Scottish Court of Session Decisions

This was an action raised in the Sheriff Court at Aberdeen by Alexander Mitchell, labourer, against the Provost, Magistrates, and Town Council of Aberdeen, as the Local Authority of the burgh under the Public Health Act, and against Peter Gorman, the sanitary officer, for payment of £500 as damages and solatium for the death of the pursuer's son James Main Mitchell.

The pursuer made the following averments—“(Cond. 2) On Tuesday 19th July 1892 James Main Mitchell, aged fourteen months, only child of the pursuer and of Mrs Mary Ann Ritchie or Mitchell, his wife, was seized with an attack of measles. Dr Skene of Cove, who had been attending the child for irritation of the stomach, was at once sent for, and after prescribing for it, he reported the case to the local authority in terms of the Infectious Diseases Notification Act 1889. In informing the said Mrs Mary Ann Ritchie or Mitchell that he was to report the case, he told her that the child was not in a fit condition to be removed to the City Hospital, and in the event of the defenders' officers proposing to remove it, this fact should be pointed out to them. (Cond. 3) On or about 20th July 1892 the said Peter Gorman visited the pursuer's house, and stated to the pursuer's said wife that he had come to remove the child to the City Hospital. The pursuer's said wife objected to this step, and informed them that in the opinion of Dr Skene the child was suffering from irritation of the stomach from teething, and from measles complicated with congestion of the lungs, and that it could not safely be removed. She further pointed out that it was beingsufficientlyattended to, it being her only child. She was quite able to isolate it, and had nothing else to do than to devote herself to it… . (Cond. 4) On 21st July 1892 the said Peter Gorman returned to the pursuer's house with a conveyance, and notwithstanding the opposition and protests of the pursuer's said wife, he lifted the child from its cradle, placed it in the conveyance, and removed it to the City Hospital. … It died on the afternoon of the following day.… (Cond. 5) The sanitary officers' instructions from the defenders, through the medical officer of health for the city, and from the sanitary inspector (who exercise an unsatisfactory dual control in these matters, neither of them being responsible to the other), are to remove all cases of infectious disease occurring in any house with less than three rooms, without exception or distinction and without a warrant, and these improper and illegal instructions are carried out by unskilled and irresponsible officials in a correspondingly improper and illegal way, backed by representations that they are armed with legal authority in doing so. (Cond. 6) The removal of the said James Main Mitchell was effected by the defenders in the illegal manner before described. The said James Main Mitchell was at the time of his removal in the condition set forth in condescendence 3, as represented by the pursuer's wife to the defender Gorman, and his death was due to his removal by the

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defenders at a time when he was not in a fit state to be removed. Said removal was reckless, uncalled for, wrongful, and illegal. It was reckless, in respect that the defender Peter Gorman was duly and specially warned that in Dr Skene's opinion the removal could not be effected with safety to the child's life, and that he proceeded to effect it without taking the obvious precaution of consulting with Dr Skene on the subject, and without having the child examined by the medical officer of health or by any qualified medical man. It was uncalled for, in respect that there was no allegation that the child was without proper lodging or accommodation, or that its parents had not the means of providing the necessary attendance and securing its isolation; and in point of fact the child was sufficiently accommodated, and it was attended to by its mother and by a skilled and competent medical man; the pursuer having no other family and no other person living in the house with him, could quite well have secured its isolation under the directions of Dr Skene. The removal of said child was illegal, and the defenders were not acting in the bona fide execution of the said Act in removing the said child… . Such removal was carried out without the order or warrant of the sheriff or of any magistrate or justice of the peace. The defender Gorman in acting as he did, as above condescended upon, was acting in conformity to orders received from the other defenders, and he knew that the said orders were wrongful and illegal, as they in fact and in law were. The other defenders in giving the said orders were not acting in the bona fide execution of the said Act.”

