by each side, evidence which is very often nothing more than mere theory.

The present system allows the introduction of much evidence which ought not to be admitted. The statements of witnesses should be strictly confined to facts, and should never be allowed to extend to a statement of probabilities founded ' upon the witness's experience,' or upon the witness's opinion that it is a well-ascertained medical fact.' There really is no limit when once this class of evidence is admitted, and I well remember a strong expression of opinion from one of the late ornaments of the Bench (Sir Frederick Pollock) against the extent to which the practice had gone of late years, of admitting this class of evidence. Before a skilled tribunal it would be unnecessary to do more than mention the facts, and conclusions and probabilities would be inferred by the court.

I well know the difficulty of the subject I have taken in hand, and I do not pretend to be able to define the exact tribunal that is required. I have only stated the evils of the present system, and mentioned the means which, rightly applied, might counteract those evils. The manner of applying those means is not within the terms of the special question before the department. I would, however, clearly say that except by the consent of the parties, no medical assessors should be allowed to hear claims and award damages except in the presence and by the direction of the judge. I would suggest in this class of cases, where the extent of the injuries may be a matter of doubt, that it might be possible for the defendant to pay into court, or give security for a sufficient amount when a stay of proceedings should be ordered. If the plaintiff recovered, then some part of the amount might be returned to the defendant, provision being made for periodical payments to the plaintiff during the time that he might be prostrate. These periods and the sum could be satisfactorily fixed by men of medical skill and experience.

DISCUSSION.

Mr. FREDERIC BRADY (London).-Some of the cases mentioned by Mr. Ryalls have shown an injustice so flagrant that they have excited our hilarity, but these cases are anything but laughing matters to the defendants against whom the actions are brought. Large contractors find it necessary to add a small percentage to their estimates for large contracts in consequence of the risk they run of having actions brought against them on account of injuries sustained by their workmen. If the tribunal suggested by Mr. Ryalls is established, I hope he will not

object to its having power to apportion fairly the civil liability for injuries sustained by any person between the employers and the workmen. At present the employer, however innocent personally, is exclusively liable, although the injury is often the result of the grossest carelessness on the part of the worknian, who now escapes scot-free from the consequences of his acts.

The CHAIRMAN.—I see a learned judge present. I wish he would give us the benefit of his experience on this subject.

Mr. W. T. S. DANIEL, Q.C. (Skipton).—This is hardly a question for a judge to deal with, and it is one of great difficulty. If it is proposed to shift the responsibility of determining points of this kind, from what I hear with some surprise is considered in this room to be the inconvenient tribunal consisting of a judge and a jury to a tribunal consisting solely of judges, I am not sure that in adopting that proposal we should not be transferring the jurisdiction in these matters to a less satisfactory tribunal than we have at present. When I was at the Bar I was informed that there was a great desire on the part of judges in order to be relieved from the responsibility of deciding in cases where there was conflicting testimony, to have the assistance of a jury, and I rather think that that feeling still prevails amongst the judges. For my own part, in the limited sphere of action in which I move, I sometimes desire to have the assistance of a jury, especially in cases where there is a conflict of evidence arising out of a difference of opinion on the part of skilled persons. Whether it is possible to adopt a medium course, and without throwing the responsibility of deciding in such cases upon the judge, or leaving the determination of the case to what I suppose it is no caricature of Mr. Ryalls' paper to term the haphazard decision of the jury, to submit the case to a tribunal consisting of a judge assisted by skilled assessors, I am not prepared to say, although I am far from saying that such a course might not be desirable. The difficulty in the way of adopting such a proposal, however, that presents itself to my mind is this-how are you to know beforehand that the case is one in which skilled assessors are necessary? That is a practical difficulty which is continually cropping up in the district in which I vegetate. There is doubtless a very strong desire that we should have judges assisted by skilled assessors, but it is also desired that those skilled assessors should be persons of the highest position, not men that would be willing to render their services for a guinea a day, or some such trifling remuneration, but men who in their particular sphere are equally well educated and hold as high a comparative rank with the judges whom they are called upon to assist. I am satisfied that it is only in the event of a judge being assisted by persons of that position that the public would be willing to dispense with the services of a jury. But the practical question is, how are you to devise a scheme that will enable the Court to have the assistance of such highly competent persons? I confess that, although I see how advantageous such a system would be, I do not see my way to establishing it. It seems to me that if we must be content to allow our tribunals to remain constituted as they now are, the proper remedy for the evil complained of is the purification, if that be needed, of the medical pro

