Vaitilingam v. Volkart Bros.
Present: Soertsz A.C.J.
VAITILINGAM v. VOLKART BROS.
7—C. R. Colombo, 44,357.
Defamation—Master and■ servant—Servant a member of Mercantile Union—
Intercession by President of Union on behalf of servant—■Letter from
The plaintiff, whose services were discontinued by his employers, thedefendants, was a member of the Mercantile Union and he prevailed uponthe President of the Union to intercede on his behalf with the defendants.The Mercantile Union was a member of the Trade Union Congressbetween whom and the Employers’ Federation there was a pact byvirtue of which it was possible for disputes and differences arising betweenthem to be investigated and settled.
The President of the Union, who was also President of the Trade UnionCongress, addressed certain requests to the defendants to which theyreplied in a communication addressed to the Secretary of the TradeUnion Congress.
Held, that the communications of the defendant were made on aprivileged occasion.-
Negligence in making defamatory statements on a privileged occasionis not actionable.
Vaitilingam v. Volkart Bros.
PPEAL from a judgment of the Commissioner of Requests, Colombo.The facts are given in the head-note.
H. W, Thambiah, for plaintiff, appellant.—Defendants’ letter is notprivileged. When plaintiff was discontinued he appealed to the Presidentof the Union to intercede and get him reinstated. The President addresseda letter to the manager of the defendant Company, personally. The facthe used a letter paper which contains the names of the officials of theAll-Ceylon Trade Union Congress does not alter the capacity in which hewrote the letter. He signed his name and in his evidence lie says heexpected the replies to be sent to him personally. The Secretary of theAll-Ceylon Trade Union Congress never wrote to the defendants. Hencecommunication of the libellous contents of the letter to the Secretary isnot privileged. The Secretary opened the letter. The publication tobe privileged must be addressed to the person who has a correspondingright to receive it and not to a third party. Vide Hebditch v. MacilWanieet al1; Pullman v. Hill'. The President only asked that an inquiryshould be held. This statement is a volunteered and gratuitous statementand therefore not privileged.
Even if the occasion is a privileged one malice has been proved. Malicein law does not mean ill will or hatred. It means an improper motive.A wrongful act done intentionally, without just cause or excuse is mali-cious. Even where the defendant says that he honestly believed thestatement to be true yet such statement will be malicious if the belief isan unreasoning belief. (Vide Tissera v. Holloway3.)
The state of mind of a person cannot be known and can only be gatheredfrom his conduct and other circumstances—one of the modes of provingmalice is to show that the statements were so reckless that the plaintiffcould have had no bona fide belief in their truth. Vide Gulick v. Green *;Sand v. Bell6; and Royal Aquarium and Summer and Winter GardenSociety v. Parkinson6. The manager did not know anything about theplaintiff. He formed his belief on a petition alleged to have been sentby a woman. The woman is not called and at the inquiries held nothingwas proved. Hence the statements were made recklessly and were notbona fide and hence malicious.
E. F. N. Gratiaen (with him O. L. de Kretser, Jnr.), for defendant, re-spondent.—Plaintiff is a member of the Mercantile Union and as suchappealed .to Mr. Goonesinha, who is the President. The Mercantile Unionis a member of the All-Ceylon Trade Union Congress. The defendant is amember of the Employers’ Federation. There is a pact between theEmployers’ Federation and the All-Ceylon Trade Union Congress to referall matters affecting employees to arbitration. Mr. Goonesinha wroteas President of the All-Ceylon Trade Union Congress and the replywas correctly addressed to the Secretary. Communications made toclerks in the ordinary course of business are privileged. Hence it is aprivileged occasion, and plaintiff can only succeed on proof of expressmalice. "The question whether there is malice or not is a question offact and the Commissioner holds that there is no malice. Such a finding1 (1893) 3 Q. B. 54.* 20 N. L. R. 176.
a (1891) 1 Q. B. 524.5 IS N. L. R. 318.
3 1 S. C. C. 29 at 30.* (1892) 1 Q. B. 431.
