Scottish Court of Session Decisions

The Public Health (Scotland) Act 1897 (60 and 61 Vict. cap. 38), enacts:—Section 43—“Any … veterinary surgeon approved for the purposes of this section by the local authority may … inspect and examine ( a) any animal alive or dead intended for the food of man which is exposed for sale …; and if any such animal … appears to such … veterinary surgeon to be diseased, or unsound, or unfit for the food of man, he may seize and carry away the same … in order to have the same dealt with summarily by a Sheriff.” Sections 164 and 166 are quoted supra in first rubric.

The Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61), sections 1 and 3, are quoted in the second rubric supra.

The Corporation of the City of Glasgow as the Local Authority acting under the Public Health (Scotland) Act 1897, complainers, brought a suspension and interdict against the Smithfield and Argentine Meat Company, Limited, respondents.

The following narrative is taken from the opinion of Lord Salvesen—“This action is brought to restrain the respondents from following forth an application for the appointment of a sole arbiter to ascertain the claim of compensation to be paid to them by the complainers under section 164 of the Public Health (Scotland) Act 1897. The main pleas on which the action is founded are that the proposed proceedings are excluded by section 166 of the Public Health Act, or alternatively by the provisions of the Public Authorities Protection Act of 1893.

“The facts out of which the claim arises are very simple. On 24th and 25th December, Mr William Trotter, the veterinary surgeon appointed by the complainers and approved by them for the purpose of section 43 of the Public Health Act, seized a quantity of beef in the Meat Market of Glasgow under the powers of that section as being unsound and unfit for the food of man. The meat remained in a detention chamber until 30th December, when it was placed in a cold store. On 31st December a complaint was served at the complainers' instance on Duncan Perritt & Son, in whose premises it had been

Page: 289↓

exposed for sale and who are the agents of the respondents, the owners of the beef. This complaint was tried on 1st February and subsequent days before the Sheriff-Substitute, who on 4th March 1909 found the charge “not proven,” and awarded Duncan Perritt & Son fifty guineas of expenses. On 5th March Messrs Perritt's law agents wrote claiming compensation in terms of section 164 of the Public Health Act, and calling on the Corporation to concur in appointing a sole arbiter. On behalf of the respondents an intimation was made in similar terms to the Town Clerk. The complainers refused to recognise the claim, and thereafter on 10th June 1910 Messrs Russell & Duncan, on behalf of the respondents, wrote to the secretary of the Local Government Board for Scotland asking the Board to appoint a sole arbiter to ascertain the compensation to be paid to the respondents. The present action was then brought to stop these proceedings.”

The complainers pleaded, inter alia—“(1) The proceedings complained of being incompetent and excluded by section 166 of the said Public Health Act, suspension and interdict should be granted as craved. (2) In any event, the proceedings complained of are barred by the provisions of the Act 56 and 57 Vict. cap. 61. (3) The alleged claim of the respondents the Smithfield and Argentine Meat Company, Limited, not being a claim for compensation within the meaning of section 164 of the said Public Health Act, under which it bears to be made, suspension and interdict should be granted as craved.”

The respondents, whose claim was for the value of the beef, averred that the beef was quite sound when exposed for sale, but was rendered worthless by the seizure and detention and the treatment it received, and pleaded, inter alia—“(3) The respondents the Smithfield and Argentine Meat Company, Limited, as the owners of said beef, being entitled to claim compensation in terms of the 164th section of the said Public Health Act, and to make the application complained of, the note should be refused. (5) The provisions of ( a) section 166 of the said Public Health Act, and ( b) the Act 56 and 57 Vict. cap. 61, not being applicable to the said claim for compensation under the 164th section of said Public Health Act, the respondents are not barred from proceeding with the said application.”

On 26th January 1911 the Lord Ordinary ( Ormidale) refused the prayer of the note.

Opinion.—“I was asked to determine this case on the assumption that the meat in question has been destroyed or at least damaged, and that the sole question between the parties is whether the claim made by the respondents is truly a claim for compensation under section 164 or a claim for damages under section 166 of the Public Health Act 1897. If the claim is just the equivalent of an action of damages, then I understand it is not disputed that it is barred in respect that more than two months had elapsed after the cause of action had arisen before proceedings against the Corporation were taken.

