Woman who developed eye problems after LASIK surgery has action against clinic dismissed for being time barred

About this case:

• Citation:
  [2026] SC GLA 43
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff D N Taylor

Joanna Cox raised a claim against Optimax Clinics Ltd and Dr Asif Anwar in relation to alleged negligence during LASIK procedures carried out between August 2002 and August 2004. The action was raised in 2015 but was sisted for several years, later proceeding to a preliminary proof on the issue of time bar. The second defender, Dr Adrian Berry, who carried out the first two procedures, never entered process and was not represented.

The case was heard by Sheriff David Taylor at Glasgow Sheriff Court, with Allardice, advocate, appearing for the pursuer, Paterson KC for the first defender and Clair, advocate, for the third defender.

Reasonable diligence

In 2002, the pursuer suffered from myopia, and as a result underwent LASIK eye surgery at the first defender’s Glasgow clinic, carried out by the second defender Dr Berry on two occasions and by Dr Mohammed Ul-Haq, whose executor nominate appeared as the third defender, on a final occasion in August 2024. At some point prior to June 2009, the pursuer began wearing glasses, and in that month attended an appointment with an ophthalmologist, Dr Nabili, to discuss watering in her eyes.

Dr Nabili advised the pursuer to contact the first defender in relation to her disappointment that she still required to wear glasses after the surgery, but she did not do so. In April 2012, the pursuer also began to suffer from double vision and saw a consultant ophthalmic surgeon, Dr Mulvihill, about it the following month. Immediately after this consultation she contacted the first defender, but her position was that she did not find out there had been negligent treatment until 2015 when she received a draft expert medical report.

It was submitted for the pursuer that she had no knowledge of any injury prior to 2012. She believed that she had to wear glasses in 2009 due to natural deterioration of the vision in her right eye and did not suffer double vision until 2012. The notice period therefore ran until after June 2012 and as her action was raised in June 2015, it was not time barred.

The defenders submitted that the pursuer was sufficiently concerned about her eyes to consult with Dr Nabili in 2009 and did not follow his advice to contact the first defender at that time. She had not attempted to prove that she could not, with reasonable diligence, have been aware of her injuries prior to 26 June 2012 and on that basis the action should be dismissed. Even if this were not the case, the action was in any event time barred on the basis that the pursuer was aware of the statutory facts by, at the latest, 23 May 2012.

Very clear steer

In his decision, Sheriff Taylor said of the pursuer’s evidence of the events of 2009: “When she was asked about why she did not accept Dr Nabili’s advice to contact the first defender, she stated that she thought she had to wear glasses because of a natural deterioration in her eyesight which she described as a minor problem. I found this evidence difficult to follow. It was at odds with her earlier evidence about why she underwent surgery in the first place. Also, it did not fit with the terms of Dr Nabili’s letter which referred to her disappointment at having to wear glasses despite the previous LASIK eye surgery. It is much more likely that one of the reasons why the pursuer consulted with Dr Nabili was because she thought that her LASIK surgery should have removed the need for her to wear glasses.”

He added: “She was given a very clear steer from Dr Nabili that she should discuss the reason why she had to wear glasses with the first defender. She did not take this step. Contacting the first defender was a reasonably practicable step which she could have taken to investigate matters further. It follows that the pursuer has failed to aver and prove that she was not aware and that it would not have been reasonably practicable for her to become aware of the statutory facts before a date less than 3 years prior to the commencement of the action on 26 June 2012.”

Considering the defenders’ esto position on the pursuer’s awareness, Sheriff Taylor said: “By the time the pursuer consulted with Dr Mulvihill she had been suffering from double vision for approximately 5 weeks. She was upset and worried about her condition. The speed with which she acted following the development of her double vision is a clear indication of how serious she regarded her symptoms. She arranged to be privately referred to Dr Mulvihill because she did not want to wait for NHS treatment. On any view the pursuer was aware that her injuries were sufficiently serious to justify bringing an action of damages by the time she consulted with Dr Mulvihill on 23 May 2012.”

He concluded: “There is compelling evidence from a number of sources that the pursuer was aware of the statutory facts by 23 May 2012. Accordingly, I accept the defenders’ alternative submission. It follows that the action falls to be dismissed on that basis too. To give effect to my decision I shall repel the pleas-in-law for the pursuer, sustain the first plea-in-law for the first and third defenders and dismiss the action in so far as directed against the first and third defenders.”

The action therefore remained extant insofar as directed against the second defender only.