Sheriff Appeal Court finds sheriff did not err in refusing to extend time bar in medical negligence claim

About this case:

• Citation:
  [2025] SAC (Civ) 12
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff P Hughes

Marlene Simpson and Faye Campbell, the mother and sister of the late Michael Crossan, sought damages from Dumfries and Galloway Health Board on the basis that its failure to provide appropriate care led to Mr Crossan’s death. The respondent successfully argued that the action was time-barred, and the sheriff declined to extend the three-year time limit in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973.

The appeal was heard by Sheriffs Principal Derek Pyle and Gillian Wade KC, with Appeal Sheriff Patrick Hughes. Mackay KC and Markie, solicitor, appeared for the appellants and Clair, solicitor, for the respondent.

Paid no heed

Mr Crossan died by suicide on 20 August 2019. It was not disputed that the appellants learned of his death on that date, and within two weeks they had sought legal advice from Irwin Mitchell solicitors regarding a medical negligence claim. On the advice of these solicitors, the appellants made a “Stage 2 complaint” to the respondent on 21 September 2019, which resulted in a Serious Adverse Event Review being issued on 6 February 2020.

Having reviewed that document, Irwin Mitchell confirmed to the appellants on 21 February 2020 that they could not act for them, as the prospects of success were considered to be less than 70 per cent. Between October 2019 and February 2020, they sent six items of correspondence to the appellants advising them of the three-year time limit on personal injury claims and advised that an extension would be unlikely in their case. On 20 December 2022, the appellants raised their action against the respondent.

The sheriff identified 21 September 2019 as the date the appellants became aware that the death was due in whole or in part to an act or omission on the part of the respondent, who employed two identified nurses who had treated Mr Crossan. He considered that the appellants “paid no heed” to repeatedly given advice about the time limit and closed their minds to raising any proceedings until the Scottish Public Services Ombudsman had resolved a complaint about the outcome of the SAER. The sheriff considered the issue of prejudice to be a finely balanced issue, but one that lay in favour of the respondent.

For the appellants it was submitted that the sheriff had failed to consider that they had followed the advice given to them by Irwin Mitchell that their action had little chance of success and therefore erred in stating there was no obstacle to raising an action within the prescriptive period. The respondent would not be prejudiced by the application of section 19A, as a full investigation into Mr Crossan’s death had been conducted as a result of the SAER process.

The respondents submitted that the appellants’ evidence showed that they were aware of the fact they had a claim, albeit it did not meet Irwin Mitchell’s prospects of success threshold. It was axiomatic that a defender facing a time-barred claim would be prejudiced, and the nurses blamed for purported negligence would have to give evidence about matters from over six years ago.

Modest level of awareness

Delivering the opinion of the court, Appeal Sheriff Hughes considered the evidence before the sheriff of the appellants’ awareness: “The appellants have consistently held the same position: that Mr Crossan committed suicide due to the defective care with which the respondent and its employees had treated him. That is their position today, and that was their position on 21 September 2019. They were, on that date, aware that Mr Crossan’s death was capable of being attributed to the acts or omissions of the respondent. They themselves attributed it to those acts and omissions.”

He continued: “Any assessment that they or their legal advisers made as to the strength of such a case is immaterial; their awareness of the statutory facts was sufficiently firm to allow them to take legal advice and investigate whether there was a case against the respondent. The statute allows three years for such investigations to be conducted and for a case to be built; but the starting point for that period of investigation need only be a relatively modest level of awareness.”

Turning to the sheriff’s refusal to exercise his discretion, Appeal Sheriff Hughes said: “The appellants were not told that they could not sue nor that the claim was not actionable. They were advised repeatedly that they had a three year period within which to raise litigation; advice which appears to have been ignored. There was no evidence before the sheriff that they ever received advice from a solicitor that they had to await the outcome of an ombudsman’s investigation before raising an action. Insofar as they had formed such a view, it could not provide a reasonable explanation for the delay.”

He concluded: “As to the balancing of equities, they are equally balanced; the appellants’ prejudice in losing the right of action is balanced by the prejudice to the respondent in losing the protection of the time bar provision granted to them by Parliament.”

The appeal was therefore refused on both grounds, with the court adhering to the previous interlocutors of the sheriff.