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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baigent & Ors v British Broadcasting Corporation & Ors [1999] ScotCS 57 (19 February 1999)
URL: http://www.bailii.org/scot/cases/ScotCS/1999/57.html
Cite as: [1999] ScotCS 57
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24/6/97 |
OPINION OF T G COUTTS. Q.C. (Sitting as Temporary Judge)
in the cause
(1) MRS MARGARET ELIZABETH BAIGENT AND OTHERS
Pursuers;
against
THE BRITISH BROADCASTING CORPORATION
Defenders:
(2) MRS MARGARET ELIZABETH BAIGENT AND ANOTHER
Pursuers;
against
SANDRA McCULLOCH
Defender;
(3) MRS MARGARET ELIZABETH BAIGENT AND ANOTHER
Pursuers;
against
CATHERINE O'HARE
Defender;
________________
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Pursuers: Haddow, Q.C., Nicol, Dickson McNiven & Dunn, W.S. (for Maxwell MacLaurin, Solicitors, Glasgow)
Defenders: Taylor, McGrigor Donald
19 February 1999
Mr and Mrs Baigent and their family, the pursuers, own and operate a nursing home in Lanarkshire known as Orchard House. They raised three actions seeking damages for defamation arising out of a broadcast on 9 March 1995 entitled "The Twilight Zone", one of a series of programmes under the general heading "Frontline Scotland". The broadcast had been advertised or "trailed" over several days before that. The broadcasters, (B.B.C.) are sued in one action and the two principal participants in the broadcast, Sandra McCulloch and Catherine O'Hare are also sued in two separate actions. It was admitted that all of the pursuers were linked to that programme and its allegations. It was agreed that the evidence in any one action was evidence in the others and that the various matters which required to be raised at the proof should be dealt with using the action against the B.B.C. as the principal action. In that action and the action against Mrs O'Hare only damages were sought. The action against Mrs McCulloch sought both damages and interdict against her stating or implying the various matters which were subject of specific complaint in the action against her. The pursuers in the actions against the two individuals were Mr and Mrs Baigent alone.
The Pursuers' Property - Orchard House
Mr Baigent retired from the police force in England and he and his wife, having been involved in much community work, decided to acquire and operate, as a family, the property known as Orchard House, a large then vacant House on the Banks of the River Clyde at Crossford near Carluke. Prior to such an establishment being opened, various registration procedures require to be gone through with the local health board. The Board looked over all the proposals and policies and looked at what was intended to be done within the home. Thereafter there are annual and half yearly inspection visits as a matter of routine and any other visits which might be required to be made by way of an inspection process can be carried out by the Board's representatives at any time.
The home opened originally in October 1988. It then had a maximum of 29 residents but, such was the success of the enterprise and the demand for places that, with the permission of the health board, extensions were created to increase the maximum number of residents to 63. The extension was operational in November 1991. Broadly speaking, the home was divided into the main house and the extension. In the main house there were bedrooms and what was known as a blue sittingroom. The sittingroom in the extension was known as the green sittingroom. The majority of residents who had special needs or demanded special care, were located in the area served by the green sittingroom. Those residents have a greater level of dependency. There was, however, no division strictly applied and, for example, residents who had a measure of dementia could, and did, utilise the blue sittingroom and vice versa. As a general rule however, those who occupied the blue sitting room in the original house were less dependent, more active and generally self-caring. Although in the pleadings, as will be seen, the word 'patient' used to describe residents parties accepted my view that residents was the appropriate word. 'Patients' is appropriate for those confined to a hospital and being treated, as opposed to living in a home.
The inspection carried out by the Board involved conversing with residents in both main house and extension as well as with nursing staff and an inspection of the whole premises and what was provided there for the care and comfort of residents. Staff were employed in accordance with the Health Board's guidance and recommendations. A general medical practice was on call and involved with the residents in the home, unless they wished to retain their own local practitioner.
Mr Baigent primarily concerned himself with administration. Mrs Baigent was involved in the day to day running of the home but nursing decisions were taken by the Matron, Mrs Walker and responsible qualified members of the nursing staff. Philip Baigent, a qualified electrician, was involved in the maintenance of the premises purchasing and transportation of residents. Sarah Baigent organised and arrange activities for the residents, looked after the petty cash accounts, answered telephones and went on outings with residents. Simon Baigent worked on the administration with his father. He was involved in the invoicing and the payroll BACS systems, liaised with the social services finance departments and local authorities and was also involved with the residents in looking after their well being.
The evidence about the precise layout of the house was unclear but, in the extension there were two floors of rooms and the green sittingroom. In the main house there were bedrooms the blue sittingroom and also a nurses' sittingroom in which the covert filming of Mr McAdam, referred to later, took place.
The Programme and its making
The programme as broadcast, contained various interviews and allegations together with observations by Shelley Jofre billed as "reporter". There was produced to the Court a video tape recording of the broadcast and, in the course of the proof after it became clear to the defenders that the pursuers were mounting a serious challenge to the bona fides of the B.B.C., two other films described as "Rushes" were produced; these were some part of the material in the B.B.C. archives in relation to the matter. It should be noted that the original video tapes photographed by the B.B.C. in the first instance, and by Mrs McCulloch in the second were not available. Those specific tapes, BETA tapes, had been wiped (notes 112D-E).
There were misleading inaccuracies in the broadcast. Firstly, contrary to what was implied in the broadcast, certain of the sequences photographed within Orchard House were not photographed by the B.B.C. but were obtained by a hidden camera carried by Mrs McCulloch.
Secondly, in the broadcast it was said by Miss Jofre "Orchard House says residents restrained in chairs are moved every 20 minutes and the chairs are never used at night. We filmed this at 3.30am". The B.B.C. did not film that sequence and it was not filmed at 3.30am. The programme commenced with the words "Old and infirm, this man spends 24 hours a day confined to a chair in a nursing home". It was admitted, in the defenders' final submission, that that assertion, along with the statement made to similar effect by Mrs McCulloch, could not be supported. It was inaccurate. It was also untrue.
Thirdly, on the programme as broadcast, there was admitted to be at the end a voice-over which was not apparent on the documents or the tapes produced to the Court which stated, (16E - 17B) "all the nurses featured in tonight's programme have since left Orchard House. Four of them are now working for the National Health Service". In fact, the only employee of the defenders featured in the programme who was working at Orchard House at the time of the production, but not at the showing of the broadcast, was Mrs McCulloch. Before filming, she had already set about obtaining alternative employment. The two qualified, part-time, nurses featured in the programme were Mrs Bryson who left in October 1994 and Mrs McSkimming who left in November 1993. Mrs O'Hare's employment ended in August 1994, and she had been absent ill for most of 1994; Ms Kennedy ceased work in 1994.
These misleading inaccuracies are entirely the fault of the B.B.C. and its inadequate checking of the alleged facts in its programme. Most other matters substantially depended upon the broadcast quotations from other persons but it has to be said at this stage that the entire programme was unbalanced, aggressive in tone and contentious. It was little wonder that it caused sufficient upset to result in the raising of the present actions.
In relation to the making of the programme and its checking, various matters emerged in the course of the proof which reflected badly upon the editor, producer and reporter. Some obvious inaccuracies have already been mentioned. In relation to the programme itself, it contained much material which did not, in fact, relate specifically to Orchard House. For example, when one of the nurses was talking, as it turned out erroneously, about residents being bathed at 5.30am, a photograph was inserted into the programme of a bath, obviously not of a type to be expected in a nursing home, and a clock showing 5.30am. This was explained as being "visual wallpaper" by the only representative of the B.B.C. who gave evidence, the editor Mr MacDonald. When cross-examined on the matter he said that the clock showed 5.30am to illustrate what was being said by the nurse. He said "there was no attempt by us to suggest that it had been shot in the Home at 5.30am." When asked if this was unusual methodology, his reply was "No they are an everyday occurrence in factual television". It is difficult to understand what is factual about showing something filmed elsewhere in a context which, to the ordinary viewer, plainly suggests that it was shot in the Home even if to the initiated the bath shown would not have been a nursing home bath, it being in a corner of a room instead of being in the centre of the floor and in any event overfilled. It is the impression of the ordinary viewer with which the Court is concerned.
