Scottish Court of Session Decisions

The pursuer in this action, which was raised in the Sheriff Court at Aberdeen, was George Keith, an engineer, who had for some time been employed on board fish-trawling vessels. Thomas Lauder, the defender, was the manager of the Aber-deen Icelandic Steam Fishing Company, Limited. For about a fortnight prior to 30th September 1904 the pursuer had been employed as chief engineer on board the steam trawler “Princess Melton,” which belonged to the said Steam Pishing Company, but on that date he left the “Princess Melton” and refused to go to sea, in consequence of which she was delayed in harbour for more than a day.

The Icelandic Steam Fishing Company, Limited, was a member of the Aberdeen Steam Fishing Vessels Owner’ Association, Limited, which company was formed in 1902 for the purpose, inter alia, of “collecting and circulating statistics and other information relating to the fishing or shipping industries or any trade or business connected therewith.” The Association, in November 1903, had resolved that its members should report men who being engaged to go to sea should absent themselves or refuse to go to sea or come on board in a state of intoxication, and that a list of the men so reported should be kept for the information of all its members; the list so kept was called the “Register of Defaulting Crews.” On these reports the secretary of the Association, if he did not think the matter too trivial, sent out circular letters to its members, about 15 or 20 in number, informing them of those reported to it, but no penalty attached to an owner choosing to employ a seaman so reported, and sometimes he did so.

The pursuer admitted that on 30th September 1904 he left the “Princess Melton” when she was about to sail for the fishing ground, but maintained that he was justified in so doing because certain defects in the machinery of which he had previously complained had not been put right. But it appeared from the evidence that these repairs were not serious and could have easily been repaired temporarily. It further appeared that although the pursuer knew at 11 o'clock in the forenoon that the repairs were not to be made until another trip, he had remained about the ship until the afternoon, when he went on shore for a pint of beer, and that it was only on his return on board after being sent for that he refused to go to sea. (For a fuller account of the evidence on this matter vide Lord Low's opinion, infra.) The pursuer further himself admitted he was under the influence of drink at the time but denied that he was drunk.

On Monday, 3rd. October, the defender met the secretary of the Owners’ Association, Paul, and a Mr Doeg, a member of the Association, and told them about the pursuer's conduct of 30th September. Doeg expressed the opinion that the matter should be reported. The defender then asked his superintendent engineer Walker to report the matter to the superintendent porter at the fish market. Smith, who, subject to the secretary's instructions, kept the register of defaulters. Walker however forgot to do so.

On 6th October the pursuer raised an action in the Small Debt Court for arrears of wages against the Aberdeen Icelandic

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Steam Fishing Company, Limited, in which action he was successful. On 10th October the defender learnt that the report had not been made by Walker, and on that day went along with him to Smith, and made a verbal report, in consequence of which the following entry was put in the Register of Defaulting Crews.

The same day the Secretary of the Owners’ Association sent the following circular letter to the members.

“Private.

“ Aberden Steam Fishing Vessels Owners Association Limited.

Fish Market Buildings,

Aberdeen, 10 th October 1904.

Dear Sir,—Please note that the undermentioned have been reported to this Association, and you are requested to refrain from shipping them meantime.—Yours truly, Geo. F. Paul.

Name. Occupation. Last Vessel.

George Keith. 1st Engineer. ‘ Princess Melton.’

…”The pursuer averred that in consequence of the report which caused said entry to be made and said letter to be sent, he had lost a situation which he had obtained as engineer on board the steam trawler “Craig-gowan,” a vessel belonging to the Aberdeen Steam Trawling and Fishing Company, Limited. He also averred that as a consequence of the report he had been prevented from obtaining other employment.

The defender denied that it was in consequence of the report, or even of the said entry and said letter, that pursuer had lost his situation, and explained that it was because the trip for which he had been engaged was finished, and because the superintendent of that company had discovered pursuer had been previously dismissed from one of said company's ships, and so did not choose to re-engage him. He also denied the averments that in consequence of the report the pursuer had been prevented from obtaining other employment.

The pursuer pleaded—“(1) The defender having wrongfully and maliciously procured the pursuer's discharge from employment and prevented him from obtaining employment, is liable to the pursuer in reparation as craved.”

