017-NLR-NLR-V-22-LIVERA-v.-PUGH.pdf
( *69 )
Present: Bertram C. J. and De Sampayo J.
LIVERA v. PUGH.356—D. 0. Colombo, 52,557.
Defamation—Privilege.
Excessive language used in communications which are privilegeddoes not of itself destroy the privilege.
f | HI facts are set out in the judgment of the learned DistrictJudge (W. Wadsworth, Esq.):—
This is a claim for damages for defamation arising in tile followingcircumstances:—
The plaintiff is an inspector of sub-agents employed by the NationalMutual Life Association of Australasia, Ltd., and the defendant is themanager in Ceylon of the China Mutual Life Insurance Company, Ltd.
In January last defendant was informed that plaintiff had told oneMr. Jansen that defendant’s company, the China Mutual, was a “ bloody,rotten company,” that defendant was not the manager of the ChinaMutual, and that defendant had no power to issue interim policies.
The defendant thereupon reported the matter to plaintiff’s superiors,first by telephone and then by letters. The defamation complained ofis said to be contained in these letters, and plaintiff claims the sum ofRs. 5,000 as damages.
The defendant pleaded that the communications to plaintiff’ssuperiors were privileged, and that he did not falsely or maliciously orwith intent to injure the plaintiff make the communications.
At the trial the following issues were agreed upon:—
Were the-communications made by defendant to tho plaintiffs
employers in defendant’s letters dated January 23 and 26, 1919,privileged ?
Did the defendant write and publish the statements referred tomaliciously and with intent to injure the plaintiff 1
What damages, if any, is plaintiff entitled ?
The case is a very simple one. The law is clear on the subject. Ifa statement defamatory per se is published of the plaintiff on an occasionwhich is privileged, not in an absolute but in a qualified sense, thedefendant may set up a defence' of qualified privilege. It is for. thedefendant to establish that the occasion was so privileged. If he doesso, the burden of showing actual malice rests upon the plaintiff.; and ifthis is shown, communications made even on a privileged occasion canno longer be regarded as privileged communications. If defendant doegnot satisfy the Court that the occasion was privileged, the plaintiff ignot called upon to prove actual malice, as the law implies it from thestatement, which is per se defamatory. There is very little differencebetween the English law and the Roman-Dutch law on the subject-.
At the trial I ruled that the burden of proof as to the privilegedoccasion was on defendant, and directed that he should begin.
1920.
An occasion is privileged where the person who makes a communi-cation has an interest or a duty (legal, moral, or Social, of porfeot orimperfect obligation) to make it to the person to whom ho does make it,and the person to whom he does make it has a cbrro ponding interestor duty to receive it. Hunt 1>. Great N; R, Co,1There are several leading cases on the subject in the English law,and in Ceylon the same principle of law applies, and is fully Rot forthin the Judgment of Shaw J. in the recent case of Qulich v. OrientThere is no dispute here as to the occasion when the communicationswere made, I have no difficulty in finding that the occasion wasprivileged. I aocept the defendant’s evidence that there is a code ofhonour that one insurance company or its agents or employees shouldnot speak ill of another company, one of the reasons being that ifinsurance companies are run down, it will make people nervous regardinginsurance generally. I also aocept defendant’s statement that if anemployee, of any other insurance company had spoken ill of his (defend-ant's) company, it was a duty he owed that other company to reportthe matter to them. The plaintiff himself stated that if the state-ments attributed to him in this matter were made of his companyby any canvasser of any other oompany he would have reported thomatter to that canvasser’s superior officer. Plaintiff also stated thatif defendant honestly believed that the statements attributed to himwere made by him, defendant would be in order in writing to his superiorofficers. Mr. Burton, secretary of the National Mutual, to whomdefendant had made the communications complained of, stated inevidence that it was the duty of the manager of the China Mutual toreport any maligning of his company by any of his (witness’) employees.In fact, in orie of his letters to plaintiff, Mr. Burton states that theiremployees, not only had no authority to malign oompeting companies,but that all were specially warned to be careful in all their references toother companies, and were forbidden to make false statements aboutthem. Mr. Burton also stated in evidence that plaintiff was well awareof these instructions, and that it was parb of plaintiff’s duty to see thatthe canvassers followed these instructions.
It is thus quite clear that defendant had both an interost and a dutyto make the communications to the plaintiff’s employers or superiorofficers, and that the latter had a corresponding interest or duty toreceive them. The occasion on which the communications were madeis, therefore, privileged.
