Scottish Court of Session Decisions

John Ewart, shoemaker, residing in Alva, for himself and as administrator-in-law for David Ewart, his son, raised an action in the Sheriff Court at Stirling against James Vernon Brown, headmaster of Alva Academy, under the following circumstances:—Upon Wednesday the 14th September 1881 the defender struck the pursuer's son, who was a pupil under his charge, upon the head with a wooden rod or pointer. It was proved that the defender did not give this stroke in anger or with intent to hurt the boy, and it was proved that the stroke was not a severe one. The defender was not in the habit of using the “pointer” as an instrument of punishment, but occasionally he used it to attract the attention of boys who were not attentive to their work. The boy deponed that he felt stupified by the blow. He, however, joined his companions' games, and returned to school in the afternoon. He was at school on Thursday, but not on Friday. There was no school on Saturday, but he was out on that day, and though he deponed that he suffered from sickness and pain that day, persons who knew him well observed nothing the matter with him. He did not leave his bed on Sunday. On Monday a medical man named Lindsay was sent for and saw him. There were then no external marks on the boy's head. Congestion of the brain came on, and he was ill for six weeks. A second doctor saw him on September 28th. He differed from the first in this respect, that he did not attribute the illness to the blow.

Page: 106↓

The medical men agreed in saying that they would have expected that a blow sufficiently serious to produce the congestion of the brain from which the boy suffered would have left external symptoms on the boy's head.

The Sheriff-Substitute found in fact—“(1) That in the month of September last David Ewart, a son of the pursuer, was attending the Academy at Alva, of which the defender is the head master; (2) That on 14th September last, while the defender was teaching the class of which the said David Ewart was one, he struck the said David Ewart on the head with a stick or pointer; (3) That in consequence of said blow the said David Ewart was affected with congestion of the brain, and was confined to bed for a period of six weeks; (4) That the defender was not justified by his position of schoolmaster in using a pointer as an instrument of punishment, and especially he was not justified in using it in the manner above stated; (5) That the defender's treatment of the said David Ewart amounted in law to an assault, for which he is liable to the pursuer in damages; Modifies the same to £10 sterling, for which decerns against the defender; Finds him liable in expenses of process; Allows an account,” &c.

“ Note.—There seems to be no doubt on the evidence that the defender was in the habit, as he himself admits, of using a heavy stick or pointer ‘to tap the boys on the head if they were inattentive,’ and that on the 14th September last he did tap David Ewart on his head, and pretty smartly. The boy was not stunned, but, as he explains, was rendered stupid, and after a little while was able to join his companions at their games and go home and tell his mother. There was no bleeding, and on the Monday following Wednesday the 14th there was no trace of the blow in wound or swelling on the head. On that day, however, the boy fell sick, and was confined to bed with serious symptoms of congestion of the brain for the following six weeks. There is no reason to suppose that the defender was enraged or vindictive, or that he intended to hurt this boy when he tapped him on the head. On the other hand, he admits that he does not use the pointer for punishment, but merely for the purpose of attracting the attention of his careless pupils. But, in the opinion of the Sheriff-Substitute, a heavy stick like a pointer is not a proper instrument of chastisement, and certainly the use which defender made of it, by tapping the pursuer's son on the head, was most imprudent and unjustifiable.

A schoolmaster is invested by law with the power of giving his pupils moderate and reasonable corporal punishment; but the law will not protect him when his chastisement is unnatural, improper, or excessive. In the present case the Sheriff-Substitute thinks that the defender had no right to strike a pupil with the stick cr ‘pointer,’ and certainly that he was not justified in tapping him upon the head. Unfortunately the medical evidence is not so satisfactory as could be desired. On the whole, however, the Sheriff-Substitute is satisfied, from his own statement, and the testimony of those who have the best means of knowing, that the boy has sustained no permanent injury.

Accordingly, the Sheriff-Substitute has assessed the damages, to which in the circumstances he considers that the boy's father is entitled, at the sum of £10.

At the same time he has allowed the pursuer expenses of process, as he thinks that the case was one which could not with advantage have been disposed of in the Small Debt Court.”

The Sheriff recalled this interlocutor and found—“(1) That the pursuer's son David Ewart was a pupil at the Academy at Alva of which the defender is headmaster; (2) That on Wednesday 14th September 1881 the defender, while engaged in teaching the class in which the said David Ewart was, struck the said David Ewart on the head with a wooden pointer; (3) That the blow was slight, and did not amount to an assault or to excessive or illegal chastisement; (4) Finds it not proved that the illness from which the said David Ewart subsequently suffered was occasioned by the said blow; Therefore recalls the interlocutor of the Sheriff-Substitute, dated 16th May, and assoilzies the defender from the conclusions of the summons; Finds him entitled to expenses, subject to modification to the extent of one-fourth thereof,” &c.

“ Note.—If it had been necessary, in order to reach a conclusion opposed to that of the Sheriff-Substitute, to take in considering the evidence a view of the credibility of the witnesses, differing materially from that which he has taken, the Sheriff could not without much difficulty have reached that conclusion. But the Sheriff thinks that it is not so, and that his dissent from the Sheriff-Substitute's view of the case regards not so much the evidence as the inference from it which the Sheriff-Substitute has drawn, and in which the Sheriff is unable to follow him. The Sheriff does not reject any of the evidence on which the Sheriff-Substitute has proceeded, but he cannot adopt the inference that the illness from which the boy David Ewart suffered was caused by or connected with the blow which he received from the defender.