The only B.B.C. witness, Mr MacDonald, was there because he had overall editorial responsibility for the Frontline Scotland series. Those concerned with the "research" and the collecting and filming of witnesses and the like did not give evidence. The "reporter" did not enlighten the Court as to her role and it was not clear what responsibility she had for the contentious words she spoke. Did she act as a journalist reporter or was she merely uttering the words of others? Two persons featured in the credits as "production team", Polly Phillips and Louise Tait and Val Atkinson was billed as an executive producer. It was plain from the evidence given by some of the witnesses that these ladies had been active in the matter of compiling the programme, questioning and talking to persons who might appear in it. At page 140 of the notes, Mr MacDonald said that the person responsible for what went into the broadcast was Louise Tait. She sat in Court virtually throughout (see e.g. 556) but the decision was taken not to call her as a witness. Mr MacDonald's evidence was vague as to detail. When pressed, for example, about the statement that the filming of the man in the chair was done at 3.30am, he said that he had been so told by the filmer, Mrs McCulloch. He also said that there were clocks on the wall which showed the time of filming. In the material produced to the Court, there were no clocks on any wall apart from the one showing 5.30 above a bath and Mrs McCulloch specifically denied that she had filmed the sequence at 3.30 or that she had ever said she had. (323D). I accepted that part of Mrs McCulloch's evidence in the light of the material produced and the very short length of the sequence on the matter recorded from her actual film.
The genesis of the whole exercise, according to Mr MacDonald, was that there had been some general discussion about the standard of care in nursing homes and that he had in mind that this was a possible programme. Such a programme if balanced and promoting discussion about what care the elderly could and should receive in relevant circumstances, would be a matter of importance and public interest. The care of the elderly is a legitimate public concern. Statements had been obtained in connection with several nursing homes but he accepted responsibility for an editorial decision to concentrate upon Orchard House alone because, as he put it, (41B-E) "the allegations were stronger". That evidence explained the general approach and the tone adopted. It appeared that in a manner which was never fully clear, meetings of nurses, at least those called auxiliary nurses, took place, attended by a representative of the B.B.C. either Miss Phillips or Miss Tait. Thereafter the persons involved in the broadcast and indeed others also were interviewed by the B.B.C. at headquarters in Glasgow or at their homes. These interviews lasted longer and contained more material than was broadcast. It was after these interviews that Mrs McCulloch was asked to take a film while she was employed. She agreed to do so. She was supplied with a bag with a hole in it. The bag contained a concealed video camera and film and she was asked to use it to take photographs. Although it was never admitted that she had obtained any specific instruction about what should be photographed, the fact that the photographing took place after the interviews would, I infer, have made it clear to her what it was that the B.B.C. required. I revert to this matter later in connection with the allegations regarding Mr McAdam the resident in a restricter chair. The fact that Mrs McCulloch was asked to repeat the photographs on the following evening, again for reasons which were never clearly or satisfactorily explained in evidence, added to the fact that it was on that second evening that the photograph was taken which demonstrated Mr McAdam tipped forward in a chair, about which Mrs McCulloch had spoken much earlier to the B.B.C., raise serious doubts about the spontaneity of the filming and its bona fides. Another feature which gives rise to some disquiet is that it was apparent in Court that the film taken by Mrs McCulloch had contained some sound recording but no sound recorded at the time of the photography was either broadcast or preserved. Accordingly, there was no evidence about what, if anything, was said during the course of the filming either between the members of staff or between staff and the residents. About six minutes of the broadcast material was filmed by Mrs McCulloch.
The conduct of the proof
The defenders led at the proof. They pled veritas and so required to establish the truth of the matters about which the pursuers complained in their pleadings. In addition they deliberately put in issue a number of other matters. They made specific averments first, that "all statements made to the defenders and broadcast by them on 9 March 1995 were true or substantially true" and second, "explained and averred that the footage taken within the Home provided an accurate impression of the conditions of patients within said Home". They also averred "in any event the pursuers did operate an uncaring regime and thus went a considerable distance towards accepting that as setting out the "sting" of the broadcast. They averred further matters which did not feature in the programme and indeed which occurred subsequent to the broadcast of the programme. Accordingly, not content with attempting to establish that the parts of the broadcast complained of were true or substantially true they broadened their attack on the pursuers in more general terms and further made subsequent and different allegations.
Of the persons featured in the broadcast, significantly notable absentees included Miss Marshall who was cited by the defenders and averred by them to have been in the course of investigating and compiling a report and Dr Riddell, who so far exceeded professional propriety as to make comments upon allegations as if they were fact; neither appeared as witnesses. It is significant that Orchard House has not lost its registration. The nurses' union representative Betty Rush, though cited by the defenders, did not give evidence about the matter she spoke to on the programme. Only one of those responsible for the programme gave evidence.
The defenders' list of witnesses contained 21 names of whom they led 18 over the space of 8 days. Apart from the five pursuers, the pursuers led 12 witnesses out of their list of 35.
Credibility and Reliability of the principal participants in the Programme
The major participant in the programme and at the proof was Mrs McCulloch. She worked from December 1991 to January 1995, on nightshift. She seemed incapable of seeing that she might have done anything which was upsetting to residents and in particular, to Mr McAdam and his family. At page 343C, she said, "I feel proud that I've done this". I did not find her a credible or reliable witness. She exaggerated, spoke to matters outwith her knowledge as if they were fact, seemed incapable of stating whether what she was saying was something which she had herself dealt with directly or had merely been reported to her. Her assertions and use of language, both in the programme and in her evidence, were extreme. For example, when in the programme she said, "when we were pulling people out of their bed at 6.00am to shove them into a bath" the use of such words were deliberately emotive and meant to suggest the outrage of a caring nurse. I do not believe that people were "pulled" out of bed nor were they "shoved" into a bath. Another example; when complaining about shortage of staff, she said in the programme "I was actually looking after sixteen residents myself". That turned out in her evidence to be a reference to one occasion and one occasion only when a nurse who had been on duty with her was taken ill and required to go home in the middle of the night.
The other major participant, Mrs O'Hare was equally unimpressive. Her evidence was wild, exaggerated and couched in emotive words, e.g. 448A-E, 450A-C, 481C, 482A-B. It was plain that she had been a major participant in the process of assembling possible witnesses for the B.B.C. She worked from 1991 or 1992, it was not clear which, to 1994, again mostly on nightshift. In the course of her evidence, she was asked whether she had been discussing the case with others. She prevaricated. For example, she confirmed to the Court (500B) that the last occasion she met Rene Ratter was "a few days ago". However she later said it was the previous evening (500E). In examination in chief she had indicated that she was not friendly with Mrs Ratter and had one meeting with her (439D), but in re-examination said she had become friends with her over the last two years (586B). With regard to the said meeting on the night before resuming her evidence referred to at (500E) she said that it was in relation to matters relevant to her evidence, and asserted that she was obtaining material for her lawyers. She also said that there was a tape which contained a conversation between herself, Mrs Baigent and Mrs Baigent's daughter which she had recorded (604A-B). She had earlier mentioned this matter in her evidence. She had a tape in her bag in Court. Mr Taylor her representative sought leave to produce the tape but, having heard it, did not do so since he found that it was wholly irrelevant (652). With some justification in his summing up Mr Haddow referred to that episode as a "stunt". The matter does not end there however. Mrs O'Hare gave detailed evidence about the attitude of Helen Logan about whose continued employment the tape was said to be of significance. According to Mrs O'Hare, Mrs Logan was determined before the broadcast to inflict such damage as she could upon the Baigents and to have the place closed down. Helen Logan, who gave evidence much later, and whom I accept as a credible and reliable witness, said that she had been asked to a meeting with some of those concerned with the eventual broadcast to hear a tape. She met with the others and learned that there was unrest at Orchard House. Helen Logan however, wished nothing to do with it. She had been told that Mrs Baigent had said that she, Helen Logan had been sacked and that Mrs O'Hare had recorded it on tape. When she was told that, she was incensed and no doubt, as she admitted expressed herself somewhat intemperately She listened to the tape however, and having heard it, wished nothing to do with the activities of the others (1795A and 1808A). She was not asked to speak to any reporter or give a story and her reaction to the programme was total disgust (1794). Plainly her name had not been given to the B.B.C. by Mrs O'Hare as a potential participant.
I cannot place any credence upon any evidence Mrs O'Hare gave unless it was otherwise independently supported by a credible witness.
The third ex-employee, this time a qualified nurse, who gave considerable evidence was Adele Bryson. She worked part-time, two nights per week and on other nights at Law Hospital. She was employed from 1992-1994. She was introduced in the programme as having taken the Baigents to an industrial tribunal, "claiming constructive dismissal after a row about the man in the restricter chair. She lost and is appealing". While it was true that the industrial tribunal did hear a case claiming constructive dismissal and that it was lost, it was not about the man in the restricter chair (Mr McAdam) but about a matter of disciplining subordinate staff, a row between her and her immediate superior, Mrs Walker. The occasion of the row was an inadequate cleaning up of a mess Mr McAdam had made in his bedroom. It was not accurate to say, as Miss Jofre did, that Mrs Bryson was appealing. I was informed that there was no appeal. Perhaps an appeal was considered or being considered but it was not presented. If so, that would have been the accurate way to report that matter.
