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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Adam v. M'Lean [1888] ScotLR 26_118 (30 November 1888) URL: http://www.bailii.org/scot/cases/ScotCS/1888/26SLR0118.html Cite as: [1888] ScotLR 26_118, [1888] SLR 26_118 |
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[Sheriff of Elginshire.
At a meeting of the Public Health Committee of a village the chairman stated that a case of typhoid fever had been reported to him by a medical practitioner, who said that
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it was probably traceable to the milk supplied from a certain dairy. In an action of damages for slander against him by the dairyman it appeared from the evidence that there was no ground for attributing the outbreak of the disease to the pursuer's dairy, and it was not proved that the doctor had indicated the dairy as the probable source of the danger. Held that as the defender had made the statement in the discharge of his public duty, and in the honest belief that he was correctly representing the views expressed by his informant, malice could not be inferred, and that the defender was entitled to absolvitor.
This was an action in the Sheriff Court of Elginshire by Donald M'Lean, carter, Dunbar Street, Burghead, against William Adam, chemical manure manufacturer there, for damages for alleged slander.
The pursuer kept a small dairy in addition to his other business. There was a severe outbreak of typhoid fever in the town in June 1887, and upon the 22nd June the defender, who was chairman of the Public Health and Water and Drainage Committees of the local authority of the district, made a statement to the members of the committee, which appeared in the minutes thus—“The convener stated to the meeting that a case of typhoid fever had been reported to him by Dr Hay, Forres, who said that it was probably to be traced to the milk supplied from Mr D. M'Lean's dairy, as cases resembling typhoid had been in that family for some time previous. It was the opinion of the committee that a sample of the milk should be procured, and sent for analysis to Dr Littlejohn, Edinburgh. Mr Adam and Mr Jenkins were appointed a committee to have this done.”
The pursuer averred that this statement was false, and was made maliciously and without probable cause, and that in consequence thereof his business had greatly fallen off, and he had sustained loss and injury to the amount of £250.
The defender denied these averments. He averred that in June 1887 he became aware of a serious outbreak of typhoid fever in Burghead, and that he along with a number of the inhabitants was greatly alarmed thereat. In his position as convener of the committees above named, and also as being an inhabitant of the village, he was desirous to ascertain, and if possible remove, the cause of the epidemic. By certain circulars which the Board of Supervision had issued from time to time, and which had been received by the said local authority, he learned that it had been ascertained that disease, especially enteric or typhoid fever, had been transmitted through the agency of milk. These circulars recommended all local authorities in whose district there might be dairies to inspect them from time time to time with reference to their water supply and their general sanitary arrangements, and also to cause inquiries to be made from time to time as to the existence of contagious or infectious disease at such dairies, and whenever such disease was found to exist to take such steps as their medical officer might advise with a view to prevent the dissemination of the disease. He further stated that on June 20th, in consequence of a consultation with Mr Dick, a medical student, and Dr Petrie Hay and Mr George Grant, Burghead, an inquiry was instituted as to the source of the milk supply of certain patients who were then suffering from typhoid fever in Burghead. It transpired, as he averred, that in four cases of illness, which were reported to be typhoid fever, the milk supplied to the houses in which the patients lived had come from the pursuer's dairy. He further stated that “immediately after making these inquiries he, along with Messrs Grant and Dick again met Dr Petrie Hay, and reported to him the result, whereupon he expressed his opinion that the typhoid fever might have come from pursuer's dairy, as he had recently attended two children in his house, and could not account for the high fever they were suffering from.”
The defender pleaded—“(4) The defender having acted solely in the discharge of a public duty, with probable cause and without malice in the matter complained of, he is entitled to have decree of absolvitor pronounced in his favour. (5) The defender having in his official capacity as convener foresaid, conducted the inquiry referred to in his statement of facts, and having at the meeting of the said committee, and solely for their guidance in the matter, made the statement complained of in accordance with a duty incumbent upon him to supply all information in his possession relating to the public health of Burghead, he is entitled to the plea of privilege.”
