Motion for summary decree in civil action over boy’s death at Royal Highland Show which sought to rely on health and safety conviction refused

A judge in the Court of Session ruled that the pursuers failed to meet the “high test” required of them for their motion to succeed.

Lady Wolffe heard that the boy died in 2008 after a concrete bollard in the car parking area toppled or was pulled over.

The pursuers Jonathan Hall-Craggs and family raised an action against the first defenders, The Royal Highland Show and Agricultural Society of Scotland, who operated the highland show, and against the second defenders, SEP Limited, who were in charge of the car parking arrangements, and a proof of eight days is to be heard in February 2016.

The court was told that the first defenders were convicted in December 2015 of breaching section 3 of the Health and Safety at Work etc Act 1974 and the pursuers sought to rely on the conviction and the “obviousness” of the danger posed by the bollards in advancing the motion for summary decree.

Senior counsel for the pursuers invited the court to have regard to the conviction of the first defenders, notwithstanding that there is no reference to it in the pleadings, and argued that the grounds of the conviction “coincided” with the bases of liability relied on in the civil proceedings.

Reference was also made to section 10(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 and it was submitted that the effect of the conviction was to “reverse the onus of proof” as between the pursuers and the first defenders.

It was contended that the first defenders failed to explain away their conviction and that they had failed to aver that they had ceded total control of the parking area to the second defenders.

However, the first defenders “strenuously resisted” the motion for summary decree.

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 problem with them.

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, but if the conviction became part of the pursuers’ case the first defenders proposed to rely on section 10(2) of the 1968 Act and prove that they did not commit the offence.

The first defenders’ primary position was that, contrary to the pursuers’ contention, there was “no sufficient coincidenc”e 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.

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”.

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, the judge was not prepared to accept that they posed an “obvious” risk for the purpose of the motion.

Nor was she persuaded that there was the requisite identity of issues as between the conviction and the bases of liability in the civil proceedings, such as to enable the pursuers to succeed simply by reason of the fact of the conviction itself.

In her written note, Lady Wolffe said: “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.

“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.

“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).”

She added: “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.

“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.”