DAVID TOWERS AND OTHERS AGAINST ERLAND THOMAS FLAWS AND STEPHEN CARTWELL PROCTOR [2015] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DAVID TOWERS AND OTHERS AGAINST ERLAND THOMAS FLAWS AND STEPHEN CARTWELL PROCTOR [2015] ScotCS CSIH_97 (27 February 2015) URL: http://www.bailii.org/scot/cases/ScotCS/2015/2015_CSIH_97.html Cite as: [2015] ScotCS CSIH_97, [2015] CSIH 97

[1] This reclaiming motion concerns whether special cause exists for a personal injuries

action involving a straightforward, if tragic, road traffic accident to be withheld from civil

jury trial (Court of Session Act 1988, ss 9(b) and 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

[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

[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 do aver that, on 31 October 2013, at the High Court at Edinburgh, the first defender

was convicted of causing the deaths of the deceased and her passenger by dangerous

driving, contrary to section 1 of the Road Traffic Act 1988. No further averments are made

about the conviction (ie the facts found proved in terms of the libel).

[4] The first defender admits his conviction, but contends that the second defender was

at fault by causing him to swerve into the path of the deceased’s oncoming car by pulling

out of the junction ahead of him without having kept a good lookout. The second defender

had failed to drive away from the junction with suitable urgency. The first defender acted in

an emergency situation and was forced to swerve into the deceased’s path. The second

defender denies that he was at fault. He avers that he pulled out from the junction and was

struck by the first defender’s car which was “driving at high speed”.

[5] The pursuers do not direct a positive case against the second defender other than by

adopting that of the first defender on the hypothesis that the first defender’s account of the

accident is well founded. They do not adopt or repeat the second defender’s averments

[6] Thus far, it might be thought, this is a relatively straightforward road traffic case,

albeit that there is a paucity of averment from the pursuers on the grounds of negligence

and the facts of the conviction. As can be seen from the indictment and High Court minutes

lodged in process, the facts found proved by the jury support the second defender’s

averments against the first defender which, as already noted, remain denied by the pursuers

[7] The peculiarity which emerges from an otherwise uncluttered record, at least on the

merits of the claim, starts with the first defender’s reference in his pleadings to a road traffic

reconstruction report, which he avers was obtained after the criminal trial. He avers that

there were material omissions and deficiencies in the police report relied upon by the Crown

at the trial and in an expert report obtained by the defence. The first defender denies

[8] It has to be assumed, albeit that it is not made explicit by the pursuers, that the whole

purpose of averring the conviction is to found upon section 10(2) of the Law Reform

(Miscellaneous Provisions) (Scotland) Act 1968 which reverses the onus of proof in certain

circumstances (see infra). There is no other obvious reason for doing so, hence the first

defender’s averment that he did not commit the offence. The pursuers’ reaction to the first

defender’s reference to the evidence at trial is not to challenge its relevancy but to call for

greater specification of the omissions and deficiencies in the reports. The second defender’s

approach is to refer to the police report, which, it is said, concluded that the first defender

was responsible for the accident. He avers that “no evidence was led from an expert on

behalf of the first defender at his trial”. In response to that counter, the first defender avers

that the police report itself is inadmissible and incompetent and should not be admitted to

[9] The Lord Ordinary was thus faced with a record upon which, rather than having

simple averments and counter averments of fault, contained in addition criticism of

evidence led by the Crown in the criminal trial and the content of a report obtained for the

first defender. It was not disputed that the latter report was not even used at the trial. It is

not surprising, in that puzzling state of the pleadings, that the Lord Ordinary reached the

[10] He observed that it was essential to focus on the circumstances of the particular case.

“The mere fact of a defender challenging the evidential basis of a conviction might be

unusual but that of itself would not…constitute special circumstances. In this case I

am however persuaded that the challenge…will involve the raising of a number of

difficult issues of mixed fact in law (sic)… I do not think these will be easy for a jury

to deal with or for a judge to instruct a jury on with confidence. The problem…raises

the distinct possibility of a muddled jury, a situation which is not consonant with the

It must be assumed that the Lord Ordinary accepted the “difficult issues of mixed fact and

law” that were proffered by the defenders in argument; no other issues having been

identified by him in his Note. Those difficulties, which the first defender had submitted

“would make the conduct of a jury trial unduly problematic”, were the onus of proof, the

differing civil and criminal standards of proof, and the fact that the nature of the defence

required “the examination of the emergence of new evidence which may cast doubt on the

reliability of the criminal conviction”. In this context, contrary to the pursuers’ submissions,

(infra), the court has little difficulty in understanding the Lord Ordinary’s reasoning on the

[11] The submissions were interrupted in limine by the court seeking to be addressed on

the relevancy of the averments about any omissions and deficiencies at the criminal trial.

