Alves v Attorney General of the Virgin Islands

The claimant was a nurse working in the Peebles public hospital in Tortola. In April 2003 she was attending an elderly and immobile patient when the wheel of his bed collapsed. In an effort to save him from harm, she injured her back quite severely.

As her employer, the Government met her medical expenses for some three years or more, but then ceased to do so. In December 2007 she brought an action claiming damages for the personal injuries which she had sustained. Her case was put in negligence, on the basis that her employer owed her the ordinary employer’s duty of care at common law to provide and maintain a safe system of work together with adequate plant and equipment, and had broken that duty by failing to supply a bed in good repair.

The government by its pleaded defence admitted the whole of the statement of claim except for the claim for interest. But it pleaded that the action was statute-barred by the six month period provided for by section 2 of the Public Authorities Protection Act (Cap.62) (“PAPA”). Unless that Act applied, the claimant’s action was brought in time. The only issue in the case was and remains whether the six month period applied. The trial judge held that it did not, but the Court of Appeal disagreed.

Section 2 of PAPA provides:

It is immediately apparent that there are grammatical slips, doubtless inadvertent, in the statute as printed. The here emphasised word “of” in the fourth line plainly ought to read either “for”, or “in respect of”. Secondly, the here emphasised word “act” in the fifth line is plainly a reference to the statute, not to a deed or event; it should accordingly be “Act”. “In respect of” and “Act” both appeared in the English Public Authorities Protection Act 1893 (56 & 57 vict, c 61) (“PAPA 1893”), now long repealed, which was clearly the model for this statute and which was otherwise in identical terms. Thus read, as clearly it has to be, the statute says that the six month limitation period applies to:

This is merely to give effect to the undoubted intention of the legislature. The principal question in the case is whether the statute applies the six month limitation period in relation to any and every action performed by a person authorised to do it by statute, or only to some subset of such actions. On this point, the cases decided on this and directly comparable statutes in various jurisdictions are very difficult to reconcile.

The relevant statutory provision, relied on by the employer government for the application of PAPA, was the Public Hospital Ordinance (Cap.195). Section 3 of that Ordinance says as follows:

The Ordinance goes on to provide for the Governor to appoint a Board to manage the hospital. These provisions gave rise to a secondary argument on behalf of the claimant that PAPA did not apply to her accident because the government, as her employer, was not acting under the Ordinance at the material time. Those provisions of the Ordinance are, so far as material, as follows:

The claimant contended that the government could not have been acting under the Ordinance at the time of Mrs Alves’ accident, because the management of the hospital was committed not to the government but to the Board. That argument was accepted by the judge. The Court of Appeal, without dealing with it expressly, must have rejected it in order to allow the defendant government’s appeal.

This supplementary argument is unsound. Whatever may be their correct ambit, the terms of PAPA apply equally to an action done in pursuance (etc) of a statute, such as the Ordinance, and to any other action done in pursuance (etc) of any public duty or authority. Even if section 3 of the Ordinance does little more than vest the real property of the hospital in the government, it certainly authorises the government to carry on a public hospital there. There is no evidence about the present working relationship between the Board and the government. It seems likely that the true position is that the Board manages the hospital on behalf of the government, being appointed by the Governor, who has the very extensive powers of control via regulations which are given by section 15. That the Board is given powers of management under sections 7 and 13 is in no sense inconsistent with this. But even if the Board is properly to be regarded as an entirely independent body, it is an admitted fact that Mrs Alves was employed to work at the hospital by the government. The government is plainly a public body, and it can only have been exercising a public power or duty (in the broadest sense of public function) in employing nurses to work in a public hospital. The claimant’s action against the government was grounded in the assertion that it was responsible for the system of work in the hospital, and for the equipment provided there, which responsibility was admitted. Consistently with that assertion and admission, it is impossible to contend that the government was not acting either under the Ordinance or in pursuance of a public power, duty or function when it did so.

It follows that the critical question in the case is the one adverted to in para 6 above: to which claims, ie to which actions performed under statutory or public enabling, does PAPA apply?

