Hollington v Hewthorn (F.) & Company

JurisdictionEngland & Wales
Judgment Date1943
CourtCourt of Appeal

Evidence - Admissibility - Conviction - Motor-cars in collision - Negligence alleged against defendant driver - Evidence of conviction of defendant driver of careless driving - Res inter alios acta - Statement by person interested - Death of driver of plaintiff's car after action brought - Evidence of statement made by driver of plaintiff's car to police on day of collision - “Statement made …. at a time when proceedings were pending or anticipated” - Evidence Act, 1938 (1 & 2 Geo. 6, c. 28), s. 1, sub-s. 3.

In an action arising out of a collision between two motor-cars on the highway in which the plaintiff alleged negligence on the part of the defendant driver the plaintiff sought to give evidence of — (a) a conviction of the defendant driver of careless driving, contrary to s. 12, sub-s. 1, of the Road Traffic Act, 1930, at the time and place of the collision, and (b) of a statement made to a police constable by the driver of the plaintiff's car (who had died after action brought) after the collision and after the constable had warned him, in accordance with s. 21 (a) of the Act, that the question of prosecuting him for reckless, dangerous, or careless driving would be considered:—

Held, (a) that, both on principle and authority, evidence of the conviction was inadmissible.

In the Estate of Crippen [1911] P. 108; Partington v. Partington and Atkinson [1925] P. 34; and O'Toole v. O'Toole (1926) 42 T. L. R. 245, overruled on this point.

(b) that, whether or not a statement made to a police officer, who is inquiring into the facts of a road accident, is admissible under s. 1, sub-s. 1, of the Evidence Act, 1938, depends, under s. 1, sub-s. 3, of the Act, on whether the person making it is a “person interested” and on whether proceedings are pending or anticipated which would involve a dispute as to any fact which the statement might tend to establish, regarding which no inference is necessarily to be drawn from the giving of the warning under s. 21 of the Road Traffic Act, 1930, that warning being of a different nature from the warning given to a suspected person under the judges' rules, as in Robinson v. Stern [1939] 2 K. B. 260, but in the present case the terms of the statement justified the inference that the person making it anticipated civil proceedings at least, and it was, therefore, rightly held to be inadmissible.

Decision of Hilbery J., ante p. 27, on these points affirmed, but on the facts reversed.

APPEAL from Hilbery J.

The plaintiff, Robert Henry Hollington, the owner of a motor-car, sued as the administrator of the estate of his son, Basil Thomas Edmund Hollington, who had died after action brought, and on his own behalf, claiming damages in respect of a collision which occurred at Abridge, Essex, on April 5, 1940 between the plaintiff's car, driven by B. T. E. Hollington, and a car owned by the first defendants, F. Hewthorn & Co.; Ld., and driven by the second defendant, Ernest Arthur Poll. The defendants denied negligence on the part of the second defendant and pleaded contributory negligence. Owing to the death of B. T. E. Hollington, the plaintiff was unable to adduce any direct evidence of the accident, and he tendered in evidence, in addition to evidence as to the position and condition of the two vehicles after the collision, (a) a conviction of the defendant, Poll, for careless driving at the time and place of the collision, under s. 12 of the Road Traffic Act, 1930; (b) a statement made by B. T. E. Hollington to a police constable after the collision, and after the constable had warned him, in accordance with s. 21 (a) of the Act, that the question of prosecuting him for reckless, dangerous, or careless driving would be considered. Hilbery J. ruled that neither was admissible — (a) as being res inter alios acta; (b) as having been made at a time when proceedings were “anticipated,” and, therefore, being expressly excluded by s. 1, sub-s. 3, of the Evidence Act, 1938F1. On a submission of “no case” by the defendant, who called no evidence, Hilbery J. ruled that the plaintiff had established a prima facie case of negligence, and gave judgment in his favour for 100l. on his claim as administrator, and for 90l. 17s. 6d. on his own claim. The defendants appealed.

Casswell K.C. and Holroyd Pearce for defendants. There was no evidence to justify an inference of negligence by the defendant, Poll.