To quote the words of Shaw J. in Qulich v. Green3 above referred to:“ Where, therefore, the occasion is privileged under both systems (thoRoman-Dutch and the English), the presumption of malioe or animusinjuriandi is rebutted, and it lies upon the plaintiff to prove actualmalice, and tliis is not done by merely proving the words to have beenuntrue, or even that the words used were stronger than the occasionrequired. It is necessary to show that the state of the mind of thedefendant was malicious*” Continuing, His Lordship said, followingthe case of Nevill v. Fine Arts and General Insurance Company,8 that*' the state of mind maybe proved in various ways: by showing personalanimosity on the part of the defendant against the plaintiff; by showingthat the statements made were untrue; by showing that the statementswere so reckless that the plaintiff could have had no bona fide beliefin their truth, and even by the defendant persisting in the truth of thestatements at the trial when he knew of their untruth, but not from themere fact that the words used were too strong.”
t (mi) 2 Q. B. 186.3 (1918) 20 N. L. B. 176.
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The ways mentioned in the above case are not exhaustive. Theremay be other ways too. It is absolutely necessary that plaintiff mustprove act.i tal, or, as it is sometimesexpressed, “express ’*Tnalice. Maliceis a state of mind, and it is for the plaintiff to show that there was thisstate of mind. The evidence led in this oase falls far short of anymalice whatever; on the other hand, all the evidence negatives themalicious state of mind.
The plaintiff and defendant are strangers, except for this incidentthey had nothing whatever to do with each other. There was no personalanimosity at any time on the part of the defendant against the plaintiff.
I b9lieve the evidence of the defendant that he believed that thestatements attributed to plaintiff were, in fact, made by him. Hisinformant was a gentleman of some position and responsibility, and wasa friend of the plaintiff. He honestly believed the information givento him. He did not act recklessly in the matter. In making thecharged against the plaintiff to his employers defendant acted honestly.In fact, the plaintiff himself admitted, in his evidence, that he thoughtdefendant was making an honest charge against him at first in complain-ing to his superiors. So that, whether the statements efbtributed toplaintiff were actually made by him or not, so far as the state of mindof the defendant was concerned, he believed in the truth of the informa-tion given to him, and made the complaint to the proper quarters.
Defendant’s conduct in the matter amply supports his bona Jides.The facts relating hereto may be summarized as follows:—
Mr. J. L. Jansen, an officer in the Ceylon Wharfage Company, insuredin the China Mutual, and he introduced his brother-in-law, Mr. HectorJansen, an electrical engineer in the Colombo Electric Tramways Co.,to the defendant, and the defendant managed to have the latter alsoinsured in the China Mutual. This was in November, 1918.
In January this year defendant was informed by Mr. J. L. Jansenthat plaintiff bad stated something about him and his company toMr. Hector Jansen. Defendant took Mr. J. L. Jansen to Mr. HectorJansen and questioned the- latter. Mr. Hector Jansen told defendantthat plaintiff had stated to him that he was insured in a “bloody, rott^rpcompany,” that defendant had no power to issue interim policies, andthat the defendant was not the manager of the China Mutual. Mr.Hector Jansen also told defendant that he intended to discontinuepaying premiums to the China Mutual. Defendant believed thisinformation. He felt it his duty to report the matter to the NationalMutual authorities. He reported the matter to Mr. Burton by telephone.Though I would be reluctant to attach any probative value to con-versations by telephone, unless the same are confirmed by writingsubsequently, I cun prepared to accept this communication, as it issupported by the evidence both of defendant and of -Mr. Burton.Defendant asked Mr. Burton if he had a person employed in his firmby the name of V. Stanley Livera (plaintiff). Mr. Burton replied yes.Then defendant told Mr. Burton that Iavera was running about sayingthat he (defendant) was not the manager of the China Mutual, thatplaintiff was running down the defendant’s company, and was trying toinduce policy holders to throw up their policies in his company. Defend-ant also told Mr. Burton that his informant was a person named Mr.Jansen. Mr. Barton told defendant he would speak to plaintiff aboutthe matter. Mr. Burton spoke to plaintiff on the subject, and wasapparently satisfied with the explanation given by plaintiff. AlthoughMr. Burton undertook to make inquiries, his inquiry consisted in askingplaintiff what had happened, and on being tojd by plaintiff as to whathad happened he was satisfied.
1920.
Livera v.Pugh
1920.1*
Livera v.Pugh
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Defendant not receiving a reply to his complaint, waited for a fewdays, and sent Mr. Burton the letter D 1, one of the letters complainedof in the plaint:—
Cclombo, January 23, 1919.