After careful consideration of the arguments hinc inde I have come to the conclusion that the respondents have tabled a competent and relevant claim for compensation under section 164 for the damage sustained by them in respect of the loss of the meat in question, and as the amount claimed is over £50, and the complainers have refused to concur in the appointment of an arbiter, that they were within their right in applying to the Local Government Board to appoint an arbiter to ascertain and dispose of the compensation.

Section 164 enacts—‘Full compensation shall be made … to all persons sustaining any damage by reason of the exercise of any of the powers of this Act except where otherwise specially provided.’

The present claim does not fall under any of the sections of the Act containing specific provisions as to compensation.

The words of section 164 are very wide, and all that the respondents have to show in order to satisfy its requirements is that they have sustained damage, and that by reason of the exercise by the complainers of any of the powers conferred upon them by the Public Health Act 1897.

Section 43 confers a power upon any veterinary surgeon approved by the local authority for the purposes of this section to examine any article intended for the food of man, and if the article appears to him to be unsound or unfit for the food of man he may seize the same in order to have the same dealt with summarily by the Sheriff.

The averments of the complainers are that Mr Trotter, a veterinary surgeon appointed by them and approved by them for the purposes of section 43, in virtue of the powers conferred on him by that section, seized the meat in question and carried it away to be dealt with summarily, and that following upon the seizure a complaint was served upon the respondents' authors. The meat was kept in a detention chamber for a week and then deposited in a cold store. There apparently the greater part of it still remains. It has suffered some diminution because of the removal of various portions to be used in the proceedings before the Sheriff as evidence of the condition of the meat at the time of its seizure. On 4th March 1909 the charge was found not proven.

The averment of the respondents in their application for the appointment of an arbiter by the Local Government Board is that in consequence of the seizure and detention of the beef and of the handling it received in connection with the legal proceedings the meat was rendered worthless, and that they have lost the value thereof, viz., £69, 3s. 1½d., which is the amount of compensation claimed by them from the local authority. It is to be noted that nothing but the value of the meat is included in the claim for compensation. The costs incurred by the respondents in the prosecution proceedings are not

Page: 290↓

included, nor is any other item of expense incurred by the respondents in connection with the seizure of the meat.

It was argued for the complainers that on the respondents' own statement the damage sustained by them was, at the worst for them, the result of the combined action of the veterinary surgeon in seizing the meat and of the local authority in taking proceedings, that the veterinary surgeon is not the local authority, and that the local authority is not responsible for what injury he may do. They further maintained that the claim is truly one in respect of the blunder made by Mr Trotter in wrongly seizing meat which was in fact fit for the food of man, that in doing so he was not acting under the statute, and that therefore the proceeding was outwith the provisions of section 164 altogether—the assumption of that section being the right, and not a mistaken or blundering, exercise of the statutory power. For the wrong so done, it was said, the respondents' relief, if any, against Mr Trotter—if taken within two months—was to be found under section 166. The only complaint, it was further said, properly made against the local authority was the handling of the meat in the course of the proceedings before the Sheriff, and any liability for damages in respect thereof was covered and barred both by the initial clause of section 166 and also by the time limitation contained in that section.

It seems to me that the seizure of the meat is the predominant factor, the fons et origo mali, and that the legal proceedings, viz., the complaint, and the proof following upon it, cannot be so dissociated from the seizure as to constitute a separate and distinct act or exercise of power by the local authority. They were the natural and necessary consequences of the seizure, and if the meat was lost to the respondents in the course of them, it was none the less lost by reason of the exercise of the powers conferred by the Public Health Act, in respect of which the meat had been seized. The whole res gestæ, from the seizure of the meat to the dismissal of the complaint, constituted one continuing exercise of power under the Act. I cannot hold that the local authority only came on to the scene, and that its liability only commenced, with the prosecution. It may be that the veterinary surgeon was entitled to act on his own initiative, but he was the approved official of the local authority, and their hand in carrying into effect the powers conferred by section 43.

