HAWKINS v CLAYTON
164 CLR 53978 ALR 69
(Judgment by: BRENNAN J)
Between: HAWKINS
And: CLAYTON
Judges:
Mason C.J.
Wilson J.
Brennan J.Deane J.
Gaudron J.
Subject References:
Negligence
Limitation of Actions
Judgment date: 8 April 1988
CANBERRA
Judgment by:
BRENNAN J
The material facts are set out in the judgment of Deane J. Those facts give rise to a number of questions. The first is: did Mr Hardwick send Mrs Brasier the original of her will on 27 September 1971 or did Messrs Clayton Utz & Company ("the solicitors") continue to hold it until after her death? I agree with Deane J. that the better view is that the solicitors continued to hold the original will until after Mrs Brasier's death, but I would mention the evidence which, in my view, cogently supports that finding. If the original will had been returned to Mrs Brasier the circumstances known to Mr Hardwick would have confirmed the presumption of its subsequent revocation. But when Mr Hawkins applied for a grant of probate of a copy of that will, Mr Hardwick and Mr Sullivan (another partner in the respondent firm) each swore an affidavit in support of the application. Mr Hardwick deposed that a photostat copy of the will (not the original) had been sent to Mrs Brasier and he annexed to his affidavit copies of two letters written by him, one dated 12 September 1978 the other dated 8 August 1979, referring, inter alia, to "the Will which we hold". Mr Sullivan's affidavit stated his belief that "the xerox copies of the aforesaid Will ... were made by the firm after the deceased's death". Those affidavits, made in 1981 in order to answer the question whether the instrument propounded for probate was a copy of the last will of the testatrix, have much greater weight than Mr Hardwick's uncertain contrary impression when he gave evidence at the trial of this action in 1984.
On that finding of fact, the next question is whether the solicitors were under a duty as custodian of the original will to take steps promptly to inform Mr Hawkins as executor or as beneficiary of the existence of the will. The plaintiff's statement of claim alleged that the solicitors owed Mr Hawkins a duty of care which the solicitors breached by acting "without expedition" and in failing "to take any or any proper or adequate measures to inform (Mr Hawkins) that he had been nominated as principal beneficiary and as executor of the will of the late Melinda Ellen Brasier". Yeldham J. found there was no relevant duty of care. In the Court of Appeal, the majority (Kirby P. and Glass J.A., McHugh J.A. dissenting) found it unnecessary to determine that question, holding that any claim arising from breach of such a duty was statute barred. As time commences to run under s 14(1)(b) of the Limitation Act 1969 (NSW) from the date on which the cause of action first accrues to the plaintiff or to the person through whom the plaintiff claims and as that date depends on a precise understanding of the cause of action I must address the question whether the solicitors owed a duty to Mr Hawkins, the person through whom the plaintiff (his widow and executrix) claims.
In the Courts below the plaintiff pleaded two causes of action each of which required proof of a duty owing by the solicitors promptly to inform Mr Hawkins of the will: breach of contract and a tortious breach of duty. The contract which the plaintiff sought to establish was a contract between Mr Hawkins and the solicitors. The proposition that there was a contract creating such a duty seems to have been based chiefly on the suggestion that the solicitors had purported to act on behalf of Mr Hawkins and that Mr Hawkins had ratified their actions, the contract being inferred from the fact that Mr Hawkins met a demand for payment to the solicitors of costs incurred by them before they informed Mr Hawkins of the will. The costs included items relating to enquiries about Mr Hawkins and his whereabouts. It is not possible to infer from these circumstances that the solicitors made a contract with Mr Hawkins by which they undertook a duty of care in performing the professional services which they had performed before obtaining instructions from Mr Hawkins. However, Yeldham J. found that a different contract was made between Mr Hawkins and the solicitors. Mr Hawkins, for a brief period after being told of the will, had retained the solicitors to obtain probate for him. But a finding of that retainer does not advance the plaintiff's case. The retainer could not be construed as containing a term imposing retrospectively a duty of care on the solicitors or imposing on them a liability to compensate Mr Hawkins for their earlier failure to tell him of the will. Contract between Mr Hawkins and the solicitors may be put aside in considering whether there was any duty owed by the solicitors to Mr Hawkins to inform him of the existence of Mrs Brasier's will. The fact is that there was no relevant relationship of solicitor and client between the solicitors and Mr Hawkins.
