Scottish Court of Session Decisions

Duncan M'Coll, a police sergeant, raised an action of damages against Peter Beattie, as inspector of poor of the Barony Parish of Glasgow, concluding for a sum of money as damages and solatium in respect of personal injury. The Woodilee Asylum, near Kirkintilloch, the inmates of which are exclusively pauper-lunatics, belonged to the Parochial Board of the said parish. The pursuer averred—“(Cond. 3) On the forenoon of the 20th day of August 1878, the pursuer, while on the public or servitude road leading from Waterside to Lenzie Station, and in the discharge of his duty as sergeant of police aforesaid, was brutally attacked, assaulted, and maltreated by a dangerous and able-bodied lunatic, an inmate of said asylum, and in the charge and under the control of the said Parochial Board, who was at the time at large and unattended, and whose name the pursuer has been informed is Patrick Meath or Muth.” The pursuer then detailed the method of the attack made upon him, the nature of the injuries which he sustained, and the effects thereof, which he alleged to be permanent upon his physical system and his prospects of livelihood. He then averred—“(Cond. 9) The foresaid injuries and disablement of the pursuer were caused by and through the culpable negligence and gross carelessness of the said Parochial Board, or of those acting for them or for whom they are responsible, who had the charge, keeping, and custody of the foresaid lunatic, in permitting him to be at large and unattended. The pursuer believes and avers that at the time he sustained the foresaid injuries the number of attendants at the said asylum was not sufficient for the proper and necessary care and control of the inmates thereof, and that since the occurrence the number of attendants has been increased, and other necessary precautions adopted to prevent the recurrence of such an outrage.”

The action was originally directed also against William Babtie, as clerk to and representing the Dumbartonshire Commissioners of Supply, and concluded for payment of a certain allowance in terms of the rules and regulations issued by the Secretary of State for the government of the Dumbarton County Police under the Act 20 and 21 Vict. c. 72. The case, however, as against this defender having been dismissed by the Lord Ordinary, was not insisted on by the pursuer in the Inner House.

By the Poor Law Amendment Act 1845 (8 and 9 Vict. cap. 83) it is enacted, section 59—“That in every case in which any poor person who shall have become chargeable in any parish or combination shall be insane or fatuous, the parochial board of such parish or combination shall, within fourteen days from the time when such person is declared or known to be insane or fatuous, provide that such insane or fatuous person be conveyed to and lodged in an asylum or establishment legally authorised to receive lunatic patents.” Section 86 enacts—“That all actions on account of anything done in the execution of this Act shall be brought before the Sheriff Court, and every such action shall be commenced within three calendar months after the fact committed, and notice in writing of such action and of the cause thereof shall be given to the defender one calendar month at least before the commencement of the action.”

The defender pleaded—“(1) The action is incompetent, and excluded under sec. 86 of the Act 8 and 9 Vict. c. 83.”

The date of signeting the summons in the action was 13th June 1881.

The Lord Ordinary (Fraser) dismissed the action, sustaining Beattie's first plea-in-law above quoted.

His Lordship's opinion was as follows—“The ground of action against the Parochial Board is that the Parochial Board were guilty of culpable negligence and gross carelessness in permitting a lunatic to be at large and unattended, whereby he was enabled to commit the assault upon the pursuer from which his health has suffered. Assuming that this was a good ground of action, it is now too late to insist in it, and this by reason of the provision in the 86th section of the Poor Law Amendment Act, which enacts that ‘all actions on account of anything done in the execution of this Act shall be brought before the Sheriff Court, and every such action shall be commenced within three calendar months after the fact committed, and notice in writing of such action and of the cause thereof shall be given to the defender one calendar month at least before the commencement of the action.’ Now, the injury complained of took place on the 20th of August 1878, and the present action, raised in June 1881, is therefore not in time, nor is it brought in the appropriate Court.

“The section of the statute has been made the subject of judicial construction in several cases. It has been determined, on the one hand, that it applies to cases where wrong has been done by a person while acting in the performance of official duties such as might form the foundation of an action for reparation at the instance of the party aggrieved— Mackay v. Chalmers, 5th February 1859 21 D. 443; Knox v. Montgomery, 7th June 1865, 3 Macph. 890—while, on the other hand, it has been held inapplicable to cases on contract arising between an individual and the parochial board as such— Mackay v. Beattie, 19th July 1860 22 D. 1486. The enforcement of contracts may be sought for by action in any Court without restriction as to time, and without the preliminary notice required by the section of the Act. But

Page: 373↓

the present case does not come within that class. It no doubt is distinguishable from all others that have occurred in this, that the damages are sought, not on account of anything done—which is the language of the Act—but on account of something omitted. The Parochial Board are charged with lax administration in not providing for proper control over a dangerous lunatic, whereby one of the lieges suffered injury, and this is not within at least the letter of the statute, which, to be complete, should, along with the words anything done, also have said or omitted to be done, in the execution of the Act.

“In construing the statute the Court have in preceding cases given it a fair and reasonable interpretation. Thus, while it gives protection to acts done in the execution of the Act, this has been held to mean things not done in execution of the Act though professing to be so. The statute assumes that a wrong has been done, which, if excusable, ought to be protected, seeing that things really done in execution of the Act required no protection. Dealing with the Act in this spirit, the Lord Ordinary is of opinion in the present case that an act of omission, such as is here charged against the Parochial Board, must be dealt with in the same way as an act of commission, which is expressly provided for.” ….

The pursuer reclaimed.

At advising—