The Judicial Committee of the Privy Council Decisions

Jones v. The Royal of Veterinary Surgeons (Royal College of Veterinary Surgeons) [2000] UKPC 47 (29th November, 2000)

Meredydd Jones Appellant

v.

The Royal College of Veterinary Surgeons Respondent

FROM

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REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

19th October 2000, Delivered the 29th November 2000

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Present at the hearing:-

Lord Hope of Craighead

[Delivered by Lord Hutton]

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1. This is an appeal by Mr. Meredydd Jones MRCVS against the decision of the Disciplinary Committee of the Royal College of Veterinary Surgeons finding that two charges against him had been proved and that in relation to the facts alleged in each of those charges he had been guilty of disgraceful conduct in a professional respect. In consequence of those findings the Disciplinary Committee directed that the Registrar remove the appellant's name from the Register of Veterinary Surgeons.

2. At the conclusion of the hearing on 19th October 2000 their Lordships agreed humbly to advise Her Majesty that (1) the appeal on the first charge should be dismissed, (2) the finding of guilt on the second charge ought to be quashed, (3) the second charge should be remitted for rehearing with liberty for the parties to adduce fresh evidence, (4) the direction that the appellant's name be erased from the Register should be quashed and the question of disposal should be redetermined by the Professional Conduct Committee in the light of their decision following the rehearing on the second charge and their Lordships' dismissal of the appeal on the first charge, and (5) that there would be no order for costs. Their Lordships stated that they would give their reasons later. This they now do.

3. The two charges were as follows:-

"1. On 16 July 1997 you attended the farm of Mrs. S. Cotton of Nant Farm, Llanfaes, Beaumaris, Anglesey in respect of an insurance claim for the death of her horse, but did not leave your vehicle or inspect the animal and, in due course, on the claim form you wrote 'found dead, suspected lightning strike', when you knew or ought to have known that there was no validity in that presumption.

And that in relation to the facts alleged you have been guilty of disgraceful conduct in a professional respect.

2. On or about 19 May 1998 you attended the farm of Mrs Rhiannon Jones at Penrallt, Llanfachraeth, Holyhead, Anglesey, to attend a sick animal, when you were unfit through alcohol to do so.

And that in relation to the facts alleged you have been guilty of disgraceful conduct in a professional respect."

4. In relation to the second charge the appellant made an application to the Board for leave to adduce fresh evidence from a Mrs. Pauline Kelly, either orally or by affidavit. The application was advanced on this ground. The charge alleged that the appellant was unfit through alcohol to attend a sick animal on or about 19th May 1998, which was a Tuesday. The animal was a heifer. Mrs. Jones requested the veterinary practice of which the appellant was a member to send a veterinary surgeon to see the heifer on Monday, 18th May 1998, and it was common case that the appellant went to Mrs. Jones' farm to see the heifer on that date and that he returned to see the animal for a second time on the following day, Tuesday, 19th May. On 18th May the appellant examined the heifer and prescribed an antibiotic and, according to Mrs. Jones, told her that the heifer probably had sunstroke; according to the appellant he told Mrs. Jones that the heifer was suffering from sunburn. On 19th May when the appellant came back to see the heifer for a second time he prescribed a different antibiotic.

5. In paragraph 2 of her witness statement, which was served on the appellant some time before the hearing by the Disciplinary Committee, Mrs. Jones said:-

"On or about Tuesday, 19.5.98 1 asked the practice if a veterinary surgeon would visit to see a 2 year old Friesian heifer. Later that day, at about 2 pm, Mr Meredydd Jones came to examine the animal."

6. The appellant wishes to adduce the evidence of Mrs. Pauline Kelly because she has sworn an affidavit in which she avers that the appellant came to her farm about 3.30 p.m. on 19th May 1998 to attend a mare after the birth of its foal, and that she had no concern in relation to the appellant's speech or walk, and considered that his manner was professional and competent. Therefore the appellant wishes to rely on her evidence to establish that he was not under the influence of alcohol about 3.30 p.m. on the afternoon of 19th May and so was unlikely to have been under the influence of alcohol when he went to Mrs. Jones' farm earlier that afternoon.

7. In order for the appellant to be given leave to adduce fresh evidence from Mrs. Kelly three conditions must be satisfied: see Ladd v. Marshall [1954] 1 WLR 1489. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case; and, thirdly, the evidence must be apparently credible. Their Lordships are of opinion that the second and third conditions are satisfied in this case, but the appellant faces a more difficult task in establishing that the first condition is satisfied because, inter alia, prior to the hearing by the Disciplinary Committee the appellant and his legal advisers were in possession of a statement from Mrs. Kelly describing her view of the appellant's condition when he visited her farm on the afternoon of 19th May.

