AS TO THE ADMISSIBILITY OF

Application No. 13475/87

by James KAY

against the United Kingdom

        The European Commission of Human Rights sitting in private on

2 May 1989, the following members being present:

                MM.  J.A. FROWEIN, Acting President

                     S. TRECHSEL

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     J. CAMPINOS

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                M.   F. MARTINEZ

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 14 October 1987

by James KAY against the United Kingdom and registered on 10 December

1987 under file No. 13475/87;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a citizen of the United Kingdom, born in 1930

and resident in Prestwich, Scotland.  In his application he is also

representing his wife and two sons, Andrew and David.

        The facts of the case, as submitted by the applicant and which

may be deduced from official documents lodged with the application,

may be summarised as follows.

        The applicant's son, Andrew, was a fairly normal little boy of

two years of age when he contracted pneumococcal meningitis and had to

be hospitalised in November 1975.  The paediatrician treating the boy

instructed a colleague to administer 10,000 units of Penicillin

intrathecally.  However instead of injecting the prescribed dose, the

colleague injected a massive overdose of 300,000 units of Penicillin.

The child fell into a coma, followed by toxic seizures.  Within

minutes the doctor realised his error and took remedial action.  The

child recovered.  However three or four days later the applicant and

his wife noticed that he was deaf.

        Andrew suffers from profound bilateral deafness and has lost

the ability to speak.  He suffers from other abnormalities such as

clumsiness, excessive obesity, and most notably, a failure of normal

sexual maturation evinced by a complete retraction of his testicles

and the appearance of feminine physical traits.  He also has learning

difficulties, is excitable and lacks social restraint.

        In March 1976, the applicant filed a claim with the Ayrshire

and Arran Health Board, responsible for the hospital in question,

alleging that Andrew's deafness was caused by the admitted Penicillin

overdose.  The Health Service Central Legal Office, representing the

Health Board, responded by letter on 17 February 1977, denying that

the deafness was caused by the overdose, attributing it rather to the

pneumococcal meningitis.  The applicant filed suit against the Health

Board on 20 November 1978 and at the time had legal representation.

The Health Board admitted negligence in the administration of the

overdose, but contended that the consequences were limited to the

convulsions and hemiparesis suffered immediately following the

overdose.  It denied that the overdose resulted in any residual

disability, in particular, that it had caused the deafness.

        In December 1980, the Health Board lodged a tender to settle

the case for £6,000.  According to the applicant, an offer by tender

is intended to protect a defendant in a civil action against undue

harassment.  If the plaintiff rejects the tender and proceeds to

trial he must "beat the tender", i.e. prove damages in excess thereof,

or be held liable for all of the defendants' legal costs incurred

after the tender.

        The applicant received discovery of the relevant documents.

He noted that certain vital documents were missing and that the report

of the doctor concerned had been altered by hand concerning a vital

issue in the dispute, giving the impression that the handwritten note

had been added to the report at a later date.

        The applicant's solicitors advised him to accept the tender,

but the applicant felt it was an insult and rejected it.

        In November 1981, the Health Board moved to have the applicant

declared an adverse influence in his son's case and to appoint a

curator ad litem to act in the best interests of the child.  This

motion was granted, but later reversed on appeal in January 1982.

        In March 1983 the Health Board applied to the court for a

caution for expenses which would have required the applicant to lodge

a substantial sum of money with the court as an indication of his

earnestness in pursuing the suit.  This application was refused.

        By spring 1984, the applicant was without legal representation

due to conflicts with his solicitors and their reluctance to pursue

his case to his satisfaction.

        The trial was held in October 1984 before Lord Davidson in the

Court of Sessions, Edinburgh.  Amongst the 12 witnesses heard, five

were medical experts who generally agreed that deafness is a possible

consequence of pneumococcal meningitis.  It was also generally agreed

that a massive intrathecal overdose of Penicillin as administered to

Andrew could be lethal, but that it is possible to survive such an

overdose without residual effects.  Penicillin was not known to have

been the cause of loss of hearing, although such results had occurred

with related drugs such as Ampicillin.  A neurosurgeon testified on

the applicant's behalf that, due to the Penicillin overdose, it was

difficult to assess to what extent the disabilities were caused by the

meningitis and to what extent by the overdose.  He was of the opinion

that Andrew was already showing signs of improvement before the

overdose and that, were it not for the overdose, he would have stood a

good chance of recovery without disabilities and loss of hearing.  He

was also of the opinion that the Penicillin overdose could alone have

caused the damage to the auditory nerve that resulted in Andrew's

deafness.  Lord Davidson found in the applicant's favour and awarded

£116,000 in damages and interest in his judgment of 1 March 1985.

