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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sutherland v. Magistrates of Aberdeen [1894] ScotLR 32_81 (24 November 1894) URL: http://www.bailii.org/scot/cases/ScotCS/1894/32SLR0081.html Cite as: [1894] ScotLR 32_81, [1894] SLR 32_81 |
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Page: 81↓
[Sheriff Court at Aberdeen.
Section 42 of the Public Health Act 1867 provides that, where a hospital exists within the district of a local authority, a magistrate may, on the application of the local authority, with the consent of the superintending body of such hospital, “by order on a certificate signed by a legally qualified medical practitioner,” direct the removal to such hospital of any person suffering from an infectious disease and being without proper accommodation. Section 118 provides that the local authority shall not be liable in damages for any irregularity committed by their officers in the execution of the Act.
A child suffering from scarlet fever was removed to a hospital by the officers of a local authority. The removal was effected with the consent of the child's father, but without any warrant having been obtained. The child having died shortly after its admission to the hospital, the father brought an action of damages against the local authority, alleging that its death had been caused by the negligent manner in which its removal to the hospital had been conducted.
Held that, as the removal had not been effected under the powers conferred by the Public Health Act, the defenders were not protected by the provisions of section 118.
Subject_Process — Amendment of Record — Expenses.
In an action of damages the Sheriff-Substitute, being of opinion that the pursuer's averments were irrelevant, allowed him to lodge within six days a minute specifying what amendment, if any, he proposed to make
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on his condescendence. Before the six days had expired the defenders appealed to the Sheriff, who allowed a proof before answer. The pursuer then appealed to the Court of Session for jury trial. The defenders argued that the case was irrelevant, and the pursuer moved to be allowed to amend. Held that, in the peculiar circumstances of the case, he should be allowed to do so without any payment of expenses.
On the 27th October 1893 Elizabeth Sutherland, a child aged five years, the daughter of George Sutherland, blacksmith in Aberdeen, was seized with an attack of scarlet fever. On the following day she was removed to the Aberdeen City Hospital by persons in the employment of the Magistrates and Town Council of Aberdeen, as the local authority under the Public Health Act. The removal was carried out with the consent of the child's father, but without any warrant having been obtained under section 42 of the Public Health Act. The child died on the day following her admission to the hospital.
George Sutherland thereafter raised an action of damages for the death of his child in the Sheriff Court at Aberdeen, against the Lord Provost, Magistrates, and Town Council of Aberdeen, as the local authority under the Public Health Act.
The pursuer averred that he had told the sanitary official, who called upon him in reference to his daughter's illness, that his own medical man, who had been in attendance on her, “had instructed him to inform the authorities when they came of the dangerous state in which the girl was, and that she would have to be taken the greatest care of;” that he consented to her removal only upon being assured that the greatest possible care would be taken of her; that he had again urged the necessity for the greatest care being taken upon the persons in the employment of the local authority who came to take his child to the hospital, but that nevertheless the removal had been carried out in a negligent and unskilful manner, and the child had been neglected after its admission to the hospital, with the result that it died.
The pursuer pleaded, inter alia—“(4) The defenders having had no legal warrant of removal, as required by the Public Health (Scotland) Act 1867, were not acting in the execution of that statute, and are barred from founding on its provisions.
The defenders pleaded, inter alia—(1) That the pursuer's averments were irrelevant; and “(2) The defenders, the Town Council of Aberdeen, having acted, in the removal and treatment of the pursuer's child, under the Public Health (Scotland) Act 1867, are not liable in damages to the pursuer.”
The Public Health (Scotland) Act 1867 (30 and 31 Vict. cap. 101). by sec. 42 provides that “Where a hospital or place for the reception of the sick is provided or exists within the district of a local authority, the sheriff or any magistrate or justice may, on the application of the local authority, with the consent of the superintending body of such hospital or place, by order on a certificate signed by a legally qualified medical practitioner, direct the removal to such hospital or place for the reception of the sick, at the cost of the local authority, of any person suffering from any dangerous, contagious, or infectious disease, and being without proper lodging or accommodation,” … Section 118 provides that “The local authority … shall not be liable in damages for any irregularity committed by their officers in the execution of this Act, or for anything done by themselves in the bona fide execution of this Act.”