It appeared from the proof that in June 1887 there had been a serious outbreak of fever in Burghead and the surrounding district, and that circulars from the Board of Supervision had been addressed to the local authority upon the subject. Dr Hay deponed as follows with regard to his interview with the defender—“Mr Dick was with me all the time when I had a conversation with Mr Adam. I did not know that he was convener of the local authority at the time. I was merely talking on the subject of the fever as I might have talked with any other person. The conversation so far as I recollect was about milk in the first place, and something about drains or both. Mr Adam referred to the question of milk; I did not express an opinion that the fever could be traced to the milk, but I rather thought the opposite. In the conversation he tried to make that out, and he advised me to look to the milk supply. He stated that he considered the milk was the cause of the fever. or at all events the cause of the outbreak. We had a conversation—backward and forward—on the subject, but I cannot meantime remember all that passed, and I said when I left him that I was unable to convince him, and he went away with the same opinion that he held when he came up to me. I talked more about the drains than the milk. I went to look at a ventilator with Mr Adam and Mr Dick in Sellars Street, afterwards there was some talk about the smell, and I made the remark that I would find all the ventilators blindfolded if they would lead me along the streets; I think that was what I said, at least it is all I recollect. When Mr Adam was talking about the milk I spoke about the milk which Ross of Coltfield supplied. I said he was also supplying milk to Forres and the Coltfield district, and if there had been any fever in Forres I said I should have found out where the milk came from that the people were taking. I
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advised Mr Dick to ascertain in cases of fever where the milk was coming from … I saw a baby in the pursuer's house suffering from measles. There was another child ill, but he got better in a week. Mr Adam spoke to me about having the milk analysed. I said it would be all into buttermilk before it could be analysed. I asked Mr Dick to make sure and find out where the people were getting their milk from, and to see if it was coming from one source. He told me next day that the people were getting it from various quarters … Burghead is not a large place. The streets were opened up at the time. They are very porous, and they have been made use of for every kind of sewage since ever it was a village. When the drains were formed and the earth thrown up to a depth of several feet I think you have not far to go for the cause of the fever. The soil was saturated with sewage … It is not a correct report of my conversation with Mr Adam if he stated that I said that a case of typhoid fever was probably to be traced to the milk supplied from the pursuer's dairy.” The defender, after narrating his meeting with Dr Hay on the morning of the 20th June, and the inquiries made as to the milk supplied to the infected houses, deponed—“I saw Dr Hay during that day again, and we told him the result of our investigations, and he said, looking to Dick, That is just it, these cases we met with in M'Lean's house must have been typhoid fever. We spoke about the matter and talked a good deal about it, and I asked Dr Hay what should be done … I met him again at the ten o'clock train. We talked about having an analysis of the milk … We talked the matter over generally, and he said if a case existed like that of the pursuer's in Forres they would have no hesitation in closing it right of. Immediately on going to the office I wrote a note to Mr Nicoll asking him to call a meeting of the Health Committee.”
The witness Grant deponed—“We met Dr Hay again at the end of the street. I don't know which of us made reference to the milk and where it was got. Dr Petrie Hay answered that that was just what he was saying, and that all these children he had seen were suffering more or less of the same. I had heard at this time that the pursuer's children were ill, I never heard of anything further than measles.”
It was proved that the pursuer's dairy business had been ruined by the reports which circulated in regard to the milk supplied by him, and that he had been compelled to sell his cow.
The Sheriff-Substitute ( Rampini) upon 28th June 1888 found that the said statements were unfounded in point of fact, and that they were made maliciously, and without reasonable or probable cause; that they were not privileged in point of law; that in consequence of the said statements the pursuer had suffered serious injury and damage to his business and reputation, and that the defender was liable to him in damages to the amount of £100.
Note.—… It seems very much to the Sheriff-Substitute as if the defender, having formed his own theory of the cause of this fever, had been determined to maintain it through thick and through thin; that so convinced was he in his own mind that he was right, and that Dr Hay was wrong, that he could not or would not listen to anything that was said on the other side. In no other way can the Sheriff-Substitute account for the reckless, and, as it has been proved, entirely unfounded statement he made to the meeting on 22nd of June. This is not the temper in which the chairman of an important committee should approach the discussion of questions which involved so much to the whole community of Burghead. Nor is this, the Sheriff-Substitute thinks, the temper which will entitle him to plead privilege in a case like the present.
