FULL DAMAGES

Southland Times, Issue 21847, 26 October 1932, Page 7

FULL DAMAGES

TEACHER SUCCEEDS ACTION AGAINST PARENT “AMPLE MALICE” Holding that statements published in letters written by a parent when complaining of the treatment of his son by a school teacher were both false and malicious, Mr E. C. Levvey S.M., in the Magistrate’s Court last night, gave judgment for £5O (the full amount claimed) in favour of the plaintiff, William Whittingham, of Fortrose, schoolmaster (Mr B. W. Hewat), who, contending that his credit and reputation had been injured by such publication, sought to recover such sum as damages from Charles Christie, of Fortrose, farmer (Mr Gordon J. Reed). The case was first heard on the 19th inst. and, after lengthy evidence had been tendered, the hearing was adjourned until yesterday, when further testimony was given, and, in the evening, counsel addressed his Worship, who, at the conclusion of argument at 10 p.m., gave his judgment. Plaintiff, in his statement of claim, had set out that he had been for a considerable time the head teacher of the Fortrose School and that the defendant was a householder in the school district and the father of a boy of school age who was a pupil for four days, namely, on March 30 and 31 and on April 1 and 4, 1932. On June 8, 1932, the defendant falsely and maliciously published to the secretary of the Southland Education Board in a letter written by the defendant to such secretary the following words:— “I am in receipt of your complaint regarding the non-attendance of my boy at school and in reply have to state that he has not been very well lately partly due to the brutal treatment of the Fortrose teacher where he attended for a short time . . . But neither threats nor fines will ever make me send him to school taught by one such as there is at Fortrose at present. I am going to do my best to have him removed in the interest of the whole school. There is scarcely a parent whose children are attending school that has not been nearly fighting with him about his brutal treatment .... I believe that at least two children have been confined to bed and had to get medical treatment as a result of his abuse.” The statement of claim had further set out that on June 16, 1932, the defendant falsely and maliciously published to the secretary of the Fortrose School Committee in a letter the following words: “I hereby beg to inform you that my boy lan has been punched and terrorized by the teacher of the school.” The plaintiff said that by the publication of the said words he had been injured in his credit and reputation and had suffered damages wherefore he claimed £5O as damages. The defendant, Charles Christie, who had just completed his evidence in chief when the Court rose at the conclusion of the first day’s hearing, entered the box for cross-examination.

