IN THE COURT OF APPEAL FOR EAST AFRICA
CORAM: (DE LESTANG, AG.P, DUFFUS, AG.V-P., & SPRY, J.A.)
CIVIL APPEAL NO 23 OF 1968
CHAMPION MOTOR SPARES LIMITED}…………………….……..APPELLANT
1. Y.V. PHADKE}
2. B.D. DHOLAKIA}…………………….……………..….………..RESPONDENTS
3. P.V. PAREKHJI}
(Appeal from a judgment and decree of the High Court of Uganda at Kampala (Russell,J.) dated 30th March, 1968) in Civil Case No. 679 of 1966)
14th November, 1968.
The following Judgments were read:-
In 1961, a Mr. Patel, who was employed by the appellant company, was killed in a collision between two motor vehicles. Mr. Patel was then driving a vehicle belonging to the appellant company: the other vehicle was owned by Barclays Bank D.C.O. and was being driven by a Mr. de Souza.
Mrs.. Patel, the widow of the deceased, instituted proceedings against the Bank and Mr. de Souza, on her own behalf and on behalf of her infant children, to recover damages. The Bank and Mr. De Souza entered appearances and subsequently applied for leave to issue a third party notice claiming contribution or indemnity against the appellant company. The respondents, who are partners in a firm of advocates, were instructed to represent the appellant company and on its behalf entered an appearance.
The usual application was made for directions, when the respondents appeared for the appellant company and consented to an order for the filing of a statement of claim and defence. This was done, the defence being an allegation that the accident was solely due to the negligence of Mr. de Souza and including a prayer that the claim to contribution be dismissed or allowed only in part.
The suit was consolidated with three other suits for the purpose of deciding the issue of negligence and this resulted in a finding that Mr. Patel was 60% to blame and Mr. de Souza 40%. A preliminary decree was issued and an appeal against it was dismissed. The suit was then heard on the quantum of damages, which was fixed at £8,625. The learned judge reduced this to £3,450, in view of the finding that Mr. Patel had been 60% to blame, and then directed that the defendants, that is, the Bank and Mr. de Souza, were entitled to contribution from the appellant company to the extent of 60% of such sum of £3,450. The appellant company was ordered to pay 60% of the costs of Mrs. Patel, the Bank and Mr. de Souza. At no stage in these proceedings was any objection taken by the respondents to the joining of the appellant company as a third party. Subsequently, a final decree was settled by the court and an appeal against it was dismissed. All these facts are admitted.
The appellant company, represented by other advocates, then instituted proceedings in the High Court against the respondents, claiming special damages for professional negligence, or, in the alternative, for breach of contractual duty, interest and costs. The suit was dismissed and it is against that decision that the present appeal is brought.
The learned trial judge based his decision on the proposition that the question whether third party proceedings were appropriate in the circumstances of the case was a novel point and one of some difficulty and on the fact that although the matter had come before the High Court on a number of occasions and before this Court on the appeal from the preliminary decree, the aptness of the proceedings was never questioned, while even on the appeal from the final decree, it was only by a majority that they were held to have been misconceived. The learned judge held that in these circumstances, the respondents had erred, if at all, in good company and could not be liable in negligence.
Wilkinson Q.C., who appeared for the appellant company, based his argument on two propositions:
first, that it was clear law that the appellant was not liable to be joined as a third party, since under the Law Reform (Miscellaneous Previsions) Act (Cap.74) it was not liable to contribution; and, secondly, with that this was a matter/which advocates ought to have been familiar, or, if not, with which they should have familiarized themselves and that their failure to advise their client to resist the third party proceedings amounted to professional negligence.
Mr. Salter Q.C., for the respondents, took issue on both these points: he submitted that the third party procedure was not inappropriate but that even if it were, the point was a difficult one and that a mistake on it would not show that decree of negligence which would give rise to a right to damages.
In these circumstances, the first question that must be determined is whether the third party proceedings were misconceived, because if Mr. Salter were correct in his contention, that would dispose of the matter.
In the appeal against the final decree (Champion Motor Spares Ltd. v. Barclays Bank D.C.O. E.A. 385), the majority of the Court were of the opinion that the third party proceedings were misconceived, but those opinions were obiter dicta. The reason for the opinion was given by Sir Trevor Gould, V.P., as follows:
"There is no basis in law (or any other basis) in an action turning on the negligent driving of Patel…or the second defendant or of both, and brought by the dependants of the deceased, for saying that the third party, as the employer of the deceased, was liable to pay the whole or any part of the damages ordered to be paid by the second defendant and the Bank by reason of the negligent driving of the second defendant. The third party was not a joint tortfeasor with the Bank and the second defendant in relation to such a claim, which is the only basis upon which it could have been ordered to contribute towards the discharge of their liability".
