Attorney General (Boswell) v Rathmines and Pembroke Joint Hospital Board

Judgment Date01 February 1904
CourtHigh Court
Docket Number(1902. No. 508.)
Date01 February 1904
Attorney-General (Boswell)
Rathmines & Pembroke Joint Hospital Board



(1902. No. 508.)











Nuisance — Smallpox hospital — Residential district — Injunction.

Action for an injunction to restrain the defendants from erecting a smallpox hospital on lands situated near the village of C., county Dublin, in the urban district of Rathmines. There were 137 houses, with about 753 inhabitants, within a quarter mile, and 422 houses, containing about 2321 inhabitants, and four public institutions, with about 361 residents, within a half mile, of the proposed hospital. There was nothing to show that the defendants were precluded from selecting a site outside their respective districts, if necessary, or that they had attempted to do so. There was conflicting expert evidence as to the suitability of the site selected, and as to the risk of the spread of smallpox from a smallpox hospital, by reason of the possibility of the disease being carried without actual contact through the air for a considerable distance:—

Held, by the Court of Appeal (reversing the decision of the Vice-Chancellor), that an injunction should not be granted.

The plaintiff, Mrs. Annie Boswell, was the owner of twelve houses known as St. Janies'-terrace, of the house and lands known as St. James', and of a large plot of land, as yet unbuilt upon, adjoining the said houses and premises. The poor law valuation was £575. The plaintiff occupied St. James' House herself, and derived a profit rent of £655 per annum out of St. James'-terrace from tenants to whom the terrace was let.

The defendants, who were composed of a joint board, consisting of representatives from the urban districts of Pembroke and Rathmines, had recently purchased the lands and premises known as Vergemount House, Clonskeagh, for the purpose of erecting a smallpox hospital thereon, and had already commenced building the said hospital.

The plaintiff alleged that the site of the proposed hospital was in the centre of a thickly-populated district and in close proximity to the premises belonging to her, and that the hospital, if established on that site, would be a nuisance and a source of great danger of infection to herself and her family, and to the inhabitants of the surrounding district. The plaintiff also alleged that several of her tenants in St. James'-terrace had signified their intention to surrender their tenancies in the event of the hospital being erected upon the said site, and that the value of her property would be seriously diminished.

The defendants alleged that the lands of Vergemount comprised about 26 acres, and were completely isolated; that in consequence of a threatened outbreak of smallpox they had entered into a contract in February, 1902, for the immediate erection of a temporary galvanized iron hospital, with twenty beds, for the reception of any such patients, and that they had also advertised for tenders for the erection of a permanent hospital for infectious diseases, with fifty beds, and that a tender for same had been accepted. The defendants denied that the site of the said hospital was in the centre of a thickly-populated district, but alleged that same was surrounded by fields, and was not in close proximity to the premises of the plaintiff, but was distant therefrom some 213 yards and 146 yards respectively, and they also denied that it would be in close proximity to any other dwelling-houses in the neighbourhood.

The defendants also alleged that the hospital would be under the supervision of a resident medical officer, and that every precaution would be taken to prevent any danger of infection, and that the hospital could not cause any appreciable danger of infection to the plaintiff, her family, or tenants, or to the inhabitants of the surrounding district, and that no more suitable site could be found in their respective districts, and that it was more beneficial to the health of the public that such a hospital should be established, than that no provision should be made to remove from private houses, and isolate, persons suffering from smallpox in said districts. The defendants denied that the value of property in the neighbourhood would be prejudicially affected by the establishment of the hospital.

The plaintiff's claim was for an injunction to restrain the defendants from erecting the proposed hospital and using it as a smallpox hospital.

The evidence was of a voluminous character, and consisted chiefly of the opinions of medical experts, who differed widely as to the suitability of the site for a smallpox hospital, and also as to the danger of infection to the neighbouring population. In the latter connection the theory of “aerial convection” was much discussed. The details of the evidence, so far as material for the report of the proceedings in the Court below, appear sufficiently from the argument of counsel, and the judgment of the Vice-Chancellor. In the Court of Appeal the evidence is exhaustively stated and analysed in the judgments of FitzGibbon and Walker, L.JJ.

