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

Bland v. Terry [1838] NSWSupC 94

medical practitioners, recovery of fees - work and labour - Terry, Samuel, death of - Statute of Limitations - damages, interest on

Supreme Court of New South Wales

Burton J., 16 October 1838

Source: Australian, 18 October 1838[ 1]

TUESDAY. - Before Mr Justice Burton and a Special Jury.

Bland v. Terry. - This was an action brought by the plaintiff, a surgeon, for medical attendance on the late Mr Samuel Terry.

The declaration contained several counts, varying the nature of the claim, to which the defendant pleaded the general issue, with notice of set-off.

Mr Windeyer opened the pleadings, and the Attorney-General stated the case to the jury.  The nominal defendants were the executors to the will of the late Mr Samuel Terry, who died in January, 1838.  In September, 1833, Mr Terry, who was on of the Committee to the Sydney College, was seized with apoplexy whilst on the Committee; and the plaintiff (who had previously been his medical attendant) being present, bled him, and from that time commenced a daily and laborious attendance on the deceased to the day of his death.  The plaintiff, during that period, had visited the deceased several times a-day, and had performed several operations of galvanism and electrifying, frequently remaining the whole night, especially during the first months of his illness.  The account of the visits had been regularly kept by a clerk, but many of them had not been charged, as they were made rather in friendship than in his professional capacity.  The original amount of the bill sent in was £1372, which was admitted by the widow of the deceased, who was personally cognizant of plaintiff's attentive labours, to be fair and reasonable, and no objection was made to the payment of it, except by Mr J. T. Hughes, one of the executors, who claimed a set-off for the rent of a house occupied by the plaintiff, and for a note of hand, dated 1827, which had had been found amongst the deceased's papers.  Upon this objection being raised by Mr John Terry Hughes, the executors refused to pay the amount of the plaintiff's claim, but afterwards offered to give 1000 guineas, which was also objected to by Mr Terry Hughes.  After this, an offer was made by Mr Hughes to pay the sum of £800 subject to any claim for rent or otherwise which might be due from the plaintiff, which was indignantly refused, as compromising what he considered to be his fair claim for his labours.   The set-off put in by the defendant was for the note of hand to which he had alluded, dated in the year 1825, for £67, and six years rent, at £90 a-year, £540, making in all £607 - but these items come under the statute of limitation, and very properly so, as they had been settled long since, and were now trumped up to reduce the plaintiff's just claim.  (The learned attorney went at great length into the statement of facts connected with the claim, and called witnesses).

Samuel Nolbro deposed, that he had kept Dr Bland's books since April, 1833, and that he had made out the account against Mr Samuel Terry, deceased, now handed to him.  The daily entries were made by Dr Bland in a day-book, and carried by witness into a journal, from which the account in question was made out.  Dr B. had attended Mr S. Terry, deceased, from the time witness went to live with Dr B. until Mr T.'s death, and he believed that he had visited him daily, and had sat up with him all night for nine and ten nights at a time; witness called on Mrs Terry, the widow of the deceased, to enquire whether the account of Dr B.'s attendance on Messrs John and Edward Terry was properly included in the deceased's order, and with her approval; and she then expressed herself satisfied with the fairness and justness of Dr B.'s charge for his attendance on Mr Terry.  Witness did not know that the house in which Dr Bland lived belonged to Mr Terry, deceased; he always thought it belonged to Mr John Hosking, to whom he had paid the rent since he had been with Dr Bland; he delivered a claim for £1372, which, with compound interest, amounted to £1532, the sum stated in the account before Court.

William Henry Hovell knew that Dr Bland had attended professionally on the late Mr Samuel Terry since his affliction by apoplexy; had been frequently present when Dr Bland performed the operation of galvanism on Mr S. Terry, at which times the Doctor remained about an hour or upwards.  In his conversations with Mr Terry, that gentleman had expressed his sense of gratitude to Dr B. for his exertions, and had frequently requested witness to send Dr B. to the house in case he met him; at which times he always said that he had seen him in the morning, but wished to see him again.

John Henderson, surgeon, deposed that he had attended at the house of the late Samuel Terry, and performed the operation of galvanism on that gentleman under the direction of Dr Bland, Mr Terry's medical adviser.  Each operation occupied about an hour and twenty minutes; and he attended, for that purpose, during the months of October and November, 1835, at which times Dr B. was always present.  Witness, in conversation with Mr Terry, had heard that gentleman express his gratitude to Dr B., and say, that if it had not been for his timely presence at the meeting, when he was taken ill, he must have died.

Dr Nicholson had looked over Dr Bland's account against the late Mr Terry, and considered the charges particularly moderate for Dr B.'s continued and arduous attendance, for which a guinea a visit would have been charged at home.

Dr Bennett spoke to the same effect.