Denning K.C. and Harold Simmons for plaintiff. There are three questions which may fall for decision: (1.) Whether on the whole case it was a legitimate inference that the defendant was negligent. If so, there is an end of the matter. If not, (2.) Whether a conviction of the defendant of careless driving was admissible at common law; and (3.) Whether the statement made to the police by the deceased was admissible under the Evidence Act, 1938. As to (1.) Hilbery J. was entitled to draw the inference which he drew, and the question is only whether it could legitimately be drawn, not whether this court would have drawn it. With regard to (2.), Hilbery J. ruled that the conviction was inadmissible as res inter alios acta. It is true that it would create no estoppel, but it is submitted that it was admissible in chief as prima facie evidence of the defendant's negligence. From the beginning of the eighteenth century a conviction was held admissible in subsequent civil proceedings so long as it was not founded on the evidence of the party suing. The exception was due to the fact that to admit the conviction in such a case would have been an indirect way of circumventing the disability of the party as a witness. Differences of opinion on this subject, however, are found among the greatest names. Gilbert C.B., who died in 1726, states the rule as above in his work on Evidence, 2nd ed., p. 30, sub tit. “Verdicts given in evidence.” That was the standard work throughout the eighteenth century, and it is highly praised by Blackstone (Commentaries, 8th ed., bk. III., c. 23, p. 367). In Gibson v. M'CartyF2 Lord Hardwicke rejected evidence of a conviction because it might have rested on the evidence of the party. It is true that; in Rex v. Warden of the FleetF3 this class of evidence was said to be inadmissible, but in all the books that case is not referred to, and in Rex v. Lyme RegisF4 Buller J. said “12 Mod. is not a book of any authority.” On the other hand, Buller's Nisi Prius, 7th ed., p. 245, puts the matter too favour-ably to the plaintiff when it refers to a conviction as conclusive evidence. That it clearly is not. [They referred to Peake on Evidence, Preface to 2nd ed., 1804; Smith v. RummensF5; Hathaway v. BarrowF6; Wilkinson v. GordonF7; Blakemore v. Glamorganshire Canal Co.F8; Justice v. GoslingF9.]

The disability of parties and their spouses was taken away by the Evidence Acts, 1851 and 1853, but, as the accused person could not give evidence in a criminal cause till 1898, it might have been said before that date to be unfair to allow evidence of a conviction to be given. In In the Estate of CrippenF10 evidence that a husband had been convicted of murdering his wife was admitted, rightly, it is submitted, as evidence not only of the fact of conviction, but of the murder. In the Estate of CrippenF11 was followed by Ridley J. in Mash v. DarleyF12, which was affirmed on different grounds. Partington v. Partington and AtkinsonF13 and O'Toole v. O'TooleF14 are difficult to reconcile with the view that a conviction is inadmissible. A verdict of acquittal might also be admissible, but, owing to the burden of proof resting on the prosecution, its weight might be less. The verdict of a coroner's jury is not admissible: Barnett v. CohenF15, which is merely cited to distinguish it. [They also cited Rex v. General Medical Council. Ex parte SpackmanF16 and the notes to The Duchess of Kingston's CaseF17.] There is another branch of the law that supports the plaintiff's contention that the conviction of the defendant is admissible. When a felony is committed which also inflicts a civil wrong, no civil action can be brought by the person injured until the felon has been prosecuted: see Smith v. SelwynF18 and The AmerikaF19. It is submitted that where the person injured has been so delayed in bringing his civil action that an important witness has died, he must be able to rely on the conviction obtained on the witness's evidence, as prima facie evidence in his action. For a conviction not to be admissible in such a case would be contrary to justice. Cases which are said to be exceptions to the general rule that convictions are not admissible in a civil actions as being res inter alios acta are Davis v. NestF20, Eaton v. Swansea Waterworks Co.F21 and Petrie v. NuttalF22. These cases are, however, really examples of the general rule that a conviction is prima facie evidence in a civil action. The decision of a judicial tribunal, after going thoroughly into the evidence, and after full opportunity for the prisoner to give evidence, must be admissible in evidence. Since Harvey v. RegemF23 was decided in 1901, there has been a universal tendency to admit a conviction as prima facie evidence.

On the second question, whether the statement made to the police was admissible, Hilbery J. went too far in holding that after an accident on the highway proceedings must be anticipated. The existence of “knock for knock” agreements between insurance companies normally comes in to prevent proceedings. A statement made by a party before he has an opportunity of thinking out his case may be of great value. Further, s. 1, sub-s. 3, of the Evidence Act, 1938, does not say “when proceedings were …. reasonably anticipated” and the proceedings “anticipated” must be anticipated by the person making the statement, and involve a dispute as to some fact dealt with in the statement. Robinson v. SternF24 is clearly...

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  • Subject Index
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 12-4, November 2008
    • 1 November 2008
    .... . 291HML vR, SB vR, OAE vR [2008] HCA16 . . . . . . 350Hollingham vHead (1858) 4CB (NS) 388 . . . .279Hollington v F. Hewthorn & Co. Ltd [1943]KB 587. . . . . . . . . . . . . . . . . . . . . . . . . . . .56, 278Huddleston v United States 485 US 681 (1988). . . . . . . . . . . . . . . . . ......
  • Subject Index
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 7-4, December 2003
    • 1 December 2003
    ...15 EHRR437................................................... 148Hoang v France (1992) 16 EHRR 53 ..56Hollington v F Hewthorn & Co Ltd[1943] KB 587 ................................ 202Hoskyn v Commissioner of Police forthe Metropolis [1979] AC 474, HL .............................................
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