Corporation of Glasgow v Smithfield and Argentine Meat Company, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 26 January 1912 |
| Docket Number | No. 61. |
| Date | 26 January 1912 |
| Court | Court of Session |
Ld. Ormidale, Lord Salvesen, Lord Guthrie, Lord Justice-Clerk.
Public Health—Possession and sale of food—Seizure of meat erroneously alleged to be unsound—Claim for compensation—Liability of Local Authority—Public Health (Scotland) Act, 1897 (60 and 61 Vict. cap. 38), secs. 43, 164, 166.
Limitation of action—Public Health—Claim for compensation against Local Authority under Public Health Act, 1897—Application to Local Government Board for appointment of arbiter—Limitation of time for taking proceedings—Public Health (Scotland) Act, 1897 (60 and 61 Vict. cap. 38), sec. 166—Public Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), secs. 1, 3.
The Public Health (Scotland) Act, 1897, provides, by sec. 43, that a veterinary surgeon, approved by the local authority, may seize and carry away meat which appears to him to be diseased. Sec. 164 provides that compensation, to he ascertained in certain circumstances by arbitration, shall be paid to any person sustaining damage through the exercise of any of the powers under the Act. Sec. 166 provides that the local authority ‘shall not be liable in damages for any irregularity committed by their officers in the execution of this Act,’ and that every ‘action or prosecution’ on account of any ‘wrong’ done in any operation under the Act must be commenced within two months.
The Public Authorities Protection Act, 1893, provides, by sec. 1, that any ‘action, prosecution, or other proceeding’ in respect of an act done in execution of an Act of Parliament must be commenced within six months of the act complained of, except (sec. 3) when the Act of Parliament applies only to Scotland and contains a limitation of the time for the action, in which case the Public Authorities Protection Act does not apply.
A veterinary surgeon, approved by the local authority under the Public Health Act, 1897, seized and carried away meat which appeared to him to be diseased, but which eventually did not prove to have been diseased. The owners of the meat claimed compensation from the local authority for the value of the meat, and presented an application to the Local Government Board, more than six months after the seizure of the meat, for the appointment of an arbiter to ascertain the compensation due. The local authority thereupon brought an action to interdict the application from proceeding.
Held (1) that the local authority were not relieved from liability by virtue of sec. 166 of the Public Health Act, the claim not being a claim of damages for an ‘irregularity’ in the sense of that section, but a claim for compensation under sec. 164; (2) that the proceedings were timeously taken, in respect that this was not the case of an ‘action or prosecution’ for a ‘wrong’ in the sense of sec. 166 of the Public Health Act, which had to be brought within two months, nor of an ‘action, prosecution, or other proceeding’ in the sense of sec. 1 of the Public Authorities Protection Act, which had to be brought within six months; and interdict refused.
Held further (per Lord Salvesen) that, in any event, an action, prosecution, or other proceeding on account of an act done under the Public Health (Scotland) Act, would fall within the proviso in sec. 3 of the Public Authorities Protection Act, so as to exclude the application of that statute.
In June 1910 the Corporation of the City of Glasgow, being the Local Authority acting under the Public Health (Scotland) Act, 1897, presented a note of suspension and interdict against (1) The Smithfield and Argentine Meat Company, Limited, London, and (2) The Local Government Board for Scotland, for any interest they might have. In the note the complainers craved the Court ‘to interdict, prohibit, and discharge the respondents The Smithfield and Argentine Meat Company, Limited, and all others acting in their behalf or by their authority from in any way proceeding with or following forth a pretended application, dated 10th June 1910, made by them to the respondents the Local Government Board for Scotland, and bearing to be an application for the appointment of a sole arbiter to ascertain the pretended compensation to be paid to them by the complainers under section 164 of the Public Health (Scotland) Act, 1897; and further, to interdict, prohibit, and discharge the respondents the Local Government Board for Scotland from proceeding to the appointment of a sole arbiter, or from in any way acting under the said pretended application.’*
Answers were lodged by The Smithfield and Argentine Meat Company, Limited.
The following narrative of the facts, which were not disputed, is taken from the opinion of Lord Salvesen:—
‘This action is brought to restrain the respondents from following forth an application for the appointment of a sole arbiter to ascertain the claim of compensation to be paid to them by the complainers under section 164 of the Public Health (Scotland) Act, 1897. The main pleas on which the action is founded are that the proposed proceedings are excluded by section 166 of the Public Health Act, or alternatively, by the provisions of the Public Authorities Protection Act of 1893.