An example of her exaggeration was in relation to the provision of soap (758E). She said in relation to adequacy of supplies "well if you can call 2 bars of soap and a tin of talc for 63 adequate". When that observation was queried by the Court this was rapidly modified to "it was never enough to cover the shortages" (758F-759D). Mrs Bryson said that Mrs McCulloch regularly was in charge of 16 residents on her own (744-746). This was contrary to what Mrs McCulloch said in her evidence, which Mrs Bryson had not heard, but would have coincided with what Mrs Bryson knew Mrs McCulloch had said in the broadcast. I did not feel I could rely on her evidence except where it was supported elsewhere. She plainly harboured a grudge against the pursuers. Despite that, however, she did say that Mrs Baigent was meticulous about the laundry (754F). Her industrial tribunal case was the catalyst for the making of the programme. Plainly, some allegations had been made by her in that case which were further explored elsewhere. What these allegations were was not spoken to in Court.
I had reservations about the reliability of all the other ex-employees led by the defenders and, in particular, about the evidence of those who had been collected using the agency of Mrs O'Hare or information supplied by her. These witnesses included nurse McSkimming, Wendy Kennedy and Mrs Weir, who took part in the programme, and several others who were led as witnesses in Court. Nurse McSkimming contradicted herself in chief and in cross-examination in connection with the statements made on the programme about the provision of an oxygen cylinder and its availability. She said she volunteered that information to the B.B.C. In chief she said the female resident had not been prescribed oxygen and that the doctor was present when it was required. In response to the Court she said that there was no requirement before the doctor arrived (871 and B-C). In cross she said she could not remember what she told the B.B.C. (which was reported by Miss Jofre as being "an extremely breathless man needed oxygen before the doctor arrived" (879E)). To the Court she said that she could not remember if the doctor was there (880B). I could place no reliance on her evidence. In particular, I was unimpressed by Mrs Jackie Ratter, who was employed only between January and June 1992, whom I had to caution about being argumentative - even in chief. In at least one part of her evidence I find that she was not truthful. She said that there were 8 or 9 Parker Knoll restricter chairs into which she was instructed by Mrs Baigent to put patients. All were in use. Mrs Baigent's evidence, which I accept, was that two Parker Knoll chairs were purchased in mid 1992 and three later. There were not 8 or 9 in use when Mrs Ratter was there and, since she was latterly on nightshift, the situations she spoke to must have been early in 1992. It follows that the evidence she gave about the effect on residents of these chairs, that they received no exercise (683B), that they were distressed, was also outwith her knowledge and untrue. She said, significantly, "they ended up starting to look like a chair" 9641D) - on the programme Nurse Bryson said of Mr McAdam (who was not a resident when Mrs Ratter was employed) "He was becoming shaped like the chair". I found that coincidence in the whole circumstances suggestive of Mrs Ratter having tailored her evidence to support what was said on the programme. Mrs Anderson, who was also involved at a very early stage in the whole matter was equally unconvincing in her evidence.
On the other hand, I regarded as reliable the pursuers, Mrs Dunlop, and Mrs Walker of the managerial staff. Of the caring staff led by the pursuers I was particularly impressed by Mrs Hannah Glen, and Mrs Jean Paterson, credible, sympathetic witnesses; Mrs McVerry, an enrolled nurse was reliable. Miss McAdam, a relative, was also impressive. These witnesses were persons who had, in general, a far greater knowledge and experience of the work of the Home throughout the day as opposed to the nightshift employees. Those who were engaged in the broadcast were predominantly part-time nightshift workers.
I found Mrs Baigent to be a strong minded lady who, I am reasonably certain, would not have been an easy going employer. She will have insisted, no doubt forcefully, on the standards she expected to be maintained. She was a hard worker, meticulous about the laundry and the general cleanliness and good appearance of her nursing home. I had no hesitation in preferring her evidence where there was a conflict. I recognise however, that she might well have incurred enmity amongst those of her employees whom she did not feel were pulling their weight.
Mrs Walker was criticised and had, indeed, lost her employment subsequent to the programme. Accordingly, where she gave evidence which supported the position adopted by the pursuers, it was particularly important and impressive. Sister Dunlop also impressed as reliable. The suggestion that any of the pursuers' witnesses would participate in mistreatment of residents, such as Mr McAdam, required very strong evidence indeed to support it. In my view, there was no such evidence, let alone strong evidence.
Pursuers' pleadings
The particular words about which the pursuers complained in all the actions, are set forth in the action against the B.B.C. Condescendence 4 contains four statements by Mrs McCulloch and Condescendence 5 four statements by Mrs O'Hare. The implications and innuendoes sought to be drawn from these statements are also set out in the pleadings. They are as follows:-
'Said programme stated with reference to patients at said Home (in the voice of McCulloch):-
"You were supposed to treat them the way you wanted your own parents treated, right? So when you were pulling people out of their bed at six o'clock in the morning to shove them into a bath and some of them were crying, I didn't think that was fair because I wouldn't like being pulled out of bed in the morning and shoved into a bath. You're washing them and you're trying to have a quick conversation with them and you're kind of rushing them and it shouldn't be that way, as I say they're old, they've worked all their life, they're entitled to some time at the end of their life to talk to people and enjoy what little life they've left".
Said statement implied that the pursuers were operating a callous and uncaring regime in said Home. Said statement was untrue. It was further stated:-
"You were using like one face cloth. You were washing the top of them and then you had to wash their bottoms with the same face cloth you were washing their face with".
Said statement implied that the pursuers obliged nursing staff to carry out their duties in an unhygienic and degrading manner. Said Statement is untrue. It was further stated:-
"Most days he's in that chair twenty four hours a day. When he came in there at first he could walk. He was up and down and up and down and there wasn't enough nurses to look after him so they put him into a restricter chair".
Said statement falsely implied that the pursuers had insufficient staff to care for patients (sic)and resorted to confining the patient to a chair for substantial periods. This was not true. The patient did not spend 24 hours most days in a chair. He regularly slept in a bed and sometimes on a couch. During the day he was taken for walks regularly.
It was further stated by McCulloch with reference to her own duties at the Home:-
"I was actually looking after sixteen residents myself and as I said they are up and down all night and you just can't be everywhere at the one time. If you're in one room, somebody could come out of a room, fall downstairs or anything and you are not there to look after them, and you - they can't hold you responsible if you're looking after one person and someone else falls. It's just impossible".
Said statement falsely implies that the pursuers operated with insufficient staff to supervise patients and thereby put their health at risk. Only once did McCulloch have sole responsibility for sixteen patients.'
'Said programme also stated (in the voice of O'Hare) in relation to said Home:-
"It's lovely, the furnishings are lovely, everything is beautiful, but it is, it's like looking in a window and seeing the cake and its really tempting, it's beautiful, but that's the icing on the cake. You have to be a resident in a Nursing Home to know. Underneath the icing its rotten. What you get on the top is not what's underneath".
Said statements falsely implied that the pursuers hypocritically concealed the nature of the services and the standards provided at the Home. It was further stated in relation to patients at said Home:-
"They are segregating residents. If their mind goes they are put in a totally different sittingroom. They are the ones that get bathed at half past five in the morning. So you start to question "why do they only bath people that can't complain at half past five in the morning?"
Said statement implied that the pursuers operated a harsh and uncaring regime for patients suffering from dementia at said Home. The factual basis and said implications were false. It was further stated in relation to a patient at said Home:-
"You wouldn't be allowed to put a dog in a cage that size so how are they allowed to put someone in a chair that size?"
Said statement implied that the pursuers mistreated said patient. Said patient is provided with a Parker Knoll chair. He is not kept in said chair. Said statement and implications are false. It was further stated in relation to said Home:-
"There's no stimulation whatsoever, nothing for them to do. I mean if they've got their senses they can play dominoes or something but if they've no senses it's sit there, toilet, feed, toilet, feed, bed. There's nothing between for them".
The provisions for stimulation for patients in Nursing Homes is important. Said statement implied that the pursuers operated said Home with a disregard for such provision. Said statement is false.'
