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Case Review: CAR v (1) Muftah Salem Eljamel and (2) NHS Tayside [2021] CSOH 130 A448/16

06 December 2022

In this case, the Court considered negligence claims involving multiple accusations of negligence against several parties. 

This decision concerns the apportionment of damages in a case of medical negligence in which the Pursuer, known by the initials CAR, sustained life-changing injuries as a result of failures in her care after she presented at the Accident and Emergency department of Ninewells Hospital complaining of pain in her leg.

Failures by the Second Defenders in not specifying that the Pursuer required urgent investigations following her initial presentation and by the First Defender in carrying out an operation on the Pursuer's spine in a negligent manner resulted in the Pursuer developing Cauda Equina syndrome, to her permanent detriment.

Decree was granted for payment by both defenders to the Pursuer of the sum of £2,810,118 plus interest. The matter thereafter called before the Court once more for the determination of the apportionment of damages between the two defenders. The question to be determined was the extent to which the negligence of the Second Defenders had caused or contributed to the harm caused to the Pursuer, given the intervening event of the negligent surgery undertaken by the First Defender. 

The submission for the first defender began by pointing out that the Second Defenders had elected not to take a plea of novus actus interveniens – in other words, it was not argued by the Second Defenders that the actions of the First Defender constituted a novel intervening act which broke the chain of causation between the action of the Second Defenders and the harm suffered by the Pursuer. The First Defender argued that the Second Defenders had accepted that damages fell to be apportioned. The Second Defenders' positon was that while they accepted that there had been negligence on their part, the causative act which led to the harm experienced by the Pursuer was that of the First Defender. 

Section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 gives the court a broad and unfettered discretion in relation to questions of apportionment. In determining apportionment, the court should have regard to the moral blameworthiness of the wrongdoers and the causative potency of their respective acts or omissions.

In this case, the court held that significant moral blameworthiness should be attached to the Second Defenders' failures. Nevertheless, it was held that the negligence of the Second Defenders did not cause any significant harm to the pursuer, and the causative potency in relation to the neurological harm suffered was nil. It was therefore determined that a just apportionment of damages and expenses was a 100% contribution by the First Defender and a 0% contribution by the Second Defenders.

It is not uncommon for negligence claims to involve multiple accusations of negligence against several parties. This case reinforces the fundamental principle that, regardless of the blameworthiness of a negligent actor, a clear causative link to harm caused is the essential determinative factor when it comes to the apportionment of damages.

read the opinion of the court in this case

This article is part of the Winter 2022 edition of our On Point Scottish Professional Indemnity newsletter. Subscribe here for future insurance updates and events.

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