United Kingdom House of Lords Decisions

I will only further say that, in my view, authorities are chiefly valuable when they establish a principle. Where they do not establish a principle, but merely record the application of a principle to a particular set of facts, they may be instructive as to the point of view from which the Judge regards the facts, but they are of little importance from any other point of view.

Lord Kinnear — I am entirely of the same opinion.

Lord Atkinson — I concur shortly on these grounds—that there is nothing, in my opinion, on the face of the pleadings to show expressly or by implication that Gilmour was clothed with authority to express on behalf of the Corporation any opinion on the genuineness of any receipts which might be produced to him for payment of rates; that it was not shown by the pursuer's pleadings, as I think it must be, that the expression of such an opinion was within the scope of Gilmour's employment; from which it follows, on the authorities, that the Corporation are not responsible for a slander uttered in the expression of that opinion.

Lord Shaw—The learned Lord Ordinary in this case says—“It is not suggested by the defenders that Gilmour was endeavouring to collect the extra three shillings in order that he might put the money in his own pocket and so defraud the defenders; but if not, then what he did” (adds the learned Judge) “was plainly within the scope of his employment.”

In order to see what was the scope of his employment one must refer, as my noble and learned friend on the Woolsack has done, to the early part of condescendence 3. The scope of his employment is thus defined—that Gilmour's “duties included the collection of the police assessments payable by the pursuer's husband and the granting of receipts therefor.”

It is perfectly true that it was part of Gilmour's duty to look at the receipts given for payments formerly made; but I entirely agree with my noble and learned friends who have preceded me that it was no part of his duty to express his own opinion as to the genuineness of such documents.

I may be allowed to say that that is only a euphemistic way of saying that it was not within the scope of his duty to slander the producers of such documents or to allege that those documents were forged or altered by them.

There is nothing in this record to suggest that it was within the scope of his employment to do anything else than what according to the averment of the Corporation he did do, namely, report the occurrence to his superiors and inspect their books. If, however, it were to be held that persons in the ordinary and comparatively humble position of this officer were within the scope of their employment in expressing opinions as to the conduct of those with whom they have dealings in the course of doing their work, the consequences might be of the most serious character, and the essential justice which underlies the maxim qui facit per alium facit per se would disappear. In my opinion that maxim does not apply, and responsibility for the servant's alleged slander does not attach to the employer.

In the old-fashioned phrase — and the good phrase—adopted in Scottish pleading, I am of opinion that this record contains no issuable matter.