Scottish Court of Session Decisions

John George Wallace-James, M.B., C.M., Tyne House, Haddington, pursuer, brought an action of damages for slander in the Court of Session against Susan Georgiana Fergusson or Baird, wife of and residing with John George Alexander Baird, Esquire, of Colstoun, Haddington, and also against the said John George Alexander Baird as curator and administrator-in-law for his said wife, and for his interest, defenders, in which the damages were laid at £5000 sterling.

The pursuer was a medical practitioner in Haddington and was also medical officer of the parish of Haddington. The slander complained of was contained in a letter written by the defender the said Mrs Susan Georgiana Fergusson or Baird to the chairman of the Parish Council of Haddington, in the following terms—

Colstoun,

Dec. 8th 1913.

Haddington, N.B.

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 bedsores 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.”

The pursuer, inter alia, averred—“(Cond. 3) The statements contained in the said letter are of and concerning the pursuer, and falsely and calumniously represent, and were intended by the defender to represent, that the pursuer had been guilty of gross and wilful neglect of and failure to discharge his duty as a medical man by negligently failing, when sent for, to visit Mrs Haldane, whom he knew to be in most serious illness and great distress, and by omitting to procure for his patient Mrs Haldane ‘the help which was within reach and to which she was entitled,’ and which ‘should have been given’ to her by the pursuer. The said letter further represented, and was intended by the defender to represent, that the pursuer as medical officer of the parish had wilfully disobeyed the express instructions of the Parish Council by failing, during the years 1912 and 1913, to call in the district nurse to parish patients who required her services, and in particular to the said Mrs Haldane, and had negligently failed during the said years to call in the said nurse to parish patients who required her services. The statements in the said letter were so understood by those to whom they were communicated. (Cond 4) The said charges against the pursuer are absolutely without foundation in fact, and were made by the defender recklessly and maliciously and without regard to whether they were true or false. The defender was aware that Mrs Haldane was not a parish patient, but a private patient of the pursuer, and that the Parish Council, with whose chairman she communicated, had nothing whatever to do with their medical officer's treatment of his private patients. Had she made the slightest inquiry she would have found that in November 1913 the said Mrs Haldane, who was not a parish patient, was under the care of another doctor, and had been so for at least ten days before the latter thought it desirable to call in the district nurse. At the time when the defender wrote the said letter she had no information before her to justify her suggesting, as she did, that the pursuer had deliberately abstained from calling in the nurse during the years 1912 and 1913 in cases where her services were required. Before writing the said letter the defender made no inquiry to ascertain whether during those years there had been any cases of parish patients to whom the pursuer had wilfully or negligently refrained from sending the district nurse in such circumstances. Had she made such inquiry, as she ought to have done, she would have found that there were no such cases. Further, the defender was aware that Mrs Haldane was not entitled to the services of the medical officer as such. An official list of the registered poor of the parish is issued and circulated from time to time by the Parish Council, and the pursuer believes and avers that the defender was in possession of a copy of the said list at the time when she wrote the letter complained of. Mrs Haldane's name does not appear on the said list, and she never was at any time a parish patient. There was no justification whatever for the suggestion that by not calling in the district nurse in Mrs Haldane's case the pursuer had failed to comply with the

Page: 16↓

instructions of the Parish Council. The statements in answer are denied, except that it is believed the Association's nurse at one time paid Mrs Haldane some visits. (Cond. 5) The defender had no right or duty whatever to write the said defamatory letter. As already explained, the said Mrs Haldane was a private patient of the pursuer, and the Parish Council had no concern with or interest in the question of her treatment. The said letter was written by the defender with the deliberate intention of injuring the pursuer's reputation in the estimation of the Parish Council and of the people of Haddington. On two former occasions, in 1909 and 1910, the defender had made complaints to the Parish Council against the pursuer with regard to parish patients who had not received the services of the district nurse, and all of the said complaints were found on inquiry to be groundless. The defender was annoyed because her said complaints had been found to be baseless, and because it had become generally known in Haddington and the surrounding district that she was in the wrong in her allegations against the pursuer. In consequence of the result of the inquiry into the defender's said complaints the defender conceived an ill-will towards him, and the letter complained of was written by her with the object of injuring the pursuer's professional reputation and discrediting him in the eyes of the Parish Council. Before writing the said letter the defender gave the pursuer no opportunity of making an explanation with regard to his conduct in Mrs Haldane's case which he could at once have justified.”