O'Connor, K.C., Henry, K.C., and M'Cann, for the plaintiff:—

The present case is distinguishable from similar cases in which an injunction has been refused. In Fleet v. Metropolitan Asylums Board (1) a smallpox camp was erected 685 yards away from plaintiff's shop, and 300 yards away from other houses, and 80 yards away from part of plaintiff's property; only convalescent patients were received; and it was a country district. In The Attorney-General v. Corporation of Manchester (2) the proposed hospital was within 240 yards from two public roads, and 256 yards from the nearest dwelling, and 90 yards from a cemetery. In that case the scientific evidence was defective, and failed to show that the apprehended danger would in fact ensue, and there were only fifteen houses within the half-mile radius. In The Attorney-General v. Guildford Joint Hospital Board (3) the hospital was surrounded by a common, while in Harrop v. Corporation of

Ossett (1) the hospital was 250 yards from the mansion-house, and 100 yards from the privies of a factory. It was surrounded by a wall 6 feet in height, enclosing an open space of 40 feet. None of these cases is at all analogous to the present, where the hospital is in a populous locality. There are 137 houses, containing 753 inhabitants, within a quarter-mile radius, and 422 houses, with 2321 inhabitants, within half a mile, and four institutions of a public character, in which there are about 361 persons residing. Bendelow v. Guardians of Wortley Union (2) is an authority in our favour.

The Solicitor-General, K.C., Matheson, K.C., Blood, K.C., and Brunskill, for the defendants:—

The defendants are not entitled to succeed merely on the grounds of dislike, or for merely sentimental reasons. In the case of a future nuisance there must be strong evidence to show that the apprehended nuisance will, in fact, arise: Attorney-General v. Corporation of Manchester (3). In Fleet v. Metropolitan Asylums Board (4) an injunction was refused, although the hospital was only 80 yards away from the dwelling-houses, and contained 1000 to 1200 patients. In the present cases the interval is very considerable.

The plaintiff's case really rests on the theory of “aerial convection.” That doctrine is precisely in the same position as it was fifteen years ago, and is a matter of pure speculation. In the Fulham case it was sought to establish the theory from the fact that more cases of smallpox occurred in the quarter-mile radius than in the half-mile, and that cases of infection were more numerous on the side of the prevailing winds. But in that case there was no investigation into individual cases, or the first case that arose. As regards the Thames Hospital Ships case, which was also relied on, it was sought to prove the theory from the fact that there was an outbreak of smallpox on the Essex coast, opposite the ships, on which patients were treated, and that there was no contact between the ships and the shore. But the whole of Essex was full of smallpox, 2000 cases having come from

London, and so no definite theory can be based on that case, unless it could be shown whether or not the first cases that occurred on the coast had been carefully investigated and traced. It was said that the disease disappeared when the ships were removed, but that only showed that the disease had died out of London, from which the country was really infected. Dr. Thresh was the only medical man supporting this theory who had anything like practical experience; the others only relied on their reading on the subject. Dr. Hope, of Liverpool, and Dr. Day, of the Cork-street Fever Hospital, stated that, so far as they investigated them, they always found cases that occurred in the vicinity of their respective hospitals to have resulted from contact. Bendelow v. Guardians of Wortley Union (1) is the only reported case where an injunction was granted. The scheme was approved of by the Local Government Board, and the case cannot be affected by the rules and regulations of the English Local Government Board. Every care was taken in the selection of the site, which was the best that could be procured in the districts over which the defendants exercise control.

As regards the question of injury to the neighbouring property, none of the defendants' tenants has served notice, and only two houses out of seventy in the vicinity of the hospital are to let. The defendants have sold for £2400 fourteen out of the twenty-five acres, which they purchased for £3500, which shows the value of adjoining property has not been depreciated.

Henry, K.C., in reply:—

All the plaintiff has to show is a reasonable apprehension of danger. There is no case reported where an injunction was refused in a district like the present, or...

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