Barkway v South Wales Transport Co

Ltd
TORTS; Negligence: TRANSPORT; Road

COURT OF APPEAL

SCOTT, BUCKNILL AND ASQUITH LJJ

25, 26, 28, 31 MAY, 1, 2, 3, 4 JUNE, 9 JULY 1948

Negligence – Presumption of negligence – Highway – Skid – Omnibus mounting pavement and falling
down embankment – Accident due to tyre-burst – Impact fracture of tyre – No evidence when or
how caused – Reasonable system of tyre maintenance by defendants.

Evidence – Admissibility – Document – “Information supplied” to person making statement –

“Person interested” – Transcript of evidence given in earlier action brought on same facts, but by
different plaintiff – Death of witness before trial in present proceedings – Evidence Act, 1938 (c 28), s
1(1)(i) (b), (3), (4).

At about 6.30 am on 27 February 1943, a motor omnibus belonging to the defendants, and carrying
53 passengers among whom was the plaintiff’s husband, was passing through a village when the off-
side front tyre burst, the omnibus went over to the off-side of the road, mounted the pavement,
crashed into some railings, and fell down an embankment, killing four of the passengers, including
the plaintiff’s husband, and injuring others. The tyre-burst was caused by an impact fracture of the
cord of the outer tyre, but there was no evidence when the fracture occurred. Evidence was given
that an impact fracture was caused by a severe blow which could happen without leaving any visible
mark on the outer surface of the tyre and might not be visible even if the tyre were removed from
the rim and examined. The tyre, while fixed on the rim, had been examined periodically by an
expert tyre fitter employed by the defendants, the last examination being 3 days before the
accident, and it was the practice of the defendants to have tyres examined internally after every
25,000 miles when they had been running on fairly bad roads. The tyre in question had run about
23,545 miles, and about 21,750 miles since it was last taken off for examination. Before the accident
occurred the driver of the omnibus had been driving at an average speed of 32 miles an hour, and
was, therefore, guilty of a breach of statutory duty as the maximum speed for an omnibus of that
type in the “black-out” (which then existed) was 20 miles an hour. He was, however, not driving at
an excessive speed just before the accident occurred and the tyre-burst was not caused by his
driving too fast. The plaintiff claimed damages from the defendants on the ground that her
husband’s death was caused by the negligence of the defendants or their servants.

Held – (i) The fact that the omnibus left the road and fell down the embankment raised a
presumption of negligence against the defendants, requiring them to prove affirmatively that they
had exercised all reasonable care; to displace the presumption it was not sufficient for the
defendants to show that the immediate cause of the accident was a tyre-burst, since 460 a tyre-
burst per se was equally consistent with negligence or due diligence on their part; but it was
necessary for the defendants to prove either that the burst itself was due to a specific cause which
did not connote negligence, or, if they could point to no such specific cause, that they had used all
reasonable care in the management of their tyres.

Laurie v Raglan Building Co Ltd ([1941] 3 All ER 332); principle in Scott v London Dock Co (1865) (3 H
& C 596); and Woods v Duncan, Duncan v Hambrook, Duncan v Cammell Laird & Co Ltd ([1946] AC
401), applied.

(ii) [Bucknill LJ dissenting] on the facts, the defendants had discharged the burden on them by
proving that they had maintained a reasonable system of inspection in regard to their tyres and that
they were not guilty of negligence with regard to the maintenance of the tyre in question.

(iii) [Bucknill LJ dissenting] since the driver of the omnibus was unaware of the defect in the tyre and
the burst was not caused by fast driving, the defendants had not failed to discharge the presumption
of negligence arising from the fact that the driver of the omnibus exceeded the legal speed limit on
the journey before the accident occurred.

Proceedings arising out of the same accident, but brought by a different plaintiff, came to trial in
1943, although instituted after the present proceedings. In the 1943 action and before the trial of
the present action evidence was given by J, the defendants’ expert tyre fitter, who died in 1945. The
defendants sought to give in evidence in the present proceedings the transcript of the evidence
given by J in the 1943 action, on the ground that it was a “statement made by a person in a
document,” which formed part of a record within the meaning of the Evidence Act, 1938, s 1(1)(b),
the “person” making the document being either J, or the maker of the typed transcript of the
evidence (ie, the “reporter”). The Evidence Act, 1938, s 1, provides: “(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 … (i) if the maker of the statement … (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 … personal knowledge of those matters … (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. (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 recognised by him in writing as one for the accuracy of which he is responsible.”

Held – (i) The transcript of the evidence given by J in the former proceedings was not admissible in
the present case under the Evidence Act, 1938, s 1(1), as a document made by J, because it had not
been signed or initialled by him, or recognised by him in writing, as required by s 1(4) of the Act.

(ii) the transcript was not admissible as a document made by the reporter, because J’s evidence was
not “information supplied” to the reporter, within the meaning of s 1(1)(i)(b).

Edmonds v Edmonds ([1947] P 67), distinguished.

Bullock v Borrett ([1939] 1 All ER 505), considered.

(iii) the transcript was inadmissible under s 1(3) of the Act, since J was a “person interested” in the
result of the 1943 action and, had he lived, he would have been interested in the result of the
present proceedings 461 which were instituted before those which came to trial in 1943. A “person”
in the phrase, “any statement made by a person,” in s 1(3), meant any person whatsoever, provided
he was interested, and not merely the person reporting the statement.

Plomien Fuel Economiser Co Ltd v National Marketing Co ([1941] 1 All ER 311), approved.

Notes

As to Presumption of Negligence, see Halsbury, Hailsham Edn, Vol 23, pp 671–675, paras 956–958;
and for Cases, see Digest, Vol 36, pp 88–92, Nos 589–607.

For the Evidence Act, 1938, s 1, see Halsbury’s Statutes, Vol 31, pp 145, 146.

Cases referred to in judgments

Laurie v Raglan Building Co Ltd [1941] 3 All ER 332, [1942] 1 KB 152, 111 LJKB 292, 166 LT 63, 2nd
Digest Supp.