Nor is there any evidence of a contract between the solicitors and the testatrix governing the solicitors' obligations to disclose the will to the nominated executor or beneficiaries after the death of the testatrix. Had there been such a contract, the benefit of the solicitors' promise would have passed on her death to her executor, assuming the beneficial interest in any such promise was not conferred on him when the promise was made: Marshall v. Broadhurst (1831) 1 C & J 403 (148 ER 1480). But it is unnecessary to consider the possibility that a contract between the solicitors and the testatrix was the source of a duty owed to Mr Hawkins to disclose the existence of the will after the death of the testatrix. No such contract was pleaded; no such contract was relied on in the Courts below.
The more substantial cause of action which was litigated in the Courts below was a claim in tort for damages for breach of a duty of care allegedly owing by the solicitors to Mr Hawkins. Though the duty for which the plaintiff contends may be described as a duty of care, that description is not adequate to bring out the nature of the duty which the plaintiff must establish. That is, a duty to act, a duty to disclose promptly to Mr Hawkins the existence of the will. It is not a duty to be careful in doing something which, in the absence of reasonable care, might foreseeably cause him loss. Nor is it a duty to be careful in giving him information in reliance on which he intends to act in connection with some matter of business. The duty for which the plaintiff necessarily contends is a duty to take some positive steps to find Mr Hawkins and inform him of the will, and to take those steps promptly. The relevant circumstances out of which such a duty - I shall call it a duty of disclosure - might arise are the solicitors' custody of the will after the death of the testatrix, the nature of the will and its contents, the purpose for which the solicitors accepted custody of the will and the foreseeable consequences of failure promptly to disclose the will to Mr Hawkins. To determine whether a duty of disclosure arises out of these circumstances, it is helpful to recall the character of a solicitor's custody of a client's will .
A solicitor to whom a testator entrusts the custody of his will is a bailee of the will during the lifetime of the testator. The solicitor is bound to deliver it to the testator at any time during his life - for the testator may wish to alter it - and the solicitor can claim no lien upon it: Balch v. Symes (1823) Turn & R 87, at p 92 (37 ER 1028, at p 1030). Upon the death of the testator, the bailment is at an end. Walter J. in In re Aebly's Will (1941) 29 NYS 2d 929, at pp 931-932; affirmed (1941) 31 NYS 2d 664, stated the change in the character of the custody in this way:
"The mere fact of death works important changes. There is no longer a bailor. The thing bailed is transformed from an ambulatory instrument into a muniment of title to property. The bailment, as such, is at an end. The persons entitled to the testator's property then have a right to demand production and probate, not of the ambulatory instrument that was bailed, but of the muniment of their title, and the custodian thereof is under a duty to comply with that demand, but that right and that duty are a new right and a new duty which arise by operation of law and spring from the State's jurisdiction over decedents' estates. They are not implied terms of the contract of bailment, and before such new duty can be said to exist knowledge or notice of the fact which gives rise to it, the fact of death, must be brought home to the person to be charged with it."
From the time when the ecclesiastical courts enjoyed exclusive jurisdiction in probate matters, the custodian of a will of a deceased testator has been compellable to produce it to the court. The law did not recognize a solicitor's lien affecting that obligation: Georges v. Georges (1811) 18 VesJun 294 (34 ER 328). In Lord v. Wormleighton (1822) Jac 580, at p 581 (37 ER 969) Lord Eldon L.C. said with reference to a solicitor who has made a will for his client:
"He engages to make an instrument effectual for the purposes of the testator, which it cannot be unless it is produced elsewhere. There is no pretence for any lien."
