James v Baird
| Jurisdiction | Scotland |
| Judgment Date | 13 January 1916 |
| Date | 13 January 1916 |
| Docket Number | No. 49. |
| Court | Court of Session |
Ld. Anderson, Lord President, Lord Johnston, Lord Skerrington.
Reparation—Slander—Privilege—Statement to parish council—Statement made in bona fide belief that occasion privileged—Issue—Innuendo—True statement of fact conveying false representation.
Poor—Medical relief—Old age pensioner—Duty of parish council to provide old age pensioner with medical relief.
The president of a district nursing association sent to the parish council a letter calling their attention to the fact that the parish medical officer had failed to obtain the services of the association's nurse for one of his patients, Mrs H, who was an old age pensioner, but not a pauper. The letter narrated with substantial accuracy the facts which had occurred; it made no specific charge against the medical officer; but it concluded with these words:—‘I venture to bring Mrs H's case to your notice as one who should have been given the help which was within reach and to which she was entitled.’
In an action of damages for slander at the instance of the medical officer against the writer of the letter,—
Held (1) (diss. Lord Johnston) that the parish council had no such duty of affording medical relief to old age pensioners as to make the occasion privileged; and (2) that, this being so, the fact that the defender wrote the letter in the bona fide belief that the parish council had such a duty did not raise a case of privilege.
Held also that, although the letter contained a substantially accurate statement of the facts, the jury were entitled to return a verdict for the pursuer, if they were satisfied that the letter contained a representation with regard to the pursuer which was false and calumnious.
Dictum of Lord President Inglis in Campbell v. FergusonSC, (1882) 9 R. 467, commented on and explained.
Reparation—Slander—Malice—Evidence of malice—Measure of damages—Aggravation of damages—Conduct of trial by counsel.
Observed, per Lord Johnston and Lord Anderson, that the fact that counsel for the defence in an action of damages for slander leads evidence attacking the pursuer's conduct on occasions other than that put in issue cannot be taken into consideration by a jury as an element either in proving malice or in increasing the amount of damages, unless it be established that counsel is acting on the express instructions, or with the privity, of his client.
(Reportedante, 1915 S. C. 23.)
On 12th January 1914 Dr John George Wallace James, a medical practitioner in Haddington, brought an action against Mrs Susan Georgiana Fergusson or Baird, President of the Haddington District Nursing Association, concluding for £5000 as damages for slander. The pursuer, besides being engaged in private practice, was medical officer for the Parish of Haddington.
The slander complained of was contained in the following letter written by the defender to the Chairman of the Parish Council of Haddington:—
‘Colstoun, Haddington, N.B.
‘Dec. 8th 1913.
‘The Chairman,
‘Parish Council of Haddington.
‘Dear Sir,—As President of the Haddington District Nursing Association, I am writing to ask your attention to the following:—I am informed that Mrs Haldane, Kelpair Street, an old age pensioner, sent to Dr James for medical assistance on the 7th of November. He did not come on that day or the next, and another doctor was sent for on the 9th. Dr James called on the 10th, but did not order in the district nurse, or, so far as I understand, call again. The nurse was sent in by the other doctor on the 14th and has been in attendance ever since. Mrs Haldane is quite helpless, by which I mean unable to move in bed at all, and is said to be suffering from a malignant disease. She has very extensive bedsores. Her daughter, who lives above her, does what she can, but it is a typical case requiring a trained nurse. Only a nurse can prevent bed-sores occurring, and once established they are very difficult to cure, and cause the patient much pain and distress.
‘The Council, besides giving a grant of £2 a year to the Nursing Association, have twice passed resolutions enjoining their Medical Officer to call in the nurse when required. I beg to enclose one of them, the last was passed in July 1910. Immediately upon the passing of the last, 10 cases on the roll were given us. The following year there were 19. In 1912 none were notified as requiring attention, nor have there been any this year.
‘I venture to bring Mrs Haldane's case to your notice as one who should have been given the help which was within reach, and to which she was entitled.—Believe me, yours truly, S. G. Baird.’
