Monday, September 28th, 2026
Susan Marion Lever & Ors v Ayshire & Arran Health Board [2026] CSOH 89
In the recent case of Susan Marion Lever & Ors v Ayshire & Arran Health Board [2026] CSOH 89, Lord Harrower has issued his decision on the interpretation of section 3 of the Damages (Scotland) Act 2011.
The action arose following the death of Mr Lever, who had been diagnosed with incurable renal cancer. His relatives sought damages on the basis that there had been a negligent delay in diagnosing the cancer, including an alleged failure to detect signs of a tumour following an ultrasound scan in July 2021. They claimed that, had the cancer been diagnosed earlier, his death would have occurred at a later date. The defender argued that the relatives' claims were irrelevant in law because Mr Lever had died as a consequence of his cancer, rather than any personal injury caused by the alleged negligence.
The action came before Lord Harrower at debate. The sole issue before the court was the proper interpretation of section 3, and whether it required the pursuers to establish that Mr Lever would not have died "but for" the alleged negligence. The pursuers argued that it was sufficient that the alleged negligence had materially contributed to his death occurring earlier than it otherwise would have.
Lord Harrower held that section 3 was concerned not only with the fact of the death, but with the particular death which occurred, including when it occurred. It was therefore unnecessary for the pursuers to establish that Mr Lever would not have died but for the alleged act or omission. It was sufficient that the act or omission caused, or materially contributed to, his death occurring earlier than it otherwise would have.
In reaching that conclusion, Lord Harrower considered the structure of the 2011 Act as a whole, including the right to damages for reduced life expectancy and the heads of loss available to relatives. Those provisions were consistent with relatives being able to pursue a claim where death had been accelerated.
The action has been allowed to proceed to proof.
This is the first reported decision on the interpretation of section 3 of the 2011 Act. A copy of the judgment can be found here.
The defender was represented by Kate Bennett of Compass Chambers.