SOERTSZ A.CJ.—Vaitilingam v. Volkart Bros.
cannot be canvassed in the Appeal Court without leave obtained onthe facts. There is no proof of express malice and plaintiff’s actionmust fail.
H. W. Thambiah, in reply.—If the statements have been made recklessly,the question whether they amount to malice is a question of law and canbe canvassed in this Court.
Privileged can only be claimed within narrow limits.
Cur. adv. vult.
May 9,1939. Soertsz A.C.J.—
The principal question in this case is whether the defamatory statementcomplained of was made on a privileged occasion. I see no room fordoubt on that pint. The defendants had been the employers of theplaintiff, but had discontinued his services on certain reports made tothem by their Superintendent. The plaintiff’s position was that he wasthe victim of the defendants’ Superintendent who was ill-disposedtowards him, and being a member of the Mercantile Union, the plaintiffwent to Mr. Goonesinha, the President of that Union, and prevailed uponhim to take his case up with his late employers. The . Mercantile Unionwas a member of the All-Ceylon Trade Union Congress between whomand the Employers’ Federation of Ceylon of which the defendants weremembers, there was a pact by virtue of which it was possible for-disputesand differences arising between them to be investigated and decided upon.When, therefore, Mr. Goonesinha, at the instance of the plaintiffaddressed certain requests to the defendants, the defendants’ reply tothem must be considered as a reply on a privileged occasion, for it is areply made to a person who had such an interest in the matter as toentitle him to make the request or to put the question, and it was a replymade in pursuance of a duty imposed on the defendants by their pactwith, the Trade Union Congress. Mr. Thambiah contended that theprivilege, if it did exist, was lost in view of the fact that the defendantsaddressed this reply in which the defamatory statement occurs to theSecretary' of the Trade Union Congress and not to Mr. Goonesinhahimself. In my opinion, there is no substance in this contention. Theevidence is clear that Mr. Goonesinha is the President of the TradeUnion Congress. It was on paper belonging to that body that Mr. Goone-sinha had written the letter to which the defendants were replying, andthe names of the other officer-bearers, among them that of the Secretaryof the Congress appeared, and the defendants were acting in accordancewith ordinary business methods when they, addressed their reply to theSecretary. When, the plaintiff invoked the assistance of the MercantileUnion and of the Trade Union Congress he must be taken to haveconsented to the matter being handled by them. and the Employers’Federation, or by the members of that Federation in the usual way.Volenti non fit injuria. I, therefore, agree with the finding of the Com-missioner that the occasion was privileged unless tibe plaintiff was ableto show that the defendants were acting with malice as understoodin law.
On this point, Mr. Thambiah’s case was that the defendants were acting ^maliciously when they without sufficient investigation repeated in their
de Livera v. Abeysinghe.
letter of reply a defamatory statement said to have been made by one oftheir labourers in a petition presented to them complaining against theplaintiff.
Now in regard to this contention, I think the law is clear. I do notthink I can do better than put it in the words in which Salmond summarisesthe case law on the point:—“It is neither necessary nor sufficient toconstitute liability that the statement was made without reasonable andprobable cause. Not necessary—for if the statement is made maliciously,and is infact false, the defendant is liable for it although he had good'grounds for believing it to be true; malice destroys the privilege, andleaves the defendant subject to the ordinary law by which a mistake,however reasonable, is no defence. Neither is the absence of reasonableand probable cause sufficient in itself to constitute liability. The lawrequires that a privilege shall be used honestly, but not that it shall beused carefully. Negligence in making defamatory statements on aprivileged occasion is not actionable. The unreasonableness of thedefendant’s belief may, however, amount to evidence of malice ”. TheRoman-Dutch law takes the same view of the matter.
In this case it cannot be said that the defendants’ view of the plaintiff’sconduct was so unreasonable as to show malice. The plaintiff acquitsthe defendants of malice in the sense of hatred or ill-will to-wards him, andthat, in my view, has an important bearing on the question whether thedefendants acted from an improper motive when they wrote as they did.
I dismiss the appeal with costs.
VAITILINGAM v. VOLKART BROS