Alves v Attorney General of the Virgin Islands

Public Authorities Protection Act (Cap.62) must be construed restrictively. Its six-month limitation period is not triggered merely because a defendant is a public authority, acts under statutory enabling, or performs a public function. It applies where the obligation sued upon is a public duty owed generally to the public or a section of it. It does not apply to a private duty arising from a particular relationship, such as an employer’s ordinary duty of care to an employee, even when the employment occurs in a public hospital. The court must identify the duty founding the claim. Statutory authority to operate a public hospital did not convert the Government’s admitted employer’s duty into a public obligation.

A nurse employed by the Government in Tortola was injured in April 2003 when a hospital bed collapsed while she was assisting an elderly patient. She sued in negligence in December 2007, alleging breach of the ordinary employer’s duty to provide a safe system of work and adequate equipment. The Government admitted the claim save for interest but pleaded the six-month bar in section 2 of the Public Authorities Protection Act (Cap.62). The trial judge held the provision inapplicable. The Court of Appeal of the Eastern Caribbean Supreme Court disagreed and treated the claim as statute-barred. The Privy Council considered whether the limitation applied to an employee’s personal-injury claim arising from work in a public hospital, and whether the Government was acting under the hospital legislation when it employed the claimant.

The Board unanimously allowed the appeal, restored the trial judge’s decision and remitted the claim to the High Court for trial.

1. Statutory setting. The grammatical slips in section 2 of the Public Authorities Protection Act (Cap.62) were corrected by reading the provision consistently with the English model. The claimant’s alternative argument also failed. Section 3 of the Public Hospital Ordinance (Cap.195) authorised the Government to conduct a public hospital. The Board’s management powers under sections 7 and 13, and the regulation-making power under section 15, did not prevent the Government from acting under the Ordinance or in pursuance of a public power or duty.
2. Restrictive construction. The apparently wide words of public-authority protection statutes cannot be read literally as covering every act done by every person under statutory authority. The protection is confined to public authorities and does not extend to private persons or companies merely exercising statutory enabling. The approach was supported by Bradford Corpn v Myers [1916] AC 242 and Sharpington v Fulham Guardians [1904] 2 Ch 449.
3. Public and private duties. The essential test is whether the obligation sued upon is a public duty owed generally to the public or a section of it, or a private duty arising from the specific relationship with the claimant. An employer’s duty to take reasonable care of employees is private, even when it arises while the employer performs public functions. The same applies to ordinary duties owed by transport undertakers to passengers and contractors to counterparties. A claim based on such a duty, without a public-law challenge, falls outside the Act.
4. The Government’s admitted duty of care to the claimant was the same private obligation owed by any employer. The six-month limitation therefore did not apply.

1. Privy Council: On an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court, the Board allowed the appeal, restored the trial judge’s decision and remitted the claim to the High Court for trial.
2. Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands): Disagreed with the trial judge and treated the claim as barred by the six-month limitation period.
3. Trial judge: Held that the limitation provision did not apply to the claimant’s negligence action.