“Personal ill-will, the Sheriff-Substitute gladly believes, the defender had none against the pursuer. But evidence of personal ill-will is not required to establish malice in law. Malice may be inferred from facts and circumstances, and ‘the falsehood of what is said is not always an important consideration in cases of this kind, but sometimes it is conclusive,’ and as the Sheriff-Substitute has been unable to find the slightest justification in fact for the statements the defender made to the meeting he thinks it is conclusive here.” …
The defender appealed, and argued—The occasion on which the alleged libellous statement was made was privileged, and malice must be proved. There was no malice here. At the worst the defender had misunderstood the medical men, and in his report to the meeting he honestly believed that he was correctly reporting the result of the consultations. The statement was made in the interests of the public, and in discharge of the defender's duty as a public official. Publication was not proved, as this statement complained of was made to a committee and not to the public; what really had caused the loss of the pursuer's business was the fact that milk had been sent away for analysis from the pursuer's dairy, but he had not complained of that— Shaw v. Morgan, July 11, 1888, 15 R. 865; Broomfield v. Greig, March 10, 1868, 6 Macph. 563; M'Murchy v. Campbell, May 21, 1887, 14 R. 725.
The respondent argued—Even if the occasion on which the statement containing the alleged slander was uttered was privileged, there was such malice and want of probable cause as would make the defender liable. It was proved by the evidence of the doctor, and of the defender himself, that Dr Hay had not told the defender that the milk from the pursuer's dairy was the source of the disease. The statement was made with such recklesness and disregard of the interests of his neighbours that malice might be inferred. Dr Hay deponed that the fever arose rather from exhalations from the drains than from the milk, and the defender was the author and chief supporter of the drainage scheme being then carried out in Burghead, so that he might be desirous to shift the blame from himself— Denholm v. Thomson, October 22, 1881, 8 R. 31.
At advising—
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But while it is certainly deplorable that such error in discretion should have been committed, leading to disastrous results to the pursuer's milk business, the question, whether it is to be held that the defender in making his report was acting maliciously, and therefore is to be liable in damages for the consequent injury, is an entirely different one. It can hardly be suggested that in this case there is any trace of personal malice producing a direct desire to cause injury. The pursuer's counsel did not in debate maintain that the proof disclosed any such case. He rather argued that malice was to be implied in the legal sense from the facts disclosed, on the ground that the true inference from them was that the report had been made in reckless disregard of the pursuer's interests. The highest point to which he attempted to bring up his case was that the evidence did not justify the idea that the pursuer could have had an honest belief in the truth of what he said had he well considered the matter, and that he must be looked upon as guilty of such recklessness as is held in law to imply malice from his making so groundless an assumption. Now, it appears to me that the inference of malice from the recklessness of statement must depend not merely upon the falsity of the statement, however gross, although that is undoubtedly an element which may be of importance along with others, but upon other considerations. A statement may be absolutely devoid of foundation, and yet may not be uttered in such circumstances of reckless disregard of another's interest or peace of mind as necessarily to be held malicious. Malice may or may not be the necessary implication according to the surrounding circumstances. For example, if the injurious statement accuses the injured party of some gross crime or highly dishonourable conduct—attacks a man in such a way as to bring disgrace on his personal character, the inference may readily be drawn from the mere fact of its being recklessly made without any reasonable ground for belief that the person originating the calumnious report, or spreading it, acted maliciously, regardless whether his injurious words were true or not. On the other hand, if the direct statement complained of is plainly not to injure the person to whom it relates, or to indulge a propensity to tell scandalous tales of one's neighbours, but to effect some laudable innocent purpose, and particularly if the purpose be one of importance to the public weal, then it is not, and cannot be so easy to infer that the rashness of the statement, as indicated by its falsity, amounted to utterly reckless, and therefore in a legal sense malicious calumny.