Scott v London Dock Co (1865), 3 H & C 596, 5 New Rep 420, 34 LJ Ex 220, 13 LT 148, 36 Digest 91,
601.

Woods v Duncan, Duncan v Hambrook, Duncan v Cammell Laird & Co Ltd [1946] 1 All ER 420, n
[1946] AC 401, 174 LT 286, 2nd Digest Supp.

Readhead v Midland Ry Co (1869), LR 4 QB 379, 38 LJQB 169, sub nom, Redhead v Midland Ry Co 9 B
& S 519, 20 LT 628, 8 Digest 71, 480.

Edmonds v Edmonds [1947] P 67, [1947] LJR 936, 176 LT 545.

Bullock v Borrett [1939] 1 All ER 505, Digest Supp.

Plomien Fuel Economiser Co Ltd v National Marketing Co [1941] 1 All ER 311, [1941] Ch 248, 110
LJCh 180, 165 LT 119, 2nd Digest Supp.

Appeal

Appeal by the defendants from a judgment of Sellers J at Swansea, dated 30 July 1947.

The plaintiff’s husband was killed in an accident while a passenger in a motor omnibus belonging to
the defendants, and she sought to recover damages under the Fatal Accidents Act, 1846, and the
Law Reform (Miscellaneous Provisions) Act, 1934. Owing to a burst tyre, the omnibus skidded across
the road, mounted the opposite pavement and fell down an embankment. Sellers J held that the
defendants were guilty of negligence in their system of tyre maintenance and gave judgment for the
plaintiff. From this decision the defendants appealed to the Court of Appeal. The defendants’
expert tyre fitter at the time of the accident had died in 1945, before the trial of the action, and the
defendants applied to the Court of Appeal to admit as additional evidence the transcript of evidence
given by him in an action heard in 1943 which arose from the same accident but was brought by a
different plaintiff. This application was refused on the ground that the transcript was not admissible
as evidence under the Evidence Act, 1938, s 1. The Court of Appeal held (Bucknill LJ dissenting) that
the defendants had displaced the presumption of negligence raised by the fact of the omnibus
mounting the pavement and falling down the embankment by proving that they had exercised all
reasonable care in the maintenance of the tyre which had burst and caused the accident. The facts
appear in the judgment of Bucknill LJ.

Fox-Andrews KC, Gerwyn P Thomas (with him Sheen) for the defendants.

Edmund Davies KC and Platts Mills for the plaintiff.

Cur adv vult

9 July 1948. The following judgments were delivered.

SCOTT LJ. I will ask Bucknill LJ, to read the first judgment.

BUCKNILL LJ. This is an appeal from a judgment of Sellers J, awarding £2,000 damages to the
plaintiff for the death of her husband on the ground that his death had been caused by the
negligence of the defendants or their servants. The appeal before us was concerned solely with the
question whether the judge was wrong in finding negligence. On 27 February 1943, the defendants’
double deck omnibus, 26ft long and 7ft 6ins wide and weighing 10 tons, with 53 passengers
including the plaintiff’s husband, was going through the village of Pwll when the off-front tyre burst.
The omnibus then went over to the off-side of the road, mounted the pavement, crashed into some
railings and fell on its side down an embankment on to some railway trucks, killing four of the
passengers and injuring others. Prima facie, the fact of the omnibus leaving the road and mounting
the pavement raises a presumption of negligence 462 against the defendants. Laurie v Raglan
Building Co Ltd illustrates this proposition. In that case the plaintiff’s husband, whilst standing on
the public pavement, was killed by a passing lorry which skidded so that part of it swept across the
pavement. Lord Greene MR in his judgment pointed out that the accident raised a prima facie case
of negligence against the driver of the lorry and continued ([1941] 3 All ER 332, 336):

That being the position, the plaintiff gave evidence which showed … that the position of the lorry
over the pavement was due to a skid, and it is contended on behalf of the respondents that,
assuming that a prima facie case of negligence arose, the circumstance establishing that the accident
was due to a skid is sufficient to displace that prima facie case. In my opinion, that is not a sound
proposition. The skid by itself is neutral. It may or may not be due to negligence. If, in a case where
a prima facie case of negligence arises … it is shown that the accident is due to a skid, and that the
skid happened without fault on the part of the driver, then the prima facie case is clearly displaced,
but merely establishing the skid does not appear to me to be sufficient for that purpose.

The accident to this omnibus comes within the rule of evidence stated by Erle CJ in Scott v London
Dock Co as follows (3 H & C 596, 601):
… where the thing is shown to be under the management of the defendant or his servants, and the
accident is such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of explanation by the
defendants, that the accident arose from want of care.

This rule of evidence was considered recently by the House of Lords in Woods v Duncan, better
known perhaps as the Thetis case. It is clear from the speeches there delivered that the defendant,
in a case where the rule applies, is not liable although he is unable to explain how the accident
happened, provided he establishes that he himself was not negligent. Thus Lord Simonds said
([1946] AC 401, 439):

The accident may remain inexplicable, or at least no satisfactory explanation order than his
negligence may be offered: yet, if the court is satisfied by his evidence that he was not negligent,
the plaintiff’s case must fail.

