Hollington v Hewthorn (F.) & Company
| Jurisdiction | England & Wales |
| Judgment Date | 1943 |
| Date | 1943 |
| Court | Court 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” -
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
Held, (a) that, both on principle and authority, evidence of the conviction was inadmissible.
(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
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
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
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...
To continue reading
Request your trial
-
Nevin v Nevin
...to mount what could be seen as a collateral attack on her conviction; and whether the decision in Hollington v F. Hewthorn & Co. [1943] KB 587 represents the law in Ireland. Held by O’Malley J that, having considered the question of admissibility in the light of the common law authorities, ......
-
R v Kordasinski (Leszek)
...of what happened.'" Mr Aylett's additional submissions are as follows. At common law, he says, convictions were inadmissible (see Hollington v Hewthorn [1943] 1 KB 587, a case concerning whether a motoring conviction was admissible in a negligence action against the convicted driver. He the......
-
The Assets Recovery Agency v Gheorghe Virtosu and Another
...criminal court be adduced to prove in an English civil court, such as this court? was considered by the Court of Appeal in Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587. In that case the Court held that a conviction for careless driving was not relevant (nor, therefore, admissible) evide......
-
Lincoln National Life Insurance Company v Sun Life Assurance Company of Canada [QBD (Comm)]
...were reinsured by Cigna was as much a legal fact as their finding that the Cigna reinsurance had been lawfully avoided. Hollington v F Hewthorn and Co Limited [1943] KB 587 50 In Hollington v Hewthorn Goddard LJ (at pages 596–597) stated the rules at common law about the effect of a judg......
-
Are the 'Recommendations' of Family Report Writers Admissible Evidence?
...(and the child's) emotions and cognition will be enormously helpful and admissible. [1] see eg. Hollington v. F Hewthorn & Co [1943] KB 587 [2] see eg. Evidence Act 1995; section 55 [3] Murphy v. R (1989) 167 CLR 94 [4] (1999) 197 CLR 269 at [110] [5] [2008] FamCA 756 [6] ibid at [20] [......
-
Triple Jeopardy: Civil, Disciplinary, And Regulatory Proceedings Against Professionals
...the interplay among the civil, quasi-criminal, and disciplinary proceedings. At common law [Hollington v. F. Hewthorn & Co., [1943] 1 K.B. 587 (Eng. C.A.)], findings in criminal proceedings were held to be inadmissible in subsequent civil proceedings. In Hollington, a case involving aut......
-
Subject Index
.... . 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
...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 .............................................
-
The Self-Incrimination Privilege in Care Proceedings and the Criminal Trial and ‘Shall Not Be Admissible in Evidence’
...Section 99(1) of the Criminal Justice Act 2003 abolishes common law rules onadmissibility; the rule in Hollington vF Hewthorn & Co Ltd [1943] 2 All ER 35,[1943] KB 587, CA therefore may be rendered rendundant. It was held inHollington that, ‘(ii) a certificate of a conviction cannot be ten......
-
Authenticating ‘Things’ in English Law: Principles for Adducing Tangible Evidence in Common Law Jury Trials
...For example, RvDove [2005] EWCA Crim 1982at [73]–[74]. See also,RvMohan [1994] 2 SCR 9 at 20.42 Hollington vF. Hewthorn & Co. Ltd [1943] KB 587 at 594; RvTirnaveanu [2007] EWCA Crim 1239 at [14].43 RvCampbell [2007] EWCA Crim 1472 at [24].44 RvRandall [2003] UKHL 69 at Legal relevanceWigmor......