319 / 328
attached a statement of replies to the statutory
declaration, which included
inter alia
a denial of
professional misconduct and a statement that Mrs. F.
did not stand in a professional relationship during
part of the period alleged in the charge. Mrs. F. was
the only witness before the committee. The legal
assessor to the committee advised that they might
infer from the appellant's replies that he was not
prepared to deny the misconduct. In the course of
the hearing before
the Disciplinary Committee
counsel for the complainant mentioned the statutory
declaration which at the invitation of the legal
assessor was circulated to the committee who read
it. Mrs. F. was questioned on it. The declaration
contained a number of facts prejudicial to the
appellant including hearsay evidence as
to his
character.
The appellant was found guilty of infamous
conduct in a professional respect. The matter was
subsequently appealed to the Judicial Committee
of the privy council who held that the principle
on which they must act was that the appeal must
fail unless there was some defect in the conduct
of the inquiry, by way of admission or rejection of
evidence or otherwise, that might fairly be thought
to have been of sufficient significance to the result
to invalidate the disciplinary committee's decision
and the finding should stand because :—
(a)
Although it would have been preferable if
the legal assessor's advice had been that the
letter was capable of constituting corrobora-
tion and if it had been left to the committee
to decide whether it in fact corroborated
Mrs. F's evidence, the advice tendered did
not amount to such a defect as invalidated the
finding.
(b)
Although the statutory declaration was not
evidence in the case, in the circumstances taken
as a whole its production was not sufficient
ground for invalidating the finding.
Accordingly the appeal was dismissed.
(1964)
i. W.L. R. 112.
Overloading—Car insurance
In Clarke
v.
National Insurance & Guarantee
Corporation Limited the court considered the case
of a Ford Anglia carrying nine passengers including
the driver which came into collision with another
vehicle. The Insurance Company paid the damages
which had been awarded in the Court of first
instance in respect of the death of the driver of
the other car, and then claimed that it was entitled
to be reimbursed by the insured (who was the driver
responsible for the accident) on the ground that a
clause in the insurance policy exempted the company
from liability if the car was "being driven in an
unsafe or unroadworthy condition". Davies, L. J.
(decision [1963] 2 All. E.R. 470) held that this clause
was inapplicable and that the insured did not have
to reimburse the company. While having no doubt
that the insurers' negligence in overloading the
car and driving it when overloaded, he would not
say that in the circumstances it was unsafe to drive,
that was quite different from saying that it was in
an unsafe or un-roadworthy condition. The over
loading was something extrinsic to the condition
of the vehicle, as was the manner of driving it when
overloaded. The decision which has been reversed
by the Court of Appeal
(The Times,
i2th July, 1963).
Harman, L. J., stating that when considering road
worthiness one should take into account whether
the car was overloaded. It could be driven safely,
but not at over 25 miles an hour, as it was when
the accident occurred. It is agreed that, being
driven slowly, it could perform a journey down a
steep hill and around bends in safety; but for ordinary
purposes the car was unsafe. The car had to be
regarded as it was, proceeding along the road,
not immediately before it was loaded, when it was
safe and mechanically sound. The important words
in the clause were "being driven" and when it
was being driven it was unsafe and unroadworthy.
While there might be nothing wrong with the
intrinsic character of the vehicle it was nonetheless
defective as to condition while on the journey.
Leave to appeal to the House of Lords was given.
(1964) I.Q.B. 199.
Medical testimony
In Dalton
v.
Clarke and Flynn Ltd.
(The Times,
I9th July, 1963) Glynn Jones, J., appears to have
felt that some such violent measure as incarceration
of medical witnesses might be justified in some
circumstances. In the case referred
to, counsel
complained that the defendants sometimes could
not see hospital notes before trial, but it has been
known for the plaintiff to be in ignorance of the
hospital records until the hearing—with catastrophic
results—simply because his doctor had refused to
produce them until forced to attend on
sub-poenae.
It is true that there may be many matters on which
doctors cannot agree as medicine is not an exact
science and there is often room for more than one
opinion in the same case; the judge or jury as the
case may be must come to their conclusions after
hearing the different views tested by cross examina
tion in the light of the impression made by the
witnesses, including that of their experience and
the authority they command in the witness box.
The practice which angered the judge was the
withholding of medical reports in order to gain the
advantage of surprise. It is felt that medical evidence
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