On 27th October 1914 the First Division allowed an issue1 for the trial of the cause in the following terms:—‘Whether the said letter is of and concerning the pursuer, and falsely and calumniously represents that the pursuer, while medical officer of the parish of Haddington, failed, in breach of his duty as such medical officer, to call in the district nurse to Mrs Haldane mentioned in the said letter,—to the loss, injury, and damage of the pursuer?’
The case was tried before Lord Anderson and a jury on 14th, 15th, 16th, and 19th July 1915.
It was proved at the trial that the Haddington District Nursing Association, of which the defender was president, was an organisation for providing the poor of that parish with the services of a trained nurse. The Parish Council of Haddington made an annual subscription of £2 towards the funds of the association. The pursuer had taken no part in the formation of the association, and had expressed his disapproval of its objects, on the ground that there were a number of women in Haddington who made a living by nursing and it was unnecessary to bring another nurse there.
Between 1908, the date of the formation of the association, and the date of the letter complained of, communications had passed between the defender and the Parish Council with regard to the employment of the nurse, the defender complaining on several occasions that insufficient use was being made of the nurse's services; and the Parish Council had on two occasions, the first in June 1909 and the second in June 1910, passed resolutions, or instructions, with regard to the duty of their medical officer to call in the district nurse when her services might be required.
With regard to the duties of the Parish Council and of inspectors of poor towards old age pensioners a circular letter of 30th May
1911, addressed by the Local Government to inspectors of poor, was put in evidence, which contained the passages undernoted.*
As regards the case of Mrs Haldane it was proved that she was, at the time in question, an old age pensioner, but it was neither averred nor proved that she was a pauper or had applied for medical or other relief. On 1st November 1913 the pursuer, who had previously attended Mrs Haldane, was informed that she was ill, and he promised to visit her. He did not do so until 3rd November when he found another doctor, Dr Caverhill, who had meanwhile been called in, attending Mrs Haldane as his private patient; the pursuer then handed over the case to Dr Caverhill. On 13th November Dr Caverhill called in the nurse to attend to Mrs Haldane, who was by that time suffering from bed-sores. The defender first heard of the case from a Mr Badger, the secretary of the local branch of the Society for the Prevention of Cruelty to Children. She then asked the district nurse to make inquiries and received from her a letter setting forth the result of her inquiries. She also received from Mr Badger a memorandum giving a detailed statement of the case. With that information before her she wrote the letter complained of. She did not make any inquiry as to whether the Parish Council owed any duty in the way of providing medical assistance to old age pensioners who were not paupers. It was proved that the letter complained of was inaccurate in certain particulars, viz., in respect that the dates upon which the pursuer had been called in and had visited Mrs Haldane were wrongly stated as being a week later than the actual dates; and also in respect that the letter stated that the nurse had in no case been called in by the medical officer in or after 1912, whereas she had in fact been so called in once in 1912 and once in 1913.
At the trial several witnesses were examined for the defender with a view to proving that the pursuer had, in a number of cases, neglected his pauper patients.
In the course of the trial counsel for the defender asked the Lord Ordinary to give the following two directions to the jury:—(a) ‘Whether the letter complained of is privileged or not, if it was substantially nothing but a correct statement of facts which had actually occurred, you (the jury) cannot bring in a verdict for the pursuer, because his whole action is based on the averment that the statements in the letter are false, and if they are true the basis of his action has gone,’ and (b) ‘In respect that Mrs Haldane as an old age pensioner was a person to whom the parish council had a duty to see that she got medical relief when needed, the letter complained of was privileged.’ The Lord Ordinary refused to give either direction, and counsel for the defender excepted to each refusal.
The jury found for the pursuer and assessed the damages at £1000.
Thereafter the defender lodged a bill of exceptions to the refusal of the Lord Ordinary to give the directions (a) and (b) specified above, and also moved for a new trial on the ground that the verdict was contrary to evidence and that the damages were excessive.*
A rule having been granted, counsel were heard on the bill of exceptions and the rule before the First Division (without Lord Mackenzie and with Lord Anderson) on 16th and 17th December 1915.
Argued for the pursuer;—On exception (a)—The statements in the letter were not in fact true. But, assuming that the letter did state the facts with substantial accuracy, it was...
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