019-NLR-NLR-V-18-JAYASURIY-v.-SILVA.pdf
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('resent: Wood Benton C.J. and Ennis J.
JAYASUBIA v. SILVA.324—D. C. Galle, 12,623.
Slander—Opprobrious language—Malios—'Damages, nominal.
The mere use of opprobrious language is technically actionableunder the common law; proof of special damage is not necessaryto support an action of slander; malice mav be inferred fromcircumstances indicating an intention to commit the wrong.
rpHE facts appear from the judgment.
A. St. I'. Jaycwurdene, for the appellant.—Mere words of abuseare not of themselves actionable (Qoonetileke v. Geronis Perera l).Sir Edward Creasy calls these actions ill founded and pettifogging.(Grenier, part 111., p. 42, Proof of special damage is necessary.Actions of this kind should be discouraged. The appellant hasalready been fined in the Gansabhawa for the same offence. Thatwas quite sufficient to clear the character of the plaintiff.1
H. Z. Fernando, for the respondent.—Slander by abuseis actionable per se (Appuhamy v. Kirihamy,2 4 Maasdorp 95).Substantial damages should be awarded to vindicate one's honour(4 Maasdorp 16).
October 21, 1914. Wood Benton C.J.—
The plaintiff, the respondent to this appeal, sued the defendant,who is the appellant, in the District Court of Galle claiming a sumof Bs. 1,000 as damages for slander. The findings of the learnedDistrict Judge on the evidence have not been seriously disputed,and the material facts are shortly these. The plaintiff had sued thedefendant's uncle in the Court of Bequests of Balapitiya for analleged loan of Bs. 50. The uncle denied the loan, and there was areference to the oath. On the day on which the oath was to betaken a large crowd had assembled to witness the ceremony. Thedefendant's uncle, however, withdrew at the last moment from hisundertaking and paid up the amount of the plaintiff's debt. Thedefendant thereupon went up to the plaintiff, who is a man of aboutseventy-two years of age, and had held the office of Vidane Arachchifor a number of years, and demanded from him a sum of threesovereigns, which he said he had given to him several years before.The District Judge has accepted the plaintiff’s version with regard tothis alleged loan, and holds that it was an advance for the purchaseof certain lands, ard that as the sale was not completed the advancewas forfeited. The defendant, who appears to have been very much» (1886) 7 S. C. c. 154.2 (18.95) 1 N. L. R. 83.
1*14*
1914.
Wood
Renton O.J.
•/ •••fitwriav. Silva
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annoyed at what had happened in regard to his uncle’s agreementto take the oath, was still more annoyed by the plaintiff’s attitudeas tos the loan of the three sovereigns. Thereupon he applied to theplaintiff opprobrious language of a kind with which our experiencein the Assize Court has made us all familiar, and which in itself oftenmeans very little. The Roman-Dutch law authorities cited to usin the course of the argument point to the conclusion that the mereuse of opprobrious language is technically actionable under thecommon law; that proof of special damage is not, as is ordinarilythe case in England, necessary to support an action of slander; andthat malice may be inferred from circumstances indicating anintention to commit the wrong. There is an obiter dictum of SirBruce Burnside C.J. to the contrary, in so far as the right of actionfor mere abuse is concerned, in Goonetileke v. Geronis Perera. 1 Butit seeroto to stand alone, and on the materials before us I would holdthat such an action as the present lies. On the other hand, theclear policy of our law is to discourage litigation of this kind, for theobvious reason that-, if a different attitude were adopted, 41 ourCourts," to use.the language of Sir Bruce Burnside in the case justreferred to, " would soon be flooded with frivolous and filthy suits."There may no doubt be circumstances which invest such an actionas this with real gravity, for example, where insulting language Isapplied to a respectable woman in the presence of a number of herfriends (see Appuhamy v. Kiriliamy 2). But the facts now before uscertainly do not, in my opinion, justify even the moderate awardof damages which the plaintiff has received from the learned DistrictJudge, namely, a sumNof Rs. 25. No doubt the plaintiff was an oldand respectable man, and the language of which he complains wasapplied ' to him in the presence of a considerable number of hisfriends'- as well as of the general public. On the other hand, there isno reason to doubt but that the defendant was acting under theimpulse 'of sudden anger, and he has already been punished byhaving been prosecuted and fined Rs. 5 in the Gansabhawa for thevery misconduct which forms the subject of Ihe civil proceedings.We are told that the plaintiff came into Court only for the purposeof clearing his character. I should have thought that that endwould have been sufficiently accomplished by the prosecution ofthe defendant before the Village Tribunal, and that the plaintiffmight well' have left civil litigation alone. I would dismiss theappeal, ‘ reducing, however, the damages to one cent, and woulddirect that each side should pay its own costs of the action and ofthe appeal. It is scarcely necessary to add that the reduction ofthe damages in no way involves the conclusion or the suggestionthat th$ plaintiff is other than a perfectly respectable man.
Ennis Jv—-I agree.Appeal dismissed.
* (1886) f 8. C. C. ir>4.
2 (1895) 1 N. L. R. 83.