It is plain that it is possible to read PAPA literally as applying to everything done by any person in either actual or purported discharge of either a duty or authority (ie power) conferred by statute, or for that matter under public authority existing independently of legislation. Thus construed literally, PAPA would apply (a) to private persons or bodies given statutory authority and (b) to virtually every action of a public body. All would attract the very short six month limitation period. The cases show, however, that Acts in these terms have limitations to their ambit; those cases are less clear about what those limitations are.

The difficulty identified above in construing the proper ambit of PAPA has been apparent from the earliest days of statutes in such terms. From the very outset of the life of PAPA 1893 in England it was limited to the acts of public authorities, as distinct from private persons or corporations acting under statutory enabling. That the English Act had to be read in that way was the opinion of Jeune P in The Ydun [1899] P 236, although on appeal it was clear that the body in that case was indeed a public one. Then, in The Attorney General v Company of Proprietors of Margate Pier and Harbour [1900] 1 Ch 749 the defendant was a private company with shareholders which had been incorporated by statute and, under that statute, had the function of building and maintaining the town’s harbour. Its functions were, as Kekewich J expressly held, clearly to maintain a public utility for the benefit of the public generally. But the company was held not entitled to the protection of the six month limitation period under the 1893 Act. It was, he held, just like a commercial railway company established or empowered by statute. The Act was limited to public bodies, discharging public duties, whether statutory or otherwise, and did not extend to commercial persons or companies even if providing public utilities. By the time of Bradford Corpn v Myers [1916] AC 242 (see below), this very important limitation on the apparently expansive words of PAPA 1893 was treated by the House of Lords as established law beyond debate: see Lord Buckmaster LC at 247.

Some support for this limitation was found in both those cases in the long title of PAPA 1893, which read:

In Palmer v Grand Junction Railway Co (1839) 4 M & W 749; 50 ER 1624 an action was brought against a railway company, operating under statutory authority, for negligent injury to horses which it had accepted for carriage. The special Act of Parliament under which the company operated specifically provided for tolls to be charged by it for the carriage of animals, thus clearly authorising their transportation. It also provided that no action should be brought for anything done or omitted to be done in pursuance of the statute or in execution of the powers and authorities or any of the orders made, given, or directed in reference to or under the Act, unless 14 days’ previous notice in writing should be given. The Court of Exchequer, in a judgment delivered by Parke B, held that this notice provision did not apply to the suit before it because although the company had statutory power to carry horses, the statute created no obligation on it to do so. It held that the statute did not compel the company to become common carriers, and that if it chose to do so, it fell under the ordinary legal duties of such people. That decision necessarily involved holding that it was not enough to engage the statutory restrictions on actions against the company that what it had done had been done under the authority of the statute. That decision was clearly reached despite the wording of the statute, which spoke of authority to act, rather than duty to do so, just as the literal language of PAPA and other similar legislation treats acts in pursuance of statutory authority in the same manner as acts in pursuance of statutory duties. A similar decision was reached by Lord Denman CJ in Carpue v London & Brighton Railway (1844) 5 QB 747; 114 ER 1431 at the trial of an action by a passenger alleging negligence, where the statute was in similar terms. Although in later years the Margate Pier and Harbour Co limitation excluding private persons might have justified the outcome in Palmer and Carpue on that different ground, that was not the reasoning in either case. On the contrary, the reasoning depended on narrowing the breadth of the deeds or activities to which the statutory restrictions applied. The terms of those statutes were directly analogous to the later-enacted provisions of PAPA 1893 and to the Virgin Islands’ PAPA here in question.

