088-NLR-NLR-V-48-WHITELAW-Appellant-and-CONCANNON-Respondent.pdf
Whitelaw v. Concannon.
269
1947Present: Wij eye ward ene and Jayetileke JJ.
WHITELAW, Appellant, and CONCANNON, Respondent.
139—D. C. Kalutara, 24,269.
Defamation—Qualified privilege—Scope of—Meaning of malice—Defcmatory
statement—Meaning given to it by the person to whom it is published—
Material factor.
The plaintiff was the superintendent of a rubber estate which belongedto a company which had its head office in London. One of the dutiesof the defendant, as visiting agent of the estate, was to report to thelocal agents of the company if the supervision of the estate was. belowstandard.
In an action for defamation brought by the plaintiff in respect ofcertain statements contained in a report which was sent by the defendantto the local agents—
Held, that a communication made by a person in the discharge of a dutyor in furtherance of an interest possesses, a qualified privilege providedthe person to whom it is made has a duty or interest to receive II.
In order to destroy the effect of a plea of qualified privilege the plaintiffmust prove affirmatively that the statement complained of was made bythe defendant maliciously.
By the term “ malice ” in the case of defamation is meant not necessarilyany actual ill-will borne by the defendant to the plaintiff but merely thedoing of a wrongful act without just cause or excuse.
In an action for defamation, the meaning which the writer intends toconvey is immaterial. The question always is : How were the wordsunderstood by the person to whom they were originally publishes ?
A
PPEAL from a judgment of the District Judge of Kalutara. Thefacts appear from the judgment.
A. Hayley, K.C. (with him N. K. Choksy), for the defendant,appellant.—The District Judge gave judgment for the plaintiff in asum of Rs.. 5,000 in respect of statements (a) and (c). All the otherstatements (b), (d), (e) and (/) he held to be covered by privilege andsubstantially true to fact. With regard to statement (a) which referredto new clearings, the judge held that the statement referred to clearingsboth in Eaglesland and in Clontarf divisions and held further that inso far as that statement referred to new clearings in Eaglesland J. wastrue to fact and protected by privilege but in so far as it referred toClontarf it was not true to fact and was not protected by privilege.With regard to statement (c) the judge has held that it was outsideprivilege and as the defendant has not proved the statement to be truemalice must be presumed. _
The statements (a), (b) and (c) are contained in one document, P 1,which is the report of the defendant to the local agents in respect of avisit made by the defendant in September, 1942. The judge held thatsuch an occasion was one of partial or qualified privilege and furtherheld that if the plaintiff can prove* malice extraneously the plaintiffneed not prove that the statements were false. The defendant’s pleais privilege mainly and truth only incidentally. Truth does not begintill privilege ends. Privilege can only be destroyed by express malice ormalice in fact and not by implied malice which is there in all libellousstatements.
266
Whitelato v. Ctmcannon.
As regards statement (a) the finding of the judge that it refers toClontarf as well is not correct. The report P 1 itself taken as a wholeshows that only the new clearings in Eaglesland are referred to. Further,what the defendant intended or said he intended is immaterial in thecase of a libel. The libel must be judged from the effect it producedon the people who are to read the statements. Moreover the meaningof the statement must be gathered from the document as a whole. SeeOdgers on Libel and Slander, 5th Edition, Chapter 5. See also Havre v.Wilson1; Jones v. E. Hulton & Co.'. From this aspect it is quite clearthat no one who read the libel would have understood that the statementreferred to Clontarf. It is quite clear that neither the local agents northe Company in London understood that the statement (a) referred toClontarf.
As regards statement (c) the statement is clearly privileged. Whetherthe statement is an interpolation or not does not matter in the least. Thedefendant might have made statement (c) in a separate letter and eventhat letter would be privileged as it was the clear duty of the defendantto make communications as to the competency, efficiency or otherwiseof the superintendents of the estates which he visits and, further, thetrial judge has made a mistake in the construction of the statementand has given a meaning to the words in statement (c) which is entirelywrong.
On the meaning and scope of privilege see Gulick v. Green’; Fernando v.Peries ‘; Livera v. Pugh ’; Adam v. Ward ’; Shipley v. TodhunterT.
The second cause of action is not maintainable; see White v. StoveLighting Co. ’.
C. Thiagalingam (with him S. Canagarayer), for the plaintiff,respondent.—The finding of the judge that statement (a) referred to newclearings in Clontarf as well is clearly right. The defendant himselfsaid so and in fact no other view is possible on a correct appreciation ofthe evidence in the case, particularly the document P 1. The learnedjudge is also correct as regards the construction he placed on the meaningof the last part of that statement (c). He has very carefully consideredthe various aspects of the case and come to certain conclusions on thefacts and unless these conclusions are plainly proved to be wrong theAppellate Court will not interfere. See Tharmalingam Chetty v.Ponnambalam*.
As regards statement (c) the evidence in the case as well as the conductof the defendant before and during the trial of the case showthat the statement (c) was false and that the defendant knew that suchstatement was false. Apart from the findings of the judge the statement
is clearly outside privilege in that though the occasion was privilegedit was not at all necessary to make that statement at that time. Infact the statement was an afterthought and quite foreign to the subjectmatter of the report P 1. See Spenser Bower on Actionable Defamation,1st Edition, p. 326, and Chelliah v. Fernando ”.
