Scottish Court of Session Decisions

William Hood Neilson, Sanitary Inspector, Falkirk, raised this action of damages for slander and libel against Frederick Johnston, a member of the Town Council of Falkirk, and printer and publisher of the Falkirk Herald and Linlithgow Journal newspaper. The pursuer had held his office for ten years under the Public Health Act. It was part of his duty to inspect the carcases of animals killed at the burgh slaughterhouses; and further, he was entitled under the Act, and he was authorised by the town council, in case of doubt or difficulty, to call in any local veterinary surgeon in whom he had confidence to advise with him.

On March 7, 1889, the town council appointed a Mr Lawson veterinary inspector.

The pursuer averred—At a meeting of the town council held on 8th April 1889, the defender complained that the pursuer had employed Mr Macintosh, veterinary surgeon, to inspect a carcase at the slaughterhouse, and that Mr Lawson, veterinary surgeon, had been overlooked. Further, that the defender, at a meeting of the town council held on 8th July 1889, moved that it should be compulsory on pursuer to employ Mr Lawson alone. The defender at said meeting, in the presence and hearing of Bailie Watson, Bailie Rennie, and Councillors Griffiths, Hamilton, and Baird, all members of the town council, or of one or more of them, and of various other persons, said, inter alia, of and concerning the pursuer, “In many ways the sanitary inspector had in this matter shown a good deal of feeling against the veterinary inspector. Mr Neilson ought to understand that Mr Lawson was a burgh official like himself, and in the performance of his public duty Mr Neilson should be actuated by no private feeling whatever. In fact any such feeling on the part of Mr Neilson would almost tend to cast suspicion upon him in his duties at the slaughterhouse. What Mr Neilson had to do was to employ officials they had appointed. They had a slaughterhouse superintendent who had seen a great deal of cattle disease both in living and dead animals. Several members he, Mr Johnston, had spoken to seemed to think it would be a tremendous expense to give the veterinary inspector fees for examining all carcases, but nobody wanted carcases examined that were visibly rotten to the naked eye. He had inquired into the subject, and he found that in thirteen months, from May 1888, there were only three such carcases that the owners consented to have destroyed. There should be a record kept of the diseased meat detected at the slaughterhouse. No doubt there were the books, but they should have the reports tabled before them. Within the last thirteen months there had been passed by veterinary surgeons at the slaughterhouse eight carcases, and there had been destroyed three by mutual consent, four by veterinary surgeons, and two by Mr Neilson. He found there were actually eight carcases reported suspicious by the slaughterhouse superintendent, passed by Mr Neilson, and sent down our maws. That was a disgrace to the town, and should not have been done. The very idea that these carcases were passed by an unprofessional man was sufficient proof of the unsatisfactory state of matters. Mr Neilson could not be expected to have skill. He had plenty to do otherwise. To have suspected carcases passed by Mr Neilson was a state of matters that had lasted long enough, and the sooner it was ended the better.”

The pursuer explained his reasons for believing that the defender entertained an animus against him. He proposed this issue—“(1) Whether… the defender… falsely, calumniously, and maliciously made of and concerning the pursuer the statements quoted … meaning thereby to represent that the pursuer, with a shameful indifference to the health of the community, had been guilty of a breach of duty in not calling in professional assistance, and, in consequence thereof, had culpably passed as sound, carcases which were unfit for human food, to the loss, injury, and damage of the pursuer?”

The pursuer further averred—The defender, in the issues of his paper the Falkirk Herald and Linlithgow Journal, on 5th October 1889 wrote and printed and published false, malicious, and slanderous statements of and concerning the pursuer in the form of a leading article, headed .… “Veterinary Inspection at the Falkirk Slaughter-House, which contained the following statements of and concerning the pursuer:—“It is a notorious fact that ever since Mr Lawson's special appointment of 8th July ‘to examine and report upon all suspected carcases at the slaughterhouse,’ the sanitary inspector has harassed and wrongously interfered with him in the discharge of his responsible duties. Time after time, when the veterinary inspector granted a certificate, the sanitary inspector challenged its accuracy, and even appealed to and brought from Edinburgh professors who in every instance upheld Mr Lawson's opinion. It will also be fresh in the memory of our readers how Mr Lawson lately saved the ratepayers very heavy loss in the shape of compensation, which would have had of necessity to be paid, consequent upon the slaughter of a whole dairy of cows in the burgh, one of which was killed at the slaughterhouse and condemned by Mr Lawson as being unfit for food. The sanitary inspector held, in opposition to Mr Lawson, that the carcase was affected with

