143-NLR-NLR-V-03-CUMBERLAND-v.-SUSE-et-al.pdf
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CUMBERLAND v. SUSE et al.
P. C., Chilaw, 15,040.
Ordinance No. 3 of 1397—Regulation 20 made thereunder—“ Diseased ”—“ Patient ”—Obstruction in the removal of patients—Misjoinder ofaccused.
In Ordinance No .3 of 1897, the word “diseased” means one whois actually diseased and not one merely infected ; and “ patient ”means one actually suffering from some disease.
In order to constitute a charge of obstruction under regulation 20made under that Ordinance, it is necessary to prove that the“ diseased persons ” occupied someone or other of the three classesof houses or places mentioned in the regulation.
Unless the obstruction offered be concerted, each of the accusedshould be separately charged and tried.
T
HIS was a prosecution under regulation 20 made underOrdinance No. 3 of 1897. A patient suffering from small-
pox of a virulent type, in the village of Udappu, was removed fromhis house to the hospital, where de died. Ten days after his deaththe Assistant Government Agent, attended by a medical officerand others, went to the village to remove those who were diseased.In his evidence Dr. Wright explained that the accused and theother residents of the village who were to be removed to a placeprovided by the Government were not actually suffering fromsmallpox, but were suspected of being infected with the disease,because they lived very close to the house of the diseased patientand had free intercourse with the inmates of the house of thatpatient. The accused objected to be removed and offered obstruc-tion to their removal.
The Police Magistrate found them guilty.
On appeal by the accused,
Domhorst and Jayawardana, for appellants.
Layard, A.-G., for respondent.
1899.
August 7
Cur. adv. vvlt.
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7th August, 1899. Withers, J.—
August 7.-
The four appellants have been convicted of an offence against
the Quarantine and Prevention of Diseases Ordinance, 1897, inthat they without lawful authority or excuse obstructed andimpeded the proper authority in the execution of the followingregulation No. 29 made under the Ordinance : “ It shall be lawful“ for the proper authority to cause persons diseased with plague,“ cholera, or smallpox in any house or place hereunder described“ to be removed to some public hospital or other place provided“ by Government—(1) in any house or place in which goods are“ exposed for sale; (2) in any house or place of public resort:“ (3) in any building in which there are no means of isolating the“ patients from the other inmates, or in any building where the“ detention of the patient is likely to prove a source of danger to“ others.”
The most important question raised in appeal was this:Assuming the facts to be as found by the Magistrate, do theydisclose an offence ? On this point I have had the great advan-tage of hearing the Attorney-General.
The facts are, in my opinion, proved to be these : On the 27thApril a man of the village of Udappu was removed from his houseto the hospital, where he died the same day from a very virulenttype of smallpox.
During his illness the man was living in a small house insidean enclosure, which contained, beside that building, two otherbuildings made up of contiguous rooms under one roof. On oneside of the enclosure is a public lane, and on the other three sidesare village houses. The village is very crowded and the housesare close to one another. On the 7th May the AssistantGovernment Agent went to this enclosure with the object of havingthe residents removed to a place provided by Government forthe purposes of this Ordinance. The number of those living inthis enclosure at the time was about 27, including men, women,and children. The medical officer considered that this enclosureand the persons in it were infected with smallpox, and he advisedthat all the occupants of the enclosure should be removed to theplace where it was proposed to take them to. If the males hadgone, no doubt the women and children would have followed,but the males would not go. They refused to go of their own accordor be taken against their will. For this obstruction someof them have been fined.
Now, do the circumstances of this case come within the scope ofthe above regulation ? As this enclosure is not a house or place inwhich goods are exposed for sale, or is not a house or place of
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public resort, the case can only be touched if the buildings in the 18"-enclosure are buildings in which there are no means of isolating Avgust 7.or retaining the patients, &c. But, above all, it depends upon the WlTHEB3meaning of the word “ diseased ” in the regulation. If the worddiseased mean actually diseased and not merely infected, then thepresent case is outside this regulation. For none of the appeal-lants or occupants of the enclosure was actually diseased. TheOrdinance under which the regulation is made enacts, “ that,
“ unless the context otherwise requires, ‘ diseased ’ shall mean“ infected or suspected of being infected with ‘ disease.’ ” In whatsense does the context require the word “ diseased ” to be taken inthis regulation ? With all deference to the Attorney-General, itseems to me clear that the context requires the word " diseased ”to mean one who is actually d:seased. For else, what is meantwhen the regulation speaks of isolating the patient from the otherinmates and for providing for the patient to be allowed to remainin a house in which goods are exposed for sale ? A patient con-trasted with other inmates is a diseased person contrasted withothers not so diseased. “ Patient ” is here used as equivalent todiseased, but a patient in the ordinary sense of the term meansa person suffering from some disease or indisposition.
The Attorney-General argued that the word “ patient ” hasitself a limited use in pathology. But a patient in the ordinarysense surely means a person suffering from some disease or indis-position ? What else does a smallpox patient mean than aperson suffering from smallpox ? Then regulation 30 seems tothrow some light on the 29th regulation, for it says, “ that except“ as provided for by these regulations, and except as provided for“ by Ordinance No. 8 of 1866, it shall not be lawful for any person
“ to remove any person suffering from cholera, small.
“ pox, &c., from the house …… in which such person shall be
“ to any other house without the sanction in writing of the‘‘ proper authority.”
Now, this is the first place in the regulations in which the words“ suffering from ” occur, but it takes for granted that the regula-tions have provided for the removal of a person suffering from acontagious disease. The actual circumstances of the present casewould be exactly covered by any regulation under section 5 of theOrdinance, letter k. Section 5 enacts, “ that the regulations may“ provide (k) for the removal from infected localities to places of“ observation or other places of persons found in such localities.”
No regulation providing for this state of things has been madethat I can find ;. and if I could find any other regulation coveringthis particular case. I would affirm the conviction, because on all
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1899.
August 7.
Withers, J.
the points taken by the appellant’s counsel I am against him,except on the point of law. As no other offence against this orany other regulation has been committed, 1 must set aside thisjudgment and acquit the accused.
I may add that I do not think that these persons should havebeen joined in one charge, unless it was proved to be a concertedobstruction, because the offence is of a separate character; oneperson may have the authority of sufficient excuse, and anotherperson may not.