Mr. Salter's argument, if I have understood it correctly, was that Mrs.. Patel could have sued her late husband's employers, that is the appellant company and therefore that the appellant company was, in the words of section 14(1) (c) of the Law Reform (Miscellaneous Provisions) Act, "liable, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise".
He conceded that Mrs. Patel could not have sued her husband but he submitted that the fiction of husband and wife being one ceases on death. He conceded also that Mr. Patel could have had no right of action against his employer based on his own negligence, but he claimed that Mrs. Patel did not step into her late husband's shoes but had a distinct cause of action in her own right.
Thirdly, he argued that Mrs. Patel was not merely suing for herself but also for the infant children and that this gave her a different capacity. For these reasons he submitted that Mrs. Patel could sue her late husband's employers in respect of damage arising out of his negligence when driving in the course of his employment. I think, with respect, that there is a flaw in this otherwise attractive argument. Any action in tort which Mrs. Patel might have brought against her late husband's employer in respect of his death could only have been under Part II of the Law Reform (Miscellaneous Provisions) Act and under the provisions of section 7, such an action is only maintainable if the act, neglect or default of the defendant
"is such as would, if death had not ensued, have entitled the person injured thereby to maintain an action and recover damages in respect thereof”.
It is quite obvious that had Mr. Patel survived, he could not have brought an action in tort for damages against the appellant company in respect of an accident for which his own negligence was partly responsible and for which no negligence on the part of the appellant company itself was alleged. Therefore, the condition in section 7 was not satisfied and no action could have been brought under it. It was not suggested that there was any other basis on which a cause of action could have been established. If Mrs. Patel could not have sued the appellant company, the Bank and Mr. de Souza could not have looked to, the appellant company for contribution, because, under section 14(1) (c) of the Act, one tortfeasor can only recover contribution from another tortfeasor if the latter "is, or would if sued have been, liable in respect of the same damage".
Finally, to complete the sequence, if the Bank and Mr. de Souza could not look to the appellant company for contribution, they were not entitled to issue a third party notice under Order1, rule 14, of the Civil Procedure Rules. There is, therefore, in my mind, no doubt whatever that the respondents were at fault in not advising their client to resist the third party procedure from the start.
Moreover, it is quite clear that the conduct of the defence directly resulted in loss to the appellant company, because, subject to the issue of negligence, it was tantamount to an admission of liability.
The only remaining question therefore, is whether it was so negligent as to render the respondents liable in damages. On an advocate's liability for negligence, the English cases are not, I think, of great assistance, because the law in England relating to barristers is different from relating to solicitors, while in East Africa we have a unified profession.
In regard to negligence, as in all other matters, I think all advocates must be treated alike. It is clear from section 72 of the Advocates Act (Cap.258), that advocates in Uganda may be liable for negligence and cannot divest themselves of that liability, and it would seem, from Barry v. Keharchand (1918) 8 E.A.L.R.IO2, that that liability extends to instituting proceedings on the instructions of a client, without informing the client that those proceedings were bound to fail.
That seems to me analogous to the present position, where the respondents were, in the words of the plaint "instructed by the Plaintiff to defend the Plaintiff and to take all steps necessary to protect the Plaintiff's interests in the said suit" and where they failed to advise their client that the third party proceedings could and should be resisted.
It is probable that the failure of the respondents to adopt this course was, at least in part, due to the fact that there were three other suits arising out of the same accident, where the third party procedure was appropriate.
While that might explain, it cannot, I think excuse the mistake. It was, I think agreed by counsel, and I agree that an advocate cannot be liable for any reasonable error of judgement or for ignorance of some obscure point of law. He may, however, be liable for an act of gross negligence or ignorance of elementary matters of law constantly arising in practice.
It is impossible to draw any precise line: ultimately, every case will be one of degree.
Mr. Wilkinson stressed that the Law Reform (Miscellaneous Provisions) Act is a statute which is constantly being invoked and it is within our knowledge that oases arising out of motor vehicle accidents occupy a substantial part of the time of the courts. It cannot, therefore, be argued on behalf of the respondents that this was an obscure matter of law.