In reply to Mr Hewat, witness said that his son had never had any trouble with a teacher when at the Middle School. He left Waimahaka School because he was not well. A doctor was not consulted until later. Witness had never been involved in libel actions before, nor had he been asked to apologize for any other letters he had written. It was untrue to say the boy was not under control. He was very easily managed—indeed, pliable almost to a fault. He went back to see Whittingham when the lad left Fortrose School for Waimahaka. No complaint was made at that time regarding any alleged ill-treatment. The first complaint voiced was when he spoke to Mr Golden as chairman of the School Committee. The letters had been written in reply to an inquiry from the Truant officer as to why the boy had been absent from school. Witness believed that only four of eleven parents had not complained of the treatment of the children by Whittingham. He refused to publish an apology when asked to do so by the plaintiff’s solicitors. Re-examined by Mr Reed: He still was of the opinion that the boy had been terrorized by Whittingham. He did not complain to the teacher when the books were collected by him (witness) because there were children around at the time and, besides that, they (Mr and Mrs Christie) had made up their minds at that time to remove the boy from the school. George Brown Lawson, a labourer at Fortrose, gave evidence that he had four children at the school. He had had trouble with Whittingham through his being “a bit hard” on them. Witness went to see the teacher and accused him of being rough with the children but he denied the accusation. Witness took one of the girls to the Southland Hospital. To Mr Hewat: The doctor said that he thought the girl’s headaches were caused by her eyes, but a test had disclosed that the eyes were not defective. The girl was off her food and witness thought the teacher’s treatment may have been responsible. Whittingham had treated the pupils quite all right for some time past. The Boy’s Story. Charles lan Christie, aged 12, said that he had not got on very well with Whittingham while at Fortrose. When he went there from North School he was unaccustomed to the new work for there was a difference in the marking system. The teacher said he was not correcting the lessons rightly and hit him on the last of the four days (Monday) that he was at the school. Whittingham hit him pretty hard with his hand on the back of his head several times. That was the only occasion when punishment was inflicted. Witness, while at the school, saw both other boys and girls hit by being punched and knocked against the wall. He saw only one boy banged against the wall. He did not return to school on the Tuesday as he was frightened of the teacher and his parents allowed him to stay at home. His Worship: Frightened of what? Witness: Of his hitting me. Would vou rather have had the strap?—Yes, sir. To Mr Hewat: He had had no trouble at the school with other boys. He had not been to school since he left Waimahaka. He was punished on the Monday because he had marked certain wrong answers as if they were correct. He did not understand the right method of marking. He did not like going to Waimahaka School, so his parents said he could stay at home. His Worship: Are you the baby of the family? Witness: Yes. James Soar, headmaster at the North Invercargill School, gave evidence that the mentality of the previous witness was -above the average and his behaviour beyond reproach. Witness would certainly not agree with Whittingham’s opinion that the boy was sub-normal. To Mr Hewat: He taught the boy occasionally at North School. The attendance of the pupil was good at that school. Another pupil at the Fortrose School named Frances Mary Lawson, aged 14, said that she had never seen young Christie hit by the teacher. She, herself, had been hit by Whittingham with his knuckles on her shoulders. Some-

times the blows were hard and sometimes she cried. He used to hit other pupils, too, in a like manner. The smaller children were struck with the flat of his hand on the back. When her mother saw she was marked on the shoulder, she (witness) was taken to the hospital doctor. To his Worship: She had felt sick but it had nothing to do with the hit on the shoulder. To Mr Hewat: She was not taken to the doctor as soon as she stopped going to school. “Begged Not to be Sent Back.” Kate Neileen Christie, wife of the defendant, said that her boy returned home crying from school on the Monday. She kept him at home on the Tuesday because Whittingham had been hitting him and the lad was frightened. She wrote the letter (produced) as a warning to the teacher. On the following . Saturday Whittingham called to see her to inquire why lan had not been at school. She replied that he (Whittingham) should know as it was because he had hit the boy. This was denied though he admitted giving lan a few taps on the shoulder when remonstrating with him. The plaintiff spoke of the lax discipline at the school and said he had to be strict to improve such a state of affairs. Whittingham asked would she send lan back and she replied she could not do so without consulting Mr Christie. The matter was discussed between Mr Christie and herself and they talked the position over with the boy. As soon as lan heard the suggestion he became ill and went to bed in a highly nervous state and begged not to be sent back as he was too frightened. The boy was not a strong one and the nervous symptoms were alarming. Witness kept the boy at home and then sent him to Waimahaka but he was still unwell and had to leave. The boy had never had any trouble with his previous teachers of whom he spoke very well. To Mr Hewat: It was utterly ridiculous to suggest that the boy was out of control. There had been no trouble up to the Monday morning though the bov had seemed very frightened. Jessie Christie, a sister of the defendant, who was in charge of the boy at Fortrose before his parents came to settle there, gave evidence regarding his being frightened of Whittingham during the first three days he attended the school. Witness also corroborated, in the main, the evidence of the previous witness. This concluded all the evidence and, at 5.30 p.m., the Court adjourned until 7.15 p.m.

