Goodisson v Byrne

• Jurisdiction: Ireland
• Judgment Date: 31 March 1938
• Date: 31 March 1938
• Court: Supreme Court

Supreme Court.

Goodisson v. Byrne.

PATRICK GOODISSON, an infant, by James Goodisson his father and next Friend

Plaintiff

and

MARY BYRNE

Defendant.

Public authorities protection - Action for negligence against Medical Officer of Board of Health - Medical treatment in County Hospital - Whether act done in pursuance, or execution, or intended execution of any public duty or authority - Whether the duty must be due to the public generally and not to a limited class - Whether the protection extends to acts done in the mistaken belief that they were done in execution of public duty - Duty not imposed directly by statute but by statutory order - Whether acts done by person to whom the performance of a public duty has been lawfully delegated are protected - Limitation of time for bringing action - Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61) - Local Government (Temporary Provisions) Act, 1923 (No. 9 of 1923) - County Scheme - Duties of Medical Officer thereunder - Poor Relief Acts.

Witness Action.

The facts have been summarised in the headnote and are set out in the judgment of O'Byrne J. The defence of the Public Authorities Protection Act, 1893, was reserved for argument at the conclusion of the evidence, the jury having found for the plaintiff and assessed damages at £400.

From this judgment the plaintiff appealed to the Supreme Court (1), the arguments being similar to those in the High Court reported ante.

The plaintiff sued the defendant for negligence in treating him for a broken arm in the County Hospital at Wexford. This institution was established by the County Wexford Board of Health under a Scheme for the County of Wexford, formulated on the 28th June, 1923, by the Minister for Local Government under the provisions of sect. 5 of the Local Government (Temporary Provisions) Act, 1923. The defendant, who was appointed House Surgeon in February, 1934, continued to act with the approval of the said Minister until April, 1935, and then the Board decided to invite applications for the position. On the 29th April, 1935, the defendant, who was one of several applicants, was again appointed by the Board, but, by letter, dated 25th May, 1935, the Minister refused to sanction the appointment on the ground that the continued employment of the same House Surgeon was contrary to practice. After some further correspondence the Board appointed another person to the post to take up duty on the 1st August, 1935, the defendant being retained for the intervening period. On the 29th June, 1935, the plaintiff, who was brought to the County Hospital suffering from a broken arm, was treated by the defendant, who also treated him on several subsequent occasions during the month of July, 1935. The duties of House Surgeon, as set out in a Memorandum furnished by the Board of Health to the defendant, did not include the treatment of cases such as that of the plaintiff except in an emergency, but it was doubtful if the Memorandum was intended to be a comprehensive statement of such duties, and the defendant honestly believed that it was her duty to treat the plaintiff.

The action not having been commenced within six months after the negligence complained of, the defendant relied upon the provisions of the Public Authorities Protection Act, 1893.

Held by the Supreme Court (affirming O'Byrne J.) that the defendant was acting in the execution of a public duty and that the alleged neglect or default, if any, with which she was charged, was committed in the execution of such public duty. Accordingly the plaintiff's claim was barred by the Public Authorities Protection Act, 1893.

Per FitzGibbon J. (delivering the unanimous judgment of the Supreme Court):

1. In the interpretation of the statute the expression "persons acting in the execution of statutory and other public duties" includes not only Departments of State and local bodies who owe duties to any individual who happens for the moment to be within their territorial jurisdiction but also those bodies who administer moneys provided by the State or by local rates or taxes for the general benefit of the particular community whose interests are committed to their charge.

2. Any "person" to whom a public authority or the performance of a public duty has been lawfully delegated is entitled to the protection of the Act, if the delegation be that of a master to a servant or of a principal to an agent. The words of the Act apply in terms not only to bodies corporated but also to "persons" identifiable with them.

Dictum of Lord Buckmaster in Bradford Corporation v. Myers, [1916] 1 A. C. 242, at p. 247, considered and explained.

Corrigan v. Biddulph, [1938] I. R. 610, followed.

Cur. adv. vult.