Upon 26th April 1894 the Sheriff-Substitute (
Robertson ) pronounced the following interlocutor—“Allows, with reference to the annexed note, the pursuer to lodge within six days after intimation hereof, if so advised, a minute specifying what amendment, if any, he proposes to make on his condescendence; and allows the defenders to answer said minute within six days thereafter: Reserves all question of expenses, and grants leave to appeal.“Note.—I think this action is hardly relevant just now, but I think it can easily be made relevant. To begin with, in my opinion, the defenders, the Town Council, cannot here claim the protection of the statute. What was done was not done under the Public Health (Scotland) Act 1867, sec. 42, because there was no magistrate's warrant obtained. No doubt the consent of the child's parents to its removal was obtained, and this would be sufficient protection if the removal was properly conducted, but if the child's death was due to improper and careless conduct on the part of the servants of the local authority during the course of the removal, then I have no doubt the defenders may be liable. What I desiderate in the pleadings is a more precise statement of how the alleged improper and unskilful conduct contributed to the child's death, and what that death was due to.
“I allow the pursuer, if so advised, to amend his record in this respect.” …
The defenders appealed to the Sheriff (
Guthrie Smith ), who on 28th June 1894 recalled the Sheriff Substitute's interlocutor, and allowed a proof before answer.“Note.— … I do not think the warrant was essential if the pursuer agreed to dispense with it, which the defenders say he did. But the proper time to raise a question as to the scope and meaning of a protecting clause, such as sec. 118, is at the trial—after the facts have been sufficiently opened—and not on relevancy, unless of course in a very clear case, and therefore I have allowed a proof before answer.”
The pursuer appealed to the First Division for jury trial.
Argued for the defenders—(1) They were protected by the 118th section, unless, which was not averred, there had been gross negligence or mala fides, because they were carrying out the provisions of the 42nd section of the Public Health Act. Hospital, nurses, power of removal, all existed by virtue of that Act which they were executing. A warrant was
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obtained where the parent would not give his consent, but they found it more beneficial and expeditious to act where possible with consent, than to delay until a magistrate's warrant had been obtained. Consent was virtually a waiving of the necessity for a warrant, and did not deprive the local authority of the protecting clause of the statute. In Mitchell's case the pursuer's averment was that the removal had been effected against his wish, as well as without a warrant. (2) The averments were irrelevant. It was not said what should have been done that was not done. Argued for the pursuer—(1) The local authority were not executing the Act, which only contemplated and authorised compulsory removal under a magistrate's warrant, and they were therefore outside the protecting clause of the Act— Mitchell v. Magistrates of Aberdeen, January 17, 1893, 20 R. 253. (2) He desired the opportunity to amend which the Sheriff-Substitute had given him, but which he had lost by the defenders' appeal to the Sheriff.
The Court continued the case, and when it was again called the pursuer tendered a minute of amendment, which the defenders admitted made the record relevant.
At advising—
Lord President—The debate which we heard originated in the plea of the defenders that they were protected against such an action as this by the 118th section of the Public Health Act of 1867. Now, the 118th section lays it down that the local authority “shall not be liable in damages for any irregularity committed by their officers in the execution of this Act, or for anything done by themselves in the bona fide execution of this Act.” The defenders allow that it was under the former of the two branches in that enactment that they desired to shelter themselves—that is to say, under the words “any irregularity committed by their officers in the execution of this Act.” We have then to consider whether the matter of complaint here can, even with any latitude of expression, be described as “an irregularity” committed by the defenders' officers “in the execution of” the Act.
That leads one to consider the 42nd section, which is the branch of the Act which the defenders allege themselves to have been executing on this occasion. Now, it seems to me that the 42nd section applies solely to the case where a magistrate has on a certificate signed by a legally qualified medical practitioner directed the removal of someone to an hospital, so that the execution of this part of the Act by any officer would mean his going with the warrant of a magistrate which had been obtained on the certificate of a doctor and removing a person or a child to the hospital. But the admitted facts here are that there was no certificate by a doctor, and no warrant by a magistrate, and therefore this officer, when he went to remove the pursuer's child to the hospital, was not executing the 42nd section of the statute at all. He was, on the contrary, apparently going on a mission of the local authority to invite those parents to hand their child over to him, and accordingly it seems to me that the 118th section does not apply, because this officer was not executing the Act, and what he did was not an irregularity at all. I think therefore that the defence on the statute completely fails.
