PhD Thesis - ResearchSpace@Auckland - The University of Auckland

the Deputy Director-General of Health, Harold Turbott, from the Solicitor-General on
the matter and ‘guidance as to whether this Department should attempt to secure
authority for inoculating Maori children against typhoid fever’. 27 In his Crown Law
Opinion the Solicitor-General made it quite clear that the nurse who immunised a
child without parental consent was technically committing an assault and that gaining
the permission of the teacher for this act was not sufficient. Indeed the giving of such
a consent by the teacher ‘could be construed as amounting to complicity in the
technical assault’ and would render the teacher liable as well. 28 The Crown itself was
not ‘vicariously liable for the act of its employee’ as the Crown Suits Amendment Act
of 1910 excluded liability for assault by a servant of the Crown. 29 However, both the
nurse and the Crown were liable for negligence. The Solicitor-General recommended
that in the case of negligence the Crown accept liability and take the responsibility for
indemnifying their employees against a charge of assault should a prosecution of this
nature arise. It was not regarded as advisable to try and alter legislation ‘in view of
the embarrassing issues calculated to arise...namely the issue of interference with
parental rights if the legislation were framed in general terms, and the issue of racial
discrimination if it were expressed to apply only to Maori children’. 30
Turbott now proposed to ask the Government to indemnify employees against liability
for an assault charge for immunising Maori children without parental consent. The
penalty for assault at this time was either damages of up to ₤10 or two months in
prison, with or without hard labour. It was therefore of some importance to the Health
Department that they did not leave themselves open to what could be a most
embarrassing situation. Because of the silence surrounding this situation, it is likely
that few nurses knew that they could be charged with assault each time they
administered typhoid vaccine to a Maori child. Indemnification, in line with the
Solicitor-General’s view, was felt to be the most sensible course of action as ‘the
experience of the past seems to indicate the probable inexpensiveness of the
continuance of the present procedure, even with the modification now suggested of an
assurance of indemnity to any employees or their representatives who may inquire’. 31
27
H. B. Turbott to Solicitor-General, 19 August 1948, ibid.
28
Circular 1948/165, 11 October 1948, ibid.
29
ibid.
30
ibid.
31
E. L. Greensmith to Minister of Finance, 27 May 1949, ibid.
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