Swadling v Cooper

JurisdictionUK Non-devolved
JudgeViscount Hailsham
Judgment Date28 July 1930
Judgment citation (vLex)[1930] UKHL J0728-1
CourtHouse of Lords
Swadling
and
Cooper.

[1930] UKHL J0728-1

Viscount Hailsham.

Viscount Dunedin.

Lord Buckmaster.

Lord Warrington of Clyffe.

Lord Thankerton.

House of Lords

After hearing Counsel, as well on Monday the 26th as on Tuesday the 27th, Thursday the 29th and Friday the 30th days of May last, upon the Petition and Appeal of Reginald Henry Swadling, of Spellbrook Farm, Spellbrook, Bishop's Stortford, in the County of Herts, 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 13th of November, 1929, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have 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 Matilda Marie Cooper, 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 13th day of November, 1929, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Humphreys, of the 28th day of May, 1929, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs 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.

Viscount Hailsham .

My Lords,

1

This is an Appeal by the Defendant from an Order of the Court of Appeal setting aside a verdict and judgment for the Defendant and ordering a new trial in a case which was tried before Mr. Justice Humphreys and a Jury at Cambridge Assizes. The action was brought by the Respondent as the administratrix of William Cooper deceased to recover damages under the provisions of Lord Campbell's Act for loss occasioned to her and to her infant daughter by the death of William Cooper which was alleged to be due to the negligence of the Appellant while driving a motorcar along the road from Newmarket to London on the 18th July, 1928.

2

The negligence alleged in the statement of claim was: driving at an excessive speed, failure to give proper warning, failure to slow down on approaching a cross road, failure to keep his motorcar under proper control or to apply his brakes so as to slow up or stop and so avoid colliding with the deceased.

3

The Appellant by his defence denied that he was guilty of any negligence and alternatively alleged that the deceased contributed to the accident by his own negligence.

4

At the trial evidence was given that the Newmarket-London Road is crossed at right angles by a road leading from Saffron Walden to Cambridge. The Newmarket-London Road is between 18 and 19 feet wide and there is a grass verge on each side. On the evening of the accident the defendant was proceeding in his motorcar from Newmarket towards London, and was driving his motorcar about 3 feet from his near side of the road at a speed of between 30 and 35 miles per hour. The deceased was proceeding westwards from Saffron Walden to Cambridge on a motor cycle; and the car and the cycle came into collision at the cross roads at a spot about 4 feet into the Newmarket-London Road and opposite the south side of the Saffron Walden Cambridge Road. The Appellant gave due warning of his approach to the cross roads; no witness on either side heard any warning from the deceased. The distance from the position of the Appellant's car when he first became aware of the presence of the deceased to the spot of the collision was not more than 11 yards. After the accident the motor cycle fell on the east side of the Newmarket-London Road, about 20 yards south of the collision, the motorcar came to a stop on the west side of the road about 30 yards from the spot of the collision.

5

The learned Judge began his summing up on the law in these terms:—

"If you find that the injuries from which this man undoubtedly suffered were not caused by the negligence on the part of the Defendant, then there is an end of the case, because you must find a verdict for the Defendant, because the Plaintiff has to satisfy you that the Plaintiff is entitled to damages—the onus is on the Plaintiff. Then there is another possibility. Supposing you find that the Defendant was negligent, and that it was to some extent his negligence which caused the injuries from which the deceased man died, if you should also come to the conclusion that it was substantially also owing to the negligence of the deceased man himself that that accident occurred, so that both parties were—I will not say equally, but substantially to blame for the accident, then, again you must find a verdict for the Defendant because the law is that even if you are injured by somebody else's negligence, yet, if you substantially contribute to those injuries by your own negligence, you cannot recover damages from the other person. Now, that is the issue you have to try. You have got to consider, first of all: Are you satisfied that the Defendant was negligent, negligent in such a way as to cause this collision which caused the injuries? If so, are you of...

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