Frances Mclaughlin As Guardian Of John Rennie Against Pauline Morrison And Esure Services Limited
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2014] CSOH 123 |
| Court | Court of Session |
| Published date | 08 August 2014 |
| Year | 2014 |
| Date | 08 August 2014 |
| Docket Number | A417/13 |
OUTER HOUSE, COURT OF SESSION
[2014] CSOH 123
A417/13
OPINION OF LORD JONES
In the cause
FRANCES McLAUGHLIN, as guardian of JOHN RENNIE
Pursuer;
against
(FIRST) PAULINE MORRISON
First Defender;
And
(SECOND) ESURE SERVICES LIMITED
Second Defender:
Pursuer: Maguire QC; Euan Mackenzie; Balfour + Manson LLP
Defender: Dunlop QC; Smith; Simpson & Marwick
8 August 2014
Synopsis
(i) The pursuer is the guardian of John Rennie, who was seriously injured when he was run down by a car driven by the first defender. The first defender was subsequently convicted of assaulting Mr Rennie. Following a hearing in September 2013 on the pursuer’s motion for summary decree and interim damages, the second defender was found liable to make reparation to the pursuer, and interim damages were awarded. (2014 SLT 111) In March of this year, the pursuer moved the court to allow a proof, restricted to the issue of quantum. The second defender opposed that motion on the ground that it had averred that Mr Rennie had suffered damage as the result partly of his own fault and, separately, that he had provoked the assault. At the hearing on the motion, it was argued on behalf of the pursuer that the second defender’s averments on both of these issues are irrelevant and lacking in specification.
(ii) I have held that each of the second defender’s cases on contributory negligence and provocation is bound to fail, and I have allowed parties a proof of their averments, restricted to the issue of quantum of damages.
Introduction
[1] This is an action of damages in which the sum sued for is £8,000,000. The pursuer is the guardian of John Rennie (“Mr Rennie”), by virtue of an order made under the Adults with Incapacity (Scotland) Act 2000. She avers that Mr Rennie was injured on or about 22 May 2010, when he was standing in Royston Road, Glasgow. Suddenly and without warning, it is averred, the first defender drove a car at him at speed, hitting him and knocking him to the ground. On 19 July 2011, the first defender was convicted of assault to severe injury, permanent disfigurement, permanent impairment and to the danger of Mr Rennie’s life. According to the pursuer’s averments, Mr Rennie sustained a serious brain injury as a result of which he is immobile, and cognitively impaired. He requires full-time care. The second defender is convened in terms of regulation 3 of the European Communities (Rights against Insurers) Regulations 2002. The pursuer avers that the second defender is directly liable to make reparation to her to the same extent as the first defender.
[2] Following a finding of liability against the second defender and an award of interim damages, the case came before me on 21 March 2014, on the pursuer’s motion to allow a proof, restricted to the issue of quantum. In support of that motion, Miss Maguire QC sought to persuade me that the second defender’s pleadings on contributory negligence and provocation were irrelevant and/or lacking in specification.
The second defender’s case on record
[3] The second defender’s averments that are the subject of challenge read as follows:
“Explained and averred that:
(i) The accident occurred in the vicinity of premises known as the Ranza Bar. The Ranza Bar is located on Royston Road, Glasgow. It is close to the Blackhill and Germiston areas of Glasgow. The Blackhill and Germiston areas of Glasgow are utilised by organised criminals to run criminal enterprises. In the Blackhill area of the city, one criminal enterprise is run by the M family; in the Germiston area one criminal enterprise is run by the B family. These criminal enterprises are often involved in rivalry with each other. Such rivalry can, at times, be seriously violent. The first defender is part of the M family that operates the criminal enterprise in the Blackhill area. The Ranza Bar is frequented by a number of members of that enterprise. The licensee of the premises was, at the material time, the first defender’s uncle.
(ii) The first defender had previously been involved in a violent incident at the hands of the criminal enterprise run by the B family. That had occurred in around April or May 2008 in the Wee Glen pub in Forge Street, Glasgow. Her father, JM, was badly beaten and stabbed. The first defender had sought to defend her father. Her father is heavily involved in the criminal enterprise run by his family.