The crucial question, therefore, seems to me to be whether the court is satisfied that the defendants
or their agents were not negligent in using this tyre, or in the way in which they used it, in
connection with this accident. The tyre which burst was composed of an outer tyre and an inner
tube. The outer tyre was constructed in the following form. It had a cord composed of 12 plys of a
cotton material, each ply being sheathed in rubber. The plys were joined together to form the cord,
which was about one inch thick. The ply nearest to the inner surface of the tyre and in contact with
the inner tube is called the crown. Outside the cord there was a layer of rubber called the breaker
strip, and outside the breaker strip was another layer of rubber, which, when new, was about.874
inch thick. On the outside of this layer was the pattern. This tyre had run about 23,545 miles and at
the time of the accident the pattern had been worn level over 5 inches of the breadth of the tyre.
The judge found as a fact, and, I think, rightly on the evidence, that the burst was caused by an
impact fracture of the cord of the outer tyre. An impact fracture is also in itself a neutral fact,
because it may be due to negligence or it may not. It is a fracture of the cord of the tyre and is
brought about by a blow on the external surface of the tyre. In my opinion, the fracture did not in
itself explain the accident in a way which relieved the defendants’ prima facie liability for it. It was a
neutral event which might, or might not, happen through the negligence of the defendants. I think
that the defendants must prove, or the evidence as a whole must show, that the burst occurred
without any negligence on their part. On the other hand, it is sufficient if they establish that they
took due care to secure that the tyre was fit for use on this fatal journey. I may here quote from the
judgment of the Court of Exchequer Chamber in Readhead v Midland Ry Co (LR 4 QB 379, 393):
“Due care” however undoubtedly means, having reference to the nature of the contract to carry, a
high degree of care, and casts on carriers the duty of exercising all vigilance to see that whatever is
required for the safe conveyance of their passengers is in fit and proper order.

463

The evidence established that, if a tyre of this kind receives a blow which is severe and much more
than one would expect it to have in the ordinary course of its work, some of the plys may become
fractured. This may happen although there is no visible mark on the exterior surface of the tyre.
Unless the fracture extends sufficiently deep to affect the plys adjacent to the crown, the fracture
may not be capable of detection even if the tyre is removed from the rim, and the crown is looked at
and examined by touch. The evidence was that an impact fracture invariably commenced on the
outside ply of the cord, and might extend from one to all the plys. The evidence called by the
defendants, which I think the judge accepted, was that in about half the number of impact fractures
no evidence of the fracture would be detected by an examination of the external surface of the tyre.
In these cases there is nothing to indicate that the tyre has developed this dangerous weakness
unless it is possible to detect it by taking the tyre off and examining the crown.

The danger of using a tyre which has developed an impact fracture is that the further use of the tyre
will cause internal friction and wear in the mass of the plys so that the fracture grows and the tyre
weakens, with the ultimate result that the tyre is no longer able to resist the outward pressure
exerted on it by the inner tube, and the tyre then bursts. If follows, having regard to this serious
risk, that the defendants, as owners of a motor bus used for the conveyance of passengers, owed a
duty to them to exercise all due care to see that the tyre had not sustained an impact fracture. The
tyre when fixed on the rim was periodically examined and its pressure tested by one Jenkins, an
expert tyre fitter in the employ of the defendants. He kept certain sheets relating to his work and it
appears from those sheets that he examined this tyre at Llanelly on frequent dates during January
and February, 1943, the last occasion being on Feb24. On each occasion he also adjusted the
pressure. He had also tested the pressure at Llanelly on 20 February and 22. Unfortunately, Jenkins
died in Sept 1945, before the hearing of the case before Sellers J He had given evidence in a
previous case heard before Lewis J when the plaintiff was the widow of a man also killed in this
accident and the defendants were the same as in this action. Although it appears from the
transcript of the evidence in the present case that a transcript of Jenkins’ evidence before Lewis J
was in the hands of counsel for the plaintiff, and presumably also in the hands of counsel for the
defendants, no application was made by either side to Sellers J to admit the transcript of Jenkins’
evidence. An application was made to us by counsel for the defendants to admit the transcript as
additional evidence, but we ruled that it was inadmissible and said that the court would give the
reasons for its decision after the hearing of the appeal had closed. I have had an opportunity of
reading the judgment of Asquith LJ on this point, I agree with it and have nothing to add to his
reasons why the evidence was inadmissible. The court, therefore, does not know what evidence
Jenkins gave as to the state of the tyre when he examined it on 24 February at Llanelly. The
examination was of the tyre on the rim and was, therefore, only of its outer surface. I think it is a
reasonable conclusion to draw from the course taken by plaintiff’s counsel at the trial that Jenkins in
his evidence did not admit that he saw any evidence of a defect in the tyre likely to impair its
efficiency. The death of Jenkins put the defendants in a difficulty at the trial through no fault of their
own, but it was somewhat lessened by the fact that, when counsel for the plaintiff started to cross-
examine Mr Bourne (the defendants’ foreman at the Llanelly garage) as to what Jenkins had said at
the previous trial, the counsel for the defendants could have applied to the judge to admit the
transcript of Jenkins’ evidence, an application which, I think, the plaintiff could then have hardly
resisted. They did not do so, and the judge proceeded to deal with the question of Jenkins’
negligence without apparently knowing what Jenkins had said when he gave his evidence before
Lewis J.

In the absence of any evidence as to when the impact fracture was caused which produced the
bursting of the tyre, one can fairly say that it may have been caused at a variety of times. It may
have been caused by the tyre striking some object immediately before the burst. It may have been
caused by one severe blow some days or even weeks before, which fractured some of the plys and
the damage gradually extended and produced the burst. It may possibly have been caused by two
blows in the same place on the tyre at different times, 464neither of which were severe or such as
were calculated to arouse any serious apprehension in the mind of a reasonable driver. On this
aspect of the case the judge said:

I rule out any likelihood of the impact fracture having first occurred in the course of the last journey
or at the time of the explosion. No one spoke of an impact and nothing was found in the road with
which the wheel could have come into violent contact … The impact which caused the fracture must
be found to have occurred on some earlier occasion and the defendants had done nothing about it,
with the result that the ‘bus was making this journey with a very defective trye and in a dangerous
condition as a passenger-carrying vehicle. The continued use of the tyre brought it nearer and
nearer to bursting point … I think the probabilities are that inspection would have revealed the
fracture of the cord in the case of a tyre so worn.

By “inspection,” the learned judge presumably meant after removal of the tyre from the rim.

