O'Brien v Tipperary Board of Health

• Jurisdiction: Ireland
• Judgment Date: 01 January 1939
• Date: 01 January 1939
• Court: Supreme Court

O'Brien v. Tipperary Board of Health.

MARGARET O'BRIEN

Applicant

and

THE COMMISSIONER FOR TIPPERARY (SOUTH RIDING) BOARD OF HEALTH, Respondent (1)

Supreme Court.

Workmen's Compensation - "Workman" - Midwife for a Dispensary District - Appointed by a Board of Health upon the recommendation of the Local Authorities Appointments Commission - Subject to statutory regulations - Pensionable Officer - Whether under a "contract of service" or "contract for services" - Holder of a statutable office - Medical Charities (Ir.) Act,1851 (14 & 15 Vict. c. 68), sects. 6, 8, 12 - Local Government Board (Ir.) Act, 1872 (35 & 36 Vict. c. 69) - Local Government (Ir.) Act, 1898 (61 & 62 Vict. c. 37), sect. 109 - Midwives (Ir.) Act, 1918 (7 & 8 Geo. 5,c. 59), sect. 16 - Local Government Act, 1925 (No. 5 of 1925), sect. 42 -Local Authorities (Officers and Employees) Act, 1926 (No. 39 of 1926),sect. 1, sub-sect. 1; sects. 2, 5, 11, sub-sect. 1 - Workmen's Compensation Act, 1934 (No. 9 of 1934), sect. 5, sub-sect. 1; sect. 8, sub-sects. 1 and 6,sect. 9 - Dispensary (County Boards of Health) Rules and Regulations,1923, Arts. 13, 21, 22, 29, 31, 36.

A midwife for a Dispensary District, who was appointed by a County Board of Health upon the recommendation of the Local Appointments Commission, and subject to statutory conditions and regulations, was cycling home after attending to a patient in her district when she was involved in a collision and sustained personal injuries as a result of which she was incapacitated. She brought proceedings to recover compensation under the Workmen's Compensation Act, 1934. The Circuit Court Judge dismissed her claim on the ground that she was not a "workman" within the meaning of the Act. She appealed to the Supreme Court.

Held by the Supreme Court (Sullivan C.J., Meredith and Geoghegan JJ.; FitzGibbon J. dissenting) that her appeal must be dismissed.

Per Sullivan C.J. and Geoghegan J.:—Because she was not a servant of the Board of Health, her contract with the Board not being a contract of service, and accordingly she was not a "workman" within the meaning of the Act.

Per Meredith J.:—Because she was the holder of a statutory office to which the Act did not apply.

FitzGibbon J. dissenting, was of opinion that her contract with the Board was a contract of service, and therefore she was entitled to compensation.

Appeal from the Circuit Court.

The applicant, Margaret O'Brien, appealed from an order of the Circuit Court Judge for Tipperary, dated the 27th October, 1936, whereby he dismissed her claim for compensation under the Workmen's Compensation Act, 1934.

The applicant was a midwife for the dispensary district of Killenaule, appointed by the County Board of Health of Tipperary (South Riding), which was represented by the respondent, a Commissioner appointed to administer the affairs of the Board. The ground upon which the application was dismissed was that the applicant was not a"workman" within the meaning of the Act.

The appeal first came before the Supreme Court on the 27th and 28th January, 1937, and, by an order of the

Supreme Court, dated 8th March, 1937, the case was remitted to the Circuit Court Judge for his findings, upon such further evidence as might be offered, upon the following matters:—(1) How the applicant's employment as dispensary midwife was initiated, whether in answer to an advertisement by the County Board of Health or otherwise? (2) (a) Whether such appointment was oral or in writing? (b) What were the terms of the office or contract of employment? And (c) under whose control the applicant was? Pursuant to that order at a further hearing before the Circuit Court Judge the following documentary evidence was adduced:—

1. A statutory request from the Secretary of the Board of Health to the Local Appointments Commission asking the Commission to recommend a person suitable for appointment as midwife for the Dispensary District of Killenaule.

2. A letter of application from the applicant.

3. An Application Form supplied by the Commissioners.

4. A letter from the Department of Local Government to the Secretary of the Board of Health noting the appointment of the applicant, dated 13th March, 1934.

5. A certified copy of an order, dated 24th October, 1881, by the Local Government Board for Ireland directing the appointment of a midwife for the Killenaule district.

