Scottish Court of Session Decisions

Dr John George Wallace-James, pursuer, brought an action of damages for slander in the Court of Session against Mrs Baird of Colstoun, Haddington, defender.

The case is reported supra, (1914), 52 S.L.R. 14, from which report the averments of the parties appear.

The following issue was adjusted for the trial of the cause—“It being admitted that the letter which is printed in the schedule annexed hereto was written and sent by the defender to the chairman of the Parish Council of Haddington on or about the date it bears, Whether the letter is of and concerning the pursuer, and falsely and calumniously represents that the pursuer, while medical officer of the parish of Haddington, failed, in breach of his duty as such medical officer, to call in the district nurse to Mrs Haldane mentioned in the said letter, to the loss, injury, and damage of the pursuer? Damages laid at £5000 stg.

“ Schedule.

The Chairman, Parish Council of Haddington.

Colstoun, Haddington, N.B., Dec. 8th, 1913.

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, Kilpair 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 bed-sores. 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 bed-sores 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, ten cases on the roll were given us. The following year there were nineteen. 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, “(Sgd.) S. G. Baird.”

The case was tried by Lord Anderson and a jury on the 14th, 15th, 16th, and 19th July 1915,

The evidence was to the following effect:—The defender was first informed of Mrs Haldane's case by a Mr Badger. She then asked the nurse of the District Nursing Association and Mr Badger to make inquiry as to the case. The nurse thereafter sent the following letter to the defender:—

“ Victoria Terrace, 4/12/13.

Dear Mrs Baird,—After inquiring from Mrs M'Lean, Mrs Haldane's daughter, I find out Dr James was asked to call on 7th Nov. As he did not turn up that day nor the next two days, another Dr was called in on the 9th. Dr James called on the 10th, that was the day the two doctors nearly met. I called on the 14th at Dr Caverhill's request, and found her in the condition as I described to you yesterday. As far as I hear going about, the Parish Council won't put up with him now as they did before. I am afraid he has lost a big number of his friends there.—I remain, yours respectfully, Allison B. Oliver.” And Mr Badger gave the defender the following memorandum:—

Private.

Case of Mrs Haldane, Kilpair Street.

This woman's husband was a pauper, and before his death he received medical relief. The woman was also attended by the medical officer during the husband's lifetime and after his death. Previous to Dr James being appointed medical officer Dr Howden, his predecessor, attended at this case. Dr James has from time to time attended the woman as required. Nearly five weeks ago her son informed Dr James on a Friday that his mother was worse and required attention. The medical officer promised to call. The same evening Mrs Maclean, a daughter, called at Dr James's house and informed him that her mother was very bad. He gave her a pill and promised to call. On Sunday, as the medical officer had not called either on Friday or Saturday, Mrs Maclean requested Dr Caverhill to see her mother. He came at

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once and made a careful examination, and on finding bed-sores called in the district nurse. The nurse is still attending the case. In the Parish Council books there does not appear any entry of an application by Mrs Haldane for medical relief, but Mrs Maclean, the daughter, states that both Dr Howden and Dr James attended her mother. Mrs Haldane was the wife of a pauper. She was attended by the late Dr Robert Howden, the parish doctor, as a pauper. She has been attended in the same capacity by Dr James himself. She was given by him to the nurse as a pauper, and she has never paid anything for medical attendance.”

Those documents contained the whole information in the possession of the defender when she wrote the above letter. The defender made no other inquiries, and in particular made no inquiries as to Mrs Haldane's status from the Inspector of Poor. In point of fact Mrs Haldane was an old-age pensioner, she was not on the poor roll as a pauper, and was not in receipt of and had made no application for poor relief. She had not as an old-age pensioner made any application for medical or other relief, and was attended by the pursuer as his private patient. The pursuer was called in by Mrs Haldane on 1st November and visited her on 3rd November, when he treated her. As he was leaving the house he met another doctor who had been called in and visited Mrs Haldane on 2nd November, and in whose hands the case then was. This other doctor was paid by Mrs Haldane. On 2nd November Mrs Haldane was not suffering from bed sores; on 13th November she for the first time complained of what was a threatened bed-sore, and on the 14th the nurse was called in. In 1912 and 1913 the nurse was called in to two cases by the pursuer—one in each year.

