Scottish Court of Session Decisions

Elizabeth Birnie Couper, matron, Clackmannan Combination Infectious Diseases Hospital, Alloa, pursuer, brought an action against the Right Honourable Alexander Hugh Bruce, Baron Balfour of Burleigh, residing at Kennet, Alloa, defender, in which she claimed £2000 damages for slander contained in two letters written by the defender on 1st September 1911 and 11th January 1912 respectively.

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The pursuer averred—“(Cond. 1) The pursuer is matron of the Clackmannan Combination Infectious Diseases Hospital, Alloa, and she has occupied that position for nearly seven years. (Cond. 2) On 15th July 1911 two children, Rose and Carlos Forbes, aged respectively six and three years, were admitted to the hospital, being notified by Dr Robertson, Clackmannan, their family medical attendant, as suffering from scarlet fever, and were placed in the scarlet fever ward. On 31st July a Mrs Comrie was admitted to the hospital suffering from scarlet fever and died next day in the hospital. Carlos Forbes died in the hospital on 21st August 1911. (Cond. 3) On or about 1st September 1911 the defender addressed the following letter to James Whitehead Moir, solicitor, Alloa, clerk to the County Council of Clackmannanshire, namely:—

‘ Kennet, Alloa, Sept. 1, 1911.

‘Dear Mr Moir—I desire to lay before you the following statement of facts, and beg the favour that a stringent inquiry will be made into the whole circumstances, which seem to me to reflect very seriously on the management of the County Fever Hospital. On Saturday, July 15th, two children of my overseer Mr. R. Forbes (Rose and Carlos being the Christian names) were taken to the hospital. They were both suffering from scarlet fever of a very mild type. Both were out of bed and progressing to a favourable recovery when seen by their parents on August 5. On August 11th Rose was sent home said to be cured, but on the following day, or on the 13th, she developed serious fever and had to be again taken to the hospital. This time the fever was most severe. I understand it was of the type known as “septic.” The little boy also developed the severe type of fever about the same or an earlier date. The serious part of the case is this, that on or about July 30th a woman from Sauchie with the most malignant type of fever was put into a bed in close proximity to the children, almost the next bed to one of them. This woman died within a few hours. The dates would seem to show that both children were infected from this poor woman with the malignant fever, and as I have said the little boy died. I am told that a lad Norval from Clackmannan, who entered the hospital about May 22nd suffering from the same mild form of fever as these two children, also got the serious type of fever in the hospital, but recovered. So far the facts are not, I think, susceptible of contradiction.I am told, but this is hearsay, that the matron was responsible for putting the Sauchie woman into the close proximity to the two Forbes children, and that she did it in spite of the remonstances from at least one other member of the staff. If this is the case it points in my opinion to criminal conduct. In any case the whole circumstances should in my opinion be made the subject for a most rigid and circumstantial inquiry. I am confident you will agree with me, and that the County Council will see that such an inquiry is made. I add that I reserve my right to carry the matter further by appeal to the Local Government Board, or otherwise as may seem right.—I am, faithfully yours, Balfour Of Burleigh.

‘J. W. Moir, Esq.’

(Cond. 4) The statements in the said letter, namely:—‘… [ Pursuer here quoted the sixth, seventh, eighth, and tenth paragraphs of the letter from “ The serious part” down to“ recovered,” and from “ I am told” doivn to “ criminal conduct”] …’ are of and concerning the pursuer, and are false, calumnious, and malicious. These statements were intended to represent and convey, and did represent and convey, the meaning that the pursuer was responsible for the death of Carlos Forbes mentioned in the letter by reason of her criminal conduct as matron in putting a patient suffering from the most malignant type of fever, in spite of remonstrances from at least one other member of the hospital staff, into close proximity to the said Carlos Forbes. There was absolutely no foundation for any such imputation upon the pursuer. (Cond. 5) The defender had no right or duty to make the said statements complained of. The said James Whitehead Moir was not an official of the hospital nor concerned in its management. The defender made the statements complained of recklessly, without any cause and without having any grounds therefor, and without making the slightest inquiry into the truth thereof. Had he made the slightest effort to test the truth thereof he would have at once discovered that the charges made by him against the pursuer were false, and that the charge made by him in particular against her in respect of mere hearsay was completely devoid of any foundation. (Cond. 6) The said letter of 1st September 1911 was transmitted by the said James Whitehead Moir to the committee of management of the hospital, and after inquiry the said committee found that the allegations of the defender against the management of the hospital were not supported by any evidence, and, in particular with regard to the said statements complained of by the pursuer as affecting her, the said committee found that they were groundless. The said committee further recorded their opinion that the defender should either substantiate his said complaint in regard to her by evidence or withdraw it. The members of the nursing staff on duty at the time in question repudiated the statement to the effect that any remonstrance had been made by them, and of this repudiation the defender was formally made aware. The clerk to the hospital, by letter dated 5th October 1911, intimated to the said James Whitehead Moir the decision of the said committee of management, and reference is made to this letter for its terms. (Cond. 7) On 12th October 1911 the decision of the said committee of management was communicated to the defender. Copies of signed statements from the medical superintendent, the pursuer, and the nurses of the hospital,

