Hendry v Clan Line Steamers Ltd
| Jurisdiction | Scotland |
| Judgment Date | 11 March 1949 |
| Docket Number | No. 37. |
| Date | 11 March 1949 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Blades and a Jury.
Evidence—Burden of proof—Extent of burden—Reparation—Direction to jury that pursuer must prove his case beyond reasonable doubt.
The defender in an action for reparation does not enjoy the presumption of innocence which exists in favour of the accused in a criminal trial. Consequently, in an action for reparation, while the standard of proof required of a pursuer will depend on the circumstances of the case and the nature of the evidence, a direction to the jury that the pursuer must satisfy them beyond reasonable doubt that the defenders were to blame for the accident founded on sets too high a standard of proof.
Thomas Hendry brought an action against Clan Line Steamers, Limited, for damages in respect of personal injuries suffered while at work as a stevedore aboard a vessel owned by the defenders.
The case was tried before Lord Blades and a jury on 1st and 2nd July 1948. In the course of his charge, the presiding Judge directed the jury that the pursuer had to satisfy them beyond reasonable doubt that the defenders were to blame for the accident. Counsel for the pursuer excepted to this direction and requested the presiding Judge to withdraw it and direct the jury that, if on a balance of probabilities they found the defenders to blame, they should return a verdict for the pursuer. The Judge having refused to do so and the jury having returned a verdict for the defenders, the pursuer moved for a new trial.
The case was heard before the Second Division, consisting of the Lord Justice-Clerk, Lord Mackay and Lord Jamieson, on 8th February 1949, when Lord Blades was also present.
At advising on 11th March 1949,—
LORD JUSTICE-CLERK (Thomson).—The pursuer was engaged in his occupation of stevedoring on the defenders' ship. He met with an accident while so engaged. He raised this action against the defenders for reparation for the injuries sustained in the accident. The onus is on the pursuer to prove his case. There have been innumerable formulations of what that means. I choose the well-known one by Lord Halsbury in Wakelin v. London and South Western Railway Co.ELR,1 and I choose it largely because of the comment which is added to the formulation:—"It is incumbent upon the plaintiff in this case to establish by proof that her husband's death has been caused by some negligence of the defendants, some negligent act, or some negligent omission, to which the injury complained of … is attributable. That is the fact to be proved. If that fact is not proved the plaintiff fails, and if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition; “Ei qui affirmat non ei qui negat incumbit probatio.” I am not certain that it will not be found that the question of onus of proof and of what onus of proof the plaintiff undertook, with which the Court of Appeal has dealt so much at large, is not rather a question of subtlety of language than a question of law." In considering any question of onus of proof it is desirable also to have in mind the statement of Lord Dunedin in Robins v. National Trust Co.ELR,2 as expounded by Lord Thankerton inThomas v. ThomasSCELR3: "No question of burden of proof as a determining factor of the case arises on a concluded proof except in so far as the Court is ultimately unable to come to a definite conclusion on the evidence, or some part of it, and the question will arise as to which party has to suffer thereby."
The case was tried before Lord Blades and a jury. At the conclusion of the pursuer's case counsel for the defenders asked the Judge to withdraw the case from the jury and to enter up a verdict in their favour. The Lord Ordinary refused to do so. The defenders led no evidence. In that situation it must be assumed that the Lord Ordinary was satisfied that there was sufficient evidence in law to warrant the jury, if they accepted it, in bringing in a verdict for the pursuer.
Of course, in that situation, I have no doubt that the Lord Ordinary
was anxious to impress upon the jury that the failure of the defence to lead evidence did not necessarily lead to a verdict for the pursuer and that it was still their function to weigh the value of the evidence and to decide whether the inference that the negligence of the defenders caused the accident ought to be drawn. The Judge had performed his duty. It was for the jury to perform theirs. I have no doubt he had in mind the words of Lord Chancellor Cairns in Metropolitan Railway Co. v. JacksonELR1: "The Judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred."The aspect stressed by Lord Halsbury and that stressed by Lord Cairns are conveniently combined in a paragraph of Lord Blackburn's speech inJackson'sELR case2: "I think it has always been considered a question of law to be determined by the Judge, subject, of course, to review, whether there is evidence, which, if it is believed, and the counter-evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether and how far the evidence is to be believed. And if the facts, as to which evidence is given, are such that from them a farther inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the Judge to determine, subject to review, as a matter of law whether from these facts that farther inference may legitimately be drawn."
What the Lord Ordinary did tell the jury was that "the pursuer had to satisfy the jury beyond reasonable doubt that the defenders were to blame for the accident." That is the familiar formula of the criminal Courts. It is a high and exacting standard of proof for the simple reason that an accused person is presumed to be innocent. Such a situation is entirely different to that in a reparation case. There is no presumption that the defender is blameless. It is recognised by our criminal law that there is a distinction between the onus laid upon the Crown and that laid upon the accused even in cases where the burden of proof is laid on him by statute. In the recent case of Robertson v. Watson,3 the Lord Justice-General said: "Finally, I adopt as an accurate statement of Scots law of general validity the rule laid down...
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