1 (1829) 9 B. and C. 643.* L. R- (1917) A. O. 309.
(1909) L. R. 2 K. B. 444.7(1836) 7 C <fc P. 680.
1 (1918) 29 N. L. R. 176 at 180.•(1939) 108 L. J. K. B.868.
(1919) 21 N. L. R. 7.'(1942) 23 C. L. W. 57.
(1920) 22 N. L. R. 69.70(1937) 39 N. L. R. 130 at 134-
JAYETTLEKE J.—White law v. Concannon.
267
In the case of qualified privilege every communication is not protected.
If the defendant knew the statement to be false malice necessarilyfollows, and privileges does not protect such a communication. Further,recklessness in not caring whether the statement is true or false provesmalice. Even a bona fide belief in the truth of the statement by itselfis not protected by privilege. See Molepo v. Achterberg Clark v.Molyneux ’, Royal Aquarium, and Summer and Winter Garden Society,Ltd. v. Parkinson *, Adam v. Ward (supra), Watt v. Langden *, Winstanley v.Bampton
On the cross-appeal, see Place v. SearleDe Stempel v. Dunkels7.
A. Hayley, K.C., in reply.—If the occasion is privileged it is for theplaintiff to prove affirmatively facts which destroy the privilege. SeeMcKerron on Delicts, pp. 188-189, section 70, 2nd Edition; Vaitilingam v.Volkart Bros’.
Cur. adv. vult.
June 26, 1947. Jayetileke J.—
This is an appeal by the defendant against the judgment of the DistrictJudge of Kalutara awarding to the plaintiff a sum of Rs. 5,000 as damagesfor defamation. The plaintiff w<as the Superintendent of GlanrhosEstate, Matugama. This estate had three divisions—Glanrhos, Clontarfand Eaglesland containing in extent 286, 244, and 182 acres, respectively.All the divisions were planted in rubber. Between 1937 and 1938Clontarf was replanted with budded rubber; in 1942 forty acres ofEaglesland were replanted with clonal seeds and another forty acreswere cleared and prepared to be replanted with budded rubber. TheEstate belonged to the General Ceylon Rubber and Tea Estates, Ltd.(hereinafter referred to as the Company) which had its head office atLondon. The Galaha Ceylon Tea Estates and Agency Co., Ltd : (herein-after referred to as the local agents) were the local agents of the Company.The defendant was the visiting 1 agent of the estate since 1935. He isa well-known visiting agent in the District. He visited 45 rubber estatesin extent approximately 31,000 acres. He has been a member of theBoard of Control of the Rubber Research Scheme for over 12 yearsand of the Rubber Commissioner’s Increased Rubber Production andAdvising Committee since 1942. The defendant visited the estate onSeptember 4, 1942, and sent the report P 1 to the local agents whichcontained the following statements
I am forced to the conclusion that Mr. Concannon’s management
of new clearings falls far short of what I see on other estates.
Such large areas are involved that unless matters are put right
at once I can have no alternative but to ask the Directorsto place in charge of this work a superintendent who, I know,will get the best value for the money spent.
1 (1943) S. A. L. R. App. Div. 85 at 97.
i L. R. (1877) 3. Q. B. D. 237 at 247.
L. S. (1892) 1 Q. B. D. 431 at 444.
(1929) 98 L. J. 711 at 721.
(1943) 1 A. E. R. 661 at 664.
L. R. (1932) 2 K. B. D. 497 at 520 and 521.
« (1938) 1 A. E. R. 239.
(1939) 40 N. L. R. 515 at 517.
268
JAYETTLEKE J.—Whitelaw v. Concannon.
I was surprised to find that in spite of five years’ experience of
budded rubber Mr. Concanon was quite unable to identifymost of the common clones and as this is one of the first essen-tials in budding work I recommend & close study of the question.
He next visited the estate on January 17, 1943, and sent the reportP2 which contained the following statements : —
It is very disheartening for me to find that some very bad and
serious damage by wounding was done in the second half of1942 on the Glanrhos Division. Some of the work is the worstI have ever seen in Company owned rubber.
The tapping has been very poor in some places.
(/) In my last report I stated that many vacancies might result.Due to the heavy grass cover (snails, rats,it is reported
that 800 imported Prang Besar Seedlings were killed off.
The plaintiff alleged that these statements were made by the defendantfalsely and maliciously and that they injured his reputation as a planterand caused him pain of mind. He claimed Rs. 25,000 as damages.He also alleged that the statements were made by the defendant withthe intention of causing the Company to dismiss him and that, as a resultof the said statements, he was dismissed. He claimed under this headRs. 25,000 as damages.
The defendant admitted that he made the statements but he deniedthat he made them falsely and maliciously. He said that the statementswere true and were made on privileged occasions.
After a very lengthy trial the District Judge reserved judgment.Three months later he delivered his judgment in which he held asfollows : —
That (a) was made with reference to Eaglesland as well as to
Clontarf ; that as regards Eaglesland it was protected by privilegeand was true in substance and in fact ; and that as regardsClontarf it was not protected by privilege and was made bythe defendant maliciously.
That (b), (d), (e) and (f) were protected by privilege and were
•true in substance and in faejt.
