Razzel v Snowball
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE BIRKETT,LORD JUSTICE MORRIS |
| Judgment Date | 25 October 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J1025-1 |
| Court | Court of Appeal |
| Date | 25 October 1954 |
[1954] EWCA Civ J1025-1
In the Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Birkett and
Lord Justice Morris
MR S.N. BERNSTEIN (instructed by Mr Walter O. Stein) appeared on behalf of the Appellant (Plaintiff).
The Hon. J.R. CUMMING-BRUCE (instructed by Messrs Hempsons) appeared on behalf of the Respondent (Defendant).
On the 23rd November, 1950, Mrs Razzel was operated upon by a surgeon, Mr Snowball, at the St. Mary's Hospital, Eastbourne. Her toes were deformed and the surgeon operated upon them by breaking them and resetting them. Two years later, on the 28th November, 1952, Mrs Razzel brought this action alleging negligence against Mr Snowball in his conduct as a surgeon. In his Defence Mr Snowball, through his legal advisers, takes the point that the proceedings are out of time.
He says that he is protected by section 21 of the Limitation Act, 1939, which lays down a time limit of one year for public authorities. The surgeon says he is protected by the one year limitation on the ground that he was "acting in execution or purported execution of a public duty or authority and/or pursuant to the provisions of the National Health Service Act, 1946".
I am glad to say that since the Law Reform (Limitation of Actions) Act, 1954, the problems arising from the Public Authorities Protection Acts will no longer trouble the Courts. Since June, 1954, the period of limitation is the same for everybody whether they are public authorities or not, namely, three years. But this case is not affected by that Act.
The material facts are that Mr Snowball was a part-time surgeon engaged as a specialist under the National Health Service. The terms of his engagement were contained in a letter of the 5th January, 1950, which the Secretary of the South-East Metropolitan Regional Hospital Board wrote to him in these terms: "I am instructed by the South-East Metropolitan Regional Hospital Board to offer you a part-time appointment as General and Orthopaedic Surgeon with effect from 1st January, 1950, to the staff of the hospitals maintained by the following Hospital Management Committee(s) Eastbourne (General Surgery - two notional half-days), (Orthopaedic Surgery - two notional half-days)". The letter said that the duties attached to the appointment were "the provision of hospital and specialist services under section 3 of the National Health Service Act, 1946, within your appointment", and other things. The letter went on to say: "The average number of hours per week for which, it is estimated, these duties and the travelling time necessary for the performance of these duties will require your attendance is fourteen and this number of hours represents four notional half-days". Then it gave his salary, £795. 9s. 1d. for the part-time work he was doing. The appointment incorporated the terms and conditionsof service which were issued in a pamphlet by the National Health Service, to which we have been referred. Mr Snowball on the 11th January, 1950, accepted the terms of the appointment. It was whilst he held that appointment that he performed the operation of which complaint is made in this action: and it was in the course of his duty to perform it. The question is whether that brings him within the protection of the Statute.
Section 21 protects the surgeon if the act was done "in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority". The surgeon says that he comes within that section because it was the duty of the Minister of Health under the National Health Service Act, 1946, to provide treatment by means of specialists; that, when he was operating on the Plaintiff, he was only an agent of the Minister carrying out the Minister's duty; that he is therefore protected by the Act. Whereas the Plaintiff says the Minister was under no such duty. The Minister's duty, she says, was only to provide the specialists and not the treatment; and that when the surgeon performed the operation he was not carrying out the Minister's duty but only the surgeon's private duty.
The question therefore is, what is the Minister's duty under the Act? Is it to provide treatment or merely to provide specialists? This depends, of course, on the true interpretation of the Act.
By section 1 it is the duty of the Minister to "promote the establishment in England and Wales of a comprehensive health service … and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act". One of the services which he has to provide is "hospital and specialist services", and in regard to them section 3 of the Act says that "it shall be the duty of the Minister to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements,accommodation and services of the following descriptions, that is to say:- (a) hospital accommodation; (b) medical, nursing and other services required at or for the purposes of hospitals; (c) the services of specialists, whether at a hospital, a health centre provided under Part III of this Act or a clinic or, if necessary on medical grounds, at the home of the patient". As I read that section in the light of the other sections of the Act and of the regulations, it is the duty of the Minister to provide all necessary services at the hospitals. He is to do it by means of doctors and nurses under sub-paragraph (b) and by means of specialists under sub-paragraph (c). He does not discharge his duty merely by appointing competent doctors and nurses and competent specialists. He has not merely to provide the staff. He has to provide their services: and, inasmuch as their services consist of treating the sick, it is his duty to treat the sick by means of their services.
An attempt was made to distinguish between doctors and nurses under sub-paragraph (b) and specialists under sub-paragraph (c). It was conceded that doctors and nurses were carrying out the duty of the Minister but it was said that specialists were not. I cannot see any justification for this distinction. All of them, doctors, nurses and specialists, are carrying out the Minister's duty to treat the sick.
Turning back now to the contract by which Mr Snowball was engaged, there can be no doubt that the Regional Board appointed Mr Snowball as a specialist to perform the duty which the Act laid upon the Minister, namely, to treat the sick by means of specialist services: and that being so, Mr Snowball was simply carrying out the Minister's duty and is protected by the Limitation Act.
In support of this interpretation of the Act I would like to refer to the observations which Lord Greene and Lord Justice Goddard made in the case of Gold v. Essex County Council reported in 1942, 2 King's Bench, page 293,at pages 303 by Lord Greene and page 309 by Lord Justice Goddard. The terms of the Act then in question were those of the Public Health Act, 1936. They were not nearly so strong as the terms of the National Health Act, 1946, but nevertheless both Lord Greene and Lord Justice Goddard were clearly of opinion that the effect was to impose a duty on the hospital authority not merely to provide staff...
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