Since the Court of Probate Act 1857 (UK) (20 & 21 Vict c77 , s 26), the obligation to produce has been statutory: see the Wills, Probate and Administration Act 1898 (NSW), s 150, which authorizes any person to make an application for an order that any testamentary writing be brought into the registry. Orders have been directed to an executor (In the Goods of Shepherd (1891) P 323, at p 326) and to a solicitor retained by a person claiming a right to have custody of the will: In the Estate of Harvey (1907) P 239. In the latter case, Sir Gorell Barnes P. (at p 240) explained why no claim of professional privilege is recognized: "The will does not belong to the client, but to the Court." It follows that a solicitor who has custody of a deceased testator's will does not hold it under any retainer he may have had from the testator and his custody under any retainer from a living person is subject to his obligation to bring it into the registry when ordered to do so. It may be that he is entitled to bring the will of a deceased testator into the registry without waiting for instructions from the executor (see s 30 of the Wills, Probate and Administration Act which is modelled on s 66 of the Court of Probate Act 1857 (UK)), but it is not necessary to consider that question in this case.
The successful concealment of a deceased testator's will precludes enjoyment of the interests in property created by the will. For that reason, the criminal law has proscribed the concealment of a will for any fraudulent purpose: see the Crimes Act 1900 (NSW) s 135. The need for such an offence was perceived even in Roman times: see Sir James Stephen, A History of the Criminal Law of England (1883), vol 1, p 20 and, for later history, vol 3, p 148; s 22 of the Larceny Act 1829 (UK) (7 & 8 Geo IV, c.29) and Russell on Crime, 12th ed., vol 2, pp 901-902. A testator who wishes to safeguard his executor against the possibility of concealment has a facility available to him under s 32 of the Wills, Probate and Administration Act. That section provides for the depositing of a will during the lifetime of a testator and casts on the registrar a duty on the testator's death to deliver the will to the executor named in it. That Act does not impose a corresponding duty on any other custodian of a will, so the question remains whether the law otherwise creates such a duty or at least a duty to take some steps to inform an executor of the existence of the will and the custody out of which he can secure its delivery.
Consider the usual purpose for which a testator entrusts custody of his will to his solicitor (or, for that matter, to some other custodian of wills). The usual purpose is for safekeeping both before and after death so that, after death, the will can be produced in order that it may be made effectual. That is the purpose for which, in the ordinary case, custody is accepted. But if the executor is ignorant of the will, he will not call for production of the will nor will he enter upon administration of the estate. If the custodian of the will has reasonable grounds for believing that the executor is ignorant of the will, it is foreseeable that non-disclosure of the will to the executor will result in the will not being produced and not being made effectual. Unless some duty of disclosure be imposed on the custodian and be discharged by him, the will would have to continue in the custodian's safekeeping indefinitely, and the purpose for which the custodian accepted custody would go unfulfilled. Some duty of disclosure must be imposed on the custodian. That is not to infer a contract or undertaking to disclose from acceptance of custody; it is merely to regard the acceptance of custody for the stated purpose as material to the existence of a duty. The duty of the custodian "is cast upon him by law, not because he made a contract, but because he entered upon the work", as Windeyer J. said of an architect in Voli v. Inglewood Shire Council (1963) 110 CLR 74 , at p 85. It is the nature of the instrument which the custodian accepts for safekeeping which gives the relevant character to the work on which the custodian has entered.
