Scottish Court of Session Decisions

The National Insurance Act 1911 ( 1 and 2 Geo. V, cap.55), secs. 1 (1) and (2), and First Sched., Part I (a), are quoted supra in rubric.

The scottish Insurance Commissioners, petitioners, presented a petition under section 66 (iii) of the Act in which they prayed the Court “to decide whether the various classes of employment hereinafter mentioned, or any or which of them, are or are not employments within the meaning of Part I of the said Act, namely, ( a) employment of resident physicians and resident surgeons, ( b)employment of non-resident house physicians, non-resident house surgeons, and clinical assistants, and ( c)employment of supervisors of the administration of anæsthetics, all at the Royal Infirmary of Edinburgh.”

The Royal Infirmary of Edinburgh, respondents, lodged answers maintaining that the members of the medical staff in question were not employed within the meaning of Part I of the Act.

The facts as to the employment of the various classes were admitted to be as follows:—

“(a) Resident Physicians and Resident Surgeons.

Resident physicians and resident surgeons at the Royal Infirmary of Edinburgh are appointed by the Board of Managers on the recommendation of the respective members of the honorary medical and surgical staff to whom they are to be attached. They reside within the Infirmary, and the duties which they are

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appointed to perform are the care and treatment of patients in the institution. No one is eligible for appointment who is not a duly registered practitioner. Bach resident physician and resident surgeon is responsible to the physician or surgeon under whom he acts for the treatment and professional care of all patients under his charge, and is subject to his control in these matters. He is responsible to the Superintendent of the Infirmary for the discipline and general conduct of the wards. He exercises supervision over the conduct of the nurses attached to his wards. The appointments run for periods of six months from 1st October in one year to 31st March in the next, and from 1st April to 30th September in the same year.

The resident physicians and resident surgeons are bound to observe the regulations prescribed by the managers. Every applicant for appointment as a resident physician and resident surgeon is required to fill up a printed form of application, which is in the following terms:—

‘The Royal Infirmary,

Edinburgh, 19.

The Right Honourable and Honourable the Managers of the Royal Infirmary.

My Lords, Ladies, and Gentlemen,—I beg to apply for the appointment of, to the under the charge of, for six months from, and undertake, in the event of your granting my application, not to relinquish my duties prior to the expiry of that period unless I shall previously have obtained your sanction to my so doing.—I am, my Lords, Ladies, and Gentlemen, your obedient Servant,

( State qualifications here).’

There is no salary attached to the office. Each resident receives board and lodging free, and an allowance of £2, 10s. in lieu of laundry for the period of his engagement. The value of the board and lodging, taken along with the said allowance, does not exceed £100 per year.

(b) Non-Resident House Physicians, Non-Resident House Surgeons, and Clinical Assistants.

Non-resident house physicians, non-resident house surgeons, and clinical assistants are appointed by the Board of Managers on the recommendation of the respective members of the honorary medical and surgical staff to whom they are to be attached. They must be duly qualified medical men, and a number of them subsequently become resident physicians and resident surgeons on completing their term of six months as clinical assistants. Their duties are to assist in the care and treatment of patients. They are occupied in the performance of their duties for two or three hours daily on an average. Their appointment remains in force for six months, but may be renewed by the managers for a further period of similar duration. Each is responsible to and under the control of the physician or surgeon under whom he acts professionally, and to the Superintendent of the Infirmary for the discipline and general conduct of his wards or department when such is under his charge.

They are subject to the regulations above referred to so far as is compatible with non-residence in the Infirmary. Each applicant for appointment is required to fill up the form of application above quoted.

There is no remuneration for the work, but a number of the holders of the office are allowed lunch at the residency.

(c) Supervisors of the Administration of Anæsthetics.

These are appointed by the Board of Managers on the recommendation of the various members of the honorary staff to whom they are to be attached. They must be duly qualified medical practitioners. The holders of the office are generally young medical men who have commenced practice on their own account, and who may also be acting as private assistants to surgeons and specialists. Their duties are to supervise and direct the administration of anæsthetics in the various operating theatres of the institution. Each supervisor is attached to a particular surgeon under whose directions he acts and whom he attends when required. The physician or surgeon is entitled to give directions to the administrator not only as regards the time, place, and general mode of performance of his duties, but also as regards the particular method of administration, including the prescribing of the particular anaesthetic to be administered. The Board of Managers regard the physician or surgeon and not the administrator as the person responsible.

The said supervisors are subject to the before-mentioned regulations and also to the further ‘Rules for Supervisors of the Administration of Anæsthetics’ adopted 21st October 1912. The time occupied in the performance of their duties varies from one to two hours per day on an average.

They receive an honorarium of £20 per annum, a rate of remuneration which, in the petitioners' opinion, is not equivalent to a rate of remuneration exceeding £160 a year for whole time service.

All the members engaged in the three classes of employment ( a), ( b), and ( c) above specified are liable to be suspended by the Superintendent for any insubordination or improper conduct, or any infraction of the said regulations.”

Argued for the petitioners—There was present in the three classes of employment all the elements indicative of the relation of master and servant. These members of the medical staff were appointed by the Board of Managers and could be dismissed by them. They gave services, and, what was of most importance, they were under the control of the Board of Managers. Their employment was therefore employment under a contract of service. There might be the requisite control of a servant by his master though the servant's work was such as the master could not himself do— Walker v. Crystal Palace Football Club, Limited, 1910, 1 K.B. 87. There

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might not be direct control by the Board of Managers in the treatment of the patients, but there was control by the Board through the principal physicians and surgeons, just as in Walker, supra, there was control of the football player through the captain of the team. Hillyer v. Governors of St Bartholomew's Hospital, 1909, 2 K.B. 820, which was followed in Foote v. Directors of Greenock Hospital, 1912 S. C. 69, 49 S. L. R. 39, decided no more than that the governing body of an hospital is not the superior of the medical men who treat the patients therein in the sense of the maxim respondeat superior. In re Employment of Church of England Curates, 1912, 2 Oh. 563, was not in point. A curate was not appointed by the vicar and could not be dismissed by him. A curate was the holder of an ecclesiastical office, and was not a person whose duties were defined by contract at all. Re Employment of Ministers of the United Methodist Church, and re Employment of Ministers (Under Probation) of the Wesleyan Methodist Church, 28 T.L.R. 539, had no bearing on the question. Reference was also made to Simmons v. Heath Laundry Company, 1910, 1 K.B. 543, and Pollock on Torts (9th ed.), p. 81.

Argued for the respondents—The relation of master and servant did not exist between any of the three classes of employees and the Board of Managers. The contract with the Board was not a contract of service, but a contract for services— Simmons (cit. sup.), per Fletcher Moulton (L. J.) at p. 548. A servant is a person subject to the command of his master as to the manner in which he shall do his work— Yewens v. Noakes, (1880) 6 Q.B.D. 530, per Bramwell (L.J.) at p. 532. The question was not whether there was control, but whether control was exercised in the matter of the services rendered. Here it was not so exercised. The managers could not interfere with the medical staff in their treatment of the patients— Evans v. Liverpool Corporation, 1906, 1 K.B. 160; Hall v. Lees, 1904, 2 K. B. 602. Hillyer (cit. sup.) was decided on the ground that the physicians and surgeons were not the servants of the governors. Reference was also made to Murphy v. Guardians, Enniscorthy Union, [1908], 2 Irish Reports, 609.