The defender was president of the Haddington District Nursing Association, a charitable organisation intended to provide a trained nurse for the poor of Haddington parish. The Parish Council of Haddington subscribed annually to the Association. By resolutions, dated 14th June 1910, 6th July 1910, and 9th September 1913, the Parish Council directed the pursuer to employ the nurse of the Association in all cases in which he considered her services necessary.

The relations of parish councils to old-age pensioners were indicated in a circular letter dated 30th May 1911 addressed by the Local Government Board to inspectors of poor in the following terms:—

Relation of Parish Councils to Old-Age Pensioners.

Supervision of Ex-Pauper Pensioners.—While in most cases the circumstances of these old-age pensioners will be such as to relieve the parish council and the inspector of poor of all solicitude regarding them, there will remain a number of cases where a continuance of supervision will be advisable. Where, for instance, pensioners of infirm health are living alone, apart from friends or neighbours, the parish council and their officers will recognise that, although there is no legal obligation on them to attend to such pensioners, it is necessary to keep them under observation so as to secure that persons so situated shall not suffer from neglect. The inspector of poor is obviously the person best qualified to afford the necessary supervision, and the Board will expect him to use a wise discretion in regard to such cases. Visits should not partake of the nature of inspections, but should rather be friendly and informal calls designed to ascertain whether the pensioners are living in circumstances of comparative comfort or whether they require medical or other parochial relief.

Poor Relief to Pensioners.—It is not to be assumed that because a person is in receipt of a pension he cannot be a proper object of poor relief. The circumstances of each pensioner should be considered, and if it be found that the pension together with any other resources he may have is inadequate for his requirements, relief should be unhesitatingly offered. Whether the acceptance of such offer will entail the forfeiture of the pension will depend on the nature of the relief given, but even if that result be involved, the pensioner should be urged to accept relief when it is clearly necessary.

Medical Relief to Pensioners.—If the relief given is of the nature of ‘medical or surgical assistance (including food or comforts) supplied by or on the recommendation of a medical officer’ (Old-Age Pensions Act 1908, sec. 3 (1) ( a), ( i)), disqualification for a pension will not follow. Accordingly every pensioner who is in need of such assistance and is unable to pay for it is entitled to obtain it from the parish council without forfeiture of the pension. It will be observed that the medical relief which may be given without disqualification covers more than mere medical visitation. In the opinion of the Board it includes, besides medicines, medical and surgical appliances, nutritious diet, &c., such nursing or attendance as may be ordered by the medical officer as part of the medical or surgical treatment of the case. It must, however, be pointed out that while medical relief does not in itself disqualify for receipt of a pension, the value of such relief must be reckoned as part of the income of the recipient. There may accordingly be cases where the amount of the relief is such as to prevent the recipient in respect of means from being eligible for a pension.

Procedure when Medical Relief is Granted.—When a pensioner is afforded medical relief his name should be entered on the roll of poor in the usual way. The relieving parish is entitled to make a claim on the parish of settlement, regard, of course, being had to the reciprocal rule affecting medical attendance.…”

The defender was not aware of the circular letter when she wrote the letter sued upon, but she stated she had been informed by Mr Badger that old-age pensioners were entitled to medical relief if they required it. Mr Badger stated that he informed the defender that a pauper who became an old-age pensioner was not necessarily disqualified from obtaining medical relief. The defender made no inquiries before writing

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the letter founded on as to whether Mrs Haldane had ever applied for or got medical relief.

At the trial considerable evidence was led directed to proving that the pursuer had been guilty of neglect of various other pauper patients, and specific cases were gone into.

At the trial the Lord Ordinary ( Anderson) directed the jury that the letter was not privileged.