After the death of a testator, the will is not the testator's instrument of title to his property. Ex hypothesi, the property is no longer his. Statute apart, the will of a deceased testator is an instrument which, subject to the executor's right to renounce the office of executor, creates in the executor the proprietary rights of the owner of the estate as from the death of the testator (Hollis v. Smith (1808) 10 East 293, at p 295 (103 ER 786, at p 787); Meyappa Chetty v. Supramanian Chetty [1916] 1 AC 603 , at pp 608-609; Ryan v. Davies Bros. Ltd. (1921) 29 CLR 527 , at p 536), albeit executors "are but ministers and dispensers of the goods of the dead": Pinchon's Case (1611) 9 CoRep 86b, at p 88b (77 ER 859, at p 863). It may be that by reason of s 61 of the Wills, Probate and Administration Act, the real and personal estate of a deceased testator is vested in the Public Trustee from the death of the deceased until probate; but s 44 provides that, upon a grant of probate to the executor, the real and personal estate of a testator becomes vested in the executor as from the death of the deceased. The vesting of legal title to the estate is one thing; knowledge of the title is another. Wherever the title to the estate may formally vest on the death of a testator, the executor needs to know of the will and its contents before he can accept the office and undertake administration of the estate in accordance with the will. Knowledge of the will and its contents by the executor is necessary to make the will effectual. If the custodian owed no duty to disclose the will to the executor, it would be legitimate for the custodian by silence to deny enjoyment of the estate to the person entitled to it. That result is inconsistent with the purpose for which custody was accepted. Some duty to disclose must exist, but it does not arise simply from foreseeability of loss if no disclosure takes place. The duty is a duty to act and such a duty needs more than foreseeability of loss to summon it into existence. I venture to recall what I said in Sutherland Shire Council v. Heyman (1985) 157 CLR 424 , at p 479:
"Foreseeability of an injury that another is likely to suffer is insufficient to place me under a duty to him to act to prevent that injury. Some broader foundation than mere foreseeability must appear before a common law duty to act arises. There must also be either the undertaking of some task which leads another to rely on its being performed, or the ownership, occupation or use of land or chattels to found the duty: cf. Windeyer J. in Hargrave v. Goldman ((1963) 110 CLR 40 , at p 66)."
In my opinion, a duty of disclosure arises from custody of the will after the death of the testator, the nature of the will and the purpose for which custody is accepted as well as from the foreseeable consequences of non-disclosure.
Analogous duties are not numerous, for the occasions are few when a person with an interest in property needs to be told of it in order to be able to enjoy it. In Hawkesley v. May [1956] 1 QB 304 , Havers J. held that the trustees under a deed of settlement had a duty to inform a beneficiary, on his attaining his majority, that he had an interest in the capital and income of the funds of the trust. His Lordship accepted that he was bound by the rule in In re Lewis. Lewis v. Lewis (1904) 2 Ch 656 that, in the absence of a direction in the will, an executor owes no duty to inform a legatee of the terms of a legacy even though the executor takes a beneficial interest in the legacy in the event of the legatee's failure to satisfy a condition attached to the legacy - a rule which Havers J. said had "no attraction for me on the merits": p 322. However, his Lordship was able to distinguish between an interest taken under a public document (a will in Somerset House) and a private document (a trust deed). The ground of distinction may seem tenuous; another ground of distinction may be that an executor's duty is to distribute to legatees who are entitled rather than to assist them to satisfy conditions of entitlement. However that may be, the duty imposed in Hawkesley v. May is analogous to the duty of disclosure which, in my opinion, arose in the circumstances of this case. It may be that there is a broad principle, founded on general standards of honesty and fair dealing, that some duty of disclosure is imposed on one who holds the property of another or an instrument of title to the property of another as a bare custodian or trustee when the other does not know of his entitlement to the property and the holder has reason to believe that the other does not know of his entitlement. In appropriate circumstances, such a broad principle would support a duty of disclosure owed by the custodian of a deceased testator's will to a beneficiary when the nominated executor is dead or cannot be found or renounces the office of executor. That duty does not need to be considered in this case; in this case, the nominated executor accepted the office. An executor's assumption of office is inconsistent with any further duty of disclosure. Thereafter the duty of making the will effectual is his to discharge.
The law imposes the duty on the custodian of a deceased testator's will for the protection of the executor and, derivatively, for the protection of the beneficiaries. It is not a duty owed to the deceased testator. The damage suffered in consequence of a breach of the duty is not a loss of title to the assets in the estate nor a loss of the executor's right to possession of the assets. A breach of the duty does not infringe any proprietary or possessory rights vested in the executor by the will. The loss is a loss of the exercise or enjoyment of the rights of ownership by an executor who does not know of his entitlement. As such a loss increases with the passing of time, the duty to disclose is a duty to disclose promptly.
