3PLR – BARKWAY V. SOUTH WALES TRANSPORT CO., LTD.
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BARKWAY
V.
SOUTH WALES TRANSPORT CO., LTD.
[COURT OF APPEAL]
1948 MAY 25, 26; JULY 9.
CITATIONS
[1949] 1 K.B. 54
BEFORE THEIR LORDSHIPS:
SCOTT, ASQUITH AND BUCKNILL L.JJ.
REPRESENTATION
- Edmund Davies K.C., Platts-Mills and Stephen Phillipsfor the plaintiff.
Fox-Andrews K.C. and Gerwyn Thomas for the defendants
Solicitors for the defendants: Stanley & Co., for D. H. Clarke, Swansea.
Solicitors for the plaintiff: Kenneth Brown, Baker, Baker for D. Brinley Morris, Llanelly.
MAIN ISSUES
TRANSPORTATION AND MOTOR VEHICLE LAW:- Fatal accident – Action in negligence against defendants for Omnibus accident – Relevant considerations
EMPLOYMENT AND LABOUR LAW:– Evidence of employee on behalf of employers in an action in negligence against employers by a third party– When deemed evidence of “Person interested” – Admissibility – How treated
CHILDREN AND WOMEN LAW: Widows and Justice Administration – Fatal accident – Negligence – action brought by widow of a passenger killed in an omnibus accident – How treated
PRACTICE AND PROCEDURE – EVIDENCE:- Two actions for negligence against company in respect of same accident – Where witness in first action dies – Whether transcript of his evidence in first action not admissible in second action – Part of transcript put to a witness in cross-examination – Whether whole must be read – Evidence Act, 1938 (1 & 2 Geo. 6, c. 28), s. 1, sub-ss. 1 (i.) (b), 3 and 4.
SUMMARY OF FACTS AND JUDGMENT
The tyre of an omnibus burst and an accident followed in which a number of passengers were killed or injured. J. a tyre-tester employed by the omnibus company, gave evidence for them in an action for negligence brought against them by an injured passenger. Later the widow of a passenger killed in the accident brought a second action for negligence against the company in respect of her husband’s death, but meanwhile J had died.
Counsel for the widow in that action put views expressed by J in the first action to a witness in cross-examination but neither side applied for the transcript of J’s evidence in the first action to be admitted in evidence at the trial of the second action. Judgment was given for the widow and the company appealed. Counsel for the company applied in that appeal for the transcript of J’s evidence in the first action to be admitted in evidence:-
Held, (i.) that the person who “made” the transcript within the meaning of s. 1, sub-s. 1, of the Evidence Act, 1938, was the shorthand-writer, because he satisfied the conditions of sub-s. 4, and not J, who did not satisfy those conditions; (ii.) that J’s evidence was not “information supplied to” the shorthand-writer within the meaning of sub s. 1 (i.) (b) of s. 1; and (iii.) that the transcript was therefore not admissible in evidence under that section.
Edmonds v. Edmonds [1947] P. 67 distinguished.
Held, also (i.) that J was “interested” within the meaning of sub-s. 3 of s. 1 in that (a) his reputation as a tyre-tester was involved, and (b) he was interested as an employee in his employers winning the case; (ii.) that the transcript was “made by a person interested” within the meaning of that sub-section, although the shorthand-writer was not interested, because J was interested; and (iii.) that the transcript was therefore also inadmissible under sub-s. 3.
Held, also that the fact that in the second action the widow’s counsel put views expressed by J in the first action to a witness in cross-examination did not make the transcript admissible by reason of the rule that where part of a document is read by one side the whole of its text must, if the other side insist, also be read.
APPEAL from Sellers J.
On February 27, 1943, a double-decked omnibus belonging to the defendants left the road and turned on its side. The accident was caused by a tyre-burst due to an impact fracture suffered by the tyre on an earlier occasion. The fracture would not have been revealed on a superficial examination. There were fifty-three passengers on the omnibus. Four were killed and others were injured.