Under some prompting by the court, underpinned by a question of how the case could be

remitted for jury trial in the face of these averments, the pursuers moved the court to

exclude these averments from probation (and to amend their own pleadings accordingly).

This motion was not opposed by the second defender, who was content that, if it were

granted, issues should be allowed. The first defender maintained opposition to both the

motion, except in so far as relating to the defence report, and the allowance of issues.

[12] An appellate court was entitled to interfere with a Lord Ordinary’s discretionary

decision if he had failed to give adequate reasons, if errors of law were disclosed in the

reasons that he did give, and if he had been “plainly wrong” in the exercise of his discretion.

The Lord Ordinary had given no explanation of the “difficult issues” of fact and law that

were said to arise. It was impossible to understand how the Lord Ordinary had exercised

his discretion. The court should therefore be “less reluctant than usual” to interfere with his

decision (Lai Wee Lian v Singapore Bus Service (1978) [1984] AC 729, Lord Fraser at 734 – 735).

[13] The Lord Ordinary had failed to recognise that the effect of the pursuers’ averment

of the conviction was simply to “reverse” the onus of proof. The civil proceedings did not

challenge the criminal conviction. The civil jury would have no regard to the evidence that

was led before the criminal jury, except insofar as it may be repeated before them. The

conviction was simply an adminicle of evidence, which raised an “inference of negligence”

(Stupple v Royal Insurance Co [1971] 1 QB 50, Buckley LJ at 76; Ameen v Hunter 2000 SLT 954

at 954 – 955; King v Patterson 1971 SLT (Notes) 40; Scottish Law Commission: Memorandum

on the Law of Evidence (no 46) (1980), para K10; Cronie v Messenger, unreported, Judge

MacAulay QC, 25 June 2004, para [26]; Hunter v Chief Constable of the West Midlands [1982]

AC 529, Lord Diplock at 543 – 544). The circumstances were no different from any other

case in which a defender did not accept that his criminal conviction reflected what had

[14] In so far as the Lord Ordinary had been persuaded that a successful defence before a

civil jury might undermine public confidence in the criminal jury system, he had erred in

law. The operation of the statutory presumption founded upon had not, in practice,

undermined public confidence (Wright v Paton Farrell 2006 SC 404, LP (Hamilton) at para

[19] ; Hunter v Chief Constable of the West Midlands (supra)).

[15] The Lord Ordinary had been plainly wrong to reach the conclusion that he did. The

case concerned a straightforward road traffic accident. The only practical question for the

[16] The Lord Ordinary’s judgment, being ex tempore, ought not to be subjected to an

overly critical textual analysis (McGraddie v McGraddie 2014 SC (UKSC) 12, Lord Hoffman at

para 30). The Lord Ordinary had correctly identified the important issue; that evidence may

be led that cast doubt on the reliability of the criminal conviction. The first defender

intended to lead evidence to rebut the presumption that he had committed the offence. It

would be “highly undesirable” if a civil jury returned a verdict in conflict with that of a

previous criminal jury. Such a verdict would undermine public confidence in the

administration of criminal justice and offend against the principle of legal certainty (Wright v

Paton Farrell (supra)). Those risks could be ameliorated only by the delivery of a reasoned

[17] The first defender intended to lead evidence, which had not been led at his criminal

trial, in order to point to deficiencies in the evidence at his criminal trial. The purpose of

doing so was not to challenge the conviction. Rather, the evidence was relevant to a proper

understanding of the context of the conviction and should be allowed in the interests of

fairness. It was not unusual to lead evidence that may be relevant for one purpose but

irrelevant for another (Dennison v Chief Constable of Strathclyde 1996 SLT 74).