Conversely, in Parker v London County Council [1904] 2 KB 501, Channell J held that the PAPA 1893 did apply its shortened limitation period to a passenger’s action brought against a local authority operating a tramway under statutory authority and based on injury attributable to a collision caused by the alleged negligence of the company’s employees. The defendants in that case were clearly a public authority and not a commercial company and so the critical question was the ambit of activities covered by PAPA 1893. The judge did not follow Palmer or Carpue, albeit with some reluctance. He held that it was enough to engage PAPA 1893 that the public body was carrying out a public duty to provide the tramway, and relied on The Ydun [1899] P 236. In the latter case the action was brought for negligently managing the navigation of the River Ribble, in other words for negligently performing precisely the public duty created by the statute. However, in neither Parker nor The Ydun was any possible difference between statutory duty and statutory authority addressed. Parker thus left a conflict between passenger cases at first instance.

Subsequently in Lyles v Southend-on-Sea Corpn [1905] 2 KB 1, another passenger’s action against a local authority complaining of negligence causing him injury on its tramway, the Court of Appeal held that PAPA 1893 applied. Romer LJ said no more (at 20) than that the action was brought against a public authority and based directly on an alleged neglect or default in the execution of a public duty or authority. As such, he held, it came “within the very words” of section 1 of PAPA 1893. That, like Parker, would appear to be an application of the literal reading of the section. Vaughan Williams LJ, however, giving the leading judgment, with which both Romer and Stirling LJJ agreed, addressed the decisions in Palmer and Carpue. He held (at 15-16) that there was no material difference of wording between the specific statutory provisions in those cases and PAPA 1893. He decided however (at 17) that all such provisions applied only where the public authority in question was under a duty and not where it merely exercised a power. That distinguished Palmer and Carpue, which were cases of powers, from Lyles where the local authority was under a duty to provide such tramway cars as the public interest reasonably required. As in Palmer and Carpue, that involved implicitly limiting the literal words of the statute, for they do not distinguish between actions in discharge of statutory duties and actions in exercise of statutory authority, or power. Ten years later, in Myers, the distinction which he relied upon was exploded (see below).

At about the same time, in Sharpington v Fulham Guardians [1904] 2 Ch 449, some Poor Law Guardians, undoubtedly a public body, were sued on a building contract which they had made, and claimed the benefit of PAPA’s abbreviated limitation period. Farwell J, after clearly very full argument, held that although the Guardians had obvious public functions (providing accommodation for poor children), what they had done was to enter into a private contract in order to fulfil them by providing a house. That private contract did not attract the protection of PAPA 1893. It was not, he said, at p 456:

Two later cases which reached the House of Lords illustrate, but do not resolve, the difficulties surrounding the ambit of PAPA.

In Bradford Corpn v Myers [1916] 1 AC 242 the defendant local authority was enabled by statute to carry on a gas undertaking. It was under a statutory duty to supply gas to its inhabitants, and it had an express statutory power to sell the coke by-product of the gas production process. In making a delivery of coke to a purchaser, it was alleged negligently to have discharged the load through the customer’s window. The House held unanimously that the abbreviated PAPA 1893 limitation period did not apply. The reasoning of their Lordships was not identical. One reason given in some of the speeches was the distinction which had been made in Lyles, Palmer and Carpue, between statutory power and statutory duty, but at 262 Lord Shaw of Dunfermline convincingly exposed the illogic in this, namely that PAPA applies as much to statutory authority as to statutory duty:

The principal ground of decision was, however, different. It was the starting point of all of their Lordships that PAPA 1893 did not apply to every action performed by a public authority under a statutory duty or power, but only to those which partake of a public character going beyond any ordinary common law relationship. The speeches were not unanimous in the manner of identifying the difference. Lord Buckmaster LC referred at 249 to:

The thread which is common to these speeches in Myers is the difference between public duties (and rights arising from them) and private duties (and consequent rights arising). PAPA 1893 was held to apply to the former but not to the latter. This vital distinction between a public duty and a private duty is not the same as Vaughan Williams LJ’s proposed test in Lyles, which focussed not on the nature of the duty sued upon but rather on a suggested difference between acts performed as a matter of statutory duty and those performed under a mere statutory power. Clearly, whether the defendant acted under a statutory duty or under statutory power, the claim against it will ordinarily assert a breach of some form of legal duty. Myers drew attention to the distinction between legal duties owed to the public generally and those owed to particular individuals.