Dear Burton,—With reference to my telephone message to youthree days ago, I have not had a line from you regarding the falsestatements made regarding me and the company by your canvasser,Mr. Livera.
Since telephoning you, I have found out that this same canvasser hadsystematically spread the same false reports.
Kindly let me have a reply and oblige.
Yours sincerely,
Edward A. Pugh.
The defendant in making certain definite charges against plaintiff tohis employers, and in giving the name of his informant at the very firstoccasion, and in persisting in the charges by calling attention for a replywhen no reply was sent to him for the telephone complaint, appears tome to have honestly believed in the truth of the charges, and to haveacted bona fide and without any malice in his mind.
Mr. Burton appears to have taken a more serious .view when hereceived the letter from defendant, and must have felt that the defend-ant was in earnest. He consulted his lawyers, and sent the followingletter to defendant (D 2):—
Colombo, January 24, 1919.
Dear Pugh,—I did not answer your telephone message as we do notthink our association was interested.
We, of course, should not allow any of our canvassers to make falsestatements about you or your company, and I have spoken to Mr.Livera, who firmly denies ever having done so.
Please understand that all our canvassers not only have no authorityto malign competitive companies, but all are specially warned to becareful in all their references to other companies, and are forbidden tomake false statements about them.
Yours truly,
'J. Burton.
It may be noted in passing that, though Mr. Burton in his evidenceadmitted that at the time defendant telephoned to him first andcomplained of plaintiff, their company was interested, and that thereason for not replying to the telephone communication was that he wassatisfied with plaintiff’s explanation; still in his letter to defendant heappears tp have put off the defendant by making him to understandthat it was a personal matter between plaintiff and defendant, and thatthe National Mutual was not interested in the matter.
Defendant appears to have felt annoyed at Mr. Burton’s attitude inthe matter, and there is goodreasonfor it. Defendant had complainedabout plaintiff to him as plaintiff’s superior and in the performance ofa duty to the National Mutual and his (defendant’s) interest, and Mr.Burton had undertaken to inquire into the matter. Now defendantis told that the association was not interested in the matter, and thatplaintiff firmly denied ever having made any false statements againstdefendant or his company. Defendant must have naturally expectedfull inquiry into the matter. Mr. Burton’s attitude in the matterprompted defendant to write to plaintiff direct. At the same timedefendant came to know that since his writing to Mr. Burton plaintiffhad called on Mr. Hector Jansen for a letter to the effect that plaintiff
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did not make the statements attributed to him. He understood thatplaintiff had got a letter from Mr. Hector Jansen to be shown to hissuperiors to exonerate him.
This appears to have annoyed defendant more, and he seems to havelost his temper, and he wrote the letter to plaintiff, and another toMr. Burton, and enclosed therein a copy of the letter he wrote to plaintiff.He felt the conduct of plaintiff ought to be reported to his superiorofficer, an '. also felt that these annoyances should be stopped.
The following is the letter defendant sent to plaintiff (D 3):—
January 25, 1919.
Sib,—lx reply to a letter I had written to Mr. Burton regardingcertain defamatory statements that you had made regarding me andmy company, Mr. Burton informs me that you “ firmly ” deny everhaving made such statements. I wish to'inform you that you are ad …. liar, as you are well aware that you have made false state-
ments to your friend, Mr. Jansen, of Messrs. Boustead Brothers, andanother party. You felt so guilty and ashamed of your lies that sincemy last letter to Mr. Burton you called on Mr. Jansen withdrawing thestatements you had made, and this I am in a position to prove.
I am merely writing to warn you that if you continue to lie about meor the company I represent I shall (if I do not take the law into my owniiands and give you what you deserve) take immediate proceedingsagainst you in a Court of law.
Yours faithfully,Edward A. Pugh.
1920.
Invent v.Pugh
A copy of this letter was sent to Mr. Burton with a covering letterthe same day (P 1):—
January 25, 1919.
Dear Bubton,—I received yours of yesterday’s date and note its •contents. I am rather surprised at tone of same. You seem to takethe statement of Mr. Livera as gospel truth, in spite of the fact that Igave you the names of my witnesses. I am enclosing a copy cf a letterI have just written to Sir. Livera. I hope he will give us no occasion to ’take steps against him in a Court of law.
I am glad to say your Kandy representative, since my last letter tohim, has behaved better.
'Ycurs truly,
Edward A. Pugh.
