Smith v Sabre Insurance Company Ltd
| Jurisdiction | Scotland |
| Judgment Date | 09 April 2013 |
| Neutral Citation | [2013] CSIH 28 |
| Docket Number | No 41 |
| Date | 09 April 2013 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lady Paton, Lord Brodie, Lord Philip
Process - Res judicata - Pursuer raising action in sheriff court and obtaining decree in respect of personal injuries following road traffic accident - Pursuer then raising action in Court of Session seeking damages in respect of losses consequential on the damage to his vehicle - One action rule - Whether res judicata
On 24 March 2009 the reclaimer was driving his motorcar on the A811 road near Drymen when a motorcar, driven by Robert Holmes, turned into his path and collided with his vehicle. The collision was caused by the sole fault of Mr Holmes who was insured by the respondents. The reclaimer sued the respondents in respect of his personal injuries in an action in Stirling Sheriff Court and took decree. Subsequently and separately the reclaimer sought to recover costs incurred consequential on the damage to his vehicle in the Court of Session, distinguishing the loss of use of the vehicle claim from the claim suffered by him directly as a result of personal injuries. The respondents took a preliminary plea that the subject matter was res judicata, decree having been taken in the sheriff court action. The Lord Ordinary sustained the respondents' plea in law and assoilzied the respondents. The reclaimer reclaimed to the Inner House. It was argued for the reclaimer that there were two distinct causes of action: a claim in respect of personal injury and a claim in respect of damage to property. It was submitted that pre-litigation correspondence made clear that there were two causes of action, with one firm of solicitors acting in relation to the personal injury claim only while another firm were acting in relation to other loss and damage sustained, and that the Lord Ordinary had erred in failing to have regard to that correspondence. It was argued for the respondents that what was litigated and what was decided in the two actions was identical: the reclaimer's right to obtain reparation from the respondents as the insurers of a negligent driver involved in a road traffic accident on 24 March 2009. It was argued that the "one action rule" required that all heads of damage arising from one delictual act had to be sued for in one action. It was argued that it was not legitimate to look at pre-litigation correspondence to determine what had been litigated and what had been decided in a previous action.
Held that: (1) the Lord Ordinary was correct to decline to go beyond the pleadings in order to determine what was litigated and what was decided (para 24); (2) as a matter of principle where a natural or legal person suffers damage as a result of a single negligent act, that gives rise to a single right to obtain reparation which must be pursued in one action (para 44); (3) the subject-matter of the Stirling action was the right of the pursuer to obtain reparation from the defenders and the medium concludendi or ground of action was the negligence of the defenders, and the subject-matter of and the medium concludendi in the present action were the same (para 45); and reclaiming motion refused.
Steven v Broady, Norman & Co LtdENR 1928 SC 351 discussed.
Forrest v HendrySC 2000 SC 110 discussed.
Aitchison v Glasgow City CouncilSC 2010 SC 411 discussed.
Aberdeen Development Co v Mackie, Ramsay and Taylor 1977 SLT 177 considered.
McPhee v Heatherwick 1977 SLT (Sh Ct) 46 approved.
Primary Health Care Centres (Broadford) Ltd v Ravangave 2009 SLT 673 approved.
McSheehy v MacMillan 1993 SLT (Sh Ct) 10 disapproved.
Brunsden v HumphreyELR (1884-85) LR 14 QBD 141 doubted.
Stevenson v Pontifex and WoodSC (1887) 15 R 125 applied.
Edinburgh and District Water Trs v Clippens Oil Co LtdSC (1899) 1 F 899 applied.
Dunlop v McGowansSC 1980 SC (HL) 73 applied.
Grahame v Secretary of State for ScotlandSC 1951 SC 368 applied.
Mark Smith raised an action in the Court of Session against Sabre Insurance seeking reparation for certain losses consequential on damage to his vehicle following a collision. Sabre Insurance Company Ltd took a plea to the effect that the subject-matter was res judicata. The cause called before the Lord Ordinary (Bannatyne) for debate, on 27 October 2011. At advising, on 24 January 2012, the Lord Ordinary assoilzied the defenders from the conclusions of the action ([2012] CSOH 14). The pursuer reclaimed the interlocutor of the Lord Ordinary to the Inner House.
