Nestor, Linnane Board of Health

• Jurisdiction: Ireland
• Judgment Date: 16 November 1943
• Date: 16 November 1943
• Court: Supreme Court

Supreme Court.

Morgan v. Galway Board of Health

SAL MORGAN, an Infant suing by her father and next friend

Plaintiff

and

THE COUNTY GALWAY BOARD OF HEALTH, Defendants (1)

Negligence - Board of Health - Management of County Hospital - Statutory Regulations. - Admission of patients other than poor persons to Hospital on payment of a small sum weekly - Whether Regulations constituted a contract by the Board to nurse patients admitted to Hospital - Injury to paying patient - Negligence of nurse in performance of her professional duties - Liability of Board of Health - Local Government (Temporary Provisions) Act, 1923 (No. 9 of 1923), ss. 1, 2, 5, Sch. I - Galway Central Hospital (Paying Patients) Regulations, 1928 - Galway County Scheme Order, 1923.

Case Stated by Maguire P. pursuant to s. 38, sub-s. 3, of the Courts of Justice Act, 1936, for the determination of a question of law arising on an appeal from the Circuit Court to the High Court. The Case Stated was as follows:—

"This is a Case Stated by me under s. 38, sub-s. 3, of the Courts of Justice Act, 1936 (No. 48 of 1936). It is stated at the request of the defendants.

It will be seen from the pleadings, which I incorporate in this Case Stated, that the plaintiff by her Civil Bill claims £300 for personal injuries sustained by her owing to the negligence of the defendants.

The Circuit Court Judge found that the defendants had been negligent and gave a decree for £40, and £20 13s. 0d. costs and expenses; against this decree an appeal was taken by the defendants.

The facts proved or admitted before me are as follows:—

(1) The defendant Board are a body incorporated under Art. 3 of the Galway County Scheme Order, 1923, made under the provisions of the Local Government (Temporary Provisions) Act, 1923 (No. 9 of 1923).

(2) Art. 15 (i) (b) of the said Scheme requires the defendant Board to provide and maintain for the reception and maintenance of persons eligible for relief a County Hospital at Galway for the treatment of, inter alia, medical and surgical cases.

(3) Art. 15 (iv) of the said Scheme provides that the Board of Health may admit persons in the county, who are not eligible for relief, to any institution provided and maintained under this Article, subject to such regulations and conditions as to payment by, and accommodation for, such persons or otherwise as may be approved by the Minister.

(4) Regulations referred to as the "Galway Central Hospital (Paying Patients) Regulations, 1928," under Art. 15 (4) were approved by the Minister for Local Government and Public-Health on the 21st November, 1928.

(5) The plaintiff was admitted as a patient in accordance with the last mentioned regulations to the Central Hospital, Galway, on the 22nd day of July, 1940. She was suffering from acute appendicitis and was operated on by Neil McDermott, M.D., F.R.C.S., M.Ch., the same day.

(6) No fees were charged by Mr. McDermott. The plaintiff's father has paid, or is under an obligation to pay, the sum of £5 2s. 0d. for the care and maintenance of the plaintiff in the hospital.

(7) The plaintiff has suffered personal injuries owing to the negligence of Nurse Flaherty, a member of the staff of the Central Hospital, while in attendance in the course of her duties on the plaintiff.

(8) The said Nurse Flaherty was a member of a staff of competent, trained nurses duly appointed by the defendants with the sanction of the Minister for Local Government.

(9) The defendants had taken all necessary steps to secure the services of a competent nursing and medical staff for the hospital.

(10) The sum awarded by the Circuit Court for damages was adequate and proper.

The question for the determination of the Supreme Court is whether the defendants are liable in damages to the plaintiff for the negligence of a member of the nursing staff in the course of her duties."

The Supreme Court referred the Case to the President of the High Court for a finding as to whether the duties referred to in paragraph 7 of the Case Stated were professional or administrative duties. The President reported that the duties were professional duties.

A memorandum from the Chief Justice was submitted to the President of the High Court to ascertain the terms of the contract under which the plaintiff was admitted to the Galway Central Hospital.

The answer of the President of the High Court to this memorandum was as follows:—

"I beg to report in answer to the memorandum from the Chief Justice that at the hearing of the above case before me no evidence was given which tended to establish any liability on the part of the defendants towards the plaintiff other than that arising under the Regulations.