The pursuers further aver that 'film sequences in the programme were done in such a manner as deliberately to mislead. Situations involving Mr McAdam were, they aver, 'staged to give a deliberately misleading impression of the condition of patients within said Home'. Further, 'footage was made by the defenders and broadcast showing a bath and a clock set at 5.30. This was a staged sequence designed to mislead the viewer to think that a system of early morning bathing of dementia patients was operated at the Home. Said footage was of a location entirely unconnected with said Home'. The defenders admitted that the bath sequence was of a location entirely unconnected with the Home explaining that the footage was intended to provide the viewer with a visual aid to connect with the narrator's commentary.
The matters established at Proof
I now consider whether the defenders have established that these quoted statements were true or substantially true, whether the evidence supports the defenders' assertion that the pursuers operated an uncaring regime and whether the footage taken within the Home provided an accurate impression of the conditions for patients within said Home. The pursuers maintained their position on record that the programme implied the following matters (1) that they operated a callous and uncaring regime, (2) that they obliged nursing staff to carry out their duties in an unhygienic and degrading manner, (3) that they had insufficient staff and accordingly resorted to confining a resident to a chair, (4) that they operated with insufficient staff to supervise residents and put their health at risk, (5) that they hypocritically concealed the nature of the services and standards provided at the Home, (6) that they operated a harsh and uncaring regime for residents suffering from dementia, (7) that they mistreated Mr McAdam and (8) that they operated the Home with a disregard for the provision of stimulation for residents. In addition there was much discussion about the pursuers' laundry policy following upon the defenders' contention that the pursuers failed to maintain an adequate system of ensuring residents wore their own clothing, spectacles and jewellery, that they were often dressed in underwear which had previously been worn by other residents and that they were also required to wear outer garments belonging to other residents. The other main contention about the laundry was that an inappropriate washing temperature was instructed by Mrs Baigent.
The treatment of Mr McAdam
The first matter mentioned in the broadcast and, it appeared to the Court, the most serious allegation was that of the treatment of Mr McAdam. Despite the fact that some attempt was made to conceal his face, he was instantly recognisable to a significant number of persons and in particular recognisable to his relatives and the other residents. His relatives had expressly requested that Mr McAdam be not in the broadcast but this was ignored by the B.B.C. (23D). Mr MacDonald attempted to defend the use of Mr McAdam by reference to something called "producers' guidelines" which provided that surreptitious recording techniques were justifiable if they provided prima facie evidence of crime or of significant anti-social behaviour. According to that criterion there could, I find, be no justification for the utilisation of Mr McAdam in the programme under reference to producers' guidelines. With regard to the statement by Mrs McCulloch in relation to Mr McAdam, "most days he is in that chair 24 hours a day" and that by Mrs O'Hare "you wouldn't be allowed to put a dog in a cage that size so how are they allowed to put someone in a chair that size", it was accepted in his submissions by Mr Taylor that he could not on the evidence support the statement that Mr McAdam was most days in the chair 24 hours a day. Plainly therefore, the unqualified statement introducing the programme made by Miss Jofre "this man spends 24 hours a day confined to a chair" could not be supported nor could Mrs McCulloch's statement above quoted. The chair in question was a Parker Knoll armchair into the arms of which a table could be fitted. The effect of that fitting meant that the person in the chair could not rise from it. There was evidence about the utilisation of such devices connected with the proposition that they were a restraint of liberty and therefore, ought to be avoided. That proposition represented a viewpoint not wholly shared in the nursing profession. I did not regard the evidence of Professor Marshall or of Mr McMahon as providing any basis for a proposition that Orchard House was wrong in making use of such chairs within the limits they set. There was, indeed, Dr Riddell's broadcast suggestion that such chairs should not be used at all but I found this statement both unwarranted and impractical. Without having at least one care assistant totally devoted to him, a disruptive, demented difficult to control resident such as Mr McAdam could not have been dealt with differently by the staff over 24 hours a day. Such sole care would have been totally impracticable. The pursuers never set out to provide such a level of care for residents. Such persons would require hospital care. It is clear that starting with meal times, such a chair plays a useful part in the care of a demented resident. The need for exercise and sleeping in an ordinary bed was, I find, recognised by the pursuers who made provision therefor. It appeared that, because Mr McAdam was particularly disruptive and liable to propel himself about the nursing home, perhaps into positions of danger from stairs and the like, he was not always in his room at night but was installed in his chair in the nurses' sittingroom. It was in that location that he was filmed by Mrs McCulloch in and out of the chair. The nurses no doubt took the view that this was one way of coping with a particularly intractable problem as well as providing Mr McAdam with some contact and communication with the staff.
One disturbing feature of the filming was the shot of Mr McAdam in his underwear moving about on the floor. I have no doubt that moving about the floor as he was shown to do was a reasonable form of exercise. He could and did remove his pyjamas. However, not to replace these but instead to take photographs of him in that state says more about the anxiety of the filmer to obtain potentially damaging pictures than her duty to care for the resident. It is not surprising that Mr McAdam's relatives were upset at what they saw, and astonishing to me that it should have been thought appropriate in the first place to film or in the second place to broadcast such pictures. They might well be described as Dickensian, but the filmer should not have allowed the situation to persist at all.
There were potential dangers spoken to about these chairs. The pursuers however, had laid down a regime for exercising and none of the main protagonists in the programme worked on other than nightshift. They had no knowledge of the daytime regime. That however, did not dissuade them from making assertions about Mr McAdam's daytime care being one of confinement to his chair. The source of such, hearsay, evidence was not established and I reject it. Accurate evidence of such care and of the daytime response to Mr McAdam was given by Mrs J Paterson. It was of care, contact and of his reasonable contentment. Indeed one witness, Mrs Jackie Anderson, who did not appear on the programme but was one of the group of people involved before it was broadcast, was prepared to make statements to the Court as if they were fact but did not even know what type of chair Mr McAdam had. (957D, 975, 976B-C). Nor had those main protagonists any knowledge, so far as was revealed to the Court, of Mr McAdam's medical conditions. It was also conceded by Mr MacDonald that the B.B.C. had no knowledge of these matters either. The B.B.C. had been told on behalf of the pursuers that residents in chairs are moved every 20 minutes and that the chairs are never used at night but the B.B.C's riposte to that, spoken by Miss Jofre on the programme, was the erroneous statement that the B.B.C. had "filmed this at 3.30am".
In my judgement, it cannot be maintained that the use of a Parker Knoll chair with a table as a form of restraint per se represents an unacceptable standard of care. What was put forward by the B.B.C. and Mrs McCulloch was that Mr McAdam was at least on some occasions kept in the chair 24 hours a day which would, of course, be unacceptable. Use of the chair for the greater part of the 24 hours, that is for all except toileting and occasional exercise would also be unacceptable, but the reliable evidence did not go so far. It is, in my view, plain that the defenders have failed to establish the truth or substantial truth of their allegations in relation to Mr McAdam's treatment. These allegations constitute a clear innuendo and assertion that the pursuers mistreated Mr McAdam. The further implication that this was the result of the inadequate number of staff employed is dealt with below. The innuendo and assertion of mistreatment is not justified by veritas. The pursuers were damaged thereby. I also find that the pursuers have proved their averment that the footage of Mr McAdam was staged to give a deliberately misleading impression of the condition for residents in the Home. There were, in any event about sixty other residents in the Home.
Adequacy of staff provision
As a corollary and to some extent integral to the assertions about Mr McAdam were the assertions made in the programme and in evidence that the pursuers provided inadequate staff. Although this matter was spoken about by a number of care assistants, curiously, it was not an assertion which was strongly made by Nurse Bryson. She said they were very busy but that they coped. (711D - 712A). The allegation by Mrs McCulloch that she was in charge of sixteen residents by herself was admitted by her to be on one wholly exceptional situation.
As was said in the programme, the Health Board set staffing levels for inter alia Orchard House. Allegations of inadequate numbers of staff followed from Mrs McSkimming and Mrs McCulloch. There then followed an assertion that matters were made worse "when one nurse has to do the laundry during the night - another breach of the Board's guidelines. Evidence was led by the pursuers from Mr E Hattie, the Assistant Chief Area Nursing Officer for Lanarkshire Health Board. His time in office covered the entire period with which the programme was concerned. He was the professional nurse who determined the manpower needs (1534B); he is qualified and registered both as a mental nurse and as a general nurse. His evidence on this matter can be shortly stated as being that staffing requirements were satisfactorily met. He detailed calculations about that. (1545F-1548B). He had seen the programme but had also (1548D - E) seen other material which "did not suit the producer and the director" which was not broadcast. He repudiated the reference to himself in the programme and dealt with the matter of the staff being allocated to laundry use (1560) by saying that Orchard House had an excess of their manpower needs for night duty (1560E) and accordingly along with his colleague, whose speciality was manning, had been agreeable to and indeed encouraged the use of the care assistants for two hours of laundry duty. I accepted that evidence and find that, yet again, an inaccurate impression was broadcast by the B.B.C. It was not a nurse in the sense of a qualified nurse who had to do the laundry during the night. It is likely that Mrs Hastings, in her comment on the programme that nursing staff should not be involved in doing laundry or cleaning was considering staff qualified as nurses. I therefore reject the assertion made by Ms Jofre that Orchard House seems to be breaking the rules on nurses doing laundry. That is another part of the broadcast which has not been proved to be true or substantially true.
