Charles Henry Craggs v. Attorney General

Case No.

Court

Date—

Judge—

Case Document

100%Judiciary

HCA001484A/1972

IN THE HIGH COURT

	1972, No. 1484

BETWEEN
	THE OFFICIAL ADMINISTRATOR suing as Administrator of the Estate of Charles Henry Craggs, deceased.	Plaintiff
	and
	THE ATTORNEY GENERAL	Defendant

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Coram: Zimmern, J.

Date of Judgment: 14th November 1980

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DECISION

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1. This is an appeal from the decision of the Registrar dismissing the Defendant's application for dismissal of the action for want of prosecution.

2. I was told that the only issue argued before the Registrar was whether even if the Defendant were to succeed on inordinate and inexcusable delay in the prosecution of the action the Plaintiff could start a fresh action. The Registrar I was told determined yea by reason of Sec. 22 of the Limitation Ordinance Cap. 347 and dismissed the application on the authority of Birkett v. James⁽¹⁾ and Tolley v. Morris⁽²⁾.

3. I was asked on appeal to determine the same issue. The action is by the Official Administrator suing, as Administrator of the Estate of Charles Henry Craggs deceased, The Attorney General as the proper representative of the Medical and Health Department in damages for negligence which caused the death of the deceased.

4. The writ was issued in June 1972 and the Statement of Claim filed a year later shows a joinder of two causes of action. First on behalf of the estate of the deceased under the provisions of the Law Amendment and Reform (Consolidation) Ordinance and second on behalf of dependants of the deceased under the provisions of the Fatal Accidents Ordinance. No argument was advanced on first cause of action on this issue and I assume that it has no relevance. The dependants set out in the Statement of Claim are all issues of the deceased and if living today would be 25, 20 and 18 years of age respectively.

5. This cause of action is a child of statute and as explained by Lord Blackburn in Seward v. "Vera Cruz"⁽³⁾ at pp. 70, 71:

"an action which, as is pointed out in Pym v. Great Northern Railway Company, is new in its species, new in its quality, new in its principle, in every way new."

The Ordinance gives a right of action to certain dependants of a deceased person for the pecuniary loss they have suffered from the death of that person occasioned by a wrong doer. Section 4(1) of the Ordinance provides:

"Every such action shall be for the benefit of the dependants of the person whose death has been so caused and shall except as hereinafter provided, be brought by and in the name of the executor or administrator of the deceased person."

Section 5(1) provides:

"If and so often as it happens, in any of the cases intended and provided for by this Ordinance, that there is no executor or administrator of the person killed within the meaning of this Ordinance, or that, there being such executor or administrator, no such action as aforesaid has, within six months after the death of the person whose death has been so caused as aforesaid, been brought by and in the name of his executor or administrator, then and in every such case such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it had been brought by and in the name of such executor or administrator."

Section 8 provides:

"No more than one action shall lie for and in respect of the same subject-matter of complaint."

6. To summarise the three sections, the action is for the benefit of the dependants but it must be brought in the name of the executor or administrator of the deceased unless if there is neither or there being one or the other and no action is brought six months after death then and only then may an action be brought by and in the name or names of all or any of the dependants but only one action lies.

7. In the present case it is the administrator of the deceased who has brought the action.

8. Section 28(3) (a) of the Limitation Ordinance provides that an action under the Fatal Accidents Ordinance shall not be brought after the expiration of three years from the date of death but this is expressly stipulated to be subject to Section 22(1) which extends the limitation period in the case of infants to any time before the expiration of three years, upon attaining majority. The extension is subject to the proviso that the section shall not affect any case where the right of action first accrued to some (not under a disability) through whom the person under a disability claim. Mr. Barlow for the Attorney General argues that though two of the dependants agewise come within Section 22(1) they are disentitled to bring any action now by reason of the proviso in that the right of action first accrued to the administrator who was and is not under a disability and the dependants have claimed through him. This has not been fully argued before me and I say no more about it because of the view I take.

