The recent Court of Session decision in Brian Taylor v Forth Valley Health Board [2025] CSOH 103 provides important guidance on a recurring issue in clinical negligence claims: what does informed consent require in practice? Another key issue in the case was the appropriate valuing the loss of earnings claim. The court’s decision on wage loss could be relevant to many personal injury claims.
Background
Mr Taylor underwent a nephrectomy for renal cancer in 2005. While the surgery successfully treated his cancer, the court found that the operation proceeded without proper informed consent. The pursuer later developed Somatic Symptom Disorder (SSD), leaving him with chronic pain and significant functional limitations.
The defender admitted negligence in relation to informed consent but disputed causation and quantum - particularly the claim for substantial wage loss. The court did not accept this argument and awarded damages in the sum of £904,000.
Did the breach of duty cause the loss?
While the defender admitted negligence in respect of lack of informed consent, the court did still emphasise that informed consent is not a tick-box exercise. Here, it was found that a last-minute change in surgeon and procedure, combined with the pursuer’s anxiety, meant informed consent was not obtained. The operation should have been delayed to allow the pursuer proper reflection on the risks of surgery.
Competing expert medial evidence was led on causation. The defender’s expert’s opinion was that had the operation been delayed, the pursuer would still have woken with a greater scar than he expected and would have had the uncertainty caused by the tumour having been in place for longer.
In contrast, the pursuer’s expert found that the pursuer had a genuine and understandable grievance in relation to events surrounding the surgery and the outcome (late change in surgeon and excessive scar and effect these had on the pursuer). The court found both experts credible, with the requisite expertise, and commented it was not an easy task to prefer one expert over the other, with there being very little difference between them. However, ultimately the court preferred the evidence of the pursuer’s expert, stating their explanation was “at a deeper and more detailed level.” Therefore, the court accepted expert evidence that the breach materially contributed to the pursuer’s SSD. Even though the surgery achieved its medical objective, the psychological consequences flowing from the failure to obtain informed consent, were compensatable.
Wage loss and undeclared income
The pursuer claimed his condition left him unable to work from 2011. A contentious issue was whether the pursuer could recover wage loss despite failing to declare earnings to HMRC before the surgery.
The defender argued that allowing recovery would undermine public policy and reward dishonesty. The court rejected this argument and confirmed that compensation is not contingent on tax compliance - the purpose of damages is to restore the pursuer to the position they would have been in but for the wrong, not to punish tax evasion. However, the failure to declare income created a practical problem - there was no reliable vouching for pre-accident earnings.
How was wage loss calculated without vouching?
The court adopted a pragmatic approach:
- Relied on ASHE (Annual Survey of Hours and Earnings) data for comparable roles in construction supervision.
- Applied a conservative estimate, deducting for sporadic post-accident earnings.
- Awarded £350,000 for past wage loss, alongside sums for future loss and care.
This illustrates that while undeclared income does not bar recovery, it weakens evidential certainty, often leading to conservative awards.
Key takeaways
- Informed consent breaches can have far-reaching consequences, even where physical outcomes are positive.
- Failure to declare income does not extinguish wage loss claims, but the lack of documentary evidence merits rigorous scrutiny and reference to industry benchmarks, with a view to challenging and reducing the award.
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