HIGH COURT, ACCRA
DATE: 10 JULY 1967
BEFORE: ANTERKYI J.
CASES REFERRED TO
(1) Carey v. Bermondsey Metropolitan Borough (1903) 20 T.L.R. 2; 67 J.P. 447; 2 L.G.R. 219, C.A.
(2) Broom v. Morgan [1953] 1 Q.B. 597; [1953] 2 W.L.R,. 737; 97 S.J. 247; [1953] 1 All E.R. 849,
C.A.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION to an action in negligence against the Accra-Tema City Council on thegrounds that it was statute-barred. The facts are sufficiently set out in the ruling.
COUNSEL
J. N. Okine for the plaintiff.
Messrs. Lynes Quashie-Idun & Co. for the first and second defendants.
JUDGMENT OF ANTERKYI J.
In this case, the plaintiff claims by the endorsement on his writ, “¢36,000.00 (£G15,000) damages against the first and second defendants jointly and severally for injuries, shock, pains, suffering, deformity, loss of earnings, capacity and damages as a result of the negligence of the first and second defendants by causing or permitting the vehicle No. GF 2516 property of the first defendant driven by the second defendant to be involved in an accident thereby causing severe injuries to the plaintiff whereby the plaintiff is now totally disabled and has incurred and suffered loss and damage as detailed in the statement of claim.”
The accident had occurred on or about 6 November 1965, while the second defendant, as a servant of the first defendants, was driving the said vehicle of the first defendants, with the plaintiff aboard it, in the course of his employment.
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The writ was filed on 19 January 1967 — about fourteen months and two weekends after the accident. By paragraph (8) of the statement of defence, the defendants contended that the action was statute-barred, and, upon this issue being raised as a preliminary objection when the case came on for hearing on 22 May 1967, Mr. Akiwumi, counsel for the defendants, contended that it was because, the first defendant, being a council, by section 133 of the Local Government Act, 1961 (Act 54), it is provided that: “When any suit is commenced against any Council for any act done in pursuance or execution or intended execution of any enactment or of any public duties or authority, or in respect of any alleged neglect or default in the execution of any such enactment, duty or authority, the suit shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.”
The plaintiff by paragraph (4) of the reply had averred that:
“(a) The plaintiff denies paragraph (8) of the statement of defence and says that the plaintiff was under hard treatment and suffered great pains and complications in the injuries which continued in the Military Hospital till 12 October 1966, when the plaintiff was temporarily and conditionally discharged. Even further complications developed after briefing counsel on the facts and the plaintiff has again been re-admitted in hospital since 3 February 1967 and operated upon.(b) The plaintiff will further contend against paragraph (8) of the statement of defence and say that the action is not statute-barred as there has been continuance of injury and damage to the plaintiff since the accident . . .” And Mr. J.N. Okine, counsel for the plaintiff, relied on his contention during the hearing of the preliminary objection, and invited the court to interpret fairly section 133 of Act 54 in question. I must take judicial notice of paragraph 24 of part I of the First Schedule to Act 54 with regard to the mandatory functions of a council under section 47 of Act 54. One of those mandatory functions is a power to operate an omnibus service.
Even though the plaintiff, in his statement of claim, mentions the second defendant as being, at the material time, in charge of the first defendants’ vehicle No. GF 2516, and does not specify that that vehicle in question was an omnibus, I will consider the question on the basis that the vehicle was an omnibus being driven by the second
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defendant as a servant of the first defendant council in the course of his employment. Now section 133 of Act 54, which was let into play by counsel for the defendants, has three legs: The first leg—”any act done in pursuance or execution or intended execution of any enactment or of any public duties or authority.” The second leg—”or in respect of any alleged neglect or default in the execution of any such enactment, duty or authority.” And under these two legs, in respect of the act complained of, an action must be brought against the council concerned within twelve months after the happening of the conduct complained of. The third leg—”in the case of a continuance of damage or injury”—is concerned with “the continuance of damage or injury.” Under this third leg the action should be commenced “within twelve months next after the ceasing” of the damage or injury.
As, by paragraph (4) of the reply, the plaintiff states that further complications in the injury he received, as a result of the accident complained of, “developed, after briefing counsel” and that “he has again been re-admitted in hospital since 3 February 1967 and operated upon,” he forcefully contended that there had been a “continuance of injury and damage” to himself, and therefore, that this action was not barred under section 133 of the Act.
