Mark Smith V. Sabre Insurance Co Ltd
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2012] CSOH 14 |
| Court | Court of Session |
| Published date | 24 January 2012 |
| Year | 2012 |
| Date | 24 January 2012 |
| Docket Number | A773/10 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 14 | |
| A773/10 | OPINION OF LORD BANNATYNE in the cause MARK SMITH Pursuer; against SABRE INSURANCE CO LTD Defenders: ________________ |
Pursuer: A McKay; Thompsons
Defender: MacNaughton; HBM Sayers
24 January 2012
Introduction
[1] This matter came before me for a procedure roll discussion in terms of the defenders' first plea-in-law. That plea-in-law is in the following terms:
"In respect of the liability of the defenders to make reparation to the pursuer for his losses arising from the said accident has already been determined by a competent court in an action between the parties, the subject matter of the present action is res judicata and the defenders are entitled to be assoilzied".
In the present action the pursuer seeks reparation for loss and damage arising from the defenders' insured's negligence while driving his vehicle on 24 March 2009 when he collided with the pursuer's vehicle on the A811 Drymen Road (see: Statements 2 and 3) of the Closed Record. The fault and negligence of the defenders' insured is admitted at Answer 3.
[2] The pursuer in Statement 4 seeks compensation for the following losses:
"1. Hire Charges - £26,550.98
2. CDW - £1,337.50
3. Satellite navigation charge - £802.50
4. Delivery and collection - £100
5. VAT - £4,318.65
6. Inconvenience - £100".
It was not disputed between parties that the pursuer had already raised proceedings in Stirling Sheriff Court against the defenders and their insured seeking compensation arising out of the same road traffic accident. The pursuer in that action obtained decree in terms of 7/2 of process on 4 May 2010 for the sum of £4,550 together with expenses on the summary cause scale. Said decree was pronounced in terms of a Minute of Acceptance and Tender. It was arising out of the foregoing circumstances that the preliminary plea of res judicata was taken.
Submissions for the defenders
[3] Counsel began his submissions by setting out the elements which are necessary for a successful plea of res judicata and these are as set out by Sheriff Macphail (later Lord Macphail) in McPhee v Heatherwick 1977 SLT (Sh.Crt) 46 and are as follows:
1. The prior determination was made by a competent tribunal.
2. The prior determination was pronounced in foro contestioso
3. The subject matter of the two actions must be the same.
4. The media concludendi in the two actions were the same.
5. The parties to the second action must be identical with or representative of the parties to the first action.
This decision was later approved in the Court of Session by Lord Macfadyen in Irving v Hiddleston 1998 SC 759 at 770F-H.
[4] Counsel for the pursuer did not dispute that the five factors set out by Sheriff Macphail were the factors which require to exist in order to found a successful plea of res judicata although it was his position that the said case was wrongly decided.
[5] Counsel then turned to look at each of these elements in turn.
[6] As regards the first necessary element of an antecedent judicial decree of a competent tribunal it was conceded on behalf of the pursuer that the decree of the Sheriff Court was such a decree.
[7] Equally it was conceded on behalf of the pursuer that the second essential had been satisfied, namely: that the decree in Stirling Sheriff Court had been pronounced in foro contestioso.
[8] The dispute therefore related to elements 3, 4 and 5.
[9] Counsel dealt with elements 3 and 4, namely: were the two actions relative to the same subject matter and were proceedings on the same ground jointly.
[10] It was counsel's submission that both the subject matter and the grounds of action were the same in each of the two sets of proceedings.
[11] In development of that submission he turned to examine in detail the decision in McPhee v Heatherwick.
[12] The facts of the said case were as follows. On 15 November 1975 the pursuer was riding his motorcycle along a major road in Glasgow. As he approached a junction with a minor road, the defender drove his vehicle from the minor road onto the major road and struck the motorcycle.
[13] In Glasgow Sheriff Court a small debt action was raised which narrated the facts of the accident as above stated and continued: "It is averred that the defender was negligent in the manner in which he drove his vehicle. It is further averred that the pursuer sustained loss in the sum of £50. The pursuer has paid excess on his insurance policy of £35. It is further averred that the pursuer has sustained loss of crash helmet valued at £15".
[14] The Court granted decree in the pursuer's favour, finding the defender liable to him in the sum of £50 expenses.
