clr/1989/1989_1_1.pdf

(1989)inHollington v.Hewthom and Co. Ltd11943}2AllE.R.35 thatsuch conviction isnot admissibleevidence ofnegligence incivil proceedings—Obiterstrongcriticismof the Rule. Evidence —Negligence —Pleaofguiltytoacriminalchargefordriving without due car and attention —It is admissible evidence in civil proceedings —How canapartyexoneratehimselffromsuch fonval admission. 5 The issue in this appeal is confined to the liability for a head-on road traffic collision. The trial Judge found that the appellant was fully toblame.The groundsofappeal are:I.ThetrialJudge,though 10 herejected theevidenceoftheexperts;inarrivingathisfindings used such evidence and, furthermore, theJudge himself acted asexpert.

(2)TheJudge disregarded completelyand failed toappreciate the formal plea of guiltyofthe respondent inthe criminal case. The respondent hadexplained hispleaofguiltybyallegingthathe waspressedbythepoliceconstableinthepresenceofhisadvocate, butthen, inre-examination, he saidthatheentered theplea inorder toavoid protracted litigation. 15 Held,allowingtheappeal:(A)

(1)Thedutyofanexpertisto furnish theJudge withthenecessaryscientificcriteriafortestingtheaccuracy 20 of their conclusions, so as to enable the Judge to form his own independent judgmentbytheapplication ofthesecriteriatothefacts proved in evidence.

(2)TrialJudges shouldnotturnthemselvesintoexperts.Theymay look at the real and other evidence and draw inferences and reach 25 conclusionsasregardsthe existence of liabilityfornegligence, notin the form of an expert opinion, but as a matter of sheer common sense.

(3)In this case the trial Judge made two crucial findings, the first about theposition ofrespondent's carpriortoapplication ofbrakes 3 0 and the second about the point of impact, byusingevidence of one expert, which he had earlier rejected and by acting himself as an expert on thinking distances, calculations based not only on the brake marks but, also,byaddition within a fewfeet here, deduction of afew feet there,extension ofthebasiclineontheplan,etc.Thisis 3 5 sufficient forallowingthisappeal.. (B)The plea of guilty isa formal admission. Itisevidence of the negligence and of the act which constitute the careless driving. A person who appears before a criminal Court and pleadsguilty to a charge has to prove, either that he did not know the Jaw, orthat he %Q acted undercompulsion oroppression inordertoexonerate himself 2 1C.L.R. Philippou v.Odysseos from hisformal admission.Theformal admission inapleaofguilty before aCourtofLawshouldbeevaluatedtogetherwiththerestof theevidence. c In this case there was no reason in law or justice to allowthe respondenttoretractbeforethecivilCourt. Appeal allowed with costs. Retrial ordered. Costs before thetrial Court tobecostsincauseinthenewtrial. Casesreferredto: 10 Anastasiadesv. TheRepublic

(1977)2C.L.R. 97; Kouppisv. TheRepublic

(1977)2C.L.R. 361; Shakolasv.AgathangelouandAnother

(1983)1 CL.R. 1007; SalihandAnotherv. SofocleousandOthers

(1979)1 C.L.R. 248; Siakosv.Nicolaou

(1980)1 C.L.R. 333; 15 hakim v. Soteriades

(1984)1C.L.R. 175; Hollington v. Hewthom&Co. Ltd. [1943]2AllE.R. 35; Goodyv.OdhamsPressLtd. [1966]3AllE.R.369; BarclaysBankLtd. v.Cole[1966]3AllE.R.948; 20 Jorgensenv. NewsMedia(Auckland)Ltd.

