236 / 336
only afterwards bring in controversial facts. As far as
possible, stick to the language the witness used in his
statement to the Guards. The logical and chronological
sequence of events should be adhered to. Normally
too many questions are asked in direct examination. Re-
petition should be avoided, and also unnecessary cor-
robation. Matters of peripheral circumstantial detail
should be barred, as they are fodder for cross-examin-
ation. It is inadvisable to prepare questions in advance,
in order to examine expert witnesses. But the listing of
events and facts in advance is beneficial.
As to cross-examination, it is better that it should be
short rather than long. If you obtain an admission from
a witness in cross-examination, you should not at-
tempt to repeat the question. If you do not know the
answer, do not ask the question i
n
cross-examination,
as it would help an acute and untruthful witness.
Witnesses are normally not prepared to contradict dir-
ectly what they have already said. If a witness exag-
gerates a tale, this is often fabricated, and may be
discovered in cross-examination. The cross-examination
should be started quietly and courteously, though later
stern and severe questions may yield results. It is un-
wise to try to destroy the credit of a witness, unless
this can be proved by documents or extraneous cir-
cumstances. If a witness is untruthful on main issues,
he is iikély to be untruthful also on peripheral issues,
and cross-examination should elicit this. In cross-ex-
amination, you should always cease pursuing the issue,
or even the cross examination itself, after you have
made a breakthrough. You should never turn a witness,
who has become contemptible in the eyes of the Court
into an object of sympathy. You can never prepare a
good cross-examination in advance, as you must have
liberty to change your questions.
As to expert witnesses, every discipline has its own
particular terminology. It is therefore essential, if you
are examining or cross-examining a professional ex-
pert, to understand fully not only what he is saying,
but why he is saying it, and you should encourage
him to speak the layman's language. D o not denigrate
a doctor who is not as eminent as yours. It is danger-
ous to cross-examine, unless you know the expert evid-
ence thoroughly. But you may ask an expert how he
has arrived at his opinion, and if this seems nonsensical,
so much the better.
As to submissions of law, you should never quote
a section or legal authority on the basis that it gen-
erally deals with the point at issue in the case. You
must foresee the end and total consequences of any
proposition of law or fact you are making to a Court;
you must ensure there will be no back-lash from it.
You should if possible have two alternative arguments
either on law or facts ready to submit to a Court. You
should also watch the way a Judge's mind appears to
be going, and if he favours one of your minor points,
you should earnestly follow it.
Mr. Patrick Connolly, S.C. delivered the lecture
on Sunday morning on "
Damages in Tort and in Breach
of Contract".
Damages are a form of pecuniary com-
pensation obtained as a result of a successful action in
tort or breach of contract.
Exemplary or punitive
dam-
ages are
awarded as a
solatium
for insult or outraged feel-
ings; in England, the decision in
Broome v Cassell—
(1972) 2 W.L.R. 645—has effectively abolished exem-
plary damages at common law. The measure of dam-
ages in tort m?y be termed
Restitutio
in
Integrum—
a
sum of money which will as far as possible put the
party who has been injured in the same position he
would have been in formerly. In motor accident cases,
the injuries are often so serious that this is often im-
possible. However the damages must not be too remote,
and the plaintiff must as far as possible mitigate his
loss. The broad principles upon which the Supreme
Court will intervene in personal injury accidents is
concisely stated by Lavery J. in
Foley v Thermo
Cement Products Ltd.—90 I.L.T.R. 92: The Judge
would have to compare his own estimate with the ver-
dict, and decide whether there is a reasonable pro-
portion between the sums. It would not be useful, in
view of the change in the value of money, to give ex-
amples of awards. In serious cases like total wreck
cases, the majority in
Doherty v Bowaters—(1968)
I.R. 277 held per Lavery J. that the sum to be awarded
must be such as will liberally provide the plaintiff for
all his reasonable needs in his future life. In many
personal injuries cases—and notably in
McArdle v
McOa u g h y ( 1 9 6 8) I.R., 47—the Supreme Court have
stated that the damages to be awarded should fall un-
der four headings:
(1) Pain and suffering to date of trial; (2) Pain and
suffering in the future; (3) Special damages to date
of trial and (4) Special damages in the future.
In a long line of cases including
CPLeary v CKCon-
ne l l—( 1968) I.R. 249—the Supreme Court decided
that a plaintiffwhowish es to found a claim for future
loss of earnings, must call the evidence of an actuary
to capitalise such loss—and he must also adduce evid-
ence of his present earning capacity
(Roche v Kelly
—(1969) I.R. 100).
As
to
the
measure
of
damages,
in
general, the party not in breach is entitled to com-
pensation for loss of his bargain, according to the rule
in Hadley v Baxendale (1854).
The test for determining remoteness of damages in
tort relates to either liability or to damages. In effect,
this test is the same. The
Wagon Mound —
(1961) A.C. 388—decided that in order that compen-
sation for damage should be recovered, the loss should
be reasonaibly foreseeable as f61 lowing from the wrong-
doing. If the rules of strict liability, as
Rylandg v
Fletcher
apply, then the defendant is probably re-
sponsible for the immediate and direct consequences of
the harmful event. This foreseeability test has little
ppptlication to cases under Part IV of the Civil Liab-
ility Act 1961, as the right of action is directly given
to dependants for pecuniary loss.
Th e scope of the protection afforded to the injured
party is different in breach of contract as against tort;
in contract, one must mainly consider what is in con-
templation under the contract, and the test is thus
narrower
(Victoria Laundry v Newman—(1949)
2 K B. 528). But the plaintiff must at all times take
all reasonable steps to mitigate his loss.
The text of Mr. David Clarke's lecture on "Equitable
Jurisdiction" is not available. The successful Confer-
ence Dinner was held on the Saturday night in Acton'*
Hotel.
.230