The pursuers, of course, not only took advice but obeyed the instructions of the Health Board, in the person of Mr Hattie, in relation to staff numbers. Orchard House was not intended nor equipped to provide one-to-one hospital care and the suggestion made by participants in the programme that in some way the pursuers were deficient in not so providing was not a relevant matter.
The innuendoes and implications which I find established from the statement by Mrs McCulloch and the broadcast material surrounding Mr McAdam are those contended for by pursuers, (first) that, the pursuers operated with insufficient staff to supervise residents and thereby put their health at risk and (second) that they employed insufficient staff to care for patients and instead resorted to confining Mr McAdam to a chair for substantial periods. In the context of the whole programme in which the B.B.C. elaborated the contention that the pursuers provided insufficient staff, such allegations and innuendoes are serious, unwarranted and damaging.
Allegations of lack of stimulation for residents in the Home
The broadcast assertion was "there is no stimulation whatsoever, nothing for them to do. I mean if they have got their senses they can play dominoes or something but if they have no senses its sit there, read, toilet, feed, bed. There is nothing between for them". The pursuers accepted that provision for stimulation for residents in nursing homes was important. It was apparent that the statement implied that the pursuers operated the Home with a disregard for such a provision. The evidence which was led on that matter was wholly unconvincing and unsatisfactory. It came, from those employees who were mainly on nightshift when indeed, the situation might substantially have been feed, toilet, bed, feed. There was ample evidence of various activities which were provided within the caring regime at the Home for all patients, not excluding patients with dementia. There was evidence of outings, concert parties, visits to local events, of persons coming to the Home to entertain in addition to the standard provision of television, games, reading material and the like. Mrs O'Hare was simply not equipped or qualified to make the statement she did. It was untrue. Dr Copeland the visiting general practitioner, was aware of activities being advertised and organised (1508A-B).
I accepted the evidence of Mrs Jean Paterson who described what was done to assist the stimulation of residents. (1381A-C). She realistically stated that there were limitations to some of the activities you could do with the dementia residents, but, basic ones were provided such as "just hearing music, they enjoyed television, just walking with them, talking with them, looking at magazines with them, you know, basic things like that". (1831B). Evidence was also given by Miss McAdam (1697B-D), and from Mr Steele (1657C-1658B). Mrs Doreen Tatton, a registered general nurse, whose mother resided at Orchard House, while acknowledging that her mother was uninterested in most activities, gave evidence about other activities in the green sittingroom at (1676B 1677E). I accept such evidence which adequately corroborated evidence given by Mrs Baigent (1251B-1256C) about activities for residents.
I accordingly find that the allegation of there being "no stimulation whatsoever" is inaccurate. The innuendo taken therefrom is that the pursuers were operating their nursing home with a disregard for an important provision for the well-being of their residents. That is another defamatory statement which was neither shown to be true nor substantially true.
Allegations relating to inappropriate bathing arrangements
The statements in that regard were the first quotation from Mrs McCulloch and the second quotation from Mrs O'Hare. Mrs McCulloch's comment that she was "pulling people out of their bed" to "shove them into a bath" at 6.00am differs slightly from Mrs O'Hare's comment that the dementia sufferers were segregated and bathed at 5.30am. Each of these statements as broadcast implies that this was current practice at Orchard House. I refer to that later. I note that the B.B.C. by exhibiting a clock showing 5.30am seemed to have preferred Mrs O'Hare's account of times to that of other witnesses. The innuendo that the pursuers said was present in these statements was that the pursuers operated a harsh and uncaring regime.
As matter of fact, there was no regular early bathing at even 6.00am at the time of the broadcast. The B.B.C's. position about this in the words of Miss Jofre was that "a nurse complained to the Health Board about this early bathing regime. Orchard House stopped it. Residents now get just one bath a week with nurses giving them a quick wash every morning". This was inserted in the broadcast between the words "into a bath" and "you are washing them" in the quoted statement from Mrs McCulloch.
Mrs Linda Horn, who worked as an auxiliary with the pursuers from September 1992 to July 1993, worked on nightshift. When she first began, she bathed patients in the morning. She said that she would bath two people. She said "when I first went there we started getting them up about 5.30am. A couple of months afterwards, they changed the bathing from the morning to the night time". She did not know how that change came about, but after that, she got four residents up between 7.00am and 8.00am, washed and dressed them and took them down for breakfast. When she arrived at the Home however, it was the other auxiliaries who told her to get the patients up at 5.30am. She said that she understood from Mrs Walker that it should have been 6.00am or between 6.00am and 7.00am. She was unaware if the matron, Mrs Walker, knew about the 5.30am regime.
Mr Hattie said that he had received a complaint about residents being bathed at an early hour but could not recollect how he was told about it. He went at once to the Home and spoke to matron and probably to Mrs Baigent. He had been told that it was a command that it had to be done, but he could not, he said, "establish that". Mrs Walker's evidence was that she knew nothing about people being bathed at 5.30am or 6.00am. She need not necessarily have known about it and it was going against instruction if they were. She thought that it would be unlikely that Mrs Baigent had told people to do that. Mrs Baigent denied any knowledge of such a policy or of any change in 1993. There was a bathing rota in the matron's office but, generally speaking she said, the bathing was done by day staff (1233B). At one time two of the night staff would have been brought in early to do the bathing in the evenings and there was a bathing nurse. She denied giving any instructions to anyone with regard to bathing, and in particular, not to Mrs Ratter and I accept that denial. It follows also that I do not accept as reliable, any of the other evidence which attributed to Mrs Baigent a direct instruction to bath at 5.30am. It was alleged to have been a relative of Mrs Helen Logan who had invoked the Health Board but Mrs Logan did not confirm that.
I accept that certain patients were bathed at 5.30am and/or 6.00am some three years before the programme was broadcast. I accept that if that were to be considered to be a practice, it was stopped but it was open to nurses to bath residents as and when required at whatever time, and it was very reasonably said by Professor Marshall that some elderly persons, accustomed to rising early, would find that an early morning bath was satisfactory.
Accordingly, I find that such early morning bathing which did take place against the wish of the residents was not the result of a direct instruction of the pursuers. Nor was it the result of a direct instruction of the matron, Mrs Walker. I incline to the view that as Mrs Horn stated, this was to suit the convenience of the care assistants who wanted to have the bathing done early for their own purposes.
In the context of the programme, however, this was intended to be and was reasonably interpreted as an attack upon the caring regime of the pursuers. Had the matter stood alone, it not being an issue by the time the programme was broadcast, nothing very significant could have been made of it but it did not stand alone. It was thought important to mention it in the broadcast; the object of doing so could only have been to reinforce the proposition that the pursuers delivered an unacceptable standard of care.
Allegations about lack of hygiene
In the programme, this allegation was centred round the statement by Mrs McCulloch about using one face cloth. She said "you were washing the top of them and then you had to wash their bottoms with the same face cloth you were washing their face with". Standing by itself, it is difficult to see what adverse comment that would imply. On the face of it, there would appear to be nothing unreasonable in proceeding to wash from face to bottom in that order. The innuendo sought to be put on the statement was that it implied that the pursuers obliged nursing staff to carry out their duties in an unhygienic and degrading manner.