(1969)N.Z.L.R. 961; R.Vm Rjley, 18Cox285; Charalambousv. Police

(1982)2C.L.R.134; AthienouBusCo.Ltd. v.VasiliouandAnother

(1970)1 C.L.R. 365; Appeal. . 25 Appeal byplaintiff against thejudgment of the DistrictCourtof Limassol (Chrysostomis, P.D.C.) dated the 27th March, 1985 (Action No. 2006/81) whereby his action for special and general damagesfor personal injuries and materialdamage tohiscar due to the negligence and/or breach of statutory duty by defendant 30 was dismissed. P.Pavlou, forthe appellant. A. Dikigoropoulos, forthe respondent. Cur.adv. vult. 3 Phillppouv.Odysseos

(1989)TRIANTAFYLLIDES P.: The Judgment of the Court will be deliveredbyMr.JusticeStylianides. STYLIANIDESJ.:Intheearlyhoursofthe19thJanuary,1981, a road accident occurred inLimassol,atMakariosIIIAvenue,in whichmotorcarRegistrationNo.HV279drivenbytheappellant 5 inawesterlydirectionandmotorcarRegistrationNo.FZ83driven bythe respondent inthe opposite direction were involved.The appellantsustained bodilyinjuriesandhiscarwasdamaged. TheappellantbyactionintheDistrictCourtofLimassolclaimed from the defendant damages-specialandgeneral -forpersonal 10 injuriesandmaterialdamagetohiscar,duetothenegligenceand/ orbreach of statutorydutybytherespondent -defendant inthe action. Inthemeantime,inrespectofthisaccidenttherespondentwas prosecutedfordrivingwithoutduecareandattentionandpleaded 15 (juiltytothecharge.Weshallreverttothispleaofguiltylateronin 'hisJudgment. Thespecialdamageswereagreedat£3,550.-. The trial proceeded on the issues of liability and general damages. 20 ThetrialCourtdecided that therespondentwasnot negligent and that the appellant was entirely to blame for the accident. Followinga commendable practice of the first instance Counts, thetrialJudge assessed thegeneral damages oftheappellant at £3,500.-.Hadthe plaintiff been successful, he would havebeen 25 awarded £7,050.-special andgeneral damages ona fullliability basis.Theactionwasdismissalwithcosts. Hencethisappeal, which isdirected onlyagainstthedecision concerningliability. Thequantification ofthedamagesisacceptedbybothsides. 30 Thegroundsofappeal,asarguedbefore us,are:1. The trial Judge, though he rejected the evidence of the experts, in arriving at his findings used such evidence and, furthermore, theJudgehimselfactedasexpert. . 2.TheJudge disregarded completelyandfailed toappreciate 35 the formal plea of guilty of therespondent inthe criminalcase, 4 1 C.L.R. Phiiippouv.Odysseos StyliantdesJ. which amounted to an admission of liability in the particular circumstancesofthiscase. Withtheadvancementofknowledge,scienceandtechnology, the Courts admit evidence of expert witnesses and use their 5 specialized opinion in order to arrive at correct.decisions. An expert'sevidenceisadmissibletofurnish theCourtwithscientific opinion, which is likely to be outside the experience and knowledge of a Judge. The value of specialized knowledge is incontestable,beingtheproduct,asitis,ofintensivereseachand 10 experiencebeyondtherangeoftheordinaryman. In the Courts, experts are usually called in by the parties as witnesses in support of their respective contentions, where technical mattersareinvolved.Theirdutyistofurnish theJudge withthenecessaryscientificcriteriafortestingtheaccuracyoftheir 15 conclusions, so as to enable the Judge to form his own independentjudgmentbytheapplicationofthecriteriatothefacts proved in evidence - (Andreas Anastassiades v. The Republic

(1977)2 C.L.R. 97; Kyriacos Nicola Kouppisv. The Republic

(1977)2C.L.R.361). 20 ThepartiesgaveinCourtconflictingversionsastotheposition of their cars prior to the collision andthe point of impact. Both calledexperts.Eachoneoftheexperts,intheopinionofthetrial Court,provedpartisanofthesidethatcalledhim. Wereadinthejudgment:- 25 30 35 «Ishallconfine myselftosayingthatthesetwoexpertswith their lengthy evidence expressed a completely different opinion and each onesupported theversion ofthesidethat called him. Thus Tzirkallis expressed the opinion that the Plaintiff was drivingon the wrong side of the road and he swerved towards his proper side-and thus the collision occurred whilstthe two carswere at an angle facing south, whereas Nestoras Kyriacou, supported the version of the Plaintiff.AlotofscientificsourceswereinvokedandNewton's laws were relied upon. Alsoefforts were made by both to applythesescientifictheoriestothecaseinhand. Having considered their evidence very carefully, I find myself unable to act upon it. These witnesses relied on assumptionsandtheyfailedtoconnectthescientificdatawith 5 StyllanidesJ. PhiHppouv.Odysseos

