Wauchope v Mordecai
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 19 November 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1119-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 1969 |
[1969] EWCA Civ J1119-1
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls (Lord Denning)
Lord Justice Salmon and
Lord Justice Edmund Davies
Mr. G.H. GARNER (instructed by Messrs. John Wood & Co.) appeared on behalf of the Plaintiff Appellant.
Mr. JOHN MAY, Q.C., and Mr. ANTHONY ALLEN (instructed by Messrs. Stanley & Co.) appeared on behalf of the Respondent Defendant.
Mr. Wauchope came from overseas to this country in the year 1962. On the 29th July, 1964, at nearly 9.30 at night he was riding his bicycle along the Stoke Newington High Street. There was a collision between him and the door of a motorcar. He was thrown off his bicycle and injured. He was taken to hospital, found to have a strained ankle, and sent home. He went to his doctor next day and was certified as being unfit for work. His doctor made an entry: "injured right ankle; no bone injuries". On the 31st August, 1964, the doctor signed him off as recovered. He said: "Mr. Wauchope has been suffering from a sprained ankle and is now able to follow his occupation".
Mr. Wauchope was seen by the police. They took statements from some witnesses and from the driver of the motorcar, Mr. Mordecai. They launched a charge against Mr. Mordecai, the driver of the car, for breach of the Motor Vehicles Regulation which says that: "….no person shall open or cause or permit to be opened any door of a motor vehicle on a road so as to cause injury or danger to any person". On the 9th November 1964 the charge came before the Magistrate, Mr. Milton. He convicted Mr. Mordecai of opening the door of a motor vehicle so as to cause injury or danger, and fined him £5. We have the notes of the evidence. The police constable gave evidence, that Mr. Mordecai had said after the accident: "I had just parked the car. I opened the door. He hit it and came off."
Seeing that Mr. Mordecai was convicted, Mr. Wauchope felt chat he had a good claim for dances against Mr. Mordecai. But he persuaded himself that he had not only sprained his ankle but had injured his back too. On the 15th September, 1969 he was seen by Mr. Armstrong, a surgeon. Mr. Wauchope's opening words to the surgeon were that he had had a fall from a bicycle and subsequently pain in the back. But then, under the surgeon's further enquiries, he admitted that he had had pain in the back for two years. The surgeon ordered a lumbar corset.
Mr. Wauchope, in due course, brought an action against Mr. Mordecai claiming that his back injury was due to the accident. The case came for trial before Mr. Justice Paull in February of this year. He acquitted Mr. Mordecai altogether of negligence and dismissed the claim.
I will first consider liability. The Judge unfortunately was not told by anyone that the Civil Evidence Act of 1968, section 11, was already in operation. It cones in Part II, which was brought into force by an Order in Council on the 25th October, 1968. Under that section, the conviction of Mr. Mordecai by the Magistrate was admissible in evidence. Not knowing of it, the Judge went by the old law in ( Hollington v. F. Hewthorn Co. Ltd. and another 1943 1 K.B. 587). He ignored the conviction altogether. He said: "It has nothing to do with me whether a Magistrate heard it; it has nothing to do with me whether the Magistrate thought it right………. It does not matter to me one iota whether the Magistrate thought you were to blame or thought the motorist was to blame. It does not matter."
That was wrong. Section 11(1) of the Civil Evidence Act, 1968, says: "In any civil proceedings the fact that a person has been convicted of an offence…….shall……be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence." So the conviction was admissible in evidence.
Eventually the Judge rested his decision on the burden of proof. He came down against Mr. Wauchope saying: "I think he was riding down that road in the twilight pretty fast, and I think that as he rode down pretty fast he just failed to give Mr. Mordecai just those few inches of room. The net result was that his shoulder hit Mr. Mordecai's car and the result of that is that he fell on the road. I am not saving that I am altogether certain that that is true, but I am not satisfied that the other story is true. It could have happened either way, but, on the whole, I think Mr. Mordecai's story rings just a little more truly than the plaintiff's."
The Judge was wrong on the burden of proof. Unknown to him, subsection (2) of section 11 had been brought into force. It says that: "In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence…. (a) he shall be taken to have committed that offence unless the contrary is proved." So in this case, in view of the conviction, it was to be taken that Mr. Mordecai had opened the door of the car so as to cause injury, unless the contrary was proved. The burden of proof in this civil case was altered. Instead of the burden being on Mr. Wauchope to prove that Mr. Mordecai was negligent, it was for Mr. Mordecai to prove that he had not opened the door so as to cause injury. If the Judge had been reminded of this new Act, 1 think that he would have held in favour of Mr. Wauchope.
I say nothing as to the point which was discussed in the recent case of Stupple v. Royal Insurance Co. Ltd. on the 13th October of this year, which is only reported in The Times newspaper. The new Act certainly reverses the burden of proof, but does it go further and impose an exceptionally heavy burden? That point does not arise in the present case. Suffice it to say that here, owing to the...
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