What then were the circumstances of the present case, and how do these principles apply to them? There was a serious outbreak of typhoid fever in Burghead. It was plainly the duty of the defender in his official position to endeavour to trace the disease to its source, and I think the evidence indicates that he was doing so, not with the object of attacking or injuring anyone, but for the purpose of doing what he could to assist in checking the outbreak and stamping out the disease. He had interviews with Dr Hay, who practised in the village, and with Mr Dick, a gentleman acquainted with medical science, at which undoubtedly the milk supply was spoken of by the medical men as a proper subject for inquiry—a circular from the Board of Supervision had asked attention to the milk supply as a probable means of communication of enteric disease. It was after these interviews with Dr Hay and Mr Dick that the defender made the report complained of. Now, that he should be engaged in inquiry, should have conversations with the doctors, and should report to his committee, were all proceedings in themselves within his duty, and perfectly laudable. He was no busybody rushing about to make himself important by professing superior knowledge, and making statements without responsibility. His actions are therefore to receive favourable and not unfavourable constructions in themselves. The circumstances all point to his being engaged according to his rights in the fulfilment of public duty. Then the report which he makes is upon a matter of importance in the circumstances. Unquestionably the subject of milk was brought up in the conversations with the medical men, and was considered by everyone as being one for consideration and inquiry. There is a conflict of evidence as to the question whether Dr Hay did or did not indicate milk supply as the probable source of the mischief. It is undoubted that he did direct attention to milk supply, because he states that he cautioned Mr Dick, who was resident in Burghead, about the milk, and that he advised him to ascertain in cases of fever where the milk was coming from, and he and Mr Dick inspected the pursuer's milk premises, and made inquiries from the witness Grant as to the place from which the milk supply came to a house in which typhoid fever had broken out. But Dr Hay, while admitting that there was conversation about milk, which he says “one is always suspicious of” in
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It is no doubt well settled that malice may be inferred from recklessness. But I do not think it is correct to say that recklessness amounts to malice, or necessarily implies malice. The correction of the Sheriff-Substitute's interlocutor in Denholm v. Thomson, 8 R. 31, shows that it was considered necessary in that case to affirm malice in point of fact, and not sufficient to say, as the Sheriff-Substitute had said, that the defenders “acted with a recklessness amounting to malice in the legal sense.” There is also a recent case in the First Division in which this point was considered, and considered more fully than the report indicates. I refer to the case of Ritchie v. Burton, 10 R. 813. It may be gathered from the opinion of Lord Deas, however, correcting an expression he had used in the case of Watson v. Burnet, and also from the opinion of the Lord President, that it was not thought sufficient to support the verdict that there was evidence of recklessness. It was dealt with as a question upon the evidence whether the recklessness was such as, combined with the other circumstances, justified the jury in finding malice proved. The Lord President's examination of the evidence was directed to the object of showing that there was not mere recklessness, but such a repetition of the slanderous expressions as might be held to imply ill-will, and to exclude the idea that the defender in his letters was merely expressing in good faith his view of the pursuer's conduct.
Upon the evidence in the present case I concur in holding that it is entirely insufficient to prove or to suggest that the defender acted otherwise than honestly, and within his privilege and duty, in reporting to the committee what he understood Dr Hay to have said.
I therefore concur in the proposed judgment.
The Court issued the following interlocutor:—
“The Lords … recal the interlocutor of the Sheriff-Substitute of 28th June 1888: Find that the pursuer is a carter, and carries on the business of a dairyman at Burghead, and the defender, chemical manufacturer there, is chairman of the Water and Drainage Committee of the local authority: Find that in the month of June 1887 a serious and alarming outbreak of typhoid fever occurred in the village of Burghead, and that on the 22nd day of that month the defender at a meeting of the said committee made
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the statements contained in the 3rd article of the pursuer's condescendence of and concerning the pursuer in the hearing of the parties therein named: Find that the said statements were unfounded in point of fact: Find that the defender in making said statements acted in his official capacity as chairman of the Water and Drainage Committee of the local authority of Burghead, and solely for the information of the committee, and that he made them in bona fide and belief that they were true: Therefore sustain the fourth and fifth pleas-in-law for the defender, assoilzie the defender from the conclusions of the action: Find him entitled to expenses in the Inferior Court and in this Court: Remit, &c., and decern.”
Counsel for the Appellant— Balfour, Q.C.— Shaw. Agents— Cumming & Duff, S.S.C.
Counsel for the Respondents— D.-F. Mackintosh—Guthrie. Agents— Gibson & Paterson, W.S.