The extent of the duty to disclose promptly is not at large: it is limited by reference to the purpose of making the will effectual. If the executor knows of the will, its contents and its custody, further disclosure by the custodian is not needed. And when disclosure is required, the steps which need to be taken are those which are reasonable in the circumstances including the contents of the will, the custodian's knowledge and means of knowledge of the identity and location of the parties interested under the will and of their relationship with one another. The cost of extensive enquiries and the expected value of the estate are relevant considerations in determining what steps are reasonable. The cost of reasonable enquiries is a cost incurred to make the will effectual and, I should think, a testamentary expense which the executor would be authorized to pay out of the estate in due course: see Hurst v. Hurst (1886) 12 VLR 93, at p 99; and cf. In re Vincent. Rohde v. Palin (1909) 1 Ch 810. I would state the common law duty which a custodian of a deceased testator's will owes to the executor named in the will in this way: where the custodian has reason to believe that disclosure by him to the executor of the existence, contents or custody of the will is needed in order that the will may be made effectual, the custodian is under a duty promptly to take reasonable steps to find, and to disclose the material facts to, the executor.
Such a duty would seldom be onerous to discharge. In earlier times, the summoning of interested parties to a formal reading of the will was no doubt a means of discharging the solicitor's duty as custodian in many cases. Nowadays, the formality may be dispensed with but, if some other reasonable and available steps are not taken to make disclosure when disclosure is needed in order that the will may be made effectual, and the executor's exercise or enjoyment of his rights in respect of the estate is adversely affected thereby, the custodian may be liable in tort to the executor.
I am conscious that it has been said in recent judgments of this Court that the existence of a duty of care depends on whether the requisite relationship of proximity exists between a person who is said to owe the duty and a person to whom the duty is said to be owed and that I have not adopted that approach in determining whether a duty of disclosure exists in this case. The notion of proximity as I understand it is simply Lord Atkin's neighbourhood principle which depends on the reasonable foreseeability of loss. Others have understood the notion to subsume foreseeability within a wider concept underlying the wide variety of cases which may be gathered under the heading of "negligence". In deference to majority judgments in this Court, I would be constrained to enquire whether "the requisite relationship of proximity" existed if that phrase defined a legal criterion of such precision that it answered the question whether, in the present circumstances, a duty of care exists. I do not understand the wider concept of proximity to furnish a test for determining whether the particular facts of a case give rise to a duty of care. In San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 , at pp 367-369, I explained the difficulties I see in attempting to apply the wider concept of proximity to the facts of a particular case. Lacking the specificity of a precise proposition of law, the wider concept remains for me a Delphic criterion, claiming an infallible correspondence between the existence of the "relationship of proximity" and the existence of a duty of care, but not saying whether both exist in particular circumstances. When the existence of a duty in a new category of case is under consideration, the question for the court is whether there is some factor in addition to reasonable foreseeability of loss which is essential to the existence of the duty: see Jaensch v. Coffey (1984) 155 CLR 549 , at pp 575-577. In many of the new categories of case in which a duty has been held to exist, reasonable foreseeability of loss has not been sufficient in itself to give rise to a duty to act or to abstain from acting in order to avoid the loss. In a case where a novel category of duty is proposed and the factors which determine its existence must be identified, the court may have regard to a variety of considerations: the nature of the activity which causes the loss, the nature of the loss, the relationship between the parties and contemporary community standards (especially where liability for breach of the proposed duty would be disproportionate to the risk which a person might reasonably be expected to bear as an incident of engaging in the particular activity if no limiting factor were identified). In Sutherland Shire Council v. Heyman (at p 481) I suggested that it is preferable for the law to develop new categories of negligence incrementally and by analogy with established categories, for the established categories provide firm evidence of the kinds of factors which condition the existence of the various categories of duties. It is one thing to speak in general terms about the considerations which affect the development of the law; it is another to define the law as developed. In a novel category of case, when it appears that the proposed duty depends on some factor additional to reasonable foreseeability of loss, the additional factor must be identified. In my opinion, the identification must be sufficiently precise to permit the tribunal of fact (whether judge or jury) to ascertain the existence of the relevant factor or factors: see San Sebastian Pty Ltd v The Minister, at pp 367-368. Indeed, it is only by reference to factors so precisely identified that it is possible to define the nature and content of the proposed duty. And it is only by reference to the nature and content of a duty that it is possible to define the elements of the cause of action in tort for its breach. Having defined the duty of disclosure owed by the custodian of a deceased testator's will to the executor named in the will, it is necessary next to turn to the elements in the cause of action for its breach .