On 4th June 1914, the Lord Ordinary ( Anderson) approved of the following issues proposed by the pursuer:—“1. Whether the said letter, in whole or in part, is of and concerning the pursuer, and falsely, [and] calumniously, and maliciously represents that the pursuer had been guilty of neglect of and failure to discharge his duty as a medical man, by negligently failing, when called for, to visit his patient Mrs Haldane referred to in the said letter, and to procure for her the services of the district nurse, to the loss, injury, and damage of the pursuer? 2. Whether the statements in the said letter falsely, [and] calumniously, and maliciously represented that the pursuer While medical officer of the parish of Haddington had disobeyed the express instructions of the Parish Council by failing during the years 1912 and 1913 to call in the district nurse to parish patients who required her services, to the loss, injury, and damage of the pursuer? 3. Whether the said letter falsely, [and] calumniously, and maliciously represented that the pursuer as medical officer of the parish of Haddington had disobeyed the express instructions of the Parish Council by failing to call in the district nurse to the said Mrs Haldane, to the loss, injury, and damage of the pursuer?”

[The issues were varied on 11th June by the insertion of the words in brackets and the deletion of the words in italics.]

Opinion.—“This is an action of damages for defamation said to be contained in a letter, dated 8th December 1913, written by the defender to the chairman of the Parish Council of Haddington. The pursuer is medical officer of that parish, and the defender is president of the Haddington District Nursing Association, a parochial body which works in conjunction with the County Nursing Association, and which provides the yearly salary of a district nurse appointed by the County Association. By the rules of the defender's Association the services of the nurse are reserved for cases of the sick poor and working classes in their own homes, and the nurse may only attend cases to which she is sent by the order of a medical man, except where there is great emergency, when she may attend without instructions until the arrival of a doctor.

The Parish Council gives an annual grant of £2 to the funds of the defender's Association, and in 1909 and 1910 passed resolutions instructing the pursuer, as medical officer, to employ the district nurse in cases, and particularly in poor cases, where nursing was required.

The defender wrote the letter complained of with reference to the case of a Mrs Haldane, alleged by the defender to be an old-age pensioner and a person entitled to have the services of the district nurse. The view of the defender, as expressed in her letter, was that Mrs Haldane was so ill that the district nurse should have been ordered by the pursuer to attend her, and the defender called the attention of the Parish Council, whose medical officer the pursuer is, to the fact that the nurse was not ordered to attend Mrs Haldane.

The pursuer alleges that the defender in making the communication referred to has slandered him.

The points debated at the adjustment of issues were these—(1) Are the terms of the letter defamatory? (2) Was the occasion on which it was written privileged; and (3) if the occasion was privileged, Has the pursuer relevantly averred a case of malice?

I. On the first point I agree with the contention urged by the defender's counsel, that the first thing which the Court ought to do is to endeavour to determine, prima facie at all events, the real object which the defender had in view in writing the letter. It was maintained on behalf of the defender that her only object in writing was to direct the attention of the proper authority to the case of Mrs Haldane, and that it was quite legitimate and proper to do so. If this was all that was in the defender's mind it is difficult to account for her reference to the failure of the pursuer to attend when sent for, and to the records of attendance of the nurse in 1910, 1911, 1912, and 1913. The impression I have formed as to the defender's purpose in writing the letter is that she was more intent on making charges against the pursuer than in laying before the Parish Council the facts as to the case of Mrs Haldane.

