Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2014] CSOH 123

A417/13

OPINION OF LORD JONES

In the cause

FRANCES McLAUGHLIN, as guardian of JOHN RENNIE

Pursuer;

against

(FIRST) PAULINE MORRISON

First Defender;

And

(SECOND) ESURE SERVICES LIMITED

Second Defender:

Pursuer:  Maguire QC; Euan Mackenzie;  Balfour + Manson LLP

Defender:  Dunlop QC; Smith;  Simpson & Marwick

8 August 2014

Synopsis

(i)         The pursuer is the guardian of John Rennie, who was seriously injured when he was run down by a car driven by the first defender.  The first defender was subsequently convicted of assaulting Mr Rennie.  Following a hearing in September 2013 on the pursuer’s motion for summary decree and interim damages, the second defender was found liable to make reparation to the pursuer, and interim damages were awarded.  (2014 SLT 111)  In March of this year, the pursuer moved the court to allow a proof, restricted to the issue of quantum.  The second defender opposed that motion on the ground that it had averred that Mr Rennie had suffered damage as the result partly of his own fault and, separately, that he had provoked the assault.  At the hearing on the motion, it was argued on behalf of the pursuer that the second defender’s averments on both of these issues are irrelevant and lacking in specification.

(ii)        I have held that each of the second defender’s cases on contributory negligence and provocation is bound to fail, and I have allowed parties a proof of their averments, restricted to the issue of quantum of damages.

Introduction

[1]        This is an action of damages in which the sum sued for is £8,000,000.  The pursuer is the guardian of John Rennie (“Mr Rennie”), by virtue of an order made under the Adults with Incapacity (Scotland) Act 2000.  She avers that Mr Rennie was injured on or about 22 May 2010, when he was standing in Royston Road, Glasgow.  Suddenly and without warning, it is averred, the first defender drove a car at him at speed, hitting him and knocking him to the ground.  On 19 July 2011, the first defender was convicted of assault to severe injury, permanent disfigurement, permanent impairment and to the danger of Mr Rennie’s life.  According to the pursuer’s averments, Mr Rennie sustained a serious brain injury as a result of which he is immobile, and cognitively impaired.  He requires full-time care.  The second defender is convened in terms of regulation 3 of the European Communities (Rights against Insurers) Regulations 2002.  The pursuer avers that the second defender is directly liable to make reparation to her to the same extent as the first defender. 

[2]        Following a finding of liability against the second defender and an award of interim damages, the case came before me on 21 March 2014, on the pursuer’s motion to allow a proof, restricted to the issue of quantum.  In support of that motion, Miss Maguire QC sought to persuade me that the second defender’s pleadings on contributory negligence and provocation were irrelevant and/or lacking in specification.

The second defender’s case on record

[3]        The second defender’s averments that are the subject of challenge read as follows:

“Explained and averred that:

(i) The accident occurred in the vicinity of premises known as the Ranza Bar.  The Ranza Bar is located on Royston Road, Glasgow.  It is close to the Blackhill and Germiston areas of Glasgow.  The Blackhill and Germiston areas of Glasgow are utilised by organised criminals to run criminal enterprises.  In the Blackhill area of the city, one criminal enterprise is run by the M family; in the Germiston area one criminal enterprise is run by the B family.  These criminal enterprises are often involved in rivalry with each other.  Such rivalry can, at times, be seriously violent.  The first defender is part of the M family that operates the criminal enterprise in the Blackhill area.  The Ranza Bar is frequented by a number of members of that enterprise.  The licensee of the premises was, at the material time, the first defender’s uncle.

(ii) The first defender had previously been involved in a violent incident at the hands of the criminal enterprise run by the B family.  That had occurred in around April or May 2008 in the Wee Glen pub in Forge Street, Glasgow.  Her father, JM, was badly beaten and stabbed.  The first defender had sought to defend her father.  Her father is heavily involved in the criminal enterprise run by his family.

(iii) Prior to May 2010 there had been tension between the criminal enterprises run by the M and B families.  As a result, police presence in the area had been increased. 