On 5th April 1905 the Sheriff-Substitute ( Henderson Begg), after a proof, made, inter alia, the following findings in fact—“(5) That on the said 30th September 1904, about four o'clock in the afternoon, the pursuer refused to go to sea with the said steam trawler, on the ground that certain repairs, which he had mentioned to Mr W. Walker, the superintendent engineer of the said company, about 8 a.m. of the said day, and which he deemed necessary, had not been made to the engines.… (11) That the defender reported to Mr G. F. Paul, the secretary of the foresaid Owners’ Association, that the pursuer had been drunk and had refused to go to sea on the said 30th September 1904, and thereby procured the said secretary, without making inquiries on both sides, to send the circular letter on 10th October 1904 to each member of the said Owners' Association, stating that the pursuer had been reported to the Association, and requesting each member to refrain from shipping the pursuer meantime; (12) That on 17th October 1904 the pursuer, who had obtained employment on board the steam trawler ‘ Craiggowan,’ belonging to the Aberdeen Steam Trawling Company, Limited, a member of the said Owners’ Association, was dismissed without notice by Mr Joseph Lamb, the superintendent engineer of the said company.… (15) That it is not sufficiently proved that the said dismissal was caused by the actings of the defender mentioned in the eleventh finding hereof; but (16) That the failure of the pursuer to find employment since 17th October 1904 has been caused mainly, if not wholly, by the said actings of the defender; and (17) That the defender has thus caused pecuniary loss and damage to the pursuer.” The Sheriff-Substituteheld that the whole system of the Register of Defaulting Crews was illegal, on the ground that “it establishes a secret tribunal, consisting practically of only one person—the secretary of the Association—with power to punish a man unheard for an alleged offence by taking the means whereby he lives.” But that even if the system were not illegal, that the defender must prove that he was justified in acting as he did, which he had failed to do, and that the charge of drunkenness was unfounded, that the actings of the defender were wrongful, not justified, and not privileged, and that he was liable in damages to the pursuer, which he assessed at £50.

The defender appealed to the Court of Session.

During the debate upon the appeal the pursuer was allowed to amend his record by adding the following condescendence—“(Cond. 7) On or about 10th October 1904 the defender falsely, maliciously, and calumniously caused the name of the pursuer to be reported to the said Association, and to be inserted in a register kept on behalf of the members of the said Association by John Smith, fish porters’ superintendent, Fishmarket, Aberdeen, as a person accused of being drunk and refusing to proceed with his said vessel. The defender in so reporting the pursuer and in getting his name inserted in the said register as a person so accused, knew that his said accusation was false and groundless. The insertion of the pursuer's name in the said register was intended by the defender to represent, and did represent, that the pursuer was an unreliable and untrustworthy engineer, unfit to be employed as such owing to his drunken habits, and to his habitually detaining vessels on which he had been engaged, by deliberately refusing to proceed with them to sea without good cause or on

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false pretexts. The defender knew that the pursuer by being so reported and entered in the said register would be treated as he represented him by members of the said Association, and by employers of men in the position of the pursuer. The defender acted with that object in view, and for the sole purpose of having the pursuer prevented from getting employment as an engineer.” The defender's answer to this was “Denied.”

The pursuer was also allowed to add the following plea-in-law—“The defender having falsely, maliciously, and calumniously slandered the pursuer, as condescended on, and the pursuer by such means having been prevented from getting employment, the pursuer is entitled to damages as concluded for.”