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together with a copy of the said letter of 5th October 1911, were also transmitted to the defender. Although invited by the committee of management to withdraw his said charges against the pursuer he declined to do so. On the contrary, the defender openly expressed his dissatisfaction with the conclusions of the said committee, and in spite of his knowledge that there were no grounds in fact for imputing criminal conduct to the pursuer he declined to withdraw this charge and determined to press for further inquiry. The defender intimated this resolution upon his part by letter dated 17th October 1911 to the said James Whitehead Moir. (Oond. 8) On or about 18th October 1911, notwithstanding that the said committee of management had exonerated the pursuer from the said charge of criminal conduct, and that the defender had been made aware of their decision as aforesaid, the defender addressed a letter to the Local Government Board for Scotland, or to the Secretary thereof, in which he demanded that the Board should cause an inquiry to be made with reference to the whole allegations made by him in the said letter of 1st September 1911. In his said letter of the 18th October 1911 the defender again re-asserted and repeated the said charges he had made in his said letter of 1st September 1911. (Oond. 9) The Local Government Board appointed their Medical Inspector, Dr Frederick Dittmar, to inquire into the allegations made by the defender, and after making his investigations he reported to the said Board that in his opinion it was impossible to say from whom the said Oarlos Forbes obtained his infection after admission to the hospital, but that it was not likely that he was infected by the said woman patient. In connection with the discharge of her duties by the pursuer no blame was in any way attached to the pursuer by Dr Dittmar. (Oond. 10) On or about 27th December 1911 the said Local Government Board communicated to the defender the report of Dr Dittmar. The defender was displeased with the result of this inquiry, and attributed such result to the partisanship of the said Medical Inspector. He refused to accept the inquiry held by Dr Dittmar as final. (Oond. 11) On or about 11th January 1912 the defender addressed a letter to the Secretary of the Local Government Board, containing a passage in the following terms:—‘All along I have been afraid that a much worse state of things existed than has been revealed. I understand now that events have occurred since I left home some days ago which throw a lurid light on the whole matter under discussion. I understand, from a source on which I think I can rely, that two or three of the hospital nurses have resigned their places, and that the matron has also gone, and that they realise the grave responsibility of their position and some of the things that have occurred. A further inquiry would throw a good deal more light upon the actual state of matters, and upon what happened. I understand these nurses went to a medical man in Alloa and informed him that the original charts and registers in the case of the Forbes boy had been wilfully destroyed, either with the knowledge or under the direction of the matron, and that those submitted to Dr Dittmar were fabricated for the purpose.’ In this letter the defender ascribed the conclusions of Dr Dittmar to partisanship, without the slightest ground for any such imputation. (Oond. 12) The statements quoted from the said letter of 11th January 1912 are in part of and concerning the pursuer, and are false, calumnious, and malicious. They were made recklessly and without any cause, and without making any inquiry, and in gross disregard for the interests of the pursuer. The slightest inquiry by the defender into these statements would have disclosed the entire want of any justification for them. (Cond. 13) The said statements complained of in the said letter of 11th January 1912 were intended to represent and convey, and did represent and convey, that the pursuer had wilfully destroyed, or caused to be destroyed, original charts and registers in the case of the said Carlos Forbes, had fabricated or caused to be fabricated other charts and registers in their place, had uttered and submitted these fabricated charts and registers to the said Dr Frederick Dittmar as true and genuine documents, and to defeat the ends of justice, and further, they represented that the pursuer, realising her guilt, had deserted her said post as matron, and that the pursuer was not fit to be matron of the said hospital or of any hospital. (Cond. 14) The purpose of the defender in writing the said letter to the said Local Government Board of 11th January 1912 was to force a fresh inquiry because of his displeasure and disappointment with the result of the said two previous inquiries. Moved by the defender's said groundless allegations, the said Local Government Board appointed James A. Fleming, K.C., Sheriff of Dumfries and Galloway, as their commissioner to hold another inquiry on their behalf. (Cond. 15) The result of the inquiry held on three days in February 1912 by the said Commissioner was that he reported to the said Local Government Board that the charges made against the pursuer of fabricating evidence in view of Dr Dittmar's inquiry and of deliberately concealing relevant facts from him were without foundation, and he found no fault proved against the pursuer. The said commissioner stated regarding her—‘On the other hand, the matron impressed me very favourably. I think she is a woman anxious to do her work, truthful in her whole account of what she has done, even of the faults she had committed, and full of zeal and desire to have the hospital work done as smoothly as possible.’ The said commissioner found that the statements reflecting on the pursuer and the said hospital were made by the defender to the said Local Government Board on the authority of Dr Robertson, that these statements were based on ‘mere spiteful

