Alves v Attorney General of the Virgin Islands (British Virgin Islands)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 18 December 2017 |
| Neutral Citation | [2017] UKPC 42 |
| Court | Privy Council |
| Docket Number | Appeal No 0101 of 2015,Privy Council Appeal No 0101 of 2015 |
| Date | 18 December 2017 |
[2017] UKPC 42
Lord Neuberger
Lord Kerr
Lord Carnwath
Lord Hughes
Lord Hodge
Privy Council Appeal No 0101 of 2015
Michaelmas Term
From the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands)
Statute - Limitation — Whether the Court of Appeal erred in finding that the six month limitation period applied to this matter — Action founded in negligence as the Government of the BVI owed the appellant a duty of care as its employer — Distinction between duties done in private and duties done in public — Ambit of the Public Authorities Protection Act — Public Authorities Protection Act did not bar the claim as it arose out of a private obligation of the government as employer rather than in execution of any public obligation — Appeal allowed — Decision of the trial judge restored and matter remitted to the High Court for trial.
The Ydun [1899] P 236 – The Attorney General v. Company of Proprietors of Margate Pier and Harbour [1900] 1 Ch 749 – Bradford Corporation v. Myers [1916] AC 242 – Palmer v. Grand Junction Railway Co (1839) 4 M & W 749; 50 ER 1624 – Parker v. London County Council [1904] 2 KB 501 – Carpue v. London & Brighton Railway (1844) 5 QB 747; 114 ER 1431 – Lyles v. Southend-on-Sea Corpn [1905] 2 KB 1 – Sharpington v. Fulham Guardians [1904] 2 Ch 449 – Griffiths v. Smith [1941] AC 170 – Nelson v. Cookson [1940] 1 KB 100 – Higgins v. North West Metropolitan Hospital Board and Bach [1954] 1 WLR 411 – Razzel v. Snowball [1954] 1 WLR – Firestone Tire and Rubber Co (SS) Ltd v. Singapore Harbour Board [1952] AC 452 – Vincent v. Tauranga Electric-Power Board [1937] AC 196 – Duffus v. National Water Commission [2007] UKPC 35 – Bell v. Commissioner of Police (Civil Appeal No 4 of 2001) (unreported) 26 January 2004 – Attorney General of the Commonwealth of Dominica v. Robin (Case No HCVAP 2011/034) (unreported) 27 June 2012 – Burmah Oil Co (Burma Trading) Ltd v. Lord Advocate – Durity v. Attorney General of Trinidad and Tobago [2003] 1 AC 405.
Section 2 of the Public Authorities Protection Act Cap. 62 of BVI – English Public Authorities Protection Act 1893 – Section 3 of the Public Hospital Ordinance Cap 195 of BVI –
Appellants
Howard Stevens QC
John Carrington QC
Katherine Deal
(Instructed by Freshfields Bruckhaus Deringer LLP)
Respondent
James Guthrie QC
(Instructed by Charles Russell Speechlys LLP)
Heard on 2 May 2017
The claimant was a nurse working in the Peebles public hospital in Tortola. In April 2003 she was attending an elderly and immobile patient when the wheel of his bed collapsed. In an effort to save him from harm, she injured her back quite severely.
As her employer, the Government met her medical expenses for some three years or more, but then ceased to do so. In December 2007 she brought an action claiming damages for the personal injuries which she had sustained. Her case was put in negligence, on the basis that her employer owed her the ordinary employer's duty of care at common law to provide and maintain a safe system of work together with adequate plant and equipment, and had broken that duty by failing to supply a bed in good repair.
The government by its pleaded defence admitted the whole of the statement of claim except for the claim for interest. But it pleaded that the action was statute-barred by the six month period provided for by section 2 of the Public Authorities Protection Act (Cap.62) (“PAPA”). Unless that Act applied, the claimant's action was brought in time. The only issue in the case was and remains whether the six month period applied. The trial judge held that it did not, but the Court of Appeal disagreed.
