Reeves v Deane-Freeman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 02 February 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0202-1 |
| Court | Court of Appeal |
| Date | 02 February 1953 |
[1953] EWCA Civ J0202-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Birkett, and
Lord Justice Romer
MR. H. VESTER (instructed by Messrs Preston, Lane-Claypon & O'Kelly) appeared on behalf of the Appellant (Plaintiff).
MR P.M. O'CONNOR (instructed by Messrs L. Bingham & Co.) appeared on behalf of the Respondent (Defendant).
This is an appeal by the Plaintiff from a decision of The Lord Chief Justice. The Writ was issued in 1949 claiming damages for personal injury caused by negligence in the driving of a motor vehicle. The Statement of Claim sets out the special damage and Particulars of the negligence. The Defence denies negligence and alleges that the matters complained of were caused by the negligence of the driver of the other vehicle, andthen in paragraph 4 says: "Further the Defendant was driving the said lorry in the course of his duties as a member of action Majesty's Canadian Armed Forces, and he will contend that the Plaintiff's cause of action against him (if any, which is denied) is barred by the provisions of the Limitation Act, 1939, section 21". I should have said that the accident was alleged to have taken place on the 14th. November, 1946. Mr Justice Parker made an Order that the issues raised by that paragraph should be set down and disposed of before the trial of the action. The Limitation Act of 1939 did not repeal the provisions of the Public Authorities Protection Act, 1893, with which the cases to be cited dealt. The relevant words are, however, to be found in section 21 of the later Act which I will read: "(1) No action shall be brought against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued: Provided that where the act, neglect or default is a continuing one, no cause of action in respect thereof shall be deemed to have accrued, for the purposes of this subsection, until the Act, neglect or default has ceased. (2) The foregoing provisions of this section shall not apply to any action to which the Public Authorities Protection Act, 1893, does not apply, or to any criminal proceeding. (3) The enactments specified in the Schedule to the said Act shall, so far as they relate to the limitation of actions, prosecutions or other proceedings in England and are not repealed by the said Act, be repealed".
The learned Lord Chief Justice said early in his Judgment after reciting the history: "The points which arise in the case and which have been argued before me are whether asoldier on duty is entitled to the protection of the section as being a public authority engaged in a public duty and, secondly, whether the Act in any case affords protection to a member of the Canadian Forces even on the assumption that it would to a member of the British Forces".
Mr Vester in arguing the appeal dealt with the first question first, and I will do the same. The learned Lord Chief Justice referred to two cases, one in 1946 and one in 1947, in which the Act had been applied in favour, in the first case, of a member of the Canadian Armed Forces, and, in the second place, in favour of a sergeant in the British Army. In neither of those cases was the point which was argued before the learned Lord Chief Justice raised. He then proceeded to refer to a Scotch case, Wilson v. 1st. Edinburgh City Royal Garrison Artillery Volunteers and Lieut-Colonel , I will summarise the headnote from that case. It was "an action for damages against a regiment of volunteers and against the Officer commanding the regiment, as representing the regiment, and as an individual, by the father of a child, who was killed on the public street by an ammunition waggon, the horses of which had bolted, the pursuer averred that the accident had been caused by the fault of the commanding officer in not seeing that quiet horses were used, that competent drivers were employed, that the waggons were driven according to military regulations, and that a competent commissioned officer was present to superintend the parade. The action was not raised within six months after the date of the accident". It was held "that the action against the commanding officer, as an individual, was excluded by the statute, on the ground that the fault averred against him was neglect of duty in his public capacity as commanding officer".
That case was referred to with approval in The nube II reported in 1921 Probate, page 183. It held that "The Public Authorities Protection Act, 1893, applies to servants of the Crown acting within the scope of their public duties, and the Act is not impliedly repealed", and then there is a point about the Maritime Conventions Act with which we are not concerned. In that case there had been a collision in the Thames Estuary between a ship which was on a voyage to Middlesbrough in ballast and a battle practice target which was towed from Portsmouth to Scapa Flow. The Defendant, who was a Lieutenant R.N.R. in charge of the tug, pleaded "that he was acting in pursuance or execution, or intended execution, of a public duty or authority, and that as the action had not been begun within six months after the act, neglect or default complained of" he was protected by the Act. It was held by this Court that he was protected. Lord Sterndale, Master of the Rolls, after reading the relevant words from the section said: "It seems to me that a man who, under the orders of the Crown — in this case the Admiralty which is a department of the Crown — is taking a battle target to Scapa Flow for the purposes of the fleet, is undoubtedly engaged in a public duty. Perhaps no member of the public could complain if he did not take it; but certainly he was doing what was for the benefit of the public, and under the authority of the Crown: and it can, I think, hardly be denied that the Crown is a public authority. I think, therefore, that the Act applies to this case, and that none of the cases to which we have been referred in any way militate against that view. The same view has been held in cases not binding upon us, by Mr Justice Lawrence and Mr Justice Darling, and it also seems to me to be involved in the decision in Wilson v. 1st. Edinburgh City R.G.A. Volunteers. In my opinion, therefore, the first point fails". Lord Justice Scrutton put it in this way: "I sharethe difficulty that the House of Lords felt in Bradford Corporation v. Myers, in knowing exactly what the limit is in the Public Authorities Protection Act between those acts which are protected by the measure of limitation and those acts which are not. But on the best consideration I can give to the matter it appears to me that the Admiralty were under a public duty to make provision for public defence; that in carrying out the particular measure of sending a battle target to Scapa Flow by tug, they were carrying out that public duty; and that the neglect of the servant in charge of the tug was a 'neglect in the execution of any such duty' within the words of the Act. The particular action, therefore, is prima facie within the Public Authorities Protection Act". Those are both cases in which the Defendant was an individual and not, as in many of these cases, a body like some local authority.
I do not know whether it could have been suggested at any time that that principle might apply to servants of the Crown, it not being impossible at that date to take proceedings against the Crown, but such a view is inconsistent with/ Greenwell v. Howell, 1900, 1 Queen's Bench, page 535, a decision of this Court. That was a case where a landowner, the Plaintiff, was denying that a read over his land was a public highway. He was "threatening proceedings against any person using it. Two officials of the county council were directed by the council, acting under the provisions of the Local Government Act, 1894, section 26, to use the read for the purpose of formally testing the right, which they accordingly did. The landowner thereupon brought an action of trespass against them, but at the trial it was found that the road was a public highway, and judgment was given for the defendants: Hold, that, the acts in respect of which the action was brought having been done by the defendants in pursuance or execution or intended execution of the Local GovernmentAct, 1894, section 26, the case came within the Public Authorities Protection Act, 1893, section 1, and therefore the defendants were entitled to costs to be taxed as between solicitor and client under that section". Lord Justice A.L. Smith said: "I think that, having regard to these provisions, the acts done by the defendants in pursuance of the orders given by the county council were clearly acts done in pursuance or execution or intended execution of an Act of Parliament.
Mr Vester submitted that in certain House of Lords cases doubt would be found to be thrown on that case. I do not myself accept that submission. The first case to which he referred was the case of Bradford Corporation v. Myers, reported in 1916, 1 Appeal Cases, page 242. The problem there being dealt with seems to me to have been quite a different one. In that case the Defendants, who were a municipal corporation, were authorised by Act of Parliament to carry on the undertaking of a gas company, and they did so. "The defendants contracted to sell and deliver a ton of coke to the plaintiff, and by the negligence of their agent the ke was shot through the plaintiff's shop window. More than six months afterwards the plaintiff commenced an action of negligence against the defendants", and the Defendants pleaded section 1 of the Public...
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