[18] The requirement for the jury to be directed upon, and to consider the effect of, the

“new evidence” in the context of the statutory presumption as to the commission of the

offence would entail difficult and potentially confusing questions of shifting onus.

[19] All that the first defender wanted to do was to establish that the material in the new

road traffic reconstruction report was new and had not been dealt with at the trial. His

[20] The Lord Ordinary had sufficiently identified the issues canvassed and his Note

demonstrated a lawful exercise of his discretion. If he had erred, looking at the matter de

novo, it was plain that special cause existed. Certain propositions required to be taken into

account. Section 10 introduced a rebuttable presumption of fact. It did not limit the evidence

to prove the contrary. It was not competent to review a conviction in a civil process (Moore v

Secretary of State for Scotland 1985 SLT 38). The new evidence was admissible “at large” by

way of background or “incidentally” (Stupple v Royal Insurance Co (supra), Buckley LJ at 76)

to the circumstances of the conviction. It would be “unfair” to exclude it. It was at least

arguable that evidence could be led that the testimony at the criminal trial had been

incompetent. The new evidence was admissible as relevant to rebutting the presumption

and gave context to the conviction and ensured that the civil court was not left in the dark as

to the evidence led at the trial. This approach did not challenge the conviction although it

could cast doubt upon it. It was consistent with Buckley LJ in Stupple (supra), Cronie v

Messenger (supra), Lord Diplock in Hunter v Chief Constable of the West Midlands (supra) and

[21] If these propositions were accepted, it followed that there would be a serious risk

that a jury would become confused as regards the new evidence and the interplay between it

and the weight to be attached to it, in the context of whether the presumption were rebutted

on a balance of probability. A jury could be distracted by the differing standards of proof. It

was arguable that weight could be attached to the conviction itself. If there were an

argument about this, the case was not suitable for jury trial. The conviction was not

inconsistent with a finding of joint and several liability, even if the presumption were

rebutted. If it were rebutted, that was not inconsistent with a finding of fault against one or

both of the defenders. This was not, therefore, a simple matter for a jury.

[22] As already observed, the second defender was content with issues, in the event that

the averments relative to the evidence at the criminal trial were excluded. He adopted the

first defender’s submissions only in the event that the averments were allowed to remain on

[23] Section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968

“(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, …

(2) In any civil proceedings in which… a person is proved to have been

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

(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

[24] In the immediate aftermath of the introduction of the section, which follows the

identical English provision (Civil Evidence Act 1968 s 11, see Hunter v Chief Constable of the

West Midlands [1982] AC 529, Lord Diplock at 544), there was a concern about what effect

subsection 10(1) actually had. Lord Avonside explained (Caldwell v Wright 1970 SC 24 at 27)

that the fact that a person had been convicted of dangerous driving was not necessarily

evidence of negligence. It depended upon the facts upon which the conviction was based.

In allowing a proof before answer and refusing issues, he was heavily influenced by the then

[25] In February 1971, there was a flurry of activity in which it was argued that reliance

on the section might prejudice a pursuer’s right to a jury trial. Lords Milligan (Fardy v SMT

Co 1971 SLT 232) and Cameron (Gemmell v McFarlane 1971 SLT (notes) 36 followed Lord

Avonside in withholding relatively straightforward road traffic cases from jury trial. Lord

Milligan noted the divergence of opinion between Lord Denning MR and Buckley LJ in

Stupple v Royal Insurance Co [1971] 1 QB 50 on whether a conviction had probative value per

se. Lord Cameron had been concerned that, whereas there was a conviction for

drink/driving in his case, there were acquittals of reckless and careless driving.

[26] At the end of the same month, however, Lord Stott (King v Patterson 1971 SLT (notes)

40) reached a different decision. He explained that, by then, the court had had sufficient

experience of the practical operation of section 10. He concluded:

“It is well settled that special cause for refusing issues must be found within the

confines of the particular case and nothing has been put before me this morning to

suggest that any difficulty will arise which would constitute special cause for

declining to remit this very simple straightforward case to a jury”.