In 1916, the difference in law between these two was in the early stages of consideration, just as public law was in its infancy. Whilst identifying the need to differentiate between the two, Lord Shaw would have treated a passenger on a municipal tramway as owed no more than the public duty to run the utility. Today there is no difficulty in identifying the difference. A public duty is owed to the whole world, or in some cases to a section of it, and all the members of the relevant section of the public can enforce its performance, in modern times by way of judicial review. A private duty is owed to an individual, and arises from the specific relationship between the parties. The duty to take reasonable care of employees is a good example of such a private duty. So, one would say today, is the duty to an individual passenger on the tram to take care not to injure him. It is a different duty from the duty owed to local inhabitants generally to furnish the tramway, and the fact that the private duty arises in the course of the performance of the wider public duty does not alter that essential difference. In Lord Shaw’s language, the private right of a passenger or employee to have reasonable care taken for his safety is not correlative to the public right of the inhabitants generally. The private duty owed to employees, or to passengers, is closely akin to the private contractual obligation entered into by the Guardians in Sharpington. Just as in that case, the only relevance to it of the statutory authorisation or duty is that what is being done is intra vires.

In Griffiths v Smith [1941] AC 170 the defendants were school managers, operating a State school under statutory authority given by the Education Acts. The school staged an exhibition of the pupils’ work and invited, amongst others, the parents. The floor collapsed, killing two visitors and injuring others, including the claimant, a parent. The judge held the defendants to have been negligent. But without calling on the defendants, the House of Lords held that PAPA 1893 applied its abbreviated limitation period and barred the action. The statute imposed a direct statutory duty on the managers to maintain the structure of the school. Viscount Simon LC (at 178), Viscount Maugham (at 183) and Lord Wright (at 194) treated as the explanation for Myers that the selling of the coke in that case had been a voluntary act incidental to the statutory duty. By that test the plaintiff in Griffiths failed, for it was treated as enough, indeed to all intents and purposes as conclusive, that in holding the exhibition the managers were acting in the course of their public function to manage the school. This decision is much closer to a literal reading of PAPA 1893, but was still expressly founded on the decision in Myers that the Act cannot apply to every action performed by a public body. Insofar as Myers was treated as turning on the incidental nature of the selling of coke, Griffiths did not address the fuller (and different) reasons given in the earlier case for the decision, nor the difference between public duties and private duties. Lord Porter (at 208-209) referred to Lord Shaw’s discussion in Myers of correlative rights. He concluded that the fact that the school managers held the exhibition in the course of their public function of running the school was enough to make the case one of a public rather than a private duty. But today it would be clear that the duty sued on was a private one owed to visitors, albeit arising in the course of performance of a wider public duty to the local population generally to provide and manage a school.

It was a characteristic of both Myers and Griffiths that their Lordships expressed the great difficulty experienced in providing a reliable test for when the duty was public and when it was private. Lord Buckmaster LC in Myers at 250 remarked that he was conscious that his opinion did not establish as clear a line as he would have liked to see. Viscount Haldane in the same case at 251 described the process as telling a heap when it is seen, despite the difficulty of defining it. And in Griffiths Lord Porter at 211 thought that it was doubtful that it would ever be possible to lay down some general principle by which all cases can be tested. That difficulty was perhaps consequent on the undeveloped nature of public law challenges, and thus of analysis of public law duties, at that time.

Subsequent cases have reflected (a) the established proposition that PAPA cannot be construed literally, (b) the recognition of a difference between public duties and private duties, but also (c) the difficulty on the authorities of allocating particular cases to one category or the other, and the absence of a settled test for doing so. In consequence, they are often inconsistent in their outcomes.

