Robertson v John White & Son
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Jenkins,Lord Morris of Borth-y-Gest,Lord Guest,Lord Pearce |
| Judgment Date | 21 February 1963 |
| Judgment citation (vLex) | [1963] UKHL J0221-2 |
| Court | House of Lords |
| Date | 21 February 1963 |
| Docket Number | No. 3. |
[1963] UKHL J0221-2
House of Lords
Lord Reid
Lord Jenkins
Lord Morris of Borth-y-Gest
Lord Guest
Lord Pearce
Upon Report from the Appellate Committee, to whom was referred the Cause Robertson against John White and Son, that the Committee had heard Counsel, as well on Monday the 4th, as on Tuesday the 5th, days of this instant February upon the Petition and Appeal of William McDonald Robertson, residing at Upper Greens, Auchtermuchty, Fife, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division of the 12th of June 1962, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of John White and Son, 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 Her Majesty the Queen assembled, That the said Interlocutor, of the 12th day of June 1962, complained of in the said Appeal, be, and the same is hereby, Recalled: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to apply the Verdict of the Jury: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Expenses incurred by him in the Inner House of the Court of Session and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
I have found this a difficult case. With some hesitation I concur with your Lordships that this appeal should be allowed.
My Lords,
I agree that this appeal should be allowed.
My Lords,
The main issue which is raised in this appeal is whether there was evidence sufficient in law to warrant a finding by the jury that the Appellant had discharged the onus of proof which lay upon him. It was the opinion of the Lord President, shared by Lords Carmont and Guthrie, that an examination of the evidence did not yield for the pursuer the necessary corroborative evidence. Their further opinions were expressed by the Lord President in the following words:—
"Indeed it appears to me that the surrounding circumstances are more consistent with Duncan's account of the matter than with the pursuer's. I find it unnecessary to consider this in any detail but it is perhaps enough to say that on the independent evidence of an eye witness immediately after the accident there was a single clamp still in position on the side where Duncan was working. This is consistent with Duncan's own evidence that he was not throwing clamps but actually hammering off the last clamp on his side when the accident took place. Moreover, the probabilities appear to me to be strong against Duncan being able to throw a clamp on such a course that it came round a narrow right angled corner and hit the pursuer on the left side of the head which would be the side further away from the direction of travel of the clamp and that this clamp thereafter rebounded with such vehemence from the pursuer's head that it travelled back again and hit Duncan on the arm."
In the passage which I have quoted the Lord President was directing his attention to the opinion of Lord President Normand in O'Hara v. Central Scottish Motor Traction Co. Ltd., 1941 S.C. 363: Lord President Normand (at p. 379) said:
"Corroboration may be by facts and circumstances proved by other evidence than that of the single witness who is to be corroborated. There is sufficient corroboration if the facts and circumstances proved are not only consistent with the evidence of the single witness, but more consistent with it than with any competing account of the events spoken to by him. Accordingly, if the facts and circumstances proved by other witnesses fit into his narrative so as to make it the most probable account of the events, the requirements of legal proof are satisfied."
The evidence of the pursuer was that when on his knees at the bottom of the pit he was hit by a clamp and that he himself had not thrown it and that he had not attempted to put any clamp out of the pit. His case was that it must have been Duncan who threw the clamp in question or placed it in an insecure position and that there was no one else who could have done so. Duncan denied that he had done so. It was part of the case of the defenders that the pursuer had himself thrown the clamp which hurt him or that he had endeavoured to place it on the plinth or had placed it there insecurely.
There was, I consider, evidence given other than by the pursuer which could lead to the conclusion that there were facts and circumstances which fitted in with and which supported the pursuer's case. It was, however, for the jury to assess the evidence: it was for them to decide which parts of it they accepted and which parts they rejected. If they accepted the evidence of the pursuer and rejected much of what Duncan said and if from evidence in the case apart from the pursuer's evidence they found circumstances established which in their judgment were more consistent with the pursuer's case than with the suggestion that the pursuer had himself thrown or placed the offending clamp, then they were entitled to give their verdict in favour of the pursuer.
The Lord President (in the passage set out above) recorded his views and conclusions in regard to the surrounding circumstances. But, my Lords, it seems to me, with respect, that it rested with the jury and only with the jury to reach conclusions on those matters. It was for the jury to decide the facts and also to decide what inferences were to be drawn from the facts they found. In Park v. Wilsons and Clyde Coal Co., 1929 S.C. 38, Lord Hailsham, L.C. at p. 43 said:
"It is quite true that there may be facts from which it is only possible to draw one conclusion in law, and in such a case, if the facts are admitted, it is right for the judge to direct the jury as to the legal consequences. But there are many other cases in which from the admitted facts it is possible to draw more than one inference of fact, and in such a case the jury and not the judge is the tribunal to which the Legislature has committed the duty of drawing that inference."
The evidence showed that when the pursuer and Duncan went into the pit the clamps which were above floor level had been removed and that there were no clamps that could fall. There was evidence given by the witness Summers to that effect. The clamps had been knocked off and some of them would be at the bottom of the pit. After going down into the pit the two men were in very confined spaces. The space between the moulding box which was in the centre of the pit and the sides of the pit was at no point more than 1 ft. 9 ins. and the lugs and the handles protruded slightly into such space. The pit itself only measured some 6ft. 9½ ins. by 7 ft. 1 in.
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