A driver convicted of causing death and serious injury by dangerous driving has failed in attempt to bring a claim against his GP, whom he blamed for prescribing medication that caused him to lose consciousness at the wheel.
Three judges in the First Division of the Court of Session held that the Lord Ordinary had been wrong to dismiss summarily, as an "abuse of process", the action by Vincent Friel against Dr Iain Brown, but that the case was irrelevant on public policy considerations, as there could not be conflicting decisions in the criminal and civil courts.
The pursuer had struck two pedestrians after going through a red light at a pedestrian crossing. At his trial for the road traffic offences he lodged a special defence of automatism in that he had blacked out and was unconscious at the time as a result of a medical condition. In convicting him, the jury had rejected the plea. He appealed unsuccessfully.
In the present case he averred that the defender had negligently prescribed a drug, Tildiem, that caused him to lose consciousness while driving. He argued that s 10(2) of the Law reform (Miscellaneous Provisions) (Scotland) Act 1968, which provides that in civil proceedings in which a person has been proved to have been convicted of an offence, he shall be taken to have committed that offence unless the contrary is proved, entitled him to rebut what was only a presumption that he committed the offence.
The Lord Ordinary regarded the claim as an abuse of process, in raising an issue that had been determined against him in criminal proceedings, and the appropriate order as summary dismissal. On appeal the pursuer argued that there was no identity of issues, since there had been no issue at his trial about the negligent prescription medicine. He was not challenging the conviction, the evidential basis of which would remain undisturbed. If there was an identity of issues, s 10(2) was engaged, and permitted him to rebut the presumption arising from the conviction.
Delivering the opinion of the court, Lord President Carloway, who sat with Lords Menzies and Drummond Young, said the action was not an abuse of process and should not have been dismissed on that ground. It did not involve summary dismissal: it had progressed to the procedure roll in the normal way, and the issue was one of relevancy.
While the case was not one for the principle of res judicata, "Nevertheless, the public policy, equity and common sense considerations are the same when a jury in a criminal trial has found a particular fact proved beyond reasonable doubt and the convicted person seeks to challenge that fact in a civil process which involves a lesser standard of proof."
He ruled: "The public policy considerations are clear. There ought not to be two conflicting court decisions: a High Court jury determination that finds it proved beyond reasonable doubt that the drug, which the defender had prescribed, did not cause the pursuer to lose consciousness; and a Court of Session finding in an action raised by the convicted person that, on the balance of probability, it did. It is different if there has, for example, been an acquittal and a pursuer seeks to prove on a balance of probability that the defender has committed the offence. A finding to that effect would not be inconsistent with the conviction."
It was also different when the convicted person was the defender. Section 10(2) "does not permit a convicted pursuer to make reference to his conviction, and then to rely upon its existence for his damages claim, with a view to using s 10(2) to rebut the presumption that the conviction was sound. Such a course would conflict with the public policy considerations already explored".
The correct order was therefore to dismiss the action as irrelevant.