[1952] EACA 294

### ORIGINAL CIVIL

#### Before WINDHAM, J.

## CHANAN SINGH and GAJJAN SINGH, Plaintiffs

$\mathbf{v}$

# CHANAN SINGH and HANDA, Defendants

#### Civil Case No. 592 of 1951

Negligence—Advocates failure to file claim within limitation period—Difference between Tanganyika and Kenya limitation period—Duty—Damages— Reasonable probability of success—Measure.

A Kenya advocate received instructions to sue for damages for personal injuries incurred as a result of a collision in Tanganyika. The Tanganyika limitation period for filing such actions was 12 months whereas the Kenya period of limitation was two years. When action was filed more than 12 months a defence of limitation was raised and the action was subsequently abandoned.

Held (19-12-52).-(1) That the professions of Solicitors and Barrister's professions being fused in Kenya an action for negligence will lie against an advocate at least in respect<br>of the non-performance or mal-performance of any duty which in England would normally fall to be performed by a solicitor.

(2) The advocate had a duty to find out the limitation law of Tanganyika.

(3) Damages would be the loss plaintiffs incurred through being prevented from succeeding in their action.

(4) Plaintiffs had only to show that they would with a reasonable degree of probability have succeeded in the action. Judgment for plaintiffs for special damages and general damages with interest and costs.

Cases cited: Fletcher & Son v. Jubb, Booth & Helliwell. (1920) 1 K. B. 275, Godefroy v. Jay, (1831) 131 E. R. 159.

Salter with Miss Hurst for plaintiffs.

Madan for defendants.

JUDGMENT: - On 16th June, 1948, the first plaintiff, accompanied by the second plaintiff, who was his passenger, was driving his car between Moshi and Arusha in Tanganyika Territory when he incurred a head-on collision with a taxi coming from the opposite direction, driven by one Teja Shariff. As a result of the accident both plaintiffs suffered personal injuries for which they received medical treatment both in Arusha and in Kenya upon their return there after a few days.

The plaintiffs' car having, according to their own testimony, been on its correct side of the road and the taxi on its wrong side when the accident occurred, the plaintiffs decided to seek legal advice with regard to bringing an action for damages for negligence against the driver (who was also the owner) of the taxi. Accordingly on 30th June the first plaintiff approached the defendants, who are a firm of practising advocates in Nairobi, and interviewed Mr. Chanan Singh, the senior member of the firm. Since the second plaintiff had meanwhile proceeded to Eldoret where he lived, he asked the first plaintiff (a resident of Nairobi) to act on his behalf as well as his own, in instituting the proceedings if so advised. In his own words, the second plaintiff states: "I authorize my co-plaintiff to do everything necessary in connexion with my claim for damages."

I will consider presently in more detail what happened during the ensuing 12 months. But very briefly, and avoiding for the moment matters of controversy, what happened was this. The defendant firm were instructed not later than February, 1949, to file a claim for damages for personal injuries on behalf of the plaintiffs against the taxi driver Teja Shariff. A plaint was drawn up and sent on 11th June, 1949, to Arusha, where it arrived on 13th June at the office of Messrs. Mustafa and Zafferali, the firm of advocates who had been instructed to file it in Arusha. Mr. Mustafa of that firm sent it back to the defendants on 22nd June, because it was technically not in order. The defendants by letter of 12th July, returned it to Messrs. Mustafa and Zafferali duly amended. for filing. It was filed on 20th July, 1949. A statement of defence was then duly lodged, in which the defence of limitation was raised, namely that the claim was time-barred in that under the Indian Limitation Act (which applies to actions in Tanganyika) the period of limitation for filing the plaint was one year from the cause of action (namely from 16th June, 1948, the date of the accident) and that accordingly it should have been filed not later than 15th June, 1949. The defendants, on receiving this statement of defence with a covering letter from Mustafa, admitted that they had been unaware that in Tanganyika, the period of limitation was one year (and not two, as it would have been in Kenya) and that there was no circumventing the fact that the action was out of time. The action against Teja Shariff was thereupon "settled"; in fact it was abandoned and the plaintiffs of course received no damages from Teja Shariff.

The plaintiffs have accordingly lodged this action against the defendant firm for damages for negligence, in that through their negligence in not ascertaining the period of limitation in force in Tanganyika they the plaintiffs lost their action which must otherwise have succeeded, and with it the damages which they would in all reasonable certainty have been awarded.