(iv) Shortly prior to the material incident, a group of individuals had (as detailed further below) been involved in an attack on the Ranza Bar.  The individuals involved in the attack on the bar were associated with the criminal enterprise run by the B family.  They included JB, GB and CB – the three brothers involved heavily in the criminal enterprise.  Stones and other items were thrown at the premises.  The group of individuals carrying out the attack had (as further detailed below) arrived in two cars, a Volkswagen Golf and a Landrover Discovery.  The Landrover Discovery was regularly used by the B criminal enterprise.  It had previously been held by police investigating another criminal incident.  In particular, it was held as part of the inquiry into the killing of KC.  KC had been killed by men associated with the criminal enterprise run by the B family.  His killing was part of an incident whereby members of the B criminal enterprise fought with members of a rival criminal enterprise (operated by the D family), with which KC was associated.  As part of the same incident, the Landrover Discovery had been involved in the running down of another man, AB.  The Landrover Discovery had, at the time of the material accident, recently been returned to its owners.  KC was related by marriage to the first defender.  She was aware of the circumstances of his murder and the surrounding incidents.  In particular, she was aware of the involvement of the Landrover Discovery, as condescended upon. 

(v) Members of the B criminal enterprise met up at premises within the Germiston area of Glasgow.  In particular, they met at a carwash at the top of Fulton Street, Glasgow; and at JB’s father’s house.  John Rennie was an associate of the B criminal enterprise, and regularly met with the members of the criminal enterprise at both of those locations.

(vi) On 22 May 2010, shortly prior to the attack on the Ranza Bar, the Landrover Discovery associated with the B criminal enterprise was in the area of the Ranza Bar.  It was being driven by GB, with John Rennie as a passenger.  The Landrover and its occupants had been circling the area of the Ranza Bar for the purposes of assisting the occupants of the Volkswagen in a planned attack on the Ranza Bar.  The Landrover has (sic) repeatedly driven past the Ranza Bar.  It had been noticed by the first defender.  The first defender heard GB threaten her from the Landrover.  The Landrover had also been noticed by ED, an associate of the M criminal enterprise.  Having noticed the Landrover Discovery, ED ran toward the Ranza Bar.  The attack commenced when the occupants of the Volkswagen Golf were decanted outside the bar.  They were MM, CB, PMM and JB.  They threw items at the bar and shouted abuse, in an attempt to goad the occupants of the bar to exit same, whereupon they would be attacked.  They were all associates of, and acting in concert with, the occupants of the Landrover – including John Rennie.

(vii) During the initial attack on the premises by the occupants of the Volkswagen JB was shot.  He was shot in the leg by ED.  Following the shooting, JB was picked up in the Volkswagen Golf.

(viii) After the shooting, the Landrover Discovery driven by GB was brought to a halt in the offside lane of the eastbound carriageway of Royston Road, close to the Ranza Bar.  Mr Rennie was a known associate of the occupants of the vehicle.  He had alighted from the Landrover.  After Mr Rennie had alighted, the Volkswagen pulled up in the offside lane of the eastbound carriageway.  Mr Rennie stood at the nearside front window of the Volkswagen.  He was engaged in conversation with the occupants of the vehicle, which included JB.  It is believed and averred that they were discussing the repercussions of the shooting of JB.  It was as he was standing there that Mr Rennie was struck by the vehicle driven by the first defender.

(ix) Mr Rennie was at the locus of the accident to engage in criminal conduct.  In particular, he was at the locus in order to involve himself in the attack on the premises.  In attending at the locus, he was acting in concert with the occupants of the Landrover and those of the Volkswagen.  All of those individuals were at the material time involved in the criminal acts of breaching the peace and conspiring to attack the Ranza Bar and persons within.

(x) Angered at what she rightly perceived to be an attack on her family’s premises and persons within, and in response thereto, the first defender deliberately - as the jury in the criminal trial found - drove at the vehicles and the group which had alighted therefrom, including the pursuer.”

[4]        As will be seen, the arguments on contributory negligence and provocation were closely linked.  I shall, therefore, consider them together.

Submissions for the pursuer

[5]        In support of her motion, Miss Maguire contended that the second defender’s contributory negligence case was bound to fail in fact and law.  She drew my attention to the terms of section 1 of the Law Reform (Contributory Negligence) Act 1945, as it applies in Scotland.  Section 1, insofar as is relevant, provides as follows:

“(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: …”

“Fault” is defined in section 5(a) for Scotland as “wrongful act, breach of statutory duty or negligent act or omission which gives rise to a liability in damages or would apart from this act, give rise to the defence of contributory negligence.”

