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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robinson v. William Hamilton (Motors), Ltd [1923] ScotLR 536 (28 June 1923)
URL: http://www.bailii.org/scot/cases/ScotCS/1923/60SLR0536.html
Cite as: [1923] ScotLR 536, [1923] SLR 536
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SCOTTISH_SLR_Court_of_Session
Page: 536↓
Court of Session Inner House First Division.
[
v.
Process — Jury Trial — Bill of Exceptions — Ambiguous Verdict — Duty of Party Excepting to Ask for Further Directions if he Thought some Misunderstanding as to the Law Involved Underlay the Jury's Finding.
Reparation — Negligence — Contributory Negligence.
Facts:
In a trial by jury of an action of damages at the instance of a pursuer who had been run down by a motor car the jury returned a verdict in the following terms—“The jury unanimously agree that there was contributory negligence on the part of both parties in not keeping a proper look-out.” The Judge directed the jury to return a verdict for the defenders. In a bill of exceptions for the pursuer, held that as the case was not one in which the jury had to select from a series of sucesssive acts of negligence committed by the parties respectively the true cause of the accident, the verdict meant that both parties were to blame, and bill refused.
Opinion ( per Lord Skerrington) that where exception is taken and counsel thinks that some misunderstanding as to the law underlies the jury's finding he ought to raise the question at the time and ask the Judge to give further directions to the jury in regard to the law applicable to the case.
This was a bill of exceptions for John Robinson, Glasgow, pursuer, in an action at his instance against William Hamilton (Motors), Limited, defenders, in which he claimed £500 damages for personal injuries sustained by him through being run down by a motor car belonging to the defenders.
The action was founded on alleged neglect of a motor driver in the service of the defenders to keep a good look-out or give proper warning of his approach. The defenders denied the existence of any negligence on their part and maintained that the accident was due to the fault of the pursuer in respect that he stepped off the pavement without looking to see if any vehicle was approaching, with the result that he sustained the injuries of which he complained.
The case was tried on 15th and 16th March 1923 before Lord Constable and a jury.
The Bill stated, inter alia—“After the evidence for both parties had been closed, and after their respective counsel had addressed the jury, the presiding Judge charged the jury, who thereafter retired to consider their verdict. On their return to the Court the Clerk of Court asked the jury
Page: 537↓
if they had decided on their verdict, and the foreman thereof answered in the affirmative, and on the Clerk of Court asking the jury what their verdict was the foreman thereof said—‘The jury unanimously agree that there was contributory negligence on the part of both parties in not keeping a proper look-out.’ Thereupon the counsel for the defenders asked the presiding Judge to tell the jury that their finding amounted to a verdict in favour of the defenders, and to direct them to return that verdict accordingly, which direction his Lordship agreed to give and did give. Whereupon the counsel for the pursuer excepted to the said direction. Thereupon the counsel for the pursuer asked the presiding Judge to tell the jury that their finding amounted to a verdict in favour of the pursuer, and to direct them to return that verdict accordingly, which direction his Lordship refused to give. Whereupon the counsel for the pursuer excepted to the said refusal. Thereafter the presiding Judge recorded the verdict of the jury for the defenders in the following terms—‘At Edinburgh, the 16th day of March 1923, in presence of the Honourable Lord Constable, compeared the pursuer and defenders by their respective counsel and agents, and a jury having been empanelled and sworn to try the issue between the parties, say upon their oath that in respect of the matters proved before them yesterday and to-day they “unanimously agree that there was contributory negligence on the part of both parties in not keeping a proper look-out,” and on the direction of the Honourable Lord Constable that what is hereinbefore quoted is a finding for the defenders, the jury unanimously find for the defenders accordingly.’ And the counsel for the pursuer having there and then proposed the foresaid exceptions, requested the said Lord Constable to sign this bill of exceptions according to the form of statute in such cases made and provided, and the said Lord Constable did sign this bill of exceptions.” At the hearing on the bill counsel for the pursuer argued—Negligence might be contributory in the legal sense as jointly causative of the accident, in which case it barred the remedy of damages, or it might be contributory merely in fact in the sense that it was an incident of the circumstances, in which case it did not necessarily bar the remedy—Salmond, Law of Torts, 5th ed., p. 46; Radley v. London and North-Western Railway Company, (1876) 1 App. Cas. 754; Grand Trunk Railway v. M'Alpine, [1913] AC 838; Gaffney v. Dublin United Tramway Company, Limited, [1916] 2 I. 472; British Columbia Electric Railway Company, Limited v. Loach, [1916] 1 AC 719; Admiralty Commissioners v. S.S. “Volute,” [1922] 1 A.C. 129; Mitchell v. M'Harg & Son, 1923, 60 S.L.R. 393. The jury had clearly used “contributory” in the non-legal sense, or they would not have applied it to the negligence of the defenders. The verdict was therefore ambiguous in respect that it failed to answer the question as to whose negligence caused the accident. There was no duty on the pursuer to ask the Judge to direct the jury to clear up the verdict. Unless the defenders obtained an unambiguous verdict the pursuer could challenge it. A verdict should therefore be entered for the pursuer or there should be a new trial.
Counsel for the defenders was not called upon.
