Ford v Lewis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE KARMINSKI |
| Judgment Date | 26 January 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0126-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 1971 |
[1971] EWCA Civ J0126-4
Lord Justice Davies
Lord Justice Edmund Davies and
Lord Justice Karminski
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Judgment of Mr. Justice Veale.
Sir Joseph Molony. Q. C. and Mr. Christopher Whybrow (instructed by Messrs Gregory, Rowcliffe & Co., Agents for Messrs Scott & Fowler Gloucester) appeared on behalf of the Appellant
Mr. O. B. Popplewell, Q. C. and Mr. Graeme Hamilton (instructed by Messrs Wellington & Clifford, Gloucester) appeared on behalf of the Respondent (Defendant).
This is an appeal by the Plaintiff from a judgment of Mr. Justice Veale given at Gloucester on the 29th July last whereby he dismissed the Infant Plaintiff's claim for damages for negligence.
The accident, which was a road accident, had happened on the 18th March, 1960, on the A.38 road from Gloucester to Bristol. It happened at about 10.30 in the evening, dark and misty, when the Plaintiff, who was at that time 5 years of age, was walking homewards with her mother and father. Putting it very shortly, the Defendant, driving his employers' van or lorry – it is variously described; I do not know which it was, and it does not matter – was travelling in the same direction, that is to say. in a southerly direction, along this road; and about where the road along which the Plaintiff and her father and mother were going to turn down abutted, a road called Orchard Lane, the Defendant's van came into collision with them. The Plaintiff's mother was not severely injured, the Plaintiff's father sustained a broken leg, and the Plaintiff herself suffered more serious Injuries.
It will be apparent, from what I have just said as to the dates, that the trial took place over ten years after the occurrence of the accident. We have had no proper explanation of that appalling delay in this Court at all. It is the fact, as often happens, that the writ for this little girl was not issued until nearly the expiration of the statutory three years and, again as often happens, the writ was not served for nearly another twelve months. That feature is, unfortunately, not uncommon in these cases. But what we have no satisfactory explanation of is the fact that theaction took another six year a before it came en for trial, an absolutely disgraceful state of affairs. It is true that there were interlocutory applications. There was an application to dismiss the action which the father and the mother brought arising out of this accident for want of prosecution, which succeeded. There was also an application to dismiss the child's action for want of prosecution, which succeeded before the District Registrar, failed before the Judge in Chambers, and failed in this Court. But, really, this is one of the most disgraceful stories of delay which, In what would have been in reasonable time a fairly simple running-down action, has made the evidence hopelessly stale and has meant that such witnesses as there were could not possibly have a clear recollection of what took place. As an instance of that, a police officer, who was the only independent witness, who came on the scene had no longer his notebook, as it had been destroyed. However, that is the history, the deplorable history, of this action.
I do not want to go into any detail as to the facts because, in view of the conclusion at which the majority of this Court has arrived, there will have to be a new trial. Therefore it would not be right for me to be thought to be expressing any sort of opinion as to the merits of the case on the facts. I will merely recite what appears to have been the picture of the accident.
As I have said, these three people, Mr. and Mr. Ford and this child of 5, were walking home after an evening out. They had all been out separately. The little girl had, apparently by herself, but I do not know, been to the pictures in Berkeley; Mr. Ford had been to a whist drive: and Mr. Fordhad been imbibing obviously a considerable quantity of alcoholic liquor. They were walking, as I have said, in a southerly direction on the left-hand side of the road, but they were net able to get close to the near side because there were roadworks in progress. Apparently the road was being widened and straightened and there was, according to Mr. Ford, whose evidence in general the Judge described as exaggerated and untrustworthy, a line of hurricane lamps and certain piles of road material which they had to avoid from time to time. It would appear that when they had reached a point more or less opposite Orchard Lane, to which I have referred, they went to cross the road from the near side to the off side where Orchard Lane abutted. It would appear that Mr. Ford knew that there was a vehicle coming along behind them, because she had seen the lights shining and had told the others to keep well in, She leader of the procession was Mr. Ford, who, according to the medical records, as I have indicated, was very drunk. Little Miss Ford, the Plaintiff, was hanging on to his coat, and Mr. Ford was bringing up the rear of this Indian file. The question really in issue in the case is whether they were walking sensibly and carefully and whether Lewis, the Defendant, failed to keep a proper look-out and ran into them, or whether, as was the Defendant's case, they suddenly crossed or, as one word was used, "lurched" into his path. It would appear that they had got some way across the road, since the lorry, which had not moved when the policeman came along, was, according to him, damaged on the off-side headlight and the off-side of the lorry was just over what was the crown of the two-thirds of the road that were left. That is the general story of theaccident. As I have said, the Judge found in favour of the Defendant.
Sir Joseph Molony for the Plaintiff has really made two complaints as to the conduct of the trial. His first complaint, which he did not develop, was to the effect that the Judge treated the case as a case between the parents and the driver. That submission was not developed to any extent, and I say no more about it. But his substantial complaint was his submission that the Judge wrongly allowed in evidence under the Civil Evidence Act of 1966 two documents, or one series of documents and one document, despite the fact that the Defendants had not complied with the rules laid down under Order 38 of the Rules of the Supreme Court. She two documents were, first of all, the medical records of Mr. Ford at the hospital. It was from those records that it was discovered that, according to everyone in the hospital who saw Mr. Ford on admission, he was very drunk indeed. She second and more important document was a written statement made by the driver at some date which, as I will explain in a moment, we do not know. The learned Judge admittedly had a discretion to admit those documents, even though the rules had not been complied with; but Sir Joseph submits that, in all the circumstances, the learned Judge ought not to have admitted the documents.
I must, I am afraid, refer to the Act and also to the Rules of the Supreme Court. So far as concerns the statement made by Mr. Lewis, the relevant section in the Act is Section 2(1), which provides 1 "In any civil proceedings a statement made, whether orally or in a document or otherwise, by any person, whether called as a witness in those proceedingsor not, shall, subject to this section and to rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible". That refers, of coarse, to the Defendant's statement. Then Section 4(1), which relates to the medical records: "Without prejudice to section 5 of this Act, in any civil proceedings a statement contained in a document shall, subject to this section and to rules of court, be admissible as evidence of any fact stated therein of which direct oral evidence would be admissible, if the document is, or forms part of, a record compiled by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that Information and which, if not supplied by that person to the compiler of the record directly, was supplied by him to the compiler of the record indirectly through one or more intermediaries each acting under a duty", There is, of course, a provision in the Act, to which I need not refer, for the making of rules. The only other section to which I think it Is necessary presently to refer is Section 8(3)(a): "Rules of court made in pursuance of subsection (1) may confer on the court in any civil proceedings a discretion to allow a statement falling within section 2(1), 4( 1) or 5(1) of this Act to be given in evidence notwithstanding that any requirement of the rules affecting the admissibility of that statement has not been complied with, but except in pursuance of paragraph (b) shall not confer on the court a discretion to exclude such a statement where the requirements of the rules affecting its admissibility have been complied with".
I turn now to the rules and will attempt to confine ay reading of them to the rules which I think affect the present case. They are all under Order 38. The first one is Rule 21(1): "Subject to the provisions of this rule, a party to a cause or matter who desires to give in evidence at the trial or hearing of the cause or matter any statement which is admissible in evidence by virtue of section 2, 4 or 5 of the Act must - (a) in the case of a cause or matter which is required to be set down for trial or hearing or adjourned into court, within 21 days after it is set down or so adjourned, or within such other period as the...
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