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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edwards and Another v. The Parochial Board of Kinloss and Another [1891] ScotLR 28_669 (2 June 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0669.html Cite as: [1891] SLR 28_669, [1891] ScotLR 28_669 |
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Page: 669↓
[Sheriff of Inverness, Elgin, and Nairn.
Section 118 of the Public Health Act 1867 provides that “The local authority and the board shall not be liable in damages for any irregularity committed by their officers in the execution of this Act, or for anything done by themselves in the bona fide execution of this Act, and every officer acting in the bona fide execution of this Act shall be indemnified by the local authority under which he acts in respect of all costs, liabilities, and charges to which he may be subjected, and every action or prosecution against any person acting under this Act on account of any wrong done in or by any action, proceeding, or operation under this Act shall be commenced within two months after the cause of action shall have arisen.”
On complaint that an unoccupied house was dangerous to the public, the officer of a local authority under the Public Health Act pulled it down without intimation to the owner or instructions from the local authority. The local authority, however, adopted his proceedings.
In an action by the owner raised more than two months after the proceedings, held that the officer had acted outwith the provisions of the Public Health Act, that accordingly the three months' limitation did not apply, and that the local authority having adopted the actings of their servant, were liable in damages.
Page: 670↓
John Edwards sued the Parochial Board of the Parish of Kinloss as the Local Authority under the Public Health (Scotland) Act 1867, and Archibald Keir Leitch, their clerk, for damages for the demolition of certain house property in the village of Findhorn.
In June 1886 Leitch received a letter from the agents of the adjoining property calling his attention to the ruinous state of the subjects in question which had been unoccupied for some years, and which were alleged to be dangerous to the public from the falling of loose slates. Leitch visited the premises, and after inspection he ordered the removal of the loose slates with a view to rendering the building safe.
In February 1890 Leitch, in consequence of further complaints made regarding the state of the house, and after a report from a mason in Forres, but without the consent of the pursuers or notice to them, or without the authority of his employers, removed the remaining slates, threw down the walls to a height of from four to five feet from the ground, took down and removed the roofing and fittings, and sold the timber so removed. The house was then in a filthy condition, and was used largely as a public convenience.
The pursuers pleaded, inter alia—“(1) The defenders having, through their officer acting in their behalf, wrongously and unwarrantably interfered with and partly demolished the property of the pursuers, are liable in damages therefor.”
The defenders pleaded, inter alia—“(2) The pursuers are barred by the 118th section of the. ‘Public Health (Scotland) Act 1867,’ from insisting in the present action, and the same ought to be dismissed with expenses.”
The local authority in the course of the action intimated that Leitch had acted on their behalf.
The Sheriff-Substitute ( Rampini) on 2nd August 1890 found, inter alia, that the proceedings by the defender Leitch, acting on behalf of the Parochial Board as Local Authority of Kinloss, did not fall within the scope of the Public Health (Scotland) Act and were unwarrantable in law, and he assessed the damages at £50.
“ Note.—… The proof shows that what the defender Leitch did do was to pull down this building, not to a bate a nuisance, but because he considered it to be dangerous to the public safety, and this neither he nor his board had any power under the Act to do. They were trenching on the duties of the procurator-fiscal. Had Leitch studied the Public Health Act as carefully as he was bound to have done he must have seen that to pull down a building even if it was ruinous and dangerous was an act beyond the power which the law conferred on the board whose servant he was. And he acted in a very high-handed manner. He does not seem to have consulted his board at all. As soon as he had received Messrs R. & R. Urquhart's letter complaining of the dangerous state of the building, he proceeded on his own authority to have it put into a condition of safety. He left the way in which this was to be done to others, and their idea was that the only way to make it safe was to take it down. Had the act been one which he was entitled to do, he might, the Sheriff-Substitute thinks, even in the face of irregularity like this, have claimed the protection of the 118th section of the statute. But there is a great difference between a legal act carried out in an irregular manner and an act radically and essentially illegal. Acts illegal because irregular may be overlooked when there is bona fides on the part of the officers doing them, but acts illegal because ultra vires are in a different position. The protection only applies to wrongs done by persons ‘acting under the Act,’ which it is impossible to maintain that the defender Leitch was. It will not save him to say that his object was not to ensure the safety of the lieges but to abate a nuisance; the proof clearly establishes the contrary. Nor have the defenders shown that a nuisance did exist, which they or their sanitary inspector had the power to abate under the Act.”