(1989)thefactsofthiscasesoastoprovescientificallythecorrectness oftheirconclusions». ThetrialJudgemaylookattherealandotherrelevantevidence establishingthetotalityofthecircumstancesinwhichanaccident has happened and draw inferences and reach conclusions as 5 regardstheexistence ofliabilityfornegligence,notintheformof an expert opinion, but as a matter of sheer common sense [Shakolasv. AgathangelouandAnother

(1983)1 C.L.R.1007,at 1018). It is settled, however, that trial Judges should not turn themselvesintoexpertsandthuscometoconclusionswithoutthe 10 evidence of an experts (see, inter alia, Salih and Another v. SofocleousandOthers

(1979)1C.L.R.248,at253;Siakosv. A. Nicolaou

(1980)1C.L.R.333;Shakolascase(supra)andIoakimv. Soteriades

(1984)1 C.L.R.175). Aplan toscalewasproduced bytheaccident investigator, PC 15 1995 - Fridericos Christou, P.W.

1. The point of impact was markedonit«X».Thiswitnessgavereasons,includinghisfindings atthescene,whypoint«X»wasthepoint ofimpact.He, further, testified thatheshowedthisplantotherespondent-defendanton the day following the accident, who agreed with it. He wasnot 20 cross-examinedonthis. ThetrialJudge arrived attwoverycrucialfindings offact -the positionofthedefendant'scarpriortotheapplicationofbrakeson his proper side of the road and the point of impact, a few feet ahead of the point «X» -usingevidence of the expert, whichhe 25 earlier rejected, and, further, by acting himself as an expert on thinkingdistances,calculationsbasednotonlyonthebrakemarks but,also,byadditionwithafewfeethere,deductionofafewfeet there,extentionofthebasiclineontheplan,etc. We have gone carefully through the first instance Judgment. 30 The first ground of appeal isfully substantiated. On thisground alonetheappealwould succeed. Thesecondgroundpertainstotheevidentialvalueoftheformal pleaofguiltyandtheapproachofthetrialCourttothatadmission. The respondent was prosecuted in connection with this 35 accident inCriminalCaseNo.7521/81.Heappearedbefore the Court on 26th May, 1981,personally and pleaded «notguilty». TheCourtadjourned thecaseto8thJune,1981,forhearing.On thedateofthehearinghewasrepresentedbycounsel,oneofthe 6 1 C.L.R. PhiHppouv. Odysseos StyliantdesJ. counsel thatdefended him later inthecivilaction.Heapplied for leavetochange theprevious plea from one of notguilty tooneof guilty. Leave was granted.Hewas recharged andpleaded«guilty». The file of the case was produced by a clerk of the Criminal 5 Registry. Itis Exhibit3.Theparticularsof thecharge are:«The accused onthe 19th day of January 1981 at Limassol intheDistrictof Limassol diddrive motorcarFZ83 onaroad, to wit, on Makarios III Avenue, without due care and attention.» 10 He admitted that this charge was in connection with the accident for which the civil action was instituted. He gave conflicting versions as to his admission in the criminal case. He said nothingin theexamination inchief. Incross-examination he alleged that he pleaded guilty because he was pressed by the 15 Police Constable in the presence of his counsel. In the re­ examination he contended that he changed the plea to one of guilty in order to avoid protracted litigation (για να μην μακρυγορήσει η δίκη). Theonly reference intheJudgmentisatp. 134 of therecord:- 20 «... the Defendant offered a satisfactory explanation as to why he pleaded guilty to the charge of driving without due care and attention and thus, he rebutted the prima facie evidence of guilt». Counsel for the repsondent referred us to Hollington v. 25 Hewthom & Co., Ltd. [1943] 2 All E.R. 35 and to a number of English cases decided on the provisions of the English Civil EvidenceAct
2. InHollingtoncaseitwas decidedthataconvictionafter hearing ina criminalcase is notadmissible evidence incivillitigation for a 30 number of grounds set out therein. Itwas criticized in Goody v. Odhams Press,Ltd. [1966] 3 All E.R.
3. Lord Denning, M.R.at pp. 371-372 said:- 35 •Thereason isbecause thereis a strange rule of law which says thata conviction is noevidence of guilt, noteven prima facie evidence. That was decided in Hollington v. R. Hewthom & Co., Ltd. Iargued that case myself and did my best topersuade the courtthata conviction was evidence of 7 StylianidesJ. Phllippouv.Odysseos

