Cancer patient who developed psychological pain condition after kidney operation awarded £904k in damages

About this case:

• Citation:
  [2025] CSOH 103
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

Brian Taylor sought damages from Forth Valley Health Board in respect of pain he suffered following the removal of his right kidney in 2005, which successfully cured his cancer. The defender admitted negligence in respect of lack of informed consent but disputed that the SSD was caused by that negligence. A preliminary issue arose based on the pursuer’s failure to pay tax when he was working prior to the operation, which the defender argued should exclude loss of earnings from quantum.

The case was heard by Lord Ericht in the Outer House of the Court of Session, with E Mackenzie KC and A Sutherland, advocate, appearing for the pursuer and Reid KC and Clair, advocate, for the defender.

Stark contrast

On 18 October 2005 at Falkirk Royal Infirmary, the pursuer was diagnosed as suffering from renal cancer. He was seen by Mr Tweedle, a consultant urologist, who advised that he would require to undergo a right-sided nephrectomy, scheduled for 28 November 2005. It was disputed by the parties whether the pursuer received any guarantee that of keyhole surgery under the pant line, with the pursuer averring that he did and Mr Tweedle for the defender stating that this promise was never made.

The pursuer attended Stirling Royal Infirmary to undergo the operation. On the morning of 28 November, Mr Tweedle advised him that he would not be available to perform the operation and that it would instead be performed by Mr Di Mauro, locum consultant urologist. After meeting with Mr Di Mauro, the pursuer signed a consent form and subsequently underwent the operation. However, the operation was by open surgery rather than laparoscopy and left a large scar above his pant line. The pursuer’s medical records thereafter showed numerous interactions relating to pain up until about 2022, with his anxiety perpetuated by an inability to exercise due to that pain.

In respect of the preliminary issue, senior counsel for the defender submitted that the pursuer’s failure to properly declare his income amounted to a fraud which should exclude his claim for wage loss. The pursuer’s position was that no authority supported that proposition, and outright dismissal of the claim was only justified when the claim itself was dishonestly invented.

Evidence in respect of the pursuer’s SSD was led from Dr Rooney, consultant neuropsychiatrist, who examined the pursuer twice by video link and once in person. He concluded that the pursuer had not been given enough time to psychologically adjust to the change of surgeon, and his anger about the unexpectedly large scar and anxiety were likely perpetuated when he was unable to exercise due to pain. The contrast between the pre-surgical and post-surgical GP record was stark and he struggled to conclude from this that surgery played no role.

The defender’s expert Professor Carson instead took the view that the SSD was caused by the pursuer’s cancer diagnosis, his wife subsequently leaving him, and the death of his mother. In response to this view, Dr Rooney opined that the pursuer’s mother’s death was a historical event from which he had mostly mentally recovered, but it may have hardened his attitude in respect of the grudge he held against the defender.

A sense of injustice

In his decision, Lord Ericht began by dismissing the defender’s arguments on the preliminary matter, saying: “In Grubb v Finlay (2018) the Inner House refused to dismiss as an abuse of process a claim which, although exaggerated, was a good claim and not fundamentally dishonest. In the current case, liability has been conceded by the defender. It is a good claim. It is not a fundamentally dishonest claim. It is a claim which (assuming causation is proved) will in any event sound in damages on a number of grounds other than loss of earnings.”

Turning to causation, he observed: “It has not been an easy task to decide whether to prefer the evidence of Dr Rooney or Professor Carson. Both of them are distinguished in the relevant field. Each had given considerable thought to the issues, and were doing their best to assist the court. Psychological conditions such as SSD do not lend themselves to precise analysis based on observable physical circumstances, and much comes down to differences of judgment on difficult grey areas.”

Evaluating the expert evidence, Lord Ericht said: “On the key matter of whether the admitted negligence contributed or materially contributed to the pursuer’s SSD, there was little difference between them. Professor Carson accepted in his written opinion that the admitted negligence would have made a material contribution to the pursuer’s mental state. Where there was a difference between these experts on other matters, I prefer the evidence of Dr Rooney.”

He concluded: “The pursuer’s anger and a sense of injustice over events around the time of surgery and the scar had played an important role in the development and continuation of the pursuer’s symptoms. While the pursuer had pre-existing vulnerabilities, but for the breach of duty, any psychological reaction that the pursuer may have had to the diagnosis of cancer is unlikely to have been as severe and disabling and resistant to treatment as the psychological reaction that did occur.”

Lord Ericht therefore found in favour of the pursuer on the matter of causation, and made an award of £904,000 comprising solatium, loss of earnings, future paid care, and other miscellaneous expenditure. The case was put out by order for submissions on interest and the precise terms of the interlocutor.