That (c) was not protected by privilege and was made maliciously.
That the plaintiff was dismissed not because the defendant induced
the Company to dismiss him but because the plaintiff, failed tofollow the defendant’s directions.
The defendant filed this appeal against the first and third findings.The plaintiff filed a cross-appeal against thevfourth finding.
Mr. Hayley in a very careful argument in the course of which heanalysed the evidence both oral. and documentary with great abilitycontended (1) that the statement (a) was made by the defendant with,reference to Eaglesland]’only and (2) that the statement (c) was madeon a privilege occasion and that it was' true in substance and in fact.He further contended’ that the plaintiff failed to prove express maliceon the part of the defendant in making the said statements.
JAYETTLEKE J.—Whitelaw v. Concannon.209
Privilege is the name given to the protection which the law affordsto a person who makes a defamatory communication in the exerciseof a right or the discharge of a duty. (See McKerron—The Law ofDelict'). Privilege is of two kinds—(a) absolute, (b) qualified. Thedifference between the two is thus stated by Odgers on the Law ofLibel and Slander at page 187 : —
“ In the first class of cases, it is so much to the public interest thatthe defendant should speak out his mind fully and fearlessly that allactions in respect of words spoken thereon are absolutely forbidden,even though it be alleged that the words were spoken falsely, knowinglyand with express malice. This is confind to cases where the publicservice or the due administration of justice requires complete immunity,e.g., words spoken in Parliament; everything said by a Judge on theBench, or a witness in the box; reports of military officers on militarymatters to their superiors. In all such cases the privilege affordedby the occasion is an absolute bar to any action. In less importantmatters, however, the interests of the public do not demand thatthe speaker should be freed from all responsibility, but merely requirethat he should be protected so far as he is speaking honestly for thecommon good ; in these cases the privilege is not absolute, but quliftedonly. In such cases the plintiff will recover damges in spite ofthe privilege, if he can prove that the defendant in using the defa-matory words was not acting in good faith, but was actuated by someimpi-oper motive. Such improper motive is called “ malice ”.
In the present case the plea is one of qualified privilege. The law onthe subject is thus stated by Lord Campbell L. C. in Harrison v. Bush3—
“ A communication made bona fide upon any subject matter inwhich the party communicating has an interest, or in reference towhich he has a duty, is privileged, if made to a person having a corre-sponding interest or duty, although it contains criminatory, matter,which, without this privilege, would be slanderous and actionable ”.and by Lord Atkinson in Adam v. Ward *—
“ It was not disputed, in this case on either side, that a privilegedoccasion is, in reference to qualified privilege, an occasion where theperson who makes a communication has an interest or a duty, legal,social, or moral, to make it to the person to whom it is made, and theperson to whom it is so made has a corresponding interest or duty toreceive it. This reciprocity is essential”.
According to these judgments a communication made by a person inthe discharge of a duty possesses a qualified privilege provided theperson to whom it is made has a duty or interest to receive it. Iri Clark,v. Molyneux * Brett L. J. said : —
“ If the occasion is privileged it is so far some reason, and thedefendant is only entitled to the protection of the privilege if he usesthe occasion for that reason. He is not entitled to the protectionif he uses the occasion for some indirect and wrong motive ”.
>McKerron—The Lava of Delict, page 182.1 (1911) A. C. at p. 334.
*1855) 5 E and B at p. 348.• L. R. (1877) 3 Q. B. D. 24G.
270
JAYETILEKE J.—White lau? v. Concannon.
In order to destroy the effect of a plea of qualified privilege the plaintiffmust prove affirmatively that the statement complained of was madeby the defendant maliciously. What is meant by the expression“ malice ” is thus stated by Maasdorp1—
" By the term ‘ malice ’ in the case of defamation is meant notnecessarily any actual ill-will borne by the defendant to the plaintiffbut merely the doing of a wrongful act without just cause or excuse
At the argument before us, Mr. Thiagalingam did not question the cor-rectness of the finding of the District Judge that statements (b), (d), (e),(j) and (a) so far as it refers to Eaglesland were protected by privilege.
P 1 covers eleven pages of typed matter. It has a summary on page 1.The matters dealt with are given in the summary under various heads.Under the heads “ replanting ” and “ new clearing ” it reads :—.
On page 5 the defendant has dealt with Clontarf. He has given in sixcolumns the extents replanted, the dates on which they were replanted,the clones used, the successful buddings done, the stand per acre ofsuccesses and the vacancies. At the foot of the page he has expressedhis opinion about the plantation. It reads : —
“ I am well pleased with the growth and present condition of theseareas and if Mr. Concannon can maintain them as they are at present,I shall offer no criticism ”.
He has mentioned in paragraph 16 certain matters which requiredimmediate attention, e.g., removal of iluk from a small block, supplyingof a few vacancies, taking a count of the trees approaching tappablesize and treating fomes. At the bottom of page 6 he has dealt with“ This year’s replanting programme ”. He has stated that he was dis-appointed with the plaintiff’s work. He found 70 out of the 80 acresknee deep in grass and there was every possibility of rats and bandicootsbreeding in the thick grass and destroying the valuable plants that werethere. He also found that drains and holes had not been cut and food-stuffs had not been planted. The head “ This year’s replantingprogramme ” clearly applies to Eaglesland and this was admitted onboth sides. After dealing with various matters in paragraphs 17 to 24the defendant made certain observations in paragraph 25 under the head’‘General” on page 11. It reads: —
“ I have no criticisms as regards the old rubber. I am forced to. the conclusion, however, that Mr. Concannon’s management of newclearings falls far short of what I see on other estates. Such largesums are involved that unless matters are put right at once I can haveno alternative but to ask the Directors to place in charge of his worka Superintendent who I know will get the best value for the largesums of money spent ”.
