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

MacRae v. Toogood [1847] NSWSupC 42

Court of Requests, medical practitioners, right to sue

Supreme Court of New South Wales

Stephen C.J., Dickinson and Therry JJ, 30 July 1847

Source: Sydney Morning Herald, 31 July 1847, in Supreme Court Collection, Vol. 2, p. 4

Before the full Court.


This was a special case sent from the Court of Requests to this Court for the opinion of the Judges, under the 5 th section of the 6 th Victoria , No. 15. The case sent by the Commissioner was in these words: "The plaintiff being sworn and examined, stated that he had a diploma, both as physician and surgeon; that he attended the defendant's wife during the half-year ending December, 1845, and the half-year ending in June, 1846, in all twenty-six times. That his professional charge was 10s. 6d each, as per charges published. It was a medical, and not a surgical case."

The question for the opinion of the Court is, whether the plaintiff can legally recover for professional attendance on a medical case, he being a physician; and if the Court shall be of opinion that the plaintiff can legally recover for professional attendance on a medical case, he being a physician, the verdict is to be entered for the plaintiff aforesaid; but if the Court shall be of opinion that the plaintiff cannot recover, then the verdict is to be entered for the defendant; and that the costs of obtaining this decision be recovered by the successful party.

A verdict was found for the plaintiff, damages, £13 13S. 6d.

Mr. FOSTER now appeared for the defendant, and submitted, that although it did not clearly appear from the above case that the plaintiff really acted as a physician, yet it may be inferred from the allegation that the case was a medical and not a surgical case; and the authorities are clear, that a physician cannot recover his fees. [By the COURT: Is not the Commissioner to decide all cases since the new Act, between £10 and £30, according to "equity and good conscience?" and if so, why the necessity of coming to this Court, to have the law declared, for whichever way we may decide, the Commissioner would not be bound by the decision?] But the Commissioner sends this case for the opinion of the Court, thinking, until the law is made known, he cannot decide upon the equity and good conscience of the case. [By the COURT: The point for our decision is not correctly stated; in fact it is impossible to discover what it is we are called upon to decide, whether we are to decide according to the law we would be bound by in trying this case, or by the law that would bind the Commissioner sitting in his own Court.] Charley v. Balcot, 4 T.T. 317, Veitch v. Russel, 1, Q.B., and Little v. Oldacre, 1C. and M. 367, were referred to as showing that a physician cannot ordinarily recover his fees.

Mr. LOWE, for the plaintiff, said, he would not deny the law, as laid down in the cases cited, but contended that they would scarcely apply in this case; the case sent by the Commissioner was imperfectly sent; no facts are stated, but merely evidence; and after the evidence is stated, then comes an inference drawn from those facts. And the question submitted for the opinion of this Court is so vague and wanting in point, --- that it could not be clearly ascertained what the question was; it must mean, in absence of any reference to the laws that would bind this Court, that the Commissioner is desirous to know whether he as Commissioner, in deciding this case, was to be bound by any law that would bind this Court; this being the case, and as the Acts that give him jurisdiction distinctly tell him that he is to decide according to the "equity and good conscience," the effect of the opinion of this Court upon this case must be, that the verdict for the plaintiff will stand. But apart from this view of the case, it was urged that the distinction recognised in England between a physician and a surgeon ought not to be recognised in this colony; where the population is so scattered, and if the distinction were to be upheld, it would certainly deny practice to a host of gentlemen who have obtained diplomas of M.D. Such a distinction as this cannot be presumed to have been imported by Englishmen when they settle in a new colony, and the more especially so, as an institution for enquiring into the qualifications of intending practitioners does not exist here. Attorney-General v. Stewart, Mer. 143. In the present case, sufficient appears to show that the plaintiff, by referring to a scale of published fees, rather meant to show that he abandoned the position of physician --- and certainly was an ingredient from which a Jury might infer that there was an agreement to pay so much per visit, and therefore to take the facts out of the ordinary cases, Lipscomb v. Holmes, 2 Camp. 441; Hoggins v. Gordon, L.J. (fir. 1842); Veitch v. Russel, 12 L.J. (1842), were referred to.

Mr. FOSTER was heard in reply, and the CHIEF JUSTICE gave the opinion of the Court to the following effect:---

We have considered the question referred to us in this matter, and we are of opinion on the facts stated, that as the plaintiff's attendance was on a medical, not a surgical case, and he is admitted to be a physician, he must (in the absence of any evidence to the contrary) be taken to have acted as a physician. He would therefore not be entitled to recover, in a court of law, without evidence of an express promise by the defendant, or of circumstances from which a jury might infer, first, that he did not seem to trust to his patient's liberality or honor, but expected compensation for his attendance; and secondly, that the defendant employed him on that understanding. We find no evidence on these points, and therefore if the case had originated in this Court, the defendant would be entitled to our judgment, but as the legislature has, with respect to suits in the Court of Requests for sums between ten and thirty pounds, expressly drawn a distinction between legal rights and rights according to equity and good conscience; and the question submitted to us is not whether or not the plaintiff is legally entitled to recover in this Court, but in the Court of Requests, whose decisions are to be guided by equity and good conscience, (which are terms used according to our apprehension of them, as opposed to decisions based only on the general rules of law, without regard to particular equities in individual cases) we are of opinion that the plaintiff in this case having afforded to benefit of his services as a medical man to the defendant, in (as it appears to us) the expectation of being paid for them, is in that Court legally entitled to recover for those services.

Published by the Division of Law, Macquarie University