Later in 1943 one of the injured passengers brought an action for negligence against the defendants (hereinafter called “the first action”) and one Jenkins, a tyre-tester and fitter employed by the defendants, gave evidence on their behalf.
Lewis J. who tried the first action, found that the defendants had not been negligent and gave judgment in their favour.
Meanwhile the widow of George Morgan Barkway, who was one of the four passengers killed in the accident, brought another action against the defendants for negligence (herein-after called “the second action”) but before that action came to be tried the witness Jenkins had died, At the trial of the second action before Sellers J. views expressed by Jenkins in the first action were put to a witness in cross-examination by counsel for the plaintiff, but no application was made by counsel on either side to admit as evidence in the second action the transcript of Jenkins’ evidence in the first action. Sellers J. found that the defendants had been negligent and awarded 2,000l. damages to the plaintiff. The defendants appealed.
Fox-Andrews K.C. and Gerwyn Thomas for the defendants applied in the course of the hearing of the appeal that the transcript of Jenkins’ evidence in the first action should be admitted as evidence in the appeal. The transcript of Jenkins’ evidence in the first action was admissible in evidence in the second action, and is therefore admissible in evidence in the present appeal. The court, in the exercise of its discretion, should accept the record of the evidence of such a person in the present circumstances. If evidence, otherwise admissible in the present case, were contained in an affidavit sworn in connexion with another case the court would have the right to look at it. It follows that the court should be entitled to look at the written record of the evidence of a witness in another case, where it is material.
[BUCKNILL L.J. The court has no discretion to admit evidence. Either it is admissible or it is not.]
The words of R. S. C. Or. 32, r. 2, sub-r. 3, which provide that where one party has called upon another to admit any document, and that other gives notice of non-admission, the costs of proving the document shall be paid by that other unless “the court or a judge shall certify that there were reasonable grounds for not admitting the authenticity of the document” show that a court has a discretion in the matter. Similar wording is to be found in Or. 32, r. 4.
Jenkins’ evidence in the first action is admissible under s. 1 of the Evidence Act, 1938(1) as a statement “made by a person in a document and tending to establish” a fact of which direct oral evidence would be admissible. It is difficult to contend that the transcript is a document made by the witness Jenkins, but it is clearly a document made by the shorthand-writer. The shorthand-writer made the statement “in the performance of a duty to record information supplied to him” as required by sub-s. 1 (i.) (b) of s. 1; Edmonds v. Edmonds (2), Bullock v. Borrett (3). As regards sub-s. 3 “person interested” in that sub-section refers to the person who made the document referred to in sub-s. 1. That person was the shorthand-writer, and he was not a “person interested.”
At the trial of the second action counsel for the plaintiff cross-examined one of the witnesses of the defendants about Jenkins’ evidence in the first action. That fact should be deemed to have brought in the whole of Jenkins’ evidence. As counsel sought to ascertain part of that evidence it is right and just that the whole of that evidence should be produced. The rule is that where part of a document is read by one side the whole of its text must, if the other side so insist, also be read. and that rule applies here.
(1) The Evidence Act, 1938, s. 1, sub-s 1: “In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say –
“(i.) if the maker of the statement either –
“(a) had personal knowledge of the matters dealt with by the statement; or
“(b) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters …
Sub-section 3: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
Sub-section 4: “For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written made or produced by him with his own hand, or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.”
(2) [1947] P. 67.; (3) [1939] W. N. 49; 55 T. L. R. 408.
- Edmund Davies K.C., Platts-Mills and Stephen Phillipsfor the plaintiff.