A series of clinical negligence cases in England before the repeal of PAPA 1893 in 1954 followed the Griffiths lead in characterising the duty of hospital providers to patients as a public duty and thus attracting the abbreviated limitation period: see for example Nelson v Cookson [1940] 1 KB 100, Higgins v North West Metropolitan Hospital Board and Bach [1954] 1 WLR 411 and Razzel v Snowball [1954] 1 WLR 1382. In the first of those cases, the striking result was that the allegedly negligent doctors, sued personally, were held entitled to the benefit of PAPA 1893 because they were held to be carrying out the statutory duty of the hospital authority, even in circumstances in which, at that time, they would not have been regarded as the servants of the authority and even though the authority could not have been made vicariously liable for their actions. It seems unlikely that today the hospital provider’s duty of care towards patients in its charge would be regarded as simply the public general duty to furnish a hospital.

A similarly literal approach to legislation in the same terms as PAPA was adopted in Firestone Tire and Rubber Co (SS) Ltd v Singapore Harbour Board [1952] AC 452. The defendant Board negligently lost part of a cargo of tyres destined for the plaintiffs. The abbreviated limitation period was held to apply to the plaintiff’s breach of bailment claim on the basis that the Board had been acting in the course of its public duty under the legislation which established it. The Board endorsed the views expressed in both Myers and Griffiths as to the difficulty of defining the difference between public and private duties, but treated the principal test as whether the act performed was incidental, or subsidiary, to the statutory function, rather than integral to it. By that test, the handling of the cargo of tyres was held not to be subsidiary. The decision in Myers was, however, as has been seen, not as straightforward as a test of subsidiarity. Once again, if the different question were now to be asked whether the duty sued upon was one owed generally to the public or one owed particularly to the plaintiff, the outcome would have been likely to be otherwise.

Vincent v Tauranga Electric-Power Board [1937] AC 196 did not concern PAPA or legislation in identical terms. The plaintiff employee sued for personal injuries suffered when working on a transformer belonging to the defendant Board. The statute applied an abbreviated limitation period, and a notice requirement, in relation to any action against the Board in the execution or intended execution or in pursuance of the statute “for any alleged irregularity, or trespass, or nuisance, or negligence, or for any act or omission whatever”. Those words were understandably described as “of the utmost amplitude”, and the action was statute-barred accordingly. Although the plaintiff had sought to rely on Myers and other decisions under PAPA 1893, the Board held them inapplicable given the (different) terms of the legislation.

Duffus v National Water Commission [2007] UKPC 35 was an employee’s claim for wrongful dismissal. It failed, principally because, as both the Court of Appeal and the Board held, the only relevant contractual provision was a requirement for reasonable notice of termination, and such notice had been given. There was, accordingly, no breach of contract, and that was the end of the suit. The defendant water commission had, however, also pleaded the Jamaican Public Authorities Protection Act, which was in the same terms as the present statute. The plaintiff had argued that the actions of the defendants in dismissing him “cannot be said to have been done in execution of the purpose of” the Commission. That argument was, unsurprisingly, summarily rejected. No further analysis of the PAPA point was necessary or ventured.

In the present case, the Court of Appeal regarded Vincent and Duffus as authorities for the proposition that even though a master-servant relationship may exist between the public authority and the claimant employee, PAPA nevertheless applies to any claim by the employee. As can be seen, neither case supports so broad a proposition. Vincent was decided expressly on the basis that the statute there in question differed from PAPA. Duffus contained no analysis of a PAPA claim at all.

Contrastingly decided were two cases in the Eastern Caribbean Court of Appeal, to which the Court of Appeal also referred. In Bell v Commissioner of Police (Civil Appeal No 4 of 2001) (unreported) 26 January 2004 a British Virgin Islands police constable sued the Commissioner in respect of deafness sustained during firearm training. At first instance his claim was held statute barred by PAPA, but on appeal that decision was reversed. Redhead JA, giving the judgment of the Court, held firstly that the Commissioner was under no duty obliging him to carry out firearms training, and secondly that the duties of the Commissioner as they related to the plaintiff “did not encompass a public authority” (see Court of Appeal in the present case, para 10). In Attorney General of the Commonwealth of Dominica v Robin (Case No HCVAP 2011/034) (unreported) 27 June 2012 a nurse employed by the government claimed damages for negligence having sustained an electric shock from a defective light switch, hanging loose and unprotected. The Court of Appeal held that PAPA did not bar her claim because it arose out of a private obligation of the government as employer rather than in execution of any public obligation.

