Kitchen v Royal Air Force Association

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE SELLERS
Judgment Date01 April 1958
Judgment citation (vLex)[1958] EWCA Civ J0401-3
Date01 April 1958

[1958] EWCA Civ J0401-3

In The Supreme Court of Judicature

Court of Appeal

Before

The Master of the Rolls (Lord Evershed)

Lord Justice Parker and

Lord Justice Sellers.

Hilda Kitchen (Widow)
and
The Royal Air Force Association and others

Mr. PATRICK O'CONNOR and MR. J. G. H. GLASSON (instructed by Messrs. Hewitt, Woollacott & Chown) appeared on behalf of the Appellants, Donald, Darlington & Nice (a firm) second Defendants below.

Mr. NEIL LAWSON. O. C. and Mr. JOHN WILMERS (instructed by Messrs. H. C. L. Hanne & Co.) appeared on behalf of the Respondent, Plaintiff below.

THE MASTER OF THE ROLLS
1

: This long and difficult case has raised three distinct points for our determination; (1) Did the Appellants act as Solicitors for the Plaintiff during some, and if so, what period in the years 1945 and 1946; and if they did so act, did they fail to devote the standard of care which was due from them as Solicitors to their client: in other words, were the Appellants guilty of negligence towards the Plaintiff? (2) If so, then since admittedly the Limitation Act, 1939, applies to a cause of action founded on such negligence, and since admittedly the statutory six year period elapsed since any alleged act of negligence and before the commencement of proceedings against the Appellants, can the Solicitors rely on the Statute of Limitations? More precisely, can the Plaintiff escape the effect of the Statute by showing concealment by fraud of her right of action within the terms of section 26(b) of the 1939 Act? (3) Assuming that both the first and second questions are answered in the Plaintiff's favor, what was the loss or damage, if any, which flowed from the negligence?

2

I have stated the three questions in the order in which they were argued before us and in the order in which they were decided by the learned Judge below. I have also stated them in what may be an ascending order of difficulty. If the Plaintiff fails on any one of the three points, she fails altogether. The onus is squarely upon her as regards the first and second points. To some and to a substantial extent it is also upon her as regards the third point.

3

An action against a firm of Solicitors for alleged negligence by one who says that she was their client is always a matter of special anxiety to the Court; for to some extent, inevitably, our system and profession of the Law is impugned and its adequacy and competence challenged. Especially is this so in the present case.

4

Let me relate briefly an outline of the facts. In the month of May, 1945, at the end of the late War, the Plaintiff's husband, a Leading Aircraftsman in the Royal Air Force, was home on leave with his wife, the Plaintiff, in their flat in Renton Drive, St. Mary Cray. They had then two small daughters, and the Plaintiff was expecting the birth of a third child, which was born later in the year 1945, also a daughter. At about 8 o'clock in the morning of the 22nd May the Leading Aircraftsman went to the kitchen to prepare his wife a cup of tea, for which purpose he turned on the main switch at the control box. He was electrocuted and died almost at once. No one can fail to feel the deepest sympathy for the Plaintiff in the fearful calamity which she suffered and for the terrible shock she had, especially in her then pregnant condition. It is small wonder that she has felt very strongly about it and has fought as hard as possible for herself and her three daughters. I have no doubt that she has throughout been firmly persuaded that the electric supply Company, the West Kent Electric Company, now absorbed in the South Eastern Electricity Board, was in some way responsible for her husband's death. The question whether or not she was right is involved in the third of the three questions we have to decide.

5

We have been debating that matter, with other questions, for many days, thirteen years after the accident occurred and following a trial before Mr. Justice Lloyd-Jacob which lasted thirteen days. Whatever we may decide, this disaster and its consequences and the rights which Mrs. Kitchen says she has or should have, will have burnt themselves into her whole being and is likely to occupy the main part of her waking thought for the rest of her life. It is small wonder that that should be so. The thirteen years during which this and other questions have been going on is a long time. That is a peculiar tragedy of the case. In one of her letters, on page 174, Mrs. Kitchen says "I suppose I was just a charity Case". That is, perhaps, the most disturbing feature of all.

6

After the accident, Mrs. Kitchen was helped by Mrs. Griffiths, the local secretary of the Soldiers', Sailors' and Airmen's Families Association, a charitable organization. Her case was sent forward by Mrs. Griffiths to the Royal Air Force Benevolent Fund and the Royal Air Force Association, two other charitable Association. In order to dispose of the matter at once, the activities of the Royal Air Force Fund, as its name implies, are limited to administration of a charitable fund. The fund is distinct from the Association and for the purposes of the present case the Royal Air Force Benevolent Fund may be left out of consideration.