This letter, with the enclosure, is the other letter complained of byplaintiff in the plaint. The letter itself contains no defamatorystatement. The enclosure should be treabsd as part of the letter. Itcontains defamatory matter. Some of the words used are strong.
The defendant admitted that he wrote the letter in a heated moment;and it contained abusive expression. Defendant believed the in-formation given to him that the plaintiff had called his company a“ bloody, rotten company*” and had denied that he did not defame thecompany; in other words, that he did not use the expression. Defend-ant apparently thought the retort courteous, necessary, and guided, as’he -says, by his conscience, used the expression “ d -… liar,” which,
according to him, is a stronger expression to describe plaintiff as abigger liar than the ordinary liar, his notion being that plaintiff inmaking false statements regarding him and his company was a liar, andin denying he made such statements he became a bigger liar or a double
liar. The expression “ d” undoubtedly was intended to be
3*
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1920.
Livera v.Pugh
“ damned/’ This word has lost its original condemnatory significance.It is a slang or vulgar expression now, and very often has no meaning,or at least does not connote anything, and is used by a certain class ofpeople, sometimes by some bett9r class of people too, to express theirsentiments more emphatically. The expression is sometimes used toemphasize even good things. But in this letter it was intended toconvey the feeling of a strong condemnation of the lies believed to havebeen told by tbe plaintiff.
I am not prepared to find in this expression an actual malicious stateof mind in defendant. The expression is certainly vulgar, and is s trong,and is not one to be expected from a gentleman. But if one is justifiedin calling a person a liar, it makes no difference if he is called a liar in acomparative or superlative degree, he is a liar all the same.
Even if an expression is in excessive language, there need not neces-sarily be malice in one’s mind. In NeviU v. Fine Arts, and GeneralInsurance Co. above referred to, Lopes L.J. said : “ Where the excessmerely is that the.statement made with reference to the privilegedoccasion is too strong, the authorities show that such excess may beevidence of actual malice ; but it is not in every case in which the wordsused are somewhat too strong that there is evidence left to the jury ofactual malice.”
In Laughton v. Bishop of Sodar and Man1 it was said: “Someexpressions here used undoubtedly go beyond what was necessary forself-defence ; but it does not therefore follow that they afford malicefor a jury. To submit the language of a privileged communication toa strict scrutiny, and to hold all excess beyond the absolute exigencyof the occasion to be evidence of malice, would in effect greatly limit,if not altogether defeat, that protection which the law throws overprivileged communications.”
In examining the state of mind the Courts must always bear in mindthat the privilege afforded by law is not abused, and the privilege is notturned to license. As I said before, the strong expression used wasintended in a vulgar way to convey an emphatic statement, and wasnot intended to abuse the privilege.
It was contended that defendant’s failure to give the particulars askedfor by the plaintiff in his reply to defendant’s letter is proof of a maliciousstate of mind. In my opinion defendant was justified in treatingplaintiff’s anxiety to got the particulars as a pretence, or, as the defend-ant put it, as “bluff.” Plaintiff already had known what the State-ments tfrere, and to whom they were made. He had, according tothe information plaintiff had, gone to the very informant. Plaintiffmust have been fully aware of the time and place he was said to havemade the statements. The particulars given in the letter of demandsent to defendant on plaintiff’s instructions show that defendant wasjustified in treating plaintiff’s pretended anxiety for particulars in theway he did. The conduct of defendant in treating plaintiff’s letter forparticulars affords no proof of any malicious state of mind in defendant.
A large body of evidence was led as to whether plaintiff made thestatements attributed to him to Mr. Hector Jansen or not. Althoughthe mere fact of the falsehood of the allegations in a libel would notprove actual malice (Harrison v. Bush*), I allowed evidence to be led onthis point, as plaintiff in giving evidence of actual or express malice wasentitled to prove that the allegations in the libel were not true, and nottrue to the defendant’s knowledge at the time he wrote the libel or
at the time of the trial.
1 L. Rt 4 P. C. 49$.
8 5 E.&B. 344.
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It is not necessary for the decision of this case, in.view of my findingthat defendant honestly believed in the truth of the. informationconveyed to him and acted bona fide in reporting the matter toplaintiffs superiors, to find that the allegations in the libel complainedof were, in fact, true or not; in other words, to find if plaintiff made thestatements attributed to him to Mr. Hector Jansen or not. Whethertrue or not, if defendant believed in the truth, he is in law free fromliability.
