Cooper v Williams
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DAVIES |
| Judgment Date | 26 February 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0226-1 |
| Date | 26 February 1963 |
| Court | Court of Appeal |
and anr: Appeal of Defendants from Order of Mr Justice Megaw dated 6th June, 1962, set down August 16th.
[1963] EWCA Civ J0226-1
The Master Of The Rolls (Lord Denning)
Lord Justice Dankwerts and
Lord Justice Davies
In The Supreme Court of Judicature
Court of Appeal
Mr BERNARD CAULFIELD, Q.C. and Mr F. BLENNERHASSETT (instructed by Messrs Barlow Lyde &. Gilbert, Agents for Messrs Duggan, Elton & James, Birmingham) appeared on behalf of the Appellants.
Mr WILLIAM STABB (instructed by Gascoin & Co., Agents for D Messrs Hinckley & Birch, Lichfield) appeared on behalf of the Respondent Mrs Barbara Watkins.
Mr P.J.M. KENNEDY (instructed by Messrs Wallace Copland & Co., Stafford) appeared on behalf of the Respondent Sheila Anne Cooper.
Mr Frederick Leslie Watkins was fatally injured in a road accident on the 4th December, 1959. He was driving a car. He himself was killed. His wife, Mrs Barbara Watkins, who was with him in the car, was herself injured. So she clearly had a claim for her own personal injuries. In addition she was dependent on her husband and had a claim for the loss she had suffered by his death. In addition to the widow, Mr Watkins left an illegitimate child who was also dependent on him. She was his child by another woman. Her name was Sheila Anne Cooper and she was almost ten years old. As a result of the death of Mr Watkins, which was clearly caused by the negligence of the drivers of two lorries, a claim arose under the Fatal Accidents Acts for and on behalf of the two dependants.
Under the 1846 Act, as originally enacted, the right of action for the death was vested in the Executors or Administrators of the deceased person. Section 2 said: "That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the Executor or Administrator of the person deceased; and in every such action the Jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought". Section III is very important. It said: "That not more than one action shall lie for and in respect of the same subject matter of complaint"; and Section IV said: "That in every such action the Plaintiff on the record shall be required, together with the declaration, to deliver to the Defendant or his Attorney a full Particular of the person or persons for whom and on whose behalf such action shall be brought,- and of the nature of the claim in respect of which damages shall be sought to be recovered."
Such was the Act of 1846. But it was incomplete. There was not always an Executor or Administrator, or the Executor or Administrator did not bring an action. So in 1864 the Act was amended to say that: "If it shall happen that there shall be no Executor or Administrator or there being such Executes or Administrator no such action shall be brought within six calendar months after the death of such deceased person…. such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it had been brought by and in the name of such Executor or Administrator; and every action so to be brought shall be for the benefit of the same person or persons, and shall be subject to the same regulations and procedure as nearly as may be, as if it were brought by and in the name of such Executor or Administrator". So it is quite plain under the 1864 Act that it is not necessary for the Executor or Administrator himself to bring the action; but if he has not done so, any one of the dependants may do so.
Such being the statutory provisions, I turn to what happened, in this case. The death of Mr Watkins was, as I have said, on the 4th December, 1959. The widow went to a firm of solicitors in Lichfield. The infant child and her mother went to a firm in Stafford. The widow's solicitors took steps to get a grant of administration on her behalf but it took a little time and they did not get the grant until 11th March, 1960. Meanwhile, however, the child's solicitors were very anxious to press on with the claim on behalf of the child. They did not wait for the widow to take proceedings as administratrix but issued-a writ on behalf of the child by her mother and next friend. They issued the writ on 1st March, 1960, before the widow obtained the grant. The plaintiff was "Sheila Anne Cooper an infant by her mother and next friend". The defendants were Mr Williams, a lorry driver, and British Road Services, Ltd. The endorsement was "The plaintiff's claim is for damages for the death ofFrederick Leslie Watkins from injuries received by the negligence of the defendants their servants or agents." That writ was issued, no doubt, with a view to early settlement of the child's claim. They seem to have arranged to settle it for pound 450. It would need the approval of the Court. But there was some delay in making the application. The reason was given in a letter of the child's solicitors to the widow's solicitor of 29th March, 1960. They said that "there has been a certain amount of subsequent delay because the other solicitors raised one or two points as to the procedure under the Fatal Accidents Acts which have now been sorted out… We are keeping you informed in view of the provisions of Section 3 of the Fatal Accidents Act, 1846, as you might like to consider whether your client should join in the application… So that we can place the whole of the facts before the Court, perhaps you would let us know the name of your client and also the names of any children." One would have thought that the widow's solicitors would thereupon have looked up Section 5 and have discovered that there could be only one action under the Fatal Accidents Act, and would therefore have seen to it that a claim was included on behalf of the widow. But they did not do so. They replied on 3lst March, 1960: "Our client's name is Barbara Watkins. There were no children of the marriage." On the 6th April, 1960, the child's solicitors replied saying they were obliged and added simply, "We can now give the Court full information as to other dependants". On 6th May, 1960, the child's solicitors wrote to the widow's solicitors telling them that they were applying on 18th May, 1960, to the Registrar "for his approval to the settlement of our client's claim under the Fatal Accidents Acts". Even then the widow's solicitors did not realise that the widow's claim ought to be included. They replied on 7th May, 1960, saying: "If the Registrar mentions the question of any other claims in this case, we should be very much obliged if you will inform him that Mrs Watkins isstill receiving attention in respect of her facial injuries and therefore it is not yet possible to assess her claim". It would seem that the widow's solicitors still did not realize that the claim for dependency ought to be included in the child's action. The child's solicitors replied therefore of 9th Kay, 1960: "You will, of course, appreciate that we wrote to you in view of the position with regard to more than one claim being made under the Fatal Accidents Act". Still the widow's solicitors did nothing. On the 18th May, 1960, the application came before the District Registrar at Birmingham. No Statement of Claim had been delivered. There was therefore no "Particular" as required by Section 4 of the 1846 Act of the person or persons for whom and on whose behalf the action was brought or of the nature of the claim. But an affidavit was filed by the child's solicitor in which he said that "the deceased left a widow" and "no action has been commenced by or on behalf of the widow".
Such was the state of the proceedings on 18th May, 1960, when the child's solicitors and the defendant's solicitors appeared before the Registrar at Birmingham and sought approval to settle the child's claim for pound 450. Everyone present knew of the existence of the widow. She was named in the affidavit and we were told that her name was called to see if she would appear. Nevertheless the settlement was approved without any provision being made for her. The Order approved the terms of settlement and went on to order: "That all further proceedings in this action be stayed (except for the purpose of enforcing this order) upon the terms following: (i) that the defendants do pay… the mother and next friend of the plaintiff pound 36; (ii) That the defendants do pay…… the further sum of pound 414 to be invested for the benefit of the infant plaintiff; (iii) That the defendants do pay the infant plaintiff's costs of this action; (iv) That upon payment by theDefendants…. they be discharged from any further liability in respect of the plaintiff's claim in this action; And that the parties be at liberty to apply".
Now that action was "one action" within Section 3 of the 1846 Act. It was brought on behalf of the infant child. The widow's claim was not included at all. The consent order was made on 18th May, 1960, staying the action. On the very next day, 19th May, 1960, the widow's solicitors wrote to the defendants' solicitors about her claim for her facial injuries. They still did not mention her claim for dependency. But the defendants' solicitors in their reply made it clear that, if she should...
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