To allow that implication to be attributed to the statement, the context in which it was made requires to be considered. The context was set by Miss Jofre as follows, "worse still, what happened to face cloths". There then followed the quotation above noted. Mrs McSkimming said that the face cloths that they had to use were washed, not boiled. "Washed in the washing machine and put back out for other residents to use, which I felt was really totally unclean". The further context was in the introduction by Miss Jofre in which it was said "having your own toiletries seems basic. Most homes supply them. But at Orchard House nurses say that they took in talc, combs and soap or residents would go without. A breach of Health Board guidelines. Worse still, what happened to face cloths". What appeared to the Court to be an inordinate amount of time at the proof was spent on this matter and on the allied allegation that soiled face cloths were cool washed not boiled. Numerous and varied allegations were made in the evidence, which were not matters of specific pleadings, but all arose from the "washed not boiled" statement of Mrs McSkimming (who never did the laundry and played no part in any washing of clothes (859)) about the laundry arrangements and alleged instructions. It was variously asserted that Mrs Baigent had instructed that face cloths and draw sheets were not to be boiled; that the operators were required to set the laundry machines at 40º, that cloths came back stained and that there was a shortage of such face cloths as well as of soap and talcum powder. The defenders' averments about such matters were exceedingly sparse and there was little about them in the programme itself. Mrs McCulloch said at the proof that above the machines there was a notice to say that under no circumstances had sheets to get "boiled washed". "They are cotton sheets and they crease easy so they have to be done on a cool wash". Mrs Kennedy spoke about catching scabies and all this was attached to the allegation that clothes were not to be washed at a high temperature. No evidence about such a notice was acceptable. That there were notices of various kinds in the laundry and kitchen area I have no doubt but I have no satisfactory evidence that the content of any notice was that spoken to by Mrs McCulloch. Mrs Baigent was particularly interested in the laundry. She took a great deal to do with the laundry arrangements and the neatness, ordering and tidying of clothes. She was said to be meticulous about the laundry (Bryson 754). The two machines which were in operation were of substantial industrial size had three settings and automatic detergent feeding. I found no satisfactory evidence that there was any notice or instruction that only one setting was to be used or that 40º was the temperature to be utilised. The machines did not have a temperature setting specified in degrees.
On the contrary, there was evidence from Mrs Carty, the person actually employed to do the washing. She was working at the nursing home at the time the programme was broadcast. Her particular responsibility was the laundry. She began her work at 8.45am and finished at 12.45pm. She put the soiled garments, towels, sheets and the like into the machines, having sorting them into piles. There was a boil wash, a medium wash and a cool wash. In the boil wash there was washed underwear, face towels, towels and draw sheets; in the cool wash, knitwear, cardigans and dresses; in the medium wash, sheets other than draw sheets were washed. That was how she was doing the washing at the time the programme went out. She then ironed the clothing, looked at the names on them and put them into their individual receptacles. Top clothes were hung up but underwear was put into a 'doocot' system. She denied that there was any overall shortage of face cloths stating, reasonably, "maybe when you came on in the morning there was a shortage but you went and got more and put them out to the linen cupboard". She said that there was stuff washed when she came in in the mornings so that must have been done at the time of the nightshift. She said that there were notices giving a guidance for washing different things in the laundry. These were just the same as she described herself doing. I saw no reason to doubt the evidence of Mrs Carty. She is still an employee in the Home but I cannot deduce from that fact that she would be likely to give untruthful evidence as to the arrangements.
There was some evidence about face cloths having stains on them and these were assiduously mentioned in the evidence I heard. No doubt occasional misplacement or accident could happen. No system can be perfect. On the other hand, the suggestion that as a matter of routine, practice or instruction, that there were unhygienic laundry arrangements, stained, soiled or missing face cloths was simply not established by acceptable evidence. I find as fact that the face cloths were normally boil washed, and that the pursuers' instructions were to that effect. It may be that, on occasion the night assistants did not comply with those instructions, and if that happened it was not discovered, but that is a wholly different matter from implying that everything had to be washed in a cool wash (O'Hare 545). If nurse McSkimming truly believed that there was unhygienic washing of face cloths, she failed in her duty as a nurse to bring that to the attention of her employer, her union or the Health Board. That suggests that she had no basis for the hearsay she broadcast.
The same observation applies to the evidence about shortages of soap and talcum powder. The occasion for this was not anything said by any employee on the broadcast but the words of Ms Jofre: "nurses say they took in talc, combs and soap otherwise residents would go without". I can accept that on occasions the staff in charge on the nightshift may have had soap and talcum powder in their possession and used it in the Home, but they may have acquired it from another resident's supply (Ratter 622B). The suggestion which, for example, came from Mrs McSkimming, that there was sometimes no soap at all, a suggestion which was made in all seriousness and repeated when asked about the matter by the Court (861), was simply unworthy of credit. No doubt soap was sometimes not present at a particular place where someone might have wished to have it but elevate that into some suggestion that there was a deliberately inadequate supply, stretched credulity. Talcum powder was something supplied by the residents. It could be ordered and was paid for by them. The home had an emergency supply, but it was not automatically supplied by the home. Nor was there any evidence that that arrangement was a breach of Health Board Guidelines. There were for example other suggestions of shortages attributed to the meanness of the pursuers such as of incontinence pads. These were supplied by the National Health Service and an inadequate supply has no reflection on the profits or otherwise of the proprietors of the Home. That matter was, in my view, merely mentioned in order to try to make further and other damaging allegations. Accordingly, when seen in context and particularly when seen in the light of the way in which the proof was conducted in relation to this matter, I am satisfied that the innuendo sought to be placed upon the words by the pursuers that the pursuers obliged their staff to operate in an unhygienic manner is a correct innuendo, and that the defenders have not established that what was said was either true or substantially true. It is plainly damaging.
Allegations of a facade of care not borne out by reality
The first quotation from Mrs O'Hare summarised by her analogy with a cake was "its lovely, the furnishings are lovely, everything is beautiful" and "underneath the icing it's rotten. What you get on the top is not what is underneath". That statement was said to bear the innuendo that the pursuers hypocritically concealed the nature of the services and the standards provided in the Home. It can readily be accepted that it bears that innuendo. There was ample evidence from staff and relatives of the residents that indeed, the furnishing were lovely, that everything was beautiful, that it was clean and well cared for and that residents were well looked after. Nurse Bryson even sought to turn that against Mrs Baigent when she said (755) that Mrs Baigent was punctilious about hygiene to the detriment of the residents. That utterance gives a clue to the attitude and reliability of the participants in the B.B.C. programme.
No doubt some people, when placing their burden of caring upon a nursing home, might feel that they have let down their relative and avoided accepting responsibility for them and might seek to salve their conscience or any feelings of inadequacy that they have by asserting that the care provided was of a high standard and that they had not arranged for them to be looked after in, the words of Nurse Bryson, "a farm for the elderly". I did not regard the evidence of Miss McAdam, whose father was not removed from the Home even after the broadcast, Mrs Steele, Mrs Anderson and the relative with nursing qualifications, Mrs Tatton, as falling into that category. Their evidence was impressive and was not seriously challenged by the defenders' representative who in summing up said of their evidence that he did "not dispute it so far as it goes". None of these people had, I thought, any motivation for giving untrue evidence and I contrast their evidence with that of Mrs Weir, an associate of Mrs O'Hare's and the Cook family, who appeared on the broadcast, which I did not find sufficiently acceptable to establish any neglect by the pursuers.
It would be unrealistic to expect that every single person who had had a relative in the home would be satisfied totally, and the defenders led some evidence from other relatives but viewing the evidence as a whole, I have no doubt that adequate acceptable care was provided. In particular, it could not be truthfully asserted that the residents were "denied even the basics" in the words with which Miss Jofre introduced the programme. Even the defenders' witnesses would not agree with that proposition.
Accordingly, I do not find that the quoted statement from Mrs O'Hare was either true or substantially true. It was plainly damaging and a serious allegation.
Further allegations made in the course of the proof or broadcast
The defenders led evidence about events which had taken place subsequent to the broadcast. In particular, they led evidence in relation to injury sustained by one George Mitchell on two occasions while in the Home. These were truly accidents. The first happened when he fell out of bed for the third time. The son, Mr Ian Mitchell had arranged with the Home that his father's bed be protected by cot sides. On an occasion, a nurse, unaware of this, and in the exercise of her discretion, no doubt feeling that residents should not be subjected to unnecessary restraint, did not raise the cot sides and Mr Mitchell fell out and was injured. The owners of the Home were sued and a payment was made by their insurers. This event more than any other, illustrates the difficulty of the evidence presented for the defenders from Professor Marshall and Mr McMahon. It is of little assistance for such people to theorise about the need for risks to be taken in care so that the cared for person should have some more freedom, if the result of that freedom is that an aggrieved relative sues the home or hospital. Another accident occurred when Mr Mitchell fell from his chair. In any event, I considered the matters relating to Mr Mitchell as adding nothing to the evidence in the case and certainly not as establishing that the pursuers continued even after the broadcast to offer a harsh and uncaring regime. Mr Mitchell's son was unaware that his evidence was to be used by the defence for that purpose, (1076A), and had thanked the staff for their care and attention to his father after his father's death.
