Kay v. Ayrshire and Arran Health Board, (1987) 79 N.R. 38 (HL)

• Case Date: May 14, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 79 N.R. 38 (HL)

Kay v. Ayrshire (1987), 79 N.R. 38 (HL)

MLB headnote and full text

Kay (as tutor and administrator at law of his pupil child Andrew Stuart Kay) (appellants) v. Ayrshire and Arran Health Board (respondents) (Scotland)

Indexed As: Kay v. Ayrshire and Arran Health Board

House of Lords

London, England Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Mackay of Clashfern and Lord Ackner

May 14, 1987.

Summary:

The plaintiff brought an action in negligence against the defendant for damages arising out of the negligent medical treatment of the plaintiff's son. The boy was treated negligently for spinal meningitis by an accidental massive overdose of penicillin. He recovered, but was deaf. The plaintiff alleged that the overdose caused the deafness, even though deafness was a common result of meningitis and had never been shown to have resulted from an overdose of penicillin.

The Lord Ordinary allowed the action and found that the overdose caused the deafness.

The First Division of the Inner House allowed the appeal and held that it was not proved that the deafness resulted from the overdose. The plaintiff appealed.

The House of Lords dismissed the appeal.

Evidence - Topic 470

Functions of counsel, judge and jury - Fact findings by judge - Requirement of evidence to support findings - A boy was treated negligently for spinal meningitis by an accidental massive overdose of penicillin, which almost killed him - He recovered, but was deaf - Medical evidence established that meningitis often causes deafness and that a penicillin overdose could cause nerve damage, but had never been shown to cause deafness - The trial judge rejected the theory of one medical expert witness that the overdose caused the boy's deafness in a particular way, but developed his own theory, completely without support in the evidence, that the overdose caused the deafness - The House of Lords held that the trial judge was not entitled to formulate his own theory without a basis of expert medical evidence.

Cases Noticed:

McGhee v. National Coal Board, [1973] S.C. (H.L.) 37; [1973] 1 W.L.R. 1, dist. [paras. 8, 19, 27, 38].

Counsel:

Ranald MacLean. Q.C., and Iain Bonomy, for the appellants;

J.A. Cameron, Q.C., and L. Clark (Adv.), for the respondents.

This case was heard on March 23-25, 1987, at London, England, before Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths, Lord Mackay of Clashfern and Lord Ackner of the House of Lords.

On May 14, 1987, the judgment of the House of Lords was delivered and the following speeches were given:

Lord Keith of Kinkel - see paragraphs 1 to 9;

Lord Brandon of Oakbrook - see paragraph 10;

Lord Griffiths - see paragraphs 11 to 19;

Lord Mackay of Clashfern - see paragraphs 20 to 31;

Lord Ackner - see paragraphs 32 to 39.