Payne v Harrison
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE WILLMER |
| Judgment Date | 09 June 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0609-1 |
| Court | Court of Appeal |
| Date | 09 June 1961 |
[1961] EWCA Civ J0609-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Holroyd Pearce
Lord Justice Willmer and
Lord Justice Pearson
Mr. D.J. BRABIN Q.C. and Mr. W.D.T. HODGSON Q.C. (instructed by Messrs. Hewitt, Woollacott & Chown, Agents for Messrs. Shaw, Smith & Co., Manchester) appeared on behalf of the Appellants (Defendants).
Mr. N.R. FOX-ANDREWS, Q.C. and Mr. PAUL CHADD (instructed by Messrs. Pattinson & Brewer, Agents for Messrs. Lawrence Williams & Co., Bristol) appeared on behalf of the Respondent (Plaintiff).
: The defendants appeal from a judgment of Mr. Justice Havers, sitting with a jury, for £2,500 in favour of the plaintiff on a claim by her as widow under the Fatal Accidents and the Law Beform Acts. Her late husband was killed while driving an articulated vehicle which collided with a lorry, owned by the first defendant and driven by the second defendant who was his servant. It is conceded that the jury could properly find negligence proved on the whole of the evidence, including that of the defendant driver. The case has been argued on the basis that the existence of the first defendant, who was merely vicariously liable, can be disregarded.
At the end of the plaintiff's case the defendant submitted that there was no evidence to go to the jury and asked the judge so to rule. The judge rejected that submission. The defendant then chose to give evidence, and in so doing provided evidence of negligence against himself. The jury returned a verdict for the plaintiff, and the judge entered judgment accordingly.
It is argued that at the close of the plaintiff's case the judge should have ruled that there was no case to go to the jury, and should have entered judgment for the defendant. In spite of the fact that after the judge's rejection of his submission the defendant chose to go into the witness-box, it is argued that this court should disregard his evidence, allow him to revert to the position before he gave evidence, and dismiss the plaintiff's case on the ground that it did not establish negligence against the defendant.
The argument is not, as Mr. Brabin frankly acknowledges, attractive, and even he cannot make it so. Such a situation as this only arises when a defendant is in truth liable but the paucity of the plaintiff's evidence makes the liability hard to prove. In such a case the defendant has the advantage that he can ask the judge to rule that there is no evidence to go to the jury and thus avoid the necessity of revealing by his own evidence that he is in truth liable. If the judge rules otherwise and the defendant considers that such ruling is wrong, he can always maintain his advantageous position by declining to give evidence, If the judge then wrongly gives judgment against him the defendant can come to this court. If, however, he deliberately abandons the advantage of not having to give evidence and seeks to make his escape from liability more certain by calling evidence, is it fair that he should be entitled to revert to the position which he voluntarily abandoned?
There is no authority which directly covers this case. In Great Western Railway Co. v. Rimell (18 Common Bench Reports at page 575) the defendant at the end of the plaintiffs' case submitted that there was no evidence to go to the jury. The judge held that there was, and the defendant then called evidence. It was held that the defendant did not, by calling witnesses, preclude himself from appealing on the ground that the judge had ruled erroneously. Chief Justice Jervis said, at page 585, "I think the judge was wrong in leaving the first question to the jury, because there was in my opinion no evidence whatever for them that any felony had been committed by any one of the company's servants. In truth, unless the courts in cases of this sort take upon themselves the duty of deciding, the statute which was intended for the protection of the carrier, will become a dead letter: for, juries always will find felony as against a company. I think it is the duty of the presiding judge to withdraw the question altogether from the jury, and not to allow them an opportunity of finding in favour of the plaintiff in defiance of all evidence. I therefore think the judge of the county court in this case was wrong in leaving it to the jury at all, and that he ought at once to have directed a nonsuit". But that case was different from the present in that at the end of all the evidence on both sides there was not a scintilla of evidence to go to the jury (per Mr. Justice Cresswell at page 586). The defendant's evidence left the situation unaltered and the judge was wrong when in his summingup he told the jury that they could find in the plaintiffs' favour. The defendant's submission that there was no evidence to go to the jury was well founded not only when it was made but also when all the evidence had been called on both sides.
