Scottish Court of Session Decisions

Agnes Ross or Scorgie, residing at No. 8 Ferrier Street, Leith, with the consent and concurrence

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of Charles Scorgie, also residing there, her stepfather, who was sisted as her curator ad litem, raised this action in the Sheriff Court of the Lothians at Edinburgh against Margaret Lawrie, teacher in Dr Bell's School, Leith, under the following circumstances Upon the 29th of March 1881 the defender called up the class, of which the pursuer was a member, to repeat a spelling lesson. A number of the pupils were unprepared, their excuse being that the defender had omitted to set a lesson; this the defender denied, and one of the pupils who was called as a witness deponed that the lesson had been given out and that she had learned it. The defender thereupon punished fourteen or fifteen of the girls by inflicting upon the hand of each one blow with a cane, the instrument of punishment ordinarily used and authorised in the school. No one of the girls thus punished suffered any bad consequences except the pursuer, whose hand was so much hurt that her mother at once sent her to the doctor. For some months thereafter she was under medical treatment, and at the date of this action, according to the medical evidence, it was almost certain that her thumb was permanently paralysed. Her general health had also suffered. From the medical evidence it appeared that the injury was due either to the blow itself or to the blow taken together with some latent constitutional cause. The defender had occupied the same position in the school for twenty years; her conduct had never been the subject of complaint.

The Sheriff-Substitute ( Hamilton) pronounced this interlocutor:—“Finds that on the day libelled the pursuer, who was then a pupil in the defender's class, had neglected to learn, or at least failed in, her spelling lesson, and the defender in consequence punished her and about a dozen other girls who were in the same position by giving each of them one stroke with a cane on the palm of the hand: Finds that it is not alleged that the defender had any ill-will against the pursuer, or that on said occasion she struck the pursuer more severely than any of the other girls, none of whom were hurt: And finds that, even supposing that the present state of the pursuer's hand, as described by the witness Dr Murray, is attributable to injury to her thumb caused by said stroke, still such injury can only be regarded as an accident: Finds, in point of law, that, in the circumstances stated the defender is not liable to the pursuer in damages or solatium: Therefore assoilzies the defender from the conclusions of the libel, and decerns: Finds neither party entitled to expenses.

“ Note.—The Sheriff-Substitute cannot say that the punishment here was excessive—that it was such as the defender in her position as schoolmistress was not entitled to inflict. At the same time, the use of a cane in schools for every trifling offence is not to be commended—in the present instance the consequences to this poor girl had been most disastrous—and upon that ground the Sheriff-Substitute cannot give the defender expenses.”

On appeal the Sheriff ( Davidson) pronounced his interlocutor:—“Recals the interlocutor appealed against: Finds that in March 1881 the defender was a teacher in Dr Bell's School, Great Junction Street, Leith, and the pursuer was a pupil in the said school; that on or about the 29th March 1881 the defender unwarrantably and unlawfully struck the pursuer a severe blow with a cane on her right hand, whereby the pursuer's hand was seriously hurt, from which she has suffered ever since, and by which she may be permanently injured: Finds the defender liable in damages; fixes the amount of the same at £20; and decerns against the defender for payment of the said sum: finds the pursuer entitled to expenses, &c.

Note.—That the injury to the pursuer's thumb was caused by the blow given by the defender cannot be doubted. From the moment of its infliction the pain and suffering of the pursuer has never ceased, and it has led on to effects on the child's health, the end of which cannot apparently even yet be seen. The pursuer was well before this happened—the evidence of Dr Murray as to her natural healthiness is not contradicted; and the attempt to shew that the injury was previously caused by a fall over a rope or otherwise has entirely failed.

The defence is that the defender, in her place as teacher, did no more than she was entitled to do. Now, in the first place, it does not clearly appear that there was just reason for any punishment whatever. Several of the pupils stated that no spelling lesson had been given out, and though the teacher maintained the lesson had been prescribed, there was room for a possible mistake, and no person of ordinary discretion would have treated the matter as the defender did. But putting that aside, and assuming that the pursuer had committed a fault, the defender was not justified in inflicting a blow such as this. It is useless to dispute as to its being or not being a violent stroke. The pain, the appearance of the thumb, and what has followed, put that matter beyond question. The use of such an instrument for the punishment of young girls is most reprehensible, and when the result of its use is such as we see in this case, the teacher who inflicts such an injury must bear the consequences. In this school, unfortunately, corporal punishment seems a very common practice, instead of being rare and exceptional as it should be in well-conducted establishments. On this occasion Mr Coutts, the head-master, was standing, according to his own account, within five yards when fourteen or fifteen young girls (this is the number given by the defender) were being punished with a cane, and he did not even turn round to see what was being done, or the cause of it.

It is in most cases difficult to fix the amount of damages. This case is not an exception.

The Sheriff is unable to perceive any alleviating circumstance—not even a symptom of regret or sympathy.”

The defender appealed to the Court of Session, and argued—The blow was not of a nature to cause injury in ordinary circumstances. The defender was not responsible, because she was within her right in administering the punishment she had inflicted. In any view, serious injury to the pursuer was not a probable consequence of anything she had done. There is no proof that the punishment was excessive.

Argued for pursuer—The defender was bound to use discretion in punishing, and was therefore responsible if the punishment was excessive, as was here the case. The punishment was excessive.

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The greatest caution must be observed in using such an instrument.

Authority— Ewart v. Brown, Nov. 10, 1882. supra, p. 105.

At advising—