* InvtitiUea cj S. African Law Vol. 3 at page 133.
“ Replanting (older clearings) growing well ..New clearings very unsatisfactory
Page
5
6”
JAYETTLEKE JWhitelaw v. Concannan.
271
It is agreed that the first sentence refers to the old rubber on Glanrhosand Eaglesland. Counsel for the plaintiff urged that the next twosentences refer to Eaglesland as well as to Clontarf and Counsel for thedefendant urged that they refer to Eaglesland only. The District Judgehas given two findings on this question which are diametrically opposedto each other, but in the later finding he has stated that the earlier findingis wrong. In paragraph 3 of his judgment he says : —
“As regards the young rubber on Clontarf the defendant has statedthat he was well pleased with the growth and condition of the areasand that if the plaintiff could maintain these as they then were hewould not offer any criticism. Then the defendant went on to discussthe 80 acres of Eaglesland that were being replanted at the time.At the date of P 1 40 acres of these had been plaftted with Prang BesarClonal seeds imported from Malaya and they had just started to takeroot, and the other 40 acres had been holed to take in nursery buddingsaccording to the programme arranged earlier. It is with regard tothese 80 acres that the statements (a) and (b) had been made ”.
In paragraphs 76 and 77 of his judgment he says : —
“ In giving evidence the defendant referred to the manner in whichthe weeding vote of Clontarf was spent in the first five months and saidthat when he wrote this statement he was thinking of that too. Hedid not refer to fomes. The defendant did not at that time call thismanner of spending the vote bad management. Mr. Burt did a similarthing but the defendant did not say it was bad management. InMr. Burt’s case he said the estate was looking better than ever before.In the plaintiff’s case he said the estate was looking better for thegenerous expenditure. The manner in which this money was spentcannot be called bad management. The plaintiff was allowed somemore money but the December report P 30 and P 29 shows that allthat was not spent and the earlier reports would show that weeds hadbeaten the defendant. The above-mentioned evidence of the defend-ant, page 580 of the evidence, shows that he intended to apply thestatement (a) to Clontarf too. The expression used is “ new clearings ”.There are two new clearings on this estate one older than the other—Clontarf and Eaglesland. There is evidence that the fact that the■“plaintiff was replanting Clontarf with budded rubber was well-known ;people came to see it. The statement (a) casts a serious reflection onthe plaintiff. It is not true to fact. About the beginning of my judg-ment in setting out the various statements I said that the statements(a) and (b) applied to Eaglesland. This is a mistake. The statement(a) applies to Clontarf too. And as far as Clontarf is concerned thisstatement is not true to fact and the defendant who made the earlierreports on this direction must have known it”.
The District Judge has given two reasons for holding that the statement(a) applies not only to Eaglesland but also to Clontarf—(1) that theexpression used is “ new clearings ” and not “ new clearing ”, (2)the defendant said in his evidence that when he wrote (a) he intendedit to apply to the manner in which the weeding vote of Clontarf had
48/24
272
JAYETIL.EKE J.—Whitelaia v. Concannon.
been spent by the plaintiff and also to the handing over form D 7 in whichthe plaintiff said that he was satisfied with the condition of theestate.
An examination of P 1 shows beyond doubt that the first reason givenby the District Judge is erroneous. The summary on page 1 refers toClontarf as the “ replanting older clearings ” and to Eagles! and as the“jievr clearings ”. In the report P 24 dated January 15, 1942, similarexpressions are used in the paragraph headed “ General In the bodyof the report P 1 the defendant states that Clontarf is in good order andcondition but Eaglesland is more or less in ^ deplorable condition. Icannot see how any one reading P 1 can possibly say that the statement(a) refers to Clontarf. P 1 was sent by the defendant to the local agents.On receipt of it they sent D 31 dated October 8 1942, to the plaintiff.It reads : —
" In reference to our letter of the 25th September, covering Mr. White-law’s recent repor*. v. i wish to point out that we can take no responsi-bility for reports such as this. Will you therefore kindly let us have anexplanation by return on the 1942 replanting programme and foodproduction referred to on page 11 of the report as the matter is urgentand we may have to cable the Directors
This letter indubitably shows that the adverse remarks in P 1 wereunderstood by the local agents to refer to Eaglesland. The plaintiff’sreply P 32 dated October 10, 1942, shows that he himself understood it torefer to Eaglesland. The material portion of it reads : —
“ I thank you for your letter of 8th October, and, as requested, I statethe following for your kind consideration : —
Eaglesland—This is a very steep estate and has been divided intotwo 4C acre blocks ”.
There is no reference either in D 31 or in P 32 to Clontarf. The secondreason given by the District. Judge is erroneous according to law.
