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Decisions of the Nineteenth Century Tasmanian Superior Courts

Barfoot v. Roberts [1841]

libel - midwife, negligence by - married women's legal rights

Supreme Court of Van Diemen's Land

Montagu J., 15 December 1841

Source: Hobart Town Advertiser, 17 December 1841[1]

            This was an action for an alleged libel, contained in the shape of an advertisement, signed by the defendant, in a late number of this paper, tending to bring the plaintiff's wife into disrepute, in her capacity as midwife, the damages being laid at 500l.

            Messrs. McDowell and Roberts appeared for the plaintiff; the Attorney General, with Messrs. Stephen and Butler, for the defendant.

            Before entering on details, we will, by way of elucidation, premise that on the occasion of the last confinement of Mrs. Roberts (wife to the defendant), Mrs. Barfoot was called in to attend her. The consequences of the accouchement proved fatal, and Mr. Roberts under the impression that his wife had fallen a victim to the negligence of her attendant, penned the subject matter of this action to which he gave publicity as before stated.

            The declaration set forth, that in consequence of the advertisement, several persons who had already retained Mrs. Barfoot's services, afterwards declined to employ her, and her professional character had been materially injured, to the great pecuniary loss of the plaintiff.

            The pleas put in were:- lst, that of general issue, and 2nd, one of justification, on the grounds that the defendant had ascertained from Dr. Officer, that her treatment of the late Mrs. Roberts was of such a nature as to make it unsafe for any one to employ her in her capacity of midwife; that she failed to administer the necessary medicines, drinks, and nourishment - besides absenting herself for the space of twelve hours, leaving her patient (whom she represented to the family as doing well, though aware of imminent danger) without any medical assistance.

            Mr. McDowell, on opening the case to the gentlemen of the Jury, after remarking on the nature and substance of the pleas, expressed his belief that they must be aware that the case before them applied not only to the plaintiff, but also to the public generally; for, if the advertisement emanating from the defendant were true, it was monstrous to think that a person so utterly incapable as Mrs. Barfoot was represented to be, should ever have presumed to attend a bed of sickness. The learned counsel, therefore, considering himself the advocate of society as well as of the plaintiff, would not hesitate to call on the Jury, if they thought the contents of the advertisement to be true, to find for the defendant; for to sanction that an incompetent woman should meddle with cases in which the lives of the opposite sex were always in danger, even when in the hands of the most skilful, would be a crying outrage to humanity; but, if on the other, it could be proved, and of that Mr. McDowell entertained no doubt, that the production was as malicious as it was unfounded, what damages would not the Jury give for so foul an attempt to injure the professional character of an industrious and deserving woman? The learned counsel, in explaining the minutiae of the case, which we shall do in the words of the witnesses, contended that as soon as Dr. Officer was called in the responsibility was of course taken from Mrs. Barfoot, who could not presume to act in his presence, not that Mr. McDowell would be understood to impute any thing to the prejudice of that medical gentleman, whose skill and humanity were so deservedly appreciated in our community. He then called:

            Mr. James Lowe, whose testimony we shall omit, failing as it did to convey that for which he was called.

Mrs. James Lowe, wife of the last witness, remembered hearing her husband read an advertisement respecting Mrs. Barfoot. Witness had a short time before called on Mrs. Barfoot to request her attendance at her approaching confinement, but on being informed that she was ill and unable to leave her bed, she engaged some one else, though not on account of the advertisement.

This being the case for the plaintiff, the Attorney General began his lengthened and able address on behalf of the defendant. After observing how painful he felt his task, condemned as he was to expose the various circumstances which attended the last moments of his client's unfortunate wife, the conviction was strong in his mind that he would prove to the jury, by means of innumerable witnesses, that Mrs. Barfoot had not only been guilty of the most culpable apathy and negligence in her vocation, but that, the parties being reversed, she ought to be standing in that box (the dock) to answer to her God for the death of a fellow creature.

Here a quotation was read as a case of Sir John Long, from "Roscoe's digest on criminal cases" the Attorney General requesting that if he failed to make the present one apply, fully benefit might be given to the plaintiff. The learned counsel had it in his power clearly to show that the plaintiff's wife had not only been guilty of the grossest negligence, but much more that her conduct had been a tissue of fraud, falsehood and base contrivances - she had absented herself during the whole of the night of the Thursday though aware of extensive haemorrhage and of the imminent danger attending it, and had told the family before leaving that if it should be necessary to call in medical assistance Dr. Officer must be sent for, as she would not be forthcoming if called - she, that evening, told the inmates of the house that the sufferer was doing very well and yet on returning home told her husband that she expected to see the shutters up on the following morning, as she did not anticipate that Mrs. Robert's would survive the night. The learned counsel would moreover prove that she resorted to none of those means which a proper knowledge of her vocation would indicate, to stop that dangerous symptom which she, on the contrary, treated with a levity which could only spring from the hardest of hearts. He had never beheld a more awful case and hoped that the ready verdict which would fall from the jury, expressing as it would their execration of the unfeeling treatment to which the unfortunate deceased had been subjected, would produce the effect of preventing Mrs. Barfoot from ever again putting her foot into a sick chamber of which call the same fatal consequence might be the result.