Four other matters were referred to in the programme, not specifically averred by the pursuers as part of their case. These were (first) about the belongings of patients not necessarily accompanying them when they were moved. No doubt when patients were moved there might be a greater or lesser lapse of time between their move and their possessions following them. The suggestion that people were actually deprived of their personal belongings was neither made out nor credible.
(Second) Further statements were made in the programme and in evidence in relation to residents' clothing. Again, no doubt from time to time, people might be dressed in the wrong outer clothing. Such inadvertencies could happen from time to time. That the system was that residents should have and wear their own clothing was clearly established by the evidence of Mrs Baigent and Mrs Carty. Names on garments could of course become detached or obliterated and that could cause problems, but I reject the suggestion that, as any point of policy or as any result of lack of adequate management, patients were regularly and indiscriminately issued with and dressed in other people's outer clothes.
(Third) and more serious were the assertions made about underwear. In the programme Mrs O'Hare spoke of half a dozen people having worn the same pants. There was support for this from Mrs Dunlop (a disaffected qualified nurse who left giving only one day's notice). Mrs Dunlop said she saw underclothes with half a dozen names named out and others written in on a nightly basis (1178). No one including Nurse Bryson could miss it, she said,. Nurse Bryson's evidence was that she could not recall ever having seen more than two names (768E). Mrs Baigent and Mrs Walker denied that such a thing ever happened. I do not consider that I am able to hold on satisfactory evidence, that the defenders have established this allegation as happening frequently. One name being altered could be explained by a mistake having been made. I do not believe either Mrs O'Hare or Mrs Dunlop, but cannot affirm that one name having been substituted for another never happened. Clothing was, properly, kept "in stock" and there is no reason why it could not be used in an emergency. Another explanation is that unused pants might be named and kept in stock but later used for a different resident. I am however, satisfied that the pursuers did not institute or condone a system whereby residents wore other residents' underwear, or as was said in the broadcast knickers, as a matter of practice.
(Fourth) The fourth matter was that the pursuers failed to provide a hoist for patients. I do not accept evidence that it was broken and needed to be repaired. I accept the evidence of Mrs Logan who said that it was not used by her because the residents did not like it and she simply lifted them. I do not believe that Mr Hattie would miss a broken appliance. I accept Mrs Baigent's evidence that it was operated by a battery, charged by simply plugging in to the electricity supply like a power tool. There is accordingly no substance in this matter which would detract from the views already expressed by me about the standard of care in Orchard House.
All this additional material, that part of it which was in the programme and not complained of specifically by the pursuers and that part of it which was not in the programme but brought in by the defenders subsequently, was of no assistance to the defenders. With regard to the matters broadcast, the defenders' averment that all the statements broadcast by them were true or substantially true was not only not made out but positively disproved. The additional matter which was brought in with the averred intention of showing that the pursuers did indeed operate a harsh and uncaring regime and have continued to do so, again, is not established and cannot but have occasioned further distress to the pursuers. I revert to this later.
The law and its application (merits)
There was no real dispute between the parties about the law to be applied when determining the merits of the actions. The law as set out and summarised in Gloag and Henderson Introduction to the Law of Scotland 10th edition at 35.5 and 35.6 was accepted. The first matter to be decided was whether the words complained of (those are the words quoted above) were reasonably capable of bearing a defamatory meaning either per se or by innuendo and that was a question for the Court. In determining that question, the whole statement must be considered. It was thereafter a question for the jury to decide whether or not the proper construction in all the circumstances of the case was defamatory or innocent. Evidence may be led of the sense in which the words used were understood by those who read or heard them. In this case there was evidence from Mr MacDonald and others which went towards support of the words being defamatory.
It is a matter for the pursuer, if the pursuer seeks to make use of innuendo, to put that innuendo in issue. The pursuers' position on innuendo is set out in the pleadings and alleges several such. The defenders argued that the sting of their programme was an inadequate standard of care. The pursuers did not accept that proposition but, instead, contended for each and all of the innuendoes they pled. I note that the words used in the programme were "unacceptable standard of care" not "inadequate standard of care". The programme words are stronger - there may be circumstances in which a standard, viewed objectively, might be considered inadequate but requires to be accepted - but "unacceptable" denotes some moral blameworthiness.
I have no hesitation in holding, as a matter of law, that the words complained of were reasonably capable of bearing a defamatory meaning, and that they were reasonably capable of bearing the defamatory meaning contended for by the pursuers, having regard to the whole programme as well as the individual sentences themselves. I find that the implications and innuendoes put in issue about the broadcast material by the pursuers are innuendoes which the words used reasonably bear judged in their context. The argument between the parties, the defenders having led at the proof and pled veritas, centred on the credibility and reliability of the witnesses. I have already expressed views on that matter and on the matters of fact.
It follows that I find that each and every matter put forward by the pursuers as defamatory was in fact defamatory. I find that the defence of veritas was not made out on the balance of probabilities on consideration of the evidence led on all the issues before the Court. I accordingly find that the pursuers are entitled to damages.
The Law and its application (damages)
Parties again, were not at issue in the general approach to be adopted, which was that, in Scotland, damages are compensatory. There is no room for punitive or exemplary damages and, accordingly, English decisions on the matters of defamation libel and in slander, require to be looked at with particular care. The high water mark of that viewpoint is found in Stein v Beaverbrook Newspapers Ltd, 1968 SC 272 and in particular per the Lord Justice Clerk at page 278 where he says;.
"English cases and textbooks, even if they tend to support the pursuers' arguments (and I have reservations as to how far they do), must be looked at on the basis that the principles upon which damages are assessed are, like the law of libel, by no means similar in our two countries. In this connection, I refer in particular to the dicta of Lord Devlin in Rookes v Bernard [1964] AC 1129 p.1221 with which Lord Reid concurred at p.1179. It would, in my opinion, be unwise to consider the law of Scotland on the basis of what it may be in some future date as a result of infiltration from the South".
The Lord Justice Clerk further said in relation to the question whether a defamatory statement, because it was actuated by malice entitles the pursuer, for that reason alone, to greater damages - without averment or proof of greater injury than he would have obtained had there been no malice, that the answer on principle in Scotland to that question would appear to be no.
Pursuers' counsel contended, however, that the dicta in Stein should not be regarded as a dissuasion from using English decision merely that they require to be approached with care.
Counsel referred to Winter v News Scotland Ltd 1991 SLT 828. In that case, it was stated that no assistance could be derived from a consideration of English cases in which awards were assessed with very different principles in mind and that it was inappropriate to attempt to make a direct comparison between an award of solatium for pain and suffering caused by physical injury and an award of solatium for injury to feelings and reputation. In that case, the Court declined to interfere with a jury award of £50,000 for solatium from a defamatory allegation that a female prison officer had committed an act of sexual intercourse with a prisoner. It is also observed in that case (829D) "it is well established that the principle of making an award of punitive or exemplary damages in defamation cases does not form part of the law of Scotland". Stein was not referred to in Winter.
I was also referred to a textbook on defamation by David Price, of recent publication but, since that book concerns itself with English awards practice and procedure I did not find it of any assistance. I record, for reference, that counsel referred me to the cases, Gorman v Mudd unreported in which an award of £150,000 was reduced to £50,000 and Rantzen v Associated Group Newspapers 1994 QB670 where £110,000 was substituted for injury award of £250,000 and the relevance of the absence of an apology was noted. Reference was made to John v MGN Ltd [1997] QB586, Dingle v Associated News [1964] AC371 and Sutherland v Stopes [1925] AC 47 and the unreported decision of Lord Milligan in Gecas v Scottish television Plc, 17 July 1992.
Counsel drew attention to the following circumstances which he said were relevant to and aggravated the hurt caused by the broadcast, which was perpetrated by the B.B.C., a public service broadcaster in a historically trusted position. The broadcast was made without a fair opportunity being given to the pursuers to participate. No heed was paid to what the McAdam relatives thought about their subsequent action. The position was that there had been no acceptance that any defamation had occurred. Mr MacDonald for the defenders could not face the possibility that he, or his department, could be wrong. There was no apology. There was no offer of amends of any kind. There was an assertion in Court of further matters not reflected in the pleadings. There was the assertion that all statements made to the defenders were true or substantially true and the positive assertions made in the defences, as amended on 4 June 1998, about the matter of Mr Mitchell's accidents. Each and all of these items, said counsel, has had the ability to, and has in fact added to the stress and upset.
