RECLAIMING MOTION BY CAR AGAINST MUFTAH SALEM ELJAMEL AND NHS TAYSIDE [2022] ScotCS CSIH_34 (12 August 2022)

RECLAIMING MOTION BY CAR AGAINST MUFTAH SALEM ELJAMEL AND NHS TAYSIDE [2022] ScotCS CSIH_34 (12 August 2022)

The Lord Ordinary correctly found that the second defenders' negligence did not cause any significant harm or neurological deterioration to the pursuer, and all new neurological deficits occurred after the first defender's negligent operation. The causative potency of the second defenders' negligence was nil, and it would be unjust to require them to contribute to damages for the CES suffered. The Lord Ordinary's apportionment of 100% liability to the first defender and 0% to the second defenders was within his discretion and free from error.

Citation
[2022] ScotCS CSIH_34
Parties
Pursuer: CAR; First Defender and Reclaimer: Muftah Salem Eljamel; Second Defenders and Respondents: NHS Tayside
Jurisdiction
Scotland
Judgment Date
12 August 2022
Procedural Posture
Medical Negligence Apportionment of Liability / Reclaiming Motion (appeal) From Lord Ordinary's Apportionment Decision
Outcome
Reclaiming motion refused
Legal Topics
Apportionment of Liability, Contribution Between Joint Wrongdoers, Causative Potency, Moral Blameworthiness
Medical Negligence Tort/delict Civil Procedure Apportionment of Liability Contribution Between Joint Wrongdoers Causative Potency Moral Blameworthiness

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Parties

CAR

Pursuer

Muftah Salem Eljamel

First Defender and Reclaimer

NHS Tayside

Second Defenders and Respondents

Procedural Posture

Medical Negligence Apportionment of Liability / Reclaiming Motion (appeal) From Lord Ordinary's Apportionment Decision

Legal Issues

  1. 1 Whether the Lord Ordinary erred in apportioning 100% liability to the first defender and 0% to the second defenders under section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940
  2. 2 Whether the negligence of the second defenders had causative potency or moral blameworthiness justifying contribution

Ratio Decidendi

The Lord Ordinary correctly found that the second defenders' negligence did not cause any significant harm or neurological deterioration to the pursuer, and all new neurological deficits occurred after the first defender's negligent operation. The causative potency of the second defenders' negligence was nil, and it would be unjust to require them to contribute to damages for the CES suffered. The Lord Ordinary's apportionment of 100% liability to the first defender and 0% to the second defenders was within his discretion and free from error.

Court Disposition

Reclaiming motion refused

Orders

  • Apportionment of damages remains 100% to the first defender and 0% to the second defenders
  • No alteration to the Lord Ordinary's interlocutor of 21 December 2021