COURT OF APPEAL.

New Zealand Herald, Volume XXIX, Issue 8886, 24 May 1892, Page 5

COURT OF APPEAL.

JUDGMENT IN AUCKLAND CASES. [Br TELEGRAPH.—OWN CORRESPONDENT.] Wellington, Monday. The Court of Appeal to-day gave judgment in the following Auckland cases : — AUCKLAND HOSPITAL HOARD V. LOVETT. Mr. Justice Williams in delivering the judgment of the Court in this case said : — It must be taken in accordance with the finding of the jury in the Court below that the injury complained of was caused by improper treatment; but it was admitted that the Board in selecting the medical officer of the Hospital made the fullest enquiry as to qualifications, professional status, and experience of the person to be appointed. It was not shown at the trial of the action that there had been anything unsatisfactory in his previous conduct which would be a reason for objecting to his appointment, nor did anything take place which would have afforded a reason to doubt that he was in every way qualified for tho oflico ho .was to hold. In order to enable the respondent to succeed (as plaintiff in the action), it was necessary to have proved that the relation of master and servant existed between the Board and its medical officer. If .this relation did not exist the Board was not liable. There does not appear to have been any contract. The Board did not receive any benefit from tho success of the treatment adopted in the Hospital; as regards the inmates, tho treatment, so far as they wero concerned, ,vns wholly gratuitous. They received no payment as to their own position as a Board. Their province was the administration of charitable funds. It could hardly be said that their function was in any respect higher than to inquire diligently and satisfy themselves that the oflicer they might appoint to nave charge of the Hospital was the best man they could got, one who duly qualified. Suppose a benevolent person sent, an unfortunate man or woman to a properly qualified medical man, would there be un action against such a benevolent in dividual if tho person desired to be benefited should have received improper treatment? No doubt it was the duty of any person acting evsn with a benevolent motive to see that the doctor was a dulyqualified and competent man. If the Board is liable it must be because the relation of master and servant existed between it and the medical ollicer. It is only on this ground that they can be held answerable for his negligence. The medical officer in this case was employed at a salary, but lie was to have full control over the Hospital servants and inmates, and to be responsible to the Board alone. The relation of master and servant arises only where the master can control the work and the worker where the master determines the aim and purposo of tho work to be done. A servant, according to Lord Bramwell, is a person subject to tho command of another, and doing his work according to the order of that other person. The medical man engaged did not undertake to do any " direct" work for the Board. In all probability, if the Board had attempted to interfere, directly or indirectly, with the work he was doing at any time, it would have been his duty to prevent them. The treatment that was to be applied in any case was prescribed by the doctor, and not by the Board. This consideration negatives tho existence of any relation of master and servant between the Board and medical ollicer, and no such relation had been shown in this case. The appeal must be allowed, with costs. It might be desirable that the Legislature should define more precisely the duties and liabilities of such a public body as this.

Mr. Chapman applied for costs on the middle scale, also for a refund of the costs paid by the Board in the Court below, £175. The application was granted. CAft AND OTHERS V. THOMAS AND OTHERS.

Mr. Justice Denniston delivered tho judgment of the Court in this case. He said: The Court below found that the respondent (tho defendant in tho Court below) had been in possession of tho piece of ground which formed the subject matter of the action for 'JO years; in fact, that lie had continued in occupation since 1868. The land up to that time and afterwards was said to have been held in trust for tho Auckland Total Abstinence Society, but so far as anything was known, the trustees were absent the whole of tha period from the colony. The question then arises who ther they exercised any acts of ownership which would have preserved or revived their claim to possession. The point turned upon the question of evidence to show whether any of the three trustees mentioned had returned to the colony, whether Hennessy, McNair, or Hunter were in the colony, or had returned at any time during tho adverse occupation to tho colony, if they had left it, or were alive or dead. Tho witness Robertson could only say that he knew Hennessey and Hunter had left the colony. Joseph Newman said he was acquainted with Hunter, who had left the colony Derrona and Heath also gave -imiiar evidence. Another witness said that Hunter never came back, and another that Hunter was dead, but could not say when he died. Tile fact appeared to be that these witnesses did not really know anything about the persons they spoke of ; all they could say was that they had been members of the Auckland Total Abstinence Society. The evidence adduced was by no means adequate to prove the plaintiffs' case, therefore the appeal must be dismissed with costs on the middle scale.