Byrne, Appellant; Rogers, Respondent

• Jurisdiction: Ireland
• Judgment Date: 30 January 1910
• Date: 30 January 1910
• Court: King's Bench Division (Ireland)

Byrne

Appellant

and

Rogers

Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1910.

Dentist — Unregistered person — Description implying specially qualified to practise dentistry — Dentists Act, 1878 (41 42 Vict. c. 33), s. 3.

The Dentists Act, 1878, provides that a person shall not be entitled to take or use any name, title, addition, or description implying that he is a person “specially qualified to practise dentistry,” unless he is registered under the Act.

Held, that the words “specially qualified” refer to a qualification in the nature of a degree, diploma, &c., and do not include the case of a description implying mere personal skill or accomplishment.

Barnes v. Brown, [1909] 1 K. B. 38, not followed.

Two Cases stated under 20 & 21 vict. c. 43, by Mr. Mahony, a Divisional Justice of the Dublin Metropolitan Police District.

the facts as appearing from the first case were as follows:—

The respondent, the Hon. Secretary of the Irish Branch of the British Dental Association, was complainant in a summons issued against the appellant as defendant. The summons charged that the defendant did, on the 2nd April, 1909, not being then registered under the Dentists Act, 1878, and not being then a legally qualified medical practitioner, unlawfully take or use a certain title, addition, or description, namely:— “Consult Mr. Byrne, ‘the world's expert adapter of teeth'; he tenders you original advice on the treatment acquired through his vast experience of twenty-five years abroad; decayed teeth infallibly treated by nature's own remedy; shattered health restored; all patrons delighted; consultations free; hours 9 till 7. Metropolitan address: 36 Talbot Street. N.B.—Letter appointments specially attended to.” And also: “Are you wanting artificial teeth or a mis-fittting case re-made? Then come to me. I guarantee my work for life. Instalments taken. Fittings with gold or any of the 15 amalgams, all one fee, 2s. 6d. Extractions (by my great secret method) without gas, cocaine, or other drugs, one fee only,

1s. Mr. Byrne, 36 Talbot Street”—implying that said defendant was a person specially qualified to practise dentistry, contrary to the form of the statute in such case made and provided.

The charge was heard before Mr. Mahony. Evidence was given of the publication by the defendant in the Dublin Evening Mail of an advertisement in the terms set out in the summons. A Mr. Giltrap deposed as follows:— “I remember the 25th April last. I went to the defendant's premises, 36 Talbot Street. Outside his premises is a glass case bearing printed words, and on his street door are other printed words. They read: Mr. Byrne, the world's expert adapter of teeth. Extraction 1s., by my own special system. Painless and bloodless. Attendance 9 till 7.’ I went upstairs, where there was a young lady waiting. I was shown into Mr. Byrne's consulting-room, which contained the usual appliances of a dentist I asked defendant if he was Mr. Byrne, ‘the dentist.’ He said he was, and asked what he could do for me. I got him to examine my mouth and came away. I see the man in Court who stated he was Mr. Byrne, the dentist.”

Mr. Mahony found as a fact that the defendant was not registered under the Dentists Act, nor was he a legally qualified medical practitioner. He also found that the defendant had inserted the said advertisement, and that he operated, and held himself out as a person specially qualified to practise dentistry, and convicted him and fined him £5 and £1 10s. costs; but on his application stated the present case, requiring the judgment of the Court as to whether this determination was correct in law.

The second case dealt with a summons in which the description charged to have been used by the defendant was that given above as printed on the glass case and street door. On this summons Mr. Mahony also convicted the defendant, finding as a fact that he purported to operate and practise, and did practise as a person specially qualified to practise dentistry, and that he took and used the title or description “Dentist.”

Alfred Coffey (with him S. L. Brown, K.C.), for the appellant:—

The question is, what is the meaning of the words “specially qualified” in section 3 of the Dentists Act, 1878? We submit that these words must be confined to a description implying that the person is possessed of a qualification which would entitle him to be registered under the Act, and do not cover a case like the present, where nothing more is alleged than competence arising from skill and experience. It may be contended that Barnes v. Brown (1) is opposed to this view, but that case must be taken to be overruled by Bellerby v. Heyworth (2). [He also referred to Emslie v. Paterson (3).]

De Renzy, and Samuels, K.C., for the respondent:—

The meaning of the words “specially qualified” in section 3 of the Act cannot be limited as suggested in the argument for the appellant. These words include a description, such as here, implying that the person has special qualifications arising from skill and practice: Barnes v. Brown (1). That case, as regards the principle so laid down, is not overruled by Bellerby v. Hey-worth (2). All the latter case decides is, that the description prohibited by section 3 is a description of the person, as distinguished from a description of the acts done by the person. The Master of the Bolls said (p. 28) that it was not necessary to express an opinion as to the precise effect to be given to the words “specially qualified” in section 3, as in his view that matter did not arise for decision. Buckley, L.J., said (p. 30) that it was not necessary for the purpose of the case to decide whether persons specially qualified, as mentioned in section 3, must necessarily be persons falling within section 6, and adds, “As at present advised, I think not. Later on he puts as an instance of a case the section might cover— “Suppose a man used words representing that by reason of long experience he did the act exceptionally well, it may be that would be a description of himself as a person who was qualified in a particular way.” In Royal College of Veterinary Surgeons v. Robinson (4), decided under section 17 of the Veterinary Surgeons Act, 1881, a section practically identical in terms with sect. 3 of the Dentists Act, except that it deals with veterinary

surgeons, and not with dentists, the defendant described his premises as a “Veterinary Forge,” and it was held that this amounted to a description that he was specially qualified to practise a branch of Veterinary Surgery, and came within the section. In Royal College of Veterinary Surgeons v. Collinson (1), also decided under the same section of the Veterinary Surgeons Act, 1881, the words “Canine specialist. Dogs and cats treated for all diseases,” were held to constitute a description within the section. In Panhaus v. Brown (2), a decision under the present section, it was held that the title “German Dental Institute” was a description implying that the person was specially qualified. In that case the advertisement, published by the appellant, as to the nature and quality of the work done by him, was of a very similar nature to that in the present case, and Lord Alverstone, C.J., in giving judgment, says that the appellant, in his advertisement, “gives a number of descriptions which, if they applied to an individual, would unquestionably be sufficient to imply that he was a person specially qualified to practise dentistry.” Section 4 of the Dentists Act, 1881, makes it an offence for a person to take or use the designation of any “qualification or certificate” in relation to dentistry which he does not possess. This provision cannot be intended to cover the whole ground already covered by section 3; and section 3 must therefore have a wider operation and include a description not necessarily limited to the designation of a qualification or certificate. Each of these two sections states its own offence, provides its own mode of prosecution, and imposes its own penalty. [They also referred to The King (Rowell) v. Registrar Joint Stock Companies (3); Attorney-General v. Appleton (4).]

Brown, K.C., in reply:—

The Dentists Act, 1878, did not make the practice of dentistry by unregistered persons illegal. The object of the Act, as shown by the preamble, is to provide for the registration of persons “specially qualified” to practise as dentists. The classes of

persons so specially qualified are set out in section 6. The words “specially qualified” must be given in section 3 the same mean-ing as in the preamble; and, accordingly, to bring a person within section 3, the description must be one implying that he is possessed of one or other of the qualifications mentioned in section 6.

Barnes v....