The elements which are essential to the existence of a cause of action for breach of a duty of disclosure owed to an executor include, of course, damage. The nature of the damage which a breach is apt to cause discloses other elements in the cause of action. The damage caused by breach of a duty of disclosure owed to an executor can flow only from his ignorance of the will or its contents or its custody. That ignorance prevents his assumption of the office of executor. It may be tautologous to say that the executor's ignorance of the will or its contents or its custody is an element in the cause of action founded on breach of the duty. After all, if the executor knows of the will, its contents and its custody, he cannot establish the necessary causal relationship linking a breach of the duty of disclosure and any loss occasioned by his failure to exercise or enjoy his rights in respect of the estate. Once the executor knows the material facts, no further failure to disclose on the part of the custodian can be productive of damage. The damage recoverable for breach of the duty of disclosure thus exhibits uniformly this feature: the damage caused by the breach of duty is generated by events occurring when the executor is ignorant of his title to the estate and before he has elected whether or not to renounce the office of executor. The damage recoverable for breach of the duty also exhibits uniformly a further feature: the damage is not caused by an infringement of the proprietary or possessory rights of the executor in respect of the assets in the estate. The executor's proprietary or possessory rights are unaffected, but they are not enjoyed or exercised. The cause of action arising from a breach of a duty of disclosure has a different origin from a cause of action arising from an infringement of the proprietary or possessory rights of the executor over the assets in the estate. It does not devolve on the executor as an asset in the estate of the testator. Nor does it arise out of the executor's administration of the estate. To the contrary, it arises out of his failure to enter upon the administration of the estate. Though the cause of action enures for the benefit of the estate, it is not complete when the estate suffers loss by reason of the nominated executor's failure to enter upon administration of the estate: he may renounce the office and never enter upon administration of the estate.
Although the title of an executor to the assets in the estate is derived from the will - I leave aside s 61 of the Wills, Probate and Administration Act as immaterial to the point under discussion - the proprietary and possessory rights derived from the will are not the source of the executor's cause of action for breach of a duty of disclosure. In the event of an effective renunciation of office by the person appointed as executor, the title to the estate - including the title to causes of action which survive the death of the testator - devolves as though that person had not been appointed as executor (Williams on Executors, 14th ed. (1960), vol 1, p 48). But the law of torts makes no provision for the divesting of a cause of action for damages for breach of duty. It would be absurd to postulate the vesting of a cause of action for damages for breach of a duty of discharge in a person who, though nominated as executor, is able to renounce and renounces the office. Until the person nominated as executor elects to accept the office or precludes himself from renouncing it - that is, until that person assumes the office of executor - it is uncertain whether he will be the one to suffer loss as executor. It is only on his assumption of the office of executor that his cause of action is complete. Only then can it be said that any damage to the estate caused by his failure to enter upon administration of the estate is in fact suffered by him as executor. A duty of disclosure, breach, ignorance of the will or its contents or custody, resultant failure to enter on the administration of the estate, resultant loss to the estate and assumption of office as executor must co-exist in order to establish the cause of action.
In this case, the only elements in doubt were the duty of disclosure and breach. For the reasons stated, the solicitors were under a duty of disclosure. The next question is whether they were in breach.