fession with reference to those who advise, and that another mode of improvement would be that the trained advocates who are to assist in the conduct of cases should especially qualify themselves for dealing with such questions. We must not, however, lose sight of the fact that when we have perfected to the utmost of our power every tribunal for the administration of justice, we cannot shut our eyes to the fact that after all they will be human tribunals, and therefore necessarily occasionally imperfect. With reference to the case alluded to by Mr. Ryalls as having occurred at Leeds, I may say that I was not present at the time the medical men gave their evidence, but I happened to be dining with the learned judge that evening, and I know how perplexed he was as to how he should sum up the case the next day, because their testimony really involved questions, not of opinion, but of fact-namely, whether at the post-mortem examination serum was found upon the brain or not, because if it were then the death would have been the result of the concussion, and therefore of the accident, and not of typhoid fever.

Mr. RYALLS.—And their evidence was supplemented by that of the gentlemen from London, who had never seen the patient.

Mr. DANIEL.—I do not see how any tribunal could protect itself from unhappy accidents of that description. We must take things as we find them, and try and make the best of them. Judging from my own experience in trying the humbler class of cases arising out of injuries caused by railway accidents, I do not think that medical men of character and reputation would before a tribunal, consisting of a judge and skilled assessors who were capable of understanding the effect of and weighing their evidence, indulge in such extravagant statements as some medical men do not hesitate to lay before a jury. I think that there are many other cases in which skilled witnesses would hesitate before they endangered their reputation by uttering before a judge and skilled assessors what their consciences would tell them ought not to be believed. I do not, however, say that as suggesting that juries should be dispensed with, because I am one of those who believe that in cases of conflicting evidence trial by jury is one of the greatest bulwarks we have for the pure, efficient, and satisfactory administration of justice.

Mr. E. W. BRABROOK (London).—I was very much struck with the force of Mr. Ryails' suggestion that the medical witnesses called and paid by the parties should be allowed to give evidence only as to matters of fact, and precluded from giving evidence as to medical theories or opinions, and think that suggestion points to a practical solution of the difficulty without taking the case out of the cognizance of the juryviz., to retain the present form of tribunal, and enable the judge and jury to be assisted by an expert of high standing in the medical profession, who should himself supply the evidence of opinion, and should state upon his own high authority what was the effect of the medical evidence of fact given by the witnesses on both sides. I doubt the expediency of withdrawing these cases from juries altogether, although it may be that juries sometimes press too heavily on the defendants in cases of railway accidents; but a juryman is, after all, only one of the public, and while railway companies treat the public so often

as if they were their enemies instead of their allies, one can hardly wonder if juries make the railway coinpanies sinart when they have the chance of doing so. The remedy for that is in the hands of the railway companies themselves.

The conse

Mr. GEORGE HURST (Bedford).—I wish to say that I am much pleased with Mr. Ryalls' paper, which ventilates a subject of great importance. The frauds perpetrated by persons who habitually trade upon railway accidents are very serious. A case came to my knowledge a short time since when an accident having happened to a railway train, a man from London who had been travelling in one of the carriages began to complain of being injured, and to cry out 'Oh! my right leg! Oh! my right leg!' The medical man who was called in to examine him could not find that there was anything the matter with him, but the moment the medical man tried to examine his leg he would not permit him to touch it. He remained at the hotel in the country for some weeks at the expense of the railway company. Eventually the railway company compromised the matter by giving him a sum of money. quence was that his right leg was cured instantaneously. It seems to me that it would be of the utmost importance if these cases were withdrawn from the cognizance of a jury. It has been shown that a jury is very apt to entertain prejudices against railway companies, and although railway companies, as a rule, take the best care of their own interest, I do not think that cases of this sort should be tried by a prejudiced body. Every case of injury resulting from railway accidents might be carefully and thoroughiy investigated by a tribunal, consisting of a judge assisted by skilled medical assessors. The appointment of such a tribunal would be a great improvement on our present system, and the procedure would be greatly simplified. I am not quite sure that a jury is the best tribunal in all cases. If such a tribunal as