Cases referred to:
Aberdeen Development Co v Mackie, Ramsay and Taylor 1977 SLT 177
Aitchison v Glasgow City Council sub nom A v Glasgow City CouncilSCUNK [2010] CSIH 9; 2010 SC 411; 2010 SLT 358; 2010 SCLR 313; 2010 Rep LR 20
Brunsden v HumphreyELR (1884-85) LR 14 QBD 141
Buckland v PalmerWLRUNKUNK [1984] 1 WLR 1109; [1984] 3 All ER 554; [1985] RTR 5
Cahoon v FranksUNK [1967] SCR 455; 63 DLR (2d) 274; 60 WWR 684
Carnegie v Lord Advocate sub nom Carnegie v Lord Advocate (No 3)SC 2001 SC 802; 2001 GWD 13-512
Cartledge v E Jopling & Sons LtdELRWLRUNKUNK [1963] AC 758; [1963] 2 WLR 210; [1963] 1 All ER 341; [1963] 1 Lloyd's Rep 1
Davidson v North Down Quarries Ltd [1988] 8 NIJB 54
Dearden v HeyUNK 304 Mass 659 (1939); 24 NE 2d 644
Dimond v LovellELRWLRUNKUNK [2002] 1 AC 384; [2000] 2 WLR 1121; [2000] 2 All ER 897; [2000] RTR 243; [2000] CCLR 57; 2000 Rep LR 62
Dunlop v McGowansSC 1980 SC (HL) 73; 1980 SLT 129
Edinburgh and District Water Trs v Clippens Oil Co LtdSC (1899) 1 F 899; 7 SLT 36
Forrest v HendrySC 2000 SC 110; 1999 GWD 39-1880
Giles v ThompsonELRWLRUNKUNK [1994] 1 AC 142; [1993] 2 WLR 908; [1993] 3 All ER 321; [1993] RTR 289
Grahame v Secretary of State for ScotlandSC 1951 SC 368; 1951 SLT 312; 1951 SLCR 35
Greenlees v Allianz Insurance plc [2011] CSOH 173
Henderson v HendersonENRENR [1843] All ER Rep 378; 67 ER 313; 3 Hare 100
Irving v HiddlestonSCUNK 1998 SC 759; 1998 SLT 912; 1998 SCLR 350
Lagden v O'ConnorUNKELRWLRUNKUNKUNK [2003] UKHL 64; [2004] 1 AC 1067; [2003] 3 WLR 1571; [2004] 1 All ER 277; [2004] RTR 24; [2004] Lloyd's Rep IR 315
Letang v CooperELRWLRUNKUNK [1965] 1 QB 232; [1964] 3 WLR 573; [1964] 2 All ER 929; [1964] 2 Lloyd's Rep 339
McHarg, Houston and McFarlane v Newman Sh Prin Bennett QC, 1 August 1983, unreported
McPhee v Heatherwick 1977 SLT (Sh Ct) 46
McSheehy v MacMillanUNK 1993 SLT (Sh Ct) 10; 1992 SCLR 603
Primary Health Care Centres (Broadford) Ltd v Ravangave [2009] CSOH 46; 2009 SLT 673
Rothwell v Chemical and Insulating Co LtdUNKELRWLRUNKICRUNKUNK [2007] UKHL 39; [2008] 1 AC 281; [2007] 3 WLR 876; [2007] 4 All ER 1047; [2007] ICR 1745; [2008] PIQR P6; [2008] LS Law Medical 1; 99 BMLR 139
Short's Tr v Chung (No 2)SCUNK 1999 SC 471; 1999 SLT 751; 1999 SCLR 815
Steven v Broady, Norman & Co LtdENR 1928 SC 351; 1928 SLT 290
Stevenson v Pontifex and WoodSC (1887) 15 R 125
Talbot v Berkshire County CouncilELRWLRUNKUNKUNK [1994] QB 290; [1993] 3 WLR 708; [1993] 4 All ER 9; [1993] RTR 406; [1993] PIQR P319
Taylor v O Wray & Co LtdUNK [1971] 1 Lloyd's Rep 497
Ulster Bank Ltd v Fisher and Fisher (A Firm)DNI [1999] NI 68; [1999] PNLR 794
Textbooks etc. referred to:
Beaumont, P, "Res Judicata and Estoppel in Civil Proceedings" 1985 SLT (News) 133
Charlesworth, J, and Percy, RA, Negligence (11th ed, Sweet and Maxwell, London, 2006), para 4.27
Dickson, WG, A Treatise on the Law of Evidence in Scotland (T & T Clark, Edinburgh, 1887), para 385
Fleming, JG, The Law of Torts (3rd ed, Law Book Co, Sydney, 1965)
McGregor, H, Damages (18th ed, Sweet and Maxwell, London, 2009), paras 9.005, 9.006, 9.008
Maclaren, JA, Court of Session Practice (W Green, Edinburgh, 1916), pp 396, 400
Macphail, ID, Sheriff Court Practice (3rd ed, W Green, Edinburgh, 2006), para 2.104
Reid, EC, Personality, Confidentiality and Privacy in Scots Law (W Green/Scottish Universities Law Institute, Edinburgh, 2010)
Reid, KGC, and Zimmermann, R, A History of Private Law in Scotland (Oxford University Press, Oxford, 2000), vol II, pp 479, 517-523