Counsel for the defenders thereupon asked the Lord Ordinary to direct the jury in the following terms—“Whether the letter complained of is privileged or not, if it was substantially nothing but a correct statement of facts which had actually occurred, you (the jury) cannot bring in a verdict for the pursuer, because his whole action is based on the averment that the statements in the letter are false, and if they are true the basis of his action has gone”—Which direction his Lordship refused to give; whereupon counsel for the defenders excepted to the said refusal.

Counsel for the defender further asked the Lord Ordinary to direct the jury in the following terms:—In respect that Mrs Haldane as an old-age pensioner was a person to whom the Parish Council had a duty to see that she got medical relief when needed, the letter complained of was privileged”—Which direction his Lordship refused to give; whereupon counsel for the defenders excepted to the said refusal.

The jury found for the pursuer and assessed the damages at £1000.

The defender lodged a bill of exceptions and a minute of res noviter, and moved for a new trial on the grounds that the verdict was contrary to evidence and that the damages were excessive. The hearings on the bill of exceptions, minute of res noviter, and rule were taken together.

Argued for the pursuer—(1) The judge was right in refusing to give the first direction asked. It was res judicata that the letter was capable of the innuendo in the issue. The question for the jury there was whether in fact the letter falsely and calumniously represented that the pursuer had failed, in breach of his duty as medical officer, to call in the nurse to Mrs Haldane. Though the letter was true it might quite well make a false representation. Campbell v. Ferguson, 1882, 9 R. 467, 19 S.L.R. 404, and Archer v. Ritchie & Company, 1891, 18 R 719, 28 S.L.R. 547, were distinguishable, for both were cases of fair criticism of public conduct following upon a true statement of fact. Here the innuendo was not of the nature of fair criticism or legitimate expression of opinion, but was a false representation of fact. Henderson v. Russell, 1895, 23 R. 25, 33 S.L.R. 14, was a case where the facts stated were true and not actionable, but where a trial was allowed upon an innuendo to find if the fact stated made a false representation. Further, if the innuendo was reasonable a counter issue would not be allowed if the defender merely stated that the statements made were true without denying the innuendo— Bertram v. Pace, 1885, 12 R. 798, 22 S.L.R. 525. In any event there was evidence before the jury on which they could find that the statements in the letter were not true. (2) The letter was not privileged. The premises of the direction asked were not consistent with the evidence. ( a) The Parish Council had no duty to see that Mrs Haldane as an old-age pensioner got medical relief when needed. She was a private patient of the pursuer; she was not a pauper, and though she was an old-age pensioner she had made no application for medical or other relief. The relation of the Parish Council to old-age pensioners depended on the Old Age Pensions Act 1908 (8 Edw. VII, cap. 40) and the circular letter of the Local Government Board. An old-age pensioner was like a member of the public a potential object of poor or other relief, and that was her status in the eyes of the Parish Council, and that was not altered by the Old Age Pensions Act 1908 or the circular letter. The former merely enacted, section 310 ( a), that receipt of medical relief did not disqualify for a pension; the latter merely recommended watchfulness in the case of pensioners. Without actual notice of need of poor or medical relief the Parish Council had no duty towards a pensioner. On the evidence Mrs Haldane was able to pay and did pay her medical attendant. ( b) The Parish Council having no duty to Mrs Haldane, the defender was not protected in communicating with them. Privilege depended on the facts of the case, not upon the bona fide belief by the person claiming privilege that the facts were such as to give him that protection. The fact that the defender believed that there was a duty towards Mrs Haldane either as an old-age pensioner or as a pauper, even if her mistake was excusable, was irrelevant. Her mistake, however, was not excusable, for slight inquiry at the person obviously best able to give the information would have demonstrated the mistake—Odgers on Libel and Slander, 5th ed., p. 250; Stuart v. Bell, [1891] 2 QB 341, per Lindley, L. J., at p. 349; Hebditch v. MacIlwaine, [1894] 2 QB 54, per Esher, M.R., at p. 60; Jenoure v. Delmege, [1891] AC 73. In any event if there was privilege the defender had overstepped her privilege in making a charge against the pursuer— Craig v. Jex-Blake, 1871, 9 Macph. 973, 8 S.L.R. 616. (3) The damages were not excessive. Inter alia, the jury were entitled to take into consideration the manner in which the case had been conducted for the defence. A general charge of neglect had been brought against the pursuer without notice on record and without reasonable justification, and it was relevant for the jury to consider this. Praed v. Graham, 1889, 24 QBD 53, per Esher, M.R., at p. 55; Thoms v. Caledonian Railway Company, 1913 S.C. 804, 50 S.L.R. 498; Landell v. Landell, 1841, 3 D. 819; Christian v. Lord Kennedy, 1818, 2 Mur. 51; Duberley v. Gunning, 1792, 4 D. & E. 651, were also cited on the general question of excess of damages.

