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Cronie & Ors v. Messenger & Anor [2004] ScotCS 151 (25 June 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF C J MACAULAY, QC

(Sitting as a Temporary Judge)

in the cause

(FIRST) ELIZABETH SENGA CRONIE, (SECOND) ELIZABETH HEATHER CRONIE OR ALLAN, (THIRD) BRIAN ALEXANDER ALLAN, (FOURTH) ANDREW WALLACE CRONIE, (FIFTH) JOY McINTYRE OR CRONIE AND (SIXTH) DAVID CHARLES CRONIE

Pursuers;

against

(FIRST) NORMAN CRAIG MESSENGER AND (SECOND) JAMES KELLY

Defenders:

________________

Pursuers: P Lloyd; Solicitors, Gebals

Defenders: R N Thomson; Solicitors, Simpson & Marwick

25 June 2004

Introduction
[1] This action arises from a road accident that occurred on the A75 road between Stranraer and Newton Stewart. Andrew Cronie ("the deceased") was a passenger in a car driven by the second defender. He died as a result of the accident. The action has been raised by a number of persons, all of whom claim to be entitled to awards of damages under the Damages (Scotland) Act 1976 (as amended). The deceased's widow is the first pursuer.

[2] By Interlocutor dated 8 May 2003 the case was remitted to the Procedure Roll for debate on the first defender's second and third pleas-in-law. Counsel for the first defender intimated at the outset of the debate that he was not arguing for dismissal. Instead he sought to have his second and third pleas-in-law sustained and as a consequence of that, the case withheld from jury trial. He moved for a Proof Before Answer. The pursuers sought to resist that motion, and I was invited to repel the first defender's first, second and third pleas-in-law and allow issues. The second defender did not appear.

[3] At the beginning of the debate counsel for the pursuers moved to amend his pleadings by deleting an averment at page 8E and two averments at page 21C-D. This motion was not opposed and I allowed the Record to be amended in the manner sought. During the debate itself he moved to delete the words "After he took their grandson", where they appear at page 19B and I also allowed him to do that. Following upon the Procedure Roll Hearing, the case was put out By Order and parties took the opportunity further to address me.

Background
[4] The pursuers aver that the accident occurred on 11 January 2001 at about 6.40pm near a disused filling station on the A75 road. It is averred that the motor car driven by the second defender collided with an articulated lorry driven by the first defender. The essence of the case made by the pursuers against the first defender is that at the time of the collision the first defender negligently engaged in a reversing manoeuvre on the roadway and obstructed the eastbound carriageway along which the second defender was travelling. The first defender avers that the second defender was travelling too fast and that he did not attempt to brake prior to the collision. The pursuer has adopted the case made by the first defender against the second defender.

[5] Each of the pursuers seeks an award of damages in terms of Section 1(4) of the Damages (Scotland) Act 1976 (as amended). The first pursuer also seeks damages in respect of the loss of support she has suffered and will suffer as a result of the death of the deceased. She also has a claim for loss of the deceased's services under Section 9 of the Administration of Justice Act 1982, as do the second and third pursuers, the deceased's daughter and son-in-law.

First Defender's Submissions
[6] Counsel for the first defender argued that there was special cause for withholding this case from jury trial on two principal grounds. Firstly, it was argued that in relation to certain aspects of the heads of claim for loss of support and services there were potential difficulties and a lack of specification with some averments being of doubtful relevancy. Secondly, it was argued that the pursuer's reliance on the first defender's conviction of a contravention of Section 3 of the Road Traffic Act 1988 caused complications which made the case unsuitable for jury trial.

Loss of support and services
[7] At the heart of the submissions made on behalf of the first defender in relation to loss of support was the contention that a jury would have some difficulty in calculating loss of support having regard to the different periods that might be involved in such a calculation. Mr Thomson focused on four different periods that might be involved under reference to the first pursuer's averments in Article V of Condescendence at page 18B-C to 18D-E. He envisaged that different multipliers might need to be employed in respect of each of his chosen periods, making the assessment of loss of support difficult for a jury. Reference was made to Potts v McNulty 2000 SLT 1269. He also argued that no specification was given in relation to what figures were involved.