Nor can I discover anything of the nature of an irregularity in the action of the complainers from start to finish, and yet irregularity is the key-note to the application of section 166. The complainers, no doubt, were in the event found to be in error in the opinion they formed as to the condition of the meat. But a failure to prove themselves infallible does not constitute an irregularity. The Act clearly assumes that in exercising the powers conferred by section 43 they may be mistaken. It was a sufficient warrant for the action of Mr Trotter that the meat appeared to him to be unfit for the food of man, and the regularity of his action is not made dependent on his being able to justify it, by showing that the meat was in fact unsound meat. He made no blunder in the procedure he followed, and showed no negligence in what he did. It is not suggested that he showed any want of proper skill and care, or that the meat did not really appear to him to be unsound when he ordered its seizure. The decision in Duncan v. Magistrates of Hamilton, 5 F. 160, appears to me to have no application to the present circumstances. That action was properly brought under section 166, for it was founded on a relevant averment of negligence on the part of the local authority in the performance of a statutory duty. For the reasons I have stated, no such negligence can be predicated of the local authority's action in this case. The cases of Bater, L.R., [1893] 1 QB 679, 2 Q.B. 77, and Walshaw, L.R., [1899] 2 QB 286, appear to me directly in point. Section 308 of the Public Health Act 1875, which was the subject of construction in them, is in very similar terms to section 164, and I do not see that the absence from the English statute of any section equivalent to section 166 makes any difference.

It was suggested, rather than strenuously maintained, that the present claim for the appointment of an arbiter was excluded by the Public Authorities Protection Act 1903, in respect that more than six months have elapsed since the cause of action arose, but in my judgment that Act does not apply to a proceeding like the present, which is taken merely to have an arbiter appointed to ascertain the quantum of compensation payable by the complainers to the respondents— Delany, (1867) L.R., 2 C.P. 532, 3 C.P. 111; Glasgow Corporation v. Miller, (1905) 13 S.L.T. 167; Gilliland v. County Council of Ayr, (1907) 15 S.L.T. 21.”

The complainers reclaimed, and argued—Section 164 of the Public Health (Scotland) Act 1897 (60 and 61 Vict. cap. 38) contemplated compensation similar to that payable under the Lands Clauses Consolidation (Scotland) Act 1845 (8 Vict. cap. 19), i.e., for damage or loss necessarily incident to a right and proper exercise of the powers conferred by the Act, e.g., such loss as might be caused by making sewers (section 103), entering lands (section 109), removing nuisances (section 18, 20 (3) ( b))—Macdougall and Murray, Handbook of Public Health, p. 153. The respondents' claim was not a claim of that nature at all, and therefore did not fall within section 164. Otherwise by a parity of reasoning the respondents would be entitled to compensation even if the meat were unsound, which was absurd. The cases of in re Bater and Mayor, &c., of Birkenhead, 1893, 1 Q.B. 679, 2 Q.B. 77; and Walshaw v. Brighouse Corporation, 1899, 2 Q.B. 286, relied on by the Lord Ordinary, were distinguishable, because they proceeded on a different statute which did not give such complete protection to the local authority. Further, the last-mentioned case had been doubted in

Page: 291↓

Hobbs v. Winchester Corporation, 1910, 2 K.B. 471, at p. 485. The respondents' claim was really covered by one or other of the clauses of section 166. The expression “irregularity in the execution of the Act” was no doubt difficult to construe, but it certainly did not mean a departure from the statutory procedure, nor an action not authorised by the Act— Edwards v. Parochial Board of Kinloss, June 2, 1891, 18 R. 867, 28 S.L.R. 669; Mitchell v. Magistrates of Aberdeen, January 17, 1893, 20 R. 253, 30 S.L.R. 351; Sutherland v. Magistrates of Aberdeen, November 24, 1894, 22 R. 95, 32 S.L.R. 81. The expression must therefore mean a mistake or an error of judgment in doing something authorised by the Act, and these words exactly described the action of the veterinary surgeon here in seizing meat which appeared to him to be unsound but was really sound. The pursuer's claim, which was a claim of damages, was therefore excluded by the first clause of section 166. But it also seemed to be a claim for a “wrong” done by an “operation under the Act,” for that expression meant apparently something very similar to a mistake or error of judgment in doing what the Act authorised— Duncan v. Magistrates of Hamilton, November 29, 1902, 5 F. 160, 40 S.L.R. 140. The latter clause of section 166 also would therefore seem to apply to the pursuers' claim. If that clause did not in respect of the time limit bar the present proceedings, then the Public Authorities Protection Act 1893 (57 and 58 Vict. cap. 61) did, for section 3 of the last-mentioned Act excluded its application only in the event of section 166 of the Public Health Act barring the proceedings. It was quite true that the present proceedings consisted merely in an application for appointment of an arbiter, but either the arbiter was merely to assess damages reserving the question of liability, in which case the action necessary to enforce his award would be barred by one or other of the above enactments, or the arbiter was to dispose of the question of liability also, in which case the present proceedings would be comprehended by the words of either of the above enactments. The cases relied on by the Lord Ordinary were distinguishable. Delany v. Metropolitan Board of Works, 1867, 2 C.P. 532, 3 C.P. 111, proceeded on a different statute, while in Corporation of Glasgow v. Miller, June 15, 1905, 13 S.L.T. 167, the plea founded on the statute was not timeously taken.