Case for the Defence. In addressing the Court, Mr Reed said that the defence would plead (1) justification or, in the alternative, (2) qualified privilege. Counsel emphasized that there was evidence that the boy Christie was still somewhat unwell and it was contended that such was due to his ill treatment at the hands of the plaintiff. It was significant that the boy, after only four days at the school, had been so terrorized of Whittingham that he would not return. Whether there was good reason for such fear might be questionable, but that was the position. Why was there no complaint about the boy’s school work in the past? queried Mr Reed. There was ample evidence to show that the lad had been terrorized in the past. “Why did the children make suggestions that they were hit by the master if he was as tender-hearted as he makes out? We say that the substance of our allegations has been proved. If, however, the Court is against me on the question of justification, then I am thrown back upon the alternative plea of qualified privilege.” Dealing with that aspect, counsel submitted that the statements complained of were made by one having an interest therein to one having a duty and therefore came under the heading of qualified privilege. The defendant was entitled to comment on the actions of the teacher to the body in control and it was apparent that he was unable to obtain justice either from the Southland Education Board or the school committee. Anticipating the contention of the plaintiff that the defendant was actuated by express malice, Mr Reed emphasized that the burden of proof rested upon Whittingham. Mere faleshood did not amount to bad faith nor did mere carelessness. The test was whether the defendant actually and honestly believed the statements made to be true. If he did, then it mattered not that he did not investigate their truth. Counsel, in conclusion, reviewed at length the circumstances which prompted the publication of the statements, and contended that there was no evidence of malice proven to entitle the plaintiff to damages. Reply by Plaintiff’s Counsel. In reply, Mr Hewat argued that the defendant could not be permitted to now come before the Court and say that he did not mean the wording of the letters in the language in which it was written. With reference to the statements regarding Christie’s own boy there was really no evidence except that of the lad himself and even his testimony did not substantiate the allegations of ill-treatment. It was, moreover, clear from the evidence given by various parents that Christie’s statement was incorrect when he wrote that there was scarcely a parent whose children were attending the school that had not been nearly fighting with Whittingham about his treatment of the pupils. Even the boy had refused to go so far as to say that he had been punched by the teacher. It was significant, added counsel, that the very parents who were alleged by the defendant to have been nearly fighting with Whittingham were the very ones who had requested the Education Board to allow him to remain until the end of the year. What better testimonial could have been given? Counsel, referring to the question of privilege, said he was not at all prepared to admit the statements were protected by the doctrine of qualified privilege. The defendant had admitted in the witness box that had not the truant inspector been sent on his trail he would never have written the letters. That, submitted counsel, was the key to the difficulty. Christie seemed to have been actuated by complex motives, the most obvious one of which appeared to be that, faced with a request for an explanation from the inspector, he must rid himself of the truancy question, and he believed that that end would be best attained by making the complaint against the teacher. Such a motive placed the letter in quite a different category to a complaint made under ordinary circumstances. The defendant, urged counsel, had abused his privilege by the language of his letter. There was, for instance, no occasion for the adjective “brutal” before “treatment,” especially as the letter was written two months or so after the actual occurrence, when, by then the defendant should have “cooled down” his wrath. If the motive had been a genuine desire to benefit the school, then, submitted Mr Hewat, the letter would have been written many weeks before. The letter was prompted by ulterior motives not connected with the teacher at all, emphasized counsel in conclusion.

Verdict for Whittingham. In giving judgment, his Worship, after both stating that the statements in question w'ere obviously defamatory per se and reviewing the facts in issue, said that the defence had pleaded, firstly, justification and, secondly, that the statements were protected by such qualified privilege as to render the writer’ immune from attack. “I shall say at the very start that the plea of justification has absolutely failed,” continued the Magistrate. “Regarding the plea of qualified privilege, however, the position becomes rather more intense and technical. If we assume that the

plea be admitted, it can then be set aside only by the plaintiff proving, and satisfactorily proving, that the defendant was actuated by such malice as to remove him from the protection which he would otherwise enjoy. I have no hesitation in finding that there is evidence of ample malice, both in law and in fact, and the only question is that of damages. In a matter of this kind the issues at stake, particularly to a schoolmaster at the present time, are very, very grave and very, very severe. The claim is a particularly modest one and I shall award full damages and costs.”