[8] In relation to services, Mr Thomson argued that certain averments were lacking in specification and of doubtful relevancy. The averments in issue are as follows:-

"She has suffered, and will continue to suffer, a loss of those services which the deceased would have rendered to her, had he lived. The deceased was always good with his hands. He loved his garden, which he tended. He built a greenhouse, in which he grew tomatoes. He painted and decorated the home he shared with the first pursuer. He repaired items of electrical equipment and electrical appliances, when required. He shared the housework with the first pursuer. The first pursuer does not drive. The deceased drove her to the shops once a week. He accompanied her shopping. He loaded the car and carried the shopping bags. He regularly drove the first pursuer away into the countryside at weekends. They would travel together on holidays, generally within Scotland. The first pursuer cannot drive. The deceased was the person who paid the bills and organised finances. He walked the dog" (18D-19C).

Mr Thomson argued that these averments lacked specification in relation to the time spent by the deceased in providing the services averred and what rate or rates ought to be applied. He also submitted that the averments on gardening were of doubtful relevancy. The deceased did the gardening because he enjoyed it. He also challenged the averments relating to the driving of the first pursuer to the countryside at weekends and travelling on holiday together as being of doubtful relevancy and more akin to an element of the loss of society part of the claim. In the course of this part of his argument counsel referred to Stark v Ford 1995 SLT 69, Stark v Ford No. 2 1996 SLT 1329 and Marshall v PLM Helicopters 1997 SLT 1039. Mr Thomson also suggested that there was a lack of specification in the averments on services made by the second pursuer (daughter) and the third pursuer (son-in-law), but since any awards made would be modest he was not "making a great deal of it".

The Conviction
[9] The pursuer avers that on 12 February 2002 the first defender was convicted, after trial, of a contravention of Section 3 of the Road Traffic Act 1988 (careless driving) in respect of the accident (8B-C). This is admitted by the first defender and answered in the following way:

"Further explained and averred that the first defender was indicted under Section 1 of the Road Traffic Act 1988. On the morning of the first day of the Trial, the first defender consulted with his Counsel. The first defender's Counsel recommended that he should invite the Jury to find the first defender guilty of a contravention of Section 3 of the Road Traffic Act 1988 to increase the chances of successfully defending the indictment under Section 1. The pursuer (sic) understood this to be some form of plea bargain with the Procurator Fiscal. The trial proceeded. The first defender and his Counsel did not discuss how the evidence had gone. The first defender felt that the evidence had gone well in his favour. However, his Counsel was still of the view that his instructions were to invite the jury to find him guilty of the Section 3 charge. Accordingly, he did so. The Jury duly found the first defender guilty of the Section 3 charge. The first defender was acquitted of the Section 1 charge. The first defender lodged an Appeal. The Appeal was abandoned following the advice of further Counsel" (12D-13D).

[10] Mr Thomson referred to the Law Reform (Miscellaneous Provisions) Act 1968, Section 10, which provides:

"(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any Court in the United Kingdom or by a Court Martial there shall (subject to subsection (3) of this Section) 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 he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissble in evidence by virtue of this section.

(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any Court in the United Kingdom or by a Court Martial there or elsewhere -

(a) he shall be taken to have committed that offence unless the contrary is proved...."

[11] Mr Thomson submitted that proof of the conviction would give rise to a rebuttable presumption that the first defender's driving was careless. Accordingly, the pursuer's reliance on the conviction meant that there would be an onus on the first defender to rebut the presumption raised by proof of the conviction. Mr Thomson explained that the first defender made the averments already quoted in order to overcome that presumption. He also argued that a conviction for careless driving may have a connection with negligence, but that the two things were not the same. He drew attention to the differences in the specification of the libel in respect of which the first defender had been found guilty, and the case made by the pursuer on Record. The libel made reference to a failure to use a marshall and the absence of advanced warning signals. No such case was made on Record. He postulated that the explanations that might be necessary in the judge's charge to the jury in the circumstances of this case would introduce complications that made the case wholly unsuitable for a jury. Mr Thomson gave some examples. The judge would have to explain how the conviction was relevant in a civil case involving negligence. He would have to give some directions as to the context in which the conviction was obtained, namely, a criminal trial involving different standards of proof and different rules on the sufficiency of evidence.