Mr. Salter argued that even if the third party procedure were inappropriate, the point was novel and difficult. Counsel for the Bank had thought it appropriate, and he had been led by Queen's Counsel.
The suit had repeatedly been before the High Court and had gone on appeal to this Court, without any one raising the question. Even when it was ultimately raised in the appeal from the final decree, it was only by a majority that this Court held that the third party proceedings were misconceived, the late learned President dissenting.
There was, of course, no duty on the High Court to question the appropriateness of the proceedings (the question not being one of jurisdiction), and, although the Court might have interfered, it is understandable that it did not, when the order for directions was by consent. Again, there was no reason for this Court to consider the matter on the appeal from the preliminary decree, since the argument was apparently limited to the issue of negligence.
Finally, Mr. Wilkinson submitted that the respondents neither pleaded nor gave evidence that they had applied their minds to the question and that the decision not to resist the third party proceedings was a considered, if mistaken, opinion. Indeed, I do not think they could have done so, because even if it be conceded, in view of the late President's opinion, that the matter was open to doubt, there could not, in my view, have been any doubt in the mind of an advocate who considered it, that there was at least a strong case to be argued, and one which would not have involved any substantial additional costs and which went right to the heart of the question of liability.
I cannot think that this was an error of judgement; I think it must have been an oversight.
In my opinion, the respondents were guilty of negligence of such a degree as to make them liable in damages. I am satisfied that the appellant company suffered loss as the direct result of that negligence.
I would therefore allow the appeal. The amount claimed as damages was not disputed in the High Court.
I would therefore set aside the judgment and decree of the High Court and substitute an order awarding the appellant company damages of shs.69, 616/71, interest at 6% from the date of suit and costs in the High Court.
I would also award the appellant company its costs of the appeal, with a certificate for two counsel.
DUFFUS1 AG. V-P
This is a claim by the appellant company against a firm of advocates practising in Kampala for damages for negligence or al tentatively for a breach of a contractual duty.
The facts are not in dispute. The appellant company employed Mr. Arvindbai Raojibhai Patel (hereinafter referred to as "the deceased") who whilst lawfully driving the appellant’s motor vehicle collided with "mother motor vehicle owned by Barclays Bank D. C. O. and driven by a Mr. de Souza, a Bank employee: the deceased was killed instantaneously.
His widow brought an action against the Bank and its employee, Mr. de Souza, claiming damages resulting from the death of the deceased. The Bank and Mr. de Souza then filed an exparte application under Order 1 rule 14 of the Civil Procedure Rules claiming to be entitled to a contribution from the appellant company in respect of any damages or costs that may be awarded against them.
The application was granted and the appellant company then instructed the respondent firm to defend the company and to take all necessary steps to protect its interest in the suit. The respondent firm then duly entered an appearance the point that the appellant company were under no liability in law to the family of the deceased.
After rather prolonged proceedings including two appeals to this Court the hearing was concluded and the appellant company was ordered to pay 60% of the damages awarded to the widow against the Bank and do Souza.
The appellant company claims that it was under absolutely no liability in law to pay this amount or any amount to the widow arising out of the death of her husband, the deceased, and further that the third party proceedings in her suit were never maintainable against the appellant company.
The appellant company further avers that the fact that judgment was entered against them was due to the negligence of the respondent firm and it claims damages amounting to shs 69,616/71, the amount expended as a result of these proceedings.
The main issue at the trial of the case and on this appeal was whether or not the respondent firm were negligent and as such liable for any damages to the appellant company.
It was agreed that in the event of liabi1ity being proved that the damages would be shs.69, 616/71 as claimed. The enrollment and practice of advocates in Uganda is governed by Statute. The Advocates Act Cap. 258.
The Act provides, inter alia, for the qualification, admission, discipline and remuneration of advocates and also prevents unqualified persons from practising as there is no specific provision in the Advocates Act setting out the standard of duty required by an advocate in the discharge of may be liable to his client for negligence.
I refer to the provisions of section 72 which reads as follows:
"72. Any provision in any agreement between an advocate and a client that the advocate shall not be liable for negligence, or that he shall be relieved from any responsibility to which he would otherwise be subject as such advocate, shall be wholly void."
