Summary decree granted in personal injury action against man convicted of ‘culpable and reckless’ conduct

A sheriff granted summary decree after ruling that that the defender, who pled guilty to “culpably and recklessly” punching through the glass window of the door with a “total disregard for the consequences”, failed to put forward a proper defence to the claim.

Sheriff Katherine Mackie heard that the pursuer Kyle Moir was inside Pino Pizza in Lossiemoiuth on 6 April 2014 when the defender John Mamsie tried to enter the locked premises.

The defender punched one of the glass door panels, which shattered and shards of glass lodged in the pursuer’s eye, as a result of which he suffered permanent impairment to his sight.

Following the incident the defender was charged on indictment and later pled guilty to “culpably and recklessly punching through the glass window of the door of the premises with a total disregard for the consequences” whereby glass struck the pursuer on the face and lodged in his eye whereby he was seriously injured.

The pursuer raised an action for damages claiming that as a result of the actions and fault of the defender he suffered loss, injury and damage, but the defender claimed he was “provoked” and became “intolerant” as a result of the conduct of the pursuer and averred that the owner of the premises failed to fit toughened safety glass to the glazed panels of the door.

However, the pursuer lodged a motion for summary decree against the defender with the proof or jury trial restricted to quantum and liability of the third party premises owner to the defender, on the basis that the defender had not disclosed a proper defence to the action in the closed record.

On behalf of the pursuer it was submitted that the facts in the criminal case and the present civil claim were “identical”.

The defender required to prove, on balance of probabilities, that he did not commit the offence complained of, but that would be “a very difficult task given the plea of guilty”.

It was argued that there was “nothing on record to give any reasonable prospect of the defender showing that it was more likely than not that he did not commit the deliberate act resulting in the pursuer’s injury”.

For the defender it was submitted that he did have “real prospects of success” in his defence to the action and that there was sufficient specification to counter the pursuer’s criticisms.

It was argued that the defender had “no delictual intention” and that he was entitled to expect that the premises would be safe and in accordance with the law, which was “sufficient to allow the defender to test liability”.

However, the sheriff granted the pursuer’s motion for summary decree restricting further enquiry to the issues of quantum and any apportionment of liability as between the defender and third party.

In a written judgment, Sheriff Mackie said: “It is significant to note that in his answers the defender admits the conviction for culpable and reckless conduct. Having done so, and having regard to the terms of the charge to which he pled guilty, it is less than candid to aver that it is not known and not admitted that shards of glass struck the pursuer’s face.

“In terms of section 10(2)(a) of the Law Reform (Miscellaneous Provisions) Scotland Act 1968 where a party in a civil action is proved to have been convicted of an offence he is presumed to have committed the offence ‘unless the contrary is proved’.

“The pursuer relies upon the fact, which is not denied, that the defender struck, or, as was libeled on indictment, punched a glass panel in the door of the premises whereby the glass shattered and the pursuer suffered injuries. That is the basis of the averments on liability and it was the basis of the conviction of the defender following the incident.

“What the defender pleads is that, although acknowledging that he behaved in the manner averred by the pursuer, the pursuer would not have sustained injury if the third party had installed toughened safety glass in the door panel. While that might offer an argument for apportionment with the third party, and I express no view as to the likelihood of success of such an argument, it does not in my opinion offer the defender a defence to the pursuer’s claim.”

She concluded: “It was incumbent on the defender to aver and in due course show that incident occurred without fault on his part. While he has made some averments about what might have happened if toughened safety glass had been fitted, which might suggest some fault on the part of the third party, it does not appear to me that these averments demonstrate that he has a defence to the claim by the pursuer that the incident, and thus the injury, were caused, at least in part, by his fault. Having scrutinised the pleadings and considered the other material available it does not seem to me that the defender has demonstrated any realistic prospect of discharging the onus of proof imposed upon him by section 10(2) of the 1968 Act.”