203 / 328
barred by the effect of section 2 of the Limitation
Act, 1939? and accordingly failed. The trial judge
had found that the disease had been caused by
reason of the employer's breach of statutory duty,
but that as the causes of action had accrued in each
case more than six years before the issue of the
writs the actions failed.
The evidence in the case was that a person who
was susceptible to pneumoconiosis and
inhaled
noxious dust over the years would have suffered
substantial injury to his lungs long before his injury
could be discovered by any means yet known to
medical science. Even if the workman were able
to have x-ray photographs at regular intervals
a large part or even the whole of the three year
period of limitation would have elapsed before
they could even with
the best possible advice
instruct the raising of an action. The present law
requires their lordships to dismiss the appeal and
it was suggested that some amendment of the law
was urgently necessary.
All the members of the court expressed regret
at the decision which had to be come to and Lord
Reid said that it appeared to him to be unreasonable
and unjustifiable in principle that a cause of action
should be held to accrue before it was possible to
discover any injury, and that if the matter were
covered by the common law he would have held
that a cause of action ought not to be held to accrue
until either the injured person had discovered the
injury or it would be possible for him to discover
it if he took reasonable steps. The present question
depended on the Limitation Act, 1939, and section 26
of the Act appeared to make it impossible to reach
the result which he had indicated. The necessary
implication from the section was that where fraud
or mistake were not involved time began to run
whether or not the damage could be discovered.
The mischief in the present case could only be
prevented by further legislation.
(The Times,
January iyth, 1963.)
Note.—
The legal position is exactly the same in
this country.
The corresponding sections in the
Statute of Limitations, 1957, are sections 71 and 72,
the wording of which follows section 26 of the
English Act.
Proceedings issued in the wrong office of the court are a
nullity and not a procedural defect capable of being
remedied
The Court of Appeal in England dismissed an
appeal by
the plaintiff against a
judgment of
Mr. Justice Wilberforce upholding the dismissal
by the District Registrar of the Pontyprid District
Registry of a summons brought by the plaintiff
to remove her case to the Central Office of the
High Court in London.
The facts were that Alfred Pritchard died on
March I4th, 1961, leaving an estate of £914 and
a will that made no provision for his widow.
Probate was granted to the executors therein named
on loth April, 1961. Under the Inheritance (Family
Provisions) Act, 1938, the widow has six months
from the date of the grant of probate to take
proceedings in the High Court to secure reasonable
provision for herself out of the estate. The widow
instructed a solicitor to take such proceedings and
he prepared an originating summons in the High
Court in which he named his client his plaintiff and
the executors of the will as defendants.
The
summons was accepted and sealed in the District
Registry and dated October 9th, 1961. The docu
ment was accepted by the executors who entered
an appearance in the District Registry and by the
consent of both parties the residuary legatees were
also joined and entered an appearance in the District
Registry.
On January nth, 1962, the District Registrar
stated that he thought the proceedings had been
wrongly issued and he doubted whether he had any
power to deal with the matter owing to the following
rules of the Supreme Court, Order LIV. Rule 4
(f)
provides that an application to the High Court
under the above-mentioned Act shall be made in
the Chancery Division by originating summons
interpartes. Rule 4 (&) provides that an originating
summons shall be sealed in the Central Office.
On March 6th, 1962, the plaintiff's solicitors took
out a summons for the removal by the District
Registrar of the case to the Central Office. The
application was refused on the ground that the
proceedings were a nullity and Wilberforce J. on
appeal held with the Registrar. The plaintiff relied
on order LXX rule i of the rules which provides
that " non-compliance with any of these rules, or
with any rule of practice for the time being in force,
shall not render any proceedings void unless the
court of a judge shall so direct, but such proceedings
may be set aside either wholly or in part as irregular
or amended, or otherwise dealt with in such manner
and upon such terms as the court or judge shall
think fit."
Lord Justice Upjohn said that order LXX was
a wide rule to which the court should give a wide
construction but if the proceedings were a nullity
the rule was inapplicable. Order LXX applied to
all defects
in procedure unless
the defect was
fundamental " to the proceedings ".
There were
several classes of nullity and one of these was a
proceeding which had never started at all owing
to some fundamental defect on issuing the proceed
ings.
The proceedings in the present case were
proceedings of this nature.
Section 225 of the