To establish breach, the plaintiff had to prove that there were reasonable steps which Mr Hardwick might have taken to find Mr Hawkins and which, if he had taken them, would have avoided the loss which Mr Hawkins suffered as executor. It is clear that any loss suffered by Mr Hawkins as executor could have been avoided if Mr Hardwick had consulted the telephone directory - which contained an entry under Mr Hawkins' name at all material times - and had telephoned him promptly after learning of Mrs Brasier's death. If evidence of the obvious were needed, the evidence of Mr Windeyer established that consultation of the telephone directory was a reasonable step to take. Had Mr Hawkins been informed of the will promptly, none of the items by reference to which the plaintiff seeks to quantify the loss claimed would have been suffered. The relevant items consist in the deterioration of a house property (the principal asset in the estate), the removal or destruction of furniture that was in the untended house, the loss of any rent which should have been paid by Mr Lamb (a nephew of the testatrix) in respect of his unauthorized occupancy of the house, the loss of income which might have been derived from the house and a penalty incurred for late lodgment of a return for death duty. These items occurred between January 1975 when the solicitors learnt of Mrs Brasier's death and March 1981 when they informed Mr Hawkins of the will. There is no reason to suppose that, if Mr Hawkins had been informed of the will promptly he would not have promptly accepted the office of executor, taken possession of the estate, occupied or let the house and made a death duty return in due time. When Mr Hawkins was informed of his unexpected windfall, that is what he proceeded to do though it was too late to avoid the penalty on the late return.
The breach of the solicitors' duty was not an absolute failure to take reasonable steps to inform Mr Hawkins of the will; in March 1981 such steps were taken and Mr Hawkins was informed. The solicitors' breach of duty consisted in a failure to take reasonable steps to inform Mr Hawkins promptly. The information given to Mr Hardwick no doubt diverted his attention from pursuing the search for Mr Hawkins through the telephone directory or other address lists available for public inspection. Though the diversion serves to explain the failure to inform Mr Hawkins of the will promptly, it provides no excuse.
The natural and foreseeable consequence of the solicitors' failure to inform Mr Hawkins of the will promptly was that, when Mr Hawkins accepted the office of executor and came into possession of the estate, he had lost the benefit of possession of the estate which he would have had as executor if the solicitors had informed him of the will. That loss must be distinguished from other and different losses which arose by infringement of the proprietary or possessory rights which devolved on Mr Hawkins as executor. The loss caused by the solicitors' breach of duty may be assessed by reference to, but is not, the rent which ought to have been paid by Mr Lamb for his unauthorized occupation of the house or the damage done to the house by unknown vandals or the loss of furniture occasioned by unknown persons who stole or broke the furniture. The executor may have causes of action against the persons responsible but he is not required to enforce them in exoneration of the solicitors' liability. What the plaintiff is entitled to recover from the solicitors is compensation for the loss flowing from the delay in Mr Hawkins' taking possession of the estate as executor. The period of his being out of possession by reason of the solicitors' breach of duty to inform him promptly commences from the time when, if they had performed their duty, he would have been informed of the will and would have been able to take possession of the estate; it terminates when he was able to take possession of the estate after being informed of the will. Neither date has been precisely found, though it is likely that the period commenced at some time in 1975 and ended in March 1981. No assessment has been made of the loss sustained by Mr Hawkins as executor in being out of possession during this period, nor has a formal finding been made that the penalty for late lodgment of the death duty return is a loss caused by the solicitors' breach of duty.
In the Court of Appeal the majority did not find it necessary to consider these questions. The majority did not find a breach of duty but, assuming in the plaintiff's favour that the solicitors were guilty of negligence, their Honours held that any cause of action in negligence was extinguished by operation of s 14(1)(b) and s 63 of the Limitation Act. In my opinion this Court should now find that there was a breach of duty and that it caused some loss. But that finding will prove a Pyrrhic victory for the plaintiff if the action is statute barred. That leads us to the final question.
