Scottish Court of Session Decisions

At advising on 2nd February 1940,—

LORD PRESIDENT (Normand).—The pursuers in this case are Mrs Mars, who sues for personal injuries, and Mr Mars, who sues as tutor for their pupil daughter Margaret in respect of injuries to her. They sued, as the action was originally laid, the Glasgow Corporation, averring that Mrs Mars and the child were passengers in one of the Corporation tramway cars on the 14th May 1938, and that the tramway car was pulled up with great suddenness, by a violent application of the brake, causing Mrs Mars and the child to be thrown from their seats so that they suffered the injuries complained of. The pursuers also averred that the driver had a duty, when he was stopping his vehicle, to apply his brakes in such a manner as to cause no disturbance to the equilibrium of the passengers. The defenders, the Corporation, admitted this duty, and they also admitted that the tramway car was brought to a sudden stop. Upon these admissions the pursuers were in a position to maintain that, if they further proved that the tramway car was stopped by a sudden braking and that Mrs Mars and the child had been thrown from their seats and suffered injury thereby, they had prima facieestablished negligence and liability against the defenders whom they had called.

But, then, the Corporation, after making the admissions I have noted, went on to aver that the accident was caused by the fault or negligence of a third party, the driver of a car which suddenly and without warning overtook the tramway car on its near side and swerved across the tramway line so close to the front of the tramway car as to create a position of immediate danger and so compel the driver of the tramway car to apply his magnetic brake in order to avoid a collision. The pursuers, after this defence had been tabled, called as second defender the driver and owner of this motor car, and substantially repeated the Corporation's averments as against this new defender in the form of an alternative case.

The action went to proof, and the learned Sheriff-substitute has assoilzied both defenders. He held that it was not proved that the second-named defender had in fact overtaken and swerved in front of the tramway car. That was, of course, a good reason for assoilzieing her. Why he assoilzied the Corporation I have some difficulty in explaining, but he says that he was left in doubt, and he did not think that the pursuers had clearly and unequivocally proved either of their mutually destructive alternatives, viz., that the accident was entirely the fault of the Corporation, or entirely the fault of the second-called defender.

I think there has been some misunderstanding of the legal position, and especially of the onus of proof. The pursuers established a prima facie case of negligence against the Corporation by the admissions and by proof of facts which are now no longer disputed, but the Corporation could excuse themselves by proving that their driver's action was not the result of his negligence but the result of the negligence of the second-named defender, which forced him to draw up his tramway car suddenly. If that is proved, the party liable is the second defender, but, if it is not proved, the Corporation are liable, because they have failed to discharge the onus resting upon them of establishing by evidence a reason other than their servant's negligence for what was prima facie his negligent act. I say this, not because I think that the brocard res ipsa loquitur applies, but because the stopping of a tramway car by braking so violently as to throw the passengers off their seats is evidence of negligence, and conclusive evidence of negligence if no justification is proved.

The circumstance that the pursuers led practically the whole evidence in the case may probably have obscured the position and led the Sheriff-substitute to believe that the pursuers must be taken as bound to prove either that the second-named defender was guilty of the negligence ascribed to her by the Corporation, or that the action of the driver of the tramway car in applying his brake suddenly was without reasonable justification. At least it appears to me that that is the only way by which a verdict of not proven on the negligence averred against the second defender can be supposed to operate as a ground for assoilzieing the Corporation. Such a use of a not proven verdict is plainly to put the pursuers to the proof of the negative, and the true legal position, in my opinion, is that the Corporation must on the evidence, no matter who adduced the witnesses, establish the explanation offered by them.

There is a further difficulty, that Mr Mars himself gave evidence which may be read as to a large extent exculpating the tramway car driver. I shall have to deal with his evidence presently, but I think that it may have led the Sheriff-substitute to the view which he took. [His Lordship then considered the evidence adduced to show that the second defender was guilty of the negligence averred against her, and said]—

Now, it is here that I must refer to the difficulty created by Mr Mars's evidence. He is one of the pursuers, albeit he sues in a representative capacity for damage sustained by his pupil child, and it is clear from his evidence that from his observation immediately after the accident he inferred that the sudden stopping of the tramway car could be explained by the cutting-in of the second-called defender's motor car in a manner so dangerous that the tramway car driver was compelled to take the emergency step of a sudden stop. In many cases where a party to an action gives evidence which exculpates the defender the defender may well be content and may say that the case has been by that evidence virtually withdrawn as against him; and one of the questions which has troubled me in this case is precisely whether that is the situation which has arisen here.

I do not think that it is. It may be important that Mr Mars is suing only in a representative capacity, and that his evidence is really given as the evidence of an individual eye-witness of some of the circumstances attending the accident. But I do not proceed on that. Mr Mars has tabled and has insisted in an action which was primarily directed against Glasgow Corporation; he did that under the advice of his solicitor, who no doubt had regard to all the evidence which was to be led; and, when he gave his evidence, he was giving evidence which in its general tenor supported the case for the Glasgow Corporation that the accident had been occasioned by the negligent cutting-in of the second-called defender's car. But it is necessary to distinguish. This is not the simple case where a party is giving evidence of an event which was wholly within his knowledge and immediate observation. So far as he gave evidence on the facts within his observation immediately at the time of the occurrence, these facts were that the tramway car was brought to a sudden stop and that a lady, in the part of the car in which he himself was travelling, was knocked down by the jolt. The evidence which gives difficulty in the case is evidence of what he observed after that event, viz., the presence of the second defender's car in front of the tramway car, and from that he drew an inference that the second-named defender's car had overtaken and swerved in front of the tramway car. That inference might or might not be right. Supposing Mr Mars to have been asked whether, in view of his evidence, he withdrew his claim against the Glasgow Corporation and intended to proceed only with his claim against the second-named defender, he might have answered, "Yes, I do withdraw my claim against Glasgow Corporation," or he might have answered, "No. I have given evidence which, I am advised, and which I consider, shows that there may have been fault on the part of the Glasgow Corporation. On the other hand, I have truthfully deponed to facts which may by inference explain the occurrence in a manner consistent with due care on the part of the tramway car driver. There is other evidence in the case, and my evidence falls to be considered along with that other evidence."