8. However, the case made by the appellant in his affidavit in support of his application is that the terms of Mrs. Jones' witness statement led him to believe that she was alleging that he was under the influence of alcohol when he made the initial examination and diagnosis of the heifer on 18th May, bearing in mind the charge stated "on or about 19 May 1998".

9. In the opinion of their Lordships this was a reasonable conclusion for the appellant to make and they consider that the appellant was entitled to think that the charge related, in fact, to his first visit on 18th May, because Mrs. Jones related her complaint to the day when she asked the practice to send a veterinary surgeon to see the heifer, and that day was undoubtedly Monday, 18th May. Their Lordships further consider that a party is not guilty of a lack of reasonable diligence if he does not bring a witness to a hearing to speak of events on 19th May when he was justified in thinking that the charge against him relates to events on 18th May.

10. In the course of her evidence it is apparent that Mrs. Jones was uncertain as to whether her opinion that the appellant was under the influence of alcohol related to his attendance on 18th May or 19th May. Therefore it is a possible view that Mr. Spratt, counsel for the appellant, should have requested, an adjournment in order to call Mrs. Kelly as a witness at the hearing if (as transpired) the Disciplinary Committee formed the opinion that Mrs. Jones' allegation did relate to 19th May and not to the first visit of 18th May. However their Lordships are of opinion that, on the facts of this case and having regard to the interests of justice, it would not be right to take this view and that the appellant has also satisfied the first condition.

11. In these circumstances the proper course is to quash the finding on the second charge and to remit the charge for a further hearing by the Disciplinary Committee at which it will be open to the appellant to call Mrs. Kelly as a witness and any further witnesses whom he may wish to call and to the Royal College of Veterinary Surgeons to call any further witnesses whom it may wish to call.

12. In relation to the first charge the evidence of Mrs. Cotton was that on a morning in July 1997 she found her mare dead in a field. She then telephoned the appellant's veterinary practice and asked that a veterinary surgeon should come to her farm because she knew that in order to claim insurance arising from the death of the mare she needed to have a veterinary surgeon to sign a certificate in relation to the death. She told the receptionist in the practice that the mare had been perfectly healthy up to then but she had found it dead that morning. The appellant arrived at her farm between 11 and 11.30 am. Before his arrival she had covered the body of the mare with a sheet of black plastic and the body was lying in the field about a hundred yards away from the fence. The appellant parked his car by the fence overlooking the field. She asked if he wanted to come to see the horse and he replied, "No, I can see she is dead", and he did not get out of the car and then drove away. It was put to her in cross-examination that it was the appellant's recollection that he did get out of the car, but she denied this and said that she was precise in her recollection that he did not get out.

13. Mrs. Cotton then obtained a form from her insurance company to be signed by a veterinary surgeon. The form was not put in evidence before the Disciplinary Committee but it was not in dispute that the form required the veterinary surgeon to certify the possible cause of death of the horse. Mrs. Cotton sent the form to the appellant who made an entry on the form that the possible cause of death was "suspected lightning strike", and he signed the form and returned it to Mrs. Cotton, who sent the form to her insurance company. Mrs. Cotton said in her evidence that there had been no thunder or lightning the night before she found the mare dead. When cross-examined as to her feelings about the appellant not getting out of his car the transcript of her replies is as follows:-

"Q. Did that annoy you?

A. It annoyed me more that he did not go over to the horse. It was such a long way away and she was covered up.

Q. Did you find that in some way heartless?

A. Unprofessional.

Q. Were you upset at the time?

A. Cross."

14. At the close of the evidence called on behalf of the Royal College Mr. Spratt submitted that the appellant had no case to answer on the first charge. The essence of his submission was that the charge alleged that the appellant knew or ought to have known that there was no validity in the presumption that the horse had died because of a lightning strike, whereas the appellant had certified that he suspected that the horse had died because of a lightning strike, that there was a difference between a suspicion and a presumption, that the appellant was entitled to suspect that the horse had died from a lightning strike, and that the evidence failed to establish that he had certified that there was a presumption that the horse had died from a lightning strike. The Disciplinary Committee rejected this submission and held:-

"On the evidence, Mr Jones had no direct knowledge to support any presumption that there was even a dead horse under the sheet - he never saw it - nor is there evidence even to support a suspicion of any lightning strike on whatever was under the sheet. This is a case to answer that there was no validity to his presumption."

