Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

Smith v Kemp (1835) NSW Sel Cas (Dowling) 69; [1835] NSWSupC 23

medical practitioners, recovery of fees - barristers, recovery of fees - reception of English law, recovery of professional fees

Supreme Court of New South Wales

Dowling J., 26 February 1835

Source: Sydney Herald, 2 March 1835[ 1]

Smith v. Kemp.  This was an action brought to recover the sum of £22 10s. for work and labour done by the plaintiff as a physician, other counts varied the character of the plaintiff.  Plaintiff conducted his own case.  The claim was made for 94 visits, and previously to the death of defendant's former wife, plaintiff's attendance had been most anxious and constant for a month, many sleepless nights having been passed at the bed side of his patient until her death.  For all this service he claimed only the small sum of £22 10s. in consideration of defendant's circumstances.  Dr. Bland, to whom plaintiff's submitted his account, expressed his surprise at the very low charges for such services.

Mr. Wentworth on the part of the defendant, submitted that the plaintiff could not maintain the present action on the well known principle of law that no medical practitioner could bring an action for the recovery of his professional fees.

The learned Judge observed that it was a matter worthy of some consideration, how far such principle might be adapted to the condition and circumstances of the colony.  The principle was certainly recognised in the Mother Country, it being assumed that professional gentlemen exercise their functions for the sole benefit of their fellow creatures rather than for gain; the emolument arising from their professional duties was made thereby a matter of honor on the part of the individuals benefited, and it was certainly to be regretted if that principle of honor which was relied upon was violated; to guard however against the chances of such contingency, professional gentlemen, as physicians, barristers &c., had been in the habit of receiving their fee in hand when so professionally engaged; he would not stop the case, but he would reserve the point for the consideration of the judges.

Defendant put in a set off of £8, which was admitted leaving a balance claimed of £14 10s.  The Assessors returned a verdict for plaintiff damages £5.


In banco, 26 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 2]




26th March]

[A doctor of Physic cannot waive his degree and sue for medical attendances upon account for work & labour.]

In Banco

Charles Smith v Richard Kemp

Assumpsit for work and labour.  The first count was for work and labour as a physician in and about the curing of the Deft of divers disorder.  Second, the like as a surgeon and third, for work and labour generally.  Plea non assumpsit.  At the trial before Dowling J. during the present term, the Plf in person conducted the case.  He stated that he was in fact admitted to the degree of Doctor of Medicine and had practised in this Colony as a physician; but for the purpose of this action he claimed the right of sinking his rank and suing the Deft simply for his work and labour in attending him & his family during their illness.  The Plf then went into general evidence of his having attended the Defts wife during a long illness prescribed for her & met other professional gentlemen at consultation about her case, which terminated fatally.  On the part of the Deft it was contended that the Plf could not waive his degree of physician, & sue for work & labour.  As a physician he could [p.46] maintain no action for his fees; & even if he were not a physician but passed himself off as such, he was subject to the like legal objection;Charley v Balcot (4 J.R. 317).  The plf contra relied upon a case on his own relation in which he was himself Deft. in an action brought against him for a Tailor's Bill & tried before LordTenterden in K.B. W. H. Hil. T.W. 24 in which that Judge allowed him, under a plea of sett off to prove his work & labour as a physician in reduction of the tailor's demand.  He also cited a case in this court of Smith v Laycock in which Forbes CJ. allowed him to recover against the Deft for his work & labour generally as a medical man, though he was in fact a physician.  In reply it was said, that the present point was not made in the last cited case; & supposing the case stated to have been decided by Lord Tenterden, to be correctly narrated, still there was a great difference between recovering a physicians fees in an action for them, & being allowed to set off his work & labour in an action against [p.47] himself.  An Attorney may set off the amount of his bill, but he cannot recover in an action for it, without delivery his bill a month before he sues.  The Judge inclined to nonsuit on the authorities, but reserved the point & the Plf had a verdict for 5£ with leave to the Deft to move to enter a nonsuit.

