Vincent Friel Against Dr Ian Brown
| Jurisdiction | Scotland |
| Judge | Lady Carmichael |
| Neutral Citation | [2019] CSOH 30 |
| Date | 22 March 2019 |
| Docket Number | A218/17 |
| Court | Court of Session |
| Published date | 22 March 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 30
A218/17
OPINION OF LADY CARMICHAEL
In the cause
VINCENT FRIEL
Pursuer
against
DR IAN BROWN
Defender
Pursuer: Sutherland QC; Lefevre Litigation
Defender: McGregor; BTO Solicitors
22 March 2019
Introduction
[1] The pursuer was convicted by a jury on 17 February 2016 of offences under sections 1
and 1A of the Road Traffic Act 1988. The convictions relate to an accident which occurred
on 18 January 2014. The pursuer was driving a car which struck two pedestrians within the
confines of a pedestrian crossing, killing one and seriously injuring the other. At his trial he
lodged a special defence of automatism, and led evidence in support of it.
[2] In this action the pursuer pleads that he suffered a vaso vagal attack and blacked out,
and that he was in that condition when the accident occurred. He avers that this was
brought on by a sudden or rapid fall in blood pressure and heart rate. He had for some time
2
before the accident been receiving medical treatment from the defender, his general
practitioner, for hypertension, including the prescription of an antihypertensive medication,
Losartan. On 14 November 2013 the defender decided to add a second antihypertensive
drug to the pursuer’s regime, namely Tildiem. The pursuer attributes his loss of
consciousness on 18 January 2014 to the combination of medications he was prescribed, and
in particular the addition of Tildiem. He pleads that the rapid fall in his blood pressure was
caused or materially contributed to by the addition of Tildiem to his regime.
[3] The pursuer alleges that the defender was negligent in prescribing Tildiem, and in
failing to provide the pursuer with information about the risks of using it, and using it in
combination with other drugs.
[4] He seeks reparation from the defender for psychological injury he sustained as a
result of the accident. He also seeks the cost incurred in instructing his defence, for which
he required to pay privately. He claims wage loss, both in respect of the period he spent in
prison and more generally.
[5] The defender has two preliminary pleas. The first is a plea to the relevancy and
specification of the action. It was advanced on the basis that the pleadings disclosed that the
action was an abuse of process. The defender pled that the action was an abuse of process,
in Answer 10. Mr McGregor doubted whether it was strictly necessary to advance a plea in
law to seek the dismissal of an action as an abuse of process. The second plea was based on
the maxim or brocard ex turpi causa non oritur actio. Although Mr McGregor initially
advanced both of those pleas, he conceded that the second should be reserved for discussion
at a proof before answer if he were to be unsuccessful in having the action dismissed on the
basis of the first. I am concerned, therefore, only with whether the action falls to be
dismissed because it is an abuse of process.
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