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tittle-tattle,’ that his informant (Dr Robertson) had carefully noted the charges of grave misconduct against the hospital staff (meaning thereby, inter alios, the pursuer) by a dismissed probationer and her tool, that the said Dr Robertson had ‘deliberately refrained from testing' the accuracy of the said statements by any questions or by any communications with the hospital committee or anyone else. (Cond. 16) On or about 29th June 1912 the said Local Government Board by its Secretary formally informed the clerk to the said committee of management that they concurred in the findings of the said commissioner. A copy of the report of the said commissioner was sent to the defender, and he was apprised by the said Local Government Board of their said concurrence therein.… (Cond. 18) On or about 13th May 1912 the pursuer by her agents requested the defender to withdraw the said charges and insinuations which he had made against her in the said letters complained of, and to make such reparation to her as he might consider right and proper in the circumstances. Again, on 22nd May 1912, failing to obtain a satisfactory reply from the defender, the pursuer's agents urged the defender to accept the findings of Sheriff Fleming and to grant the pursuer the fitting reparation of a full apology. The pursuer would then have been satisfied with such an apology, and offered by her agents in their letter to the defender of 22nd May 1912 that the whole matter in so far as regards herself might be honourably closed by the compliance of the defender with her request for such retractation. So far from acquiescing in this reasonable proposal, the defender has intimated by letter from his agents that he declines to withdraw any of his allegations against the pursuer or to give any apology to the pursuer, and that he considers his actings have been meritorious in that they have given the pursuer, by means of the successive inquiries instigated by him as aforesaid, an opportunity of clearing herself from the stigma thrown upon her conduct as matron.”

The defender pleaded, inter alia—“(1) The pursuer's averments being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed.”

On 27th November 1912 the Lord Ordinary ( Dewar) approved of the following issues for the trial of the cause—“It being admitted that on or about 1st September 1911 the defender wrote and despatched the letter [ quoted in cond. 3 above], Whether the statements in the said letter are in whole or in part of and concerning the pursuer, and are false, malicious, and calumnious, to the loss, injury and damage of the pursuer? It being admitted that on or about 11th January 1912 the defender wrote and despatched a letter which contained the passage [ quoted in cond. 11 above], Whether the statements in the said passage are in whole or in part of and concerning the pursuer, and are false, malicious, and calumnious, to the loss, injury and damage of the pursuer? Damages laid at £2000 sterling.”

Opinion.—“[ After a narrative of pursuer's averments]—In these circumstances the pursuer avers that she has been obliged to bring this action to vindicate her character from the said charges and accusations, and she proposes two issues. The first is founded on the paragraph I have quoted from the letter of 1st September, which it is averred was intended to represent, and did represent, that the pursuer by her criminal conduct was responsible for the death of Carlos Forbes. And the second issue is founded on the letter of 11th January 1912, which she avers represented that she wilfully destroyed original charts and registers, and fabricated others and submitted them to the commissioner to screen her criminal conduct and defeat the ends of justice.