In the present case, the Court of Appeal treated Bell and Robin as having been decided per incuriam, given its conclusions as to Vincent and Duffus. For the reasons already given, that reasoning is unsound. Bell and Robin are, as the Court of Appeal rightly recognised, not materially distinguishable from the present case.

What has certainly been maintained over the years is the initial starting point that PAPA statutes must be restrictively construed. In the last of the clinical negligence cases mentioned in para 27 above, Razzel v Snowball, Denning LJ began his judgment with an expression of relief that the problems arising from PAPA 1893 would no longer trouble the courts, it having been repealed and replaced by a single limitation regime for all personal injuries actions. In the celebrated Burmah Oil Co (Burma Trading) Ltd v Lord Advocate litigation, where the issue was the liability of the government to compensate for the destruction of the plaintiff’s installation, ordered in the exercise of Crown prerogative to prevent it falling into the hands of the advancing Japanese army in 1942, one limb of the government’s defence was reliance on PAPA. Lord Kilbrandon, at first instance, rejected that defence at 1963 SC 410, 435 on the grounds that the claim for compensation was not based on any complaint that the army’s actions had been unlawful. But he did so in these terms:

Although the many conflicting decisions on Public Protection Acts cannot all be reconciled, the Board is satisfied that the principle which properly underlies the statutes can be extracted from Bradford Corpn v Myers, and particularly from the speech of Lord Shaw, having been accurately foreshadowed by Farwell J in Sharpington. It lies in the oft-repeated proposition that the essential test lies in the difference between a public duty owed to the public generally and a private duty incurred in the course of acting under statutory enabling. The Acts were clearly passed, as Lord Shaw said in Myers, to protect public authorities from late challenges to the exercise of their statutory functions. That was considered desirable, no doubt, to protect annual budgets from having to be adjusted in subsequent years, and no doubt similar considerations applied to the desirability of policy decisions not being exposed to delayed assaults. The same policy is, very broadly, these days reflected in commonplace provisions requiring that applications for judicial review, challenging the performance or non-performance of public powers or duties, must be brought speedily. In England and Wales such a claim must be made promptly and in any event within three months: see the England and Wales Civil Procedure Rules 54.5(1). In the Eastern Caribbean jurisdictions, rule 56.5 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 is less specific but has the same aim. It provides that, quite apart from any legislative time limit, relief may be refused if the judge considers that there has been unreasonable delay in making the application. Moreover, it provides that in assessing whether there has been such unreasonable delay the judge must consider whether a grant of relief would be detrimental to good administration.

By contrast, where there is a general common law or statutory duty of the kind which is the same for a public authority as it would be for a non-public person or company, there is no reason for a much-abbreviated limitation period, indeed every reason why the period should be no different for a public body defendant as for anyone else. The duties of an employer to his employees, or of a transport undertaker to his passengers, or of any contractor to his contractual counterparty, are classic examples of particular duties. They may of course arise in the course of performing public functions, but they are not public duties owed generally to the world or to a section of the public.

Despite the potentially wide words of PAPA, it must, as has consistently been held, be construed restrictively. It only applies to public authorities, and not to all persons acting under statutory authority. It does not apply to all actions performed by public authorities, but only to those where the obligation sued upon is owed generally to the public or to a section of it. Where the obligation sued upon arises simply out of a relationship with the claimant which would be the same for any non-public person or body, and where there is no question of a public law challenge, the Act has no application. The duty of care which the government is admitted to have owed to Mrs Alves qua employer was accordingly a private obligation exactly the same as is owed by any employer, and not a public obligation for the purposes of PAPA. The six month limitation period did not apply.

For these reasons the Board will humbly advise Her Majesty that Mrs Alves’ appeal should be allowed. The decision of the trial judge should be restored and the case should be remitted to the High Court for trial.