At first blush I should read that verdict as the presiding judge interpreted it—that is to say, as meaning the same thing as if the jury had said that both parties were to blame for what happened. But Mr Carmont has argued, with much ingenuity and ability, that the verdict ought to be held bad because when carefully examined it is really not intelligible, and his motion is for a new trial.
The expression “contributory negligence” is of course not one which lawyers use to describe the negligence of a defender who escapes liability because of “contributory negligence” (in the proper sense of the term) committed by the pursuer. Moreover, it is a familiar doctrine that a pursuer cannot be convicted of “contributory negligence” merely because there has been some act of negligence on his part which was an incident or ingredient of the circumstances of an accident. In short, the technical meaning of “contributory negligence” is negligence on the part of a pursuer which is itself jointly causative of the accident along with the negligence of the defender. Thus, if the defender using ordinary care could have prevented the accident, the pursuer's antecedent want of care is not “contributory negligence.” The case of the donkey left hobbled on the highway ( Davies v. Mann, 1842, 10 M. & W. 546) is perhaps the most famous instance. Barty v. Harper & Sons ( 1922 S.C. 67) in this Division is a recent application of the same doctrine. It is plain that the jury used the expression “contributory negligence” without reference to its technical meaning, for they applied it to the defender; and it was urged that in so applying it the jury may have meant no more than that the defender had been guilty of an act of carelessness which—while it was an ingredient of the circumstances of the mishap—was not jointly causative of it along with negligence on the part of the pursuer.
Page: 538↓
This argument might have been a formidable one if there had been any ground for suggesting that the case as presented to the jury required them to select among a series of successive incidents of negligence, now by one party and now by the other, the true cause of the accident. If the circumstances of the case had been such as to raise a question of that kind it would necessarily have been the subject of argument by counsel at the trial and of direction by the judge, and if that had been so there might have been force in Mr Carmont's argument that the verdict was not such as could be relied upon as having decided the delicate questions which would then have been left with the jury for decision. But there is nothing on record to disclose any circumstances out of which a question of that kind could arise, and I did not understand it to be suggested that there did in point of fact arise any question of the kind at the trial of the case.
If any such question had arisen, a verdict in the form adopted by the jury would not have been accepted, and the presiding judge would no doubt have asked them to reconsider it. For the subsequent and truly causative act of negligence of the pursuer would have wiped out any contribution to the accident made by the earlier act of negligence on the part of the defender. In the case of M'Naughton v. Caledonian Railway Company ( 1858, 21 D. 160, at p. 166), Lord Wood in expounding the principles of law subsequently illustrated in Radley v. London and North-Western Railway Company ( (1876) 1 App. Cas. 754), said—“It certainly cannot be said that because the party injured has been guilty of some fault or negligence he cannot recover. It is not sufficient to disentitle to damages that there has been fault on his part—that he has been doing something which, strictly, he ought not to have done, and without which having been done the injury would not have occurred. The fault must be such as to have directly conduced to the injury suffered, and not merely remotely connected with it, for in that case it is not to be considered as contributing to the injury, within the principle that fault or negligence on the part of the individual injured shall afford a good answer to a claim by him for damages against a defender who has also been guilty of fault or negligence. The fault by the injured party when only remotely connected with the accident is to be, as it were, discounted from the case.” In short, it is wiped out as not being truly causative either by itself or jointly with the pursuer's negligence of the accident. In like manner if the negligence of the defender is no more than an historical incident in the circumstances of the mishap, it is to be discounted from the case and is in effect wiped out so far as liability is concerned. It is not truly causative of the accident.
In the result the appellant has not convinced me that the jury's verdict could mean anything else than that the responsibility for the accident was shared by both parties.
I am the less disposed to regard Mr Carmont's argument with favour in view of the exposition of the law of contributory negligence in the recent case of the “ Volute,” [1922] 1 A.C. 129. The judgments delivered in that case show that to make acts of negligence by the pursuer and defender jointly causative of an accident they need not be contemporaneous. If the law were otherwise the doctrine of contributory negligence would practically disappear. I respectfully express my agreement with what was said by the Lord Chancellor at p. 144—“Upon the whole I think that the question of contributory negligence must be dealt with somewhat broadly and upon common-sense principles as a jury would probably deal with it. And while, no doubt, where a clear line can be drawn the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the party secondly negligent, while not held free from blame under the ‘ Bywell Castle’ rule, might on the other hand invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution.” I find in that a further reason for refusing to entertain the argument Mr Carmont presented to us in a case in which there is no ground to believe that any occasion arose for attempting to draw any line between prior negligence on the part of the defender and subsequent negligence on the part of the pursuer.
Therefore it appears to me that we are safe to accept this verdict, as the presiding judge before whom it was returned accepted it, as meaning according to the common-sense language of a jury that both parties were to blame. If that be right, then the bill of exceptions ought to be refused.
Page: 539↓
The Court refused the bill of exceptions.
Counsel for the Pursuer— Watt, K.C.— Carmont. Agents— J. & J. Ross, W.S.
Counsel for the Defenders— Robertson, K.C.— Ingram. Agents— Allan Lowson & Hood, S.S.C.