PIYADASA DE SILVA v. GUNASEKERA

032-SLLR-SLLR-1980-V-2-PIYADASA-DE-SILVA-v.-GUNASEKERA.pdf


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PIYADASA DE SILVA v. GUNASEKERACOURT OF APPEAL
RATWATTA, J. AND ATUKORALE, J.
C.A. (S.C.) 12/70 (F) D.C. COLOMBO 67800/MJULY 14, 15, 16, 1980
Defamation – Animus injuriandi – Privilege.
The original defendant attended the E.N.T. clinic at the Balapitiya GeneralHospital as a patient on 20.08.1966, where he alleged the doctor in attendancebehaved in a rude and insulting manner towards him. As he did not know theidentity of that doctor, he made prompt inquiries from the dispenser of thehospital who gave the name of the plaintiff as the doctor concerned. On the sameday the original defendant by letter P1 addressed to the Minister of Health withcopies to the P.S.C. and the Director of Health Services, complained about theincident referring to the plaintiff by name and giving probable reasons for theplaintiff so behaving towards him. At an inquiry held in consequence to P1, theplaintiff was shown to the original defendant who stated that he was not the errantdoctor. It transpired that the plaintiff was the eye surgeon, and the E.N.T. surgeonon duty on that day of the alleged incident was someone else. The plaintiff suedthe original defendant for defamation on the contents of letter P1.
Held:There was no intention on the part of the original defendant to defame theplaintiff, and the reference to the plaintiff was due to a bona fide belief that the
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E.N.T. surgeon was the plaintiff. P1 was published on a privileged occasion. If theoccasion on which the alleged defamatory words were written was privileged, itwas open to the plaintiff to displace that privilege by positive proof of express oractual malice. So long as the original defendant honestly believed what he said tobe true he was not guilty of malice merely because the honest belief was inducedby gross and unreasonable prejudice.
Cases referred to:
Naude v. Glaassens – SALR 191 CPD 181.
Hulton & Co. v. Jones -1910 AC 20.
Gulick v. Green – 20 NLR 176.
Fernando v. Peris – 21 NLR 7.
Ariyaratne v. Wickremaratna – 32 NLR 235.
Carbone! v. Robinson & Co. (Pte) Ltd. and Another – 1965 (1) SALR 134.
Harrock v. Lowe -1973 (3) AER 1094; 1974 (1) AER 662.
APPEAL from the Order of the District Court of Colombo.
H. W. Jayewardene Q.C. with Chula de Silva and Ms. P. Seneviratne tor thedefendant-appellant.
N. R. M. Daluwatta for the plaintiff-respondent.
Cur adv vult.
12th September, 1980.
RATWATTE, J.
The original Defendant-Appellant (referred to hereinafter forconvenience as the Defendant) died during the pending of theappeal and his widow was substituted as his legal representative.The Plaintiff-Respondent (referred to hereinafter as the Plaintiff)instituted this action against the Defendant claiming damages fordefamation. It was averred by the Plaintiff that the Defendant by hisletter dated 20.08.1966 addressed to the Honourable The Minister ofHealth with copies to the Public Service Commission (P.S.C.) and theDirector of Health Services (D.H.S.), published to them defamatorystatements contained in the said letter concerning the Plaintiff. Acopy of the said letter was annexed to the Plaint marked A with thedefamatory statements underlined therein. The Plaintiff pleaded thatthe said defamatory statements were false concerning the Plaintiffand made maliciously and recklessly. The Plaintiff asked for a sum ofRs. 25,000/- as damages for the injury suffered by him to his feelings,credit and reputation.
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The Defendant in his answer admitted that she sent the letterreferred to in the Plaint to the Minister of Health with copies to theP.S.C. and to the D.H.S., but he denied that the letter contained anydefamatory statements. The Defendant pleaded that the occasion ofthe publication of the said letter to the Minister of Health and of thepublication of copies thereof to the P.S.C. and to the D.H.S. wasprivileged and that such publication was made by the Defendantwithout malice and without animus injuriandi. The Defendant furtherpleaded the defence of fair comment.
After trial the learned District Judge held that the letter referred toin the Plaint concerned the Plaintiff and that the said letter wasdefamatory of the Plaintiff. He further held that the occasion of thepublication of the letter was privileged, but that the presence ofanimus injuriande destroyed the privilege. The learned District Judgewas of the view that the publication was made with malice towardsthe Plaintiff. He further held that the allegations of fact contained inthe letter were not true in substance and in fact in so far as theallegations concerned the Plaintiff. As regards the defence of faircomment the learned Judge held that there was no fair commentwhere there was no truth. The Plaintiff was awarded the sum ofRs. 8,000/- as damages.