[12] Counsel in his argument referred to Caldwell v Wright 1970 SC 24. That was apparently the first reported case in Scotland where Section 10 of the 1968 Act was considered in the context of special cause for withholding a case from jury trial. In that case the pursuers sought damages in respect of the death of the wife of one of the pursuers in a road traffic accident. It was averred by the pursuers (and not specifically denied) that the defender had been convicted at the High Court of Justiciary at Glasgow, of causing the death by dangerous driving. In refusing a jury trial, Lord Avonside saw a number of difficulties arising because of the reliance by the pursuers on Section 10 of the 1968 Act. Mr Thomson did not seek to rely on all of the difficulties mentioned by Lord Avonside, but he did rely on what the learned judge had to say towards the end of his Opinion:

"This, I understand, is the first case in which this matter has arisen sharply in debate. That being so, it does appear to me best, having an eye to the future conduct of such proceedings, that this case should proceed as a Proof Before Answer, in order that all the evidence which is to be tendered should be heard, and that, when that evidence has been given, attention can then be paid to the precise effect of the terms of the 1968 Act to which I have referred. The plea-in-law for the defender is perhaps not happily phrased to be directly specific on this matter, but I am satisfied, rightly or wrongly, that I would be extremely doubtful at the present moment as to how properly to direct a jury in this case, and that constitutes special cause, since these doubts are raised by the legislative provisions with which we have been dealing, for refusing a jury trial and sending the matter to Proof Before Answer" (page 28).

[13] Mr Thomson also referred to King v Patterson 1971 SLT (N) 40. In that case Lord Stott concluded, notwithstanding the pursuer's reliance on Section 10 of the 1968 Act, that it was a "very simply straightforward case to a jury". Mr Thomson argued that on its facts, that was a less complicated case. My attention was also drawn to Gemmell v McFarlane 1971 SLT (N) 36 and Fardy v SMT Company Limited 1971 SLT 232, where the motions for jury trial were refused and to Garnett v Gowans &c 1971 SLT (N) 77, where a jury trial was allowed.

[14] The essence of the argument presented by Mr Thomson was that an exercise in the course of a civil case that might involve a detailed consideration of the terms of the indictment as compared to the case made on Record, the prospect of a judge having to direct a jury on different standards of proof and sufficiency and of the relationship between aspects of criminal law relating to careless driving and the civil law of negligence, made the case unsuitable for jury trial.

The Pursuers' Submissions
[15] Counsel for the pursuers submitted that there was no special cause to deprive the pursuers of their right to a jury trial. He invited me to repel the first three pleas-in-law for the first defender and to allow issues.

Loss of support and services
[16] In response to the arguments advanced on behalf of the first defender, Mr Lloyd submitted that there was nothing particularly difficult in what a jury may require to do in calculating loss of support. The fact that different periods might have to be looked at was not uncommon in such cases and well within the competence of any properly instructed jury. He also indicated that in the past juries have been asked to consider the use of the Ogden Tables, his point being that, if it is accepted that juries are capable of that type of exercise, what might be required here would not be so complicated. He maintained that fair notice of the first pursuer's position had been given.

[17] In relation to Services, counsel for the pursuers argued that fair notice had been given on what was involved. The fact that specific rates and times were not pled was typical of this sort of claim. He argued that the fact that the deceased may have enjoyed doing a particular task, such as gardening, did not mean it was any less a service from the point of view of the first pursuer. He too founded upon Stark v Ford (No.2).

