A FATHER’S LIABILITY.

Star (Christchurch), Issue 12748, 18 September 1919, Page 8

A FATHER’S LIABILITY.

OPERATION ON SON. A SPECIALIST'S FEE. An interesting case concerning a father’s liability in respect of a debt contracted by his son, a minor, came before Mr P. L. Rollings, S-M., at the Magistrate’s Court to-day, when Dr A B. O'Brien, a well-known medical practitioner and specialist, proceeded against William Vivian Whitta, described as a financial agent, to recover the sum of £l2 12s for an operation performed on defendant’s son* a lad of about seventeen years at the time of the operation, October 19, 11117. Mr Barrett appeared for plaintiff, and Mr Goodman for defendantDr A. B. O’Brien, medical practitioner and specialist in diseases of the car, eye, nose and throat, stated that defendant’s son was sent to him, apparently by his singing master, in connection with some recurrent trouble to his tonsils. Witness advised an operation, which was of a nature removed from the ordinary operation in such cases, being complete removal of the tonsils. The consultation took place on October 15, 1917, and the operation was performed on October 19. Defendont’s son was operated on at a nursing home. Witness visited the patient on the evening of the operation ,-md subsequently on October 20. October 21, October 24 and November 1. On the last tw'o occasions defendant’s son came to witness’s surgery. A fee of £lO 10s *was charged for the operation, £1 Is for the administration of the anaesthetic and £1 Is for the consultation- Eleven accounts had been sent, the first on February 12, 1918. No notice had been taken of them. The fee w*s moderate. He took action as a matter of principle. To Mr Goodman- He believed defendant had, about eighteen months ago, rung up witness’s surgery- and told the attendant that he did not recognise the account. Ten guineas was usually the minimum fee for this class of operationIn this case there was the operation and five attendances. The operation was necessary in the boy’s interests. He bad already had four atttacks of tonsilitis in six months. Defendant’s son visited him in good faith, and witness look it as a responsible case. Mr : Was the operation necessarv?

Witness: Do you think I removed the boy’s tonsils for fun? John P. .Whetter, medical practitioner, stated that the majority of operations of the kind were done by specialists. The fee was very reasonable. Where there was no specialist a medical practitioner would perform the operation, but that was not usual. ‘‘ Tonsiloctomy,” which bad been performed, was something more than the ordinary snipping of the tonsils. To Mr Goodman: Ho had performed the operation ou only one occasion. He would expect a man of means to pay a fair fee. In the case oi poor clients allowances were made. A doctor would not refuse to perform the operation because a poor man could not pay the specialists’ fee. Charity work had to be taken into account, and tha.t was ono reason why fees varied in' the cases of the poor and those better off. Dr O’Brien’s fee was quite fair and reasonableHus closed the case for plaintiff. Mr Goodman asked for a nonsuit on the ground that the operation was not authorised by defendant, who was out of New Zealand at the time. To succeed plaintiff would require to show that even ip case of necessity a father nas responsible for his son. Agency would have to be proved. Mr .Goodman quoted English law in support tt his contention What had happened, stated counsel, was that a -singum master had sent the boy to see D? O’Brien, and the doctor had advised an “ earned out an operation Mr Barrett replied that it was not necessary to prove agency. The plea ''as a most discreditable one from a person in defendant’s position. Mr Goodman; I object to that ic--1 Wil] the pomt and hear evidence. i llVian Whitta, the defendant, stated that neither he nor S'To a °l>fo’£ ad ;Ulthorised hi « son to ff; * Bn ® n or have the operation performed. Witness and hri wife were m Sydney at the time it took place. When the first account Wi reoe f re<l ™ tness ran g UP Messrs Newburgh and Best, who sent the bill, and sta ted that the account wag not his and fie did not recognise it. Witness’s son earned £2 a week. To Mr Barrett: He remembered talking to Dr Crßrien on th© railway sta* tion on his return and was then aware that the operation had been performed on his son. He gay'e no authority for it to bo done. Witness was a bookmaker, and might make from £3OOO to £4OOO a year. He had repudiated the account. Mr Barrett claimed that apart from the law on the class of case it was a most fitting instance for the application of the equity and good conscience clause. After remarking that the clause was not necessarily good law, argument and decision were adjourned till the afternoon sitting. On resuming in the afternoon, Mr Goodman said that there was a general impression tliat a father was responsible for his son’s debts, but that was a fallacy, even in the case of necessities. If that were not so, a son could land his father in for a lot of trouble. A major operation might cost £2OO and a minor £lO, but there was no difference in principle. The Magistrate: Do you suggest that in the event of a parent’s absence and urgent piedical attendance being necessary, without authority a medical' man could not act? Mr Goodman: There is the Hospital available in case of emergency. After further argument, the Magistrate said that he had gone into the question of law since the adjournment, and could not find anything to alter the conclusion h(j> had come to. He could not allow the nonsuit. It was laid down in Halsbury, Vol. 6, page 114, that the moral duty of a parent to maintain his infant children had been recognised by the courts, wmcb had refused to allow maintenance out of the property of infants when the father was in a position to maintain them, and had presumed, in the absence of evidence to the contrary, that a person with whom they were living with his consent was authorised to contract debts to provide them with necessities. If the case was governed by the law of agency then the principle of ratification also applied, and in such a case as that in question, where, the health of a child was in danger the slightest evidence of ratification ’was sufficient. In this case the operation on the boy became necessary while tfip parents were away in Sydney. The father of the boy knew while in Sydney that the operation had been performed and did not take immediate steps to repudiate on his return, although ho had an opportunity to do so when he met plaintiff on the railway station and when receiving numerous accounts. With regard to the claim the evidence showed that the operation was a difficult one and possibly a dangerous one which required the expert knowledge and skill of a specialist, and in the circumstances the fee was not unreasonable. Judgment would he for plaintiff, with costs. On Mr Goodman’s application leave to appeal was granted’.