[6]        Counsel cited three pre-1945 House of Lords decisions:  Taylor v The Dumbarton Burgh and County Tramways Co-1918 SC (HL) 96 (“Taylor”), Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, and Robinson v Hamilton 1923 SC 838.  Miss Maguire argued that these cases make it clear that, when considering whether or not there has been contributory negligence on the part of a pursuer, it is necessary to identify “the effective cause” of the accident at the moment when it occurred and not at an antecedent stage.  The contributory negligence must be shown to be such that it “actually and directly led in itself to the accident”.  (Taylor, page 105, Viscount Haldane).   The mere presence of a person at a place where he or she ought not to have been is wholly insufficient to establish the plea.  Any antecedent negligence is just part of the history.

[7]        Relying on the decision in Pritchard v Co-operative Group Ltd [2012] QB 320 (“Pritchard”), Miss Maguire submitted that contributory negligence is not a defence to an action for damages caused by an intentional tort.  In support of the same argument, she referred me to the cases of Reeves v Commissioner of the Police of the Metropolis [2000] 1 AC 360 (“Reeves”) and Standard Chartered Bank v Pakistan National Shipping Corporation and others (Nos 2 and 4) [2003] 1 AC 959.

[8]        Counsel’s principal criticism of the second defender’s pleadings on provocation was that they are ”particularly lacking in specification given the pleadings are silent as to how or in what way Mr Rennie provoked the first defender (who was not present at the scene of the disturbance) into deliberately driving her car at him”.  There is, she argued, no relevant provocative act.  What Miss Maguire described as the main primary facts averred are (i) Mr Rennie was a passenger in the Land Rover and (ii) he got out of the Land Rover and talked to the occupants of the Volkswagen.  That, she argued, is a wholly inadequate basis for either the plea of contributory negligence or the plea of provocation.

[9]        On the question of what amounts to provocation in law, Miss Maguire cited the five judge decision in Gillon v HM Advocate 2007 JC 24 (“Gillon”), and submitted that, in order for a plea of provocation to be considered, there has to be a provoking act on the part of the victim towards the wrongdoer.  The retaliation has to be related to that act and it has to be proportionate.  It must not be grossly disproportionate to the actions of the victim.

[10]      In conclusion, counsel submitted that the cause of Mr Rennie’s injuries was the driving of the car at him by the defender.  The plea of contributory negligence is bound to fail on causation.  The lack of causation also informs the provocation plea and that plea is bound to fail.

Submissions for the second defender - contributory negligence

[11]      Mr Dunlop QC, who appeared on behalf of the second defender, advanced three propositions in support of his submission that its averments on contributory negligence and provocation were fit for proof.  They were that (i) notwithstanding statements of high authority to the effect that a plea under the 1945 Act requires the pre-1945 requirements of contributory negligence to be satisfied, those statements are not binding in Scotland and open to question; (ii) accepting Pritchard as the law of England, the law of Scotland is different in that, historically, provocation has been recognised as a defence, such that it may now found a plea of contributory negligence under the Act; (iii) in any event, provocation as a stand-alone defence in mitigation should proceed to inquiry.

[12]      Referring to Miss Maguire’s reliance on the three pre-1945 cases, counsel challenged the notion that a defender needs to show that the “old rules” would have operated to deny the claim in order to establish that a reduction in damages is available under the 1945 Act.  Mr Dunlop found support for his position in Murphy v Culhane [1997] QB 94, (“Murphy”).  The true position, suggested counsel, is that the 1945 Act does not import the entire pre-existing corpus of the law on contributory negligence, and that rather what it does is to focus on the sort of conduct which might found such a plea.  In support of that proposition, Mr Dunlop referred me to McNaughton v Caledonian Railway Co (1858) 21 D 160, Lord Justice-Clerk Inglis at page 163, where his Lordship discusses joint fault in terms of culpa.  Counsel argued that we know from Reeves that, even under English law, intentional conduct can be “fault” for the purposes of contributory negligence. The concept of culpa makes this clear under Scots law. The focus on the culpa of each party means that Scots law need not struggle with the analysis in Pritchard. If culpa is enough to found contributory negligence at common law, then culpa in the form of provocation will suffice.   What the Act requires is that there should be culpa on the part of the pursuer which is a cause (not the cause) of the injury. It does not offend common sense to say that “a cause” of injury in an assault was turning up for the fight in the first place.  If the pursuer is correct then a burglar does not in any way “cause” the injuries inflicted by a householder whom he disturbs.  That would not make sense.  Causation is classically a question of fact, to be determined on the basis of the evidence as a whole.  It cannot be said now that there was no relevant causal role.

