Hewer v Bryant

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE KARMINSKI
Judgment Date19 June 1969
Judgment citation (vLex)[1969] EWCA Civ J0619-2
Date19 June 1969
CourtCourt of Appeal (Civil Division)
Between
Fergus Radbourn Hewer
Plaintiff Appellant
and
David Colin Bryant
Defendant Respondent.

[1969] EWCA Civ J0619-2

Before:

The Master of The Rolls (Lord Denning),

Lord Justice Sachs and

Lord Justice Karminski.

In The Supreme Court of Judicature

Court of Appeal

Appeal of plaintiff from judgment of Mr. Justice Paull London 10th June 1968.

Sir JOSEPH NOLONY, Q.C., and Mr. M. TURNER (instructed by Messrs. Lovell White & King, Agents for Messrs. Townsends of Swindon) appeared on behalf of the Plaintiff Appellant.

Mr. RAYMOND KIDWELL, Q.C., and Miss H. BARNEW (instructed by Messrs. Easton & Sons) appeared on behalf of the Defendant Respondent.

THE MASTER OF THE ROLLS
1

Fergus Hower was born on the 28th December, 1946. So he is now 22. On the 15th August, 1962, when he was 15 years and 8 months, he was seriously injured in a motor accident. He could not himself bring an action for damages at that time because he was under 21. His father might have brought an action on his behalf, as his next friend, but he did not do so. So Fergus, as soon as he was 21, issued a writ himself. It was issued on the 16th January, 1968, a week or two after his 21st birthday. The defendant says that the action is barred by the Statute of Limitations. He says that Fergus was at the time of the accident "in the custody of a parent", and that an action is barred after three years from the date of the accident.

2

These words, in the custody of a parent", have given rise to much difference of opinion amongst the Judges. But before considering them. I will state the facts of the present case: for they illustrate the problem.

3

Fergus is one of a family of five children. The father is a veterinary surgeon at Swindon. Fergus came third. He was not good at examinations, but he always wanted to do farming. As soon as he was 15 he joined an excellent scheme run by the Y.M.C.A. called "British Boys for British Farms". He went to a Farm Training Centre at North Cadbury Court in Somerset where he had 8 to 10 weeks residential training. His father paid £35 for him there. Then he went to a farm run by Major Neve, called Heathersett Farm, Boltonsborough, Somerset. He was employed by the farmer as an agricultural worker and was paid wages according to the Agricultural Wages Board scale, £3,15s. Od. a week, plus keep. He lived with the farmer and his family in the farmhouse. He was, in short, just like any boy who leaves home and goes out to work, such as an apprentice at sea or a youngster in a factory.

4

After he had been working on the farm for some months, he was given a lift by another lad who was working on the same farm. The other lad drove the car badly and ran into a tree. Fergus was seriously injured. He was taken at once to hospital. Hisfather and mother did everything possible for him. As soon as he was out of hospital, they had him home and tended him until he was able to work again. Ten months later he went to another farm as an agricultural worker.

5

His father and mother considered whether to bring an action on his behalf, but they did not do so. The farmer (by whom he was employed at the time of the accident) went bankrupt. The driver was only a lad, and they thought there was no insurance cover for passengers. They also thought that their son had a good prospect of full recovery.

6

Over three years later the parents found that their son was not likely to make a full recovery. He had been mentally injured by the accident. He could not remember things and got stuck for words. They applied for leave to bring an action out of time under the Limitation Act, 1963. But leave was refused. So they gave up trying themselves.

7

As soon as the son was 21, he brought this action himself. And we come back to the point of the case. Was Fergus Hewer at the time when the cause of action accrued to him (that is, on the 15th August, 1962) "in the custody of a parent"? For over 300 years anyone under 21 was not barred by lapse of time. He was not entitled himself to bring an action at law for damages: because, being under 21, he was considered incapable of managing his own affairs, at least to that extent. Until he was 21, he had to find someone to act as his next friend and bring an action on his behalf. But it was not everyone who was prepared to be his next friend, especially as a next friend is liable to pay all the costs if he loses. Even the most loving parent might hesitate: and a neglectful parent would not bother. No parent was under any duty to bring an action on behalf of his child. He was not even liable to maintain his child unless the neglect to do so would bring the case within the criminal law, see Bazeley v. Forder (1868) L.R. 3 Q.B., at page 559 by Chief Justice Cockburn. All the more so, a parent was not bound to bring an action for him. The only thing the law did for a parent was to say that, if he did help his child to bring an action, he was not guiltyof the criminal offence of maintenance. Seeing, therefore, that an infant could not bring an action himself, and that no one was under any duty to bring it for him, the law (in its natural solicitude for infants) said that time did not run against an infant until he became of age and was able to bring an action himself.

