Friday, February 12th, 2016

Jonathan Hall-Craggs and Others v The Royal Highland Show and Agricultural Society of Scotland & SEP Ltd [2016] CSOH 8

This sad case was a full house for Compass Chambers. Andrew Smith QC and Malcolm McGregor represented the pursuers. Kay Springham represented The Royal Highland Show and Agricultural Society of Scotland, the first defender. Calum Wilson represented SEP Limited, the second defender.

The case was a particularly tragic one, where a young boy died while at the Highland Show with his father – his family made up the pursuers.  The first defenders operated the Highland Show and the second defenders were in charge of the parking arrangements. The first defenders were convicted in December 2014 of a breach of the Health and Safety at Work etc Act 1974. An 8-day proof was to be heard in February 2016. The pursuer’s motion for summary decree against the first defender called before Lady Wolffe and this is her ex tempore judgement in note form.

She first sets out that “the threshold for success in a motion for summary decree is a high one:  the court requires to be satisfied that ‘there is no defence to the action, or part of it, disclosed in the defences’, and that the mischief toward which the rule is directed is delay on the part of dilatory defenders” as per Lord Rodger in Henderson v 3052775 Nova Scotia Limited, at paragraph 13. Following this, she considers the pursuer’s and first defender’s submissions before detailing her decision.

The pursuers advanced their motion on two bases. Firstly, they asserted the obviousness of the danger posed by the bollards having regard to their character and the nature of the ground on which they rested. Secondly, as a fall back, the conviction of the first defenders in December 2014 of an offence under section 3 of the 1974 Act.  It was submitted that the grounds of the conviction coincided with the bases of liability relied on in the civil proceedings, which reversed the onus of proof between the pursuers and the first defender.

In terms of the first defender’s pleadings, they did not aver that they had relinquished total control to the second defender. Mr Smith made reference to a document from 2005 and suggested that from the reference to “inspection” one could infer that the first defender had the necessary knowledge of the ‘obvious’ state of the bollard.

Ms Springham resisted the motion for summary decree on the behalf of the first defender. In terms of the two bases put forwards for the pursuers, it was not accepted that the state of the bollard posed an “obvious” danger. It was averred in the answers that the same bollard had been used for a number of years and there was never a problem prior to the accident  “such as to instruct any knowledge on the part of the first defender or from which any “obvious” danger might be inferred.”

Looking to the pursuer’s reliance on the conviction under the 1974 Act, this was not pled – if it was to become part of the pursuers’ case, the first defender intended to rely on section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act  1968.

“The manner in which the pursuers were using the conviction was unfair.  They were endeavouring to take advantage of it for the purposes of this motion, but by refusing to amend they were denying the first defenders the opportunity to make a proper reply.  They were trying to have their cake and eat it, too.”

Additionally, there was not a sufficient coincidence between the terms of the indictment and the bases of liability in the civil action. A different issue arose in the civil proceedings – it was based on common law and occupiers’ liability. However, Ms Springham submitted, as a fall back, if the conviction was relevant, the first defenders would rely on section 10(2) of the 1968 Act, read in line with the interpretation by the Inner House in Towers v Flaws & Another. In other cases cited by the pursuers, the convictions had all been admitted.  That was not the case here.

The first defenders offered to prove three things: that there was no foreseeable risk of injury; that they had taken steps to control and prevent the risk that arose; and that the first defenders had instructed and relied upon independent subcontractors, the second defenders.  If that were established, that would be a complete defence as accepted by Mr Smith (senior counsel for the pursuers).

Lady Wolffe accepted the first defender’s submission regarding the bollard and considered that the lack of incidents with the bollards for a number of years meant she was not prepared to accept that they posed an “obvious” a risk as suggested by the pursuers. In terms of the conviction, she was convinced that there was not the requisite similarity of issues “as between the conviction and the bases of liability in these proceedings, such as to enable the pursuers to succeed simply by reason of the fact of the conviction itself.” However, Lady Wolffe considered that even if she was wrong about that, the first defender made it clear that they would invoke section 10(2) of the 1968 Act to demonstrate that they did not commit the offence.

She was not satisfied based on the material before her that the pursuers met the high test required of them for this motion, and so their motion for summary decree was refused.

A copy of the Note by Lady Wolffe is available here.

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