I proceed, therefore, to consider whether the language complained of is defamatory. This involves two points, inasmuch as it is not maintained that the language used is

Page: 17↓

slanderous per se—(1) have the terms of the letter been fairly innuendoed? and (2) are these terms, as innuendoed, defamatory?

The pursuer had tabled three issues, the first complaining that he has been defamed as a medical man, and the second and third that he has been defamed as a medical officer.

The foundation of the first issue is the first paragraph of the letter which the pursuer has innuendoed as amounting to a charge that he had been guilty of neglect of and failure to discharge his duty as a medical man by negligently failing when called for to visit his patient Mrs Haldane, and to procure for her the services of the district nurse. My duty at this state of the case is to see that the language used is reasonably capable of bearing the innuendo proposed—that the innuendo expressed the natural and reasonable meaning of the terms complained of ( Henty, 7 A.C. 741; Russell, 1913 S.C. (H.L.) 14, 50 S.L.R. 676). I am of opinion that the innuendo proposed is reasonable, and that the pursuer is entitled to have the verdict of a jury as to whether the language complained of was used in the sense suggested.

It was not disputed that if the innuendo is reasonable the statement is defamatory. It amounts to a charge against a professional man that he was guilty of professional negligence, and this is clearly slanderous.

The second and third issues are based on the last two paragraphs of the letter, which are innuendoed as representing that the pursuer while medical officer of said parish had disobeyed the express instructions of the Parish Council by failing to call in the district nurse (in the second issue) during the years 1912 and 1913 to parish patients who required her services, and (in the third issue) to the said Mrs Haldane.

I am of opinion that the innuendo proposed by the pursuer in each of these issues is reasonable. I am further of opinion that the language as innuendoed is defamatory. This last point was disputed by the defender's counsel, who maintained that it is not slanderous to say that a servant disobeyed the instructions of an employer, Where, however, the servant is a medical man, and where there is involved in the charge of disobedience an accusation of professional negligence or misconduct, I am clearly of opinion that there is defamation.

II. The next point is as to whether the occasion was privileged. The letter bears to be an official communication from the president of the Nursing Association to the chairman of the Parish Council who was interested in the matter communicated. The pursuer avers that the defender had no authority from her Association to write the letter. She, however, is admittedly a member of the said Association and a subscriber to its funds. She thus seems to have occupied a position similar to that in which Lord Balfour of Burleigh was when he wrote the letters complained of in the case of Couper v. Balfour of Burleigh, 1913 S.C. 492, 50 S.L.R. 320, where it was held that the occasion was privileged. I therefore decide that the defender was privileged in writing the letter complained of.

III. The last point is whether malice has been relevantly averred. The latest authority on this point, and therefore the case which I am bound to follow, is the decision of the First Division in Suzor v. M'Lachlan, 1914 S.C. 308, 51 S.L.R. 313. The result of that judgment, as I understand it, is that in cases like the present, of what I may call ordinary privilege, the elaborate specification of facts and circumstances which certain of the earlier authorities seemed to consider essential is no longer necessary in order to make a relevant case of malice. Lord Skerrington's opinion is that a general averment of malice may be sufficient if no special intrinsic facts are to be relied on as proof of malicious motive. If, however, such special facts are to be proved, I understand that Lord Skerrington's view is that, on the principle of giving fair notice, these facts should be averred. Lord Skerrington suggests in the opening sentence of his opinion that the legal views which he was about to state would be found to be at variance with those contained in the opinion of the Lord President. I do not gather, however, from a perusal of the judgments that there is much difference between these two distinguished judges, because I find that on p. 313 the Lord President says this—‘I may add, speaking for myself, that a distinct averment in a case such as we have before us that the defender deliberately refused to make any inquiry into the truth of the accusations which he was levelling at the pursuer, or a distinct averment to the effect that he knew when he made them that the allegations were false, were destitute of all foundation, would be sufficient averment of malice to displace any case of privilege.’

I assume that the Lord President meant that it would be enough to have such averments in addition to a general averment of malice, which I have always understood to be an essential averment in a privileged case.

