Death by driving motorist’s damages claim against GP over prescription drugs ‘which caused black-out’ dismissed 

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

‘Psychological injury’

Lady Carmichael heard that the pursuer was convicted following a trial in February 2016 of offences under sections 1 and 1A of the Road Traffic Act 1988, after driving a car which 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 it, which was presumably 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 had blacked out 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 second 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.

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

Additionally, he claimed damages for “wage loss”, both in respect of the period he spent in prison and more generally.

‘Collateral attack’

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 defender’s position was that, in order to succeed in proving his case, the pursuer would have to prove that he suffered a vaso vagal attack - a finding which would undermine the verdict of the jury convicting him.

It was argued that the jury must have rejected his special defence, and been satisfied beyond reasonable doubt that he did not suffer such an attack.

Therefore, to allow the pursuer to advance the case pled would amount to a “collateral attack” on his conviction.

The court was told that there was no Scottish case in which such a course had been followed in such circumstances, or in which such a collateral attack had been found to be an abuse of process.

On behalf of the pursuer, it was submitted that all the pursuer was doing was seeking to prove that he had not committed the offence of which he had been convicted, which section 10(2)(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 entitled him to do.

If he was entitled to do so by virtue of a statutory provision, that could not possibly be an abuse of process.

It was also argued that the power of the court to exercise its inherent jurisdiction to dismiss an action summarily as an abuse of process was a “draconian” one which should be exercised as a “last resort”.

‘Abuse of process’

However, the court dismissed that the action after concluding that the case raised an issue that was previously determined adversely to the pursuer in criminal proceedings.

The judge observed that the first case supporting the proposition that a collateral attack in civil proceedings on a conviction was an abuse of process was that of Gerard Hunter, one of the “Birmingham Six” pub bombers, whose claim for damages against the police for allegedly assaulting him was thrown out - a decision which had been followed and applied on a number of occasions.

She noted that, in the case of Clarke v Fennoscandia Ltd (No 3) 2005 SLT 511, the Inner House was of the view that the court had an inherent power to strike out a claim as an abuse of process specifically in the context of a proliferation of litigations about essentially the same issues.

In a written opinion, Lady Carmichael said: “What underlies the idea that a collateral challenge to a conviction is an abuse of process is the public interest in preventing the relitigation of issues that have already been tried. That interest is particularly powerful when the result of the earlier proceedings has been a criminal conviction. 

“I am satisfied that Scots law recognises that it is contrary to public policy to allow a civil action to proceed in which the pursuer mounts a collateral challenge to his conviction. I am also satisfied that this is not confined to cases in which that is the sole purpose of the action.

“The ill-effects of the relitigation of the issue are in no way mitigated by the genuine intention of the pursuer to obtain damages. It may be impossible to tell what the pursuer’s intention is. 

“I am therefore satisfied I should dismiss the action as an abuse of process. I am satisfied also that I have power to dismiss it on that basis.” 

The judge added that she did not consider that the operation of section 10 of the 1968 Act assisted the pursuer. 

She explained: “The doctrine of abuse of process operates separately from, but consistently with, the rules of evidence provided in the 1968 Act…I accept that there is some risk inherent in the operation of section 10 that the basis for a conviction will be undermined. It is one that appears to have been accepted because of the potential for liability to result from the operation of section 10(1). 

“Parliament allowed for rebuttal in circumstances where the civil proceedings had the potential to render the convicted person (or someone else liable to make reparation for his acts or omissions and who had not been a party to the criminal proceedings) liable to pay money, because that was additional to the penal consequences of the conviction. 

“In the context of section 10(2) it would be irrelevant for a defender to plead that his representation at trial had been defective or that he had been wrongly convicted for any other reason. It would, however, be relevant for him to seek to prove that he had not committed the acts libelled in the indictment, so far as that was relevant to whether he was or was not negligent. 

“That demonstrates that using section 10(2) involves no direct attack on a conviction. A civil court cannot, by virtue of section 10(2), be asked directly to find that a subsisting conviction is wrong.”