The extent of an advocate's liability to his client for negligence has been considered at various times by this Court. I would refer to the case of Stephens & Co. v. Allen (7 EA LR 197).This case went to the Privy Council (8 E.A.L.R. 211). The following extract from the judgment of the Privy Council is of some assistance
“The question of negligence with regard to the performance of a solicitor's duty must to some extent be affected by the local conditions and the local circumstances, as to which their Lordships might not be perfectly informed. In the present case the negligence is alleged to be due to the ignorance of the provisions of an Act of Parliament. It may well be that in Nairobi this Act of Parliament has practically never been heard of in judicial proceedings, it is impossible for their Lordships to know, but the question as to whether a solicitor is negligent or not in omitting to give effect to a statutory provision cannot be disentangled from the consideration of whether the statute that is involved is one which is of constant and common occurrence in practice or whether it is one unfamiliar and remote. With those circumstances their Lordships were unable to deal."
Russell, J., in his judgment on appea1 considered this question very fully and with respect has, in my view, correctly set out the degree of care required by an advocate practising in Uganda.
He quoted from the following passage from the judgment of Lord Denning, in the recent English decision of Rondel v. Worsley (1967) 3 All. E.R. 993
“‘Finally it must be remembered that counsel is not liable in negligence merely because he expresses an opinion which ultimately turns out to be wrong nor merely because he overlooks one of a number of relevant authorities. Further, in spite of the expression of Lynskey J in Pentecost Vs London District Auditor (1951) 2 All. E.R.330 that so far as civil proceedings are concerned gross negligence is not known to the English Common Law I remain of the opinion that counsel will only be guilty of crassa negligentia or gross negligence by some really elementary blunder, see Purves v. Lundell (1845), 12 Cl. & Fin. 91 ‘”.
I agree with Russell, J., that the liability of an advocate to his client for negligence in performing his professional duties must generally arise from some really elementary mistake and not be an error of judgment on some complicated point or one of doubtful construction.
Each case must depend on its own particular facts and as Scrutton, L.J. said in Fletcher & Son V Jubb Booth &Helliwell (1920)1K.B. 275 at 280
"And moreover I accept the opinion of Tindal C.J. in Godefroy v. Dalton (1) that it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia, or lata culpa mentioned in some of the cases, for which he is undoubtedly responsible. It is a question of degree and there is a borderland within which it is difficult to say whether a breach of duty has or has not been committed."
The first question here is whether or not the respondent firm made any mistake or error in their handling of the appellant company's case in Civil Suit 833 of 1961.
Mr. Salter who appeared for the respondent both at the trial and on this appeal submitted that the third party notice against the appellant company was not misconceived but did in fact lie or alternatively if it was misconceived that the respondents had not been negligent.
The learned trial judge does not arrive at any definite conclusion as to whether the third party proceedings did in fact lie against the appellant.
He bases his decision that the respondent’s advocates were not liable in negligence rather on the fact that if the respondent had erred, that they had erred in good company, and finally finds the error, was an error of judgment only on the on the part of the advocates.
The first essential is to consider the act under which the suit was brought. This action was based on the death of the deceased and was brought by virtue of sections 7 and 8 of the Law Reform (Miscellaneous Provisions) Act Cap. 74.
Section 1 reads as follows
"7. If the death of any person is caused by any wrongful act, neglect or default of any person, and the act, neglect or default is such as would, if death had not ensued, have entitled the person injured thereby to maintain an action and recover damages in respect thereof, the person ,who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a felony."
The essentials here are:-
(a) the death of the deceased and
(b) that he died as a result of the wrongful act or default t of the peril on against whom the action is brought in circumstances in which the deceased, if he had not died, could have himself maintained the action.
In this case the deceased died as the result of an accident whilst driving in his capacity as a servant of the appellant company, but it has not been suggested that the accident 1rBS due to any neglect on the part of the appellant company.
The facts as found show that the accident was as due as to 60% to the neg1igent driving of the deceased himself ;and as to 40% to the negligent driving of the driver of the other vehicle.
It is elementary that an employee cannot by his own negligent driving, and without any negligence on the part of his employer, recover damages against his employer for damages caused by his own negligence.
The effect of section 7 is to keep alive the right of action that would have vested in the deceased if he had not died. The members of the family of the deceased can only maintain an action if the wrongful act, neglect or default was such that the deceased himself, if he had not died, could have maintained an action for damages.
The deceased clearly could not have maintained an action against the appellant company for damages arising from his negligence or from the negligence of another person.
It follows, therefore, that the widow could also not maintain an action against the appellant. In short, the facts here show that the appellant company were under no liability to the widow or any member of the deceased family.