In reply, the solicitor for the defenders contended that, in order to sound in additional damages, the defenders would require to have acted in a malicious manner in defence under reference to Stein v Beaverbrook Newspapers 1968 SC 272. He argued strongly that merely pleading veritas does not give rise to any entitlement to additional damages. Further, if the manner in which the defenders acted could create additional loss which could be reflected in damages, there required to be evidence of greater loss. See Cooper, Defamation 2nd Ed at p.258, Walker, Delict 2nd Ed p.794, MacGregor, Damages, 16th Ed 1906, Gatley, Libel and Slander 9th Ed 913. The position required to be that the defence of justification would be bound to fail before use of that defence could cause additional damage, MacGregor, Damages 1909. There was sufficient evidence there to justify the defence and the defenders cannot know the impression the witnesses would create until they had been seen in the witness box.
Findings in Fact in relation to quantum of damage
In view of the fact that Mr Taylor could not support the keynote allegation of the broadcast i.e. that Mr McAdam was kept in a restricter chair for 24 hours a day, nor the lesser version promulgated by Mrs McCulloch that that had occurred on some occasions, it is apparent that the defence, in so far as directed toward that proposition which was persisted in, could not be justified. That was the integral and, in view of the Court, the most serious allegation in the matter. Another matter was the failed attempt to justify the assertion made in the programme that the residents at the home were "denied even the basics". The suggestion that the pursuers neglected their residents because of inadequate staffing which was persisted in, was also unjustified, having regard to the fact that staffing levels are set and approved by a supervisory body. The suggestion of a perpetually defective hoist, again persisted in the teeth of the supervisory duties of the Health Board and its requirements about equipment, were all unjustified. I find that there was no justification for the defenders' conduct at the proof in attempting to establish, as a matter of fact independently of the programme, that the pursuers operated a harsh and uncaring regime. They specifically averred that. Such averment and persistence in it at proof plainly must have caused additional and aggravated hurt upset and distress to each and every one of the pursuers and I accept that it is a legitimate consideration for the Court.
Each of the pursuers gave graphic evidence about the effect of the programme upon them and upon those residents, for whose welfare they had assumed responsibility. One result of the programme was that the pursuers, and in particular Mrs Baigent, required to spend time reassuring residents that the residents were not going to lose their home. The upset which the programme was bound to cause to those residents in the home was imminently foreseeable. The effect of the programme would have upon the relatives of residents was equally foreseeable. That these concerns would multiply the difficulties created for the Baigent family was further foreseeable. It was suggested by Mr Taylor, that the family were exaggerating the situation. With that I totally disagree.
The attack upon the pursuers' personal integrity and reputation and that of the other members of their immediate family, was very serious. The prior reputation of the home, according to Dr Cockburn, was high and that was also evidenced by the relatives who gave evidence for the pursuers, about whose evidence the defenders did not take issue.
The pursuers said, and I accepted the evidence, that the programme changed their lives. They are still affected by it. That was clear when they were giving evidence. They are affected by the reaction on each other. I was particularly impressed by the way in which this evidence was given by the various members of the pursuers family. They all spoke more graphically about the effect on the other members of the family than the effect on themselves. In relation to Mrs Baigent, her daughter said (1418) "My mum for the last 31/2 years has never stopped talking about it, asking continuously why it happened". "We are still 31/2 years on, and she is still talking about it, trying to get it out of her system". In relation to her father she said (1417) "it just drained him it was constantly on his mind he couldn't understand how this had happened to us". Mr Baigent said he felt guilty for the whole family, having brought them to Scotland and this having happened (1678). He is smoking about three times as much as he used to do previously. Their social life virtually ceased and has not recovered. The two sons were also badly affected and again, Sarah Baigent's evidence at 1418 and 1419 was eloquent about the effect on their social life, and the break up of Simon's engagement. People would not socialise with them. They received abusive phonecalls. People would phone up demanding money according to Mr Baigent. With regard to Sarah, the effect on her was described by the other members of the family as devastating. Philip Baigent was subject to abuse by a young woman in the driveway of the home who said (1401F) "I have seen all about you, you are English scum why don't you come back from where you've been I saw you on the telly".
Mrs Baigent felt she could not socialise, felt unable to leave the home lest there be some crisis in her absence, was plagued by what she described as every social worker from Clydesdale getting in on the act (1351F) and ultimately moved house. Persons, some related to the Ratter family, demonstrated outside the house with placards on an open day.
The evidence from the family about the effect upon them and upon each other of the broadcast of the programme was wholly credible. I observed closely the demeanour of the family in the witness box when giving their evidence and was impressed by the extent to which they had all been affected by the programme. They were plainly upset while recounting events relating to, in particular, the other members of their family tending rather to downplay the effect on themselves. I believe their evidence and could see, even at the stage of the Court proceedings the effect upon them.
That effect is, however, only part of the picture. The affront and insult to their reputation, standing in the community, their exposure to hatred and contempt were such that, even if they had been even more resilient than they were, substantial damages would require to be awarded. To attack the bona fides of persons who set out to care for others by implying that they were harsh, uncaring and conducted their enterprise without regard for the welfare of their residents and in particular those less able to complain for themselves is profoundly damaging and insulting.
Quantification of damage
Damages are compensatory not punitive. What might have been the effect had the defenders been sued in other jurisdictions could only be a matter of speculation but, so far as the position in Scotland is concerned, I have regard not only to the matter of compensation for the damage created and by the programme and the two defenders in the other actions but have also had regard to the way in which the defence was pled and persisted in. In that latter matter, I recognise that it is legitimate for defenders to defend themselves by all legitimate means and that, at least so far as the corporate defender is concerned, their position did depend, to a material extent, on the reliability and credibility of the two individual defenders. Nonetheless, by persisting until final submission in the proposition that Mr McAdam was confined in a chair for 24 hours a day and persisting in the proposition and indeed, attempting to prove that the pursuers did operate a harsh and uncaring regime, averring such specifically, the corporate defenders went far beyond what was necessary to undertake in an endeavour to support the reliability of those persons from whom they broadcast statements. I have no doubt that caused additional distress and worry and should be reflected in the sum assessed as damages. I did not find the other cases cited to me of assistance in the jury question of quantifying damage.
I consider that by far the greatest proportion of the hurt caused to the pursuers was caused by the B.B.C. They broadcast the defamatory matter to the nation. They chose to utilise, without I find, any reasonable proper checking, wild and exaggerated statements from disaffected individuals. I can see no reason to distinguish between the two individuals in their participation and liability. Mr Haddow's submission was that Mrs McCulloch and Mrs O'Hare should pay £5,000 to each of the two pursuers and that the B.B.C. should pay £65,000 to Mrs Baigent, £45,000 to Mr Baigent and £35,000 to each of the children, with interest at 4% from 9 March 1995. Mr Taylor's submission for the defenders was that, if damages were to be awarded, then the B.B.C. should pay £15,000 to Mrs Baigent, £10,000 to Mr Baigent and £1,000 to each of the other pursuers and that otherwise there should be nominal damages in the cases of McCulloch and O'Hare.
I note that the representatives of both parties accepted (a) that Mrs Baigent had suffered more damage than Mr Baigent; and (b) that the B.B.C. bore by far the greater liability.
I cannot accept the proposition that the defenders, McCulloch and O'Hare are merely to be found liable in nominal damages. They gave their evidence in the presence of the pursuers in an aggressive, vindictive and contentious manner. Mrs McCulloch went so far as to say that she was proud of what she had done, and Mrs O'Hare was perfectly prepared to make up, as she went along, matters which she thought might be damaging to the pursuers and specifically to Mrs Baigent. I assess damages to Mrs Baigent at £5,000 from each of the defendants, McCulloch and O'Hare and to Mr Baigent in the sum of £3,000 from each of the defenders, McCulloch and O'Hare with interest thereon at 4% from the date of citation.
I have made a distinction between Mrs Baigent and her husband although, in their different ways, they have both suffered much. I accept that the affront to Mrs Baigent is greater than that to her husband, in that she was more intimately concerned with the day-to-day running of the home and the care of the residents as well as being personally vilified from the witness box. So far as the B.B.C. is concerned, I assess damages due to Mrs Baigent at £60,000 and to Mr Baigent at £50,000.
So far as the pursuers, who were the children of Mr and Mrs Baigent are concerned, I accept that each and all of them played a part in the running of the home, each and all of them have suffered as a result of the programme and, as a result of witnessing the effect of the programme on their parents and each other, that is serious although, obviously, not so serious as the effect on the parents. I award damages of £20,000 to each of the third, fourth and fifth pursuers in the action against the B.B.C. Interest on these sums will run at 4% from 9 March 1995 until decree.
It follows that I sustain the pursuers' first plea-in-law, repel the defenders' pleas-in-law and award damages as above indicated. I was not moved to continue the matter of interdict against Mrs McCulloch and accordingly pronounce no decree in that matter.