In .an action for defamation, what meaning the writer intend** toconvey is immaterial—(See Haire v. Wilson) V The question always is : —How were the words understood by those to whom they were originallypublished ? (Odgers 6th edition, page 93.) D 31 and P 32 indicate veryclearly what meaning the statement (a) conveyed to the minds of thelocal agents and of the plaintiff:I do not think that any person of
ordinary intelligence could have understood it in any other way. Thefinding of the District Judge on statement (c) indicates that if the state-ment applied only to Eaglesland it would be true in substance and infact and therefore not actionable. The plaintiff’s claim based on (a)also fails. It is therefore unnecessary to consider the defendant’s state-ment made three years later in the course of the lengthy cross-examinationto which he was subjected as to what he intended to convey to the local
HJ829) 9 B and C 643.
JAYETTLEKE O'.—Whitelaw v. Hnncannon.
273
agents of the company by the statement (a). But as there was a greatdeal of argument on the point I shall deal with it briefly. The defendant’s■evidence reads :—
Question.—What did you have in your mind when you talked of hismanagement of the new clearing ?
Answer.—I was referring to the 1942 incident of spending the wholeyear’s vote in five months without informing anyone ….
I was referring also to the fact that he took over the estate andwrote “ satisfied ” and then found it was not satisfactory.
For the year 1942 the estimate for weeding was Rs. 4,221. The defendantfound on his visit in June, 1942, that during the first five months theplaintiff had spent Rs. 4,001 on weeding leaving a balance of Rs. 220 forthe next seven months. In his report P 25 the defendant criticised thework of the plaintiff in these terms : —
“ When Mr. Concannon returned from home last in April, 1941,he complained that so large a portion of the season’s weeding allowancefor this 244 acres had already been spent that he was quite unable tocarry on with the balance in hand till the end of the year. Thisnecessitated a special visit by me and full details were given in myspecial report of July 3, 1941. The nett result was that considerableextra funds had to be allowed, and by the end of the 1941 seasonweeding had cost the very large sum of Rs. 28 per acre or Rs. 32 ifcontrol of legumes is also included. The average for 28 differentclearings I visited totalling 4,147 acres was Rs. 19.50 per acre.I now find that without informing the Agents or myself of theposition Mr. Concannon has again this season spent the whole season’sallowance in the first five months. Rs. 4,001 or about Rs. 18 per acrehas been spent against Rs. 4,221 allowed, and the matter has simplybeen presented as an accomplished fact. In view of last year’s trouble,surely Mr. Concannon must realize he had no right to do such a thing.Surely he must know that the Directors have every reason to replythat the estimates as sent home are not worth the paper they arewritten on. In five months the cost per acre (Rs. 18) is almost
equivalent to a year’s average cost on 28 estates in 1941
Now I am left with the choice of—
refusing to recommend any further expenditure till the endof the season in which case the position will get entirely out ofhand and will cost large sums to rectify in 1943, or
recommending an extra sanction of Rs. 150 per acre per monthfor the last 7 months on 234 acres = say Rs. 2,451. This I do withgreat reluctance and I disclaim responsibility for it ”.
P 25 and the plaintiff’s evidence on marginal pages 26 and 108 showthat the above remarks were made in connexion with Clontarf. Theywere made under the head “ Growth ” which dealt with an extent of
274
JAYETILEKE J.—Whitelaw v. Concannon.
244 acres which, is the exact extent of Clontarf. The correctness of theabove statements in P 25 was not disputed' by plaintiff in his evidence.When the local agents called upon him for his explanation he wroteas follows in P 28 dated June 16, 1942: —
" Cost of weeding—I note what you write and Mr. Whitelaw’s remarks,and in future you will be informed if any such expenditure is incurred.I will endeavour to carry on weeding with the balance available untilthe Directors’ instructions are received
The plaintiff exhausted practically the whole of the weeding vote forthe year 1942 by the end of May without reference to the defendant orthe local agents or the Directors of the Company and the defendantwas compelled to recommend a further vote in order to keep the estatein good condition. I should think that the defendant would have beenwell within his rights in criticising the plaintiff’s management of theestate in much stronger language than that used by him in P 25. Inmy view the plaintiff was guilty of gross mismanagement of the estate.In paragraph 63 of his judgment the District Judge says that the defend-ant’s criticism of the plaintiff’s work in P 25 cannot be called unfair orunjust. Yet he held that the statement (a) was false in fact and wasmade by the defendant maliciously. In April 1940 the plaintiff went ona year’s leave. During his absence one Burt was placed in charge ofthe estate by the local agents. The plaintiff returned in April 1941 andtook over the estate from Burt on April 24, 1941. According to thelocal agents’ orders Burt and the plaintiff had to fill in and sign a formcalled the “handing over form”. D 7 was the form that was signedon this occasion. In the remarks column the plaintiff has entered inhis own handwriting—
“ Satisfied.
The furnace of the new smoke house is still receiving attention”
The plaintiff says that before filling up D 7 he went round the estatewith Burt in order to satisfy himself as to its condtiion and he found thatClontarf was in heavy weeds. At that time the defendant had gone toNuwara Eliya on a holiday and he did not want to disturb him. Hewaited till the defendant returned in June and had a telephone conversationwith him about it. He asked the defendant what he should do andthe latter dictated a letter P 17 on June 5, 1942, to be sent to the localagents. It reads : —
“ I write to inform you that I find certain acreages costly to weedand I would like to have Mr. Whitelaw’s advice on the position ”.