O'Byrne J.:—

This action is brought to recover damages for negligence alleged by the plaintiff, and found by the jury, against the defendant in the treatment of the plaintiff in the County Hospital at Wexford, an institution established and maintained by the County Wexford Board of Health.

The history of the County Board of Health is part of the recent political and legal history of this country, and it is only necessary for me to refer to it in brief outline. Prior to the Treaty of the 6th December, 1921, County Boards of Health had been set up throughout the country and they carried on their functions under the Department of Local Government established by Dáil Éireann éireann. On the 28th March, 1923, the Local Government (Temporary Provisions) Act, 1923, was passed, and it was thereby enacted (sect. 2) that, from and after the passing of the Act, the relief of the poor, in a county to which a then existing County Scheme related, should be administered under and in accordance with such existing County Scheme, and the law for the relief of the poor in each county was altered or modified to such extent as should be necessary to give full force and effect to the existing County Scheme, The various County Schemes were set out in a Schedule to the Act, including the Scheme for the County of Wexford. By this Act the Minister for Local Government was given power to confirm Schemes (sect. 4) and to amend or modify any County Scheme after it had come into operation (sect. 5). Sect. 7 enacted that a County Scheme might provide for the abolition of certain bodies, theretofore entrusted with the relief of the poor, and for the transfer of their functions.

On the 28th day of June, 1923, a new Scheme for the County of Wexford was formulated by the Minister for Local Government under the provisions of sect. 5 of the said Act. The Scheme so formulated is still in force. By the said Scheme it is provided in clause 15 that:—"the Board of Health shall provide and maintain for the reception and maintenance of persons in the county, eligible for relief, . . (b) a County Hospital at Wexford for the treatment of medical, surgical and maternity cases."The term "persons eligible for relief" is defined in clause 1, and may be stated shortly to mean a poor person who is unable to provide necessary medical or surgical treatment for himself or his dependants. By clause 12, the former Boards of Guardians of the poor in the county were abolished and their powers and duties in relation to the relief of the poor in the county were transferred to the County Board of Health. Clause 16 provides for the treatment of persons eligible for relief in a hospital under the control of the Board of Health.

Sect. 10, sub-sect. 2, of the Local Government Act, 1925, provided for the transfer to the County Board of Health of the powers and duties of the County Council or Sanitary Authority.

For some years the County Hospital at Wexford was carried on under the guidance and control of the County Surgeon and a Visiting Physician and they were the only medical officers attached to the said hospital. In the year 1930 the Minister for Local Government and Public Health communicated with the Board of Health pointing out the advisability of appointing a House Surgeon for the said hospital. Nothing definite was done until the year 1933, when a House Surgeon was appointed by the Board with the approval of the Minister. A vacancy having occurred in this office, the defendant was appointed House Surgeon in February, 1934, and her appointment was continued, with the approval of the Minister, until April, 1935, when the office again became vacant. Advertisements were thereupon issued by the Board of Health for a properly qualified person to act as House Surgeon, and applications were received by the Board from seven properly qualified persons, including the defendant. The applications were considered at a meeting of the Board on the 29th April, 1935, the defendant was again appointed to fill the vacancy, and the Board communicated with the Minister with a view to obtaining his sanction to the appointment. In reply to this request a letter, dated the 25th May, 1935, was received by the Board of Health from the Secretary to the Department of Local Government and Public Health stating that the continued employment of a House Surgeon was contrary to practice, that the Minister was not prepared to approve of the further re-employment of the defendant as House Surgeon and requesting the Board to make other arrangements for the discharge of the duties of House Surgeon. After some further correspondence, the Board, in obedience to the request of the Minister, appointed another person as House Surgeon, and it was arranged that the person so appointed should take up duty on the 1st August, 1935. In the meantime the defendant continued to act as House Surgeon until her successor took up duty on the 1st August and her salary was paid until such date.

The plaintiff was brought to the County Hospital for treatment on the 29th June, 1935. He was attended to and treated by the defendant on that occasion and on several subsequent occasions during the month of July, 1935. After the month of July the defendant did...