Ferguson v. Herd [2003] ScotSC 6 (4 February 2003)

Ferguson v. Herd [2003] ScotSC 6 (4 February 2003)

The pursuer's pleadings, taken as a whole, provided sufficient notice of the case to be met and satisfied the test of relevancy for proof before answer, except for the averment regarding the second defenders' employees other than the first defender. The sheriff erred in requiring explicit averments of normal practice in all aspects of the case. The true test is whether the conduct alleged was such that no ordinarily competent practitioner would have acted similarly with ordinary care. The appeal is allowed, the sheriff's interlocutor is recalled, and proof before answer is allowed.

Citation
[2003] ScotSC 6
Parties
Pursuer and Appellant: Hilda Jean Ferguson; First Defender and Respondent: David Herd; Second Defenders and Respondents: Highland Acute Hospitals NHS Trust (formerly Raigmore Hospital NHS Trust)
Jurisdiction
Scotland
Judgment Date
04 February 2003
Procedural Posture
Civil Appeal (medical Negligence) / Appeal Against Dismissal on Relevancy; Interlocutor of Sheriff Recalled; Proof Before Answer Allowed
Outcome
Appeal sustained; sheriff's interlocutor recalled; proof before answer allowed; one averment excluded from probation; expenses reserved.
Legal Topics
Standard of Care, Pleadings and Specification, Causation, Proof Before Answer
Medical Negligence Tort Law Civil Procedure Standard of Care Pleadings and Specification Causation Proof Before Answer

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 9 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Hilda Jean Ferguson

Pursuer and Appellant

David Herd

First Defender and Respondent

Highland Acute Hospitals NHS Trust (formerly Raigmore Hospital NHS Trust)

Second Defenders and Respondents

Procedural Posture

Civil Appeal (medical Negligence) / Appeal Against Dismissal on Relevancy; Interlocutor of Sheriff Recalled; Proof Before Answer Allowed

Legal Issues

  1. 1 Whether the pursuer's pleadings in medical negligence were sufficiently relevant and specified to proceed to proof
  2. 2 Whether averments of normal practice are required in all medical negligence cases
  3. 3 Whether the sheriff erred in dismissing the action for lack of relevancy

Ratio Decidendi

The pursuer's pleadings, taken as a whole, provided sufficient notice of the case to be met and satisfied the test of relevancy for proof before answer, except for the averment regarding the second defenders' employees other than the first defender. The sheriff erred in requiring explicit averments of normal practice in all aspects of the case. The true test is whether the conduct alleged was such that no ordinarily competent practitioner would have acted similarly with ordinary care. The appeal is allowed, the sheriff's interlocutor is recalled, and proof before answer is allowed.

Court Disposition

Appeal sustained; sheriff's interlocutor recalled; proof before answer allowed; one averment excluded from probation; expenses reserved.

Orders

  • Recall of sheriff's interlocutor dated 12 February 2002
  • Exclusion from probation of averment in article 3 regarding second defenders' duty to take reasonable care for safety of patients