Scottish Court of Session Decisions

The Public Authorities Protection Act 1893, section 1, enacts—“(1) Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, duty, or authority, the following provisions shall have effect:—( a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or in case of a continuance of injury or damage, within six months next after the ceasing thereof.”

On May 28, 1917, James Ayr, 30 Hayburn Street, Partick, Glasgow, pursuer, brought an action against The Saint Andrew's Ambulance Association, 176 West Regent Street, Glasgow, defenders, whereby he sought to recover the sum of £500 as damages in respect of injuries sustained in consequence of having been run over, on 22nd August 1916, by an ambulance waggon belonging to the defenders and driven by one of their servants, through whose negligence the accident was alleged to have been caused.

The defenders pleaded, inter alia—“1. The defenders being sued in the present action for an alleged act done in execution of a public duty and authority, or for alleged default or negligence in such execution, and the action not having been brought within six months of such act or default, the action will not lie.”

On 9th November 1917 the Lord Ordinary ( Cullen) repelled the first plea-in-law for the defenders and allowed the parties a proof.

Opinion.—[ After narrating section 1 of the Public Authorities Protection Act 1893 above set forth]—“In the present action the defender, the St Andrew's Ambulance Association, now incorporated by royal charter, is sued for damages in respect of personal injuries sustained by the pursuer, in consequence of his having been run over by an ambulance waggon belonging to the Association in one of the streets of Glasgow, the ground of action being alleged negligence on the part of the driver of the said waggon, a servant of the Association acting within the scope of his employment. The accident occurred on 22nd August 1916, and the present action was raised on 28th May 1917.

The Association defends the action on its merits, but pleads, in limine, that it is excluded by the time limit contained in the provisions of the Act of 1893, above quoted. The plea of the Association is … [ quotes, v. sup.] …

The plea uses the words ‘a public duty and authority.’ I rather think, however, that the defenders mean to plead alternatively a ‘public duty or authority.’

The St Andrew's Ambulance Association was originally an unincorporated association, formed in 1882, and carried on, as it still is, for the laudable objects of providing instruction in ambulance work, and of rendering first aid to the wounded, and also of providing ambulance waggons and other ambulance assistance in case of need. It was and is a voluntary association, entirely dependent on voluntary subscriptions and donations given to enable it to carry on its

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work, thereby resembling many other associations and bodies of individuals in the country formed and existing for philanthrophic purposes.

In 1899 the Association obtained a royal charter, whereby it was created a corporate entity, with a stated constitution, and a definition of the objects and purposes characterising it as so incorporated.

From the arguments advanced by the Association in support of its said plea it would seem that to the eyes of the Association there is a kind of glamour about this royal charter tending to throw around the Association the atmosphere of a more ‘public’ character than antecedently attended it.

The charter, however, does not impose duties on the Association, nor does it confer on it any authority for the achievement of its purposes which it did not antecedently possess.

Apart, however, from the possession of its royal charter, the Association maintains the proposition that it, judged by its objects and purposes, falls to be regarded, within the meaning of the Act, as a body acting in pursuance or execution (or intended execution) of a public duty or authority.

I am unable to accept this proposition.

The Act of 1893 does not define the word ‘public,’ or the words ‘public duty or authority,’ which it uses. The leading type of case, specially instanced, is that of an act done ‘in pursuance or execution, or intended execution, of an Act of Parliament.’

I do not propose to attempt any precise definition of what the Act means by ‘public duty or authority.’ But wherever the line may exactly fall to be drawn, I think the case of the defending Association falls outwith it.

The Association has no ‘duty’ incumbent on it other than the moral duty of benevolence towards the sick and injured, which bears on all members of the community alike, although it moves them in varying degrees. Nor has it any ‘authority,’ apart from such degree of freedom of action as the communal sense willingly allows to individuals, or associations of individuals, who voluntarily undertake works of benevolence for the benefit of their fellow-men. If the defenders' view were admitted, it would follow that any voluntary association of individuals, or indeed any individual, pursuing general objects of benevolence among the members of the community would, quoad hoc, fall to be regarded as pursuing or executing (or intending to execute) a ‘public duty’ within the meaning of the Act. This appears to me too wide a view of the intended scope of the Act.

I shall accordingly repel the first plea-in-law for the defenders.”

The defenders reclaimed, and argued—This was an action brought against the defenders in consequence of their alleged negligent execution of duties imposed upon them by royal charter. The defenders performed these duties by virtue of public authority. There was a difference between an incorporated body invested with certain powers of acting and a body not so incorporated. The assumption fell to be made that there was an implied duty laid on the defenders to apply the powers. Accordingly, as the Association was performing a public duty, it was entitled to the safeguards provided by the Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61). It was not the public character of the person or corporation which fell to be considered under the Act, but the nature of the duty performed by that person. If that duty was of a public nature, then an act done in fulfilment thereof was entitled to protection unless an action in respect of any wrong inflicted thereby were raised within six months of its commission. The present case differed from that of the Attorney-General v. Proprietors of Margate Pier and Harbour, [1900] 1 Ch 749; in that case the incorporated company was a commercial undertaking carried on for purposes of profit, whereas in this case the Association was without profit fulfilling the public duty of relieving the suffering of the sick and injured. Counsel also referred to the following authorities—“ The Johannisburg,” [1907] P 65; Bradford Corporation v. Myers, [1916] 1 A.C. 242, per the Lord Chancellor at p. 247; Halsbury's Law of England, vol. 23, sections 690, 692.

The respondent argued—The Association was under no legal obligation to proceed with its undertaking. It might be acting from a sense of public duty, but no member of the public could compel the exercise of the powers under the royal charter, or obtain damages for failure to exercise these powers. The duty contemplated by the Act on the other hand implied a correlative right in the citizen. Here the charter imposed no duty on the Association and conferred no authority on it. Every person who performed duties of a public nature was not a public authority. Nor did the mere incorporation by royal charter make a charitable body a public authority in the sense of the Act. The following cases were referred to— County Council of Lanarkshire v. Airdrie, Coatbridge, and District Water Trustees and Others, (1906) 8 F. 777, per Lord M'Laren, at p. 781, 43 S.L.R. 632; M'Phie v. Magistrates of Greenock, (1904) 7 F. 246, 42 S.L.R. 190; Baker v. Glasgow Corporation, 1916 S.C. 199, 53 S.L.R. 183; Bradford Corporation v. Myers ( cit.); Fielding v. Morley Corporation, [1899] 1 Ch 1, per Lindley, M.R.

At advising—