        In consultation with the Medical Protection Society, a private

professional insurance company, which represented the doctor concerned

and had undertaken to meet the final judgment in full, and the Health

Service Central Legal Office, the Ayrshire and Arran Health Board

appealed against Lord Davidson's judgment.  On 18 December 1985, the

Inner House of the Court of Sessions allowed the appeal and reduced

the award of damages and interest to £7275.  The appeal court held

that Lord Davidson's conclusion had been based on a medical theory

which he had apparently devised after the hearing, which had no basis

in the medical opinions put to him and which the defendant had had no

opportunity to challenge.  It concluded that the only possible cause

of Andrew's deafness, on the basis of the whole of the medical

evidence in the case, was the pneumococcal meningitis.

        The applicant's appeal to the House of Lords was rejected on

14 May 1987 when the Health Board also announced that it would not be

seeking its legal costs from the applicant.  The applicant stated that

he would have to reimburse the legal aid fund for the appeal costs

which he incurred with the £7275 award.

COMPLAINTS

        The applicant complains that the Ayrshire and Arran Health

Board violated his son's and his family's Convention rights as regards

missing or misleadingly amended reports, as regards intimidating

procedural tactics such as their attempt to remove the applicant from

the case as an adverse influence on his son, or the threat to the

applicant of financial ruin when they applied for a caution for their

costs, and as regards their secret dealings with the Medical

Protection Society and the Health Board Central Office.

        The applicant claims that the combined action of these three

institutions formed "a gigantic attempt to prevent a fair hearing of

the case - a case where one side had all the power and all the

information denied to the victim".  In this respect the applicant

invokes Articles 3, 5 para. 1, 6 para. 1, 8, 10, 17 and 50 of the

Convention.  The applicant also complains that the appeal court failed

to take the aforementioned alleged abuses into account and thereby

also breached these provisions of the Convention.

THE LAW

        The applicant complains of an unfair hearing in his negligence

claim against the Ayrshire and Arran Health Board in respect of his

son's deafness after treatment in one of the Board's hospitals for

pneumococcal meningitis.  In particular he alleges that the Health

Board abused its power in the manner in which it defended that claim

and that the appeal courts failed to take this abuse of power into

account.  He invokes various provisions of the Convention: Article 3 (Art. 3)

(the prohibition on inhuman or degrading treatment), Article 5 para. 1

(Art. 5-1) (the right to liberty and security of person), Article 6 para. 1

(the right to a fair hearing in the determination of civil rights and

obligations), Article 8 (Art. 8) (the right to respect for family life),

Article 10 (Art. 10) (freedom of expression), Article 17 (Art. 17) (the

prohibition on interpreting the Convention to authorise acts aimed at the

destruction or undue limitation of Convention rights or freedoms) and Article

50 (Art. 50), concerning the powers of the European Court of Human Rights to

award just satisfaction.

        The Commission finds that only Article 6 (Art. 6) of the Convention may

be considered relevant to the applicant's complaints.

        Article 6 para. 1 (ARt. 6-1) of the Convention guarantees, inter alia,

the right to a fair hearing in the determination of civil rights and

obligations.  The Commission observes that the principal guarantors of

this right are the domestic courts.  The Commission notes that the

procedural tactics of the Ayrshire and Arran Health Board, as

defendant to the litigation, were unsuccessful, the domestic courts

ultimately refusing to declare the applicant an adverse influence on

his son and refusing to order the applicant to pay a caution as

eventual security for the Board's legal costs.  It is clear from the

case-file that, despite the applicant's difficulties as a litigant in

person much of the time, the domestic courts gave full and fair

consideration to his claims and were not unduly influenced by the

weighty battery of legal expertise used by the Health Board.  In these

circumstances the Commission concludes that the applicant was afforded

a fair hearing pursuant to Article 6 para. 1 (Art. 6-1) of the Convention.

Accordingly the application is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

    Secretary to the Commission      Acting President of the Commission

           (H.C. KRÜGER)                       (J.A. FROWEIN)