The Ball's In Your Court

Defenders should seize the opportunity to seek assertive case management of complex negligence claims, following Lord Glennie's comments in JD v Lothian Health Board [2017] CSIH 27.

JD, a party litigant, sued Lothian Health Board in the Court of Session. He alleged his consultant negligently misdiagnosed him with hypogonadotrophic hypogonadism, a condition where a lack of testosterone causes small testicles, abnormal body appearance and sexual dysfunction. The Health Board took the case to debate, arguing JD's case was legally irrelevant. He made no relevant allegations of breach of duty; he had not offered to prove the cause of his low testosterone; and he claimed only for emotional upset. Without any physical injury, emotional distress not amounting to a psychiatric condition does not sound in damages.