Elizabeth Senga Cronie And Others V. Norman Craig Messenger+james Kelly
| Jurisdiction | Scotland |
| Judge | C J MACAULAY, Q.C. |
| Date | 25 June 2004 |
| Court | Court of Session |
| Published date | 25 June 2004 |
| OUTER HOUSE, COURT OF SESSION | |
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| OPINION OF C J MACAULAY, QC (Sitting as a Temporary Judge) in the cause (FIRST) ELIZABETH SENGA CRONIE, (SECOND) ELIZABETH HEATHER CRONIE OR ALLAN, (THIRD) BRIAN ALEXANDER ALLAN, (FOURTH) ANDREW WALLACE CRONIE, (FIFTH) JOY McINTYRE OR CRONIE AND (SIXTH) DAVID CHARLES CRONIE Pursuers; against (FIRST) NORMAN CRAIG MESSENGER AND (SECOND) JAMES KELLY Defenders: ________________ |
Pursuers: P Lloyd; Solicitors, Gebals
Defenders: R N Thomson; Solicitors, Simpson & Marwick
25 June 2004
Introduction
[1]This action arises from a road accident that occurred on the A75 road between Stranraer and Newton Stewart. Andrew Cronie ("the deceased") was a passenger in a car driven by the second defender. He died as a result of the accident. The action has been raised by a number of persons, all of whom claim to be entitled to awards of damages under the Damages (Scotland) Act 1976 (as amended). The deceased's widow is the first pursuer.
[2]By Interlocutor dated 8 May 2003 the case was remitted to the Procedure Roll for debate on the first defender's second and third pleas-in-law. Counsel for the first defender intimated at the outset of the debate that he was not arguing for dismissal. Instead he sought to have his second and third pleas-in-law sustained and as a consequence of that, the case withheld from jury trial. He moved for a Proof Before Answer. The pursuers sought to resist that motion, and I was invited to repel the first defender's first, second and third pleas-in-law and allow issues. The second defender did not appear.
[3]At the beginning of the debate counsel for the pursuers moved to amend his pleadings by deleting an averment at page 8E and two averments at page 21C-D. This motion was not opposed and I allowed the Record to be amended in the manner sought. During the debate itself he moved to delete the words "After he took their grandson", where they appear at page 19B and I also allowed him to do that. Following upon the Procedure Roll Hearing, the case was put out By Order and parties took the opportunity further to address me.
Background
[4]The pursuers aver that the accident occurred on 11 January 2001 at about 6.40pm near a disused filling station on the A75 road. It is averred that the motor car driven by the second defender collided with an articulated lorry driven by the first defender. The essence of the case made by the pursuers against the first defender is that at the time of the collision the first defender negligently engaged in a reversing manoeuvre on the roadway and obstructed the eastbound carriageway along which the second defender was travelling. The first defender avers that the second defender was travelling too fast and that he did not attempt to brake prior to the collision. The pursuer has adopted the case made by the first defender against the second defender.
[5]Each of the pursuers seeks an award of damages in terms of Section 1(4) of the Damages (Scotland) Act 1976 (as amended). The first pursuer also seeks damages in respect of the loss of support she has suffered and will suffer as a result of the death of the deceased. She also has a claim for loss of the deceased's services under Section 9 of the Administration of Justice Act 1982, as do the second and third pursuers, the deceased's daughter and son-in-law.
First Defender's Submissions
[6]Counsel for the first defender argued that there was special cause for withholding this case from jury trial on two principal grounds. Firstly, it was argued that in relation to certain aspects of the heads of claim for loss of support and services there were potential difficulties and a lack of specification with some averments being of doubtful relevancy. Secondly, it was argued that the pursuer's reliance on the first defender's conviction of a contravention of Section 3 of the Road Traffic Act 1988 caused complications which made the case unsuitable for jury trial.
Loss of support and services
[7]At the heart of the submissions made on behalf of the first defender in relation to loss of support was the contention that a jury would have some difficulty in calculating loss of support having regard to the different periods that might be involved in such a calculation. Mr Thomson focused on four different periods that might be involved under reference to the first pursuer's averments in Article V of Condescendence at page 18B-C to 18D-E. He envisaged that different multipliers might need to be employed in respect of each of his chosen periods, making the assessment of loss of support difficult for a jury. Reference was made to Potts v McNulty 2000 SLT 1269. He also argued that no specification was given in relation to what figures were involved.
