J.S. v. Lothian Health Board [2009] CSOH NUMBER97

Procedure Roll:- In this action the pursuer sought damages in respect of loss, injury and damage which the pursuer claims to have suffered due to negligence in her ante-natal care in 1994. At debate counsel for the defender invited the court to sustain the defenders' first plea in law and dismiss the action. It was submitted that there were no averments that the analysis of the sample was carried out by an employee for whose actings and omissions the defenders were responsible. The test was done as part of a research study which was not funded by the Health Board and was not carried out by an employee of the defenders and, as such, they were not responsible for the research study. It was submitted on behalf of the pursuers that the defenders were liable in negligence even though the individual said to have been negligent was not an employee of the defenders. Here the court considered the circumstances both relating subjectively to the pursuer's perception and objectively to the whole circumstances which affect the question of whether the defenders had assumed responsibility for the testing provided to the pursuer.