Scottish Court of Session Decisions

Lord President—This is a case of some importance, but it appears to me to be also very clear. I think the Sheriff-Substitute's judgment is perfectly sound, and the only qualification that I should make upon his statement is, that I am not quite prepared to adopt the view which he suggests in his note, that the stationmaster's authority to employ a medical man in the first instance would hold at common law without a special authority. Upon that I give no opinion. It is not necessary for the decision of this case, because in this case the Railway Company have given express authority to their stationmaster, and not to their stationmaster only, but to their servants generally upon the line, to call in a doctor in case of accident; but they have limited it to this, that they are to be answerable for only one visit. Now, it is made a question of dispute whether in point of fact the medical man who was called at Ayton Station when Manson met with the accident was informed of this rule of the Company? The man himself who was injured, and another person who lodged in the same house with him, both swear that they made the doctor aware of it, and the doctor himself is not very distinct in his denial of what occurred on that occasion. But assuming that he was not made aware of this rule, then he had nothing to go upon except what he considered to be the implied authority of the stationmaster at Ayton to employ him not merely upon the occasion of the accident, and for a single visit, but for seventy-five visits paid thereafter; because it was not contended that the doctor received employment from anybody else except the stationmaster at Ayton. Now, observe what it is that is thus imputed to the stationmaster. It is that he not only sent for this doctor at Ayton, where the accident occurred, and ordered him to attend the injured man there, and to conduct him home to Berwick, at a distance of some eight miles from the place of the accident, but also impliedly thereby authorised him to continue to travel daily by railway from Ayton to Berwick, and to pay seventy-five visits at that distance, charging therefor a very much larger sum than any medical man in Berwick would have been entitled to charge for rendering the same services. It appears to me to be utterly out of the question to suppose that any station-master can have an implied authority to employ a medical man to that extent and for that purpose; and upon that ground I think it quite clear that the Sheriff-Substitute's interlocutor is right, and that the Sheriff-Principal is wrong.

Lord Deas—It is unnecessary here to decide the abstract question, whether a stationmaster may or may not, under certain circumstances, authorise a doctor to attend longer than the first visit, because all the circumstances here make this an a fortiori case against the claim of the doctor. I confess the evidence of the station-master does not impress me with the idea that his recollection is very accurate. There can be no doubt at all that he knew that the doctor was continuing his attendance, and that he allowed him to travel on that footing without a ticket; in short, the whole of his evidence, I think, is more a defence of himself from reflections than an accurate account of what passed. But I do not think that affects the question. I think Dr Montgomery was made aware very early that this man could get a medical attendant without costing him anything, and that, according to the rules of the Railway Company, they would not be responsible for anything but the first visit. This is not the abstract question of the power of the stationmaster, although I am not disposed to indicate any opinion in favour of the authority of a stationmaster in such a case. I have no doubt that the feeling of humanity, and the professional desire to do the best that he could for his patient, influenced Dr Montgomery very much, and it was very natural for him to suppose that, being called in at first, and having advised whether an operation could not be avoided, he was the person best fitted to continue his attendance; and when he claimed the poor man as his patient he had the feeling that it was his duty to attend him. This, probably, was his motive for claiming him as his patient. But I think he carried that a great deal too far, farther than the law will justify him, and farther than he could reasonably do. His motives may have been all very good, but I am clearly of opinion that in all the circumstances his claim against the Company is unfounded. I agree with your Lordship that this is a case of importance. I have read the whole of it carefully, and the more I consider it the more I am of opinion that the Sheriff-Substitute is right and the Sheriff wrong.

Lord Mure—I concur with your Lordship that the stationmaster has no such implied authority in regard to the employment of medical men as has been maintained here, and on that ground I think the Sheriff's judgment is not sound. It was strongly pushed in argument that the exception about one visit should have been made known to Dr Montgomery; but I think the preponderance of the evidence goes to show that after the conversations spoken to he ought to have satisfied himself that he was entitled to go on making his visits.

Lord Shand—I am of the same opinion. The stationmaster, under his ordinary employment as such, was certainly not an agent of the company entitled to employ a doctor to give continuous attendance either to a servant of the company or a passenger. That being so, the only question is, whether he had special authority to do so by virtue of the rules on which, in this view, the pursuer must found in order to establish liability? The rules give no greater authority to a stationmaster than to any other servant of the Company, and it appears that the authority here given is limited to employment, we find, for the first visit. It is said that the concluding part of the rule, “that station agents and others will be held responsible for making the doctor acquainted with this regulation, ’ implies that in the absence of such an intimation to the doctor there is liability for further atendance. But a provision or direction to give an intimation of precaution to prevent any possible misunderstanding cannot be interpreted as extending the power of the agent who fails to give intimation, and I cannot see how the failure to give intimation can infer liability against the Company, who were not bound to give it.