Scottish Court of Session Decisions

Andrew Duncan, 148 Glasgow Road, Greenfield by Hamilton, tutor and administrator-in-law for his pupil child John Duncan, and as such tutor and administrator-in-law on his behalf, brought an action in the Sheriff Court at Hamilton on 4th February 1902 against the Magistrates and Town Council of the Burgh of Hamilton, being the local authority thereof constituted and acting under the Public Health (Scotland) Acts. The pursuer craved decree for £250 damages in respect of injuries suffered by his said pupil child.

On 2nd April 1901 the said pupil child, John Duncan, had taken ill with scarlet fever, and on the 23rd of that month had been removed to the Burgh Fever Hospital, over which, as local authority, the Magistrates and Town Council had complete charge. On the following day he had been seriously injured by upsetting over himself a bottle of acid which had been temporarily placed where he got access to it by a servant engaged in cleaning out the ward. On 14th July 1901 the child was discharged from the hospital but continued to be treated as an out-patient for some time longer.

The defenders pleaded, inter alia—(2) The pursuer is barred by mora.

On 17th March 1902 the Sheriff-Substitute at Hamilton ( Davidson) issued this interlocutor:—“Finds that this is an action arising on account of an alleged wrong done in a proceeding under the Act (60 and 61 Vict. cap. 38); that, by section 166 of the the said Act such action shall be commenced within two months after the cause of action shall have arisen; that a longer space of time elapsed between the arising of the cause of action and the raising of this action: Therefore sustains the defenders' plea of mora: Dismisses the action: Finds the pursuer liable in expenses.”

Note.—“The care of the child in question is admitted to have been a proceeding under the 54th section of the Act of 1897, and the argument of the pursuer is that the word ‘person’ in section 166 does not include the Local Authority itself. I cannot take that view. The Local Authority is a legal persona or person, and as actions such as this are almost certain to be laid against them and not against their officers or servants, I think it is clear that the phrase is intended to apply to them.”

The pursuer appealed to the Sheriff ( Berry), who on 18th July 1902 issued this interlocutor:—“Having heard parties' procurators, adheres to the judgment appealed against.”

Note.—“Having regard to the provisions of the Interpretation Act 1889, the pursuer does not now contend that under the word ‘person’ the Corporation of the Burgh of Hamilton is not included.

“The action falls within the rule of sec. 166 of the Public Health Act 1897 regarding the time within which certain actions must be brought. The ground on which the defenders are sued is not, as was argued, a defect in the furnishing of the hospital, but fault on the part of a servant in their employment engaged in the work of the institution.

The action being of that character was not brought till after the statutory time had expired. The child met with the accident on 3rd April 1901, and was discharged from the hospital on 14th July. Even if we were to accept the latter date as that from which the period of two months had to be calculated, on the ground that the pursuer did not know what had happened till then, the action was too late, not having been brought till 4th February 1902.”

The pursuer appealed, and argued—Section 166 of the Public Health Act 1897 did not apply. That section was intended to provide for a different class of Acts, viz., the irregularities of officers using the machinery of the Act irregularly— Sutherland v. Magistrates of Aberdeen, November 24, 1894, 22 R. 95, 32 S.L.R. 81; Mitchell v. Magistrates of Aberdeen, January 25, 1893, 20 R. 553, 30 S.L.R. 351. It did not cover the gross and culpable negligence of a domestic servant. A domestic servant was not an officer within the meaning of the section.

Argued for the defenders—Section 166 of the Public Health Act was applicable. It was extremely wide in its terms, and there was no reason to exclude the acts of a domestic servant from its range. If the servant was protected it was impossible to believe that the Board itself was not also protected.

The defenders also maintained alternatively that the action was barred by the Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61).