The defender (appellant) argued—(1) The system of the Register of Defaulting Crews was not illegal, and the Sheriff had erred— Mogul Steamship Company, Limited v. M'Gregor, Son, & Company, [1892] AC 25, Lord Watson at p. 41; Scottish Co-operative Wholesale Society, Limited v. Glasgow Fleshers' Trade Defence Association and Others, January 14,1898, 35 S.L.R. 645; and Quinn v. Leathem, [1901] AC 495, which expressly approved of the last-named case. (The respondent here admitted the legality of the register.) The defender here argued that in Allen v. Flood, [1898] AC 1, Lord Watson had summed up the law on this subject when he said at p. 96—“There are in my opinion two grounds only upon which a person procuring the act of another can be made legally responsible for its consequences. In the first place, he will incur liability if he knowingly, and for his own ends, induces that other person to commit an actionable wrong. In the second place, when the act induced is within the right of the immediate actor, and is therefore not wrongful in so far as he is concerned, it may yet be to the detriment of a third party, and in that case … the inducer may be held liable if he can be shown to have procured his object by the use of illegal means directed against that third party.” The first ground had been relevantly set out on record, and the Sheriff had proceeded on it; it was now, however, given up. The second ground figured by Lord Watson, of which the most recent example was South Wales Miner’ Federation v. Glamorgan Coal Company, Limited, [1905] AC 239, was not relevantly set out on record. If pursuer's case now were that the defender by illegal means induced trawl owners to deny employment to the pursuer, or that damages were due for a slander which had had the result of stopping his employment, the pursuer would require to amend his record, for there was no averment of the falsehood of the statements made. [The pursuer was allowed to amend his record as set forth above.] (2) The said Owners’ Association and its objects being legal, the bona fide statements of members for the use of other members were privileged because of the conjunction of interest between the giver and receivers of information— Waller v. Loch, 1881, L.R., 7 Q.B.D. 619. Even if the information was given unasked, there was privilege if there was a right to give it— Farquhar v. Neish, March 19, 1890, 17 R. 716, 27 S.L.R. 549. It was true that doubts were cast on this in the case of Reid v. Moore, May 18, 1893, 20 R. 712, by Lord Trayner, at p. 717, 30 S.L.R. 628, but in the present case the statements complained of were not ultroneous, because such information was an object of the Owners’ the following condescendenc Association, and accordingly frprn the fact of membership of the Association there arose a duty or obligation to make the communication a duty self-imposed no doubt by the members of the Association, but still a duty. Where there was a duty to make a statement there was privilege— Pattison v. Jones (1828), 8 B. & C. 578; even if the duty was only a moral or social duty —Toogood v. Spyring, (1834) 1 0. M. & R. 181; Davies v Snead, (1870) L.R. 5 Q.B. 608. The furnishing of such information being an object of the Association there existed really a continuing request from each of its members to the others for such information, and consequently such information was privileged— Bayne & Thomson v. Stubbs, Limited, January 29, 1901, 3 F. 408, 38 S.L.R. 308. The statement accordingly was privileged, and the onus was on the pursuer to show actual malice, or that statements were made without probable cause—in fact were so destitute of foundation as to exclude bona fides. But none of the witnesses—not even the pursuer himself—said that he was sober. (3) Even if there was no privilege, and the onus was on the defender to show the truth of his statement, the evidence was sufficient to show that the man was drunk. (4) Even if there was an actionable wrong the damage shown must be direct. Here the pursuer only at most applied to two people for work (one of them denied it), but at any rate neither had work to give him; this distinquished the case from Giblan v. Labourers’ Inion of Great Britain and Ireland, [1903] 2 KB 600.

The pursuer (respondent) argued—(1) willing to do, that in itself the system of the Register of Defaulting Crews was legal, the pursuer was now out of employment and had failed to get employment owing to the illegal actings of the defender, namely, his misrepresentation or slander; and this constituted an actionable wrong— Mogul Steamship Company; Allen v. Flood; Parlane v. Templeton and Others, November 14, 1896, 34 S.L.R. 234. (2) The pursuer was not to blame that no allegation of misrepresentation—and slander was in the record, for the terms of the report embodied in the entry had only been recovered by diligence after the record was closed; the whole facts were before the Court, and though the pleadings were bad the record should be allowed to be amended— Muirhead & Turnbull v. Dickson, June 1, 1905, 7 F. 686, at 692, 42 S.L.R. at 581. [ The amendments as above set forth were allowed to be made.] (3) The evidence

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showed that reports were only to be made in the case of habitual offenders, which the pursuer was not. There was therefore no duty on the defender to report him, and the report was not privileged. In any case privilege was a question of degree — Macdonald v. M'Coll, July 18, 1901, 3 F. 1082, 38 S.L.R. 781, which approved of Sheriff v. Denholm, December 18, 1897, 5 S.L.T. No. 309. Farquhar, supra, was to be explained because of the right of keepers of registers to know their client's disabilities. (4) In any event malice was shown in the evidence, for the pursuer's whole actings were consistent with the view that the reason he refused to go to sea was because the necessary repairs had not been made, and the evidence showed that the charge of drunkenness was unfounded. An unfounded charge of drunkenness showed malice— Anderson v. Wishart, 13th July, 1818, 1 Mur. 429, at 441. The report was made after the summons in the small debt action was served. The very fact that veritas was still put forward was in itself an indicium of malice— Praed v. Graham, 1889, 24 QBD 53. The defence of “probable cause” was inapplicable to the present case— Milne v. Smiths, November 23, 1892, 20 R. 95, Lord M'Laren at p. 100, 30 S.L.R. 105. (5) Even if the report were true, veritas was no defence to an accusation used for the purpose of preventing a person obtaining employment— Giblan, supra, [1903] 2 KB 600, at 624.

Atadvising—