McGinty v Glasgow Victoria Hospitals
| Jurisdiction | Scotland |
| Judgment Date | 08 December 1950 |
| Docket Number | No. 23. |
| Date | 08 December 1950 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Blades.
Limitation of ActionsPublic HealthReparationMaster and ServantHospitalEmployee of statutory board of management injured by machinery in hospital laundryLiability of board for breach of common law and statutory dutyNational Health Service (Scotland) Act, 1947 (10 and 11 Geo. VI, cap. 27), sec. 70Public Health (Scotland) Act, 1897 (60 and 61 Vict. cap. 38), sec. 166.
Sec. 166 of the Public Health (Scotland) Act, 1897, as applied to a hospital board of management by sec. 70 of the National Health Service (Scotland) Act, 1947, enacts, inter alia, that a board of management "shall not be liable in damages for anything done by themselves in the bona fide execution" of the Act of 1947.
The pursuer in an action of damages against the board of management of certain hospitals averred that, while employed in the laundry attached to one of the hospitals, she had been injured by having her right hand drawn into the rollers of a calendering machine. She averred that the defenders had failed in their common law duty to provide a safe system of working and also that they were in breach of secs. 14 (1) and 16 of the Factories Act, 1937, by failing to provide and maintain a secure fencing on the machine. The defenders pleaded, inter alia, that the action, being brought against them in relation to the bona fide execution of their duties under the National Health Service (Scotland) Act, 1947, was incompetent under sec. 70 thereof.
Held (diss. Lord Mackay) that the action was competent and was not excluded by the exemption from liability conferred by sec. 70, in respect that a wrong done by the boardtheir alleged failure to take the necessary precautions for safe workingwas not a thing done by them in the bona fide execution of the Act; and, further, in respect that their duty towards the pursuer arose from her contract of employment and was not affected by the statutory exemption.
Observations on the scope of the exemption from liability conferred by sec. 70.
Mrs Louise M'Ginty, 7 Overton Street, Pollok Estate, Glasgow, brought an action against the Board of Management for Glasgow Victoria Hospitals in which she claimed damages for injuries received when her right hand was drawn into the rollers of a calendering machine in the laundry, in which she was employed, of the Victoria Infirmary, Glasgow, for the management and control of which the defenders were responsible.
The pursuer averred, inter alia:(Cond. 3) "The said accident was caused by the fault of the defenders. It was their duty to provide and maintain in position and in efficient working order a guard so designed that the operator's hand could not be drawn into the said rollers and that it would automatically stop the said machine if the operator's hand came in contact with it. A calender machine such as the said machine in the defenders' said laundry is a dangerous machine in respect that operators require to feed clothes into the said rollers and there is a risk that the operator's hand may be drawn into the rollers and be crushed and burned. The dangerous nature of the said machine was or ought to have been known to the defenders. The fitting and maintenance of an automatic guard to calender machines in laundries is usual and common practice, and is a known and recognised precaution. In the performance of their said duties the defenders culpably failed. It was further the defenders' duty to train employees in the use of the said machine and to warn them of the dangers associated with its working. It is the usual practice in laundries for employees to be given such training before being put to work at a calender machine. In the performance of this duty also the defenders failed. They set the pursuer to work at the said machine without first training her in the use thereof, without warning her of the dangers associated with its working and without explaining to her how to stop or reverse the said machine in the event of an emergency. Had the defenders performed the duties incumbent upon them the said accident would not have occurred." (Cond. 4) "Further, and in any event, it was the defenders' duty as occupiers of the said laundry to comply with the provisions of the Factories Act, 1937, and, in particular, sections 14 (1) and 16 thereof. Section 14 (1) of the said Act provides for the secure fencing of every dangerous part of any machinery other than prime movers and transmission machinery, and section 16 provides for the constant maintenance and keeping in position of such fencing. In the performance of these statutory duties the defenders also failed, and so caused the said accident. The said rollers were a dangerous part of the said calender machine but they were not securely fenced."