8

In 1939 Parliament started to encroach on this merciful principle. It did so in order to protect public authorities, although I do not see why they should be specially privileged. Parliament said that, if an infant under 21 (or, I may add, a person of unsound mind) had a claim against a public authority, his claim was to be barred after one year from the accident unless he proved that he was not at the time in "the custody of a parent", see section 22(D) of the Limitation Act, 1939. In 1954 Parliament extended this protection to all defendants. It said that, if an infant (or person of unsound mind) suffered personal injuries at the hands of anyone, his claim was to be barred after three years from the accident "unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent", see section 2(2) of the Law Reform Act, 1954.

9

Parliament thus showed itself more solicitous for defendants and their insurers than for infants. It still left an infant without any right to bring an action for himself. It put no one under any responsibility to bring an action for him. Yet it barred him from any claim unless he proved that at the time of the accident he was not "in the custody of a parent". I suppose that Parliament thought that every parent who had the custody of a child ought to bring an action for him: and, if he did not do so, the child must suffer. So be it. But I wish that Parliament had told us what it meant by the words "in the custody of a parent". They have aroused acute controversy. One school of thought says that "custody" is a legal concept, and that a son remains in the custody of his father until he is 21. The other school of thought says that "custody" is a factual concept, and that a son is only in the custody ofhis father when he is, in fact, In his father's care and control.

10

Up till now most of the Judges have treated the question whether an infant is "in the custody of a parent" as a question of fact to be determined on the evidence. Thus, in Woodward v. Hastings Corporation, 1944 K.B. at page 676, there was a schoolboy aged 12, who was living at home and going dally to school. His father was serving in the Navy and his mother was at home. Mr. Justice Hallett held that the boy was in the custody of a parent. In Brook v. Hoar. 1967 1 W.L.R. page 1336, there was a young man of 18, who was living at home with his parents, but he was going out to work and contributing to the household expenses. Mr. Justice Melford Stevenson held that the boy was not in the custody of a parent. In Duncan v. Lambeth Borough Council 1968, 1 Q.B. 747, a father placed his daughter of 7 1/2 in a children's home run by the local authority, but he visited her regularly every week, and she spent her holidays and weekends with him. Mr. Justice Donaldson held that she was not in his custody.

11

But in the present case Mr. Justice Paull disapproved both Brook v. Hoar and Dunoan v. Lambeth Borough Council. He seems to have held that there was a common law concept of custody which was authoritatively stated in the judgment of Sir William Brett, Master of the Rolls, in Re Agar-Ellis (1883) 24 Ch. D. at page 326: "The law of England is that the father has the control over the person, education and conduct of his children until they are twenty-one years of age. That is the law." Following that dictum, Mr. Justice Paull held that a son is in the custody of his parent until he is 21: adding that it matters not "whether or not the father or some other parent is or is not away from the infant for a period or periods: it is not whether or not the parent allows the infant the freedom to do as he likes; it is not whether someone else has temporarily been given the duty of the day-to-day control of the infant; in all such cases the custody remains." Applying this meaning, the Judge held thatat the time of the accident, Fergus was in the custody of his father: and that his claim was statute-barred after three years.

12

I utterly reject the notion that an infant is, by law, in the custody of his father until he is 21. These words "in the custody of a parent" were first used in a Statute of Limitations in the year 1939. During the next year youngsters of 18 and 19 fought the Battle of Britain. Was each of them at that time still in the custody of his father? The next use of the words was in the Statute of 1954. Since which time pop singers of 19 have made thousands a week, and revolutionaries of 18 have broken up universities. Is each of them in the custody of his father? Of course not. Neither in law nor in fact. Mr. Kidwell realised the absurdity...

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