Powell v Streatham Manor Nursing Home

JurisdictionUK Non-devolved
JudgeLord Chancellor,Lord Blanesburgh,Lord Atkin,Lord Macmillan,Lord Wright,The Lord Chancellor
Judgment Date28 February 1935
Judgment citation (vLex)[1935] UKHL J0228-1
Date28 February 1935
CourtHouse of Lords
Powell and Another (Paupers)
Streatham Manor Nursing Home

[1935] UKHL J0228-1

Lord Chancellor.

Lord Blanesburgh.

Lord Atkin.

Lord Macmillan.

Lord Wright.

House of Lords

After hearing Counsel, as well on Thursday the 17th, as on Friday the 18th, Monday the 21st, Tuesday the 22d and Thursday the 24th, days of January last, upon the Petition and Appeal of William Norman Powell and Helena Powell (wife of the said William Norman Powell), Paupers, of 5 Victoria Mansions, Stonhouse Street, Clapham, in the County of Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 22d of November 1933, except so far as regards the words "It is further, Ordered that the sum of £2,500 standing in Court to the credit of this Action be paid out to the Defendants or their solicitors on the authority of the said Defendants as specified in Part II hereof" might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, and that the Petitioners might have the relief prayed for in the Appeal or such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Streatham Manor Nursing Home, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 22d day of November 1933, complained of in the said Appeal, except so far as aforesaid, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Horridge, of the 11th day of July 1933, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the said Costs in this House to be taxed in the manner usual when the Appellant sues in formâ pauperis and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Chancellor .

My Lords,


This is an Appeal from an order of His Majesty's Court of Appeal (England) dated the 22nd day of November, 1933, ordering that the judgment of the Honourable Mr. Justice Horridge dated the 11th July, 1933, in favour of the Appellants, be set aside, and that the judgment in the action be entered for the Respondents with costs.


The action was brought by the Appellants, who are husband and wife, for damages caused to them by reason of the personal injury done to the female Appellant by negligence, as the Appellants alleged, of the Respondents' servants or agents.


The Appellant, Helena Powell, entered the Respondents' Nursing Home on the 9th January, 1930, as a paying patient, and on the 20th January, 1930, Dr. James Kirkland performed the operation of hysterectomy upon her in the Home. This is an operation for the removal of the uterus.


The Appellants' complaint is and was that on the following day, namely, the 21st January, 1930, the Respondents' servant, Sister Hyndman, punctured the female Appellant's bladder in negligently using and attempting to pass a catheter into her. There is no dispute that the bladder was not punctured before the operation. There is no dispute that it has been punctured. The Respondents at the trial set up the case that it must have been punctured by Dr. Kirkland in performing the operation. This case is completely contradicted by and at variance with the evidence of the female Appellant and the learned Judge accepted her evidence and based his Judgment upon it.


No question of law was raised at the trial or is involved in the Appeal except in so far as it may be material to consider the functions of the Court of Appeal on appeal on a pure question of fact from a Judge before whom at the trial conflicting evidence has been given by a number of witnesses whom he has not only heard but seen.


A number of witnesses were called before the learned Judge, and the course of the trial resolves itself into three questions.


In order that the Plaintiffs should succeed, it was necessary for them to establish the fact, to the satisfaction of the Judge, that the puncture to her bladder sustained by the female Plaintiff was due to the negligence of the nurses in attendance. If the proper deduction from the evidence was that the puncture had been made by the doctor who performed the operation or if it was impossible upon the evidence to say in which way it was caused, the Defendants were entitled to succeed, for then the Plaintiffs would not have discharged the onus placed upon them. Several questions therefore become of vital importance. For example; (i) was the puncture caused by the doctor who performed the operation? Upon this the learned judge had the direct evidence of the two doctors who were at the operation, both of whom said that the puncture was not caused on that occasion. There was also evidence, called by the Defendants, of an expert character as to the possibility or probability of a puncture being made by the operating doctor without his knowing it.


(ii) Another question of vital importance was when the urine showed signs of escaping. Here again the matter was in controversy, first of all as to the time at which the escape was noticed, secondly as to the exact time it was likely to have happened after the operation, if the puncture to the bladder had been made then. Upon these questions there was the direct evidence of the doctor and the nurses and also reports made by the nurses.


(iii) There was the vital question as to what took place when the nurses tried to insert a catheter and the doctor was sent for. Upon this there was the evidence of the female Plaintiff herself as to what happened and what she felt during the insertion of the instrument. On the other hand there was the evidence of the nurses as to what they did, as to the kind of catheter they used and as to the improbability or rather impossibility of a catheter of such a sort making a puncture. Over and above that, there was the delay in bringing the action and the letters written by the Plaintiffs which seem to show that they did not at first attribute any negligence to the Nursing Home.


It is true that a Court naturally attaches great importance to letters written by a witness which appear to contradict evidence which he subsequently gives, but the Court must always take into consideration the witness's explanation of such letters and weigh it carefully. Further than that, an omission to state something in a letter may not be so weighty as a statement which contradicts something to which the witness subsequently deposes.


Upon these several matters the evidence was of a very contradictory character and no one could have been in as good a position as the learned Judge who both saw and heard the witnesses to say where the truth lay. He expressly said that he accepted the evidence of the doctors, which, if true, proved that the puncture did not take place at the operation; that he accepted the evidence of Mrs. Powell which, if true, made it almost conclusive that the puncture took place when the nurses tried to insert the catheter.


When the matter came before the Court of Appeal, the learned Master of the Rolls, founding himself upon the case of The Sir Robert Peel (1880), 4 Asp. M.L.C. 321, dwelt with considerable force upon another fact altogether. In the Sir Robert Peel, Lord Justice James said "the Court will not depart from the rule it has laid down that it will not over-rule the decision of the Court below on a question of fact in which the Judge has had the advantage of seeing the witnesses and observing their demeanour, unless they find some governing fact which, in relation to others, has created a wrong impression." Originally in the present case there had been a claim for damages for a hernia which the female Plaintiff alleged had been produced by one of the nurses allowing her to fall during her illness and so causing the hernia. The learned Master of the Rolls was evidently very much impressed by the fact that Mr. Justice Horridge did not accept the female Plaintiff's account of this and he thought that the fact that the Judge did not accept her evidence on this point was a governing fact, or at any rate one of the governing facts, to which great importance should be attached in considering the remaining part of her story.


It is important carefully to consider what really happened with regard to this matter. The shorthand note clearly shows that the learned Counsel for the Plaintiff gave this point up because he thought it had not been proved that the fall caused the hernia, but he expressly said that he only did so without admitting that it made any difference to the rest of the female Plaintiff's evidence. Upon this the learned Judge agreed with him and indeed the Counsel for the Respondents regarded it of minor importance. The following is a transcript of what happened when the matter was given up. The learned Counsel for the Defendants said:—

"A word again about the other branch of the case which had almost escaped me, the hernia."


Mr. Justice Horridge:

"I am not satisfied on that branch of the case, Mr. Hilbery, that the hernia resulted from this."


Mr. Malcolm Hilbery:

"I do not say anything more about it provided it is satisfactorily understood that I must deal with it if it...

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