer contends that the Lord Ordinary should have dealt with his motion for jury trial. For the defenders it is contended that no motion for jury trial was before the Lord Ordinary, although it was accepted that the matter was raised in the course of the procedure roll discussion. No prior intimation had been given of such a motion, and the solicitor advocate for the defenders stated that he had indicated to the Lord Ordinary that he would oppose any such motion. It seems clear that no such motion was in fact properly enrolled. A motion for jury trial for (issues) must be properly enrolled, if only to give the other party notice of what is proposed and an opportunity to oppose it. Consequently the Lord Ordinary cannot be criticized for not dealing with this matter. In any event, even if such a motion had been enrolled, there would in our opinion have been no justification for allowing issues. The pursuer's case was held to be irrelevant by the Lord Ordinary, and we agree with that conclusion. The result is that no further procedure can take place unless the pursuer amends his pleadings. If the pleadings cannot proceed to proof before answer, jury trial is clearly out of the question.

[20] The pursuer further contends that his summons had received "support" from three other judges who had considered it at earlier stages in the action. In our opinion this is quite immaterial; those judges were not concerned with the relevancy of the pursuers' pleadings. The first judge involved in the case authorized the summons to pass the signet. At that point a very much lower test was applicable than at procedure roll. The second judge dealt with a motion for caution by the defenders. He held that the most expeditious way of dealing with matters was to appoint the action to the procedure roll. That in no way constrained the decision of the Lord Ordinary at procedure roll. The third judge permitted the lodging of a late note of argument. Once again, that has no bearing on the decision following a procedure roll discussion. The pursuer also contends that the Lord Ordinary was wrong to state that the first defender's identity and qualifications could not be properly established. In our opinion this criticism is immaterial to the validity of the decision that the pleadings were irrelevant. It is further contended that the first defender misrepresented her qualifications as a person qualified in the field of heart and kidney failure. It is averred that the first defender insisted that she was fully trained to assess and deal with any of the pursuer's medical conditions, and that she thereby accepted that she should be judged by proper professional standards in the treatment of heart, kidney and mental health conditions. We do not for present purposes accept in any way that the first defender represented herself as being qualified to deal with heart and kidney conditions. Nevertheless, even if she did, it is not stated how such representation might have caused an exacerbation of the pursuer's existing heart condition or a worsening of his mental health. There is no averment that she made any diagnosis of those conditions, or that the pursuer acted upon anything that she said in this connection.

[21] The pursuer further submits that the Lord Ordinary was in error because he misunderstood and failed to record the public interest in the case, by "misquoting the number of people who have died shortly after attending" assessments by the second defenders. In our opinion any such deaths are wholly irrelevant to the pursuer's case; even if the basic premise is correct, no inference of causation can be drawn from it without at the very least detailed statistical evidence suggesting a causal link. The pursuer's averments make no attempt to deal with issues of causation of this nature. The Lord Ordinary was also criticized for apparently misstating certain figures about persons who had died after assessment by the second defenders. This was described by the pursuer as a "terrible error". In our opinion these figures have nothing whatsoever to do with the present case. As we have said, statistics about deaths after attending appointments mean nothing without detailed analysis, and that is wholly lacking in the pursuer's averments.

[22] Finally, we should note certain cases that were relied on by the pursuer in argument. The first of these was MM and DM v Secretary of State for Work & Pensions, [2013] UK UT0259 (AAC). That case involved a claim for judicial review of certain decisions relating to employment and support allowance; the decision is by the Upper Tribunal (Administrative Appeals Chamber). The particular issue related to the practice of the Secretary of State in relation to claimants with mental health problems. The pursuer submitted that it was directly relevant to his own situation, as he suffered from mental health problems. In that case the Tribunal had indicated that claimants with mental health problems might have particular difficulties in dealing with assessment processes. It was also recognized that there was a duty under the Equality Act 2010 to recognize the problems faced by persons with mental health problems. In our opinion that decision has no bearing on the present case. It involves judicial review, a public law remedy, and it is concerned with the manner in which the relevant government department administered the scheme of public benefits. It is of no relevance to the questions of whether the defenders were under a duty of care towards the pursuer and whether they were in breach of any such duty, if it exists. Those questions that arise in private law, and the issues discussed in MM are not relevant to it.

[23] Reference was also made to Mearns v Smedvig Ltd, 1999 SC 243. That was a case where it was sought to compel a pursuer in a personal injuries action to submit to medical examination by a consultant in an innovative system for testing and evaluating muscular and skeletal disabilities. It was held that whereas a medical examination carried out by a member of a professional body carried assurances that the examination would be carried out in a medically competent way and with regard to proper professional ethics and proprieties, that could not necessarily be said about the consultant proposed by the defenders: see Lord Eassie at 248. The submission for the pursuer, as we understood it, was that unless he was satisfied that the person examining him (the first defender) had proper professional qualifications, he should not have been compelled to submit to any examination. That does not, however, have any bearing on the possible fault and negligence of the defenders. Mearns is concerned with a situation wholly different from the present case.

[24] Finally, at certain points in the pleadings the pursuer makes allegations of fraud and other criminal activity on the part of the defenders. It is well established that averments of that nature should not be allowed to proceed to proof without proper specification: Wardrope v Duke of Hamilton, 1876, 3 R 876. In the present case specification is totally lacking. We accordingly have no hesitation in holding that such averments are irrelevant.

[25] For the foregoing reasons we will refuse the pursuer's reclaiming motion and adhere to the Lord Ordinary's interlocutor.