If attention be confined in the first place to the direct evidence of the alleged assault, apart from the illness which followed, the blow would appear to have been very slight indeed. There is no proof that it was inflicted violently or hastily, or when the defender was irritated or had lost his self-control. Nothing of that kind is suggested. The blow was certainly not inflicted with intent to injure, and it is far from clear that it was inflicted with intent to punish. The defender denies that he used the pointer as an instrument of punishment, and he is corroborated in that by the boy William M'Kinnon. The defender admits that he may have touched some of the boys with the pointer to attract their attention, but he refuses to admit that he struck the boy David Ewart with it at all. That he did strike or touch David Ewart with it on the head is, it is thought, proved. But it may possibly be the case that the defender intended to do no more than touch him in order to attract his attention, and that he forgot or overlooked so trivial a circumstance. It may be that the pointer lighted on the boy's head more sharply than the defender intended or was aware of. But it is hard to understand how he could have struck a blow of any considerable degree of severity without being aware of it, and hard to believe, contrary to his distinct evidence, that he was and is aware of having struck that blow. Be that as it

Page: 107↓

may, the evidence of the other boys would certainly lead to the belief that the blow was a slight one. David Ewart says that it made him stupid, and that he sat down, but in that he is not corroborated. Other boys, as Muir and M'Kinnon, were also struck, as it seemed to them, in the same way as Ewart. No bad consequences happened, and but for David Ewart's illness his case would have been the same as theirs; and it is thought that in the case of none of them would there have been room for an action of damages but for Ewart's illness.

The Sheriff does not mean to suggest that the defender was free from blame in rapping or touching the boys on the head with the pointer. He thinks he was to blame; but it is one thing to say that and another thing to say that he committed an assault, or so exceeded his powers as a teacher as to be liable in damages. It appears to the Sheriff that a schoolmaster ought not to be interfered with by the Court for every slight excess, or supposed excess, in severity of discipline, or for every mistake or imprudence in regard to the manner in which the discipline is administered On the whole, he thinks that there would have been no case against the defender had David Ewart's illness not supervened. But if so, it follows that unless it be proved that the illness was caused by the blow, the action must fail, and the Sheriff has been unable to think that it was so caused.

Such a consequence from so slight a blow would be the most unlooked-for and unexpected thing in the world. Still, if it really did follow, the defender would probably be answerable; but it is necessary to consider the evidence very carefully in order to ascertain whether the connection between the blow and the illness has been proved. It need not be denied that strong and plausible grounds are not awanting for the contention that that connection has been made. But the mere coincidence that the illness followed the blow is not of itself sufficient.

It is not quite clear that the illness was cerebral congestion; but as Dr Lindsay, who had the best opportunity of judging, thought that it was, it probably ought to be taken to have been so.

The time which elapsed after the blow before the illness took a serious turn affords a strong ground for doubting the connection between them, though it certainly is far from being conclusive. The boy complained of headache on the Wednesday, but then and on the Thursday he went to school and to play as usual. On Friday it is not clear why he did not go to school, but on Saturday he went to the rifle range. The Sheriff was referred to a passage in Taylor's Medical Jurisprudence indicating that after a blow on the head some time might elapse before serious consequences were developed. It may be so, and no doubt in some cases is so, still the passage quoted is sufficient to show that such a lapse of time is exceptional and unusual, and founds some argument against attributing a cerebral illness to a previous blow.

It is more important, however, to advert to the slightness of the blow, as appearing from the direct evidence already referred to. The boy's mother says that on Wednesday the boy's head was swelled. It is difficult to feel sure that she was right in believing that. She does not say it was sensitive to the touch. Mrs Lochhead found no mark at all on Sunday night, and Dr Lindsay depones that on Monday there was none. The blow, if it can be called a blow, was struck without irritation and without violence. It caused no sickness, and in the opinion of the Sheriff no insensibility, and by the Monday it had left no mark at all. The Sheriff is unable to believe that such a serious consequence as severe cerebral congestion could have followed from a blow of the kind. No doubt Dr Lindsay attributes the illness to the blow, but it does not appear what information he had, or what impression he was under as to the severity of the blow, and there are passages in his evidence which require attention. His opinion does not appear to be very confident. Symptoms and appearances were awanting which he would have expected. Towards the end of his evidence he says—‘I think the illness arose from injury to the head caused by a stroke or fall.’ How he came to speak of a fall as a possible cause does not appear, but certainly the suggestion leads one to doubt whether he had inquired minutely into the actual facts of the case, or if he had, whether he had not some reason for suspecting that the boy might have had a fall.

Dr Cunningham had not equal opportunities for judging of the nature of the boy's illness. On that point Dr Lindsay is the better witness. But Dr Cunningham heard the whole evidence, and was informed, as Dr Lindsay may not have been, as to the amount of the violence used, and at the close of his evidence he gives his opinion distinctly—‘From what I have heard of the evidence, I do not think the stroke on Wednesday could have caused the effects which were visible to Dr Lindsay on the Monday.’ That appears to the Sheriff to be a reasonable opinion, and he thinks it an important piece of medical evidence.

On the whole, while the Sheriff does not arrive at a different conclusion from that of the Sheriff-Substitute without a good deal of misgiving, he has been unable, after repeated consideration of the case, to hold any other opinion than that it is much more likely that the boy's illness, whatever it was, arose from natural causes than from a blow which appears to have been so totally inadequate to have caused it.

Expenses have been modified, because the Sheriff considers the defender's plea-in-law to have been unfounded, although the pursuer's conduct in withdrawing the charge lodged with the School Board and bringing an action in Court is not well explained. [ This referred to a plea founded on an alleged retractation by the pursuer of all charges against the defender.] The Sheriff has also had regard to the fact that the infliction of the blow, denied (presumably forgot) by the defender, has been proved.”

The pursuer appealed.

At advising—