The first witness for the defence was:

Dr. Officer, who questioned by Mr. Stephen, deposed viz:-

Knew the defendant's wife. Early in the morning of the 9th September was called in to see her, met Mrs. Barfoot there and understood from her that Mrs. Roberts was labouring under uterine haemorrhage - finding her statement to be true, I prescribed a composing draught, of which I ordered one half to be immediately and the other three hours after, if the haemorrhage had not ceased in the mean while - called again about 4 or 5 pm and was informed that in the interim labour had come on and that the patient had been delivered of a stillborn child. The deceased told me that she had felt much better after taking what I had prescribed in the morning. On the midwife telling me that all was right, I left the house thinking that I had no more to do with the case as I not been called to attend an accoucheur but merely to remove a dangerous symptom - Mrs. Barfoot said there was nothing more than usual - she did not inform me whether the placenta had come away of itself or not - did not examine the patient - was sent for next morning between 8 and 9 - then found her in a state of great exhaustion amounting to stupor and beyond the means of assistance. After administering some brandy, I hurried to Dr. Learmonth who accompanied me to the house where we together consulted on what was to be done. - Consider uterine haemorrhage to have been the cause of death. It depended on various circumstances of the case whether a manual abstraction of the placenta was indicated. As a general principle abstraction of the placenta before an incipient contraction of the uterus is improper. Various remedies are used to promote that contraction, one more especially which is much used of late, the argot of rye. On examining Mrs. Roberts on the morning of the day on which she died, I found that the uterus, instead of having undergone contraction, was considerably distended; the effect of 20 or 30drops of laudanum would be rather good than otherwise; saw the defendant some weeks after the death of his wife, and after the advertisement had appeared; he called on me one morning, and endeavoured to elicit my opinion of Mrs. Barfoot's treatment of his wife; he narrated some particular parts and enquired what I thought; I told him that Mrs. Barfoot's conduct had exhibited as much skill as could have been expected from her, whose acquirements could not be supposed to equal those of a legally qualified medical practitioner. Had a medical man been employed throughout, I told him the result might have been more favourable; Mr. Roberts said it had been his wish to employ me from the beginning, but that his wife objected to it; I was solicited by the plaintiff to sign a certificate of the propriety of his wife's treatment of the deceased, which request I refused to comply with.

            Miss Mary Roberts. - Was at home on Wednesday the 8th Sept. last; my mother was lying ill in bed; Mrs. Barfoot was present; about 11 o'clock she asked for some nourishment; there was in the room port and white wine, brandy and rum, which were all at Mrs. Barfoot's disposal, but she did not administer any; mother appeared very weak and low; the first time I next saw her was at about 9 o'clock on Thursday morning; do not think Mrs. Barfoot was there, though she came in soon after; was in and out of the room during the whole day; was in the room when the child was born; the midwife was then down stairs making some toast and water; she had been absent about half an hour; my sister and I were at her call, and would, if required, have prepared the toast and water; when she returned, mother told her to look in the bed; she did so, and found a child; Mrs. B. told her it was dead; I was the only person present at the delivery; five minutes had hardly elapsed when the placenta was extracted; no bandage was applied; some violence seemed to be used, and on the removal mother exclaimed, "Oh, Mrs. Barfoot! Oh. Mrs. Barfoot! There was a change of linen in the room, but the bed clothes were not moved; the room was never left without either my sister or myself being there, except on one occasion for about 10 minutes, and then Mrs. Barfoot was in the room; she did not remain in the house during Thursday night; before leaving, she told me mother was doing very well; did not hear Mr. Roberts say any thing to mother about calling a Doctor; the midwife was in attendance about 9 o'clock on Friday morning.

            By Mr. McDowell. - Mrs. Barfoot had no attendance except from my sister and myself up to Thursday morning, when a nurse was hired; the confinement took place about 4 pm; Dr. Officer came about a quarter of an hour after the delivery; mother had been in great pain, but at the time of his arrival, felt better; when I saw her next morning, a visible change had taken place for the worse, so much so, indeed, that Mrs. Jenkins (the nurse,) could not help noticing it; it was about 7 or 8 o'clock that I saw her on Friday morning, Mrs. Barfoot was there.

By the Attorney General. - It was before 9 on Thursday evening when Mrs. Barfoot came that the visible change had taken place; soon after 9 o'clock she left for the night, saying mother was doing very well.

            By His Honor. - Mother complained of her feet being cold; I felt them, and found they were cold and clammy.