(iii) Prior to May 2010 there had been tension between the criminal enterprises run by the M and B families. As a result, police presence in the area had been increased.
(iv) Shortly prior to the material incident, a group of individuals had (as detailed further below) been involved in an attack on the Ranza Bar. The individuals involved in the attack on the bar were associated with the criminal enterprise run by the B family. They included JB, GB and CB – the three brothers involved heavily in the criminal enterprise. Stones and other items were thrown at the premises. The group of individuals carrying out the attack had (as further detailed below) arrived in two cars, a Volkswagen Golf and a Landrover Discovery. The Landrover Discovery was regularly used by the B criminal enterprise. It had previously been held by police investigating another criminal incident. In particular, it was held as part of the inquiry into the killing of KC. KC had been killed by men associated with the criminal enterprise run by the B family. His killing was part of an incident whereby members of the B criminal enterprise fought with members of a rival criminal enterprise (operated by the D family), with which KC was associated. As part of the same incident, the Landrover Discovery had been involved in the running down of another man, AB. The Landrover Discovery had, at the time of the material accident, recently been returned to its owners. KC was related by marriage to the first defender. She was aware of the circumstances of his murder and the surrounding incidents. In particular, she was aware of the involvement of the Landrover Discovery, as condescended upon.
(v) Members of the B criminal enterprise met up at premises within the Germiston area of Glasgow. In particular, they met at a carwash at the top of Fulton Street, Glasgow; and at JB’s father’s house. John Rennie was an associate of the B criminal enterprise, and regularly met with the members of the criminal enterprise at both of those locations.
(vi) On 22 May 2010, shortly prior to the attack on the Ranza Bar, the Landrover Discovery associated with the B criminal enterprise was in the area of the Ranza Bar. It was being driven by GB, with John Rennie as a passenger. The Landrover and its occupants had been circling the area of the Ranza Bar for the purposes of assisting the occupants of the Volkswagen in a planned attack on the Ranza Bar. The Landrover has (sic) repeatedly driven past the Ranza Bar. It had been noticed by the first defender. The first defender heard GB threaten her from the Landrover. The Landrover had also been noticed by ED, an associate of the M criminal enterprise. Having noticed the Landrover Discovery, ED ran toward the Ranza Bar. The attack commenced when the occupants of the Volkswagen Golf were decanted outside the bar. They were MM, CB, PMM and JB. They threw items at the bar and shouted abuse, in an attempt to goad the occupants of the bar to exit same, whereupon they would be attacked. They were all associates of, and acting in concert with, the occupants of the Landrover – including John Rennie.
(vii) During the initial attack on the premises by the occupants of the Volkswagen JB was shot. He was shot in the leg by ED. Following the shooting, JB was picked up in the Volkswagen Golf.
(viii) After the shooting, the Landrover Discovery driven by GB was brought to a halt in the offside lane of the eastbound carriageway of Royston Road, close to the Ranza Bar. Mr Rennie was a known associate of the occupants of the vehicle. He had alighted from the Landrover. After Mr Rennie had alighted, the Volkswagen pulled up in the offside lane of the eastbound carriageway. Mr Rennie stood at the nearside front window of the Volkswagen. He was engaged in conversation with the occupants of the vehicle, which included JB. It is believed and averred that they were discussing the repercussions of the shooting of JB. It was as he was standing there that Mr Rennie was struck by the vehicle driven by the first defender.
(ix) Mr Rennie was at the locus of the accident to engage in criminal conduct. In particular, he was at the locus in order to involve himself in the attack on the premises. In attending at the locus, he was acting in concert with the occupants of the Landrover and those of the Volkswagen. All of those individuals were at the material time involved in the criminal acts of breaching the peace and conspiring to attack the Ranza Bar and persons within.
(x) Angered at what she rightly perceived to be an attack on her family’s premises and persons within, and in response thereto, the first defender deliberately - as the jury in the criminal trial found - drove at the vehicles and the group which had alighted therefrom, including the pursuer.”
[4] As will be seen, the arguments on contributory negligence and provocation were closely linked. I shall, therefore, consider them together.
Submissions for the pursuer
[5] In support of her motion, Miss Maguire contended that the second defender’s contributory negligence case was bound to fail in fact and law. She drew my attention to...
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