NATIONAL LAW UNIVERSITY, ODISHA

CASE STUDY ON

Gold v. Essex County Council (1942) 2 All ER 237

SUBMITTED BY SUMBITTED TO-

PRIYAM JAIN (15BBA043) PROF. ABHIK MAJUMDAR
SEMESTER 1ST

DATE 5/10/2015

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 TABLE OF CONTENT

1. INTRODUCTION..... 3

2. LEGAL BACKGORUND OF THE CASE.... 3

3. FACTS OF THE CASE. 3

4. LEGAL ISSUES.... 4

5. ARGUMENTS PRESENTED........... 4

6. DECISION AND REASONS.... 5

7. CONCLUSION.. 5

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INTRODUCTION

The plaintiff was an infant who was treated by the radiographer at one of the defendants
hospital. Radiographer was an employee of the hospital. The plaintiff came for her treatment
for skin related problem. The radiographer who treated her. He failed to take adequate measure
for screening material in giving the Grenz-ray (the Grenz ray is smaller than the wavelength)
treatment, and the plaintiff suffered injury to her face which was permanent in nature and he
sued defendants for negligence.

LEGAL BACKGROUND

Before this case scenario was very different employer was only liable for the negligent act of
employee done under the course of the employment under the administration or ministerial
duties it was also held in Fleming v. Sisters of St. Joseph1 that defendants are liable for
negligence, acts of a nurse because the act was done an ordinary course of employment and
their proper test in determining liability.

In Hillyer v. The Governors of St. Bartholomews Hospital 2the control test was inadequate in
determining the liability of employer whether the act was control of the authority, control test
was didnt work and action was not maintainable under vicarious liability.

FACTS

Ruth Ann Gold (five year old infant) on 11 July 1940, went to the Old church County Hospital.
The hospital maintained under the statutory power by the Essex county council. The infant has
been first examined by the Dr. Burrows who had been working as dermatologist at hospital,
Dr. passed her to radiology department having prescribed the nature of the treatment which she
was to receive and the number of units of the ray that were to be applied. He suggested 1000
units at first. The gold went with her mother to radiology department for treatment and there
she was treatment by Mead. She also had several treatments prior to July 11 and during the
treatment Mead applied this ray and screened the little girls face other than the warts with a
rubber material lined with the lead, which he had placed over a layer of lint. She had no ill

1
[1937] 2 D.L.R. 121
2
[1909] 2 K.B. 820

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effects, but wartz had not been removed. The gold saw Dr. Burrows again and he suggested
this time 2000 units and then on 11 July gold received the further treatment, while treatment
was going the gold didnt use the rubber lead-lined material as a screen for the face, he only
used lint as protection. He told mother to use gloves which was lead-lined and she held the
childs head in position with gloves. Area of the face was not covered by these gloves, gloves
were meant only for mothers hand protection not for any screening. Dr. Mead thought lead
will be sufficient for screening. As a result gold developed ulcers on her face. Subsequently
her face became very painful and finally resulted in permanent disfigurement of lower part of
face.

LEGAL ISSUES

1. Whether the employer will be vicariously liable for the act of employee which required
professional duties?
2. Whether the Hospital will be liable for the negligence act of employee?

ARGUMENT PRESENTED

Defendants - Argued that Dr. Mead was not negligent in screening. Though he didnt use
rubber lead line material as screen for the face, 88% of the rays are stopped by three
millimetre of skin and the remaining 12% do not do any harm. Mead was thought that the
layer of lint used was equivalent to three millimetres of skin and he was mistaken.

Plaintiff argued that hospital failed to provide adequate facilities and proper screening and
employed a radiographer who is of less competence and untrained.

Plaintiff defendant failed to provide nurse for helping the radiographer instead they asked
mother to hold the childs face.

Defendants they argued that mother is successful in any kind .she is best in any work so
she is also best nurse in ordinary course and she takes care of her child even better than any
other stranger.

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Plaintiff why didnt Dr. Mead use the rubber sheets for screening as he used before.

Defendants they also argued that Mead used rubber sheets before July 11 that means it was
available in the hospital and it is not responsibility of hospital to see every day that items are
available there in the actual room. Here Mead is at fault not the hospital.

Plaintiff they argued that though the act of mead required professional skills but in the
ordinary course he is also acting as nurse, as a technician for which hospital will be held liable
and if hospital treats patients it takes full responsibility of caring and ensures that everyone is
safe. Plaintiff also referred to case laws Anderson v. Glasgow Royal Infirmary3and another case
Fleming v. sisters of St. Joseph4 in the these cases judges denied the judgement given by the
KENNEDY, L.J. in Hillyer v. St. Bartholomews Hospital (Governors)5 that Employer is not
responsible for the negligent act which requires the professional duties and said that staff are
no different while performing the professional duties so the hospital will be held liable.

Defendants they simply denied the arguments given by the plaintiff by stating that hospital
authorities are not responsible because they have no control over the act of the employee while
performing their duties they also referred to reasoning given by KENNEDY, L.J. in Hillyer v.
St. Bartholomews Hospital (governors)6- if the members of professional staff, of whose
competence there is no question, act negligently toward the patient in some matters of
professional care or skill, or neglect to use, or use negligently, in his treatment the apparatus or
appliances which are at their disposal the hospital authority will not liable for handling the
appliances or any professional duties, hospital will be liable for the ministerial or administrative
duties.

DECISIONS AND REASONS

It was held that hospital will be not be liable for negligent act committed under the professional
duties by the lower court because Hospital have no control over the act of employee for doing
any operation and it was proved from vary fact that screening required professional skills and
employee was fully competent to administer the treatment. But later judgement was changed
by the court of appeal by making distinction between medical staff on basis of Contract of
service(Nurse, staffs) and Contract for Service (independent consultants).

3
Anderson v. Glasgow Royal Infirmary [1932] S.C. 245
4
Fleming v. Sisters of St. Joseph[1937] 2 D.L.R. 121
5
Hillyer v. St. Bartholomews Hospital (Governors) [1909] 2 K.B. 820
6
Ibid.

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CONCLUSION

Employer is responsible for the negligent act of the employee during course of employment,
Liability of the employer depends upon the circumstances of the case. For determining the
liability of employer where employees act was under the professional duties required to see
employee was employed under which contract i.e. (contract of service or contract for service)
which is essential for determining the employers liability.

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