Towers v Flaws
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Judgment Date | 27 February 2015 |
| Neutral Citation | [2015] CSIH 97 |
| Date | 27 February 2015 |
| Court | Court of Session (Inner House) |
| Docket Number | No 11 |
[2015] CSIH 97
Second Division
Lord Brailsford
Ameen v Hunter 2000 SLT 954; 2000 Rep LR 34
Caldwell v Wright 1970 SC 24; 1970 SLT 111; 1969 SLT (Notes) 92
Cronie and ors v Messenger and anr CSOH, Temporary Judge CJ MacAulay QC, 25 June 2004, unreported
Dennison v Chief Constable, Strathclyde Police 1996 SLT 74
Fardy v SMT Co Ltd 1971 SLT 232
Garnett v Gowans 1971 SLT (Notes) 77
Gemmell v McFarlane 1971 SLT (Notes) 36
Hunter v Chief Constable, West Midlands [1982] AC 529; [1981] 3 WLR 906; [1981] 3 All ER 727; 125 SJ 829; The Times, 26 November 1981
King v Patterson 1971 SLT (Notes) 40
Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729; [1984] 3 WLR 63; 81 LSG 1597; 128 SJ 432
McGraddie v McGraddie [2013] UKSC 58; 2014 SC (UKSC) 12; 2013 SLT 1212; 2015 SCLR 109; [2013] 1 WLR 2477
Moore v Secretary of State for Scotland 1985 SLT 38
Sanderson v McManus 1997 SC (HL) 55; 1997 SLT 629; 1997 SCLR 281; [1997] 1 FLR 980; 1997 Fam LR 36; The Times, 12 February 1997
Stupple v Royal Insurance Co Ltd [1971] 1 QB 50; [1970] 3 WLR 217; [1970] 3 All ER 230; [1970] 2 Lloyd's Rep 127; 114 SJ 551
Wright v Paton Farrell [2006] CSIH 7; 2006 SC 404; 2006 SLT 269; 2006 SCLR 371; [2007] PNLR 7
Scottish Law Commission, Law of Evidence (Memorandum no 46, September 1980), vol 1, para K.10 (Online: www.scotlawcom.gov.uk/files/5013/1463/0615/cm46-1.pdf (15 February 2020))
Reparation — Personal injury — Action for damages arising from road traffic collision — Defender convicted of causing death by dangerous driving — Fact of conviction pled on record — Whether reliance on conviction special cause to withhold action from civil jury trial — Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (cap 70), sec 10
Evidence — Civil proceedings — Reliance on fact of criminal conviction — Onus of proof — Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (cap 70), sec 10
David Towers and others raised an action for damages in the Court of Session against Erland Thomas Flaws and Stephen Cartwell Proctor. On 26 September 2014, the Lord Ordinary (Brailsford) refused the pursuers' motion to allow issues. The pursuers reclaimed.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (cap 70) (‘the 1968 Act’), sec 10, provides, inter alia, that: “(1) In any civil proceedings the fact that a person has been convicted of an offence … shall … 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 or not he is a party to the civil proceedings … . (2) In any civil proceedings in which … a person is proved to have been convicted of an offence … (a) he shall be taken to have committed that offence unless the contrary is proved … (b) … for the purpose of identifying the facts which constituted that offence, the contents of any document which is admissible as evidence of the conviction, and the contents of the … indictment … shall be admissible in evidence for that purpose.”
The pursuers brought an action for damages against the defenders for losses sustained as a consequence of the death of their family member in a road traffic collision. The pursuers averred that the first defender had been convicted of having caused the death of the deceased, and her passenger, by dangerous driving, contrary to sec 1 of the Road Traffic Act 1988 (cap 52). The first defender admitted the fact of his conviction but maintained that there had been deficiencies in the evidence at his criminal trial. He denied committing the offence upon which the pursuers founded. The pursuers sought to have the action tried before a jury. The Lord Ordinary held that the case involved difficult issues of mixed fact and law and was not suitable for jury trial. He refused the pursuers' motion to allow issues. The pursuers reclaimed.
The pursuers argued that the Lord Ordinary had erred in the exercise of his discretion and had failed to recognise that the effect of the averment of the first defender's conviction had been simply to reverse the onus of proof.
The first defender submitted that the Lord Ordinary had been correct to identify that evidence might be led which cast doubt upon the criminal conviction and that, in those circumstances, special cause existed for the action to be withheld from civil jury trial.
Held that the only effect of sec 10 of the 1968 Act had been to allow the pursuers to introduce the conviction into the proof and thereafter rely upon it to reverse the onus of proof between themselves and the first defender. The manner in which that ought to be done was by proving the terms of the libel as found established by the jury, usually by production of an extract conviction, and to compare it with the averments of negligence on record in so far as there was a coincidence between the proved libel and the averments, there was no onus of proof on the pursuer. There was no special cause to withhold the action from civil jury trial by mere reliance on sec 10 and such reliance did not raise any difficult issues of fact or law (paras 27, 28); and reclaiming motion allowed.
King v Patterson 1971 SLT (Notes) 40 and Garnett v Gowans1971 SLT (Notes) 77followed.
The cause called before the Second Division, comprising the Lord Justice Clerk (Carloway), Lady Dorrian and Lord Malcolm, for a hearing, on 11 December 2015.
At advising, on 27 February 2015, the opinion of the Court was delivered by the Lord Justice Clerk (Carloway)—
Opinion of the Court—
[1] This reclaiming motion concerns whether special cause exists for a personal injuries action which involves a straightforward, if tragic, road traffic accident, to be withheld from civil jury trial (Court of Session Act 1988 (cap 36), secs 9(b), 11(a)). On 26 September 2014, the Lord Ordinary refused the pursuers' motion to allow issues because of the existence of averments relating to the first defender's criminal conviction stemming from the accident. It is against that interlocutor that the pursuers have reclaimed.
[2] The pursuers seek damages for losses sustained as a consequence of the death of the late Moira Towers. The action is brought by and on behalf of various family members and executors dative. The facts, as averred by the pursuers, are that on 26 February 2012, the deceased was driving west along the A965 Kirkwall to Stromness Road, approaching the staggered crossroads junction at Hatston Park. The first defender was driving east along the same road. The second defender emerged from Hatston Park, turning left to join the main road ahead of the first defender and also travelling east. A collision occurred when the first defender's car crossed into the path of the deceased.
[3] The pursuers make no more specific averments of fault other than to say that their claim is based on the defenders' breach of duty to take reasonable care for the deceased. The pursuers...
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