Section 2 of PAPA provides:
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Ordinance, or of any public duty or authority or 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; …” (emphasis supplied)
It is immediately apparent that there are grammatical slips, doubtless inadvertent, in the statute as printed. The here emphasised word “ of” in the fourth line plainly ought to read either “ for”, or “ in respect of”. Secondly, the here emphasised word “ act” in the fifth line is plainly a reference to the statute, not to a deed or event; it should accordingly be “ Act”. “In respect of” and “Act” both appeared in the English Public Authorities Protection Act 1893 (56 & 57 vict, c 61) (“PAPA 1893”), now long repealed, which was clearly the model for this statute and which was otherwise in identical terms. Thus read, as clearly it has to be, the statute says that the six month limitation period applies to:
“any action (etc) commenced against any person for any act done in pursuance, execution, or intended execution of any Act or Ordinance or of any public duty or authority or for/in respect of any alleged neglect or default in the execution of any such Act, duty or authority.”
This is merely to give effect to the undoubted intention of the legislature. The principal question in the case is whether the statute applies the six month limitation period in relation to any and every action performed by a person authorised to do it by statute, or only to some subset of such actions. On this point, the cases decided on this and directly comparable statutes in various jurisdictions are very difficult to reconcile.
The relevant statutory provision, relied on by the employer government for the application of PAPA, was the Public Hospital Ordinance (Cap.195). Section 3 of that Ordinance says as follows:
“3. The several buildings erected in Road Town in the Island of Tortola now generally known as the ‘Peebles Hospital’ together with all ways, paths, walls, drains, buildings, erections, rights, easements, and appurtenances thereto respectively belonging shall be appropriated by the Government as heretofore to the reception and care of sick persons, and shall hereafter be conducted and managed at the public expense as a hospital for the purposes aforesaid in accordance with the provisions of this Ordinance and of all regulations made under the authority of section 15.”
The Ordinance goes on to provide for the Governor to appoint a Board to manage the hospital. These provisions gave rise to a secondary argument on behalf of the claimant that PAPA did not apply to her accident because the government, as her employer, was not acting under the Ordinance at the material time. Those provisions of the Ordinance are, so far as material, as follows:
“4. The Governor shall appoint a Board for the proper management of the hospital consisting of not more than six and not less than four persons, of whom any three shall form a quorum …
7. The Board shall, subject to the provisions of this Ordinance and all regulations made thereunder, have the entire control of the hospital and it shall be their duty to see to the proper clothing, care and maintenance of sick persons in the hospital. The Board shall have control of all subordinate officers, employees and servants at the hospital and shall ensure that discipline and good order are maintained, and that all regulations are duly observed:
Provided that the matron, nurses, dispensers and dressers shall be, in respect of their professional duties, under the sole direction and guidance of the Superintendent of the hospital.
8. The Chief Medical Officer for the time being of the Territory shall be the Medical Superintendent of the hospital, and shall be responsible for the medical and surgical care and treatment of all persons admitted to the hospital.
…
10. The Superintendent shall have authority to admit to the hospital any person suffering from any disease, sickness or injury which in the opinion of the Superintendent cannot be properly treated elsewhere, upon such terms as to payment and other matters as the Governor in Council shall determine.
11. The Superintendent shall submit a report to the Governor on the admission of persons to the hospital and the medical and surgical cases dealt with therein.
12. The Governor may appoint a matron for the management and service of the hospital who shall receive such emoluments as may be determined by the Governor.
13. The Board may appoint such other officers and such attendants and servants as the Board may think fit for the management and service of the hospital, who shall receive such emoluments as may be determined by the Governor. Such officers, attendants and servants shall be servants of the Board and shall perform such duties as the Board shall from time to time direct. The Board, subject to approval by the Governor, may dismiss such officers, attendants and servants.
…
15. Subject to the provisions of this Ordinance, the Governor in Council may make regulations with regard to all or any of the following matters, that is to say —
(a) the powers and duties of the officers and servants of the hospital,
(b) the functions of visitors,
(c) admissions to, and discharges from the hospital,
(d) the lodging, clothing, care and maintenance of the inmates of the hospital,
(e) the fees and charges to be paid by persons able to pay for their treatment in the hospital,
(f) the general good order and government of the hospital and every part thereof, and may attach a penalty...
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