9. Mr. Jackson-Lipkin as I have said relies on the Birkett case and Tolley v. Morris.

10. Lord Diplock in Walkley v. Precision Forgings Ltd.⁽⁴⁾ at pp 617 618 explains the ratio of the Birkett case thus:

"	My Lords, Birkett v. James (1978) A.C. 297 was an action for breach of contract for which there is only one kind of limitation period, and that is a primary limitation period of six years from the date of the cause of action, during which a plaintiff has an indefeasible right to bring his action. What Birkett v. James decided was that, save in very exceptional circumstances, where all that the plaintiff had done was to let his action go to sleep, it would be an improper exercise of the discretion of the court under the practice approved in Allen v. Sir Alfred McAlpine & Sons Ltd. (1968) 2 Q.B. 229, to dismiss the action for want of prosecution before the expiry of the applicable limitation period if the plaintiff was likely to bring a second action within that period. The reason was simple: if after the existing action had been struck out the plaintiff had an indefeasible right to start a second action for the same cause of action, no useful purpose would be served by dismissing the existing action; it could only lead to further delay.
	This reasoning has no application in a personal injuries action to any period after the primary limitation period has expired. The plaintiff no longer has an indefeasible right to bring a second action for the same cause of action."

11. The Court of Appeal in Tolley v. Morris applied Birkett to a personal injuries action where the plaintiff was an infant. The indefeasible right to bring the second action was based on the English equivalent of Section 22 of the Limitation Ordinance. Stephenson L.J. at pp 211 and 212:

"	Mr. Turner for the defendant agrees that it would be open to the plaintiff to bring a fresh action at any time before that date if she had not brought this action; but, as she has brought this action within the three-year period of limitation, he submits that she has no right to bring a further action within the extended period of limitation granted by section 22 of the Act of 1939, as amended. That extension was granted to infants to protect them from the consequences of their ignorance of the law and their parents' ignorance of the law; but this infant's parents have known the law and acted upon it and she is thereby confined to this action and cannot, by threatening a fresh action, avoid the consequences of prejudicing the fair trial of this by inordinate and inexcusable delay."
"	Their Lordships in Birkett v. James may not have had in mind the novel powers to extend and override time limits recently conferred on the court by the Act of 1975; but I would assume that they gave their guidance not in entire forgetfulness of the extensions of time limits which had been provided by Part II of the Act of 1939 for nearly 40 years.
	In my judgment, the facts of this case bring it within the rule laid down for our guidance in Birkett v. James and not within the exception. I can find nothing in the provisions of the Limitation Acts or in the spirit or letter of the speeches in Birkett v. James to exclude from consideration the fresh action which section 22 of the Act of 1939 gives the infant plaintiff a legal right to bring. She, not the court, has the right to decide whether to bring another action if this is dismissed."

12. The reason why a plaintiff has a right to bring a second action if within the period of limitation upon a striking out of the first for want of prosecution is because there had been no decision on the merits of the first case and did not constitute res judicata.

13. Birkett v. James was an action in contract, Tolley v. Morris was in tort. It was decided in each case that the plaintiff had an indefeasible right to bring a second action if the first were struck out hence the application to strike out failed.

14. Under the Fatal Accident Ordinance the Defendant is at the suit of all the dependants of the deceased set out in the writ. Though the position of each dependant is considered individually at the hearing, the Defendant if found liable only pays one lump sum as the apportionment between the dependants has nothing to do with him. Unless all the dependants are still under a disability at the time of the application to strike out I cannot see how Birkett's case can apply. The foundation of that case is the indefeasible right to bring a fresh action. In the present case at least one of the dependants if not two are no longer under a disability and do not have such a right. If the Defendant's application to strike out were to succeed then the matter ought to be struck out leaving those still under a disability to bring a fresh action if they are so advised. I further add that I have not considered the effect Section 8 of the Ordinance on any new action so arising.

Representation:

Jackson-Lipkin, Q.C. & G. Rodway (Helen A. Lo & Co.) for Plaintiff

B. Barlow (Legal Department) for Defendant

(1) (1978) A. C. 297

(1) (1978) A.C. 297

(2) (1979) 1 W.L.R. 592

(3) (1884) 10 App. Case 59

(4) (1979) 1 W.L.R. at pp 617, 618