The local agents sent him a reply P 18 in which they stated that Burthad in previous correspondence reported increased weed growth on Clon-tarf and the defendant too had done so in his report of February 19,ITiey requested him to make an appointment with the defendant todiscuss the matter. The local agents wrote to the defendant another
JAYETILEKE J.—Whitelaw v. Concannon.
275
letter requesting him to go into the matter with the plaintiff. The■defendant says that he thought that a discussion would serve no usefulpurpose and he decided to inspect the estate. He visited the estatemid sent the report P 22 to the local agents. In it he states: —
“ (a) There has been an increased growth of weeds all over the clearingin recent months and Mr. Burt reported this to the agentsin his December report. I must admit I have noticed severalinstances where weeds get out of hand about the third year.
(b) To deal with the increased growth Mr. Burt has spent Rs. 1,539out of the year’s full allowance in the first six weeks of theseason and this leaves only Rs. 1,300 or Rs. 5.30 per acre forthe rest of the season—a totally inadequate amount. AlthoughI now agree that 1940 expenditure and 1941 estimate for weedingwere too low, I think it would have been better if Mr. Burthad informed that he was going to spend this largo proportionof the season’s estimate. As matters stand an entire grantwill have to be given.
<c) Mr. Concannon took over about the middle of April and his handing-over statement reported that the general state of affairs was“ satisfactory ”. It is a great pity that Mr. Concannon didnot, at the time of taking over, state, instead of saying that- he was satisfied, that weeding was in poor order and that hecould not manage without somewhat large extra grants. Bybringing the matter up two months later Mr. Concannon makesit very difficult to apportion responsibility ”.
The plaintiff gave three reasons for writing “ satisfied ” in D 7.—
He thought that the defendant was partly responsible for the
condition of the estate.
He did not wish to displease the defendant as there was unpleas-
antnesss between him and the defendant over certain remarksmade by him in the first taking over form in the year 1935.
He did not wish to find fault with Burt’s work because “ Dog does
not eat dog”.
I do not think that the first reason can be accepted because the defend-ant’s report P 78 dated February 14, 1941, in which he said that henoticed an increased growth of weeds on his visit must have been inthe plaintiff’s hands at the time. Nor do I think that the second reasoncan be accepted because the defendant had severely criticised in hisreport P 4 the work done by Brown from whom the plaintiff took over.He said that the work for a good number of years in the past has beenbad and that the estate was one of the worst inspected in Kalutara.It follows, therefore, that the reason why the plaintiff wrote “ satisfied ”when, in fact, he was not satisfied was because “ Dog does not eat dog ”.In finding that there was some substance in reasons 1 and 2 given by theplaintiff the District Judge has obviously lost sight of P 78 and P 4.After writing “satisfied” in D 7 the plaintiff did nothing till June 14,when, probably, the monsoon was at its height and he was unable tocontrol the weeds. He then telephoned to the defendant and he says
276
JAYETHJSKE J.—Whitelatv v. Concannon.
he informed the defendant that Burt had “mucked up” the estate.If Burt had “ mucked up ” the estate up to April 24, 1941, there canbe no question that the plaintiff had “ mucked it up more ” betweenApril 24, 1941, and June 14, 1941, during which period he sat quiet doingnothing until he lost all control of the weeds. Having regard to thesefacts I am unable to resist the conclusion that the plaintiff has not onlyfailed in his duty to the Company but he has also deliberately deceivedthe local agents to whom D 7 was sent by writing “satisfied” when infact he was not satisfied. If he had informed the local agents promptlythat the estate had to be weeded before the monsoon rains commenced,I feel sure that steps would have been taken to prevent the estate fromdeteriorating further. There is every indication of it in the letter P 18written by the local agents to the plaintiff. Even if the defendantintended to refer to the plaintiff’s conduct in statement (a) I am ofopinion that he has used language which, to say the least, is very mild.
I shall now proceed to deal with the statement (c). The word “ clone ”is said to be a Malay word which has the same meaning as the word“ jarth ”. Common clones are those very largely used in Ceylon, e.g.,Pilmoor B 84, TJ 1, TJ 16, BD 2, BD 26, PB 86, PB 186, AV 49, PSR 152,Millakanda, Hillcroft, Waga and Glenshiel. Budgrafting is specializedwork which requires expert knowledge. It can be done either in thenursery or in the field. Plants are grown out of seeds and buds takenfrom high yielding trees are grafted on them. Budded stumps and bud-wood for grafting used to be imported largely from Java and Malaya. Butthey were also available on estates in Ceylon. The various clones hadslight differences which could be identified when the shoots wereeight to twelve months old. Clontarf was replanted with bought budwoodand stumps of various clones. The names of the clones appear in thereport P 1. It was important that the plaintiff should know to distin-guish one clone from another because there was the possibility of theclones being mixed up by the sellers and wrong trees being found in afield and also because it had been decided to use budwood from Clontarfin the replanting of Eaglesland.