Plaintiffs counsel directed almost the whole of his address to Courton this point, and invited the Court for a finding as to whether his clientmade the statements attributed to him to Mr. Hector Jansen or not.
I have carefully followed the evidence, and considered, the arguments ofcounsel placed before me $o ably and so fully, a^d I have no doubtwhatever in my mind that the plaintiff told Mr. Hector Jansen that hewas insured in a bloody, rotten company (meaning the China MutualInsurance Company), and that defendant was not the manager ofthe China Mutual. In view of my findings in the case, I consider itunnecessary to analyze the evidence on this point or to elaboratemy conclusion on this point with reasons.
To sum up, I find that the occasion was a privileged one, and thatthere was no malice whatever on the part of the defendant, actual orimplied, and that the defendant acted honestly and in good faith.
It is, however, much to be regretted that defendant used such avulgar expression in the letter to the plaintiff and sent a copy of it toMr. Burton. Had defendant realized that the copy sent with the letterwas part of the letter, he would not have used that expression inwriting to a gentleman, and Mr. Burton was justified in considering itas an insult to himself in defendant having sent a copy of a lettercouched in such language. The vulgar expression used must havebeen the cause of this frivolous litigation, and plaintiffs counsel was notfar wrong when he described the whole matter as a comedy of errors.
I dismiss plaintiff’s action, Ordinarily costs follow the events Iconsider, however, this a case where the Court feels justified in makingno order as to costs.
A. St. F. Jayawardene, for the appellant.
Drieberg (with him Keuneman), for the respondent.
June 15, 1920. Bertram O.J.—
In this case the learned Judge has dealt with the matter so fullyin a very able judgment that it is not necessary to say very much.Briefly stated, the facts are that the defendant complained to thesuperior officer of the plaintiff that the defendant had been makingcertain statements derogatory to the insurance company to whichthe defendant belonged. His complaint did not receive the atten-tion which he thought it merited. He followed it up by subsequentletters, and one of the letters enclosed a copy of a communication hehad himself addressed to the plaintiff, in which he made use of veryregrettable language. It appears that there is an understandingbetween the insurance companies doing business in Colombo thattheir agents shall not, in canvassing, disparage the companies other
1920.
Livera
Pugh
( 76 )
1920.
Sbbvbam
C.J.
Livera v.Pugh
than those to whioh they belong. It appears to be admitted thatall these insurance companies recognize that they have an obliga-tion to each other to inform any company of any case in which oneof its agents is supposed to have infringed this rule.
Mr. A. St. V. Jayawardene, for the appellant, admits that if anycomplaint of this sort is made, the occasion is a privileged one.But he contends, in the first place, that the privilege is exhaustedas soon as the complaint is carried to the proper quarter, and doesnot extend to any further communication made for the purpose ofinsisting on the complaint and driving it home. I am not able to seethe justice of this contention. If it were admitted, I think it wouldgreatly destroy the value of the privilege and render it almostnugatory.
Mr. Jayawardene further insisted that the terms of the letterwritten by the defendant to the plaintiff, to which I have alreadyreferred, take the matter altogether outside the privilege. This canonly be the case if these terms are considered sufficient evidence ofmalice. I agree with the learned Judge that the letter is a mostunfortunate one, and one that ought never to have been written.But its terms seem to me evidence not of malice, but rather ofwant of self-restraint and good manners. It has been laid downthat excessive language used in communications which are privilegeddoes not of itself destroy the privilege. The learned Judge hasoited the authorities for this proposition on page 184 of his judgment,and I need not further refer to them.
Mr. Jayawardene has further argued that this case is one whichcomes within certain dicta uttered in the cases of: Royal Aquariumand Summer and Winter Garden Society, Limited, v. Parkinson1 andClark v. Molyneux?He urgeB that the final communication,
pamely, the letter enclosing the defendant’s abusive letter to theplaintiff, was written, not for the purpose of asserting a privilege,but for the purpose of the gratification of anger, and was, therefore,not entitled to the privilege. I do not think myself that thesubstance of the letter can be said to have been written merely forthe purpose of the gratification of anger, though it may very wellbe argued that the expressions in the letter to which exception istaken were so motived. But this contention is, I think, sufficientlymet by the authorities cited by the learned Judge, to which I havereferred above. I am of opinion, therefore, that the appeal shouldbe dismissed, with costs.
De Sampayo J.—I am of the same opinion.
Appeal dismissed.
1 [1892) 1 Q. Bt Dm 431.
* (1877-78) 3 Q. £. D. 237.