KYLE MOIR AGAINST JOHN JAMES FORDYCE LYNDALE MEMSIE & Anor [2017] ScotSC 16 (24 March 2017)

KYLE MOIR AGAINST JOHN JAMES FORDYCE LYNDALE MEMSIE & Anor [2017] ScotSC 16 (24 March 2017)

The defender, having admitted his conviction for culpable and reckless conduct, is presumed to have committed the offence under section 10(2) of the 1968 Act. He has not averred any facts to rebut this presumption or to show that he did not commit the offence. Arguments about the type of glass are relevant only to apportionment with the third party, not to liability to the pursuer. The defender has no realistic prospect of successfully defending the claim. Summary decree is therefore granted in favour of the pursuer, with further enquiry restricted to quantum and apportionment between defender and third party.

Citation
[2017] ScotSC 16
Parties
Pursuer: Kyle Moir; Defender: John James Fordyce Lyndale Memsie; Third Party: Kicham Cherif Collinbrae
Jurisdiction
Scotland
Judgment Date
24 March 2017
Procedural Posture
Personal Injury Damages for Personal Injuries / Opposed Motion for Summary Decree Under Ordinary Cause Rules 17.2
Outcome
Summary decree granted in favour of the pursuer against the defender; further enquiry restricted to quantum and apportionment between defender and third party; all questions of expenses reserved.
Legal Topics
Summary Decree, Rebuttable Presumption From Criminal Conviction, Liability for Personal Injury, Apportionment of Liability
Tort Personal Injury Civil Procedure Summary Decree Rebuttable Presumption From Criminal Conviction Liability for Personal Injury Apportionment of Liability

Case Brief

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Parties

Kyle Moir

Pursuer

John James Fordyce Lyndale Memsie

Defender

Kicham Cherif Collinbrae

Third Party

Procedural Posture

Personal Injury Damages for Personal Injuries / Opposed Motion for Summary Decree Under Ordinary Cause Rules 17.2

Legal Issues

  1. 1 Whether the defender has a real prospect of successfully defending the claim given his criminal conviction for culpable and reckless conduct
  2. 2 Whether the defender can rebut the presumption under section 10(2) of the Law Reform (Miscellaneous Provisions) Scotland Act 1968 that he committed the offence
  3. 3 Whether the type of glass in the door is relevant to the defender's liability to the pursuer

Ratio Decidendi

The defender, having admitted his conviction for culpable and reckless conduct, is presumed to have committed the offence under section 10(2) of the 1968 Act. He has not averred any facts to rebut this presumption or to show that he did not commit the offence. Arguments about the type of glass are relevant only to apportionment with the third party, not to liability to the pursuer. The defender has no realistic prospect of successfully defending the claim. Summary decree is therefore granted in favour of the pursuer, with further enquiry restricted to quantum and apportionment between defender and third party.

Court Disposition

Summary decree granted in favour of the pursuer against the defender; further enquiry restricted to quantum and apportionment between defender and third party; all questions of expenses reserved.

Orders

  • Grants pursuer's motion number 7/9 of process for summary decree against the defender.
  • Restricts further enquiry to quantum and apportionment of liability between defender and third party.