The solicitors in their defence pleaded that the action was statute barred and in argument they rely on the Limitation Act as an ultimate defence if it should be found that they were otherwise liable for breach of duty. The submission made on their behalf is that the damage caused by any breach of duty on their part began in 1975 or, in any event, not later than six years before the action was commenced on 22 November 1982. By November 1976 at the latest, so the argument goes, the period of limitation had commenced to run so that the plaintiff's cause of action was extinguished by the time the solicitors told him of the will or within a relatively short time afterwards. Of course, the injustices occasioned by statutes of limitation have been seen in many cases (see, for example, Cartledge v. E. Jopling & Sons Ltd. [1963] AC 758 where time was held to run before the plaintiff discovered that he had contracted compensable pneumoconiosis) and have led to modification of the bar in personal injury cases: see Pt III Div.3 of the Limitation Act. Wilson J. in Kamloops v. Nielsen (1984) 2 SCR 2; (1984) 10 DLR (4th) 641 observed that "perhaps the most serious concern is the injustice of a law which statute-bars a claim before the plaintiff is even aware of its existence": p 40; p 685. It would not be surprising if the application of s 14(1)(b) of the Limitation Act to cases of economic loss sometimes worked an injustice. The Act may be pleaded by a defendant whether its operation will serve the ends of justice or not. This was not a case in which the plaintiff's claim depended on a contest between the contradictory recollections of opposing witnesses whose memories were likely to be dimmed by the passage of time; nor was it a case where a disputed claim had been allowed to lie dormant while the limitation period ran. It was a case in which the whole of the material evidence as to breach of duty came from the solicitors themselves and from their own documents . Yet, if the argument founded on the Limitation Act is right, the solicitors' breach of duty, persisted in throughout all or most of the limitation period, has successfully produced an exemption from their liability to compensate an executor for loss which their breach of duty caused. It is not an attractive argument. If the argument be right, there is an incentive for a solicitor whose breach of a duty imposed by law causes damage to an executor to conceal it from the executor until six years have passed, even though further damage may accrue from day to day so long as the concealment continues. The argument does not sit easily with the public perception, sedulously cultivated by professional societies, that the professional standards of solicitors assure substantial protection in the administration of the estates of deceased clients. The argument is no more attractive if it is advanced at the insistence of professional insurers. The terms of a policy which is apt to qualify the protection expected by the public are a matter of private contract or perhaps of negotiation by professional societies.
Whether the raising of the Limitation Act in a case like the present is regarded as appropriate or not, the issue raises questions which depend on the answer to a technical question: when does a cause of action in tort for breach of a duty to disclose first accrue? The majority of the Court of Appeal held that such a cause of action first accrues when damage occurs irrespective of the claimant's knowledge (per Kirby P.) or as soon as the wrongful act has caused some damage beyond what can be regarded as negligible (per Glass J.A.). There is no doubt that most causes of action for negligence first accrue when the plaintiff first suffers damage caused by the defendant's breach of duty. The ordinary rule is restated in Cartledge v. E. Jopling & Sons Ltd. in terms reproduced by Glass J.A. in the Court of Appeal. Difficulties in applying the rule have been encountered in England in cases where damage has occurred on land or defects have occurred in the construction of buildings, but there is no reason to doubt the applicability of the orthodox view: see the discussion in Sutherland Shire Council v. Heyman, at pp 489-494. There are some observations in State of South Australia v. Johnson (1982) 42 ALR 161 which suggest that time runs from discovery of damage rather than from the occurrence of damage, but those observations are to be accounted for by the conventional basis on which the parties chose to fight the case - a basis which precludes the judgment in that case from being treated as a rejection of established legal principle. This case, however, is not an ordinary case in which a plaintiff seeks damages for negligence. For reasons earlier stated damage is not temporally the last element of the cause of action to occur. Unlike the ordinary case, the last element to occur in a case of the present kind is the nominated executor's assumption of the office of executor. Until that occurs, the cause of action is not complete. For the purposes of s 14(1)(b) of the Limitation Act, "time runs from the accruer of the cause of action, but a cause of action does not accrue unless there be some one who can institute the action": Meyappa Chetty v. Supramanian Chetty, at p 610; and see Thomson v. Clanmorris (Lord) (1900) 1 Ch 718, at pp 728- 729. Until the nominated executor assumes the office of executor, the cause of action does not accrue and time does not begin to run. If a cause of action is itself an asset which devolves on the executor or arises from an infringement of the proprietary or possessory rights of an executor in respect of the estate, the executor's ignorance of his title would not prevent the time from running: cf. Knox v. Gye (1872) LR 5 HL 656. But where no action can be brought by the nominated executor until he assumes office, time runs only from that event. Time commenced to run in this case only from Mr Hawkins' assumption of the office in March 1981. The action was commenced within six years thereafter. The defence based on the Limitation Act fails.
The appeal must be allowed accordingly. There must be judgment for the plaintiff for damages to be assessed by the Supreme Court unless the parties can agree on an assessment.