The defender objects to both issues on the grounds (1) that the words complained of are not defamatory, and (2) assuming that they are defamatory, they were used on a privileged occasion, and the pursuer, he maintains, has not set forth on record facts and circumstances from which malice can reasonably be inferred.

Counsel for defender did not offer much argument on the first point, and I do not think that it can be seriously disputed that to accuse the matron of a hospital of criminal conduct in the discharge of her duties, and of having fabricated documents to deceive a commissioner appointed to inquire into her conduct, is calculated to injure her in her character and reputation. If she had been found guilty of these offences she would have been unfit to hold the post of matron in this or any other hospital. I am therefore of opinion that the statements complained of are actionable. But I think that the occasions on which both letters were written were privileged. It is clear from the pursuer's record, and from the correspondence to which both parties referred me, that the defender in writing to the authorities was acting in what he believed to be the discharge of a public duty. The child who had died was the son of his overseer. It is not disputed that information had been placed before the defender that there had been mismanagement in the hospital. But it is said that he had no right or duty to communicate this information. I cannot agree with that. If the defender had reasonable cause to believe that the information he received was true, and that the mismanagement was calculated to spread infection and endanger the public health, I think he was privileged in communicating such information to the proper authority. Although the first letter should perhaps have been addressed to the Clerk of the Combination Hospital and not to the Clerk to the County Council, still the County Council, as the public health authority for the county of Clackmannan, are at least partly responsible for the management of the hospital, and I do not think that there is anything in the point

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that the communication was not addressed to the proper authority. Indeed the pursuer did not appear to press this point. Her case, as I understand it, is, not that the defender fell into a technical error, but that he persistently, recklessly, and maliciously accused her of offences which she had not committed, and persists in accusing her, or at all events refuses to withdraw the accusation, although she has, after three official inquiries, been found to be innocent.

If I am right in thinking that the occasion was privileged, the next question is whether there is a sufficient averment of malice on record. A bare averment that the defender acted maliciously is not enough. If the occasion was privileged, the statements complained of, although untrue in fact, nevertheless must be presumed to have been communicated in good faith, in the exercise of a right, or the performance of a duty, unless there is on record some averment which will displace that presumption. And the pursuer will not be entitled to an issue unless she has set forth on record facts and circumstances from which, if proved, a jury might reasonably infer malice. But I think she has done so, and that she is entitled to have her case submitted to a jury. Although, as I have said, the defender was privileged in placing facts as to mismanagement before the hospital authorities, he appears to have gone beyond what was necessary for that purpose in suggesting that the pursuer was guilty of ‘criminal conduct’ and of ‘fabricating’ documents. In the case of Gall v. Slessor, 1907 S.C., p. 708, it was held that ‘.… to charge the pursuer deliberately, after ample time for consideration, with having obtained money on false pretences, and to threaten him that unless money was refunded and an apology made the matter would be put into the hands of the police, was so extravagant and indicated such recklessness as to infer malice.’ Following that authority, I think it possible that the jury might, if they thought proper, reasonably reach the conclusion that the statements made in the present case were so extravagant and reckless as to be inconsistent with the bona fide discharge of a public duty, and to infer malice. Then the pursuer makes the averment that the statements were made without any grounds therefor, and without the slightest inquiry, and that after the first official inquiry had been held and the defender was invited by the committee to withdraw the charges he not only declined to do so but repeated them ‘in spite of his knowledge that there were no grounds in fact for imputing criminal conduct to the pursuer.’ These averments may not, of course, be true, but at present I must assume that they can be proved, and on that assumption I think they require explanation. If it be true, for example, that the defender knew after the first inquiry that there were no grounds in fact for imputing criminal conduct to the pursuer, it is difficult to see what legitimate purpose could be served in repeating the charge and continuing to press it against her. And it has been decided that to accuse a person of a crime without having made any inquiry is a circumstance from which a jury would be entitled to infer malice. ( Dinnie v. Hengler, 1910 S.O., p. 4.) And the fact that a defendant refused to withdraw a plea of justification yet did not attempt to prove it, has been held evidence of malice in England. ( Simpson v. Robinson, 12 Q.B. 511.) Of course the defender may have quite a good explanation to offer, and the pursuer may be entirely wrong in thinking that he was actuated by any malicious motive. I express no opinion on that. All I decide is that she is in the circumstances entitled to have her case laid before a jury. I accordingly approve both issues, with the addition of the word ‘malicious’ inserted in each.