6. Extract from the minutes of the Board of Health, dated 27th February, 1934, noting that, on the recommendation of the Local Appointments Commission, Mrs. O'Brien, the applicant, was appointed midwife at the salary of £45 a year.

7. Specimen forms of relief tickets, known as E.2 and E.3, issued on behalf of the Board of Health, and directing the doctor and midwife of the dispensary to visit patients named therein.

8. Copy advertisements in the Irish Independent andIrish Press newspapers, dated 28th September, 1933, announcing the vacancy in the position of midwife.

Further oral evidence was given, and the Circuit Court Judge answered the questions put to him as follows:—

1. The applicant's appointment was initiated by advertisements in newspapers by the Local Appointments Commission.

2. (a) The appointment was in writing.

(b) The terms of appointment were contained in a document called the "Conditions of Appointment."

(c) The applicant was under the general control of the Board of Health and the particular control of the dispensary doctor in cases where he was brought in, and in connection with the keeping of the dispensary register.

The further facts are fully stated in the judgment of Sullivan C.J.

Cur. adv. vult.

Sullivan C.J.:—

This is an appeal by the applicant from an order made by Circuit Judge Sealy on the 27th October, 1936, dismissing the applicant's claim for compensation under the Workmen's Compensation Act, 1934.

The applicant is the midwife for the Dispensary District of Killenaule appointed by the County Board of Health of Tipperary (South Riding), which is now represented by the respondent, the Commissioner appointed to administer the affairs of that Board. On the 1st May, 1936, she had attended a patient in her district, and when cycling to her home she collided with a donkey car and was thrown on the roadway, sustaining personal injuries which incapacitated her for discharging her duties.

On the 12th September, she instituted proceedings to recover compensation under the Workmen's Compensation Act, 1934, in respect of the injuries so sustained by her. The respondent in his answer pleaded (inter alia) that the applicant was not a "workman" within the meaning of the Workmen's Compensation Act, 1934, and that the alleged accident did not arise out of and in the course of her employment.

The learned Circuit Judge dismissed the application on the ground that the applicant was not a "workman"within the meaning of the Act, stating that "on other points in the case I would have been in her favour."

From that decision the applicant has appealed to this Court, the grounds of appeal as stated in the notice of appeal being that the learned Circuit Judge misdirected himself in law in holding (a) that the applicant was not a workman within the meaning of the Workmen's Compensation Act, 1934, and (b) that no contract of service existed between the applicant and respondent.

The appeal was first argued before this Court on the transcript of the evidence that had been given before the Circuit Judge when the application was heard in the month of October, 1936. This Court was of opinion that the case should be remitted to the Circuit Judge to enable

him to hear further evidence, and to state his findings on certain matters which were material for the determination of the appeal. Accordingly, by order, dated 6th March, 1937, the case was remitted to the Circuit Judge for his findings on those matters. The Circuit Judge heard further evidence on the 4th June, 1937, and on the transcript of such evidence and the findings of the Circuit Judge on the matters referred to him the appeal was re-argued.

The Dispensary District of Killenaule was established by an Order of the Commissioners for administering the laws for the relief of the poor in Ireland, dated the 25th March, 1852, and made in exercise of the powers vested in them by the Medical Charities Act, 1851. Sect. 6 of that Act authorises the said Commissioners to make an Order declaring the Dispensary Districts into which each Union shall be divided, and to declare the number and qualifications of the officers to be appointed for the service of each such district. Sect. 8 provides that the Committee of Management shall appoint, subject to the approval of the Commissioners, one or more Medical Officers for each district, with such qualifications as the Commissioners shall determine, and with such salaries as the Guardians, subject to the approval of the Commissioners, shall determine, and empowers the Commissioners to remove such Medical Officer on sufficient grounds and to direct the Committee of Management to appoint another Medical Officer in his stead. Sect. 12 empowers the said Commissioners to frame regulations for the management of Dispensary Districts and for the guidance and control of the officers to be appointed in connection therewith. Such regulations were made by the said Commissioners, dated the 29th November, 1869, and by Art. 17 of those regulations the Committee of Management of each Dispensary District was required to appoint such officers for the service of the Dispensary District as should from time to time be directed by the Commissioners, and on the occurrence of any vacancy to make a new appointment.

The powers vested in the Commissioners by the Medical Charities Act, 1851, were transferred to the Local Government Board for Ireland when that Board was established by the Local Government Board (Ireland) Act, 1872; and by an Order, dated 24th October, 1881, that Board declared that it was expedient...