Tolley v Morris

The plaintiff was born on the 12th November 1961, so she is still an infant, 16 years old. She will not cease to be under the disability of infancy until the 12th November 1979. On the 21 May 1964 she suffered brain damage when, walking with her mother along a footpath in Ilchester, Somerset, she was struck by the defendant's motor car. Unfortunately, her injuries were so serious that she may never be able to live a normal independent life.

On 3 May 1967 a writ was issued by her father and next friend claiming damages for negligence in respect of her injuries. It was served on 20th April 1968. But it was not until the 19th July 1977 that the second firm of solicitors to act for her and her father gave notice of intention to proceed with the action and not until 19th August 1977 that the statement of claim in the action was served. Understandably, its service was followed on the 22nd September 1977 by a summons to dismiss the action for want of prosecution. Understandably also, the Yeovil District Registrar dismissed the action on 8th November 1977 and Mr. Justice Dunn on the 27th January 1978 dismissed an appeal from his decision. But the learned judge gave leave to appeal, and that too is understandable when it is appreciated that what is in question here is the relationship between Birkett v. James (1977) 3 Weekly Law Reports 38 and the Limitation Act 1975, a relationship which has been considered by this Court in Biss v. Lambeth etc. Health Authority (1978) 1 Weekly Law Reports 38, and, in particular the impact of the earlier case on section 2 of that Act, which appears not yet to have been considered in any reported case. In other words, can the infant plaintiff bring another action if this action is dismissed, and, if she can, is that a conclusive reason why this action should not be dismissed?

Section 22 of the Limitation Act 1939 as amended by sections 2(2) and 8(2) of the Law Reform (Limitation of Actions etc.) Act 1954 provided:"If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years … from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired:" (I omit the proviso to section (1).) "(2) In the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person,- (a) the preceding provisions of this section shall have effect as if for the words "six years" there were substituted the words "three years"; and (b) this section shall not apply 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."

The District Registrar dismissed the action on the ground that the plaintiff would not be able to prove that she was not in the custody of a parent at the time of the accident. But he, admittedly, erred because that last provision has been repealed by section 2(2), section 4(5) and Schedule 2 of the Act of 1975. I am not surprised that the Registrar, having seen that this restraint upon extending an infant's period of limitation survived its 1954 transplant from sub-section (1) to subsection (2) of section 22 of the Act of 1939, missed its removal from what was left of the section in the course of the bewilderingly complicated treatment applied to the Act of 1939 by the legislative surgery of 1975. The judge did not fall into that error. He was asked by counsel for the defendants to apply by analogy the reasoning of Lord Denning, Master of the Rolls, in Biss's case, thenonly reported in The Times newspaper, and did so in the following sentences taken from an agreed note, not approved by the Judge, of his judgment:-

"There are various considerations which have been taken into account by the court in exercising the discretion authoritatively laid down in the case of Birkett v. James but in my judgment I accept the approach of the Master of the Rolls that the House of Lords was directing its attention to the case where there was a specific limitation by the 1975 Act.

"By reason of the provisions of the 1975 Act, cases of infants and other persons under disability - that is mental illness - are not now the subject of such strict periods of limitations as I think the House of Lords had in mind in Birkett v. James. I therefore accept the view of the Master of the Bolls about there being much prejudice to the defendant, like the sword of Damocles, not knowing when he will be brought to trial in a case he had regarded as closed. A time comes when a defendant is to have peace of mind and is to be able to regard the incident as closed.

"The circumstances of the Biss v. Lambeth Area Health Authority case are closer to this case than Birkett v. James and, insofar as there is a conflict, I feel I should follow Biss. In exercising my discretion, I bear in mind that the public policy is to have some finality in litigation. Having regard to the very long delay in this case, the accident in 1964 nearly 14 years ago, the delay far exceeded the delay which occurred in the cases referred to today.

"With regard to the plaintiff, if Birkett v. James was followed in its letter, the plaintiff could delay taking action for another four years, by which time it will be 1982. It seems to me a case in which I should exercise my discretion and dismiss the action for want of prosecution."

This becomes intelligible by reference to the Act of 1975.Section 1 of the Act of 1975 first prescribes time limits by inserting additional provisions after section 2 of the Act of 1939 as amended by the Act of 195, including, for actions for damages for negligence in respect of personal injuries, a time limit of 3 years (a) from the date on which the cause of action accrued, or (b) the date (if later) of the plaintiff's knowledge: see the inserted section 2A(1) and (4). Then section 1 of the Act gives the Court a revolutionary power to override time limits if it appears to the Court that it would be equitable to allow an action to proceed having regard to various matters: see the inserted section 2D, Next, section 2 of the Act of 1975 provides that "(1) At the end of section 22 of the Limitation Act 1939 (persons under disability time limit of 6 years from end of disability) there shall be inserted the following subsection:-

(2) If the action is one to which section 2A of the Act applies subsection (1) of this section shall have effect as if for the words '6 years' there were substituted the words '3 years' …

"(3) The provisions of this section are in substitution for the subsection (2) added to section 22 by the Law Reform (Limitation of Actions etc.) Act 1954 …"

The effect of that substitution is to abolish the need for a plaintiff under a disability to prove that he was not, at the time when the right of action accrued to him, in the custody of a parent. It follows that an infant now has the extended period of limitation conferred by section 22 of the Act of 1939, as amended, which enables him or her to bring an action for personal injuries within 3 years from ceasing to be under the disability of infancy, i.e. from attaining his or her 18th birthday, whether or not in the custody of a parent at the time when the injuries were inflicted. So it was submitted to the judge and to this Court that this plaintiff may, if her action is dismissed, bring another action any time up to the endof 3 years from the 12th August 1979, that is up to the 12th November 1982, which is 18 years from the date of her accident and the accrual of her cause of action and another 4 years from the Registrar's dismissal of her first action.

Mr. Phillips, in his able argument for the appellant plaintiff, concedes that there has been inordinate and inexcusable delay through no fault of the infant plaintiff or her father) in allowing the action to go to sleep for 10 years after the service of the writ and that that delay has caused serious additional prejudice to the defendant in that all records and statements regarding the accident have been destroyed, though the plaintiff's present solicitors have a copy of the accident report and the defendant's solicitors or insurers have managed with difficulty to trace him. But Mr. Phillips submits that the judge was wrong to apply the observations of the Master of the Rolls in Biss's case to this case, failed to distinguish the provisions of section 2D inserted by the Act of 1975 to which they were directed and the position of Mrs. Biss from the provisions of section 2A and the position of the infant plaintiff in this case, and should have applied to this case the unanimous direction of the House of Lords in Birkett v. James that where the plaintiff has a legal right to issue a fresh writ because the limitation period has not yet expired, his action...