I think that the defendants, in order to avoid liability, must prove to the satisfaction of the court that
they took all reasonable steps to ascertain that the tyre was fit for use on 27 February and this I
think on the evidence they failed to do. It may have been fit or it may not have been fit. The mere
external examination of a tyre which had run 21,750 miles since 1 August 1942, part of which was
done on bad roads, driven by drivers who had had no instructions to report an unusual and heavy
blow to the tyre, and without any examination of its internal surface during the whole of that time,
seems to me to leave the defendants with the burden undischarged of satisfying the court that they
had taken all reasonable steps to avoid this accident. With tyres of this size, the evidence was that it
is very rare to have a burst and I, therefore, conclude that in the absence of any latent defect in this
tyre (and this was not suggested), the fracture was caused by a serious and unusual blow, a blow
which ought to have been reported by the driver. There is no record of any such report. If the blow
had been reported, the tyre should have been examined externally and perhaps taken off the rim for
examination of its interior surface. It is possible that two blows at different times may have
combined to produce this dangerous condition of the tyre, but I do not think this is a reasonable
explanation because the probabilities are so much against it. The judge rejected the idea and I am
not prepared to disagree with him. There was a conflict of evidence as to the desirability of taking a
tyre off and examining its interior surface after it had run 3,000 to 4,000 miles. The defendants’
witnesses said that, unless there was some reason to take the tyre off the rim because of a puncture
or suspected serious injury to the tyre or the inner tube, the safest course was to leave the tyre in
situ, because of the risk of getting the inner tube pinched when the outer tyre was replaced. The
judge came to no conclusion on this issue. I think the defendants were not required to make such an
examination, provided the risk of an impact fracture and the necessity of reporting any serious blow
to the tyre were impressed on the driver, and there was no external evidence on the tyre of such a
blow.

The judge found the defendants liable on two heads. He first held Jenkins to blame because he did
not cause the tyre to be condemned and replaced or, at any rate, to be removed and examined
owing to the presence of a certain puncture or gaping hole in the outer tyre which was visible after
the accident. The defendants’ evidence was that the puncture was caused by a nail. They also
admitted that the nail which made such a hole would be very unlikely to be removed without some
probe to pull it out. The judge based his decision as to Jenkins’ negligence on the ground that this
puncture appeared to be of old standing and from this he arrived at two decisions: (i) that Jenkins
was negligent in not having repaired the puncture and in not causing the tyre to be taken off and
examined internally; (ii) the negligence of Jenkins in this respect indicated that he might also have
been negligent in failing to observe the mark of a severe blow on the exterior surface of the tyre
such as might be calculated to produce an impact fracture. When the judge said that the puncture
appeared to be of old standing, I think he meant that it appeared to him to be one which was of old
standing at the time of the accident on 27 February 1943. It is true that the judge saw the tyre four
years afterwards, but the puncture, except for being washed and surveyed and exhibited at the
previous trial, was in the same state as to actual size and condition at the date of this trial as it was
in February, 1943, except in one respect. On the judge’s finding the hole or 465 puncture had not
penetrated right through the outer tyre at the time of the burst. I have carefully examined the
puncture and do not feel disposed to disagree with this conclusion of the judge as to its age. It is, of
course, possible that the hole may have been made on the morning of 27 February or on 26
February or 25. It seems to me that here the burden of proof comes into play and I myself do not
think that, having regard to the appearance of the hole, it is reasonable to hold that it was done
then. If the matter is left in doubt, the defendants, in my view, fail to satisfy the court that the tyre
by reason of this unrepaired condition was fit for use on this omnibus on the morning of Feb27.
There was clear evidence that the hole rendered the tyre unfit for use, or, at any rate, one which
should be examined internally before further use. Mr Pannell, the defendants’ chief engineer
admitted that it was a very nasty gash in the tyre, and that a tyre fitter should certainly have put the
tyre on one side for further attention. Another of the defendants’ witnesses, Mr Cooks, the service
engineer of Goodyear Rubber Tyre Co who had 400 motor omnibuses under his care in respect of
their tyres, said that he would remove a tyre with such a puncture. Mr Cowley, a tyre fitter
employed by the defendants, admitted that a hole such as that now in the tyre should be at once
reported, and that, if the hole had been there on 24 February Jenkins should have taken the tyre off
and examined it. Mr Bourne, the defendants’ foreman at the Llanelly garage, also agreed that, if the
hole had been there on 24 February Jenkins should have taken the tyre off and replaced it. I think
that the judge was justified in holding that Jenkins was negligent in not having repaired the
puncture. I do not, however, agree with the second conclusion of the judge that Jenkins also
probably failed to observe the mark on the exterior surface of the tyre which was probably made at
the same time as the impact fracture. The plaintiff at the trial relied on this puncture as being the
cause of the impact fracture of the tyre, but during the hearing the outer tyre was cut open in the
vicinity of the puncture and it then became apparent that there was no association between the
puncture and the fractured cord, and the judge so found in his judgment. On this head of
negligence, therefore, it seems to me that, if Jenkins had been careful in his work, he would have
removed and examined the tyre before filling in the hole and he might then have detected the
fractured plys of the cord. To that extent the defendants have not satisfied me that they through
their agents took all reasonable steps to make and keep this tyre fit for use.

The second head on which the judge found that the defendants were negligent was one which
formed no part of the plaintiff’s case, but was evolved during the hearing because of the evidence as
to the hidden danger of impact fractures. The practice suggested by the learned judge to the
witnesses as desirable and eventually adopted in his judgment was that the owners should inform
each driver of a public motor service vehicle of the nature of impact fractures, and should require
them to report any blow to the tyre of such severity that a fracture might be caused. The learned
judge considered that such a report would call for a removal of the tyre and an internal examination
of the cord by sight and touch. If no weakness was revealed, then the nature of the impact could be
more fully considered, and the tyre either passed as sound or another inspection arranged after an
interval of use to see if further deterioration had set in. The judge accepted the evidence given by a
representative of a large omnibus undertaking that this procedure was practical, but it was admitted
that no such steps were taken by the defendants in this case. In the learned judge’s view, if this
practice had prevailed with the defendants and if, in consequence, Jenkins had been told that the
tyre had received a severe impact, Jenkings should have condemned the tyre, having regard to its
weakened state. A great weight of evidence, however, from experts and others intimately
concerned with the motor omnibus business was given that such a system was impracticable and
was not used by any company. I do not think that it would be right to find the defendants negligent
because they had not given specific instructions to their drivers as to the risk of impact fracture, or
as to the necessity of reporting any blow to a tyre which might reasonably be expected to produce
such a fracture. I, therefore, do not agree with the finding of negligence by the learned judge under
this head.