On appeal the Sheriff ( Ivory) on 23rd October 1890 recalled this interlocutor and assoilzied the defenders.
The pursuers appealed to the Court of Session, and argued—That the actings of Leitch were wholly illegal and outwith the statute. He had power to deal with a nuisance, but not to pull down house property. Here the board adopted the actings of their clerk and were therefore responsible. The amount fixed by the Sheriff-Substitute who took the proof was reasonable, and the Court would not without good cause, interfere with his estimate of the damage sustained by the pursuers— Mackay v. Chalmers, February 5, 1859, 21 D. 443; Knox v. MacArthur, June 7, 1865, 3 Macph. 890.
Argued for respondents—Whether the Board were aware of what Leitch was doing or not, they had, by the minute of admissions, virtually adopted his actions, and it was for the pursuers to show that these were outwith the provisions of the protecting clause of the statute. Its terms were unusually wide, and were framed to cover just such a case as the present. The facts of the case showed that some interference by the officer of the board was absolutely necessary; and if in such circumstances a wrong was done in proceeding under the Act, sec. 118 protected the officer and the board—cases under protecting clauses in statutes— Ferguson v. M'Ewen, February 7, 1852, 14 D. 457; M'Laren v. Steele, November 13, 1857, 20 D. 48; Murray v. Allan, November 29, 1872, 11 Macph. 147; Ferguson v. M'Nab, June 12, 1885, 12 R. 1083; Hastings v. Henderson, July 15, 1890, 17 R. 1130.
At advising—
Page: 671↓
It appears to me that the Sheriff has gone wrong on the general question raised under the statute, and that his interlocutor must therefore be recalled.
With regard to the amount of damages, I cannot agree with the sum found due by the Sheriff-Substitute, as I consider it in the circumstances excessive, and I propose, if your Lordships should agree with me, that we should reduce the amount to £10.
[ His Lordship here enumerated the parties to the action and the facts established by the proof as above narrated.]
The whole defence to the present action is grounded on section 118 of the Public Health Act of 1867; but from what I have already observed, it is clear that in what was done the officer was not acting in terms of the statute, but entirely outwith its provisions, and they are accordingly not entitled to the protection which the Act secures.
There is, however, the further question as to how far the Local Authority is to be held responsible for actings of their officer. Upon this matter I should have had considerable doubts had it not been for the admission appended to the report of their proof, by which they virtually adopt his actings. That being so, I can only view the actings of Leitch as being for and by the authority of the Parochial Board, and being so they are conclusive of the present case.
In the present case a double error was committed—first, in treating as a nuisance a building which did not fall under that category; and second, in not following out the provisions of the statute.
In considering how far a public body is liable for its servants, it is clear that when an illegal act is done by the servant, the principal must either approbate or reprobate the action.
What the public authority has done in the present case is to approve of and adopt the action of their servant, and then to plead the protecting clause of the statute. But in order to secure that protection the action complained of must have been done by the servant in the bonâ fidê execution of the statute, and that was not what occurred in the present case.
If the act done be not within the scope of the statute, then I do not think that the three months' limitation provided by the 118th section has any application. As regards the amount of damages I concur in the sum fixed by your Lordship.
The Court recalled the interlocutor of 2nd August and 23rd October 1890, and assessed the damages at £10.
Counsel for the Pursuer— M'Kechnie— Baxter. Agents— A. J. & J. Dickson, W.S.
Counsel for the Defenders— Jameson— Salvesen. Agent— R. Stewart, S.S.C.