(1989)guilt.Buttheywould nothave it.I thought thatthe decision waswrongatthetime.Istillthinkthatitwaswrong.» Salmon,L.J.,hadthistosayatp.373:«Iwholehearteadly agree with LORDDENNING,M.R.'s criticismofthatdecision.Itistobehoped,nowthatlawreform 5 isintheair,itmayperhapsbereconsidered.» In Barclays Bank, Ltd. v. Cole [1966] 3 All E.R. 948, with reference toHollingtoncaseitwassaidatp.949:«Ihopethatitwillsoonbealtered.Seewhatitmeanshere. Inordertobeabletobringthiscivilactiontheplatintffbankhad 10 first to make sure that the defendant wasprosecuted in the criminal court: see Smith v. Selwyn. Now after seeinghim duly prosecuted and convicted, they areaskedtoprovehis guiltalloveragaininthiscivilsuit. In the United States ofAmerica insimilar circumstancesit 15 has recently been held that the conviction is not only receivable but is conclusive evidence: see HurttTrustee v. Stirone». TheLawReformCommittee, appointedtoconsiderthelawof :videnceincivilcases, intheintroductiontotheirreportsaid:- 20 «In some recent judgments of the Court of Appeal upon whomtheruleinHollington v.Hewthomisstillbindingithas beensuggestedthatitrequiresourconsideration.Wethinkso too. ... Rationalise it how one will,the decision in thiscase offends one'ssenseofjustice.Thedefendantdriverhadbeen 25 found guilty of careless driving by a Court of competent jurisdiction.Theonusofproofofculpabilityincriminalcases ishigherthan incivil;thedegree of carelessnessrequired to sustainaconvictionforcarelessdrivingis,ifanything,greater than that required to sustain a civil cause of action in 30 negligence. Yet the fact that the defendant driverhad been convicted of careless driving at the time and place of the accidentwasheldnottoamounteventoprimafadeevidence ofhisnegligentdrivingatthattimeandplace.Itisnoteasyto escapetheimplicationintheruleinHollington v.Hewthom 35 that, inthe estimation oflawyers,a convictionbyacriminal Courtisaslikelytobewrongasright.Itisnot,ofcourse,spelt out inthose terms in thejudgment of the Court of Appeal, 8 1C.L.R. 10 15 20 25 30 PhiHppouv.Odysseos StylianidesJ. although insofarastheirdecision wasbasedmainlyuponthe ground that the opinion of the criminal Court as to the defendant driver'sguiltwasasirrelevantasthatofabystander whowitnessedtheaccident, thegapbetween theimplicitand theexplicitwasanarrow one.Itisinasensetruethata finding by any Court that a person was culpable or not culpable of a particular criminal offence or civil wrong isan expression of opinion bythe Court. Butitisofa different character from an expressionofopinionbyaprivateindividual.Inthefirstplace, it ismade by persons, whether Judges, Magistrates orjuries, acting under a legal duty to form and express an opinion on that issue. Inthe second place, in forming their opinion they are aidedbyaprocedure, ofwhich thelawof evidence forms part, which hasbeen evolved with aviewtoensuring thatthe material needed to enable them to form a correct opinion is available tothem. Inthe third place,their opinion, expressed in the form of a finding or verdict of guilty or not guilty in criminal proceedings ora judgment incivil proceedings, has consequences which are enforced bythe executive powerof the State. ... Any layman would, we think, regard the factof such conviction as a firm foundation for the belief that the accused had conducted himself in such a manner as to constitutethecriminaloffence ofwhichhewasconvictedand, if such criminal offence would also constitute a civil wrong, that the accused had committed a civil wrong also. We, too, share this commonsense view. We consider that such a conviction has high probative value inestablishing the cause of action inasubsequent civilaction founded upon the same conduct, in which the onus of proof is lower. We have no doubt inprinciple that evidence of the conviction should be admissible.» The rule inHollington casewasnot followed inCanada andin NewZealand. In Jorgensen v. News Media (Auckland) Limited