[15] Meanwhile the pursuer had raised another action against the defender. It was a summary action for payment of £144.12. In the Initial Writ in this action the pursuer once again averred the facts of the accident and that it was caused by the negligence of the defender. His averments continued: "As a result of said accident the pursuer's motorcycle required repair at a cost of £144.12 which is the sum sued for".
[16] Having considered the first two elements necessary to establish res judicata Sheriff Macphail went on to consider whether the two actions related to the same subject matter and proceeded on the same grounds and observed at pages 47 and 48 as follows:
"I now have to consider whether the two actions relate to the same subject-matter and proceed on the same grounds. Here, the court must look at the essence and reality of the matter rather than the technical form, and simply inquire: What was litigated and what was decided? (See Grahame v Secretary of State for Scotland, 1951 SLT 312, 1951 SC 368, Lord President Cooper at p.321). In my opinion, what was litigated in the small debt action was the question whether the pursuer was entitled to reparation from the defender for patrimonial loss sustained through the alleged fault of the defender in causing the accident on 15 November 1975. What was decided was that the pursuer's contentions were correct and that the defender should pay the pursuer the sum sued for plus expenses. In the present action the pursuer raises exactly the same question and invites the court to make exactly the same decision. It makes no difference that in the small debt action the pursuer sued for his 'excess' and the value of his crash helmet, while in the present action he sues for the cost of the repair of his motorcycle. In each case he sues for pecuniary loss caused by the same infringement of his patrimonial interests; and the rule is that the damages which arise from one and the same cause of action must all be assessed and recovered in one action (Stevenson v Pontifex and Wood (1887) 15 R.125, Lord President Inglis, at p.129; and see Professor D M Walker's Civil Remedies at pp. 405-406, 529-530 and 878). The rule may be thought to be particularly apt in a case such as this, where the damages claimed in the second action could have been claimed at the time when the first action was raised. To put it in another way: the subject-matter of the action in the small debt court was the right of the pursuer to obtain reparation from the defender for patrimonial loss sustained as a result of the accident. So also in the present action, and the grounds of action are the same in both cases because in each the ground on which the pursuer has founded his claim is the fault of the defender in driving his vehicle in a negligent manner and so causing the accident."
Counsel's position was that Sheriff Macphail in the foregoing passage had correctly analysed the law. He submitted that the case before me was on all fours with McPhee v Heatherwick. In the instant case the subject matter in both actions is the right of the pursuer to obtain reparation from the defenders for loss incurred arising out of the same accident and the ground of action is the same in both actions, namely: the negligence of the defenders' insured.
[17] Counsel then referred to the Opinion of Lord Macfadyen in Irving v Hiddleston at 770 where he observed:
"In my opinion counsel for the pursuer's insistence on referring to each item of loss or head of damages as a separate claim is also likely to mislead. In my opinion the cases relied on in support of that approach were wrongly decided, and do not support the proposition that an injured person has a separate claim for each item of loss. Those cases (McSheehy v MacMillan and McHarg Houston & McFarlane v Newman) in my opinion fell into the error of taking Lord Anderson's dictum in Steven v Broady Norman & Co Ltd out of context and of failing to give proper weight to the rule in Stevenson v Pontifex & Wood). In my opinion, the reasoning of Sheriff Macphail in McPhee v Heatherwick (at p 48) is to be preferred. In my opinion the law regards a person injured by a wrongful act as having one single claim for damages in respect of the loss, injury and damage suffered (see, for example Dunlop v McGowans, per Lord Fraser of Tullybelton at p 77, rejecting the possibility that each item of pecuniary loss being treated as a separate loss for the purpose of prescription). It does not, of course, follow that it is impossible for the injured person and the wrongdoer, before litigation, to reach agreement on the settlement of certain item of loss, and to implement that partial settlement, without discharging the whole claim. While the effect of taking an action of damages to decree, and obtaining satisfaction of that decree, is to discharge the whole claim".
It was counsel's position that the observations of Lord Macfadyen clearly supported the position which he was advancing. In particular he contended that in light of this passage the cases of Steven v Broady Norman & Co Ltd and McSheehy v MacMillan were of no assistance in advancing the pursuer's case.
[18] Should there be any doubt as to the meaning of medium concludendi in this context he referred me to Trayner's Latin...
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