I did not intend by the words used in paragraph 6 of the Case Stated to convey that I found that there was a special contract. My finding relates only to the liability arising under the Regulations. Apart from this there was no special contract."

The relevant provisions of the Galway County Scheme, 1923, and of the Galway Central Hospital (Paying Patients) Regulations, 1928, are fully set out in the judgment of the Chief Justice post.

Under the "Galway County Scheme Order, 1923," made by the Minister for Local Government pursuant to the provisions of the Local government (Temporary Provisions) Act, 1923, the Galway County Board of Health was established, entrusted with the administration of the relief of the poor in County Galway. The said Board provided a County Hospital at Galway (the Galway Central Hospital) for the necessitious poor, as directed by the said Order. The Board were authorised to admit persons other than poor persons to the hospital on payment of a small sum weekly, subject to Regulations approved by the said Minister. These Regulations were known as the Galway Central Hospital (Paying Patients) Regulations, 1928.

The plaintiff was admitted as a paying patient to the hospital under the said Regulations. While in the hospital she was injured through the negligence of a nurse while performing her professional duties. She sued the Board of Health for damages in the Circuit Court, and obtained a decree for £40 damages. The Board of Health appealed, and the High Court Judge on Circuit, who heard the appeal, stated a Case for the Supreme Court as to whether the hospital was liable in damages to the plaintiff.

Held by the Supreme Court (Sullivan C.J., Murnaghan and O'Byrne JJ., Geoghegan J. dissenting) that the relationship between the plaintiff and the Board of Health was contractual, Mulrennan v. Offaly Board of Health,[1930] I. R. 345, followed; that the extent of the obligation undertaken by the Board of Health was to be ascertained from the contract, which in this case was contained in the Regulations; that under those Regulations the Board of Health undertook the obligation of nursing the plaintiff, and as the plaintiff had been injured by the negligence of a person to whom the nursing was committed by the Board of Health they were liable for such negligence.

Gold v. Essex County Council, [1942] 2 K. B. 293, applied.

Cur. adv. vult.

Sullivan C.J.:—

The plaintiff in this case, while a paying patient in the Galway Central Hospital, sustained personal injuries caused by the negligence of a member of the nursing staff of the Hospital in the performance of her duties.

In respect of those injuries she recovered in the Galway Circuit Court a decree against the Galway Board of Health for £40 damages and costs.

On appeal to the High Court on Circuit the learned President of the High Court stated a Case for the opinion of this Court, asking this Court to determine whether the defendants, the Galway Board of Health, are liable in damages to the plaintiff for the negligence of a member of the nursing staff in the course of her professional duties.

By virtue of the Local Government (Temporary Provisions) Act, 1923, ss. 1 and 2, the relief of the poor in County Galway was administered under and in accordance with a Scheme set forth in the 1st Schedule to that Act and entitled the "Galway County Scheme." Sect. 5 of the Act empowered the Minister for Local Government by Order made under that section to amend or modify that Scheme in any way he might deem necessary.

In exercise of the power so conferred, the Minister made

an Order entitled the "Galway County Scheme Order, 1923" amending and modifying the Galway County Scheme, and substituting for the provisions thereof the provisions set forth in the Schedule to that Order. By these provisions the Galway County Board of Health was established, entrusted with the administration of the relief of the poor in the County Galway, and made a body corporate.

Art. 15, cl. 1, of the Scheme directs that the Board of Health shall provide a County Hospital at Galway for the treatment of medical, surgical, and maternity cases and cases of infectious and contagious diseases; and cl. 4 of the same Article provides that the Board of Health may admit persons in the County, who are not eligible for relief, to any institution provided and maintained under this Article, subject to such regulations and conditions as to payment by, and accommodation for, such persons, or otherwise, as may be approved by the Minister.

Regulations for the admission of such persons to the Galway Central Hospital—entitled "Galway Central Hospital (Paying Patients) Regulations"—were duly made, and these were approved of by the Minister for Local Government and Public Health on the 21st November, 1928.

Regulation 3 provides that six small wards shall be set aside and reserved (subject to the Regulations) for the reception, maintenance and treatment therein of persons in the County not eligible for relief, provided always that the reservation of such accommodation shall be without prejudice to the powers of the Committee (the County Galway Hospital and Dispensaries Committee) to utilise the wards for the reception, maintenance and treatment therein of...