The conviction
[18] In response to the first defender's argument under this heading, Mr Lloyd began by saying that the starting point was that the pursuers had a statutory right to a jury trial. Consequently, a provision such as Section 10 of the 1968 Act could not of itself deprive the pursuers of that right. So far as Section 10 was concerned, he argued, contrary to the position advanced by Mr Thomson, that the effect of the conviction in this case was to raise a presumption of negligence, which the first defender had to disprove. In this connection he referred to Campbell v Golding 1992 SLT 889. That was a case, where a woman was killed in a road traffic accident. Her husband and children sued the defender as the driver of the car responsible for the accident. The husband also claimed damages for his own personal injuries. The pursuers averred that the defender had been convicted of a contravention of Section 3 of the Road Traffic Act 1988 in respect of the accident. This was admitted by the defender. The matter came before Lord Cullen on a motion for summary decree. The impact of the admitted conviction was considered in the course of his Opinion, and he made the following observations:

"In deciding to grant the pursuers' motion in its modified form, I took into account that it was not in dispute that the collision occurred when the defender's motor car was overtaking and was partly on the westbound part of the carriage. While the pursuers' averred that he had "suddenly" pulled out was covered by a general denial, the admitted fact of the defender's conviction for a contravention of Section 3 of the Road Traffic Act 1988 entailed, in the light of Section 10(2)(a) of the Law Reform (Miscellaneous Provisions) Act 1968 that he was to be "taken to have committed that offence unless the contrary is proved". Accordingly, it was incumbent on the defender, if he was to avoid liability to the pursuers, to aver and in due course to show that the collision occurred without fault on his part. I appreciated that he had made certain averments, which went some way towards advancing a case that the collision was due to the fault of the deceased. However, they did not appear to me to demonstrate that he had a defence to the claim that he caused the collision through his own fault, where the onus was effectively on him to do so" (8901-L).

[19] Mr Lloyd relied on these remarks in support of his contention that when the conviction was for a contravention of Section 3 of the Road Traffic Act 1988, the inevitable consequence was that a presumption of negligence arose which the defender had to disprove.

[20] Counsel for the pursuers also referred to Stupple v Royal Insurance Co Ltd [1971] 1 QB 50. In that case, a man convicted of robbery sought payment of a sum of money he claimed belonged to him. The money had been removed from his house following upon a police search, and after his conviction, handed over to the defendants who had indemnified the bank from where the money had been removed. His wife raised a separate but similar action. The conviction was relied upon by the defendants in their defence to the actions under reference to the equivalent English provisions to Section 10 of the 1968 Act (Section 11 of the Civil Evidence Act 1968). Mr Lloyd referred to a number of passages in the judgment of Lord Denning M.R.:

"Mr Hawser, for Mr Stupple, submitted that the only effect of the Act was to shift the burden of proof. He said that, whereas previously the conviction was not admissible in evidence at all, now it was admissible in evidence, but the effect was simply to put on the man the burden of showing, on the balance of probabilities, that he was innocent. He claimed that Mr Stupple had done so.

I do not accept Mr Hawser's submission. I think that the conviction does not merely shift the burden of proof. It is a weighty piece of evidence in itself. For example, if a man is convicted of careless driving on the evidence of a witness, but that witness dies before the civil action is heard, (as in Hollington v F Hawthorn & Co. Ltd [1943] 1 KB 587), then the conviction itself tells in the scale in the civil action. It speaks as clearly as the witness himself would have done had he lived. It does not merely reverse the burden of proof. If that was all it did, the defendant might well give his own evidence negative want of care, and say: "I have discharged the burden. I have given evidence and it has not been contradicted". In answer to the defendant's evidence, the plaintiff can say to him: "But your evidence is contradicted. It is contradicted by the very fact of your conviction" (71H-72C).

Lord Denning goes on to say that the burden shifted is not merely an evidential burden but a legal burden and, under reference to a road traffic case, that the defendant had to show, "on the balance of probabilities that he was not negligent" (72D-E).

[21] Against that background, Mr Lloyd argued that a judge in charging a jury in this case would have to direct them that there was a rebuttable presumption of negligence. Accordingly, the first issue for the jury would be whether the first defender had rebutted that presumption, and in considering that issue, the conviction, to use the language of Lord Denning in Stupple v Royal Insurance Co Ltd would be "a weighty piece of evidence in itself". He postulated that these matters would not cause any difficulties for the judge in directing the jury, or for the jury in fully understanding its task. He also argued, in dealing with the point on the differences between the specification in the libel on which the first defender had been convicted and the case made against the first defender on Record, that that did not matter because only the extract conviction would go in front of the jury. In relation to the other cases referred to on behalf of the first defender, Mr Lloyd placed particular reliance on Lord Stott's observations in King v Paterson.