Now the first point for decision is whether such an action against an advocate for negligence lies at all. It has not been contested that it does lie, since there is abundant authority that in England such an action may be brought against a negligent solicitor, the action being founded either in contract or (more usually) in tort; and the common law of England is applicable in Kenya in the absence of specific legislation or of any peculiar reason why it should not apply. The two branches of the profession, solicitors and barristers, being fused in Kenya, it seems to me that an action for negligence will lie against an advocate at least in respect of the non-performance or mal-performance of any duty which in England would normally fall to be performed by a solicitor. Among such duties would fall the duty of knowing in the case of the local law, and of finding out in the case of a foreign law, the period of limitation applicable to the action which he has been instructed to lodge or to consider the advisability of lodging. But I will revert to this point presently. Three questions, then, have to be decided. First, were the defendants guilty of actionable negligence? Secondly, did the plaintiffs suffer damage through that negligence? Thirdly, if they did, at what figure the damage suffered by each of them be assessed?

With regard to the question of negligence, there has been a certain conflict of evidence on one or two points. The first defendant states that it was at his first interview with Mr. Chanan Singh, on 30th June, 1948, that he instructed him to file a case for damages against Teja Shariff on behalf of himself and his co-plaintiff. Chanan Singh. however, states that it was not until early in February, 1949, that he received definite instructions to file the suit, and that the first plaintiff on 30th June, 1948, merely asked him to consider the advisability of doing so. On considering all the evidence I make the following finding of fact on the point. I find that on 30th June, 1948, the first plaintiff asked Chanan Singh to consider the advisability of suing Teja Shariff. A criminal prosecution of Teja Shariff for dangerous driving, in connexion with this same accident, was pending, and Chanan Singh thought it would be desirable to await its result before definitely deciding on the civil action. In November or early December, both plaintiffs came to see Chanan Singh, bringing with them a copy of the proceedings in the criminal case, in which both plaintiffs had given<br>evidence for the prosecution and in which Teja Shariff had on 14th October been convicted of dangerous driving. The plaintiffs again asked Chanan Singh to file their civil case if he thought it advisable, as the prospects of success seemed bright in view of the conviction on the criminal charge. I am satisfied that Chanan Singh at this interview had all the material on which to advise them to bring their action and to instruct him accordingly, and I think it more than probable that he would have taken definite instructions to proceed if he had known that the period of limitation for lodging the claim was only one year. But I am willing to accept Chanan Singh's statement that in fact he thought the period was two years; that he did not therefore think there was any great urgency; that he delayed until 10th January, 1949, before writing to the first plaintiff asking him to come and see him; and that only in early February did he take definite instructions from the plaintiffs to file their claim.

Meanwhile, not realizing that time was drawing short, Chanan Singh did not hurry about endeavouring to get from the plaintiffs their respective doctor's bills on which to base the figures for their claims for special damages, and owing (I find) to their not being pressed as they no doubt would have been by Chanan Singh had he realized that the claim must be lodged by 15th June, 1949, the last of these doctor's bills was not made available to him until after the middle of May. The plaint was then drafted, as I have earlier stated, and sent to Arusha on 11th June.

The second point on which there has been conflict of evidence, and it is a point to which the defence attach great importance, concerns an interview at Arusha in March, 1949, between Chanan Singh and the Tanganyika advocate, Abdullah Mustafa. It is contended for the defence that at this interview Mustafa agreed to act direct for the plaintiffs in the finding and conducting of the case in Arusha, and that the first plaintiff, who was also present at the interview, tacitly consented to this arrangement, on behalf of himself and his co-plaintiff, so that if anyone was responsible to the plaintiffs for negligence in the late filing of the plaint it would be Mustafa and not the defendants. The first plaintiff denies that he ever so consented, or that he ever employed Mustafa. If Mustafa was employed, he says, then he was employed by Chanan Singh as the latter's agent and it was no concern of the plaintiffs. Considering again all the evidence, including the important evidence of Mustafa himself and the equally important circumstantial evidence of the letters exchanged between Mustafa and Chanan Singh from 27th May, 1949, and onwards, I find that, while the first plaintiff was present at the interview between Mustafa and Chanan Singh at Arusha he took no part in it, and never consented tacitly or otherwise to the employment of Mustafa was at no time the agent of the plaintiffs or either of them, but that Mustafa was at no time the agent of the plainiffs or either of them, but that he was a sub-agent employed by the defendants, and that at all material times the plaintiffs looked to, and were entitled to look to, the defendants and to them alone to represent them and act for them in the preparation and conduct of the case against Teja Shariff, and that the defendants were responsible to the plaintiffs for any negligence on the part of their sub-agent Mustafa. In short. the section of the Indian Contract Act which applies to the facts in the present case is section 193 and not section 194. I would add, however, that even if Mustafa had been properly appointed as sub-agents by the defendants within the meaning of section 190 of that Act, they would still be responsible to the plaintiffs for his acts, by virtue of section 192, which so provides.