There is a further point against the defendants which was pressed on us by counsel for the plaintiff
and which requires consideration. This double deck 466 omnibus, fully loaded, was proceeding in
the “black-out” along a narrow road (about 22ft wide) and was rounding a left hand bend with a
slight decline with houses on one side and an embankment on the other side. Its off front tyre was
well worn, had run about 23,545 miles and was nearing the limit of 25,000 miles when it would go
into the workshop for thorough examination. It had not been taken off for examination for nearly 18
months, during which time it had run about 21,750 miles. The driver at the time of the accident was
proceeding in the “black-out” through a built-up area where the law required him under a penalty to
proceed at a speed not exceeding 20 miles an hour. There is no positive finding by the judge as to
what his actual speed was at the time of the burst. The judgment on this part of the case is as
follows:
As the journey was undertaken in the black-out hours, the speed limit was 20 miles an hour in the
built-up area which composed most of the route, and I feel no doubt that the ‘bus travelled in excess
of that on the average, and was probably doing more than that at the time of the bursting of the
tyre, but probably not more than 25 or 26 miles an hour.

The learned judge in his judgment says that he does not think any accurate calculations of speed are
possible but I do not see why this is so in this case. The material data are unusually precise. There
was reliable evidence as to the total distance run from the factory to the place of the accident, viz, 5
miles 220 yards. The journey was divided into two distinct sectors. The first was 1 3/8 miles along a
private road, while the second, the remaining 3 3/4 miles, was along a public road. There was
reliable evidence that the total time taken was not more than 15 minutes. The omnibus left the
factory just after 6.15 am, according to the driver who heard the factory hooter sound at 6.15 before
he started. The result of the accident was that a wire attached to a telegraph pole, and broken by
the omnibus in its career along the pavement, rang a fire bell at the fire station, at a time recorded in
the official log there as 6.28. There is other reliable evidence that the accident occurred a little
before 6.30. The first 1 3/8 miles of the route was along a winding and rough road, about 12ft wide,
in which a local speed limit of 10 miles per hour was imposed by the Ministry of Supply. The driver
admitted that it was a dangerous road with many curves and said that he was not doing more than
10 miles an hour along it. After getting on to the main road the omnibus was going through a built-
up area except for3/5ths of a mile. It had a governor which, if in use, cut out at 30 miles per hour
and would be difficult to alter. In these circumstances, if one allows 8 minutes for the first 1 3/8
miles along the narrow road, at an average speed of 10 miles and making no allowance for one stop
to pick up passengers, that leaves 7 minutes for covering 3 3/4 miles, an average speed of 32 miles
an hour, again making no allowance for one stop to put down passengers. The omnibus, which was
employed exclusively for the conveyance of workers from the factory and was not plying for hire, did
not stop shortly before the accident, and there was only this3/5ths of a mile in which the driver
could go at more than 20 miles an hour without breaking the law. In any case his maximum speed
was limited, or should have been limited by the governor, to 30 miles per hour. In these
circumstances it seems to me almost inevitable that he was travelling throughout the journey from
the time he joined the main road at a speed which was far in excess of that imposed by law on that
type of omnibus in the “blackout,” a speed which, in my opinion, was negligent. In my view, he was
probably going at an excessive and negligent speed at the moment when the tyre burst. It is
remarkable that the driver of the omnibus should be anxious to put his speed so low in his evidence,
evidence which I think was untrue. I do not believe his evidence that the highest speed he reached
on the trip was not more than 20 miles an hour, or that he was driving at a speed of 12 to 15 miles
an hour at the time of the accident, or that the accident happened between 6.35 and 6.40 am

The learned judge has not attached importance to the speed of the omnibus, because (i) no one has
said that the speed caused the burst; (ii) there was some evidence that at less speed the vehicle
would have gone across the road and over the embankment sooner than it did; (iii) the omnibus
would not have been in any difficulty if the tyre had not burst; (iv) the driver had no reason to
anticipate that a tyre would burst so as to regulate his speed by reference to that possibility. With
due respect to the learned judge, I am unable to agree 467 with three of these reasons. As to (i), the
expert evidence of the defendants was that, once an impact fracture has started, it tends to spread
and that this tendency is increased by fast driving, specially of a heavily laden vehicle. As to (ii) it
seems to me unreasonable to say that, if the omnibus had been proceeding at a proper speed, it
would have struck the kerb at a broader angle and, therefore, would have fallen over the
embankment sooner. If it had done so, it probably would not have fallen over on its side on to the
railway trucks. The resistance of the kerb and of the railings would have tended to pull the omnibus
up and it would probably not have fallen bodily over the embankment. I do not think that the
omnibus would have diverged at a broader angle across the road if it had been going slower. It
could only do this on the assumption that the steering wheel was forced more to the right and I see
no reason for thinking that a slower speed would bring that about. As to (iv), it seems to me that, if
impact fractures are accidents which are definite possibilities and have this characteristic that their
presence cannot be detected until they have reached a dangerous stated and the plys near the
crown are affected, then it follows that the longer a tyre has been in use without careful
examination of the crown after removing the tyre from the rim, the more risk there is that it may
have developed an impact fracture. There was evidence that a worn tyre with no tread is more
liable to get an impact fracture than a tyre with the tread not worn away. In these circumstances
the driver of this fully laden double deck omnibus using this tyre ought to have been careful not to
drive at an excessive speed. I think that the excessive speed on this journey directly contributed to
the bursting of the tyre and it also contributed to the damage sustained by the omnibus and to the
consequent death of the plaintiff’s husband. It is surely the physical injury sustained by the dead
man and not the mere bursting of the tyre which is the cause of action. In any case, I think it is for
the defendants to satisfy the court on the evidence as a whole that the speed was not negligent,
although it substantially exceeded the statutory speed limit, as I am satisfied that it did. I think that
they quite failed to do so.