The evidence of the witness Jenkins was not “information supplied to” the shorthand-writer in the first action within the meaning of the Evidence Act, 1938, s. 1, sub-s. 1 (i.) (b). It was information supplied to the court. Edmonds v. Edmonds (1) is distinguishable because there the information was supplied to a commissioner, and it was he who transcribed and signed it. In Bullock v. Borrett (2)evidence taken down by a justices’ clerk was admitted by the mutual consent of the parties and the question of its admissibility under s. 1, sub-s. 1 (i.) (b) did not therefore directly arise. Nor was the transcript of Jenkins’ evidence “made” by the shorthand-writer within the meaning of s. 1. He neither signed nor initialled it nor otherwise recognized it in writing within sub-s. 4. Furthermore the transcript of Jenkins’ evidence in the first action is rendered inadmissible in the second action, and in the present appeal, by sub-s. 3 of s. 1, because Jenkins was a “person interested” within the meaning of that sub-section. He was interested both because his reputation as a tyre-tester was at stake, and because he was an employee of the defendants; Plomien Fuel Economiser Co., Ld. v. National Marketing Co. (3).
(1) [1947] P. 67.; (2) [1939] W. N. 49; 55 T. L. R. 408.; (3) [1941] Ch. 248.
The transcript is not admissible in evidence in the present appeal on the ground that if part of a document is read by one side the whole of the text of it must, if the other side insist, also be read. Views expressed by Jenkins were admittedly put to a witness in cross-examination in the second action, but no objection was taken to that cross-examination at the time, and no application was then made that the whole of the transcript of Jenkins’ evidence should be read.
SCOTT L.J. said that the court did not desire to hear further argument on the evidence point, that they refused to admit the transcript of Jenkins’ evidence in the first action as evidence in the appeal in the second action, and that they would give the reasons for their decision after the hearing of the appeal had been closed.
MAIN JUDGMENT
July 9. ASQUITH L.J. gave judgment accordingly, with which SCOTT L.J. and BUCKNILL L.J. agreed.
Counsel for the defendants pressed the court to admit in evidence the transcript of the evidence given by Jenkins in the first action. He based his application on two grounds, of which the chief was that the testimony was made admissible in the present case by s. 1 of the Evidence Act, 1938.
He had first to establish that the testimony that he sought to have admitted was a “statement made by a person in a document” within sub-s. 1 of s. 1. Who is the “the person” and what is the “document” in this case? The “document” can only be the transcript of the evidence. The “person” must be either (a) the dead man, Jenkins, or (b) the maker of the typed transcript of the evidence, the shorthand-writer.
Alternative (a), (apart altogether from the artificiality of describing a witness whose evidence is taken down and embodied in a transcript as a person “making a statement in a document”) is ruled out by the express terms of sub-s. 4. In the present case none of the conditions prescribed by that sub-section was fulfilled. The deceased Jenkins was not the maker or producer with his own hand of the transcript, nor is there any evidence that he signed or initialled it, or vouched for its accuracy in writing. The case might have been otherwise, obviously, if his evidence had been in a signed deposition.
Alternative (b) is that the “person” making a “statement” in the “document” was the shorthand-writer, the maker of the transcript. If this contention is otherwise well founded, it is not barred, like the first alternative, by sub-s. 4 since a shorthand-writer “makes or produces” the transcript “with his own hand.” But is it otherwise sound? The defendants say that it is by reason of the terms of s. 1, sub-s. 1 (i.) (b). It was argued that within the language of that provision the transcript is a “document” and a document which is a “continuous record,” that the transcript writer made a “statement” in that “document” and that in so doing he was performing a duty to record information supplied to him, viz. Jenkins’ evidence, and that Jenkins was a “person who had or might reasonably be supposed to have personal knowledge of the matter” dealt with in the statement. In support of his submission that the facts of this case fall within s. 1, sub-s. 1 (i.) (b) counsel cited Edmonds v. Edmonds (1)a decision of this court and binding on us; and Bullock v. Borrett (2) a decision of Finlay L.J. sitting as an additional judge of the King’s Bench Division.
