Kay's Tutor V Ayrshire & Arran Health Board - Judgment

Judgment

It was held that where two competing causes of damage existed the law could not presume that the tortious cause was responsible. It needed to be proved that it was an accepted fact that the tortious cause was capable of aggravating the damage. The case was distinguished from McGhee v. National Coal Board.

Lord Ackner, who gave the final judgment, offered a good anecdotal account of the evidence at trial about the possible causes of the boy's deafness.

"Dr McAllister, consultant bacteriologist in the Royal Hospital for Sick Children, Queen Mother's Hospital, Glasgow had made a special study in laboratory and clinical assessment of antibiotics, organising many symposia on antibiotics all over the world and, in particular, Europe and the United States. His contributions to the literature on this subject numbered nearly 100, including 20 dealing with penicillins. He confirmed that pneumococcal meningitis was the classical disease for producing deafness. He was asked whether he had ever come across any information which would suggest that an overdose of intrathecal penicillin causes or could cause deafness. He said he had searched the literature, he had computer scans done by three different processes, he had watched for years and in his experience there was no single recorded case of deafness from such an overdose. He was asked in terms by the Lord Ordinary whether, as a bacteriologist, he was saying there was any reason why an overdose of penicillin injected intrathecally could not cause deafness. His reply was:

"As a medical scientist I need evidence for things, without evidence and without rational balance of evidence medicine is a dead duck and in this case there is no evidence that an overdose of intrathecal Benzylpenicillin ever has caused deafness." In answer to a further question from the learned judge he said:

"All things are possible and in medicine we never say never, but from the point of view of scientific medicine to my mind there is no evidence to incriminate an overdose of intrathecal Benzylpenicillin as a cause of deafness in this or in other cases and on the other side of the waterfall there is a massive amount of evidence to incriminate pneumococcal meningitis as one of the best known causes."

The only evidence to the effect that penicillin was the cause of the boy's deafness came from Mr Williams, a neuro-surgeon. His theory that penicillin injected intrathecally would itself have a destructive effect on the auditory nerve was rejected by the Lord Ordinary. The Lord Ordinary, however, developed his own theory, which was not put to any of the expert medical witnesses who gave evidence for the respondents nor was it canvassed at all at the hearing. The First Division of the Court of Session held that the appellant was not entitled to succeed on the basis of this theory and this decision has not been challenged before your Lordships.

Lord Ackner agreed that this case was distinguishable from McGhee. In McGhee there was no problem about evidence that the failure to provide a shower could have caused Mr McGhee's dermatitis. The "could have" element simply reflected that it was uncertain which cause (the brick dust at work, or the lack of a shower) was the operating cause of dermatitis. But here, the idea that the penicillin overdose "could have" caused deafness was of a different quality. It was not just of lesser degree of possibility, but that there was no evidential basis for the assertion at all.