Death by driving motorist’s £500,000 damages appeal against GP over prescription drugs which ‘caused black-out’ dismissed 

Vincent Friel sued Dr Iain Brown for “negligence”, but a judge in the Court of Session dismissed the action as an “abuse of process”.

He challenged that decision on the basis that he was not seeking to attack his conviction, but to recover damages.

The Inner House of the Court of Session ruled that the action should not have been dismissed as an abuse of process, but refused the appeal on the merits.

‘Psychological injury’

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, heard that the pursuer was sentenced to three years’ imprisonment after being convicted following a trial in February 2016 of offences under sections 1 and 1A of the Road Traffic Act 1988. 

He had blacked out behind the wheel but his car, which had an automatic transmission, continued to travel through a set of red lights and struck two pedestrians on a pedestrian crossing, killing one and seriously injuring the other.

At trial he lodged a special defence of “automatism” and led evidence in support of his position that he suffered a “total loss of control of his actions”, which was rejected by the jury.

However, the pursuer raised a civil action claiming that he suffered a vaso vagal attack brought on by a sudden fall in blood pressure and heart rate, and that he was in a “state of unconsciousness” before the accident occurred on 18 January 2014.

He had been receiving treatment from the defender for hypertension, including the prescription of anti-hypertensive medication, Losartan, but in November 2013 he was prescribed an additional drug, namely Tildiem.

The pursuer claimed his loss of consciousness was the result of the combination of medications he was prescribed, in particular, that the rapid fall in his blood pressure was caused by the addition of Tildiem to his regime.

He alleged that the defender was negligent in prescribing the drug, and in failing to provide him with information about the risks of using it, and of using in combination with other drugs.

The pursuer sought reparation from the defender for “psychological injury” he sustained as a result of the accident and the “stress” of the trial and conviction.

He was also seeking to recover the cost for his defence in the criminal trial, for which he paid privately.

Additionally, the self-employed landlord and property developer claimed damages for “wage loss”, both in respect of the period he spent in prison and more generally, having lost his business and income.

‘Collateral challenge’

But the defender lodged a preliminary plea challenging the relevancy and specification of the action, arguing that the pursuer’s case was an “abuse of process”. 

The Lord Ordinary held that the pursuer’s action raised an issue which had been determined against him in criminal proceedings - that he had lost consciousness at the time of the accident, which ran contrary to the basis for the conviction. 

The action was a “collateral challenge” to the conviction, which was an abuse of process because of the public interest in preventing re-litigation of issues which had already been tried.

On appeal the pursuer maintained that the action was not a collateral attack on his conviction - he had raised the action to recover damages.

There had been no issue at the trial about the negligent prescription of medicine. 

If the argument that the pursuer had lost consciousness had been accepted by the jury, this would have extinguished any criminal responsibility.

The pursuer had separately lodged an application to the Scottish Criminal Cases Review Commission. 

If he was successful in this action, the evidential basis of his conviction would remain undisturbed and his conviction would stand unless and until the SCCRC referred the matter to the High Court and he was successful in an appeal.

The pursuer submitted that section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 entitled him to rebut what was only a “presumption” that he committed the offence.

‘Public policy considerations’

Delivering the opinion of the court, the Lord President said: “The action is not an abuse of process. It should not have been dismissed on that ground. The idea that an action could be summarily dismissed, on the basis of an abuse of process in advance of a decision on the Procedure Roll or before a proof or jury trial, arose from the Extra Division’s decision in Tonner v Reiach and Hall 2008 SC 1. 

“This case does not involve summary dismissal. The action progressed in the normal fashion to a Procedure Roll on the defender’s first plea-in-law to the relevancy of the pursuer’s averments (the second plea on the consequences of a person’s illegal conduct having ultimately been reserved until after proof). 

“The issue is one of relevancy, viz: can the pursuer succeed after proof in a case against the defender, for damages in respect of the negligent prescription of a drug, when a jury in the High Court has found it proved beyond reasonable doubt that the damages averred were not caused by the effects of the drug, but by the pursuer’s own (conscious) dangerous driving?”

As with the principle behind the plea of “res judicata”, which prevents the same issue being litigated repeatedly between the same parties on substantially the same basis, the public policy, equity and common sense considerations are the same when a jury in a criminal trial has found a particular fact proved beyond reasonable doubt and the convicted person seeks to challenge that fact in a civil process which involves a lesser standard of proof.

This policy was considered by the House of Lords in the “Birmingham Six” case of Hunter v Chief Constable [1982] AC 529, in which the abuse of process principle was used to prevent the use of a civil action to initiate a collateral attack on a decision of a criminal court as a matter of public policy. 

The policy arose again in Arthur JS Hall v Simons [2002] 1 AC 615, in which it was made clear that it was contrary to public policy to permit a collateral challenge in civil proceedings to a criminal conviction. If a convicted person wished to challenge a conviction he must first do so by way of appeal.

Lord Carloway added: “The public policy considerations are clear. There ought not to be two conflicting court decisions: a High Court jury determination that finds it proved beyond reasonable doubt that the drug, which the defender had prescribed, did not cause the pursuer to lose consciousness; and a Court of Session finding in an action raised by the convicted person that, on the balance of probability, it did. 

“It is different if there has, for example, been an acquittal and a pursuer seeks to prove on a balance of probability that the defender has committed the offence. A finding to that effect would not be inconsistent with the conviction.

“It is also different when the convicted person is the defender. In that event…section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 will apply. That section does not permit a convicted pursuer to make reference to his conviction, and then to rely upon its existence for his damages claim, with a view to using section 10(2) to rebut the presumption that the conviction was sound. Such a course would conflict with the public policy considerations already explored.

“For these reasons, although the reclaiming motion is in substance refused, the court will recall the interlocutor of the Lord Ordinary dated 22 March 2019, sustain the defender’s first plea in law and dismiss the action.”