Kirby v Leather
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,LORD JUSTICE WINN |
| Judgment Date | 23 March 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0323-4 |
| Date | 23 March 1965 |
| Court | Court of Appeal |
[1965] EWCA Civ J0323-4
The Master of the Rolls (Lord Denning)
Lord Justice Danckwerts and
Lord Justice Winn
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Payne
MR C. E. CHAPMAN (instructed by Messrs Ralph C. Yablon, Temple-Milnes & Carr, Bradford) appeared as Counsel for the Appellant.
MR MARVEN EVERETT, Q.C. and MR S.S. GILL (instructed by Messrs Cree, Godfrey & Wood, Agents for Messrs Dixon Coles & Gill, Wakefield) appeared as Counsel for the Respondent.
JUDGMENT ON THE ALLEGATION BY THE DEFENDANT THAT THE ACTION WAS BARRED BY THE LIMITATION OF ACTION ACT 1939 AND BY THE LAW REFORM (LIMITATION OF ACTION) ACT 1954
On the 15th May, 1959, David Kirby was riding his motor scooter on the Wakefield to Batley Road. He was aged 24, the eldest of seven. His father had died when he was 10 and his widowed mother had brought up the seven children. David was the principal breadwinner of the family. He was a master craftsman in ironwork and as a recreation took an interest in painting and music. At 8.5 p.m. on the 15th May, 1959, he collided with a motor van and was thrown on to his head. Unfortunately he was not wearing a crash helmet. He used to tell his mother that if he had a crash helmet, he would probably take to speeding, but without a crash helmet he would not take risks. The injury on this evening was grave indeed. He was rendered completely unconscious and was taken to hospital. His mother was sent for. She got there between 9 and 10 p.m. It was thought he would not survive the night. But he did. He was unconscious for several days, but eventually recovered consciousness to some degree. After six weeks he was able to recognise his mother. He had paralysis of the left side and was blind in his left eye. But worst of all his mind was seriously affected. He was in hospital until August 1959 and then went home to his mother. She looked after him but he was like a child of five, she says. He could not use a knife and fork. She had to cut up everything and give him a spoon. He was home for several months. In March 1960 he went to hospital for a month for his eye. Then at home again until June 1960. During his time at home he improved somewhat and did a few things. Thus he went to an Insurance Company with whom he had insured his motor scooter and made inquiries about it. They shrugged their shoulders, he said. And he went to see a solicitor about the hire purchase on his scooter and about the cost of repairs. We do not know how well he managed these things. Then in June 1960 he was sent to a psychiatrist so as to see if he could be rehabilitated and get some sort of work. Eventually he was employed by Reemploys fortwo years in simple but heavy work. But now I am afraid he hag lost that employment. Owing to his mental state, he is virtually unemployable. But his expectation of life is not reduced. He has not made a claim and did not make a claim for any damages for well over three years: indeed, it was 4½ years before a writ was issued. The question is whether bis claim is barred by the Statutes of Limitation.
The explanation of the delay seems to have been this) His mother soon after the accident asked the police how it happened. The policeman said: "Well, I don't know. It has been one of those accidents where no one is to blame — a pure and simple accident". The mother spoke to his employer, Mr Foley, about making a claim. He was very good, she said, and told her: "Don't start anything about all that: I will see to all that". She mentioned it to David himself and he said to her: "Look, Mum, just don't bother about it, there's plenty of time. Just don't bother". So she did nothing more. But then in August 1963 he himself went to a firm of solicitors and saw the managing clerk, Mr Swinden. He told Mr Swinden he wanted to know where his scooter was, and asked if Mr Swinden could help him. He could not remember about the accident. Mr Swinden thought his behavior rather strange He happened to know David's old employer, Mr Foley. He got in touch with bin and thus got to know something of the accident. Then be himself or his firm took up the case. On the 2nd October, 1963, a writ was issued claiming damages against the driver of the motor van.
Under the Statutes of Limitation an action for personal Injuries "shall not be brought after the expiration of three years from the date on which the cause of action accrued", see Section 2(1) of the 1939 Act as amended by Section 2(l) of the 1954 Act. In calculating the three years, you exclude the day of the accident itself, see Marren v. Dawson Bentlev & Co. Ltd., 1961, 2 Queen's Bench, p. 135. The accident hare took place onthe 15th May, 1959. The cause of action accrued on that date. The three years started at midnight on the 15/16th May, 1959, and ran up to midnight on the 15/16th May, 1962, and then expired.
There is an extension of time when a person is under a disability: "If on the date when any right of action accrued… the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of three years from the date when the person ceased to be under a disability", see Section 22 as amended by Sections 2(2) and 8(3) of the 1954 Act. A person is deemed to be under a disability "while he is an infant or of unsound mind", see Section 31(2) of the 1939 Act. In this particular case, the right of action accrued at 8.5 p.m. on the 15th May, 1959. If on that date David Kirby was under a disability, the period of three years would not begin to run until be had ceased to be under a disability. "On the date" means, I think, at any time before the end of the day: because the law takes no account of fractions of a day. So if David Kirby was rendered of unsound mind at 8.5 p.m. on the 15th hay, 1959, owing to the accident, the three years would not begin to run against him until he recovered his soundness of mind.
This is, however, subject to a proviso in that the extension of time shall not apply "unless the plaintiff proves that the person under the disability was not, at the time when toe right of action accrued to him, in the custody of a parent", see Section 2(2)(b) of the 1954 Act. I can understand this proviso in relation to an infant, but I find it difficult to understand in relation to a grown man or woman over 21 years of age It is hardly ever appropriate to speak of a grown-up person as being in the "custody" of his or her parent. If he is of unsound mind, he may be tended or cared for by his parent but he is not in his parent's custody. In any case, however, to my mind this young man, David Kirby, was not in the custody of his mother at the time when the right of action accrued tohim He was not in her custody on the 15th May. 1959, or at any time on that day. He wag on his own, in the custody of no one. Shortly after the accident he was in the care of the hospital authorities. His mother visited him in hospital that evening but he was not in her custody. The proviso therefore does not apply.
So the question comes down to this. Was David Kirby, at and after 8.5 p.m. on the 15th May, 1959. of unsound mind? The words "unsound mind" are not defined in this statute. Nor as they in many statutes. It seems to me that the words "of unsound mini" in a statute must be construed in relation to the subject matter with which the statute is dealing. In Whysall v....
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