The Gazette 1975

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