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SPRY, J.A.
[1] 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.
[2] 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.
[3] 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.
[4] 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.
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] 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.
[10] In the appeal against the final decree (Champion Motor Spares Ltd. v.
Barclays Bank D.C.O.[1964] 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".
[11] 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".
[12] 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.
[13] 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”.
[14] 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".
[15] 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.
[16] 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.
[17] 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.
[18] 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.
[19] That seems to me analogous to the present position, where the
respon¬dents 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.
[20] 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.
[21] 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.
[22] It is impossible to draw any precise line: ultimately, every case will
be one of degree.
[23] 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.
[24] 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.
[25] 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.
[26] 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.
[27] 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.
[28] I cannot think that this was an error of judgement; I think it must
have been an oversight.
[29] 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.
[30] I would therefore allow the appeal. The amount claimed as damages was
not disputed in the High Court.
[31] 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.
[32] I would also award the appellant company its costs of the appeal, with
a certificate for two counsel.
DUFFUS1 AG. V-P
[33] 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.
[34] 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.
[35] 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.
[36] 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.
[37] 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.
[38] 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.
[39] 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.
[40] 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.
[41] 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.
[42] 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.
[43] 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 res¬ponsibility to which he would otherwise be subject as
such advocate, shall be wholly void."
[44] 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 negli¬gent 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 con¬stant and common
occurrence in practice or whether it is one unfamiliar and remote. With
those circumstances their Lordships were unable to deal."
[45] 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.
[46] 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”.
[47] 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 construc¬tion.
[48] 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."
[49] 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.
[50] 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.
[51] 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.
[52] 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.
[53] 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.
[54] 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."
[55] The essentials here are:- ¬
the death of the deceased and
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.
[56] 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.
[57] 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.
[58] 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.
[59] 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.
[60] 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.
[61] 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.
[62] 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."
[63] 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.
[64] 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.
[65] 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.
[66] 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.
[67] 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.
[68] 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.
[69] 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.
[70] 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.
[71] 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.
[72] I should prefer to think that the error in this case was caused by a
genuine mistake rather than ignorance of the law.
[73] 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.
[74] Russell, J, did not find that the respondents' default was such as to
constitute a liability to pay damages.
[75] 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.
[76] 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.
[77] 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.
[78] 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.
[79] In the result the appe11ant company have had to pay shs.69, 616/71
which it should not have paid.
[80] 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.
[81] 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.
[82] 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.
[83] I agree and cannot usefully add anything.
[84] There will accordingly be an order in the terms proposed by Spry, J.A. |
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