The defendant said that it was not possible for the plaintiff to budcorrectly unless he was able to identify the clones. Counsel for the re-spondent agreed with this view in the course of his argument. It mustbe noted that at the time the statement (a) was made 40 acres of Eagles-land had been cleared for replanting with budded rubber in October/November. The defendant in his evidence gave the circumstancesin which he made the statement. He said that when he was walkingthrough Clontarf one morning he noticed two common clones BD 10and BD 5 mixed up in a block. He asked the plaintiff to identifyone or two of the trees and he found that the defendant was unable todo so. During the rest of the morning he questioned the plaintiff aboutother clones in the area and found that the plaintiff was unable to identifyany one of them properly. When he wrote P 1 he thought it was his dutyto inform the local agents about this and he wrote the statement (c).The plaintiff denied the whole of this incident and stated that he waswell able to identify all the clones on Clontarf. After examining the
JAYETILEKE J.—Whitelaw v. Concannon.
277
evidence on this point the District Judge came to the conclusion that thedefendant’s evidence was not false but that the defendant failed to provethat the plaintiff did not in fact know to identify clones. He said : —
The defendant told us that the plaintiff has been showing resent-
ment towards him. The defendant, perhaps, asked him aboutthe two clones but the plaintiff was in no mood to reply to the.defendant.
I do not think that the defendant was entitled to infer from this
that the plaintiff did not know most common clones.
He held that the statement was not privileged and, even if it was, thatit was made maliciously. It is difficult to gather from the judgmentthe reasons for the finding that the statement is not privileged. Mr.Thiagalingam invited our attention to the following passages in theDistrict Judge’s judgment:—
that the statement has been interpolated in the report.
that at the time it was made all budding was finished and the
budded stumps were waiting to be put in the field.
through anger the defendant has been reckless as to the truth
or otherwise of the statement he made with regard to theplaintiff’s knowledge of clones.
These statements, I need hardly say, are not relevant to the question,whether the occasion was privileged. On the documents I think itwould have been possible for the District Judge to hold that the plaintiffdid not answer the questions put to him by the defendant becausehe did not know to distinguish between clones. The evidence showsthat copies of the defendant’s reports were sent to the plaintiff and thatthe plaintiff did not protest against any of the statements made by thedefendant in P 1. His comments on the report are in P 32. He hasdealt with various matters in it but he has said not a word about thedefendant’s allegation that he did not know to distinguish betweencommon clones. According to the findings of the District Judge I amof opinion that the defendant had every right to infer that the plaintiffdid not answer the questions put to him because he was unable to identifythe clones. How could the defendant have known that the plaintiffdid not answer the questions because he was not in a mood to do so?If the defendant was aware of it, it is improbable that he would havequestioned the plaintiff further the whole morning.
On these facts the question that arises is whether the defendant inmaking the statement (c) had an interest or duty, legal, social or moral,to make it to the local agents, and whether the local agents' had a corre-sponding interest or duty to receive it. One of the duties of-the defendantas visiting agent of the estate was to report to the local agents if thesupervision of the estate was below standard. The defendant’s evidenceshows that he was of opinion that the plaintiff’s supervision of the estatewas below standard because he did not know to distinguish betweencommon clones ; so the defendant had a duty to make the communicationto the local agents and the local agents had an interest in receiving thecommunication. In these circumstances, I do not think that it can be?
278
JAYETILEKE J.—Whitelaw v. Concannon.
contended that the statement was not made on a privileged occasion.In order to succeed the plaintiff has to prove that the defendant madethe statement maliciously.
The wrongful act complained of by the plaintiff is that the defendantmade a false statement in (c). This the plaintiff has wholly failed toprove. On the contrary, the finding of the District Judge implies thatthe defendant had grounds for believing that the statement was true.Thus the plaintiff’s claim on (e) also fails. It is, therefore, unnecessaryto go into the question whether the defendant made the statement (c)merely for the gratification of anger. But, in fairness to the defendant,I think I shall say a few words on the point. The plaintiff says thatbetween 1931 and 1942 there were various incidents over which hebelieved the defendant bore ill-will towards him. In 1931 he learntthat the defendant was instrumental in getting an allowance that wasmade to a friend of his by the Comrades Association of Kalutara stopped.He took up the matter and got the allowance restored. It will be notedthat at that time he had not met the defendant. Again between 1936and 1939 he had discussions with the defendant about the diagnosisand treatment of fomes, and about a prescription given to him by thedefendant to prevent corrosion of galvanized sheets. He next referredto the dismissal of a conductor called Kodituakku by him in the year 1941.Kodituakku wrote to the defendant that he had been wrongfully dismissedand the defendant forwarded the letter to the local agents. The localagents called for a report from him. He sent P 52 giving his reasonsfor the dismissal. In the concluding paragraph he stated : —
“ I would have appreciated Mr. Kodituwakku’s letter to Mr. Whitelawforwarded to me for my comments before sending same to you ”.
He says that this remark annoyed the defendant considerably. Whenhis report was forwarded to the defendant for his observation the defend-ant in his reply P 87 said : —
“ It is apparent from the last paragraph of Mr. Concannon’s letter,which I consider on the verge of insolence, that he resents my havingbrought the matter of the dismissal of these men to your notice ”.