Reply for First Defender
[22] In reply, Mr Thomson argued that Section 10 of the 1968 Act was designed to create a presumption that a defender had committed an offence, but in order for that to be relevant to a civil case, it must be shown that there was an identity of issues between the civil and criminal proceedings. He took issue with what was said by Lord Denning M.R. in Stupple v Royal Insurance Co Ltd that a conviction for careless driving raised a presumption of negligence. He submitted that the conviction raised a presumption of there having been a lack of due care and attention, but that was only an adminicle of evidence that there may have been negligence. He suggested that Lord Cullen was not correct in suggesting in Campbell v Golding that a conviction for driving without due care and attention raised a presumption of negligence in a subsequent civil case on the same facts.

Discussion
Loss of Support and Services
[23] I am not satisfied that the averments made in connection with loss of support and services render this case unsuitable for jury trial. In relation to loss of support, I tend to agree with Mr Lloyd that there is nothing particularly difficult here for a jury even if different periods might have to be looked at in any calculations that may be necessary. Furthermore, I am of the view that the averments on loss of support are sufficiently specific so as to give the first defenders fair notice of the case against them on this head of claim. Insofar as the challenge made in relation to the provision of services is concerned, I am also of the view here that fair notice has been given about the services the deceased might have rendered but for his death. When dealing with the kind of family services condescended upon in this case, it is not necessary to set out in detail the time that might be devoted to such acts and the rates of charge. In section 9 claims of this kind a judge or jury would be expected to make a relatively broad assessment of damages. Indeed, it seems to me that juries are well placed to quantify such claims as these, particularly since they do defy precise quantification. Furthermore, in my opinion, the complaint that the averments or services were of doubtful relevancy is misplaced. Simply because the deceased himself might have enjoyed gardening does not detract from it being a service from the perspective of the first pursuer. Similarly, the driving of the first pursuer to the countryside can in my view be regarded as a service, especially since it is averred that the first pursuer cannot drive. I read the averment relating to travelling "together on holidays, generally within Scotland" as an elaboration of the preceding averments on driving and not as part of the claim on loss of society.

The conviction
[24] Much of the argument before me centred on the role which the first defender's conviction would play at any trial. Section 10(1) of the 1968 Act provides that a conviction shall be admissible in evidence for the purpose of proving that the defender committed the offence if to do so is relevant to any issue in the case. Section 10(2) goes on to provide that in such circumstances the defender shall be taken to have committed the offence unless the contrary is proved. The presumption raised by that sub-section is that the offence was committed. In many cases, especially in actions of personal injury arising out of circumstances where a conviction for a contravention of Section 3 of the Road Traffic Act has occurred, it may be a simple matter to infer from the fact of such a conviction that a defender has been negligent. In such circumstances to describe the presumption as a presumption of negligence may be a shorthand way of describing the reality of the situation. However, the Court has to be satisfied that the conviction is relevant to the issues raised in the civil action and that presupposes that the conviction was based on allegations that bear a clear resemblance to the issues raised in the subsequent civil action. In the case before me, two of the failures narrated in the charge in the indictment are that the first defender failed to use a marshall and advance warning facilities. Those failures are not pled as part of the case made by the pursuer on Record. It should be noted that Section 10(2)(b) of the 1968 Act provides that "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 complaint, information, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose". The extract conviction itself does not give any specification and, notwithstanding Mr Lloyds protestations to the contrary, it is certainly arguable that in order to establish a relevant link between the negligence complained of on Record and the conviction, it will be necessary to have regard to the allegations contained in the indictment. Indeed Section 10(2)(b) envisages that recourse to that kind of material may be necessary to show that the conviction is relevant to any issue in the civil proceedings. In relation to this limb of the argument there must be some risk that mixed questions of fact and law in relation to the relevancy of the conviction might arise in the circumstances of this particular case.