The defenders denied these averments and pleaded, inter alia:"(1) This action, being an action brought against the defenders in relation to the bona fide execution of their duties under the National Health Service (Scotland) Act, 1947, is incompetent in terms of section 70 of said Act and should be dismissed.1
(2) The pursuer's averments being irrelevant and insufficient in law to support the conclusions of the summons et separatim being lacking in specification, the action should be dismissed."
On 12th August 1950, after a Procedure Roll discussion, the Lord Ordinary (Blades) repelled the defenders' first and second pleas in law, and remitted the case for jury trial.
At advising on 8th December 1950,
LORD JUSTICE-CLERK (Thomson).The defenders are the Board of Management for Glasgow Victoria Hospitals and they exercise their functions under and in terms of the National Health Service (Scotland) Act, 1947.16 In connexion with the Victoria Infirmary, which is an institution under their jurisdiction, the defenders operate a laundry. The pursuer was employed by the defenders as one of the staff of the laundry. While so employed she met with an accident, and she has raised this action against the defenders for reparation. The grounds of the action are (1) that at common law the defenders failed in certain respects in the duty which they owed to the pursuer, and (2) that as occupiers of the laundry they failed to comply with certain sections of the Factories Act, 1937.17 The defenders plead that the action, being one brought against them in relation to the bona fide execution of their duties under the National Health Service (Scotland) Act, 1947,16 is incompetent in terms of section 70 of that Act.
[His Lordship quoted section 70, and also section 166 of the Public Health (Scotland) Act, 1897.18]
Section 166 is a section of respectable ancestry. The part of it with which we are specially concerned appeared in section 118 of the Public Health (Scotland) Act, 1867.19
Section 166 has not given any great difficulty when it has from time to time been considered in the Courts. It seems not improbable that section 166 was incorporated into the 1947 Act20 chiefly for its time-limit provision, and it is not surprising that, for that purpose, it was regarded as safer than the highly controversial time-limit section in the Public Authorities Protection Act, 1893.21Unfortunately it does more than deal with the time limit. However respectable its ancestry, the question remains whether section 166 can live with the parvenu section 13 of the 1947 Act.22 The problem so raised is one of difficulty and importance. It would appear that the necessity of adjusting this old section to modern conceptions has not been fully appreciated.
The mode of approach to this problem is authoritatively set out by Blackburn, J., in Mersey Docks and Harbour Board Trustees v. GibbsELR.23 Citing Lord Campbell in an earlier case, he said that "in every case the liability of a body created by statute must be determined upon a true interpretation of the statutes under which it is created." I think too that what Blackburn, J., had to say later24 in regard to the liability of corporations like the Mersey Docks Trustees, trading without reward to themselves, is applicable to bodies like the defenders:"In the absence of anything in the statutes (which create such corporations) showing a contrary intention in the Legislature, the true rule of construction is, that the Legislature intended that the liability of corporations thus substituted for individuals should, to the extent of their corporate funds, be co-extensive with that imposed by the general law on the owners of similar works. If, indeed, the Legislature has, by express enactment or necessary intendment, enacted that they shall not be subject to such a liability, there is an end of the question." Then at page 110 he said: "The proper rule of construction of such statutes is that, in the absence of something to show a contrary intention, the Legislature intends that the body, the creature of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities, as the general law would impose on a private person doing the same things."
It seems to me, therefore, that in order to succeed the reclaimers must show that section 70 is apt as an express enactment or by clear implication to overcome this presumption, a task which is rendered all the more difficult by the presence in the statute of the positive terms of section 13.
It can safely be said of section 13 that the provision that a Board of Management "shall be liable in respect of any liabilities incurred
(including liability in damages for wrongful or negligent acts or omissions)" in exercising its functions appears at lowest to contemplate that the pursuer's action is competent and apart from the terms of section 70 it is impossible to see how the defenders could present any argument at all. The defenders say, however, that they can give a limited content to this provision which is consistent with their view of section 70. That is a matter to which I shall return after considering the...
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