For these reasons, in my opinion, the defendants have not established that they, through their
servants or agents, were not guilty of negligence whereby the plaintiff’s husband lost his life, and she
is not entitled to recover damages as awarded by the judge. On the contrary, I think that the
plaintiff has established negligence against the defendants causing the death of her husband. I am in
favour of dismissing this appeal.

SCOTT LJ. I have read the judgments of my brethren, and with that of Asquith LJ (which he will
read presently) I entirely agree, including that part of it which deals with the defendants’ application
to us to allow the short-hand transcription of the evidence of Jenkins, given at the hearing of a
previous trial of an action before Lewis J to be put before the court. I have, indeed, read and re-read
my brother Bucknill LJ’s judgment and have given the case the most anxious consideration, but in
the end I find myself unable to accept either of his two final conclusions, namely, that the accident
was caused by the negligence of the defendants in one or both of two ways: (i) by failure in their
duty of tyre maintenance, and (ii) by the excessive speed at which the omnibus was being driven at
the moment when the inner tube of the tyre burst and caused the omnibus to cross the road, run
over the footway and capsize.

I agree that the mounting of the omnibus on the footpath was a fact which raised the presumption
expressed in the phrase res ipsa loquitur. That phrase, however, represents nothing more than a
prima facie presumption of fault. It is rebuttable by the same defence as is open to any defendant
accused of negligence, against whom the plaintiff’s evidence has made out a prima facie case. When
the plaintiff has done that, the onus is said to shift to the defendant. In a case where res ipsa
loquitur the onus starts on the defendant and requires him to prove affirmatively that he has
exercised all reasonable care, but that proof is very greatly facilitated if he can show that the event
which caused the plaintiff damage happened through some cause for which no blame can attach to
him, even though it cannot be specifically identified, and, if it can be so identified, his task is not only
facilitated but achieved. If he thus succeeds in demonstrating positively the probable operation of
such cause, whether specifically identifiable or not, the onus is then discharged, and the
presumption 468 of fault on his part ceases and the plaintiff is left in the position of having failed to
prove his case. Even if he can point to no specific cause, he still discharges it if he can show that he
used all reasonable care. In the present appeal, however, there was before the mounting on to the
footway an anterior link in the chain of causation, viz, the tyre-burst which diverted the omnibus
from its course on the road on to the footway. I will assume with Bucknill LJ that the presumption of
res ipsa loquitur is still applicable, notwithstanding the intervention of the new link in the chain of
causation, although I feel by no means convinced that the prevention of a tyre-burst is within the
control and management of an omnibus company in any sense or degree comparable with the case
of the occupier of an upper floor in a warehouse with an open doorway in its external wall abutting
on a public road, on to which a barrel, if not controlled, can roll out and fall. However, the
observations which I have just made about the probative burden of the defendant in regard to the
first presumption are equally applicable to the second. The precautions taken by them in tyre
maintenance were reasonably careful, but a partial rupture of the inner cord (on which the power of
resistance to pressure from the inflated tube depends) may happen in spite of all such precautions,
and then gradually spread to the crown, without any external indication to sight or touch. The
doctrine of res ipsa loquitur then goes out of the picture, and the court has to decide on the balance
of proof on each side. In the present case the only positive proof of negligence attempted by the
plaintiff was the expert’s theory that the puncture caused the burst. That was completely disproved
by the defendants and rejected by the judge, and the plaintiff was then left with the doctrine of res
ipsa loquitur and nothing else.

I do not read Lord Simonds’ observation [in Woods v Duncan] which my brother quotes, as in any
way differing from that of Erle CJ [in Scott v London Dock Co] also quoted by him, and of the two the
earlier and leading statement of the proposition is the more directly apposite to the aspect of the
doctrine of proof which I am now discussing. How should the phrase of Erle CJ (3 H & C 596, 601),
“under the management of the defendant or his servants,” be applied to the defendant company?
Primarily, the servant “managing” the omnibus was its driver, but against him there can be no
complaint unless it be bad driving. As against him there is a serious charge of “excessive” speed,
having regard to the character of the road—its surface, gradient and curve—and the defendants
would be liable if the driving, being thus bad, thereby caused the burst. That, however, is a totally
separate question and to introduce it into the issue whether some other servant of the defendants
to whom the duty of tyre maintenance was remitted was guilty of negligence would cause confusion
of thought. I, therefore, entirely concur in the separation by Bucknill LJ of the speed issue from the
question of tyre maintenance.

In relation to maintenance there are, in my opinion, only two topics which on the totality of
evidence stand out as calling for consideration. One is the contention for the plaintiff that the
company was negligent in not instructing all its drivers to report on every occasion when they felt an
unusually violent bump by a wheel against something in the road—whether projecting above its
surface or a pot-hole in its surface. This must be a matter of degree, and I read the evidence as
indicating that the drivers would normally regard it as their duty to report if anything really
abnormal occurred. Bucknill LJ has dealt with that suggestion of a negligent failure to instruct
drivers and I agree entirely with him that any effective rule about reporting was wholly
impracticable. Tyres cannot be taken on and off like an overcoat. It is obviously not a practical
business proposition to call for tyre-removal unless there is some patent reason for suspecting
something wrong with the particular tyre, and it was shown conclusively in evidence that an impact
fracture to one or even several of the numerous plys which make up the cord may occur without any
indication of the internal injury showing externally whilst the tyre remains on the wheel. Indeed,
even if it is taken off, there will in all probability be nothing disclosed in the crown then exposed to
view, unless the fracture has extended through the many plys to the crown or, at least, to the ply
next to it, and even then the indication will not be visible, but only manifest to the sense of touch, by
a possible yielding to pressure from the fingers, I agree with the 469 conclusion of Bucknill LJ that
there was nothing negligent in the defendants’ system of tyre maintenance.