Part IV of the Law Reform (miscellaneous Provision,) Act, deals with joint tortfeasors and the law relevant to the position here is to be found in the following extract from section 14(1) where damage is suffered by any person as a result of tort…(c) Any tortfeasors liable in respect of that damage may recover contribution from any other tortfeasors who is, or would if sued have been liable in respect of the same damage."
Here the appellant company were not joint tortfeasors liable in respect of the damage suffered as a result of the death of the deceased person.
The company was, no doubt a joint tortfeasor in respect of damage suffered by other persons injured in the same accident. According to the findings it would be liable as to 60% of the damage on account of the negligent driving of its servant, the deceased, but it would be under no liability to the deceased himself or to the members of the deceased’s family.
It would appear therefore to me to be an elementary proposition that the appellant company could not possibly on these facts have been liable to contribute to any damages awarded to the deceased's family and the third party proceedings were therefore entirely misconceived.
This matter was already considered by this Court on the second appeal in plaint 833 of 1961 (1964 E.A. 385). In his judgment Gould, V-P., pointed out that the third party proceedings in this case were entirely misconceived and Crawshaw , J A agreed with him on this point.
Unfortunately while Gould, V-P., and Crawshaw, J.A. were quite clear on this point the learned President thought otherwise in his judgment. With respect it is clear that the learned President's short expression of opinion on this matter was based on a misconception of the true facts of this case and of the case to which he referred to, Drinkwater v. Kimber (1952) 2 Q.B. 281. Russell, J., appreciated this in his judgment as he suggests that the judgment of the President was based on an obvious misunderstanding.
In any event this judgment could not have influenced the respondents' action as it took place after the proceedings in suit No. 833 of 1961 had for all practicable purposes been completed.
The Law Reform (Miscellaneous Provisions) Act Cap. 74 introduced into UG'1nda for the first time, some of the outstanding reforms in English Law in recent years? E.g. the various Fatal Accidents Acts in the United Kingdom the reforms concerning the apportionment of damages between joint tortfeasors, or in the case of contributory negligence, and the reforms as to the survival of causes of action.
It is a law of great importance and any advocate practicing in the courts should have a clear and full knowledge of its provisions and if he is in any doubt as to any point under the law then he should have recourse to the act before advising his clients.
The respondent firm called no witnesses and the court does not know what work or research was done by their firm in the matter, nor was there any reason given for the respondent firm acting as it did.
I should prefer to think that the error in this case was caused by a genuine mistake rather than ignorance of the law.
This could quite possibly have occurred due to the fact that there were three other similar cases consolidated with suit No. 833 of 1961 for the purpose of trial, where the appellant company were correctly held liable for a proportion of the damages. However no matter what caused the respondent firm to act as it did, the result has been that the appellant company have boon ordered to pay a considerable amount for damages and costs for which it was never liable.
Russell, J, did not find that the respondents' default was such as to constitute a liability to pay damages.
He felt that their default, if any, Has an error of judgment, and he referred to the fact that the error had also been overlooked by the various courts hearing the cases and by the other advocates involved.
He referred to the High Court judge who first made the exparte order, to the judge who tried the case and to the Court of Appeal to whom the first appeal came.
It is apparent that these courts never discovered the error but both at a trial and on appeal, a court is mainly concerned with the issues as set out in the pleadings or in the grounds of the appeal, as the case may be, and relies largely on the advocates to present their case efficiently and fairly to the court.
The advocates who first brought these proceedings were definitely wrong but if the respondent firm had correctly advised their clients the application would probably have been dismissed with costs but instead the appellant company acting throughout on the advice of the respondent firm have always conceded that the third party proceedings were properly brought.
In the result the appe11ant company have had to pay shs.69, 616/71 which it should not have paid.
The appellant relied on the appellant's Advocates professional skill, and it would considerably weaken the confidence of public in the legal profession if advocates can act so carelessly as in this case without the client having any redress.
I agree with Spry, J.A. that the respondents have been guilty of such negligence in the performance of their professional duties as to make them liable in damages to their former clients, the appellant company.
I would therefore allow this appeal and set aside the judgment and order of the High Court and in lieu thereof enter judgment for the appellant company for damages shs. 697616/71 on the terms and conditions as set out by Spry, J.A.
De LESTANG, Ag.P.
I agree and cannot usefully add anything.
There will accordingly be an order in the terms proposed by Spry, J.A.