With regard to this contention, I hold the view that, it is a confusion of what is a continuing result of aAn completed act and that which is a result of a continuing act. The contention of the plaintiff falls within “a continuing result of a completed act”; for, the negligent act of the defendants came to a dead stop after the crash of the vehicle into “an electric pole and other fixed objects.,”
This issue was resolved in the case of Carey v. Bermondsey Metropolitan Borough (1903) 20 T.L.R. 2, C.A. in which, “The plaintiff received personal injuries owing to the negligence of a local authority in repairing a road, more than six months after the accident the plaintiff brought an action against the local authority to recover damages for the injuries. At the date of the issue of the writ the plaintiff was still suffering from the effects of the accident.”
The Public Authorities Protection Act, 1893 (56 & 57 Vict., c. 61), s. 1 states inter alia:
“1. Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom 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 alleged[p.502] of [1967] GLR 498 neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect:
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof.” And in the Carey case, “It appeared that the plaintiff met with the injury complained of on June 17, 1901, but did not issue her writ in this action until October 8, 1902. The jury returned a verdict for the plaintiff and awarded her £400 damages. The defendants submitted that as the plaintiff had not brought her action within six months of the accident, the action was barred by section 1 of the Public Authorities Protection Act, 1893. On behalf of the plaintiff it was contended that as the plaintiff had proved that she was at the time of the issue of the writ still suffering from the effects of the accident, there was a continuance of the injury or damage and the action was maintainable. Mr. Justice Channell was of the opinion that there had been no continuance of the injury or damage within the meaning of the section and that the plaintiff’s action was barred. The plaintiff appealed.” During the hearing of that appeal, it was contended on behalf of the plaintiff-appellant that she was still suffering from the consequences of the negligent act of the defendants-respondents, and that so long as she was so suffering there was a continuance of the injury or damage and so her action was maintainable; that the words “injury or damage” must be construed according to their usual or popular meaning, and must therefore mean the injury arising in consequence of the negligent act, and not the continuance of the act which caused the damage And it was held that the judgment of the court below was right. The Lord Chancellor, Lord Halsbury and Lord Alverstone C.J. were both of the opinion at p. 3 that: “it was manifest that the continuance of the injury or damage meant the continuance of the act which caused the damage. It was not unreasonable to say that, if there was a continuance of an act causing damage, the injured person should have an action at any time within six months of the ceasing of the act complained of. But that was wholly inapplicable to such cases
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as the one before them, where there was no continuance of the act complained of, and where the only suggestion was that in consequence of the negligent act the victim was not such a good man as he was before. Words have to receive a reasonable interpretation.”
And they therefore were of the opinion that the appeal must fail. Carey v. Bermondsey was a case in which the act was the negligent repair of a road. This would seem to fall within the second leg of section 133 of Act 54, as resolved above. This “neglect or default” was the cause of a single act of an accident The accident did not continue, but the injuries to the plaintiff (occasioned by that accident) appeared to be continuing in the sense that the plaintiff, at the time of bringing the action, was still suffering from the effects of them. And it is so with the facts of the case in hand: even though the conduct of the second defendant, servant of the first defendants, amounted to “an act done,” namely, “having driven negligently” (falling as it does within the first leg referred to above relative to section 133 of Act 54, because that negligent driving act became complete by causing the accident, and the accident was not continuing by the effect of that negligent act at the time of bringing the action) it cannot be said to be within the third leg (“continuance of damage or injury”), for that phrase has (in Carey v. Bermondsey (supra)) been interpreted to mean “continuance of the act which caused the damage,” so as to make the plaintiff’s action maintainable “within twelve months after the ceasingthereof.” Therefore, on the basis that the said vehicle was an omnibus, the action as against the first defendants would be barred by this relevant section of the Act. And in that regard the next question that would fall to be decided is whether or not the action as against the second defendant, who was the servant of the first defendants would be maintainable, notwithstanding that as against his masters the action would be barred by that section of the Act? It is the law that the liability of the master (for the tortious acts committed by the servant in the course of his employment) is that of the master. In Broom v. Morgan [1953] 1 All E.R. 849, C.A. in which the servant was absolved by the effect of the common law, Denning L.J. stated at p. 854 thus: “My conclusion on this part of the case is, therefore, that the master’s liability for the negligence of his servant is not a vicarious liability, but a liability of the master himself owing to his failure to see that his work is properly and carefully done.