The second topic for consideration is one which was raised by the puncture or “gaping hole,”
observed in the tyre on examination after the accident. The plaintiff’s case below, as put forward by
her expert, was that this puncture was the cause of the burst, but that case was completely
disproved and rejected by the learned judge. Nevertheless, my brother Bucknill LJ treats it as having
indirectly caused the burst. His reasoning is based on three steps: (i) that its present appearance, as
seen by us, is identical with its appearance as seen by the learned judge; (ii) that it had been caused
before Jenkins examined the tyre on 24 February 1943, and then had the same external appearance
as when the learned judge saw it; and finally (iii) that Jenkins was negligent in not forbidding any
further use of the tyre, pending removal and examination of it when detached from the wheel—in
short, that Jenkins was negligent in (a) failing to see it, or (b) in failing to remove the tyre from the
wheel for inspection, and (c) allowing the tyre to continue in use. I cannot agree with these
conclusions, for I think that they really depend on tacit assumptions which are not justified. Two
dominant facts about the hole were proved: (i) that on examination of the tyre detached from the
wheel, soon after the accident, it was found that the hole did not reach right through the 12 plys of
which the cord was composed, but ended somewhere short of the crown—in other words, that it
penetrated less than the full inch of the thickness of the cord. Therefore, it may have been a
comparatively short nail or other iron or steel thing which penetrated. What it was, must be mere
conjecture. The second important fact is that at a later post-accident date, soon after the first
examination had definitely ascertained the limited depth of penetration, it was found that the hole
had been enlarged in depth and then showed right through the crown, ie, the innermost ply, which
meant that somebody of the various persons, who properly or improperly may have been examining
the hole, had forced a tool right through. That it had never (before removal) reached the crown was
certain, because, if it had, there would have been a puncture of the tube lying against the crown or
at least a mark on it, and there was none. I, therefore, think that we must infer that the appearance
of the external orifice which impressed both the learned judge and Bucknill LJ was brought about
either by the tool, which was improperly so used as to lengthen the hole, or by sheer stupid fiddling
with the orifice by somebody interested and, perhaps, merely inquisitively meddling after the
accident. These reflections cause me to conclude that there is nothing like a balance of probability
that the “appearance” in question was present on 24 February when the last pre-accident
examination took place. If I am right, Jenkins missed nothing on 24 February.
If the so-called puncture is discarded as an irrelevant matter, I can see no justification for the view
that (the speed issue apart) there remains any balance of probability that the defendants were guilty
of negligence in the maintenance of this tyre. As far as I can judge, their system seems to have been
in all relevant ways careful and efficient.

On the issue whether excessive speed caused the burst, in spite of the powerful exposition of
Bucknill LJ of the evidential case against the driver in respect of average speed, I cannot agree that
his speed at the critical moment is proved to have been excessive. Still less can I accept it as proved
that the speed of the omnibus either caused, or contributed to causing the burst. I accept the
calculation of Bucknill LJ and, therefore, assume that the average speed was over 32 miles per hour
with the consequence that over the whole distance covered at that average speed the driver was
guilty of a statutory breach of duty. But it does not follow that the disaster was caused by that
breach. Three separate issues are involved in the question of causation. The first is what the
driver’s speed was on the particular few yards of road covered by the omnibus in the second or two
just before the burst deflected his course from his proper side of the road. The evidence of his
passengers who were called was on the balance against the inference that at that moment they
noticed any sign of excessive speed. The second is whether that speed, whatever it was at the
moment before the burst, was reasonably likely to be the cause, or a contributing cause, of the
burst. If the wheel at that very moment had struck some substantial obstacle in the road, the causal
nexus might well have been inferred, 470but immediately after the accident the road was inspected
with great care and not the faintest evidence was forthcoming as to any projection or even pot-hole
being observed on the surface over which the off-side wheels had run just before reaching the point
on the road where the two dark lines began which remained visible on the road and, by common
agreement, had been caused by the rims of the wheel or by some part of the omnibus itself after the
deflation of the tyre through the sudden bursting of the inner tube had altered the direction of its
course. This evidence seems to me to eliminate all possibility of the wheel having run into or against
any fixed obstacle, contact with which might, if the speed at that moment was excessive, have
produced the burst under the dynamic force of the blow. Accordingly, although the average speed
on the mileage covered was excessive, the facts in evidence seem to me inconsistent with any
inference that the burst which deflected the omnibus was caused through the driver driving too fast.

The third issue is entirely separate and alternative to the first two. There was a suggestion, that,
even if excessive speed did not cause the burst, it may yet have caused the disaster, because, on this
theory, the omnibus, if at a lower speed, would have stopped short of the footway, or not plunged
over the embankment. My answer to that contention for the plaintiff is that it must be considered
in its relation to the finding of this court on the prior issue of negligence in relation to the burst, and,
if I am right in my conclusion that the plaintiff fails on that issue, the alternative allegation of
negligent speed must be judged wholly apart from the disproved allegation of speed having caused
or contributed to the causing of the burst. Let me, therefore, assume that the burst had been the
result of some latent defect in the manufacture of the tyre itself, which it was impossible to
diagnose—just as if it had been a defect discoverable only by the eye of an X-ray before X-ray vision
had been invented. On that hypothesis there was nothing to put the defendants or their driver on
guard against the hidden danger, and, equally, there was no relevant act of negligence on the part of
the driver in ignoring the risk of a road obstruction (because ex hypothesi there was none). On
those premises the burst goes out of the picture altogether. How in such circumstances can he be
blamed?
On the question of admissibility of the transcript of certain evidence taken from a shorthand-note at
the former trial, to which Bucknill LJ makes reference, I entirely agree with the statement by Asquith
LJ in his judgment on that matter. In the result, I think that the defendants’ appeal should succeed.