that suggested by Mr. Ryalls were appointed, the assistance of the medical assessors who understood and had practised medicine would enable the Court to arrive at a much more fair and just settlement than was arrived at now in such cases, and where real injury was sustained a fairer, and perhaps a more judicious, compensation would be awarded than plaintiffs obtained under the present system.

Mr. EDWIN JONES (London).—I think that the suggestion made by Mr. Brabrook that the present tribunal consisting of a judge and a jury should be assisted by assessors, is already provided for by the 56th section of the Judicature Act (1873). That section enacts. enacts-'The High Court or the Court of Appeal may also in any such cause or matter as aforesaid in which it may think it expedient so to do, call in the aid of one or more assessors specially qualified, and try and hear such cause or matter wholly or partially with the assistance of such assessors. I do not see why under that section assessors should not be appointed to assist the Court, nor why they should not examine the plaintiff as medical men. Mr. Ryalls has laid much stress on the want of uniformity of principle in assessing the damages that is apparent in the decisions of the changeable tribunal that we now have, but I think that to establish a hard and fast tribunal such as that proposed would be rather disadvantageous than otherwise, because jurymen taken from the

same class of society as that in which the plaintiff moves or from a better class would be far more capable of estimating the real loss sustained by the injured persons than such a tribunal would be. Mr. Ryalls has made an attack upon the medical men called for the plaintiff in cases of injuries arising out of railway accidents on the ground that they are prone to exaggerate the extent of injuries sustained, but we ought also to look at the other side, when we should find that a class of medical men employed by the railway companies often go to injured persons when at their worst, and when their nerves are shaken, and endeavour to induce them to come to a settlement of their claims against the railway companies for a very inadequate amount. Railway companies by means of this practice frequently settle cases of this kind for 20l., 301., or 40%., where juries would have given hundreds of pounds. With reference to the proposal that where damages are given they should take the form of periodical payments, I think that the full amount of damages should be paid into Court by the defendants in the first instance, and that the periodical payments should be made by the Court to the successful plaintiff from time to time during the continuance of his illness resulting from the accident. Such a course would place a great check upon fraudulent claims. I know of a case in which an accident having occurred, a gentleman stated that he had sustained a shake. Although he did not complain of much injury at the time, he subsequently took to his bed and made a claim on the railway company. He was visited by the medical man of the railway company, whom he informed that he was suffering from paralysis the result of the accident, and the medical man was not able to disprove his assertion. In the course of time he got worse; he asserted the loss of the use of his left hand, and had a special knife and fork made to enable him to eat with one hand, but, strange to say, he did not lose his appetite. He at length got a little better and was able to move about upon crutches. Eventually the railway company paid him more than 2,0007. Some time afterwards I saw him upon his crutches endeavouring to cross a street. An omnibus was coming along rather rapidly as the gentleman was crossing, whereupon the latter tucked up his crutches under his arm and ran across the road with considerable agility, and when he was safe on the opposite side he quietly resumed the use of his crutches and proceeded on his way. Very few people are aware of this circumstance, and the railway company know nothing about it. The gentleman subsequently put away one crutch and walked with one crutch and a stick, then he threw away the other crutch and walked with two sticks, then an umbrella was substituted for one of the sticks, and at last the remaining stick was given up, and now he is as well as ever he was. If that case had been brought before a properly constituted tribunal the result would most probably have been different. The question of damages, in my opinion, can only be properly determined by a judge and a jury assisted by medical assessors, and I think that the appointment of such assessors is fully provided for by the 56th section of the Judicature Act.

Mr. J. PRICE (London).—We have all been very much interested in the able paper read by Mr. Ryalls, who has laid before us a