I think it is quite open to a pursuer to take up a position of that kind, and therefore I think that Mr Mars is not, as it were, barred by anything in his evidence from proceeding in his action against Glasgow Corporation. It would be unfortunate if we reached a conclusion that might mean that Mrs Mars was entitled to recover in respect of her own injuries against the Corporation, but that the damage suffered to the child became irrecoverable in consequence of the evidence given by her father as claiming on her behalf. [His Lordship then examined the evidence adduced by the second defender to show that her car at the time of the accident was stationary at the crossing place when the tramway car, with a loud noise of braking, came to rest beside her car. Having done so, he continued]—

I therefore feel compelled to hold that the case as against the second-called defender has not been proved, and to affirm the finding of the learned Sheriff-substitute upon that point. I would have it clearly understood that I do not affirm against the driver of the tramway car any want of good faith. My verdict is, like the verdict of the Sheriff-substitute, a verdict of "not proven" as against Miss M'Ginnis.

It is always unsatisfactory to dispose of a case upon a point of onus. It is far more satisfactory to the parties, and it is far more satisfactory to the Court, when a case can be decided by holding that it has been positively proved or disproved. Nevertheless, in this case I feel that we must decide it upon the point of onus.

The result is, in my opinion, that we must hold that the Glasgow Corporation are the parties liable for the injury suffered by Mrs Mars and her child in this accident.

LORD MONCRIEFF .—I am entirely in agreement with your Lordship upon all the points which you have dealt with in your opinion, and I have little to add. I regret, with your Lordship, that a case, after extensive inquiry and the hearing of evidence, should require to be decided upon inferences, but I agree that this is a case which can only be decided upon a proper distribution of the onus of proof.

It is no longer in dispute that, as the result of the stoppage of the tramway car, the two parties for whom damages are claimed against the defenders were both thrown off their feet and injured. It is admitted on behalf of the defenders first called that their driver had a duty of bringing his tramway car to a stop in such a manner as to cause no dangerous disturbance to the equilibrium of his passengers, and it is further admitted that as matter of fact on the occasion in question the tramway car was brought to a sudden stop. Upon those admissions and upon proof of resulting injury there arises an inference of liability against the defenders first called, and that inference will not be displaced unless all fault associated with the breach of duty be effectively transferred against another party. The burden of so transferring the fault against another party rested, in my opinion, clearly upon the party who desired to establish any such defence, being the defenders first called, and was a matter with which the pursuers had ceased to be concerned, unless they desired to insist also in their claim against the second defender.

The defenders first called sought to discharge the burden by proving that at the last moment a car had cut out across their course, compelling them, unless they were to incur the danger of collision, to bring the tramway car to a stop in the sudden manner in which in fact it was brought to a stop. Had they proved that defence, they would at the same time have escaped liability and have transferred liability against the person who thus had trespassed upon their use of the road.

They brought evidence which was cogent evidence to support that defence. There was, however, other evidence before the Court, led on behalf of the driver who was alleged to have executed this manœuvre, and this evidence requires careful consideration. Upon consideration of the two stories, I agree with your Lordship that the only proper view to be taken is to hold that the defence has not been established. In so holding I further agree with your Lordship that we do not suggest that fault has been proved affirmatively by witnesses against the driver of the tramway car, but only that he has failed to acquit himself by evidence of the fault falling to be inferred against him from the admissions of his employers.

Mr Sloan, in his able and interesting argument, sought to maintain that, as in a case of res ipsa loquitur, in such a case as this, which turns on the onus of proof, the onus remained on the pursuer if an explanation should be suggested of the event which would, if proved, acquit the defender of fault. I think, however, that that was a misapplication of a quite familiar doctrine. It is established as regards res ipsa loquitur that the res which is to affect the onus of proof must speak with an unambiguous voice. As soon as the res can be explained alternatively, upon one alternative as suggesting fault and on the other alternative as not suggesting fault, the res disappears as an unambiguous indication of where lies the responsibility for the event; and in such a case the ordinary rules as to onus of proof apply, and the pursuer remains under the burden of proving his case. In such a case as the present, however, if admissions be made by a defender which, unless a concurrent defence be also proved, result in his incurring liability for an event, he must not only aver, but must himself also prove, the explanation which is required to elide the consequences of his admission.

I agree with your Lordship in particular as to all you have said as regards the evidence given by the titular pursuer in this case. I rely less upon the fact that he sues the action in a representative capacity than on the explanation of the function of such testimony as given by your Lordship. I do not think that one who has brought an action asserting a two-fold claim, and who gives evidence in support of his case, must necessarily be held to have withdrawn one of these claims because his testimony in causa may become available and be open to be used for the purpose of defence against that claim. I regard the evidence which he tenders, including his own evidence, as being the matter upon which his claim falls to be determined; and, unless he in terms withdraws one branch of his action or be excluded from maintaining it by the whole of the evidence, I do not think that an inference negativing that claim can be held to be concluded against him.

LORD CARMONT .—I agree with your Lordship and have nothing to add.