Salmond, JW, and Heuston, RFV, Law of Torts (21st Heuston and Buckley ed, Sweet and Maxwell, London, 1996), pp 550, 551
Stair, JD, The Institutions of the Law of Scotland: Deduced from its originals, and collated with the civil, canon and feudal laws, and with the customs of neighbouring nations (University Presses of Edinburgh and Glasgow, Edinburgh, 1693), I, ix, 4; IV, xl, 16
Trayner, J, Latin Maxims and Phrases (4th ed, W Green, Edinburgh, 1894), p 350
Whitty, NR, and Zimmermann, R, Rights of Personality in Scots Law: A comparative perspective (Dundee University Press, Dundee, 2009)
Winfield, PH, and Jolowicz, JA, Tort (17th Rogers ed, Sweet and Maxwell, London, 2006), paras 22.2, 22.3
Zuckerman, AAS, Civil Procedure: Principles of practice (2nd ed, Sweet and Maxwell, London, 2006), paras 24.48 et seq
The cause called before an Extra Division, comprising Lady Paton, Lord Brodie and Lord Philip, for a hearing on the summar roll, on 13 and 21 December 2012 and 11 January 2013.
At advising, on 9 April 2013, the opinion of the Court was delivered by Lord Brodie-
Opinion of the Court-
[1] This is a reclaiming motion against an interlocutor of the Lord Ordinary dated 24 January 2012 sustaining the first plea in law for the defenders and respondents which was to the effect that the subject-matter of the action is res judicata, and consequently assoilzing the respondents from the conclusions of the summons.
[2] The pursuer and reclaimer is Mark Smith. On 24 March 2009 the reclaimer was driving his BMW 530D motorvehicle, registration number PL02 YXJ, on the A811 road near Drymen when a Fiat Punto motorvehicle drive by Robert Holmes turned into the reclaimer's path and collided with the reclaimer's vehicle. It is accepted that the collision was caused by the sole fault of Mr Holmes. At the material time Mr Holmes was insured in respect of motor risks by the respondents. Accordingly in terms of...
To continue reading
Request your trial
-
Reclaiming Motion By Jill Clark (ap) Against Greater Glasgow Health Board
...contention that, were the motion to be refused, she could raise a separate action, given the “one action rule” (Smith v Sabre Insurance 2013 SC 569). He thought that the quinquennial prescriptive period might be applied, although he “parked” this issue as it had not been raised by the parti......
-
Jill Clark (ap) Against Greater Glasgow Health Board
...to “the question in controversy” must be stated in the same proceedings. This is the “one action rule” [cf. Smith v Sabre Insurance Co Ltd 2013 SC 569]. Looking at the new case as a different claim which could be raised in separate proceedings, prima facie the claim has not simply become ti......
-
Appeal By (first) Theresa Stirling And (second) William Stirling Against Landmark Mortgages Limited (formerly Nram Plc And Northern Rock (asset Management) Plc)
...already been determined by the Court of Session (Thomson v Coutts, Peterhead Sheriff Court, June 2001 unreported; Smith v Sabre Insurance 2013 SC 569). That this was so, in the defender’s submission, was confirmed by a letter dated 18 March 2015 from the Deputy Principal Clerk of Session (t......
-
Geoff Hill v Generali Biztositó ZRT
...Montage AG v Kiesel Baumaschinen Handels GmbH (Case C-103/05) EU:C:2006:471; [2006] ECR I-6827, ECJSmith v Sabre Insurance Co Ltd [2013] CSIH 28; 2013 SC 569, Ct of SessVorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG (Case C-347/08) EU:C:2009:561; [2010] 1 All......