ASQUITH LJ. The position as to onus of proof in this case seems to me to be fairly summarised
in the following short propositions. (i) If the defendants’ omnibus leaves the road and falls down an
embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that
the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless
the defendants can rebut this presumption. (ii) It is no rebuttal for the defendants to show, again
without more, that the immediate cause of the omnibus leaving the road is a tyre-burst, since a tyre-
burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on
the part of the defendants. When a balance has been tilted one way, you cannot redress it by
adding an equal weight to each scale. The depressed scale will remain down. This is the effect of
the decision in Laurie v Raglan Building Co Ltd, where not a tyre-burst but a skid was involved. (iii)
To displace the presumption, the defendants must go further and prove (or it must emerge from the
evidence as a whole) either (a) that the burst itself was due to a specific cause which does not
connote negligence on their part but points to its absence as more probable, or (b), if they can point
to no such specific cause, that they used all reasonable care in and about the management of their
tyres: Woods v Duncan, The Thetis. The second limb, (b), of the last proposition is the relevant one
for the purposes of this case. I think that this summary accords both with the more detailed analysis
in the judgment of Bucknill LJ and with the views expressed in slightly different language by Scott LJ.

If this is, in truth, the burden on the defendants, I am of opinion, for the reasons which are given at
length by Scott LJ and which I will not restate, that they have discharged it. Out of respect, however,
for the judgment of 471 Bucknill LJ with whom I have the misfortune to differ on this part of the
case, I will briefly summarise the grounds of my disagreement. Negatively, I do not think the
defendants fail to discharge the onus on them by reason only that it is certain that during the
omnibus’s last journey the driver on the average materially exceeded the legal speed limit, because
there is, in my view, and as Scott LJ has pointed out, no evidence that this excessive speed caused
the burst, or thereby the accident, or that it prevailed immediately before the accident. Nor do I
think they so fail by reason of the existence of the puncture as a circumstance, which, while
admittedly it did not cause the burst, should have put them on inquiry and caused an internal
examination of the cover. Such an examination might, in any event, have revealed nothing, as
impact fractures are often symptomless. The puncture may have occurred between 24 February and
27—after Jenkins’ last examination of the tyre. I do not see how the learned judge, examining the
puncture more than four years after it was caused, (and after it had, admittedly, been teased and
probed and deepened by the insertion of instruments), could possibly say in July, 1947, what it
looked like just after the accident on 27 February 1943, or how long before the accident on 27
February 1943, it occurred. It may have occurred on the fatal journey itself. Affirmatively, it seems
to me that the defendants have discharged the burden on them by proving that they observed a
reasonable system of inspection in regard to their tyres. It seems to me to be a reasonable system
to examine internally tyres, whose life on good roads extends to 100,000 miles, every 25,000 miles
when they have been running on fairly bad roads such as these—unless some special need is proved
for examining them internally before 25,000 have been run. None such has, in my view, been
proved to have occurred in this case. For these reasons, together with those stated by Scott LJ I am
of opinion that the defendants have discharged the onus on them and that the appeal should be
allowed.

I would add a few observations on another point. Counsel for the defendants pressed the court to
admit in evidence testimony given by one Jenkins in proceedings arising from the same accident, but
with a different plaintiff, and tried before Lewis J in 1943. Jenkins, a tyre tester or fitter employed by
the defendants, died in 1945, between that trial and the trial of the present case. Counsel based his
application on two grounds, of which the chief was that the testimony was made admissible in the
present case by the Evidence Act, 1938, s 1. Section 1(1) provides:

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 …

Counsel had first to establish that the testimony he sought to have admitted was a “statement made
by a person in a document” within s 1(1). Who is “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. I will call him for
short “the reporter.” 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 s 1(4), which provides as follows:

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 recognised by him in writing as
one for the accuracy of which he is responsible.

In the present case none of these conditions 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” is the “reporter“—the maker of the transcript. If this contention is otherwise
well founded, it is not barred, like the first alternative, by s 1(4), since the transcriber “makes or
produces” the transcript “with his own hand.” Is it otherwise sound? The defendants say it is, by
reason of the terms of s 1(1)(i)(b), which is as follows:

472
(i) if the maker of the statement … (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.

It was argued that within the language of this provision the transcript is a “document” and a
document which is a “continuous record,” that the transcript writer made a “statement” in this
“document,” and in so doing 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 matters dealt with in the statement.

In support of his submission that the facts of this case fall within s 1(1)(i)(b) of the Act of 1938,
counsel cited Edmonds v Edmonds, a decision of this court and binding on us, and Bullock v Borrett,
a decision of Finlay LJ sitting as an additional judge of the King’s Bench Division. In Edmonds v
Edmonds a husband was bringing divorce proceedings against his wife in England on the ground of
her adultery with the co-respondent in India which the husband alleged had resulted in the birth of
an illegitimate child there. In India the wife had brought bastardy proceedings against the co-
respondent in respect of the 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. This
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 s 1(1)(i)(b). 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 s 1(1)(i)(b), for the purpose of
its admissibility in the English proceedings. There are, however, 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 reporter. If a man dictates a letter giving
information to the person to whom he is writing, it is an abuse of language to say that 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 that Mrs Ingles was in any way
interested in the result of either the Indian or the English proceeding. It is clear, on the other hand,
that Jenkins was a “person interested” in the result of the 1943 action and would, if he had lived,
have been interested in the result of the present proceedings, which were instituted before those
which came to trial in 1943. 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
Ltd v National Marketing Co.

Section 1(3) of the Evidence Act, 1938, is as follows:

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.

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 reported (Jenkins), but the
person reporting it—in other words, that the word “person” in sub-s (3) is the same “person” as in
sub-s (1), viz, in this case, “the reporter,” and that the reporter 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 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) 473would be largely stultified.
Bullock v Borrett, the other case relied on by counsel for the defendants is easily distinguishable,
and, though commanding the respect due to the learned 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 is not let in by its
provisions.

Counsel for the defendants relied as a subsidiary argument on the fact that at the trial of this case
there were put to a witness (in one question at least) views which cross-examining counsel
suggested Jenkins had expressed in the earlier trial. Counsel for the defendants relied on the rule
that, if a 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
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 these 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.

Appeal allowed with costs.

Solicitors: Stanley & Co agents for David H Clarke, Swansea (for the defendants); Kenneth Brown,
Baker, Baker agents for D Brinley Morris, Llanelly (for the plaintiff).

C StJ Nicholson Esq Barrister.

[1948] 2 All ER 474