The defenders admitted that the pursuer's child had been reported by Dr Skene as suffering from measles, that it had been removed by Gorman without a warrant, and had died in the hospital, but denied the rest of the pursuer's averments. They also founded on section 118 of the Public Health Act, and averred “that the proceedings of the officer were carried through bond fide for the purpose of executing the Act.”

The defenders pleaded that the action was irrelevant in the case of both the defenders.

The 42nd section of the Public Health Act enacts that “Where a hospital or place for the reception of the sick is provided or exists within the district of a local authority, the sheriff or any magistrate, or justice, may, on the application of the local authority, with the consent of the superintending body of such hospital or place, by order on a certificate signed by a legally qualified medical practitioner, direct the removal to such hospital or place for the reception of the sick, at the cost of the local authority, of any person suffering from any dangerous, contagious, or infectious disorder, and being without proper lodging or accommodation, or lodged in a room occupied by others besides those in attendance on such person, or being on board any ship or vessel, or may direct the removal from the room occupied by such person of all others not in attendance on him, the local authority providing suitable accommodation for such other persons.”

Section 118 provides that “The local authority … shall not be liable in damages for any irregularity committed by their officers in the execution of this Act”….

On 23rd November 1892 the Sheriff-Substitute ( Robertson) repelled the first plea-in-law for the defenders, allowed both parties a proof of their averments, and the pursuer a conjunct probation.

“ Note.—… The defenders plead in answer (1) that the action is irrelevant so far as the defenders the Town Council are concerned, in respect of the statutory provision contained in section 118 of the Public Health Act, which provides that ‘the local authority and the board shall not be liable in damages for any irregularity committed by their officer in the execution of this Act.’ The construction of this section has been the subject of recent judicial decision— Edwards v. Parochial Board of Kinloss, June 2, 1891, 18 R. 867—and the result of that case seems to me to be that where the allegation is that a local authority had done something which could be held to be outside the Act altogether, the 118th section would not protect them or bar action against them. In the present case the local authority do not repudiate the actings of their officer, the other defender, and must be held to have adopted them, and the question seems to be, whether the averments of the pursuer amount to this, that the defenders the local authority, or those for whom they are responsible, acted outwith the statute altogether, or that merely an irregularity was committed by one of their officers. If the averments of the pursuer are wholly true, it seems to me impossible to hold that merely an irregularity was committed. Gorman did what he had absolutely no right to do; he moved this child against the protest of its mother without the judicial authority or medical certificate which are declared by the statute to be necessary, and without which he, it seems to me, had no right whatever to put in force the provisions of the Act. If he has committed an absolutely illegal act, whether in the so-called execution of the statute or not, I cannot doubt that defenders will be liable. It may be that when the facts are elicited, it will appear that the defenders the local authority are protected by this 118th section, but on the pursuer's averments I cannot hold that action is barred against them.” …

The pursuer appealed for jury trial, and the defenders having stated that they objected to the relevancy of the action, the case was sent to the Summar Roll.

Argued for the defenders—The action was irrelevant as against the local authority, for section 118 of the Public Health Act protected them against liability in respect of irregularities committed by their officers in the execution of the Act. That section might fairly be held to apply to such a case as the present, even though specific instructions had been given by the local

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authority for the doing of the act complained of, for the officer was acting in execution of his duty under the Act. The decisions upon similar section in other Acts supported this contention— Ferguson v. M'Ewen, February 7, 1852, 14 D. 457; Melvin v. Wilson, May 22, 1847, 9 D. 1129; M'Laren v. Steele, November 13, 1857, 20 D. 48.

Argued for the pursuer—The officer's action was on the pursuer's averments entirely outwith the powers conferred on a local authority by the Act, and the case was therefore relevant against both defenders— Edwards v. Parochial Board of Kinloss, June 2, 1891, 18 R. 867; Hastings v. Henderson, July 15, 1810, 17 R. 1130; Murray v. Allan, November 29, 1872, 11 Macph. 147; Cann v. Clipperton, 1839, 10 Ad. & Ellis 582.

At advising—