By the time Lord Dunpark (Garnett v Gowans 1971 SLT (notes) 77) followed Lord Stott later

that year, matters appeared to have settled down. It must certainly have been clear that the

averment of a conviction, and consequent reliance upon it to reverse the onus of proof, could

[27] The only effect of section 10 in a case such as the present is to allow the pursuers to

introduce the conviction into the proof and thereafter rely upon it to reverse the onus of

proof as between themselves and the first defender. The manner in which this ought to be

done is 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 is a coincidence between the proved libel and the averments, there

is no onus of proof on the pursuer. Thus, if the conviction involved driving at excessive

speed or a failure to heed road signs, in the event of a dispute the onus would be on the

defender to disprove these facts if they were reflected on record. Proof of the conviction

achieves no other purpose. Contrary to the view of Lord Denning MR in Stupple v Royal

Insurance Co (supra), but coincident with that of Buckley LJ, the conviction itself carries no

probative weight which requires to be balanced with new, or old, evidence which

[28] That being so, as Lord Stott put it in King v Patterson (supra), there is no special cause

revealed by mere reliance on section 10. Such reliance does not raise any difficult issue of

fact, law or a mixture of both. The jury will not be asked to review the soundness of the

criminal conviction. They will be told of its existence, since it must be proved in the civil

case, but proving that certain testimony was, or was not, led at the trial is irrelevant to proof

of the facts on record. Similarly, any contention about the admissibility of the evidence led

at the criminal trial has no bearing on the task of the civil jury. There is no question of

challenging a criminal conviction. That conviction stands. If the civil jury determine on the

evidence before them that the defender has demonstrated that he was not negligent, that

will be a matter entirely for them. There is no difficulty in this. The evidential basis of the

conviction will remain undisturbed and no problem of undermining public confidence or

[29] It follows from this that the first defender’s averments about: (a) obtaining a road

traffic reconstruction report after the trial; (b) there being deficiencies in the police report

relied upon at the trial; and (c) the existence of deficiencies in the defence expert report

(which was not in any event used at the trial) are irrelevant. They ought therefore to be

excluded from probation as should the equally irrelevant averments about the first

defender’s sentence and his previous convictions. Once cleared of this irrelevant material,

which was what the Lord Ordinary was faced with, the case returns to being a

straightforward road traffic case in which there is no special cause which would justify it

from being withheld from jury trial. The trial judge will have to direct the jury on the onus

being upon the first defender to prove that his crossing the road into the path of the pursuer

(which is the only negligence pled coincident with the conviction) was not due to his

negligence but that quoad ultra the onus is on the party seeking to prove negligence. That

should not pose any problem and is a frequent, if not common, feature in jury trial practice.

[30] The court will accordingly: (1) allow the record to be amended in the fourth article of

condescendence by deleting: (i) “He was subsequently sentenced to 5 years imprisonment”;

and (ii) the words from “The first defender is called upon…” to “…will be founded upon”;

(2) exclude from probation: (i) the first defender’s averments in answer to that article,

namely: (a) “Admitted that the defender was sentenced to 5 years imprisonment”; (b)

“Subsequent to the defender’s conviction…” to “…obtained by the defence”; (c) “The police

collision report…” to “…at the defender’s trial”; (d) “and sentenced to 5 years

imprisonment”; and (e) “The Defender’s convictions…” to the end of the answer; (ii) the

second defender’s averments in answer to that article, namely: (a) from “Not known and not

admitted that subsequent…” to “…will be founded upon”; (b) “A collision investigation

report…” to “…responsible for the accident.”; and (c) “He was sentenced…” to the end of

the answer”; (3) allow the reclaiming motion; (4) recall the interlocutors of the Lord

[31] In so determining the future procedure of the cause, the court is not prohibiting the

first defender from leading evidence, by way of general background, that his road

reconstruction report was instructed after the criminal trial. No doubt that will emerge

before the jury in normal course. What it is determining is that that fact (ie when particular

evidence was uncovered) is per se irrelevant to the proof of the facts of the accident with

which the jury will be concerned. In due course, the trial judge will direct the jury that they

must decide the case solely on the basis of the evidence which they have heard. If there is

evidence about the testimony adduced in the criminal trial, which there may be for a variety

of reasons, the judge may also have to direct the jury that the criminal conviction carries no

weight and that its only effect is on onus of proof; a matter which may well be of little

significance once all the evidence is out (Sanderson v McManus 1997 SC (HL) 55, Lord Hope

Scottish Court of Session Decisions