Wentworth now moved accordingly.  In the plfs bill of particulars he goes in terms, "for medical attendances" - so money guineas.  If he holds himself as a physician, he cannot waive his character.  He must take his rank with all its liabilities and advantages.  It is clear from Charley vBalcot (4 T.R. 317) that he cannot as a physician maintain an action for medical attendances.  The principle of that case has been followed since in James v Phillips (Peake N.P.C. 123) Lipscombe v Stolmes (2 Campb. 441) & Dixon v Bell (1 Stark 287).

S. Stephen.  The case of Charley v Balcot on which all the other cases were founded, was decided merely on the ground of expediency, & upon no clear principle of law.  The reason of expediency, which might be very sound in the mother country, where the professions are well defined and sufficiently numerous [p.48] to justify seperation [sic], does not apply to a young Colony where it is impossible from the paucity of professional men to apply a rule applicable to an old country.  This plf has performed the labour, & why may he not recover a compensation for he services?  Why shut him out of a Court of Justice by an arbitrary rule, founded upon one dictum, without sound reason or philosophical argument to support it.  Here the application of the laws of England, must be governed by the state of this country.  Society here requires that it should avail itself even of adventitious assistance, & if the Deft has derived a benefit from the Plf's labours, it is unreasonable that he should he deprived of a suitable compensation.  In this Colony it is inexpedient to apply a rule which may be detrimental to the interests of society.  The Jury here have found a general verdict which will well support the general count for work & labour.

[p.49]Forbes CJ.  It appears from the plfs bill of particulars that he seeks to recover so much money for "Medical attendances" which clearly imports that he sues as a physician. It is the rule of English law, now long settled and seems to be acknowledged since the case of Charley vBalcot that a physician cannot maintain an action for his fees.  It has even been held that if a person prescribe for another & put M.D. to his name, he thereby clothes himself with the character of Physician, and cannot recover at law for his fees.  The Plf here has assumed the character of Physician, has prescribed and seeks to charge for his attendances as medical fees.  His services are by law honorary.  That is the rule of law.  I should be very reluctant to extend such a rule beyond that which is aid down.  Whether that rule be mere dictum or not, yet it has been required in & never questioned since the time of Lord Kenyon.  There is no more analogy between a surgeon & a physician, than there [p.50] is between a barrister and an attorney.  Neither can adopt his character for legal purposes of recovering compensation for labour.  A surgeon can no more adopt the character of Doctor of Medicine than an attorney can that of Barrister; & so vice versa.  They are respectively distinct branches of the same general profession.  The doctor of medicine obtains his degree as an academical distinction & the Surgeon obtains his certificate as a qualified member of the College of Surgeons.  The Barrister is admitted to his degree by the learned Society of which he is a member, & for the purpose of recovering his fees, he cannot change his character by calling himself an attorney, or seeking compensation as a labourer for his quantum meruit.  The Doctors and the Barristers are from their distinguished scientific attainments in their respective professions, presumed to act honorary.  They respectively take their ranks, with all their [p.51] obligations & disqualifications.  All there cases depend upon the facts of each.  If a surgeon or apothecary, will clothe himself with the degree of Doctor of Medicines, write rescipes [sic], charge for attendances & sign himself M.D. & thus hold himself out as a person of Superior Skill and science, he must conform himself to that honorary rule by which the law pays him the compliment to treat him as a person above pecuniary consideration in his professional practice.  The rule here depends upon the question how he holds himself out to the world.  If he professes to be a physician, the law as it at present stands, is that he shall not recover for his fees.  This gentleman therefore having held himself out as a physician & assumed to practice as such, he must take the character with all its burdens, & must therefore be considered as a physician. 

Dowling J. & Burton J. of the same opinion.

Rule absolute for a nonsuit.



[1 ] See also Australian, 6 March 1835.

[2 ] See also Australian, 31 March 1835: ``In the case of Smith v. Kemp, the Chief Justice decided, that as Dr. Smith had charged as a physician, and not as a surgeon; and the latter only could recover - he thought it right that a nonsuit should be entered.  There was nothing to induce him to induce him [sic] to stretch the law in the present or similar cases."

Published by the Division of Law, Macquarie University