Testing the relevancy of the pursuer's record by what was laid down in the above-mentioned judgments, I am of opinion that malice has been relevantly averred. In addition to a general averment of malice the pursuer founds upon these special facts as inferring malice—(1) that the defender was aware that Mrs Haldane was not a parish patient, but one of the pursuer's private patients; (2) that in November 1913 Mrs Haldane was for the time under the care of another doctor, and this would have been ascertained by the defender had she made the slightest inquiry; (3) that the charges of professional negligence as to the years 1912 and 1913 were made without any inquiry, and that inquiry would have shown that in those years there were no cases requiring the services of the district nurse; (4) that the defender knew that Mrs Haldane's name was not on the official list of poor persons entitled to the services of the nurse; and (5) that in 1909 and 1910 the defender had made to the Parish Council similar complaints regarding the pursuer which on inquiry were found to be ground-

Page: 18↓

less. In consequence of the non-success of these previous attacks upon him the pursuer avers that the defender conceived an ill-will towards him which she endeavoured to gratify by writing the letter complained of.

I shall accordingly approve of the issues.”

The defenders reclaimed, and argued—The pursuer had not stated a clear case of slander on record. Taken in its fair ordinary meaning the language of the letter did not support the slanderous meaning alleged. The communication here construed was a privileged one, and as such did not stand to be scrutinised as closely as a private letter— Laughton v. Bishop of Sodor and Man, [1872] L.R., 4 P.C. 495 (Sir Robert Collier at 508). Privilege was wide enough to cover even incidental slander unless malice was averred, which was not here the case— Waller v. Loch, [1881] 7 QBD 619. Such a statement was not necessarily slanderous because a possibly injurious inference might be drawn from it— Russell v. Stubbs Limited, 1913 S.C. (H.L.) 14 (Lord Kinnear at 19, Lord Shaw at 23–24), 50 S.L.R. 676. The letter being written in an official capacity to the chairman of the Parish Council was merely a request for investigation. There could be no slander in giving a public body information which it should have—Public Health (Scotland) Act 1897 (60 and 61 Vict. cap. 38), secs. 12, 45. In the absence of averments of falsehood the innuendo sought to be read into the letter was extravagant— Campbell v. Ferguson, January 28, 1882, 9 R. 467, 19 S.L.R. 404. Malice could not be inferred from failure to make inquiry as to the truth of a statement— Couper v. Lord Balfour of Burleigh, 1913 S.C. 492 (Lord Dundas at 500, Lord Salvesen at 504), 50 S.L.R. 320. Averments of malice must be specific— Suzor v. M'Lachlan, 1914 S.C. 306 (Lord President (Strathclyde) at 312), 51 S.L.R. 313; Chalmers v. Barclay, Perkins, & Company, Limited, 1912 S.C. 521 (Lord Justice-Clerk (Kingsburgh) at 529), 49 S.L.R. 465.

Argued for the respondent—The question whether the letter would bear the innuendo suggested or not must be considered from the point of view not of the sender but of the recipient or a third party. In this view it was clearly slanderous. No case of privilege had been disclosed on the defender's record. The defender had no authority. or duty as president of the Nursing Association to write the letter, nor had the chairman of Parish Council any official interest in Mrs Haldane's case. A definition of privilege was to be found in the case of Auld v. Shairp, July 14, 1875, 2 R. 940, 12 S.L.R. 611. In any event the circumstances were such that failure to inquire inferred malice— Stuart v. Moss, December 5, 1885, 13 R. 299, 23 S.L.R. 231. Malice might be inferred from persistence in repeating a charge. In every case of slander the law implied a charge of malice which might be proved, whether averred or not, to rebut a defence of privilege— M'Bride v. Williams & Dalzell, January 28, 1869, 7 Macph. 427, 6 S.L.R. 273; Milne v. Smiths, November 23, 1892, 20 R. 95 (Lord M'Laren at 100), 30 S.L.R. 105.

At advising—