7

The Royal Air Force Association, having been informed of the circumstance of Mr. Kitchen's death by Mrs. Griffiths, availed themselves of the fact that a number of firms of Solicitors, the members of which had served in the Royal Air Forte, had offered to assist the Association or its members or the dependants of its members as occasion arose. So it was that the Royal Air Force Association forwarded the information they had obtained from Mrs. Griffiths, together with the notes taken by Mr. Fearn (a solicitor then acting for Mrs. Kitchen) at the inquest on the Leading Air-craftsman, to the firm of Donald, Darlington & Nice, the Appellant! in this appeal. That was in the month of November, 1945.

8

I shall presently have to go more fully into what Donald, Darlington & Nice did do and did not do, but for the present it suffices to say that by June or July, 1946, Messrs. Donald, Darlington & Nice not only had got nothing for Mrs. Kitchen but they had made it virtually impossible that they ever could get anything for her. They had allowed the time for any proceedings under the Fatal Accidents Act, obviously the most substantial claim she might have, to run out. They had disregarded the possibility of any separate claim under the Law Reform Act. They had plainly told the West Kent Company that Mrs. Kitchen had in fact no case but asked for an ex gratia payment, which request had been clearly refused.

9

But Mrs. Kitchen herself was made of somewhat sterner stuff. Not wholly daunted by the discouragement given to her by Messrs. Donald, Darlington ice, she wrote herself in October, 1946, to the West Kent Company as a result of which, in effect (though it was not realised at the time by her) she got a sum of £ 100, or rather £ 100 less 5 guineas, Messer, Donald, Darlington & Nice charges. What is more, aided by certain advice she later obtained from a daily newspaper, she got, through the Law Society, the benefit of the Poor Persons' Committee and later of the Legal Aid Organization, and, as a result, an action was brought through another firm of Solicitors in the year 1950, founded only, and necessarily so, upon the Law Reform Act, against the West Kent Company. In 1954 that action was compromised by the payment on the part of the West Kent Company, or rather the South Eastern Electricity Board, as it had then become, of the sum of £250 which, added to the sum I have already mentioned, was not far short of the full amount which she could recover by virtue of the Law Reform Act claim.

10

Then, pursuing still, and with the assistance of yet another firm of Solicitors, in the year 1955 Mrs. Kitchen launched the present proceedings for negligence, claiming as damages the loss of are Fatal Accident Act claim and her rights under that Act.

11

It is convenient here to note that the Defendants in the action, apart from Messrs. Donald, Darlington & Nice, are the Royal Air Force Association or persons representing that organization. Mrs. Kitchen's action against those Defendants failed, as also did his claim for conversion and that all the Defendants had conspired together to defeat her of her rights. There is no appeal by Mrs. Kitchen and those other claims and the other Defendants need not be further considered.

12

The appeal is by the Solicitors, the Judge having decided all three points I have already formulated adversely to them and awarded to Mrs. Kitchen the sum of £ 2,000 damages and costs. I quoted a little time ago Mrs. Kitchen's observation, "I suppose I am just a charity case", and even if Messrs. Donald, Darlington & Nice were not negligent (as I think they clearly were) I cannot resist the conclusion that there is truth, sad and ironical though it be, in what Mrs. Kitchen said. This is not, perhaps, the first time and, perhaps-, will not be the last time, that disaster has been the product of amiable intention where benevolence has not been backed by effort. It is tragically clear that Messrs. Donald, Darlington & Nice never in the circumstances applied or thought it necessary to apply their minds to what their obligations were in the way they would have done had they been instructed for reward in the ordinary professional course. They did not even apply their minds to the question that their client was. It seems to me inescapable that the course they chose to pursue the of least resistance or of least effort. All this will, I hope, sufficiently appear hereafter.

13

In saying what I have done, I am not for a moment to be taken to be denigrating the extremely beneficent work done by charitable organizations and by persons acting charitably with great expenditure personal effort and without hope of reward.

14

Indeed,...

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    • Mondaq United Kingdom
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    ...may peer around the door, reducing the overall recovery. 1 (16 July 2001) 2 [1987] A.C. 750 3 See Kitchen v Royal Air Forces Association[1958] 1WLR 563(CA) 4 Allied Maples v Simmons & Simmons [1995] 1WLR 1602 5 (The Times) 22nd July 1998 6 [1983] 1ALL ER 416 7 [1995] 6 MED LR 223 The co......
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    • 1 February 1992
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