Argued for the defender—(1) The first direction should have been given to the jury. The letter was substantially a true

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statement of fact, and accordingly the pursuer was in Court upon an innuendo alone. The pursuer must be able to found upon some untrue statement. It was not enough that a false representation could be taken from a true statement— Campbell v. Fergusson ( cit.). (2) The second direction should have been given to the jury. ( a) The letter was privileged, for the Parish Council owed a duty to Mrs Haldane. The Parish Council owed a duty to the poor.” The word poor” was not defined in the Poor Law Acts and was to be read in the ordinary popular sense. In that sense Mrs Haldane was one of the poor, for all she had was her pension. The duty of the Parish Council was not limited to persons on the roll of paupers—Poor Law (Scotland) Amendment Act 1845 (8 and 9 Vict. cap. 83), section 55—nor was an application for relief a condition-precedent to the existence of a duty. There was therefore a duty to Mrs Haldane as a poor person to see if she required relief, and if so to offer it. Apart from that there was a duty to Mrs Haldane as an old-age pensioner. The circular letter of 30th May 1911 clearly laid a duty upon the parish council to make themselves aware of the circumstances of old-age pensioners, and if they required relief to offer it to them without awaiting an application. The Old Age Pensions Act 1908, section 3 (1) ( a), contemplated medical relief given by the parish to the pensioner. If Mrs Haldane's case was a proper one for the consideration of the Parish Council the defender was entitled to make the disclosures she did to them as a matter of public interest— Purcell v Rowler, 1877, 2 C.P.D. 215. ( b) Whether the Parish Council had a duty or interest in Mrs Haldane's case or not, the defender had a duty both as a member of the public and as president of the Nursing Association to make a complaint to what she reasonably believed was the proper authority. It was for the judge, not the jury, to determine if the occasion was privileged, and in doing so he must place himself in the position of the defender and consider whether she acted reasonably in view of the information in her possession— Stuart v. Bell, [1891] 2 QB 341; Odgers on Libel and Slander, 5th ed., p. 250. If she had information before her reasonably calling for inquiry it was her duty without inquiring further to communicate her information to the proper authorities for investigation— Couper v. Lord Balfour of Burleigh, 1913 S.C. 492, 50 S.L.R. 320. This was what she did. Any ratepayer was entitled to ask for investigation as to what was being done with the rates he paid. Privilege was not lost if by bona fide mistake a substantial case for inquiry was communicated to the wrong person— Harrison v. Bush, 1855, 5 E. & B. 344; Jenoure v. Delmege ( cit.). [It was further argued that if the occasion was privileged there was no evidence of malice and the verdict ought to be entered for the defender—Jury Trials Amendment (Scotland) Act 1910 (1 Geo. V, cap. 31).] (3) The damages were excessive— Johnston v. Dilke, 1875, 2 R. 836, 12 S.L.R. 486; Boal v. Scottish Catholic Printing Company, Limited, 1908 S.C. 667, 45 S.L.R. 476. The conduct of the case could not relevantly be considered by the jury in assessing the damages. That lay entirely with counsel, and apart from express instructions to him by his client—and there were no such instructions here—his actings could not fix his client with liability. It was relevant to consider prior instances of neglect. These were part of the history of the case and qualified the defender's attitude and actings.

At advising—