On the facts as found, then, were the defendants guilty of actionable negligence in failing to file, or failing to cause to be filed, the plaintiffs claim within the one year's period of limitation? I hold that they were. The negligent act of the defendants, acting through Chanan Singh, was his omission, as soon as the plaintiffs first approached him for advice as to whether to sue Teja Shariff, to find out how long a period they would have within which to lodge the action under the laws of Tanganyika. He assumed wrongly that the period would be the same as in Kenya, namely two years. But he has frankly admitted in evidence that at no time at all did he take any steps to check up on this assumption by looking up or in any other way ascertaining what was the law of Tanganyika on the point. What that law was has now been proved in evidence by Mustafa himself, testifying in this respect as an expert, who states that under section 3 of the Indian Limitation Act, 1908 (which applies in Tanganyika), read together with article 22 of the First Schedule thereto, the period of limitation in Tanganyika was one year. If the defendants had found this out at the outset, or even if they had found it out by 10th February, 1949, by which date at the latest they had received definite and final instructions from the plaintiffs to file the suit, then there can to my mind be no reasonable doubt at all that they would have hustled the second plaintiff into furnishing them with the last of his doctor's bills far more speedily than they did, and that even without that certificate they could and would have drafted the plaint (details of special damage could have been amended at a later stage if necessary) in plenty of time to assure that it was technically in order for filing, and was in fact filed, on or before 15th June, 1949. Instead the drafting of the plaint was left almost to the last moment (and in the light of the defendant's ignorance that time was running out it was pure chance that it was not submitted for filing too late, even in its defective form) with the result that it could not be filed in its proper form until the period of limitation had expired. A point has been made that even in its defective form the plaint might have been filed in time by Mustafa, had he been able to show "good cause" under the Tanganyika Code of Civil Procedure for so filing it. Mustafa himself testifies on this point. But the point is immaterial so far as the plaintiffs are concerned, for as I have held, the defendants are responsible to them for any negligence of Mustafa's and this would include any negligence of his (though I do not find whether or not there was any such negligence) in failing to apply to file the plaint in its defective form so as to get it filed within the year. Mustafa has stated, incidentally, that since he did not peruse the plaint with the question of limitation in view (this he considered was the defendant's province) he did not realize that only two days remained in which to file it.

In Fletcher & Son v. Jubb, Booth & Helliwell (1920) 1 K. B. 275, the plaintiffs sued their solicitor for negligence in failing to bear in mind the relevant law of limitation in England namely the Public Authorities Protection Act, 1893, with the result that they filed too late a claim by the plaintiffs against the Bradford Corporation for damages caused to their horse and cart and its contents through a collision with the Corporation's tramcar. The facts were thus strikingly similar to those in the present case. The solicitor was, on appeal, held liable to the plaintiffs in damages in that through his negligence the plaintiffs' claim for damages against the Corporation had failed. With regard to the solicitor's duty to know and apply the relevant law regarding the period of limitation, the following passages from the judgments in that case are in point. Per Banks, L. J. at page 279: "Now solicitors are under an obligation to bring to the discharge of their duty as solicitors reasonable care and skill and knowledge of the practice of the court whose process they invoke on behalf of a client"; and per Scrutton, L. J. at page 281-2: "Now it is not the duty of a solicitor to know the contents of every statute of the realm. But there are some statutes which it is

his duty to know, and in these days when the defendants in so many actions are public authorities the Public Authorities Protection Act, 1893, is one of those statutes .... What is the duty of a solicitor who is retained to institute an action which will be barred by statute if not commenced in six months? His first duty is to be aware of the statute. His next is to inform his client of the position ... . The period of limitation was one of those matters which the respondents as the appellant's legal advisers ought to have borne in mind. It was negligence not to bear it in mind."

It seems to me that there is only one distinguishing feature of any substance between the facts in *Fletcher v. Jubb* and those in the present case, namely that in that case the period of limitation was part of the law of the country in which the defendant solicitor practised, whereas in this case it was not. But that makes, to my mind, no legal difference as regards the question of negligence. The only difference is that so far as concerns the periods of limitation laid down in the laws of Kenya it is the duty of an advocate of Kenya to know what those periods are; while so far as concerns a period of limitation operative in another territory in which he has undertaken to institute or to consider the advisability of instituting legal proceedings on a client's behalf, it is not his duty to know what that period is, but it is certainly his duty to find it out at the earliest opportunity. This the defendants failed to do, and therein lav their negligence.

