Outer House allows relatives’ damages action over alleged delayed cancer diagnosis to proceed

About this case:

• Citation:
  [2026] CSOH 89
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Harrower

Lord Harrower held that for a person to die “in consequence of” personal injuries under section 3 of the 2011 Act, it is not necessary to establish that death would not otherwise have occurred. It is sufficient that the defender’s act or omission caused, or materially contributed to, the death occurring when it did.

Roy Lever died on 26 November 2022 aged 76, with renal cancer recorded as the cause of death. Between June 2019 and September 2022 he had received treatment at Ayr Hospital and Crosshouse Hospital, for which Ayrshire and Arran Health Board was responsible. His widow, children, grandchildren and brother raised proceedings alleging that a sonographer negligently failed to detect signs of a renal tumour during an ultrasound scan in July 2021.

They averred that, had the scan been reported as it should have been, further investigations would have led to a diagnosis in July 2021 and treatment beginning later that year. Although they accepted that Mr Lever’s cancer was incurable, they maintained that earlier treatment would have extended his life by 12 months and avoided some of his cancer symptoms.

The case was heard by Lord Harrower, with Davie KC and Pilkington, instructed by Jones Whyte LLP, appearing for the pursuers and Bennett, instructed by NHS Central Legal Office, appearing for the defender.

Death caused by cancer

The pursuers sought compensation under section 4(3)(b) of the Damages (Scotland) Act 2011 for distress and anxiety endured in contemplation of Mr Lever’s suffering, grief and sorrow following his death, and loss of his society and guidance. His widow also sought damages for loss of personal services. Section 3 of the Act permits such claims where a person dies “in consequence of” suffering personal injuries resulting from another person’s act or omission, provided that act or omission gives rise, or would but for the death have given rise, to liability in damages.

The action came before Lord Harrower at debate, where the pursuers’ factual averments required to be taken pro veritate. The sole issue was the proper interpretation of section 3 and, specifically, whether Mr Lever could be said to have died “in consequence of” personal injuries resulting from the alleged negligence. Counsel informed the court that their researches had revealed no authority on the question.

For the health board it was submitted that the statutory wording required a direct causal relationship between the personal injury caused by the defender and the death. The pursuers did not offer to prove that Mr Lever would have survived but for the alleged negligence. On their own averments, his renal cancer was incurable. The board therefore argued that he had died in consequence of the cancer rather than any injury caused by the sonographer’s alleged omission.

Any additional suffering resulting from delayed diagnosis could support a claim for solatium on behalf of Mr Lever, it argued, but could not found the relatives’ claims under sections 4 to 6. On that basis, the action was said to be irrelevant and liable to dismissal.

Death occurring when it did

For the pursuers it was submitted that the defender’s interpretation imposed a “but for” test which did not appear in the relevant part of section 3. It was enough, they argued, that the alleged negligence had made a material contribution to Mr Lever’s death occurring when it did rather than at a later date. They also relied on the structure of the 2011 Act, which expressly recognises claims for loss of life expectancy and damages for relatives arising from a death.

Rejecting the defender’s interpretation, Lord Harrower said: “Death comes to us all at some point. Indeed, there is a sense in which every action in damages for a wrongful death is an action for a wrongful acceleration of death.” Continuing, he elaborated: “In my opinion, section 3 of the 2011 Act is concerned not just with A’s death, but with the specific death that occurred, including the fact that it occurred when it did.” Accordingly, it was unnecessary for the pursuers to show that Mr Lever would not have died at all but for the alleged negligence.

Lord Harrower emphasised: “It is enough that A died earlier than he would have done in consequence of suffering personal injuries as a result of the act or omission of B. In other words, it is enough that B’s act or omission caused or at least materially contributed to A’s death.” On that interpretation, the pursuers’ action was relevant and required to proceed to proof.

Consistent with structure of 2011 Act

Lord Harrower found further support for that interpretation in the wider structure of the legislation. There was nothing in the heads of loss available to relatives under section 4(3), he held, which was inconsistent with a case based on acceleration of death. He observed that an accelerated death could itself intensify the distress and anxiety experienced before death, the grief and sorrow following it, and the loss of the deceased’s society and guidance.

The judge also emphasised that section 3 contains two distinct causal requirements: the death must have occurred in consequence of the deceased suffering personal injuries, and those injuries must themselves have resulted from the defender’s act or omission. A delayed diagnosis of a progressive disease such as cancer was, in principle, capable of amounting to an impairment of physical condition and therefore “personal injuries” under the Act. It was also not disputed that section 1 could in principle have given Mr Lever a claim for loss of life expectancy.

Lord Harrower said the defender’s construction would produce the result that Mr Lever’s eventual death brought an end to any claim arising from acceleration of his death other than the claim transmitted to his executor. Furthermore, he added: “It is unclear why, in drafting section 3 of the 2011 Act, the Scottish Parliament would have gone to the trouble of making A’s putative right of action against B a condition of the relative’s action in damages, while simultaneously depriving the relatives of any right to recover in such a situation.” He concluded: “Such an absurd result is inherently unlikely to have been intended.”

Lord Harrower also declined to derive assistance from the English case of Hague v Dalzell, noting that it concerned different statutory wording and had proceeded on the basis of a concession by the parties rather than determination of the point now before him. The health board’s first plea-in-law was accordingly repelled and a case management hearing is to be fixed, with the question of expenses arising from the debate reserved.