Maltman v Tarmac Civil Engineering Ltd
| Jurisdiction | Scotland |
| Judgment Date | 02 February 1967 |
| Docket Number | No. 20. |
| Date | 02 February 1967 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Walker and a jury.
Process—Jury trial—New trial—Res noviter—Other cause essential to justice of case—Party averring that evidence of opponent's witness false—Honest mistake or perjury—Whether ground for new trial—Whether distinction between perjury and subornation of perjury—Jury Trials (Scotland) Act, 1815 (55 Geo. Ill, cap. 42), sec. 6.
The Jury Trials (Scotland) Act, 1815, provides by sec. 6, inter alia, that a party dissatisfied with the verdict of a jury may apply for a new trial on the ground of res noviter veniens ad notitiam "or for such other cause as is essential to the justice of the case."
In an action of damages against his employers a labourer averred, and deponed before a jury, that he had been injured when in the course of his work he slipped on ground made greasy by oil which had been spilt there by other employees of the defenders. The only other witness who spoke to there being oil at the locus was one P., a fellow-employee, who deponed that, about an hour before the accident, he had in the course of his work upset a drum of oil there and spilt most of the contents on the ground. The jury having returned a verdict for the pursuer, the defenders moved for a new trial on the grounds, inter alia, ofres noviter and other cause essential to the justice of the case. They averred that they had had no reason to anticipate that P. would be a witness, that since the trial they had ascertained from their records that he had left their employment four days before the accident, and that his evidence was false. The pursuer averred that, if P.'s evidence was inaccurate, the inaccuracy was due to an honest mistake in recollection, and contended that in any event the fact that a witness had perjured himself was not a ground for allowing a new trial.
Held that the facts alleged by the defenders were res noviter, even (per the Lord President and Lord Guthrie) if P.'s evidence was due to honest mistake, and that they also constituted a cause essential to the justice of the case; and a new trialallowed.
Statement in Maclaren's Court of Session Practice, p. 626, that it is not a good ground for allowing a new trial that the party asking for it undertakes to prove that witnesses have perjured themselves,disapproved as too widely stated.
Per Lord Guthrie (Lord Migdaleconcurring):—"I respectfully disagree with the observation of Lord Salvesen in Gairdner v. Macarthur,1915 S. C. 589, at p. 594, where he seeks to distinguish between subornation of perjury and perjury as reasons for granting a new trial."
Robert Maltman brought an action against his employers, Tarmac Civil Engineering Limited, for damages in respect of injuries sustained by him in an accident while in their employment. The case was tried before Lord Walker and a jury on 10th and 11th May 1966. The jury by a majority of eight to four returned a verdict in favour of the pursuer and assessed the damages at £2000. Thereafter the defenders enrolled a motion for a new trial.
The following narrative of the parties' averments and the procedure in the case is taken from the opinion of the Lord President:—"This is a motion for a new trial in an action by an injured workman against his employers, who were engaged in constructing new harbour works at Eyemouth. After a jury trial the jury found for the pursuer and awarded damages against the defenders, at whose instance the present motion for a new trial is made.
"The pursuer's case on record is that the accident happened on 21st April 1964, when he was proceeding from the site office carrying a pail of oil towards a part of the new works where shuttering was being erected. His route took him along a path past some caravans occupied by employees of the defenders near the bank of the river Eye. In negotiating his way past one of these caravans he states that he diverted his course to one side up a grassy slope, which was greasy with oil which had been spilt there and was also wet from a heavy shower of rain which had recently fallen. He alleges that he slipped on this slope and fell down and was injured. The fault alleged against the defenders is that they knew or ought to have known that this slope was likely to be greasy with spilt oil. Their defence is that the only oil spilt in the vicinity of the accident was spilt when the pursuer slipped and fell.
