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Pitfalls in Suing a By Public Authority ° Our Legal
Page 53
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Adviser ARECENT action for damages which came to an abortive end so far as the plaintiff, who had suffered personal injuries as a result of a motor accident, was concerned, points a moral for all would-be litigants and emphasizes something few laymen know.
The case, Reeves v. Deane-Freeman, concerned a collision in November, 1946, in London between the plaintiff's motorcycle and a Canadian Army lorry driven by the defendant, who. was then a member of the Canadian armed forces. The plaintiff had issued a writ for damages against the defendant personally in December, 1949, and, because the defendant had meanwhile been demobilized and tracing him proved difficult, this was not served upon him until March. 1950.
By the time the case was ready for trial, the defendant raised a preliminary objection that the action had become time-barred, not having been brought within the period of one year of the happening of the original cause of action, i.e., the accident. This point was dealt with before the actual merits of the action were fought.
Six Years' Grace
Although the general rule about criminal charges—at leait all the serious ones—is that there is no time limit within which the Crown must bring its case to court, there is no such freedom for a person wishing to start a civil action. It has always been felt that some sort of limit should be put on the period within which one citizen should seek redress through the courts against another. For.ordinary actions that limit has, since 1939, been set at six years. . .
• Previously there were varying periods according to the type of action, but a most important exception, and one not known widely enough, except in professional legal circles, is. that in cases against what are known as " public authorities" the period is reduced to a mere 12 months. Local authorities, Government departments and suchlike count as public authorities.
The argument in the present case Centred on two things: was the Army or any of the Services—and in this case the service of a sovereign member of the Commonwealth—a public authority; and was an individual member of such a Service entitled to rely on the 12 months' limitation period for his own protection?
Army a Public Authority
Lord Goddard, the Lord Chief Justice, before whom the preliminary point was tried, came to the conclusion that the answer to the first question must be in the affirmative. Oddly enough, the point had always been assumed before without argument. . As to the second point, the answer would partly depend on whether the individual soldier, sailor or airman, were acting on the direct orders of his superior officer. Clearly, if the soldier were acting entirely in his own interests and "joy-riding" in an Army vehicle, he would not be acting in the public interest or in the execution of any public duty, and in such a case he could not claim the protection afforded by the law to public authorities generally.
Even if he were acting on the instructions of his superior Meer, it would not necessarily follow that he would be engaged on public duty. Lord Goddard envisaged a journey by an officer attending some social
or regimental function for which he might properly use Army transport and an Army driver; in that event it would seem that although the latter would be "on duty" he would not be engaged on "public duty" so as to bring him within the 12 months' period if an accident. occurred because of his negligence.
In the case before him, Lord Goddard held that as on the evidence the lorry was in fact on an official journey, the driver must be held to be identified with the Canadian Army as a "public authority," and so the plaintiff was out of time and his action failed before it had even been properly begun.
The significance of this decision should not be lost sight of. If involved in an accident with an Army or other " public " vehicle, it is clearly almost impossible for the innocent victim to ascertain whether the driver was on official duty. If he were not, but on some sort of "frolic of his own," as it was called in one case, then the victim has virtually all the time at his disposal he could desire—up to six years, in fact.
To counterbalance that, however, it is highly probable that the errant driver would not be worth the cost of suing. On the other hand, if he were on official duty, whether one proposes to sue the driver in person or the authority behind him, it behoves one to get a move on, because after 12 months it will be too late. Clearly, it is safer to assume that the man was on official duty.
Few Legal Evasions
It may be mentioned that many public authorities, and especially Government departments, do not always seek to take advantage of this legal technicality to wriggle out of what may be their moral responsibilities. To do so undoubtedly requires a certain imperviousness to public opinion to which most such bodies are fairly susceptible, and as a matter of grace claims are in fact often entertained and settled out of time.
However, such a matter of favour is exercised only when there may be a certain degree of hardship involved and for one reason or another the delay is not entirely avoidable. No victim who has gone to sleep over his supposed right to damages can ever expect such favourable treatment, and the philanthropy of a Government department may be a transitory and elusive thing!
A year may seem ample time in which to start one's action, but where injuries are the result of the accident and witnesses have to be traced, medical opinions obtained, legal advice sought and a hundred and one matters attended to, the time can soon slip by.
It may be mentioned that as regards the new nationalized industries, the National Coal Board, the Railway Executive, the Road Haulage Executive, the British Electricity Authority, and so on, the limitation period laid down by Parliament in the Acts which gave them birth stands at three years and not one year. This, in the writer's opinion, is all to the good and should enable all but the most dilatory litigants to proceed in time. • The 12 months' period can, and frequently does, entail hardship, and the reason for it seems obscure.
The moral is clear—when contemplating litigation against public authorities, waste no time in formally stating a claim, and if liability is denied, to make up one's mind as soon as possible whether to issue a wilt.