Jonathan Hall-Craggs and Others v.The Royal Highland Show and Agricultural Society of Scotland and another (2016)
A motion for summary decree made by the pursuers in a fatal case was refused by the Court of Session, despite the fact that the first defenders had been found guilty of a criminal offence which had led to the death of a three year old boy.
Ben Craggs had been attending the Royal Highland Show with his father when a 148kg concrete bollard in the car park, toppled over onto him and caused him to suffer fatal head injuries. The Agricultural Society were convicted of a breach of the Health & Safety at Work Act 1977, in failing to ensure that the moveable bollards were maintained in such a condition as to have prevented the risk of them overturning. The Society was fined £100,000.
Ben's family (the pursuers) raised a civil action in respect of his death against both the Society (the first defender) and also the owners of the car park (the second defender), and argued that decree ought to be awarded on the basis of the criminal conviction. Whilst the pursuers had not pled this conviction in their civil claim, they argued that the Court ought still to take it into account when considering their motion.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 provides that a party in civil pleadings is permitted to admit as evidence the fact that another party has been convicted. Despite a criminal conviction not being binding upon a civil court, under the terms of the Act, where a person has been proved to have been found guilty of a criminal offence, they shall be taken to have committed that offence unless the contrary is proved. Section 10(2) of the Act allows the convicted individual or body the opportunity to prove that he had not committed the offence.
The case called before Lady Wolffe who stressed that the test for summary decree is an extremely high one, noting that the Court requires to be satisfied that "there is no defence to the action, or part of it, disclosed in the defences". The pursuers' motion relied heavily upon the first defender's conviction, despite the fact that it was not averred in their pleadings. In addition, they contended that the first defenders had not addressed the "obvious danger" posed by the bollards in their written case.
The first defenders opposed the motion on two grounds. In the first instance, they argued that they had offered to prove that they had not committed the offence in keeping with Section 10(2) of the Act. They contended that they had raised issues in their pleadings which provided them with a full defence – that liability attached solely to the second defender. In addition, they pointed out that there was a different onus of proof for the purposes of the criminal case and those of the civil action in cases involving breaches of health and safety (that of reasonable foreseeability).
In refusing the motion, Lady Wolffe explained that the mere fact of a conviction does not enable a party to succeed in and of itself. She accepted that if the first defender's case was accepted then they would have a defence to the action. Although not a factor in this case, she also had regard to situations whereby "dilatory" defences were submitted, pointing out that this would generally result in a successful motion for summary decree.
Whilst this case illustrates the importance of pleading a full and comprehensive defence at the earliest opportunity and the dangers to defenders in not doing so, defender agents and their clients can take some comfort in the fact that the civil courts may not place undue weight on a criminal conviction and rather, in keeping with the Act, will allow a convicted individual or body the chance to prove that the offence was not committed.