The Gazette 1961 - 64

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. 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 99 (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

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