            Elizabeth Roberts, elder sister to the last witness, corroborated the former testimony. Answers were, besides, elicited as to the nature of the evacuation, which painful as they must have been to her, tho' required for the ends of justice, we think it right to withhold on paper. Witness stated that when she informed Mrs. Barfoot of the haemorrhage on Thursday evening, she gave her laudanum dropped into water, and requested that flannel might be applied.

            Anne Jenkins, nurse, had usually seen a bandage applied after the extraction of the placenta; her impression was that the bandage should have been applied; had usually seen cold applications used in similar cases; before leaving, Mrs. Barfoot did not ascertain whether the evacuation continued, she appeared sobor; there were 9 folds of blankets on the bed, which were saturated; the midwife returned next morning.

            Mary Ann Bent. - Mrs. Barfoot told me that she knew the deceased would never get over it, and assigned as a reason that she was too weak, and low, and had not sufficient nourishment. I did not question her as to whether she was incapable of taking any, or whether she had not got it to take. Enquired why, since she thought her so ill, she did not send for medical advice. She replied that Mr. Roberts said there was no necessity for doing so.

            James Roberts, junior. - Remembered Mr. Barfoot going to his father's house, with Dr. Officer's compliments, and requesting that he would sign the first advertisement. Thinking he had been sent by Dr. Officer, his father did subscribe his name to it.

            Dr. Bedford. - Before emitting any opinion, wished to state how delicate it was for him to speak on the subject of a case in which a brother practitioner had been employed; he had no objection to give his opinion on what had been done by Mrs. Barfoot, but it was his natural presumption that any treatment resorted to by a medical practitioner was called for by the circumstances of the case. From the evidence which he had heard given, it appeared that the patient was laboring under internal haemorrhage. She was subsequently delivered of a dead child, and afterwards died. He had heard nothing tending to prove that it had been ascertained that the uterus had contracted after the birth of the child; this step seemed to Dr. Bedford of the greatest importance. He was of opinion that the attendant had no right to leave the room, at all events not the house, until contraction had taken place; it might however, have been that such contraction had taken place, and that relaxation had followed. This, though of rare occurrence, was not impossible. In the absence of pain, a person might leave the room for a few minutes. A rule existed for the removal of the placenta, but it was not to be followed without deference to the state of patients. The use of violence was always bad; but from the testimony which had been given witness thought nothing had proved that such had been employed. It was usual on the supervention of haemorrhage for some practitioners to employ bandages - some objected to their use. In such cases, cold applications were indicated, and sometimes ergot of rye. Laudenum, when used, should be given in such doses as to operate as a sedative, not less than sixty drops. It was the duty of the attendant not to leave the bedside while the evacuation continued. Did not think that the treatment followed was sufficient. The dose of laudanum was too small. Cold topics, together with pressure, would most likely have proved beneficial in the case. Witness thought Mrs. Barfoot had done wrong, in attempting to treat the case at all, when she found that it deviated from the natural course; midwives could not be expected to possess as much skill as medical practitioners.

            Drs. Officer and Learmonth gave their professional opinions on the subject, and to the same effect.

            A Mrs. Bear stated that Mrs. Jenkins had told her that the defendant had promised her £20, if she would appear in court, and state the thing that was right for him, and that he would always befriend her, but this was denied by the nurse.

            His Honor ruled that Mrs. Bear's evidence could not be taken.

            Mr. Hone stated that on the Sunday following the death of Mrs. Roberts, he called at the defendant's house to console with him, on his loss. - He then expressed himself perfectly satisfied with Mrs. Barfoot's treatment.

            The Attorney General in his second address to the jury, remarked principally on the evidence, and attributed what his client had stated to Mr. Hone to the state of mind in which he must have been at the time; besides, his opinion must have been considerably altered by what had subsequently fallen from Dr. Officer, that medical assistance, applied to in time, might have saved the life of his unfortunate wife.

            Mr. McDowell, as replique, at the same time that he would give full praise to the two young ladies who had been called as witnesses, for the creditable manner in which they had acquitted themselves of their painful task, could not help regretting that the consideration of any pecuniary loss should have induced their father to produce them before the public in the manner in which they had been that day.

            The substance of this remark was repudiated by his Honor to summing up the case, which was gone through principally by recapitulation of the evidence. His Honor could not see in what manner the Misses R. could suffer an injury from appearing in court as they had done to deliver their testimony especially when they had done so in so praise worthy a manner. It was very natural to suppose that if the defendant laboured under the impression that his unfortunate wife had fallen a victim to negligence and ill-treatment, he would consider it his duty to the public to allow the matter to appear before the public with a view to prevent its recurrence.

            The jury retired and after an absence of an hour and a half, returned a verdict for the defendant, his honor fully concurring in their decision.

            [Delicacy has obliged us to omit many points of material importance towards clearly understanding the merits of this case.]

As this action has excited great interest we have given it insertion in exclusion of other cases, which will appear in our next.


[1]              See also Austral-Asiatic Review, 17 December 1841; Hobart Town Courier and Van Diemen's Land Gazette, 17 December 1841.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania