[2016] CSOH 8




In the cause






Pursuer:  Andrew Smith QC et McGregor;  Anderson Strathern LLP

First Defenders:  Springham;  bto

Second Defenders:  Wilson;  Clyde & Co


14 January 2016

[1]        This is a very tragic case involving the death of a young boy attending the Highland Show with his father.  A concrete bollard in the car parking area toppled or was pulled over, resulting in the little boy’s death.  His family are the pursuers and have raised an action against the first defenders, who operated the highland show, and against the second defenders, who were in charge of the car parking arrangements. The first defenders were convicted last December of breach of the Health and Safety at Work etc Act 1974 (“the 1974 Act”).  A proof of eight days is at last to be heard in this Court in February 2016.


[2]        The matter called before me on the pursuers’ motion for summary decree against the first defenders.  After I ruled on the matter, I was requested to produce my ex tempore judgement in note form and which I now do.  While the second defenders were in attendance by reason of other motions directed against them, those were not insisted in.  Having regard to the terms of the motion for summary decree (being directed against only the first defenders), the second defenders had no submissions to make in respect of that matter.

[3]        I am grateful to parties for their full submissions, including the written submissions lodged on the morning that this motion first called.  I have considered those submissions, the pleadings and the additional materials provided to me.  Parties should take it as no discourtesy if my decision is less detailed than the submissions presented to this court.


Test for motion for summary decree
[4]        I remind myself that the threshold for success in a motion for summary decree is a high one:  the court requires to be satisfied that ‘there is no defence to the action, or part of it, disclosed in the defences’, and that the mischief toward which the rule is directed is delay on the part of dilatory defenders (see Lord Rodger in Henderson v 3052775 Nova Scotia Limited 2006 SC(HL) 21, at paragraph [13]).


Pursuers’ submissions
[5]        For the purpose of the motion, the two bases on which the pursuers advance their motion are (i) what is asserted to be the obviousness of the danger posed by the bollards having regard to their character and the nature of the ground on which they rested;  and (ii) as a fall back, the conviction of the first defenders in December 2014 of an offence under section 3 of the 1974 Act (“the conviction”).  Reference was made to section 10(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (“the 1968 Act”).  It is contended that the grounds of the conviction coincide with the bases of liability relied on in these civil proceedings.  The effect of that was to reverse the onus of proof as between the pursuers and the first defenders.  It was also contended that the first defenders fail to explain away their conviction.

[6]        The pursuers’ senior counsel invited me to have regard to the conviction of the first defenders notwithstanding that there is no reference to it in the pleadings (I accept that is a motion for summary decree I may have regard to matters extraneous to the pleadings).  The pursuers have had a minute of amendment received and in which they refer to, and found on, the conviction.  However, as was explained before me ‑ and apparently repeating submissions made to a different Lord Ordinary the week before ‑ is that the pursuers are not minded to move their minute because of their concern as to what the first defenders might introduce by way of factual averments to answer the pursuers’ reliance on the conviction.  This was out of concern for the possible impact on the proof of any enlargement of the issues.  An eight‑day proof is fixed for February 2016.  The first defenders’ trial extended to nearly three weeks.  If the pursuers moved their minute of amendment, the pursuers would not be able to control the scope of the answers for the first defenders.

[7]        In relation to certain features of the first defenders’ pleadings, it was argued that they had failed to aver that they had ceded total control to the second defenders.  Under reference to a document dating from about 2005, some three years before the accident, it was suggested that from the reference there to “inspection” by the first defenders, it could be inferred the first defenders were thereby fixed with the necessary knowledge of the (it is asserted) “obvious” state of the bollards.


[8]        The pursuers’ senior counsel had seen the first defenders’ written submissions in advance of the hearing.  He noted the first defenders’ proposed reliance on section 10(2) of the 1968 Act.  He argued that the proposed use, in effect to open up the conviction, was impermissible.  That provision had been intended for a more limited use, such as to allow reliance on a conviction to be overcome in civil proceedings by proof of, for example, an incompetent defence or because there was more information which came to light and which post‑dated the conviction founded upon.

[9]        The pursuers’ senior counsel did not insist on his arguments about abuse of process.  He did not move his motion for interim damages.


The first defenders’ submissions
[10]      The first defenders strenuously resisted the motion for summary decree.

[11]      With reference to the two bases relied upon for the purposes of the motion for summary decree, it was not accepted that the state of the bollards posed any “obvious” danger.  Rather the reverse: as was averred in the answers, the same bollards had been used on the same ground for a number of years and there was never any issue or prior problem such as to instruct any knowledge on the part of the first defenders or from which any “obvious” danger might be inferred. In relation to the pursuers’ reliance on the conviction, this was not in the pleadings and, standing the pursuers’ position, would not form part of the pleadings.  If the conviction became part of the pursuers’ case, the first defenders proposed to rely on section 10(2) of the 1968 Act as they are entitled to do.

[12]      The manner in which the pursuers were using the conviction was unfair.  They were endeavouring to take advantage of it for the purposes of this motion, but by refusing to amend they were denying the first defenders the opportunity to make a proper reply.  They were trying to have their cake and eat it, too.

[13]      In relation to section 10(2), the first defenders’ primary position was that, contrary to the pursuers’ contention, there was no sufficient coincidence between the terms of the indictment (containing an infringement under section 3 of the 1974 Act) and the bases of liability in this civil action.  By reason of the reverse onus under section 40 of the 1974 Act, and the terms of the defence to be proved, that was a different issue than arose in these civil proceedings, which was based on common law and occupiers’ liability.

[14]      If that was correct, so the first defenders’ argument went, the conviction and section 10(1) of the 1968 Act did not assist the pursuers.  Any amendment in those terms would be to no avail.  As a fall back, if the conviction were relevant, then the first defenders proposed to rely on section 10(2) of the 1968 Act.  It was argued that the pursuers’ reading of section 10(2) was too narrow.  Section 10(2) was broader in its terms.  The observations of the court in Towers v Flaws and Anr [2015] CSIH supported this broader reading.  In other cases cited by the pursuers, the convictions had all been admitted.  That was not the case here.  It was open to the first defenders, so the argument went, to prove that they did not commit the offence in question.  The first defenders offer to prove that:  (i) there was no foreseeable risk of injury;  (ii) that they had taken steps to control and prevent the risk that arose;  and (iii) that the first defenders had instructed and relied upon competent independent subcontractors, namely the second defenders.  If that were established, that would be a complete defence.  (A proposition I understood the pursuers’ senior counsel to accept.)

[15]      This is not a case where the mischief existed and against which motions for summary decree were directed.  The first defenders had not been dilatory.  They have been consistent in their position that they do not accept that they committed the offence of which they have been convicted.  The first defenders do have a defence, as indicated above.  It is their position that any liability attaches solely to the second defenders.  The motion for summary decree should be refused.


[16]      The test that a pursuer must satisfy in order to succeed in a motion for summary decree is a high one.  In respect of the asserted danger of the risk posed by the bollards, in response to a question from the bench, the pursuers’ senior counsel accepted that this was a weakness in this part of the argument.  I agree.  In the light of the first defenders’ averments about the use of these bollards without incident for a number of years, and in the absence of any other information, I am not prepared to accept the characterisation of the risk they posed as “obvious” for the purpose of this motion.  (This is, of course, only a provisional view and one that does not bind the judge hearing the evidence at proof.)

[17]      What, then, to make of the conviction?

[18]      I am not persuaded that there is the requisite identity of issues as between the conviction and the bases of liability in these proceedings, such as to enable the pursuers to succeed simply by reason of the fact of the conviction itself.  Even if I am wrong on that, and there is such an identity of issue such as to bring section 10(1) into play, in the particular, if unusual, circumstances here, the first defenders have made their position clear that they are seeking to invoke section 10(2) to demonstrate that they did not commit the offence.

[19]      I do not accept the pursuers’ submission that section 10(2) is to be narrowly construed.  Section 10(1) of the 1968 Act introduced the benefit to a party of being able to rely to advantage on a conviction.  It reverses the onus onto the convicted party and, absent that onus being discharged, the subject matter of the conviction is then taken as proved.  That is the function of section 10(1).  However, in my view, there is a concomitant right afforded to the ”convicted” party facing such a case by section 10(2) to try to rebut that onus.  In other words, the convicted party may endeavour to show that they did not commit the offence which is the subject-matter of the conviction.  (That is not the same as showing that they were wrongly convicted, and that is why, in my view, the Inner House in Towers held as irrelevant averments which had that as their object.)  The scope of what a party endeavouring to displace the onus placed on them by section 10(1) is entitled to prove must, in my view, be commensurate with the whole subject matter of the conviction itself.  If it were otherwise, and the scope of what might be permissible under section 10(2) were limited ‑ as the pursuers say it is ‑ there would be an inherent unfairness to the convicted party.

[20]      Having regard to the purpose and function of section 10(2) of the 1968 Act, I am not prepared to read into it any qualification of what the convicted party may offer to prove for the purpose of meeting the reverse onus placed upon them by section 10(1).

[21]      Further, in my view, the first defenders have raised certain issues in their pleadings (in particular, their case as regards their instruction of the second defenders), which, if proved, would afford them a defence to this action;  a proposition which the pursuers’ senior counsel appeared to accept.  That is sufficient for the purposes of meeting a motion for summary decree.

[22]      I am not satisfied at this stage, on the whole material before me, that the pursuers have succeeded in meeting the high test required of them for this motion, and I refuse their motion for summary decree.  As the motion for interim damages was not insisted in, I make no order on that matter.