A Death At Epsom College
Howell V West And Jones 1880
Sir Alexander Cockburn, Lord Chief Justice, 1880.
Image source: Wikimedia Commons
Scarlet fever is not generally fatal today, but before antibiotics became available it was a major cause of death among children and could cause serious complications, including pyaemia (a type of septicaemia). I doubt that many such deaths became the subject of a claim for damages by a grieving father, but this one did.
Since Easter 1877 young John Kyrle Howell, then aged 10, had been a boarder at Epsom College; his father was Thomas Symonds Howell of Wandsworth, a surgeon. On 14th February 1879 John died from pyaemia, resulting from scarlet fever, in the College Infirmary and almost immediately his father instituted proceedings for breach of contract/duty against the headmaster, Dr William de Lancy West, and the attending surgeon, local Epsom man Arthur O'Brien Jones. Unusually for a claim of this kind, the hearing was held before the Lord Chief Justice and a special jury, with the Solicitor General, Sir Hardinge Giffard QC, appearing for the plaintiff - indications that this was a matter of major public importance and principle.
It is difficult to understand why Thomas Howell sent John to the College at all, since he had already removed another son on the grounds that he felt the boy's health had not been cared for sufficiently, although Dr West said this had been an issue about the College food rather than anything strictly medical. The main plank of Howell's case against West was that, during an interview early in 1877, he had received assurances that John would not be housed in the main hostel but would lodge with Dr and Mrs West in their home, under their personal care, and if he was ill he would be looked after there: this was the contractual term which he claimed had been breached by removing his son to the Infirmary. Howell claimed damages in the sum of £5.25, which mainly comprised the cost of travel between Wandsworth and Epsom College.
Obviously, no one goes to the High Court for a contract claim this small, but Howell's motive was to put West and Jones on trial for what he saw as negligence - effectively he was accusing them of manslaughter. Howell could have attempted to press criminal charges against the men, but was very probably advised that this would not succeed, so he brought a civil action. The doctrine of negligence as we understand it today was not properly developed until 1932 (in the case of Donoghue v Stevenson, which involved a Mrs Donoghue suffering ill effects from ginger beer containing a decomposed snail), so that before then it was usual to frame a civil action in terms of contract law. However, this in itself is fraught with difficulty, as first one has to establish that there was a contract and then what the terms of that contract were. In this instance there was nothing specific in writing, so it fell to Howell to show that particular terms should be implied.
The hearing took place at Westminster on 12-16 April 1880 before the Lord Chief Justice, Sir Alexander Cockburn (and, if he had had any personal connection with Epsom, apart from being the losing barrister in a court case relating to the 1844 disqualified derby winner 'Running Rein
', he would have rated an article in his own colourful right - please see https://en.wikipedia.org
When John Kyrle Howell fell ill Dr and Mrs West were in a predicament. They had indeed promised that if the boy became ill they would tend to him at home, but in this instance a highly infectious fever was involved and Mr Jones considered that he should go to the Infirmary, where he could be isolated from other boys and attended to by a qualified nurse. This seems entirely reasonable, but the bone of contention was the condition of the Infirmary building.
Howell and other medical witnesses said that John's accommodation in the Infirmary was too damp and cold, with a temperature of around 50°F, although Jones countered that the boy's room at the Wests' house was too warm and that airier surroundings were required. However, although Howell had called in other doctors and, towards the end, took over John's care himself, he had apparently made no major complaint about either the conditions or the treatment at the time. Howell's evidence on the condition of the Infirmary was disputed: the Matron said that the temperature was more like 55°F and that a fire had been lit intermittently. There was no real evidence suggesting that John would have survived if he had not been moved.
Howell lost the case. Cockburn was disapproving of the fact that it had been brought as a civil claim at all, saying that such charges were a criminal matter, although in this instance he felt the charges were such that they might have been construed as malicious. If Dr West had entered into a contract that John would be kept in the house whatever his illness, then he would have been in breach of contract, but Cockburn did not believe this was so: there was an implied contract between West and all the boys in his charge and the headmaster had to consider the effects on everyone. Cockburn went on to say, 'It seemed as if the grief - the passionate grief - of the plaintiff at the loss of his child had precluded him from taking a fair and candid view of the real facts of the case.' The jury found for the defendants on every point.
Howell had not finished yet; he immediately asked for a new trial, which application was denied. He then went to the Court of Appeal to challenge that denial: the ground for appeal was that the Lord Chief Justice had misdirected the jury. Sir Hardinge Giffard once more appeared for the plaintiff and I think it fair to say that if this man could not win the appeal then no one could. Later that same year Giffard became Lord Chancellor, the first of three stints in the post, and he was also appointed 1st Baron Halsbury and compiled the legal bible called 'Laws of England', which subsequently became 'Halsbury's Statutes', a giant multi-volume tome, as indispensable to the legal profession today as it was when first published.
Sir Hardinge Giffard 1878, by 'Spy', from Vanity Fair.
Image source: Wikimedia Commons
Giffard was a criminal barrister, which reinforces the point that this case was a criminal matter wrapped up as a contract claim. Having read the lengthy Times Law Report of the appeal, which took place over three days, it seems to me that he was flogging a moribund horse and almost certainly knew it. Lord Justice Brett, giving judgement, said, 'So far as we are concerned, the curtain must now fall on this deplorable litigation. It was an action brought against two defendants - brought technically in the form of an alleged breach of contract, but in reality with intent to charge them with culpable negligence leading to a disastrous result - negligence by the one in his character as schoolmaster, and by the other in his character as a medical man.' It was clear from his further remarks that, had the judges agreed that there was misdirection and been obliged to order a new trial, they would have felt reluctance. Brett concluded by saying, '… I think it right for myself to say that I not only do not dissent from the findings of the jury, but agree with them, and especially in their finding that, even supposing Dr West and Mr Jones not to have been absolutely right in their conduct, they were actuated from the beginning to the end by the kindest and most Christian views and wishes as to the child, and that there was nothing derogatory to their character, either as to one of them as a schoolmaster or as to the other as a medical man; and I may add that in this my brethren concur with me.' The appeal was dismissed.
Source: 'The Times' April-May 1880