‘The facts out of which the claim arises are very simple. On 24th and 25th December 1908 Mr William Trotter, the veterinary surgeon appointed by the complainers and approved by them for the purpose of section 43 of the Public Health Act, seized a quantity of beef in the Meat Market of Glasgow under the powers of that section as being unsound and unfit for the food of man. The meat remained in a detention chamber until 30th December, when it was placed in a cold store. On 31st December a complaint was served at the complainers' instance on Duncan Perritt & Son, in whose premises it had been exposed for sale, and who are the agents of the respondents, the owners of the beef. This complaint was tried on 1st February and subsequent days before the Sheriff-substitute, who, on 4th March 1909, found the charge “not proven,” and awarded Duncan Perritt & Son fifty guineas of expenses. On 5th March 1909 Messrs Perritt's law-agents wrote claiming compensation in terms of section 164 of the Public Health Act, and calling on the Corporation to concur in appointing a sole arbiter. On behalf of the respondents an intimation was made in similar terms to the town-clerk. The complainers refused to recognise the claim, and thereafter, on 10th June 1910, Messrs Russell & Duncan, on behalf of the respondents, wrote to the Secretary of the Local Government Board for Scotland asking the Board to appoint a sole arbiter to ascertain the compensation to be paid to the respondents. The present action was then brought to stop these proceedings.’
The amount of compensation claimed was £69, 3s. 11/2d., being the value of the meat which had been seized and carried away.
The complainers pleaded, inter alia;—(1) The proceedings complained of being incompetent and excluded by section 166 of the said Public Health Act, suspension and interdict should be granted as craved. (2) In any event, the proceedings complained of are barred by the provisions of the Act 56 and 57 Vict. cap. 61. (3) The alleged claim of the respondents The Smithfield and Argentine Meat Company, Limited, not being a claim for compensation within the meaning of section 164 of the said Public Health Act, under which it bears to be made, suspension and interdict should be granted as craved.
The respondents pleaded, inter alia;—(3) The respondents The Smithfield and Argentine Meat Company, Limited, as the owners of
said beef being entitled to claim compensation in terms of the 164th section of the said Public Health Act, and to make the application complained of, the note should be refused.
on 26th January 1911 the Lord Ordinary (Ormidale) refused the Smithfield prayer of the note, with expenses.*
The complainers reclaimed, and the case was heard before the Second Division (without Lord Dundas) on 19th and 20th December 1911
Argued for the reclaimers;—Section 164 of the Public Health (Scotland) Act, 1897,1 under which the respondents' claim was brought, had no application to the present case. That section was intended to provide for cases analogous to the taking of land under the Lands Clauses Consolidation (Scotland) Act, 1845,2 cases, namely, of damage suffered by an individual through the proper exercise of powers under the Act, such as making sewers, entering lands, or removing nuisances.3 The seizure of the meat was not an act of this nature. It was an act which, though executed with due regard to statutory procedure,4 proceeded on an error of judgment on the part of the veterinary surgeon, who believed the meat to be unsound when in fact it was not. Such an act was an ‘irregularity’ in the
sense of section 166 of the Act, for which the reclaimers were not liable in damages. If the respondents' reasoning were sound, it would lead to the conclusion that they would have been entitled to compensation even if the meat had turned out to be unsound, which was absurd. Further, it was a ‘wrong’ in the sense of the latter part of the same section, and the application for appointment of an arbiter was an ‘action,’ and was therefore barred by the fact that it had not been made till more than two months after the date of the operation. The cases of BaterELRELR1 and WalshawELR,2 on which the Lord Ordinary relied, were distinguishable, in respect that they were decided under a statute which contained no section equivalent to section 166 of the Public Health Act, 1897. It might well be that circumstances might arise which, assuming the respondents' construction of the section to be correct, would give a good claim for compensation under section 164 but for the protection to the Local Authority provided by section 166, and accordingly...
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Davie v Board of Management for Glasgow Victoria Hospital
...this connexion; and action, accordingly, dismissed. Opinion of Lord Salvesen in Glasgow Corporation v. Smithfield and Argentine Meat Co., 1912 S. C. 364, at p. 371,commented Thomas Henry Davis, as tutor and administrator-in-law of his pupil child, Mary Ann Davis, brought an action against t......