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infectious pleuro-pneumonia, and he was supported in his contention by the two other local vets. Two eminent specialists were summoned from Edinburgh, and both decided in favour of Mr Lawson's opinion. Had the sanitary inspector in this instance got his own will carried out (as unfortunately is too often the case), hundreds of pounds would have been lost to the burgh, and very heavy loss would have been entailed on dealers, stock-owners, and dairy proprietors. No gratitude, however, is shown to Mr Lawson for averting such a calamity Baffled in his attempts to discredit this official, the sanitary inspector has latterly succeeded (at least for a time) in ‘dishing’ his ‘friend the enemy’ in the following manner:—On the last occasion Mr Lawson was called to examine a suspected carcase he requested to have a consultation with the medical officer of health, and the just demand was granted by the town clerk. Before the joint examination had taken place, however, the sanitary inspector, declining to consent to any delay, without authority called in the two other local vets., who each granted a certificate condemning the carcase…. We know of a recent instance when the sanitary inspector allowed a suspected carcase to hang two days at the slaughterhouse after notice had been sent to him by the superintendent. The sanitary inspector, forsooth, was browsing at his seaside residence, and left instructions that the carcase was to be locked up until his return—no words of blame in this case for neglecting so long to procure a certificate. There are many other facts which could be brought out to prove the pros of the case in favour of Mr Lawson. Mr Griffiths waxed eloquent on Thursday in support of his friend the sanitary inspector, on the great expense and annoyance caused by the friction existing between the two officials. Who, we should ask, is to blame for all this? Without a shadow of authority or cause the sanitary inspector has occasioned all the expense complained of by his uncalled-for, persistent, and arrogant interference with Mr Lawson in the discharge of his professional duties. The Council must see that not a penny of this expense is paid out of the public purse. Let him pay the debts who contracted them. In conclusion, we would simply add that it is nothing short of a scandal that a professional man, in whom not a fault could be proved so far as his services to the burgh were concerned, should be deposed and so falsely discredited in the eyes of the public, as has been so meanly done, much to the sanitary inspector's joy and satisfaction.” He proposed the following issue—“Whether … the statements … falsely and calurnniously represent that the pursuer, in his capacity of sanitary inspector for the town of Falkirk, had maliciously endeavoured to falsely discredit another official, Mr Lawson, veterinary surgeon, appointed by the Magistrates and Town Council of Falkirk, and, in order to gratify his spite and malice against the said official, had recklessly spent the money of the community to their prejudice, to the loss, injury, and damage of the pursuer?”

The defender pleaded—“(1) The pursuer's averments are not relevant or sufficient in law. (2) The words complained of do not bear the meaning alleged, and without such meaning are not libellous. (3) The words spoken in the town council, being spoken without malice and relevant to the matter under discussion, were within his privilege as a member of council, and for which the defender is not liable. (4) The passages quoted from the defender's newspaper being a fair and bona fide comment on the conduct of the pursuer in his public character, founded on allegations true in substance and fact, and written and published without malice and for the public benefit, the defender ought to be assoilzied.”

The Lord Ordinary ( Wellwood) repelled the first plea-in-law for the defender, and also the second plea-in-law so far as preliminary, and approved of the issues as adjusted.

“ Note.—The defender maintained that the pursuer's condescendence contained no issue-able matter, and as the question of relevancy depended mainly upon whether the words used by the defender and complained of by the pursuer would bear the innuendo put upon them by the pursuer, the latter was allowed, for the sake of convenience, to lodge the issues which he proposed; and the terms of the issues, as well as the relevancy of the condescendence, were discussed at the hearing. The only matter which I have at present to determine is whether the words complained of will, without doing violence to the language used, bear the defamatory construction put upon them by the pursuer. The slander first complained of is contained in a speech delivered by the defender on 8th July 1889 at a meeting of the Town Council of Falkirk. That occasion was clearly privileged, and therefore the pursuer is bound and undertakes to prove that the words were used maliciously. The defender maintains that the words mean, and can only be read as meaning, that he the defender objected to the system whereby a sanitary inspector, who had no professional training as a veterinary surgeon, was allowed to inspect and pass suspected carcases without taking professional advice, and that this was a legitimate matter for discussion on the occasion. I am far from saying that the words will not bear that meaning, but I think that they may also bear the meaning put upon them by the pursuer, viz., that in passing suspected carcases, without taking professional advice, the pursuer acted with a reckless disregard of the public health, and was actuated by personal dislike of Mr Lawson, who was the veterinary inspector appointed under the Contagious Diseases (Animals) Acts. It will be for the jury to say whether, in the light of the evidence laid before them, and the whole surrounding circumstances, the words, in their opinion, bear the one meaning or the other.

The second libel complained of is not privileged. It is an article published on 5th October 1889, in the Falkirk Herald and Linlithgow Journal, of which the defender

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was printer and publisher. I think that that article is capable of the meaning assigned to it by the pursuer, viz., that it represents the pursuer as having maliciously and falsely attempted to discredit the veterinary inspector Mr Lawson, and as having in his efforts to do so recklessly spent the ratepayers' money, to their prejudice. I accordingly think that he is entitled to go to a jury. If the defender succeeds in satisfying the jury that the passage complained of does not represent what the pursuer asserts, or if he can show that the matter under discussion was one of public interest, and that the words used did not exceed the limits of fair criticism, he will be entitled to a verdict.”

The defender reclaimed, and argued—The words of his speech would not bear the innuendo. He had attacked a system and not an individual. There was no attack made on the pursuer, and it was not actionable for a member of the corporation to allege to the other employers of the pursuer that he was guilty of a culpable neglect of duty. The defender was privileged. To make the words actionable it would have been necessary to have said that the pursuer wilfully passed the suspected carcases. The statements in the newspaper were in a somewhat different position, but here also what was attacked was a system; there was no evidence of private malice. It was a criticism of a man in his public capacity— Auld v. Shairp, December 16, 1874, 2 R. 191; Brydone v. Brechin, May 17, 1881, 8 R. 697; Campbell v. Ferguson, January 28, 1882, 9 R. 467; Fraser v. Morris, February 21, 1888, 15 R. 454; Macrae v. Sutherland, February 9, 1889, 16 R. 476; Milligan v. Cole, L.R., 10 Q.B. Div. 549; Capital and Counties Bank v. Henty, 1882, L.R., 7 App. Cases, 741.

Argued for respondent—The averments of the pursuer showed that the defender was actuated by malice both in his speech and in the article complained of. He was using his public office as a means of attacking the pursuer, and the interpretation which he now sought to put upon the language he had used was not what would have suggested itself to anyone either hearing the speech or reading the articles. The innuendo proposed was not forced, and was fully justified by the words—Stair, i. 9, 4, and cases above cited.

At advising—