(1969)35 N.Z.L.R.961, notonlyItwasheavilycriticized,butallthe grounds on which it was based were refuted. Turner J., said at pp. 990Q91:- 40 «Ihavemyself morethanoncesaidthatthelawofevidence isJudge-made law, directed to the control of the process by which Judges dairy endeavour to do justice; and that if it 9 StylianidesJ. Pttllppouv.Odysseos

(1989)requiresmodification,thatmodificationisparticularlyamatter with which the Judges should be entrusted. In this country there were many who when Myers v. Director of Public Prosecutions [1965] A.C. 1001;11964] 2 All E.R. 881 was decided found itintheirheartstoregretthattheviewsofthe 5 majority had prevailed, and that the great days of judicial legislationinthefieldofevidenceseemedtohavecometoan end.Iwasoneofthosewho,withthegreatestrespecttotheir Lordships who decided it, were less than content with that decision,andforthesereasonsIamofopinionthatneitherthe 10 longtimeduringwhichtheCourtshaveconsistentlyrejected convictionsasevidenceofguilt,noranyreluctancetomodify existing rules in a proper case should deter thisCourt from taking what I conceive to be the proper course, viz.the rejection of Hollington v.Hewthom asadecision togovern 15 the admissibility of such evidence in the future of this country». InEngland, following theReportofLawCommission,theCivil EvidenceAct1968wasenacted.TheDecisioninHollingtoncase isnottheissueinthisappeal. 20 By the plea of guilty an accused person admits the offence charged, i.e., the acts charged and the application of the Law thereto-R. v.Riley,18Cox285.Thisisaformal admission.Itis admissibleincivillitigation.Itisevidenceofthenegligenceandof theactswhichconstitutethecarelessdriving.Itisnoteworthythat 25 the negligence sufficient to establish civil liability is all that is required to support a conviction in criminal proceedings under section8oftheMotorVehiclesandRoadTraffic Law,1972{Law No.86/72) underwhich therespondent -accusedwascharged(Charalambousv. Police

(1982)2C.L.R.134). 30 Furthermore,however,theproofincivilcasesisdeterminedon thebalanceofprobabilities,whereasincriminalcasestheremust be that degree of certainty which isexpressed in the traditional words«beyond any reasonable doubt».Theevidentialvalueofa pleaofguiltyandthedueweightthathastobeattributedtoitby 35 the trial Courts were referred to in Athienou Bus Co. Ltd. v. KyriacosVasiliouandAnother

(1970)1 C.L.R.365. ApersonwhoappearsbeforeacriminalCourtandpleadsguilty toacharge hastoprove, eitherthathedidnotknowthelaw,or 10 1C.L.R. Philippouv.Odysseos StyllanidesJ. that he acted under compulsion or oppression in order to exonerate himself from his formal admission. The formal admission in a plea of guilty before a Court of Law should be evaluated together withthe rest ofthe evidence. Itisevidenceof 5 thecommission ofthe civilwrong. In the present case counsel for the accused -respondent said before the criminalCourt:- 10 «Accused pleads guilty with full reservation of rights to allege and prove contributory negligence on behalf of the complainant, inviewofthefactthathefailed totake avoiding action.» Thisstatement was made inthe presence ofthe accused byhis counsel andbindsthe accused. The respondent was an officer in the National Guard, in full 15 possession of his senses and with competent legal advice. He pleaded guiltyand no reason inlaworjusticewasshowntoallow himto retract before the civil Court. ThetrialCourtactedonsuchflimsyand conflicting explanation, disregarded completely a seriouspiece of evidencebefore it.The 20 Judge misdirected himself and acted on wrongprinciple. For the aforesaid grounds the Judgment under appeal on the issue of liabilityissetaside.Anewtrialisordered before another Judge. Appeal isallowed asabove. 25 With regard to costs the respondent to pay the costs of this appeal;butthecostsbefore thetrialCourttobecostsinthe cause inthe newtrial. Appeal allowed. New trialordered. 11