Collins v Soverall

• Jurisdiction: Trinidad & Tobago
• Judge: Phillips, C.J.
• Judgment Date: 12 July 1972
• Neutral Citation: TT 1972 CA 21
• Docket Number: Civil Appeal No. 44 of 1971
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 12 July 1972

Court of Appeal

Phillips, C.J.(Ag); Fraser, J.A.; Georges, J.A.

Civil Appeal No. 44 of 1971

Collins

and

Soverall

Appearances:

Mr. H.A. Selby Wooding, Q.C. and Mr. Campbell for the appellant.

Mr. S. Maharaj for the respondent.

Tort - Employer's liability — Vehicular collision — Appellant employed as driver for public authority — Collision occurred whilst carrying out ordinary duty of driving in the performance of his employment — Action found not maintainable against public authority because of limitation period — Public Authorities Protection Ordinance — Whether appellant protected by Ordinance.

Phillips, C.J.

1 On August 23, 1967, a collision occurred at the Southern Main Road, Pointe-a-Pierre, between a motor-car ( PH-3713) driven by the respondent and a motor-omnibus (HK-2328) driven by the appellant. By a writ of summons dated December 18, 1968, the respondent commenced an action against the Public Service Transport Corporation for damages alleged to have been sustained as a result of the negligent driving or management of the motor-omnibus by the appellant who was the Corporation's servant or agent. Subsequently the writ of summons was amended to include the appellant also and the hearing of the action came on before Des Iles, J. A preliminary point was taken to the effect that having regard to the fact that legal proceedings were instituted more than a year from the date on which the cause of action arose, the defendants were entitled to the protection of sec.2 (1) of the Public Authorities Protection Ordinance. Insofar as it is material for present purposes the section reads as follows: –

“2. (1) No action shall be brought against any person for any act done in pursuance, or execution or intended execution of any Ordinance, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Ordinance duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued.”

2 The learned judge accepted this submission insofar as it related to the first-named defendant, the Public Service Transport Corporation, and held that the action was not maintainable. However, he rejected the argument in relation to the second-named defendant, the appellant in this case, who, it is not disputed, was at the material time a bus driver in the service of the Corporation and who was at the date of the act question carrying out his ordinary duty of driving this bus in the performance of such service. The judge held that he was not protected by the Ordinance and ordered that the hearing of the action should proceed on a subsequent date. This is the order against which this appeal has been brought.

3 The first-named defendant, the Public Service Transport Corporation, is a public corporation whose powers and duties are set out in sec.8 of the Public Transport Service Act, No.11 of 1965. Sec.8(1), so far as it is material, reads as follows:

• 8. (1) Subject to this act, it shall be the duty of the Corporation to carry on the business of operating public service vehicles under this Act, so as to ensure the provision of a safe, adequate, economic and efficient public transportation system, adapted to the needs of the country; and for such purpose the Corporation shall have and exercise such functions, powers and duties as are conferred and imposed on it by this Act, and in particular, the Corporation shall have power–

  • (a) to carry goods and passengers by rail and road;”

4 It is common ground that on the date in question the appellant was driving a bus belonging to the Corporation in the ordinary course of his duties of transporting passengers by road. As we see it, the question that arises in this appeal is entirely one of construction of sec.2 (1) of the Public Authorities Protection Ordinance.

5 The corresponding provision of the English legislation is to found in sec.21 of the Limitation Act, 1939, which repealed and replaced the English Public Authorities Protection Act, 1893. Sec.21 (1) is substantially to the same effect; the drafting is somewhat different but the point is that the limitation protection is extended in relation to –

“…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.”

6 Under the Act of 1893, the limitation period was six months. This was increased by the Limitation Act of 1939 to a period of one year; but this provision has been removed completely from the English Statute Book by the Law Reform (Limitation of Actions, etc.) Act 1954. It has already been stated that the Public Authorities Protection Ordinance establishes a limitation period of one year.

7 The question under consideration has often been considered by the English courts. In this connection reference may be made to Preston and Newsom's Limitation of Actions, (3 ^rd Edn.) pp.204-205, where the following statement appears:

“There have been numerous cases in which individuals or companies have claimed to be protected by the Act of 1893. The question always is whether the private person did the act complained of in pursuance or execution or intended execution of a statutory or public duty or authority. Thus, the officers or servants of a public body directly employed by that body in the execution of its statutory duties are protected ( Greenwell v. Howell [1900] 1 Q.B. 535). In Freeborn v. Leeming [1926] K.B. 160 it was admitted that a medical practitioner, employed by a local authority in a hospital maintained under statute, was entitled in an action brought against him for professional negligence to the protection of the Act ‘so far as his status and position were concerned,’ and the ease was fought on other grounds. It has since been decided that person in that position is within the Act ( Nelson v. Cookson [1940] 1 K.B. 100; see also Goodisson v. Byrne [1938] 1 Ir. R. 580).”

8 It is necessary to refer briefly to some of the cases that been discussed during the argument here. In Greenwell v. Howell (ubi supra) the facts were that a landowner claimed that a certain road running over his land was a private way and he threatened proceedings against any person who used it. It was arranged between himself and the relevant local authority that two officials of the authority should use the road on a certain day: that was done. I think the authority was the Surrey County Council. Thereafter an action for trespass was brought against them and they claimed the protection of the English Public Authorities Protection Act, 1893. The action failed because it was held by the Court that the road was in fact a public highway. The question of costs then arose, the defendants claiming costs as between Solicitor and client to which they would have been entitled if they were within the protection of the Act. It was held that the acts in respect of which the action was brought were acts that were done by the defendants in pursuance or execution or intended execution of the Local Government Act, 1894, s.26, the case came within the Public Authorities Protection Act, 1893, s.1, and that they were therefore entitled to costs as between solicitor and client.

9 During the course of the argument counsel for the respondent submitted that this case was wrongly decided. Apparently what he was attempting to say was that it was not clear that the acts in question were done in pursuance of any public authority or...