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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Beaton v. Glasgow Corporation [1908] ScotLR 780 (17 June 1908) URL: http://www.bailii.org/scot/cases/ScotCS/1908/45SLR0780.html Cite as: [1908] SLR 780, [1908] ScotLR 780 |
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A swimming instructor raised an action for slander against the corporation of a city, in which he averred that the superintendent of certain baths in the city had as such delivered a written report to the city's general manager of public baths; that the latter in the execution of his duty as general manager had forwarded the report to the clerk of the school board of the city, who had previously employed the pursuer as swimming instructor; and that certain statements in the report were false and slanderous, and intended to bring about his dismissal.
The Court, who assumed that the report was slanderous, held that the averments were irrelevant, on the ground that the position of general manager of baths did not imply authority from the corporation to make communications on their behalf as to the business of the baths, especially to an outside body like the school board, and that there were no special averments that to make such reports was within the scope of his employment.
Daniel Beaton, swimming instructor, Glasgow, raised an action against the Corporation of the City of Glasgow, in which he, inter alia, sought to recover damages for alleged slander, said to be contained in a report written by Robert A. Murray, superintendent of Gorbals Baths, to William Thomson, general manager of the public baths, and sent by him to the Glasgow School Board.
The pursuer's averments relating to the alleged slander were, as amended, as follows (the deletions are in italics, and the amendments within brackets)—“(Cond. 1) The pursuer is a swimming instructor in Glasgow. He has the largest business of the kind in the city, and has been engaged therein for over thirty years. He has been employed by the Glasgow School Board as swimming instructor in connection with their schools for the past seven years, and he is also instructor to several swimming clubs in Glasgow. The defenders are the local authority having the control and administration of the Public Baths of Glasgow under the Glasgow Police Act 1866 …. …. .. (Cond. 7) On or about 1st May 1907 the said Robert A. Murray wrote a letter to the Clerk of the Glasgow School Board ( who employed the pursuer as swimming instructor, as before mentioned), in the following terms—[On or about 1st May 1907 the said Robert A. Murray, as superintendent of the said
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Gorbals Baths, delivered to the said William Thomson, as general manager of the public baths, a written report, in the following terms]—‘Board school boys had large pond to-day. Right away at 10 o'clock 20 lads came in. Our head bathman was at the door to control them, and asked them to take dressing-boxes in rotation, but Mr Beaton interfered, and shouted to the boys, “Spread yourselves, lads,” with the result that 20 boys were all over the place, and he had disorder at the very start of the day. At 12·45 he left the building, and left behind him in the pond room 4 lads from Gorbals School. You remember in June last Miss Beaton did the same thing, with the result that a girl was nearly drowned. Mr Beaton left at 4 o'clock, 45 minutes after the time, and left behind him in the pond room 12 boys from Camden Street School. In short, it looks like a repeat of last summer's performance, as Mr Beaton is allowing or winking at all regulations, and playing on his position as instructor, and if he is allowed to go on as he has begun, I must be freed of all reponsibility as to the conduct of the place.’ The said letter was handed by the said Robert A. Murray to the said William Thomson for dispatch by him, and he approved of it, and forwarded it to the said Clerk of the Glasgow School Board. [The said report was forwarded by the said William Thomson in the execution of his duty as general manager of the public baths to the Clerk of the Glasgow School Board, who employed the pursuer as swimming instructor, as before mentioned, and particularly employed him to teach swimming at the Gorbals Baths.] The statements in the said letter [report] are of and concerning the pursuer, and they are false, and were intended to prejudice the pursuer, and otherwise to damage him in the eyes of the Glasgow School Board, with the view of bringing about his dismissal from their employment. In point of fact, the proper time for leaving the baths was 4 o'clock. The statements contained in said letter [report] are slanderous, and the said Robert A. Murray in writing and handing over the same, and the said William Thomson in dispatching the same, represented, and intended to represent, that the pursuer had been guilty of such reckless conduct as to endanger the lives of the boys under his charge, and was also guilty of contravention of the said bye-laws, and of continued misconduct in and misuse of his position as an instructor, and was unfit to occupy the position and discharge the duties of a swimming instructor. The said Robert A. Murray and William Thomson were aware of the falsity of the charge, but nevertheless maliciously, and without probable or any cause, preferred it against the pursuer, with the object of persuading the said School Board to dismiss him from their employment, which in consequence thereof, and of the illegal actings of the defenders afterwards condescended on, they did. In writing and dispatching the said letter [report] the said Robert A. Murray and William Thomson acted within the scope of their authority from the defenders, and in the discharge of their duties as servants of the defenders, and in the supposed furtherance of the interests of the defenders.” The defenders pleaded, inter alia—“(1) The averments of the pursuer being irrelevant and insufficient in law to support the conclusions of the summons, the action should be dismissed. (7) The defenders not being responsible for any actings of their said servants outwith the scope of their duties and authority, are not liable for the loss or damage, if any, thereby caused to the pursuer.”
On 19th March 1908 the Lord Ordinary ( Mackenzie) allowed the parties a proof of their averments other than the averments relating to the question of slander.