The defenders, however, attacked the relevancy of the pursuer's averments on the ground that they have not set forth any fault or omission in the measure of care or precaution which was taken by this officer in conducting this child to the hospital. The pursuer was conscious of the weakness of his case on that head. He has now lodged a minute of amendment of the record, and the defenders have at once, and without further parley, admitted that the defect on the record has been cured by this amendment. We are now dealing therefore with a record relevant to support a claim of damages on the ground that, the officer of the local authority having asked that the child should be placed in their hands for removal to the hospital, they failed to take due and reasonable precautions for its safety during transit, and during its stay in the hospital. The first question is, are we to allow this amendment? and that we must answer in the affirmative, for we have the admission of the defenders that it renders the record relevant. The next question is, on what terms? and this gives rise to a somewhat peculiar point in procedure, for the Sheriff-Substitute, appreciating the defect which now, after two appeals, has been cured, took the very sensible course of allowing “the pursuer to lodge within six days after intimation, if so advised, a minute specifying what amendment, if any, he proposes to make on his condescendence.” But the defenders met this by at once appealing to the Sheriff, and unfortunately the Sheriff recalled the interlocutor allowing the amendment. Then an appeal is taken by the pursuer to the Court of Session, and it is only now and here that we have got the amendment. Now, if the pursuer had been obdurate in his adherence to an irrelevant record, we should of course only have allowed him to amend on serious terms, but this unfortunate history of procedure in the Sheriff Court removes the case from that position, and I think that, as we have to determine the question now, we should allow the amendment to be made without any pecuniary condition. Accordingly, I propose that we should open up the record, allow the proposed amendment to be added, of new close the record, and allow the pursuer to lodge such issues as he may be advised for the trial of the cause.
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But, while power is given for the general good to remove a person suffering from fever or other infectious disease, the authors of this statute recognise that the interest of the individual is also to be considered; they contemplate that the person lying ill of fever may he in such a condition that he cannot be removed to an hospital without injury to his health or to the prospects of his recovery, and accordingly it is provided that this shall only be done upon a medical certificate and with the approval of a magistrate. Now, I am very far from saying that it is contrary to the spirit of the Act that the magistrates should receive patients who voluntarily offer themselves, or whose parents are willing to bring them to the hospital, their motive no doubt being that the child would be better cared for than it could be in its own home. But this is not a case of the parent volunteering to send his child. The father was apparently very unwilling that his child should be removed, and he had some reason for that, as he says, because of the caution given to him by his medical attendant. Now, I must say that, while I appreciate the reasons that led the Magistrates and Council of Aberdeen to wish to dispense where possible with what is merely formal and ceremonial in the statutory requirements, yet, if they send their officers to remove sick children to hospital, it is their duty to see that the requirements of the statute intended to safeguard the health of the patient, and the natural feelings of the parent should be attended to. It is said that the child was not seen by any medical officer before being removed; the question of whether it was fit to be removed was left to the local officer or inspector, who was not a person of medical skill, or a proper person to judge of the state of the patient.
I agree with your Lordship that the case is a relevant case for trial, and I also agree that it is unfortunate that under the circumstances the pursuer had not the opportunity which the Sheriff-Substitute desired, of making an amendment on this record in the Sheriff Court.
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The Court allowed the proposed amendment, and appointed the pursuer to lodge issues.
The following issue was afterwards approved for trial of the cause:—“Whether on or about the 28th day of October 1893, the defenders, or those for whom they are responsible, having undertaken to convey Elizabeth Thomson Sutherland, daughter of the pursuer, from pursuer's house at Chapel Street, aforesaid, to the City Hospital, wrongfully failed to take due and proper precaution for her safety, and to afford proper medical treatment to her in said hospital, in consequence of which or part thereof she died, to the loss, injury, and damage of the pursuer.”
Counsel for the Pursuer— Watt— A. M. Anderson. Agent— R. J. Gibson, S.S.C.
Counsel for the Defenders— Lord Adv. Balfour, Q.C.— W. Brown. Agents— T. J. Gordon & Falconer, W.S.