The defender argued that the words ‘without probable cause’ should also be put in the issues. But these words do not appear to be appropriate to a case of this kind. (See the Lord President's opinion in Webster v. paterson & Sons, 1910 S.C. 459).”

The defender reclaimed, and argued—There were here no facts and circumstances sufficient to infer malice. The Lord Ordinary had proceeded on four grounds—(1) the strength of the language used, (2) want of inquiry, (3) repetition, and (4) refusal of apology. When taken in connection with the admitted facts of the case, however, the strength of the language was not greater than the occasion warranted if the charge were believed to be true— Spill v. Maule, 1869, L.R., 4 Ex. 232. Nor could malice be inferred from want of inquiry if, as in the present case, an official inquiry was the proper method of ascertaining the truth. Dinnie v. Hengler, 1910 S.O. 4, 47 S.L.R. 1, founded on by the Lord Ordinary, was not in point, as it was a case of master and servant. Further, there was here no repetition in the true sense of the term— cp. Douglas v. Main, June 13, 1893, 20 R. 793, 30 S.L.R. 726. The first complaint was made to the Hospital Committee, and the second to the Local Government Board, who had power to order an inquiry and were really a court of appeal, while the third was based on fresh information. Finally it could not be said that defender could only transmit the information at the risk of being found liable in damages if wrong, and, as he was entitled to transmit the information, it was impossible to infer malice from a refusal to apologise. Malice could only be inferred from subsequent actings where the circumstances made it an inevitable inference— Reid v. Coyle, December 24, 1892, 30 S.L.R. 335, per Lord Trayner at p. 338. The present case was different from all other cases in that it was a transmission of hearsay as hearsay to a public authority with a request for an inquiry, and in such cases it did not matter if the transmitter stated what the position would be if the information were true or left it to be inferred. In such a case to displace privilege it was necessary to show that the information came from

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someone whom no reasonable person would take as worthy of credit.

Argued for the pursuer—There was on record a sufficient averment of circumstances to infer malice. Defender had used unnecessarily strong language in communicating his charge to the authorities— Gall v. Slessor, 1907 S.C. 708, 44 S.L.R. 547. In doing so he had showed unreasoning prejudice and reckless disregard of pursuer's position— Royal Aquarium and Summer and Winter Garden Society v. Parkinson, 1892, 1 Q.B. 431; Smith, v. Green, March 10, 1853, 15 D. 549, per Lord Fullerton at p. 552, foot. The defender ought to have made some inquiry into the truth of the charges he was communicating— Dinnie v. Hengler (cit. sup.). Malice was further to be inferred by his reiteration of the charge after it had been disposed of by two inquiries— Ingram v. Russell, June 8, 1893, 20 R. 771, 30 S.L.R. 699; Currie v. Weir, January 27, 1900, 2 F. 522, per Lord Moncreiff at p. 524, 37 S.L.R. 382—as also by the fact that he refused to retract and apologise — Simpson v. Robinson, 1848, 12 A. & E. 511; Folkard on the Law of Slander and Libel (7th ed.), p. 212. The subsequent acts and words of the defender might be given in evidence to show quo animo he uttered the words which were the subject of the action— Pearson v. Lemaitre, 1843. 5 Man. & G. 700, per Tindal, C. J., at p. 719. Defender was responsible for his attitude at or subsequent to the inquiry— Cassidy v. Connochie, 1907 S.C. 1112, per Lord Stormonth Darling at p. 1116 foot, 44 S.L.R. 831; Odgers on Libel and Slander (5th ed.), p. 144. In the present case any privilege he had had been exceeded— Craig v. Jex-Blake, July 7, 1871, 9 Macph. 973, 8 S.L.R. 616. Reference was also made to Cooper on Defamation (1st ed.), pp. 30 and 200, for list of cases there quoted, and to Jenoure v. Delmege, [1891] AC 73.

At advising—