Report of the trial, Cooper versus Wakley, for libel / from the notes of W.B. Gurney ; with remarks on the evidence, by Bransby B. Cooper.

  • Cooper, Bransby Blake, 1792-1853.
Date:
1829
Catalogue details

Licence: Public Domain Mark

Credit: Report of the trial, Cooper versus Wakley, for libel / from the notes of W.B. Gurney ; with remarks on the evidence, by Bransby B. Cooper. Source: Wellcome Collection.

Provider: This material has been provided by The Royal College of Surgeons of England. The original may be consulted at The Royal College of Surgeons of England.

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    c <ord Tenterden's Judgment an account of a supposed operation. I shall prove it was a real operation. If in answer to his charge I had pleaded the general issue, then I admit the affirmative must have remained upon Sir James Scarlett; but in the present case it is entirely with me, unless language is altogether perverted. I charge the Plaintiff with unskilfulness, and I came here, I believe, prepared to prove it. If Sir James Scarlett is prepared to prove the reverse, there will be a different decision than I anticipate. I do not think there is a single question that can be tolerated for a moment, that the affirmative lies upon the Plaintiff. I charge unskilfulness, and I say the operation was not performed in a manner that the public had a right to expect. I plead no general issue; and it appears to me, that the affirmative of the whole of the issues lies with me. If it should be proved the operation was unskilfully performed, there will be no question of damages, and the Plaintiff has sustained no injury ; or if he has, it is only what he ought to sustain for the unskilfulness he exhibited. Lord Tenterden.—As the decision of this point may be hereafter quoted as a precedent, and as I have an opportunity of consulting two other of the learned judges, I wish to avail myself of it. His Lordship left the Court, and returned in a short time. Lord Tenterden.—I am of opinion that the Defendant in this case has a right to begin. The general rule has been established by many cases, that the party upon whom the affirmative lies is the party first to begin, and one at least of the cases in which the rule was established was a case in which the Plaintiff would have to get damages at the hands of the jury. I allude to the case particularly of Bedell v. Russell, a case of trespass and assault, in which the damages would be unliquidated, and entirely for the consideration of the jury, if the Defendant did not prove hi6 justification. It has been contended that in this particular case there is an affirmative allegation, which it is in- cumbent upon the Plaintiff to prove; and, if that were clearly so, it might take the case out of the general rule, or rather bring it within the rule. The rule that the party who complains should begin, would give it to the Plaintiff, provided there was anything upon these issues which the Plaintiff was bound to prove: but upon reading them, it appears to me there is nothing of that kind in them. The Plaintiff must be presumed, till the contrary is made out, to have acted, as every body is presumed to do, with proper skill and care in the profession he exercises. No man is to be presumed to have misconducted himself; and when the Defendant alleges, that the Plaintiff, in a particular operation, employed a much longer time than was proper, or than a skilful surgeon would have occupied, it appears to me that it is incumbent upon the Defendant to prove that the Plaintiff did employ a much longer time than a skilful surgeon would have occupied; and when the Defendant alleges that the Plaintiff performed the operation in an unskilful and unsurgeon-like man- ner, I think it is incumbent upon the Defendant to sustain his plea, and to prove that the operation was performed in an unskilful and unsurgeon-like manner. So when he alleges that much greater pain and suffering was occasioned to the sufferer, that is an affirmative upon him. I need not go through the other parts, they appear to me to be all to the same effect in the view I take of the pleadings. I take it that it is incumbent upon the Defendant to make out the truth of these allegations by evidence on his part; and until that is done, that