[13]      Mr Dunlop submitted that, whilst provocation may not constitute a defence to an action of damages for assault in England, it does so in Scotland.  The principle underlying the decision in Pritchard is to be found in the judgment of Aikens LJ at paragraph 34: “the intention to injure the plaintiff negatives all excuses”.  In Scotland, however, provocation has long been recognised as at least a partial, and sometimes a complete, defence to an action of damages arising from an assault.  Counsel argued that support for that proposition was to be found in the cases of Young v Allison (1820) 2 Mur 228;  Miles v Finlayson (1829) 5 Mur 84; (Thom v Graham) 1835 13S 1129;  Anderson v Marshall 1835 13S 1130;  Ross v Bryce 1972 SLT 76;  and Rutherford v Chief Constable for Strathclyde Police 1981 SLT 119.  He referred, also, to Walker: The Law of Delict in Scotland, second edition, at pages 333 and 495.

Decision and reasons

[14]      The starting point in seeking to determine whether either of the defences under consideration is bound to fail is to understand what is being said about the actings of Mr Rennie and the first defender respectively in the minutes leading up to and including the assault.

[15]      Shortly prior to the attack on the Ranza Bar, Mr Rennie was a passenger in the Land Rover.  The Land Rover and its occupants had been circling the area of the Ranza Bar for the purposes of assisting the occupants of the Volkswagen in a planned attack on the Ranza Bar.  The Land Rover had been noticed by the first defender as it was repeatedly driven past the Ranza Bar.  (Answer 4 for the second defender, paragraph (vi))  After the shooting, the Land Rover was brought to a halt in the eastbound carriageway of Royston Road, close to the Ranza bar.  Mr Rennie got out.  The Volkswagen pulled up in the offside lane of the eastbound carriageway, and Mr Rennie stood at its nearside front window.  As he was standing there, he was struck by the car driven by the first defender.  (Answer 4 for the second defender, paragraph (viii))  Angered by the attack on the Ranza Bar and those within, the first defender deliberately drove at the vehicles and the group which had alighted therefrom, including the pursuer.  (Answer 4 for the second defender paragraph(x))

[16]      Having regard to these pleadings, in my opinion it is unnecessary either to resolve the dispute as to whether the pre-1945 rules on contributory negligence must be applied or to determine whether Pritchard ought to be followed in Scotland. On no pre- or post-1945 view of causation can it be said that anything that Mr Rennie is averred to have done caused or contributed to his injury.  More particularly, on the second defender’s pleadings it could not be established that Mr Rennie’s injury was suffered “as the result partly of his own fault”.  It was caused solely by his being run down by the first defender.  The defence of contributory negligence is, therefore, bound to fail.

[17]      Having regard to the authorities cited by Mr Dunlop, I accept that provocation by a pursuer may operate to reduce the amount of damages recoverable by him or her for an injury caused by an assault.  It is clear from the decisions, however, that it must be established that the defender was provoked by something that the pursuer did or said.  There must, in other words, be a causal connection between the alleged act of provocation and the delictual response.  Further, the act of provocation must be a wrongful act, otherwise an entirely innocent act which happens to anger an irrational wrongdoer would operate to exclude or mitigate damages for injury caused by the irrational wrongdoer’s unlawful act.  It is necessary, therefore, to establish what behaviour on the part of the victim operated on the mind of the wrongdoer and to what effect.  In this case, none is pleaded.  It is not averred that the first defender knew that Mr Rennie was a passenger in the Land Rover.  It is not averred that she saw him inside when she noticed the Land Rover passing the Ranza Bar, or that she saw him alight from it.  It is not averred that she knew Mr Rennie to be an associate of, or acting in concert with the occupants of the Volkswagen.  The only actings said to be causally connected with the first defender’s attack on Mr Rennie was the attack on the Ranza Bar and those inside.  It was that which is said to have angered the first defender and, so angered, she drove at the vehicles and the group.  It is not averred that her anger was occasioned by anything which she knew Mr Rennie to have done.  I agree with Miss Maguire, therefore, that the second defender has pleaded no relevant provocative act.

[18]      For the foregoing reasons, I shall appoint this action to a proof, restricted to the issue of quantum.  I shall reserve all questions of expenses.