"Three grounds upon which it is maintained that the motion for a new trial should be granted were argued before us. The first was that the verdict was contrary to the evidence. The second ground was res noviter veniens ad notitiam, and the third ground was that in the circumstances condescended on in a minute for the defenders it was essential to the justice of the cause that a new trial be granted. The last two grounds arise out of the discovery by the defenders after the trial of further facts regarding the main corroborative witness for the pursuer, a Mr Patterson. Mr Patterson gave evidence that, while in the defenders' employment on the very morning of the accident to the pursuer, he had himself been pushing a barrow loaded with a five-gallon drum and that he slipped at this spot and spilt most of the contents of the drum at this place. The new fact ascertained subsequent to the trial was that Mr Patterson had in fact left the defenders' employment a few days before the accident and he therefore could not have created the slippery conditions at the place where the pursuer met his accident. The defenders accordingly lodged a minute in this Division narrating the circumstances, and answers were lodged by the pursuer. The motion for a new trial was amended to include the second and third grounds which I have narrated above. We allowed the minute and answers and amendment, reserving the competency thereof for consideration when the evidence at the trial was before us."
In their minute the defenders averred, inter alia:—(Art. 3) "Since the trial the defenders have discovered that their records disclose that the said William Patterson was not in their employment on the day of the said accident, having been paid off on 17th April 1964. The said William Patterson was re-engaged by the defenders from 6th July 1964 until 23rd September 1964." (Art. 4) "In the circumstances the defenders believe and aver that the evidence of the said William Patterson … was false evidence." (Art. 5) "The defenders did not know, and there was no ground on which they should have anticipated, that the said William Patterson would give evidence at the trial. As a result it was not possible for him to be cross-examined on the question whether he was in the defenders' employment on the day of the accident, nor for evidence to be led that he was not. The failure to discover the further evidence, and the said consequences thereof, were not due to any lack of care or diligence on the part of the defenders or their advisers."
In his answers to the minute the pursuer averred, inter alia:—(Ans. 3) "It is not known what the defenders have discovered since the said trial. Their records are referred to for their terms. It is not known whether the said records are accurate. Further explained that the said William Patterson offered his evidence to the pursuer about two years after the said accident, and that neither the pursuer nor those advising him sought it. Quoad ultra not known and not admitted. It is believed and averred that the said William Patterson was in the defenders' employment for two periods. The said William Patterson cannot remember the date when the first period of employment terminated, but he believes that it was in April 1964. To the best of the said William Patterson's recollection he was re-engaged by the defenders in or about July 1964, as averred by the defenders. Between his said two periods of employment with the defenders the said William Patterson, who resides in Eyemouth, was unemployed. He spent his time walking about the defenders' works at Eyemouth Harbour, watching work in progress and visiting the defenders' site office to seek re-engagement. He frequently passed the locus both while employed by the defenders and while unemployed." (Ans. 4) "It is not known and not admitted that the said evidence was false. The pursuer believes and avers that the said William Patterson gave his evidence honestly and to the best of his recollection. He did not witness the accident and did not profess to have done so. The said William Patterson genuinely believed that the accident occurred on the day on which he (Patterson) had spilt a quantity of oil at the locus. If the said William Patterson's evidence was inaccurate (which is not known and not admitted), the inaccuracy was due to an honest mistake in recollection." (Ans. 5) "Not known and not admitted."
The case was heard before the First Division on 31st January and 1st February 1967.
At advising on 2nd February 1967,—
LORD PRESIDENT (Clyde).—[His Lordship gave the narrative quoted supra, considered the case that the verdict was contrary to the evidence, concluded that the defenders were entitled to succeed on that ground, and continued]—
I turn now to the question of res noviter and the closely related question of the essential justice of the cause. Res noviter is one of the statutory grounds upon which a new trial may be ordered. As the Lord President said in Miller v. Mac Fisheries6 (at p. 160), "The allowance ofres noviter is always more or less in the nature of an indulgence. Accordingly, it may present to the Court a delicate problem of discretion. But it is an indispensable condition of the allowance that the res noviter should be material to the justice of the cause; and it is inconceivable that it should be refused if it is seen to be such that to exclude it from the materials of judgment would prevent justice being done." In Grant on New Trials,7published shortly after the Jury Trials (Scotland) Act, 1815,8was passed, and quoted...
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