Dr Hosking knew that Dr Bland had attended on the late Mr Terry, from January in 1834 to January in 1838.  Witness attended for some time in conjunction with him, and also knew that Dr B. had been Mr Terry's medical adviser long before the date he spoke of.  He considered that half-a-guinea a visit was a very moderate charge for the attendance Dr B. had given, as he knew that he had visited Mr Terry three or four times a-day, as well as night visits.  Witness would expect four or five guineas a-night for sitting up all night with a patient, and he considered that five guineas was a fair charge.  Heard Mr Terry, deceased, express his grateful sense of Dr Bland's exertions, to which he was much indebted.  Witness considered that the bulk of the charge, for the time, was very reasonable, without reference to the number of visits.

George Allen was present at the meeting of the Committee of the Sydney College, held in the College buildings, when the late Mr Samuel Terry was seized with apoplexy, at which time Dr Bland bled and recovered him.  This was on the 27th January, 1834, or on the 26th of January, 1835.

Joseph Meek and Stephen Forbes, coachmen in the service of Dr Bland, had repeatedly driven their master three or four times a day to Mr Samuel Terry's house; besides which Mr Terry's servants had come repeatedly during the day and night to call Dr Bland to Mr Terry's assistance.

B. C. Rodd, solicitor, deposed that he lived directly facing the late Mr Samuel Terry's house, and at the times he was at home had observed Dr Bland in his attendance at Mr Terry's more than once a day.

C. H. Chambers, solicitor, in a conversation with Mrs Terry, the widow of the late Mr Terry, heard her say that the executors were satisfied to give Dr Bland 1000 guineas for his professional attendance, and that a cheque for that amount was drawn out, and was going to be given to Dr B. when Mr John Terry Hughes went in and said he had a claim against Dr B. for the rent of the house he lived in.

A letter was put in and read from Mr Winder, an executor, to Dr Bland, stating that Mr Terry Hughes had consented to give £800, subject to the reduction for any rent that might be due, in satisfaction for Dr B's claim.

Mr Chambers stated, that the offer of the thousand guineas was made some months after this letter was written.

Mr Richard Roberts was put into the box to prove the payment, by Dr Bland, of ten guineas on the part of the late Mr Terry, as a subscription towards the payment of a piece of plate to Judge Forbes, by the colonists; but although witness received the money for Mr Terry, he could not say that it had been paid by Dr Bland.

Mr John Cobb, deposed to a conversation with Mr Winder, an executor, in which that gentleman had admitted the offer of one thousand guineas to Dr Bland for his claim, which was refused.

This was the plaintiff's case.

Mr Foster addressed the Jury for the defence, and stated, that the defendants seeing an account against Dr Bland, were bound in justice to all parties to make the claim which was the only thing that had interfered with the payment of the doctor's claim when it was made.  With respect to the set off, he contended, that Dr Bland's account beginning to accrue in 1833, and the set off being due in 1831, that the statute of limitation did not attach, as there was a continued unsettled account between the parties, which put the case out of the statute, (the set off accrued in 1827 and continuously to 1831).  Mr Foster said, that the executors would never have been satisfied nor justified in waiving this claim, unless it was brought into a Court of Law, and nothing appeared in any way to shew that it had been settled.

His Honor Mr Burton, after hearing argument, at great length, from Mr Foster and Mr Raymond, both of whom were for the defence, ruled that the set off came within the state of limitation, as there was no proof of a mutual unsettled account between the parties; and Dr. Bland's claim did not begin to accrue until 1833, whereas the alleged claim in the set off finally determined in 1831, and there did not appear to have been any dealings in the intermediate time.  He then put the case to the Jury, discarding the set off from the cause, which ruling he hoped was not only right in law, but also in equity and justice.  That, however, was between the parties themselves, the one living, the other dead, and was chargeable alone to the conscience of the living.  As it stood they were bound to suppose it had been settled in some way or other, as no demand had been made, and it had been allowed to slumber so long.  It appeared on the evidence that Dr. Bland's treatment of the deceased had been very meritorious indeed, and they had also heard from competent witnesses that half-a-guinea a visit was a moderate and fair charge, and that a guinea a day was far from being exorbitant.  They must not estimate the demands of a medical person as they would an ordinary demand, as without doubt, the duty of attending and consoling the sick bed of a person in the unfortunate deceased's state was very arduous.  The Plaintiff, however, was bound to prove his demand, which had been done in rather a loose manner, but it was for the Jury to estimate the evidence given, which he would not trouble them by reading over, and give damages to satisfy the justice of the demand.

The Jury retired for five minutes, and returned a verdict for the Plaintiff, damages £1,500.

His Honor certified for three Counsel.



[ 1]See also Sydney Herald, 17 October 1838; Sydney Gazette, 18 October 1838; and see R. v. Terry, Sydney Herald, 17 October 1838; Australian, 20 October 1838; Sydney Gazette, 20 October 1838.

Published by the Division of Law, Macquarie University