Finally he referred to an incident in 1941 about the Usk Valley labourers.He said that certain labourers employed on Usk Valley estate weredischarged for rioting. They found their way to Glanrhos estate andwere employed by him. The defendant was displeased with him foremploying the labourers, and, on his visit to the estate in September, 1942,he became like “ an angry bull ” when he found that the labourers werestill on the estate.
The defendant denied that he was annoyed with the plaintiff overthe 1931 incident or the discussions referred to by the plaintiff. He•admitted that he was annoyed with the plaintiff over the remark madeby him in P 52 but he denied that the remark left a scar on his relationswith the plaintiff. His evidence on this point is supported by P 52.He had before him two conflicting versions as to what led to the dismissaland he preferred to accept the version given by the plaintiff. It is also
JAVEITLEKE J.—Whitelaw v. Concannon.
278
supported by his report P 24 dated January 15, 1942, in which he recom-mended an increase of plaintiff’s salary. P 52 and P 24 show that hehad a judicial mind.
With regard to the employment of the Usk Valley labourers the defend-ant denied that he took an interest in it beyond giving a little adviceto the plaintiff when he casually dropped in at the office of the localagents when they were having an interview with the plaintiff about it;P 26a shows that the matter was taken up with the local agents by theKalutara Planters’ Association. The Chairman of the Associationcomplained in P 26a that the plaintiff was continuing to employ thelabourers who had been discharged from Usk Valley estate for riotingnotwithstanding a promise given by him to send them away. Onreceipt of P 26a the local agents requested the plaintiff to call over attheir office for an interview. When the interview was taking place the.defendant happened to drop in at the office. The defendant was sentfor and asked for his advice. He suggested that the plaintiff shouldsend a list of the names to the Chairman of the Association with a requestthat he should mark a star against the names of those who, he thought,should not be employed in the District so that they may be discharged.The plaintiff and the local agents thought that the defendant’s suggestion;was a good one and they agreed to act on it. The defendant’s evidencethat he did not take any further interest in this matter is supportedby his report P 25 which was written about three months after the inter-view. In it he makes no reference to the Usk Valley labourers. Theevidence shows that the plaintiff wrote P 27 to the Chairman enclosinga list of the names and that the Chairman sent the list back to the plaintiffwith stars against the names of ten labourers. Thereafter no stepsseem to have been taken by the plaintiff to send away any of the labourersand no question seems to have been raised by the Chairman of theAssociation or the local agents.
On the question of ill-will there are a large number of findings of theDistrict Judge all of which are in defendant’s favour. Referring to thereport P 24 dated January 15, 1942, the District Judge says : —
“ A careful perusal of this report and all the earlier reports willshow that no blame has been attributed to the plaintiff. This reportdoes not show any ill-will towards the plaintiff. The defendant has.recommended an increase of salary from the beginning of the year ”.
Referring to the next report P 25 dated June 8, 1942, he says : —
“ The incidents from which I am asked to draw an inference ofill-will have had no effect on the defendant’s mind so far as this reportgoes ”.
With these findings I find myself in entire agreement. The DistrictJudge has, however, held that on his visit in September; 1942, the defend-ant lost his temper when he found Eaglesland overgrown with .weedsand that the defendant wrote P 1 in a state of anger. The passage inthe judgment reads : —
“ He must have remembered the recent disregard of his adviceon the Usk Valley labourers. I do not, however; think he wentto the estate as an angry boar or bull as the plaintiff called it. The
280
Mohideen v. Mant.
anger must have come on when he saw Eaglesland. The grass onit must have been the red rag. This must have caused him greatanger and the report was written in that angry mood- Anotherpoint to show that the feelings were not good on that visit is that thedefendant did not stay to lunch which he usually did. He did notstay for lunch the second day on which he visited Eaglesland ”.
An examination of the evidence shows that there is no justification forthe finding that the defendant flew into a temper when he saw Eagles-land in weeds or that he left the estate in a temper. The District Judgehas clearly erred when he said that the defendant did not stay for lunchon that day. The plaintiff’s evidence on page 198 shows that it wason the subsequent visit in January, 1943, that the defendant wentaway without staying for lunch.
I would accordingly hold that the defendant was not actuated bymalice when he wrote P 1 and P 2. The reports show that the defendantis a fair-minded person and that he has not allowed any annoyancecaused to him by anything that the plaintiff said or did to affecthis judgment on the plaintiff’s work on any occasion. He has compli-mented the plaintiff on his work on many occasions and at the same timehe has not failed to criticise his work when it was necessary.
The only other question is whether the plaintiff’s claim on the secondcause of action can be maintained. The plaintiff alleges that he wasdismissed because the defendant made the statements (a), (b) (c), (d),
, and (f) in P 1 and P 2 which were false. He has failed to substantiatethis allegation and his claim must necessarily fail. The District Judgesays in his judgment that the plaintiff was dismissed by the Companybecause he failed to follow the directions given to him by the defendantand not because the defendant induced the Company to dismiss him.This finding is supported by D 31 dated October 8, 1942, and D 34 datedOctober 26, 1942, and P 35 dated November 4, 1942. I do not think itis necessary to go into the question whether the plaintiff is legally entitledto claim damages under two heads in respect of the statements complainedof by him. For the reasons given by me, I would allow the appeal anddismiss the plaintiff’s action with costs here and in the Court below.
Wijeyewardene J.—I agree.
Appeal allowed.