[25] Mr Lloyd also relied on Lord Denning's judgment in Stupple v Royal Insurance Co. Ltd as to how a jury might be directed on the effect of the conviction in the context of the other proved facts. Lord Denning described a conviction as "a major piece of evidence in itself". However, Buckley LJ took a different view:

"In my judgment no weight in this respect is to be given to the mere fact of conviction.... In my judgment, proof of conviction under this section gives rise to the statutory presumption laid down in Section 11(2)(a) which, like any other presumption, will give way to evidence establishing the contrary on the balance of probabilities without itself affording any evidential weight to be taken into account in determining whether that onus has been discharged" (page 76).

On Buckley LJ's approach, once the conviction is admitted or proved, the equivalent English presumption to the Scottish presumption in Section 10(2)(a) is triggered and the effects of the conviction in evidence are spent.

[26] Attaching weight to the conviction itself means that a conviction can be used to serve a dual role. It forms the basic fact that activates a presumption and also has probative significance depending upon the circumstances in which it was obtained. If such an approach is correct, then a defender might seek to undermine the effect of a conviction by arguing, for example, that it proceeded upon a misdirection by the trial judge. Conversely, a pursuer might want to argue that a conviction carries greater weight if it results from a unanimous verdict, or if it is by a jury rather than a judge sitting alone. In Stupple v Royal Insurance Co Ltd Lord Denning regarded the conviction as entitled to "great weight" (71H-72A), since it was based upon a unanimous jury verdict. I have some doubts if this is the correct approach. This approach, it seems to me, shifts the focus away from the issue as to whether a defender can prove that the offence for which he was convicted was not committed. A relevant conviction is the basic fact that activates the presumption that the offence was committed "unless the contrary is proved". The contrary is truth of the fact that the defender did not commit the offence. Although it was counsel for the pursuers who argued that a conviction had evidential weight in itself, the first defender also seems to have in mind that the presumption raised by a conviction can be undermined by exploring the circumstances in which it occurred. In the averments already quoted (para [9]) the first defender seems to be suggesting that the existence of the conviction might be explained by the confusion that may have existed between him and his legal representatives. I think it would be undesirable if discussions that might have taken place between legal advisers and their clients as to trial tactics could be subjected to detailed scrutiny in order to challenge the evidential weight to be given to criminal convictions in subsequent civil cases. I am not convinced that the 1968 Act intended that a conviction that was relevant and had not been successfully appealed could be challenged in that way so as to undermine its effect in raising the presumption spelt out by Section 10(2)(a) of the 1968 Act. I tend to be of the view that once the conviction is proved to be relevant, the presumption that the offence has been committed is activated, and can only be rebutted by the defender proving the contrary, namely, that he was not guilty of the offence.

[27] However, there does appear to be some doubt as to what the correct approach is in such cases. I have not been referred to any Scottish case where the issue has been fully considered. Lord Stott does suggest in King v Patterson that evidence on the personal circumstances of the defender when he came to plead guilty to the charge against him might be led to establish that "the conviction was wrong" (40 Col.2). In Fardy v SMT Company Limited Lord Milligan makes reference to "the difference of opinion between the Master of the Rolls and Buckley LJ" in Stupple v Royal Insurance Co Ltd. He went on to observe that "....it is by no means easy to say....in the present state of the law what effect and weight should be given" to a conviction. That formed part of his reasoning in refusing a jury trial. It seems to me, as presently advised, that there is some doubt as to what evidential weight, if any, a conviction has in cases of this kind and that questions of law could arise here that would be better considered outwith the context of a jury trial.

Conclusion
[28] I am satisfied that the attack directed to the averments made on loss of earnings and services is misplaced but I am also satisfied that there are a number of features in this case which arise because of the averments made in connection with the conviction that constitute special cause for withholding this case from jury trial. Accordingly, I shall repel the first defender's second plea-in-law, but sustain his third plea-in-law and allow a Proof Before Answer. In the meantime, I shall reserve the question of expenses.