Hamilton v Clancy

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 19 May 1914
• Court: King's Bench Division (Ireland)
• Date: 19 May 1914

Hamilton

and

Clancy (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.

1914.

Post Office — Telegram — Negligence by sub-postmaster in transmission — Liability for injury resulting from negligence — Duty of sub-postmaster as a public officer.

A sub-postmaster, in transmitting a telegram, acts as a public officer and in the discharge of a public duty, and if he is guilty of negligence in the transmission of the telegram, causing loss to the sender, he is liable to the sender for the loss so sustained.

Rowning v. Goodchild, 2 W. Bl. 906, applied and followed.

Case Stated by Molony, J., under 27 & 28 Vict. c. 99, from the Connaught Spring Assizes, 1914.

The facts stated in the case are set out in the judgments, and may be summarized as follows:—The defendant was a sub-postmaster at Collooney, in the county of Sligo, and, as such, received from the post-office a fixed salary. On the 12th July, 1914, the plaintiff came to the post-office at Collooney, and handed to the defendant for transmission a telegram addressed to one John Long, of Grange, instructing Long to purchase for the plaintiff nine calves at £4 5s. each. The telegram was written on one of the ordinary official forms, upon the back of which the following condition was printed:—

“6. The Postmaster-General will not be liable for any loss or damage which may be incurred or sustained by reason or on

account of any mistake or default in the transmission or delivery of a telegram.”

There was no telegraph line at Collooney, but there was a telephone line between Collooney and Grange which the defendant was authorized to use for the purpose of transmitting telegrams for the public, and the plaintiff's message was transmitted by this means. The message, as received by Long, directed the purchase by him for the plaintiff of nine calves at £5 5s. instead of £4 5s. Long acted upon the message as received by him. The plaintiff sued the defendant for the loss sustained by reason of the purchase by Long at the higher price, alleging that the error in the price was the result of negligence by the defendant in the transmission of the telegraphic message. The county court judge gave the plaintiff a decree for £6 15s. From this decree the plaintiff appealed. At the hearing of the appeal the facts, and the negligence of the defendant, were admitted, and it was submitted by defendant's counsel that upon those facts a question of law arose as to the liability of the defendant for his negligence, and that the case should be treated as a test case as to the liability of deputy-postmasters for negligence in the transmission of telegrams. Accordingly, the question of law was reserved for the court by the stating of the case upon the admitted facts, and the submission of the question whether upon those facts the plaintiff was entitled to an affirmance of the decree of the county court.

Gerald M'Carthy (with him Samuels, K.C., and Powell, K.C.), for the defendant:—

In order to establish negligence there must be a duty moving from the person whose acts are complained of to the person injured. Here there is no contract other than a contract between the Postmaster-General and the plaintiff. The conditions endorsed upon the telegraph form, and Rule 36 of the Treasury Regulations of 10th September, 1898, made in pursuance of the Telegraph Act, 1885 (48 & 49 Vict. c. 58, s. 2), exempt the Postmaster-General from liability for loss arising out of negligence in the transmission of telegrams. The defendant, as the agent of the Postmaster-General, cannot be in a worse position than his principal. [He referred to Playford v. United Kingdom Telegraph Company (1); Dickson v. Reuter's Telegram Company (2); Bainbridge v. Postmaster-General (3); Telegraph Act, 1868, 31 & 32 Vict. c. 110; Telegraph Act, 1885, 48 & 49 Vict. c. 58.]

Leonard and Fetherstonhaugh, K.C., for the plaintiff:—

The cases cited for the defendant are all cases based on contract. Here the plaintiff's case does not rest on contract, but upon the duty of the defendant as a public officer. The Postmaster-General and his subordinate officials are alike public officers. A public officer owes a duty to the public to use reasonable care in the performance of the duties of his office, and any individual member of the public who has sustained damage by the neglect of such duties has an action against such public officer. That is the true view of the defendant's position in law, and that view is supported by abundance of authority. The text-books lay down the proposition that such a public officer is liable and can be sued for negligence by him which results in injury: Lord Halsbury, Laws of England, vol. xxiii, p. 316, par. 659; Addison on Torts (1906), pp. 18 and 19; Clark and Lindsell on Torts (1912), p. 33; Bowstead on Agency (1912), Article 133, p. 441; Evans, Principal and Agent (1888), pp. 393, 394; Story on Agency (1869), Article 319 (b), p. 396; and that proposition is confirmed and concluded by the authority of Lane v. Cotton (4); Whitfield v. Lord Le Despencer (5); Rowning v. Goodchild (6); Barnes v. Foley (7); Schinotti v. Bumsted (8); Bainbridge v. Postmaster-General (3); Barry v. Arnaud (9). The defendant is clearly a public officer as defined by Best, C.J., in Henly v. Mayor of Lyme (10); and is liable for negligence in the discharge of his duties: Ferguson v. Kinnoull (11).