I turn now to the question whether the plaintiffs suffered any damage through the defendant's negligence. The damage (if any) suffered would, of course, not directly be the injuries and medical expenses which they incurred in the accident. It would be the loss which they incurred through being prevented from succeeding in their action against Teja Shariff and from thereby obtaining a decree against him for damages in respect of those injuries and medical expenses. In short, the measure of damages is the difference in the pecuniary position of the client from what it should have been had his legal adviser acted without negligence. In law, this distinction may well be one without a practical difference, provided always that it first be proved that, if the action against Teja Shariff had been lodged in time, the plaintiffs would, with a reasonable degree of probability, have succeeded in that action. It is not necessary that the plaintiffs should prove that they must with absolute certainty have succeeded in that action. That would indeed be impossible to prove; for the possibility of a supervening factor, such as the sudden death of all witnesses to the accident (including the plaintiffs themselves) before trial of that earlier action, cannot be ruled out. The law requires no more than a reasonable probability of success to be shown. And furthermore, the burden lies not on the plaintiff to prove even this, but on the defendant to show that the action which his negligence prevented from being won would not in any event have succeeded; in short it is for him to show that the plaintiffs suffered no damages through his negligence. This is laid down clearly in Godefroy v. Jay, (1831) 131 E. R. 159, where a client sued his solicitor for damages for negligently allowing a judgment to go against him by default. It was said per Tindal, C. J. in his judgment in that case (upon appeal): "Then comes the question whether these damages are excessive; that depends on the question whether it was the duty of Jay, the defendant in this action, to adduce evidence to show that Godefroy the plaintiff was not damnified by the judgment by default in the former action, or whether it was for Godefroy to establish that Dubois would not have recovered against him. According to all the cases, it was not to be expected that Godefroy should be called on to furnish such proof"; and per Gaselee, J.: "With respect to the amount of damages, it was not for the plaintiff Godefroy to show, in this action, the circumstances under which he was sued by Dubois. If there were no witnesses of the occurrence

which led to that action, it would have been impossible for him to do so; and if Dubois had witnesses, Jay might have called them to establish his defence in this action. Negligence therefore, has been proved against him, and he has failed to show that it was immaterial to the plaintiff."

Now in the present case the defendants have not attempted to show that the action against Teja Shariff would not have succeeded. And three persons, namely the two plaintiffs and the witness Mr. Holder who was a passenger in Teja Shariff's taxi when the accident occurred, have all testified (and I believe them) that the plaintiff's car was on its correct side of the road and the taxi on its wrong side, at the moment of the accident. This evidence is more than enough to show that the plaintiffs would in all reasonable probability have succeeded in their claim for damages against Teja Shariff.

There remains, then, only the assessment of the damages in this case. The measure of damages is what would be reasonably foreseeable as a result of the defendant's negligence; and in effect that amount to what the plaintiffs would probably have obtained as damages against Teja Shariff. And the medical and other evidence brought in this case to show the extent of their injuries and the medical expenses incurred is the same as would no doubt have been brought to establish their claim in the action against Teja Shariff. The damages in this case will therefore be assessed on the basis of that evidence.

With regard to special damages, consisting principally of medical expenses, each plaintiff has given unchallenged evidence in support of his claim for Sh. 1,060 in the case of the first plaintiff and Sh. 740 in the case of the second plaintiff. I accept those figures as representing the special damages respectively incurred. With regard to general damages, three doctors have given evidence and produced reports regarding the injuries suffered by each plaintiff and the pain still felt by each and the degree to which the health or earning capacity of each has been permanently impaired. The plaintiffs themselves have also testified on these points. The evidence of the doctors has conflicted to some extent regarding the present suffering and incapacity of the plaintiffs, and I think the truth probably lies somewhere between the extremes of Dr. Nevills' and the plaintiffs' own evidence on the one hand and that of Doctors Thornton and Williamson on the other. Upon careful consideration I assess the general damage suffered by the first plaintiff at Sh. 8,000 and that suffered by the second plaintiff at $Sh. 5,000$

The defendants are accordingly ordered to pay to the first plaintiff Sh. 1,060 as special damages and Sh. 8,000 as general damages, and to the second plaintiff Sh. 740 as special damages and Sh. 5,000 as general damages, with interest on those amounts at Court rates; together with the plaintiffs' costs of this action.