15. Their Lordships are satisfied that the Disciplinary Committee was fully entitled to give this ruling.

16. In his evidence the appellant said that when he arrived at Mrs. Cotton's farm he saw Mrs. Cotton. He got out of his car and went over to the sheet. He could see, even from the road, that it was a horse because its feet were sticking out from underneath the sheet which had been put over it. He went over and lifted the sheet. He could see no signs of any injury - burn marks or anything - on the animal and no sign of any struggle on the grass surrounding it or on the earth. He made a sheer conjecture when he was filling in the claim form that the animal could have died by a lightning strike. He said that when searching for a cause of death without having to do a post mortem, a sudden death of that nature could possibly be by reason of a lightning strike or heart failure, but he could not prove anything without doing a post mortem in the long run.

17. The Disciplinary Committee did not believe the appellant's evidence that he got out of the car and went over to the animal and in its finding in respect of the first charge the Disciplinary Committee stated:-

"As to the [first] charge, that the Respondent certified a horse was found dead and added the words "suspected lightning strike" when he knew or ought to have known there was no validity in that, we find the charge proved. We accept Mrs Cotton's evidence that he never even saw the horse, which remained covered by a black, plastic sheet. We are satisfied that he had no evidence or knowledge to support suspicion of a lightning strike. We find that to make such certification in such circumstances was disgraceful conduct in a professional respect. As the complaint was put - 'There can be no confidence by insurer or client in a certification given such circumstances' - we agree with that."

18. In his submissions to the Board Mr. Spratt properly did not maintain the submission which he had made to the Disciplinary Committee that it could not make a finding against the appellant when the actual certificate signed by the appellant was not in evidence before it. It was common case that the appellant had signed the certificate for the insurance company in which he stated: "found dead, suspected lightning strike", and therefore the actual certificate was not a necessary proof.

19. Mr. Spratt advanced two main points in support of the appeal. The first point was that it was implicit in the charge that the appellant had been in breach of a duty, but the charge was defective in that it failed to specify the duty, and the finding of the Disciplinary Committee was invalid because the Disciplinary Committee failed to direct its mind to the nature of the duty and to specify what duty the appellant had broken. Their Lordships do not accept this submission. The wording of the charge made it clear that the allegation against the appellant that he had been guilty of disgraceful conduct in a professional respect in certifying that the cause of death was a suspected lightning strike when he knew or ought to have known that there was no validity in that presumption. The charge did not allege a breach of duty and was not defective for not doing so, and the Disciplinary Committee was not obliged to make any specific finding as to a breach of duty.

20. The second argument advanced by Mr. Spratt was that the insurance form required the veterinary surgeon to certify the possible cause of death, it did not require him to certify the actual cause of death. Therefore the insurance form invited the veterinary surgeon to conjecture what was the cause of death, and permitted him to certify his suspicion as to the cause of death. Mr. Spratt relied on the judgment of the Privy Council delivered by Lord Devlin in Hussien v. Chong Fook Kam [1970] AC 942, 949 B where the Board stated:-

"Prima facie proof consists of admissible evidence. Suspicion can take into account matters which could not be put in evidence at all ... Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case."

21. Therefore counsel submitted that, in the absence of a post mortem, which Mrs. Cotton had not wanted or requested, the appellant could not express an opinion as to the cause of death and was not at fault in stating what was merely his suspicion as to the cause of death of the animal which had suffered no previous illness and where the ground on which it lay showed no sign of it being in pain or distress before it died.

22. Despite the able manner in which Mr. Spratt advanced this submission, their Lordships are quite unable to accept it, and they consider that in the context of the case it is unnecessary to consider whether there is a material difference between the meaning of the word "presumption" and the meaning of the word "suspicion". When a veterinary surgeon is required to give a certificate as to the possible cause of death of an animal their Lordships are satisfied that there must be some material within the knowledge of the veterinary surgeon himself before he is justified in signing the certificate. Their Lordships are in agreement with the first of the principles of certification issued by the Royal College which states:-

"A veterinarian should be asked to certify only those matters which are within his own knowledge, can be ascertained by him personally or are the subject of a supporting certificate from another veterinarian who does have personal knowledge of the matters in question and is authorised to provide such a supporting document. Matters not within the knowledge of a veterinarian and not the subject of such a supporting certificate but known to other persons, e.g. the farmer, the breeder or the truck driver, should be the subject of a declaration by those persons only."

23. In this case it was a matter for the professional judgment of the Disciplinary Committee whether there was material within the knowledge of the appellant which justified him in issuing the certificate which he did. As the appellant never went over to look at the animal lying under the plastic sheet their Lordships consider it to be clear that the Disciplinary Committee was fully entitled to make the finding that the charge was proved.

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