Opinion.—[ After dealing with other grounds of action on which the case is not reported]—… “As regards the alleged slander, the averments upon this point are contained in Cond. 7 as amended. I do not doubt that the statements contained in the report by Robert A. Murray, the Superintendent of the Gorbal Baths, which he delivered to William Thomson, as general manager of the public baths, are capable of being innuendoed as set out in Cond. 7. The consequence to the pursuer was serious according to this averment, as he says in consequence of its dispatch to the School Board they dismissed him from his post of swimming instructor. The question, however, is whether the defenders can be sued by the pursuer in respect of what Murray and Thomson did. This question has come up in the recent cases of Ellis v. The National Free Labour Association, 1905, 7 F. 629; and Agnew v. The British Legal Life Assurance Company, 1906, 8 F. 422. The question is whether there is any prima facie case that Thomson was acting within the scope of his authority in sending this report to the School Board. In my opinion no such case has been averred. I am quite unable to see that Thomson had any authority or duty to do anything in the matter but report to his committee. Accordingly I am of opinion that the pursuer is not entitled to sue the defenders for damages for slander.…”
The pursuer reclaimed, and argued—(1) The report was capable of bearing the innuendo put upon it; the charges made therein were similar to those in M'Kerchar v. Cameron, January 19, 1892, 19 R. 383, 29 S.L.R. 320; M'Bride v. Williams and Dalzell, January 28, 1869, 7 Macph. 427, 6 S.L.R. 273; A B v. C D, November 1, 1904, 7 F. 22, 42 S.L.R. 37. (2) A corporation was liable for slanderous statements written by its servant in the course of his employment, even though that servant had no actual authority, express or implied, to make the statements complained of— Citizen Life Assurance Co., Limited v. Brown, [1904] AC 423, referred to with approval in Ellis ( cit. infra), and Mackenzie ( cit. infra). Prima facie on the pursuer's averments, Thomson in forwarding the report was acting within the scope of his employment. The pursuer should be given an opportunity of proving his contention to that effect, as was given in
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Ellis v. National Free Labour Association, May 12, 1905, 7 F. 629, 42 S.L.R. 495, and in Mackenzie v. Cluny Hill Hydropathic Co., Limited, 1908, S.C. 200, 45 S.L.R. 139. It was impossible to say without inquiry that Thomson had acted outwith the scope of his employment. The Court did not call upon the defenders (respondents) to reply.
But then, what are the circumstances which are averred? It is averred that the local custodier of a bath belonging to the Glasgow Corporation made a report to his superior, the general manager of the baths department, in which he commented strongly upon the conduct of the pursuer, and I will assume that the statements therein were slanderous and untrue. But none the less it was a report. Well, the general manager of the baths department then, according to the averment, sends this report, which was made to him to an outside party—the Glasgow School Board—who by that means became cognisant of these slanderous statements. Upon that the pursuer sues, not the sender of the letter, but the Glasgow Corporation.
Now it is true that it has recently been held, and I think rightly held, that a corporation may be liable for slander. It was not an easy result to arrive at, and I may remind your Lordships that there was one very eminent Judge (Lord Bramwell) who resisted it with might and main. But at anyrate it has been allowed, but I think it has been allowed within very narrow limits. And one necessary limit is that the person who is guilty of the slander or libel—a corporation, of course, is a being that cannot act by itself, and cannot act except by agents—must be acting within the scope of his authority. Now it is quite true, of course, that what is the scope of authority is a question of fact. But then none the less it is a question of fact which allows of immediate determination when you set forth the particular position that a person is in, unless you can make special averments of authority given. To illustrate my meaning, it is quite obvious that whereas the secretary of the corporation, who is the natural mouthpiece of the corporation, may be understood to have a very general authority, and therefore that the corporation may have to prove that he acted outside the scope of his authority in doing any particular thing, that could not possibly be said of the office-boy. If you suppose that the office-boy had written the letter which the secretary wrote in the Citizens' Life Insurance Co. v. Brown, [1904] AC 423, I take it that there would have been no case, unless of course you could make a special averment that by a mandate of the directors of the corporation—the governing body—this particular office-boy had been given these powers.
Now that is the first ground upon which these averments fail, and that is the ground on which the Lord Ordinary has gone. The general manager of the baths department is toto coelo removed from being the general manager or the secretary of the Glasgow Corporation. He is not the person who generally makes communications on behalf of the Glasgow Corporation, and therefore I think that when you merely table the person who wrote the letter as the general manager of the baths department you put yourself out of Court, unless you can add a special averment that he had been given special powers to make communications of this sort. Well, no such special averment is made, and therefore I do not think there is any ground for the contention which was very well urged by the counsel for the reclaimer, the contention, namely, that authority being a question of fact you ought not to determine it until the facts were known. That is quite true, but at the same time you must have a proper averment of the facts before you are allowed to go to proof upon the general issue.
But then there is another objection which is not noticed by the Lord Ordinary, but which to my mind is quite conclusive. This so-called slanderous document is a report and nothing else, and the province of a report is that it is confidential and is meant to be communicated to the superior officers to whom the report is made. If accordingly we find upon the facts averred that the report, instead of being communicated to any superior officer, was sent away to an outsider by the action of a servant, I think that shows, on the face of it, that the servant was not acting within the scope of his authority, but was going outside it—in the absence, of course, of any averment which would show that this particular act was within the instructions that had been given.
I think, therefore, that upon the pursuer's own showing, when he says that the general superintendent of the baths communicated the report he had got from his inferior officer, not to the town council but to an absolutely outside body (the Glasgow School Board), that shows that he was acting outside the scope of his authority. Therefore upon both these grounds I hold the result at which the Lord Ordinary has arrived is perfectly right.
I assume with your Lordship that the words complained of might bear an innuendo. But I must say I have the greatest doubt, to put it no further, whether they can possibly bear the only innuendo which the pursuer desires to put upon them. How
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The Court adhered.
Counsel for the Pursuer (Reclaimer)— George Watt, K.C.— J. G. Robertson. Agent— D. Maclean, Solicitor.
Counsel for the Defenders (Respondents)— T. B. Morison, K.C.— M. P. Fraser— Crawford. Agents— Campbell & Smith, S.S.C.