(1) [1947] P. 67.; (2) [1939] W. N. 49; 55 T. L. R. 408.
In Edmonds v. Edmonds (1) a husband was bringing divorce proceedings against his wife in England on the ground of his wife’s adultery with the co-respondent in India, which he alleged had resulted in the birth of an illegitimate child there. In India the wife had brought affiliation proceedings against the co-respondent in respect of such illegitimate child. In the Indian proceedings, a Mrs. Ingles had given evidence which supported the wife’s claim and hence the hypothesis of the wife’s adultery. Such evidence was given on commission and taken down by a commissioner who signed the document. The Court of Appeal held that the document so signed, recording Mrs. Ingles’ evidence, was admissible in the English suit for divorce by virtue of sub-s. 1(i.) (b) of s. 1. The Court of Appeal undoubtedly took the view that evidence given before the commissioner in the Indian proceedings could answer the description of “information supplied” to such commissioner within sub-s. 1(i.) (b) for the purpose of its admissibility in the English proceedings. But there are, it seems to us, two important distinctions between the facts of that case and those of the present. In that case the evidence was held to be “information supplied” to the maker of the document, the maker of the document being the commissioner, the court. To say that evidence given in court is information “supplied to” the court seems to us an entirely different thing from saying, as we are invited to say in this case, that evidence given in court is information supplied to the shorthand-writer. If a man dictates a letter giving information to the person to whom he is writing it is an abuse of language to say he is engaged in “supplying information” to his shorthand-typist.
But there is a further ground of distinction. There is no suggestion in the report of Edmonds v. Edmonds (1) that Mrs. Ingles was in any way interested in the result of either the Indian or the English proceedings. It is clear, on the other hand, that Jenkins was a “person interested” in the result of the first action and would, if he had lived, have been interested in the result of the present proceedings, which were instituted before the first action came to trial. His reputation as a tyre-tester was involved, and apart from that he was interested as an employee in his employers winning the case. (See Plomien Fuel Economiser Co., Ld. v. National Marketing Co. (2).)
It was argued in answer to this objection that where sub-s. 3 speaks of “any statement made by a person” the “person” spoken of is not the person whose evidence is transcribed, Jenkins, but the person transcribing it; in other words that the word “person” in sub-s. 3 is the same “person” as in sub-s. 1, in this case the shorthand-writer, and that the shorthand-writer is not a “person interested.” On consideration, in spite of the similarity of the phrases employed in the two sub-sections, we do not think so narrow a construction can prevail. We think that in sub-s. 3 “a person” means any person whatsoever provided he is interested. On the narrower construction the mere accidental interposition of a shorthand-writer would let in statements of interested parties whose evidence, because interested, the Act intended to exclude, and sub-s. 3 would be largely stultified.
The other case relied on by Mr. Fox-Andrews, Bullock v. Borrett (1) is easily distinguishable and, in any case, though commanding the respect due to the Lord Justice who decided it sitting in the King’s Bench Division, is not binding on this court. The construction of the Evidence Act, 1938, is not free from difficulties but in our view the evidence sought to be admitted in this instance is not let in by its provisions.
Mr. Fox-Andrews relied as a subsidiary argument on the fact that at the trial of this case a witness had put to him, in one question at least, views which cross-examining counsel suggested Jenkins had expressed in the earlier trial. Mr. Fox-Andrews relied on the rule that if part of a document is read by one side the whole of the text of it must, if the other side insist, also be read. We do not think that the operation of that rule, assuming it otherwise to be applicable, is attracted in every case in which counsel cites to a witness A statements given by a witness B in previous proceedings and says to A, “Do you agree?” No objection seems to have been made to those questions at the time nor, at the time, was any application made to let in the rest of Jenkins’ evidence. We are of opinion that on neither ground can the evidence in question be let in.
Evidence rejected.
(1) [1943] W. N. 49; 55 T. L. R. 408.
- P. C.