A. W. Samuels, K.C., in reply:—

The defendant was deputy of the Postmaster-General (see Post Office Act, 1908, sect. 42), and could only receive telegrams for dispatch upon the terms of the post-office statutory regulations, which have the effect of an Act of Parliament. These regulations provide that the Postmaster-General shall be absolved from all liability for mistakes. There was a contract between the sender and the Postmaster-General to send the telegram on these conditions, and as the principal cannot be made liable for the mistake, so the deputy acting in dispatch of the telegram cannot, in the absence of wilful misfeasance, he made liable. This is an attempt to make the employee of the Crown warrant the correctness of a telegram which the contract with the Crown provides is not so warranted. As against the Postmaster-General himself, if he actually sent the telegram, the stipulation is that no action would lie, and the sender cannot acquire an additional right outside the contract because the deputy, and not the principal, acts. The condition as to repetition of the telegram if the sender requires to guard against errors in transmission shows that the sender is warned that mistakes may occur on the part of the employees, and negatives the idea that the employees, in absence of misfeasance, can be sued for mistakes. The contract was between the Crown and the sender, and the employee of the Crown cannot be sued for an injury arising out of the contract: Winterbottom v. Wright (1). No duty giving ground for an action exists between the sender and the post-office employee. There is no statutory duty imposed on the employee for breach of which he could be sued. The statutory duties imposed by the Telegraph Act, 1863, sect. 45, and Post Office Act, 1908, sects. 50 to 57, relate to wilful misfeasance, and criminal offences in transmission of telegrams. For breach of these duties a civil action would lie by a person injured; but there is no such misconduct alleged here. It is a mere innocent mistake. There is no statutory duty imposed not to make a mistake. The only duty imposed on the post-office servant is to perform faithfully his services as an employee of the Crown in accordance with the regulations of the post-office service

under the directions of the Postmaster-General. Further, there is no such duty imposed by common law on the employee as would make him liable in an action for a mistake arising through negligence in forwarding the message. “The general rule of law is clear, that no action is maintainable for a mere statement, although untrue, and although acted upon to the damage of the person to whom it is made, unless that statement is false to the knowledge of the person making it”: Bramwell, L.J., in Dickson v. Reuter's Telegram Co. (1). Before the acquisition by the Crown of the telegraph service, an employee of the telegraph companies could not have been sued in an action such as the present. The contract would have been between the company and the sender, and no duty would have arisen as between the employee and the sender: Earl v. Lubbock (2); Le Lievre v. Gould (3). The transfer of the telegraph system to the Crown by the Acts of 1868 and 1869 did not impose on the employees taken over under s. 8, sub-s. 7, of the Telegraph Act of 1868, any greater liability to the public than they previously bore. It would be strange if they were, as employees of the companies, free from liability for a mistake in 1867, and became in 1869 liable because they became servants of the Crown. The position of the companies is shown by MacAndrew'sCase (4); Playford'sCase (5), and Dickson'sCase (6). Their liability was wholly in contract, and only existed as between the sender and the company. The receiver of the telegram had no right of action against the company for mistake or negligence in dispatch or delivery of the message. If the company were liable in tort, as apart from contract, the recipient could have sued. The companies were mere messengers: they were not bound to warrant the correctness of the telegram; and no action lies at common law for a mere negligent misrepresentation— “no erroneous statement is actionable unless it is intentionally false”: Dickson v. Reuter's Telegram Co. (7), per Brett, M.R. The plaintiff's contention here is that the post-office civil servants became, through their taking employment under the Crown, liable to be sued in tort for mistakes for which the...