NOTES OF CASES
| Published date | 01 January 1940 |
| Date | 01 January 1940 |
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00762.x |
NOTES
OF
CASES
225
NOTES
OF
CASES
Principle
of
precedent
Nelson
v.
Cookson,
[I9401
I
K.B.
100,
is
a
decision which deserves
notice for
two
reasons. The defendants, who were medical officers
at
a
county council hospital, were sued for negligent performance of an opera-
tion and pleaded the Public Authorities Protection Act.
It
was argued for
the plaintiff that. since they were not servants of the hospital authority
so
as
to bring the doctrine of
respondeat superior
into play
(HilZyer
v.
Governors
of
St.
Bartholemew’s Hospital,
[~gog]
2
K.B.
820),
they must
be
independent contractors who are unable to claim the benefit of the Act
(Tilling,
Ltd.
v.
Dick Kerr
&
Co.,
[I9051
I
K.B.
562).
Atkinson,
J.,
thought
this an interesting argument to which he might have been disposed to
attach some weight had
it
not been for two previous decisions to the
contrary by which he thought himself bound.
It
is
clear from the judgment
of the majority of the Court of Appeal in
Wardell
v.
Kent
C.C.,
[1938]
z
K.B.
768,
that the common law classification into servants and inde-
pendent contractors is not necessarily exhaustive where the interpretation
of
a
statute is concerned, and we respectfully agree with the learned judge
who is reported in
[I9391 4
All
E.R.
30,
at p.
34,
as
saying:
“It
seems to me
really almost an absurdity to ask me to regard the defendants as inde-
pendent contractors. They are not; they are officers of
a
public body
performing
a
public duty imposed upon the county council, a duty which
can only be performed through and by individuals.”
The second, and more interesting, point concerns the nature of the
authority by which the learned judge held himself bound. In two previous
cases, one
a
decision of the Court of Appeal and the other
a
considered
judgment of McCardie,
J.,
it had been conceded by the plaintiff and assumed
by the Court without argument that medical officers in the position of the
defendants were within the protection of the statute. Whether these
cases created precedents which had to be followed in the instant case is
a
matter on which there is little authority. The older view is summed up in
Viner’s Abridgment, tit.
Precedents (A)
2,
in which it is said that “preced-
ents which pass without challenge of the party or debate of the Justices
are not regarded as law.” This statement was modified or explained by
Parker,
C.J.,
in
Reg.
v.
BewdZey
(I~IZ),
I
P.Wms., at
p.
223,
where he
remarked
:
“
It
is
a
rule, indeed, that precedents
sub silentio
are of little
or no authority: but that
is
to be understood of cases where there are
judicial precedents to the contrary.” The Chief Justice is here limiting
the application of the maxim to situations which arise not infrequently
when
a
court assumes
a
point of law in ignorance of the fact that
it
has
previously been decided the other way after argument. A modem example
of this can be found in
Fisher
v.
Oldham Corporation,
[I9301
z
K.B.
364,
in which McCardie,
J.,
refused to follow a line of decisions based on the
assumption that a police officer is the servant of the corporation which
engages and pays him, in which older authorities to the contrary were
not discussed or even cited. But the question in the instant case concerned
the importance to be attached to an assumption about the interpretation
of
a
statute when no conflicting judicial view had been expressed. Such
an assumption must be of a persuasive and not
a
binding nature, and its
weight must vary with its reasonableness and the length of time during
which
it
has passed unchallenged.
If
the assumption is obviously wrong,
226
MODERN LAW REVIEW
Jan.,
1940
88
was the case in
Coohney
v.
Anderson
(1863),
I
De
G.
J.
&
S.
365,
where
Lord Westbury assumed that the statutory provisions governing the issue
before
him
were contained in Acts of
1830
and
1832,
in
ignorance of the
fact that
those
Acts had been amended in
1840,
the assumption will not be
followed, even by an inferior court
(Drummond
v.
Drummond
(1866).
L.R.
2
Eq.
335,
afirmed
L.R.
2
Ch. App.
32).
If
it
is not obviously wrong,
a
judge is free to accept
or
disregard it, and the decision
will
depend on
whether satisfactory arguments can
be
adduced
ex post fact0
in its support.
But if it has stood unquestioned for some years, a judge will
be
loath to
overrule it even if he personally thinks
it
wrong, and
his
attitude will
gradually harden into one of unqualified acceptance
if
there continues to
be no challenge. The situation
is
exactly comparable to that which arises
when a superior court is faced with a point on which there is a consistent
line of authority in the lower courts
(Bourne
v.
Kean,
[I9191
A.C.
815:
Re Cawington,
[1932]
I
Ch.
I).
This
was
the view taken by Atkinson,
J..
in the present cam, for he said
([I9391 4
All E.R., at p.
33)
:
“I
quite agree
that the matter has not been argued and made the point of a decision.
It
is
still
open
to
be
dealt with, but when one finds that for quite a long time
a certain rule has been accepted as law, it would take a great deal to con-
vince one that it was wrong.” The opening words
of
this
quotation down
to “open to
be
dealt with” do not appear
in
the
Law Reports
or in the
version in
56
T.L.R.
2,
but this omission affects the clarity and not the
force of the argument.
From the nature of the case, any challenge to prevent time running in
favour of the assumption cannot come from the Bench, for then there
would
be
a conflict of judicial opinion, and the remarks of Parker,
C.
J.,
quoted above, would apply. Acceptance or non-acceptance, therefore,
could
be
proved only by reference to the opinion of the profession
zs
reflected in textbooks and articles. Some confirmation of the attitude
of
Atkinson,
J.,
can
be
found in
A.-G.
v.
Hancock,
[I9401
I
All E.R.
32,
where
Wrottesley,
J,,
in
deciding that the Courts Emergency Powers Act,
1939,
did not bind the Crown, thought
it
“not unimportant and not entirely
irrelevant” that an Irish
Court
had assumed that the similar statute passed
in
1914
did not apply to the Crown and that no person had previously
come forward “either in respect of the Courts Emergency Powers Act,
1914,
during
its
pendency, or under the present Act,” to maintain the
contrary. The less forceful language used by the latter judge can
be
explained on two grounds, firstly, that
Irish
decisions are
of
persuasive
authority only in this country, and secondly, that the assumption relied on
concerned a statute other than the one before him, though the material
parts of both were couched in almost identical language.
D.
W.
LOGAN.
COrpoFate
Entity
The perennial problem, whether and in what circumstances the veil
of corporate entity can be lifted appeared in a somewhat unusual setting
in
Smith,
Stone
and Knight. Ltd.
v.
Birmingham Corporation,
[I9391
4
All
E.R.
116.
The tendency rigidly to uphold the strict separation between the
assets
and liabilities of the corporate person and those of the incorporators
prevails in company law proper and in private law in general.
A
more
“realistic” attitude
has
sometimes been adopted in revenue law. The
case
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