Argued for the respondents—When an Act of Parliament authorised interference with rights of property as, e.g., section 43 of the Public Health (Scotland) Act 1897 did, then one expected to find provision in it for compensation in cases where there was no fault justifying the interference— New River Company v. Johnson, 1860, 2 E. and E. 435, per Cockburn, C. J., at p. 442. Accordingly the Public Health (Scotland) Act 1897 contained specific provisions as to compensation for damage caused by the rightful exercise of particular powers in sections 47 (5), 48 (2), 96, 102, and also a general provision in section 164 for compensation for damage caused by the exercise of other powers, and the respondents' claim was an illustration of what that section comprehended— Macdougall and Murray, cit. sup. “Compensation” and “damages” were two perfectly distinguishable things— Dixon v. Calcraft, 1892, 1 Q.B. 458, per Esher, M.R., at p. 463. It was clear on application of that distinctio that the present claim was a claim for compensation and not for damages— Brierley Hill Local Board v. Pearsall, 1884, 9 A.C. 595; Peterhead Granite Polishing Company v. Parochial Board of Peterhead, January 24, 1880, 7 R. 536, 17 S.L.R. 344; District Committee of the Middle Ward of Lanarkshire v. Marshall, November 10, 1896, 24 R. 139, per Lord Pearson (Ordinary) at p. 144, 34 S.L.R. 130; Blyth v. Magistrates of Edinburgh, October 23, 1905, 13 S.L.T. 459; Thomson v. Local Authority of Edinburgh, July 29, 1908, 25 S.L.Rev, 73; Cessford v. Commissioners of Millport, October 26, 1899, 15 S.L.Rev. 362; Thomson v. Broughty Ferry Commissioners, October 26, 1898, 14 S.L.Rev. 365; Christie v. Broughty Ferry Commissioners, July 29, 1898, 14 S.L.Rev. 368. Neither of the clauses of section 166 of the Act could have any application to the respondents' claim, for it was not founded on any “irregularity in the execution of the Act” or on any wrong done in or by an operation under the Act. On the contrary, it was admitted that section 43 completely justified the veterinary surgeon in seizing the meat because it appeared to him to be unsound, nor was there anything in the subsequent procedure to which exception was or could be taken. Further, the present proceedings were not an “action or prosecution” to which alone a two months' limit was applied by section 166. Similarly the Public Authorities Protection Act 1893, section 1, did not include such proceedings as were here sought to be interdicted— Delany v. Metropolitan Board of Works, cit.; Corporation of Glasgow v. Miller, cit.; Gilliland v. County Council of Ayr, May 23, 1907, 15 S.L.T. 21; Muirhead, Municipal and Police Government, 2nd ed. p. 1009; Glen, Law of Public Health, 13th ed. p. 921; Lumley, Public Health, 7th ed. p. 1030, citing Moreton v. Alfrcton, unreported. Further, as the Public Health (Scotland) Act 1897 applied to Scotland only, and contained in section 166 a limitation of actions, the Public Authorities Protection Act 1893 was excluded by section 3 thereof.

At advising—