Watt (or Thomas) v Thomas

JurisdictionUK Non-devolved
JudgeViscount Simon,Lord Thankerton,Lord Macmillan,Lord Simonds,Lord du Parcq
Judgment Date25 March 1947
Judgment citation (vLex)[1947] UKHL J0325-2
Docket NumberNo. 5.
CourtHouse of Lords
Date25 March 1947
Mrs. Janet Watt or Thomas
and
Murray Lornie Thomas.

Viscount Simon

Lond Thankerton

Lord Macmillan

Lord Simonds

Lord du Parcq

House of Lords

Viscount Simon

My Lords,

1

This is the wife's appeal from a judgment of the Second Division of the Court of Session (Lord Justice-Clerk Cooper, Lord Mackay, and Lord Stevenson) reversing the decision of the Lord Ordinary (Lord Patrick), who refused to grant to the Respondent, the husband, a decree of divorce on the ground of his wife's cruelty. The main ground for this reversal was that the members of the Court of Session took a different view from that of Lord Patrick of the facts as disclosed by the evidence given at the original hearing, and of the inferences properly to be drawn therefrom. The reasons for taking this different view are set out in an elaborate Opinion delivered by Lord Mackay. The main question, therefore, which the House has to determine is whether there is sufficient justification for reversing the conclusion reached by Lord Patrick.

2

Before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a Case Stated or on an appeal under the County Courts Acts) an appellate court has of course jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. What I have just said reproduces in effect the view previously expressed in this House—for example by Viscount Sankey in Powell and Wife v. Streatham Manor Nursing Home [1935] A.C.243 at p. 250, and in earlier cases there quoted. Lord Greene M.R. admirably states the limitations to be observed in the course of his judgment in Yuill v. Yuill [1945] P.15 at p. 19. Lord President Clyde, in Dunn v. Dunn's Trustees (1930) S.C. 131 summarised the scope of appellate correction, with copious citation of earlier authority, and I agree with him that the true rule is that expounded by Lord President Inglis in Kinnell v. Peebles, 17 R. 416, that a Court of Appeal should "attach the greatest weight to the opinion of the judge who saw the witnesses and heard their evidence" and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound.

3

It not infrequently happens that a preference for A's evidence over the contrasted evidence of B is due to inferences from other conclusions reached in the judge's mind, rather than from an unfavourable view of B's veracity as such: in such cases it is legitimate for an appellate tribunal to examine the grounds of these other conclusions and the inferences drawn from them, if the materials admit of this; and if the appellate tribunal is convinced that these inferences are erroneous, and that the rejection of B's evidence was due to the error, it will be justified in taking a different view of the value of B's evidence.

4

I would only add that the decision of an appellate court whether or not to reverse conclusions of fact reached by the judge at the trial must naturally be affected by the nature and circumstances of the case under consideration.

5

What I have said applies to appeals from a judge sitting alone. Conclusions of fact embodied in the verdict of a jury cannot be subjected to the same degree of re-examination—for the course of reasoning by which the verdict has been reached is not disclosed—and consequently the verdict of a jury on fact must stand if there was any evidence to support it and if the conclusion is one at which a reasonable jury when properly directed might reasonably arrive.

6

I now turn to the evidence in the present case. The parties were married on February 27,1927, and have two children—Lornie, born in March 1928, and Maurice, born in August 1931. It is an important fact that the family home was a house at Alyth which belonged to the wife. There husband and wife lived together with a fair degree of happiness till the latter half of 1939, when relations began to deteriorate—the wife says because her husband showed too much attention to a lady employed in his business and named Miss Margaret Stewart. Miss Stewart, at his suggestion (but without objection at that time from Mrs. Thomas) was included in motor-trips which the husband and wife took to the Highlands, and there were occasions when he drove her by herself over to Dundee to see her mother, and took her in his car to and from her lunch. In July 1939 he motored her alone to the Highland show—Lord Mackay is mistaken in saying that he said this trip had a business object—though the circumstances out of which it happened that Mrs. Thomas did not accompany them are not agreed. In August the wife opposed his suggestion that they should all three spend a few days' holiday at Bournemouth together. It is plain, as Lord Patrick says, that the defender had become very jealous of Miss Stewart, and that the pursuer was treating her as more than an employee. The defender never accused the pursuer of improper conduct with Miss Stewart, though at a later date she wrote reproaching him with "your love affairs" and referred to her in very opprobrious terms.

7

By September 1939 the situation was that the wife deeply resented this friendship and insisted that it should cease, while the husband valued Miss Stewart's services to his business and regarded his wife's attitude as quite unreasonable. Lord Patrick considers that the husband should have met this situation by getting rid of his employee at once, and that by not doing so he brought about the subsequent crisis: Lord Mackay strongly differs and considers that such dismissal was not called for and would have been "the worst course".

8

However this may be, what followed was that the defender's jealousy developed into an obsession, and in her dealings with her husband she frequently lost all control of herself and of her tongue. In the second week of September he says that she woke him up one night and accused him of saying "Darling Margaret" in his sleep, and that a row ensued between them, the noise of which brought his sister to their room. The sister testified that the defender was "in a high state of temper" and kicked her husband with her bare feet, afterwards dressing herself and rushing out of doors in the dark, where she remained for some time. Matters went from bad to worse: when he insisted that she must occupy a separate room for sleeping in order that his rest should not be broken, she disturbed him by getting up in the night and banging the doors in the house. According to him this happened constantly. He on his side reacted to her reproaches by maintaining silence. In November 1939 she went into hospital for a gynaecological operation and later, being on the verge of a nervous breakdown, returned there for some months, finally coming home in April 1940. She complains of her husband's neglect during her illness and says that when he saw her he refused to speak to her. The Lord Ordinary regarded this as "sulky silence": the husband excused himself by saying that if he opened his mouth, his wife always put him in the wrong. He even went so far as to leave the weekly house-keeping money, when she returned home, on the dining-room table, or to send it by their son Maurice, rather than hand it to her directly.

9

In July 1940 Miss Stewart left his service of her own accord and found new employment in Dundee. There is no evidence that he ever saw her again. This did not, however, restore cordial relations between man and wife. She remained in a highly-strung condition and continued to bang doors at night while he continued to abstain from conversation. On August 1st, he records in his diary, and confirms in his evidence. "Janet came to my room during night (morning) and tells me she is to give me twenty-four hours to find other accommodation, as she does not want me any more. As I go to bed at night she asked me if I had got other accommodation. I did not reply". On August 4th there was an air raid, when the wife resented his silence while he spoke to the maid, and demanded that he should hand over the key of the house. Throughout this month she was repeatedly insisting that he should leave the house altogether, and hand over his key to her. Finally, on September 7th, she came to his room early in the morning to tell him to "clear out", demanding the house-key and threatening to "split his head open" if he stayed. Mrs. Thomas did not deny that she made this threat. Later in...

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