If the servant is immune from an action at the suit of the injured party owing to some positive rule of law, nevertheless the master
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is not thereby absolved. The master’s liability is his own liability and remains on him notwithstanding the immunity of the servant.” On this principle that the liability of the master in this regard is his own liability and not that of the servant, I am inclined to the view that if the second defendant should be held legally responsible for the injuries caused to the plaintiff, the first defendant council would still be absolved by section 133 of Act 54 with regard to payment of any damages awarded against the second defendant, notwithstanding this principle of the law.
Under paragraph 24 of Part 1 of the First Schedule to Act 54, relative to the mandatory functions of a council under section 47 of the Act, is a power to operate an omnibus service. And in the circumstances, the second defendant as servant of the first defendant council would be engaged in the driving of the omnibus in pursuance or execution or intended execution of any enactment or of any public duties or authority” and the action would be against him “in respect of any alleged neglect or default in the execution of any such enactment, duty or authority” and while acting within the scope of his employment.
And thus the act of negligently driving the omnibus would have been primarily that of the first defendant council, for a corporate body can only act through its servants and agents. Therefore if the vehicle in question in this case were an omnibus, I would therefore have upheld the contention that section 133 of Act 54 unquestionably operated to bar the plaintiff’s action brought after twelve months against the council and or its servants in relation to the execution of anything falling within the ambit of the statutory functions of the council.
But while this ruling was about to be delivered on the basis that the vehicle was an omnibus, it was brought to the notice of the court by counsel for the plaintiff—and this was not denied by counsel for the defendants—that the vehicle was a car owned by the first defendant council. I am therefore constrained to reconsider this question whether or not the action is barred under the relevant section of Act 54 of the Act (s.133), in the light of the vehicle being a private car of the council, and this upon further argument from both sides.
Paragraphs (5) and (6) of the statement of claim read as follows: “(5) That on or about 6 November 1965 while the first defendants were assisting in the operations of the Organisation of African Unity Conference in Accra the first defendants’ vehicle No. GF 2516 was driven and controlled by the second defendant and assisted the Flag Staff House officers and workers therein and international visitors.[p.505] of [1967] GLR 498 (6) That on the said date the second defendant for and in the performance, exercise and discharge of his duties had the plaintiff on the said vehicle No. GF 2516.”
I infer from paragraph (5) that the vehicle in question was at the material time being used to perform certain acts in connection with the Organisation of African Unity Conference; and the statement of defence was silent on this point. Mr. J. N. Okine, counsel for the plaintiff contended forcefully in argument, that user of a vehicle, other than omnibus, owned by a council falls outside the ambit of the functions of a council and therefore section 133 of Act 54 does not apply, and he relied on Part I of the First Schedule to Act 54 regarding the “Mandatory Functions of City and Municipal Councils” relative to section 47 of the Act. Mr. Akiwumi, counsel for the defendants, with equal force, in disagreeing with counsel for the plaintiff, contended that, for the efficient discharge of its public duties, a council must necessarily have means of transport, and a council must therefore own a car for the efficient discharge of its daily duties and that its ownership for this purpose is different from its ownership coupled with placing the car at the disposal of an officer of the council for his daily official duties; and, inferentially, as the car in question was being used for the duties of the first defendant council, section 133 of Act 54 still operates to bar the action. And he referred to the First Schedule, Part II, para. 66 of the Act, and argued that that section is so wide as to embrace his contention. Paragraph 66 of Part II of the First Schedule to the Act, regarding functions which may be included by a council in an instrument states, “To establish, acquire and maintain transport service by land or water including ferries.” I hold the view that, while this function is so wide as to embrace the running of a transport service like a taxi service, it does not include the use of a vehicle without a view to yielding profit, and therefore the owning by the council of a car for private use, even though it is used for errands, or the purposes of the council, does not fall within the functions of a council under the Act, much less if it is being used for purposes connected with an O.A.U. Conference as in this case.
In the result, as the vehicle alleged to have been driven negligently was a car and not an omnibus, and as the alleged assistance by the defendants in the said operations of the O.A.U. Conference was not in pursuance of any of the lawful functions of the council — for such assistance was not incidental to the running of an omnibus service — I cannot come to the conclusion that the act of the defendants fell within the ambit of section 133 of Act 54 so as to bar the plaintiff’s cause of action. I therefore come to the conclusion that the common
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law limitation period of six years is the one applicable and that the plaintiff’s action still subsists, for it is an ordinary case of master and servant or agency. Costs of twenty guineas for the plaintiff against the defendants.
DECISION
Preliminary objection overruled.
Action to proceed.
J.D.
