Family of death by dangerous driving victim granted civil jury trial in damages claim

The Inner House of the Court of Session allowed an appeal by relatives of the late Moira Towers against a judge’s decision that the defender’s reliance on new evidence which could cast doubt on the reliability of his conviction raised “difficult issues of mixed fact and law”, which meant there was “special cause” to withhold the personal injuries action from a civil jury.

Following the reclaiming motion being granted in 2015 the Inner House remitted the matter to the Outer House, but ultimately no civil jury trial took place and the action was resolved extrajudicially – meaning the judgment has only now been published.

‘Death by dangerous driving’

The then Lord Justice Clerk, Lord Carloway, sitting with Lady Dorrian and Lord Malcolm, heard that the pursuers David Towers and other family members raised an action for damages against the first defender Erland Flaws, who was sentenced to five years’ imprisonment in 2013 after being found guilty of causing the death of 65-year-old Mrs Towers and her 64-year-old passenger Anne Stanger, 64 by dangerous driving.

The court was told that, after an evening playing bingo on 26 February 2012, Mrs Towers was driving west along the A965 Kirkwall to Stromness Road, approaching a staggered crossroads junction. 

The first defender was speeding along the same road in the opposite direction and the collision occurred when the second defender Stephen Proctor emerged from the junction ahead of him and the first defender’s car crossed into the path of the deceased.

The pursers’ claim was based on the defenders’ “breach of duty to take reasonable care”.

They also averred that, following a trial at the High Court in 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, presumably to found upon section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 which reverses the onus of proof in certain circumstances.

The first defender admitted his conviction, but claimed that the second defender was at fault by forcing 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 first defender denied committing the offence, referring to a road traffic reconstruction report obtained after the criminal trial, which identified 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. 

But the second defender denied that he was at fault, claiming that he pulled out from the junction and was struck by the first defender’s car which was “driving at high speed”.

Proctor referred to the police report which concluded that Flaws was responsible for the accident, but the first defender’s position was that the police report was “inadmissible” and should not be admitted to probation.

The pursuers’ case against the second defenders was based only on the hypothesis that the first defender’s account of the accident was well-founded.

 ’Muddled jury’

However, the Lord Ordinary refused the pursuers’ motion for the action to be tried by a jury after ruling that the case involved a number of “difficult issues” which raised the distinct possibility of a “muddled jury”, a situation which was “not consonant with the interests of justice”.

The first defender had submitted the issues “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”.

The pursuers’ challenged the judge’s decision, arguing that the had given no explanation of the “difficult issues” of fact and law that were said to arise, meaning it was “impossible to understand” how the Lord Ordinary had exercised his discretion.

It was submitted that 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 conviction was simply an adminicle of evidence, which raised an “inference of negligence”.

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”, as the operation of the statutory presumption founded upon had not, in practice, undermined public confidence.

It was also argued that the Lord Ordinary had been “plainly wrong” to reach the conclusion that he did, as the case concerned a “straightforward road traffic accident” and the only practical question for the jury was the apportionment of blame between the two defenders.

‘No special cause’

Allowing the reclaiming motion, the appeal judges observed that that the averment of a conviction and consequent reliance upon it to reverse the onus of proof, could not, without more, constitute “special cause”.

Delivering the opinion of the court, the Lord Justice Clerk said: “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.

“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 uncertainty will arise.

“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.” 

Lord Carloway added: “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 on us 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.

“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.”