[8]In relation to services, Mr Thomson argued that certain averments were lacking in specification and of doubtful relevancy. The averments in issue are as follows:-
"She has suffered, and will continue to suffer, a loss of those services which the deceased would have rendered to her, had he lived. The deceased was always good with his hands. He loved his garden, which he tended. He built a greenhouse, in which he grew tomatoes. He painted and decorated the home he shared with the first pursuer. He repaired items of electrical equipment and electrical appliances, when required. He shared the housework with the first pursuer. The first pursuer does not drive. The deceased drove her to the shops once a week. He accompanied her shopping. He loaded the car and carried the shopping bags. He regularly drove the first pursuer away into the countryside at weekends. They would travel together on holidays, generally within Scotland. The first pursuer cannot drive. The deceased was the person who paid the bills and organised finances. He walked the dog" (18D-19C).
Mr Thomson argued that these averments lacked specification in relation to the time spent by the deceased in providing the services averred and what rate or rates ought to be applied. He also submitted that the averments on gardening were of doubtful relevancy. The deceased did the gardening because he enjoyed it. He also challenged the averments relating to the driving of the first pursuer to the countryside at weekends and travelling on holiday together as being of doubtful relevancy and more akin to an element of the loss of society part of the claim. In the course of this part of his argument counsel referred to Stark v Ford 1995 SLT 69, Stark v Ford No. 2 1996 SLT 1329 and Marshall v PLM Helicopters 1997 SLT 1039. Mr Thomson also suggested that there was a lack of specification in the averments on services made by the second pursuer (daughter) and the third pursuer (son-in-law), but since any awards made would be modest he was not "making a great deal of it".
The Conviction
[9]The pursuer avers that on 12 February 2002 the first defender was convicted, after trial, of a contravention of Section 3 of the Road Traffic Act 1988 (careless driving) in respect of the accident (8B-C). This is admitted by the first defender and answered in the following way:
"Further explained and averred that the first defender was indicted under Section 1 of the Road Traffic Act 1988. On the morning of the first day of the Trial, the first defender consulted with his Counsel. The first defender's Counsel recommended that he should invite the Jury to find the first defender guilty of a contravention of Section 3 of the Road Traffic Act 1988 to increase the chances of successfully defending the indictment under Section 1. The pursuer (sic) understood this to be some form of plea bargain with the Procurator Fiscal. The trial proceeded. The first defender and his Counsel did not discuss how the evidence had gone. The first defender felt that the evidence had gone well in his favour. However, his Counsel was still of the view that his instructions were to invite the jury to find him guilty of the Section 3 charge. Accordingly, he did so. The Jury duly found the first defender guilty of the Section 3 charge. The first defender was acquitted of the Section 1 charge. The first defender lodged an Appeal. The Appeal was abandoned following the advice of further Counsel" (12D-13D).
[10]Mr Thomson referred to the Law Reform (Miscellaneous Provisions) Act 1968, Section 10, which provides:
"(1)In any civil proceedings the fact that a person has been convicted of an offence by or before any Court in the United Kingdom or by a Court Martial there shall (subject to subsection (3) of this Section) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissble in evidence by virtue of this section.
(2)In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any Court in the United Kingdom or by a Court Martial there or elsewhere -
(a)he shall be taken to have committed that offence unless the contrary is proved...."
[11]Mr Thomson submitted that proof of the conviction would give rise to a rebuttable presumption that the first defender's driving was careless. Accordingly, the pursuer's reliance on the conviction meant that there would be an onus on the first defender to rebut the presumption raised by proof of the conviction. Mr Thomson explained that the first defender made the averments already quoted in order to overcome that presumption. He also argued that a conviction for careless driving may have a connection with negligence, but that the two things were not the same. He drew attention to the differences in the specification of the libel in respect of which the first defender had been found guilty, and the case made by the pursuer on Record. The libel made reference to a failure to...
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