In Groves v. Cheltenham and Bast Gloucestershire Puilding Society (1913 2 King's Bench page 100) the defendants in a county court before a judge alone at the close of the plaintiff's case submitted that there was no case to answer. That submission was rejected and the defendants called evidence. The court said clearly that if on the whole of the evidence called the judge was entitled to find for the plaintiff, even if he was wrong in not nonsuiting at the conclusion of the plaintiff's case, the court ought not to overrule his decision. It did, however, come to the conclusion that on the whole of the evidence the plaintiff could not succeed. Mr. Justice Lush said: "It is said that in Great Western Railway Co. v. Rimell it was held that, if on an appeal from a county court it appeared that the county court judge was wrong in not nonsuiting the plaintiff on an objection taken at the close of his case that there was no evidence, the court would allow the appeal although the defendant had called witnesses whose evidence would justify his judgment. I do not think that the court did so decide in that case although the headnote seems to suggest it, but if that was the law a change has come over the procedure, and in my judgment the law is now different. The practice is now well recognized that if a defendant, when the judge at the trial refuses to nonsuit, calls evidence, the case is not then confined to the plaintiff's evidence but also depends on that given by the defendant, and if on the whole of the evidence the county court judge was justified in coming to the conclusion he did, this court ought not to overrule him merely because it thinks he was wrong in not nonsuiting". Mr. Justice Rowlatt concurred, and the report adds that the court, on considering the whole of the evidence given in the county court, reversed the judgment of the county court judge upon the ground that on all the evidence there was nothing to justify him in giving judgment for the plaintiff.
Mr. Brabin submits that that case can be distinguished on the ground that it was an appeal from a judge alone. In my judgment, however, the principle which underlies the decision is equally applicable to a jury case and it is founded on justice and common sense. Certainly the learned judges in that case said nothing to suggest that there was any difference in principle between considerations in a jury case and those in a nonjury case.
Mr. Brabin, in a very fair and careful argument, has referred us to certain criminal cases. From 1908 onwards the Court of Criminal Appeal took the view that when the Prosecution's evidence was insufficient but the defendant had given evidence, whether he had failed to make a submission that there was no case to answer or had made an unsuccessful submission to that effect, the court should or could look at the defendant's evidence as well as that of the prosecution: see Rex v. George (1 Criminal Appeal Reports, page 168); Rex v. Pearson (1 Criminal Appeal Reports, page 77); Rex v. Jackson (4 Criminal Appeal Reports, page 64); Rex v. Frazer (7 Criminal Appeal Reports, page 99); but contra Rex v. Joiner (4 Criminal Appeal Reports, page 64). In Rex v. Power (1919 1 King's Bench, page 572), where such a submission was rejected and a co-defendant thereafter was called for the defence and gave evidence which incriminated the appellant, it was held that the Court of Criminal Appeal was entitled to take into consideration that adverse evidence, following the majority of the earlier decisions in preference to Rex v. Joiner.
In Reg, v. Abbott (1955 2 Queen's Bench, page 497), however, there was a somewhat different approach, and Rex v. Power was explained. Mr. Brabin relies strongly on that case, but I do not find it helpful to the present problem. In that case the trial judge wrongly refused a submission made at the close of the prosecution's case that there was no evidence to go to the jury. Lord Goddard, Chief Justice, emphasised the fact that the defendant did not supply any direct evidence against himself and that it was his co-defendant who supplied the damaging evidence. He considered that the appellant had an absolute right to have his appeal allowed, if there had been a "wrong decision of any question of law", unless it could be brought within the...
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