According to the Defendant who was a senior legal practitioner ofthe Balapitiya courts and a J.P.U.M., the circumstances under whichhe came to write the letter in question which was produced markedP1 at the trial, were as follows: On 20.08.1966, as the Defendant wassuffering from an earache he went to the Balapitiya Hospital shortlybefore 2 p.m. to attend the Ear Nose and Throat Clinic (E.N.T.) whichaccording to a notice board was to be held at 2 p.m. The Defendantwent there and sat down in the room meant for patients. A nurse whowas there wrote down the names of the patients. The Defendant wasgiven the number 1 ticket. The doctor came at about 2.30 p.m. andthe Defendant was called in by the E.N.T. Surgeon. The Defendanthad not seen the E.N.T. Surgeon before and did not know his name.The Defendant went into the consulting room, which was separatedfrom the rest of the room by a curtain. The doctor was seated insideon a chair and there was another chair in front of him. By the sidethere was a table with some instruments on it. The Defendant satdown on the empty chair and turned it about 10 degrees to enablethe doctor to see his ear better. Then the doctor asked the Defendantrudely “Why did you turn the chair which I had placed in the way Iwanted.” The Defendant had replied that he turned the chair for thepurpose of enabling the doctor to see the ear better and theDefendant put the chair in the original position.Then the doctor issaid to have replied “You had no business to turn the chair.” He had
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asked the. Defendant to get out. The Defendant thereupon got up andwhen he had gone about 5 or 6 feet, the doctor called him back andexamined him. The doctor had given him a prescription for somemedicine. As the Defendant spoke in a loud and rude voice, what hetold the Defendant could have been heard by the other patients whowere waiting. The Defendant wanted to find out what the name of thedoctor was. He went to the Dispensary where the drugs aredispensed with the prescription and there were two people in thedispensary whom the Defendant did not know. It transpired at thetrial that the two persons in the Dispensary were two dispensersnamed Weliwitigoda and M.. A. Gunatilleke. The Defendant askedthem for the name of the E.N.T. Surgeon and Weliwitigoda had statedthat the name was Dr. Goonesekera, the son of a former Minister. TheDefendant stated that he had no reason to doubt the informationgiven to him by the dispensers. The defendant states that headdressed his mind as to why the doctor should have behaved in themanner in which he did, merely because the Defendant turned thechair. Then it struck the Defendant that the doctor may have gotannoyed because the Defendant was at the time wearing a greenbush coat, green being the colour of the U.N.P. of which theDefendant was a member. The Defendant knew the Plaintiff’s father,Mr. D. S. Goonesekera who was the Minister of Labour and SocialServices under the previous government which was defeated by theU.N.P. at the General Elections. Mr. D. S. Goonesekera had also losthis seat. The Defendant on the same day sent the letter P1 to theHonourable Minister of Health with copies to the P.S.C. and the D.H.S.
It is necessary to quote the letter P1 in its entirety. I therefore do sowith the portions underlined as in the copy of P1 annexed to thePlaint:
Piyadasa de Silva, J.P.U.M."Waidya Bhawan”,
Proctor & Notary.Kandegoda,
Ambalangoda.
20th August, 1966.
To: The Hon. the Minister of Health,
Colombo.
Sir,
Complaint against a Public Servant – a DoctorI have the honour to bring to your notice the rude and insultingmanner a Public Servant treated me today at Balapitiya Hospital. I
I went there at 2 p.m. to consult the E.N.T. Surgeon about my eartrouble. He came in at about 2.30 p.m. I sat in front of him and turnedmy chair about 10 degrees to enable him to see my ear better.
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He without any provocation by me asked me roughly whatbusiness i had to turn the chair which he has in front of him ashe wanted. I explained that I did it to be able to show my earbetter. He talked to me very rudely and asked me to get out of theConsultation Room. After this humiliation he called me back intothe Consulting Room and talked to me roughly still indicating hisannoyance.
I had not known this Doctor before or seen him earlier. When Iinquired from the Dispensary Clerk for the Doctor’s name I was toldthat he was one Dr. Gunasekera, a son of a Minister of a formerGovernment.
It then came to my mind that perhaps the colour of my bushcoat which I was wearing, viz; green, may have upset him as that isthe colour of the Political Party that had deprived his father of aportfolio and his seat in Parliament. He may have been in a badtemper as he had come half an hour late for duty. But whyshould I be the victim of his ill-manners? He was in a dominantposition as doctor over me, a patient in his consulting room. Is itproper that a public servant should treat a taxpayer like this? Hedisplayed his power or arrogance in a public place and in thepresence of many members of the public who were present, there atthat time. I request that you inquire into this officer's conduct.
Yours faithfully,
Sgd
Copies to P.S.C. & D.H.S.
In consequence of the letter P1, the D.H.S. by his letter D1A dated05.09.1966, directed the Superintendent of Health Services, Galle,Dr. Siriwardene to hold an immediate inquiry into the complaint madeby the Defendant in P1. A copy of P1 was forwarded along with D1A.On D1A Dr. Siriwardene had made an endorsement that thepreliminary inquiry will be held on 24.09.1966 at the GeneralHospital, Balapitiya. Earlier by his letter D1 dated 03.09.1966addressed to the Defendant the D.H.S. had acknowledged thereceipt of P1 and informed the Defendant that he had requested theDeputy Director of Medical Services to cause an investigation to bemade. Dr. Siriwardene, the S.H.S., Galle, by his two letters P4 and D3both dated 08.09.1966, addressed to the Plaintiff and the Defendantrespectively, informed them that a preliminary inquiry will be held byDr. Siriwardene at the General Hospital, Balapitiya on 24.09.1966 at10 a.m. The Plaintiff and the Defendant were requested to be presentat the inquiry. Dr. Siriwardene is a brother-in-law of the Plaintiff. The
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inquiry was held on that day. Both the Defendant and Plaintiff werepresent. According to the Defendant he was called in by Dr.Siriwardene and his statement was recorded. The Defendant statedthat he narrated all what happened and also told Dr. Siriwardene thatthere was another patient who was with the Defendant at the E.N.T.Clinic on 20.08.1966 and who was number 2 on the list of patients,who was present at the inquiry. His name was Wilson Silva. After theDefendant’s statement was recorded, according to the Defendant, acertain person was called in and he was asked whether that personwas the E.N.T. Surgeon and the Defendant had replied in thenegative. That other person who was called in was the Plaintiff. Thisevidence is supported by Dr. Siriwardene. According to theDefendant, Dr. Siriwardene then informed him that the Plaintiff wasthe Eye Surgeon and that the E.N.T. Surgeon who held the E.N.T.Clinic on 20.08.1966 was Dr. Ramachandaran. At the inquiry Dr.Siriwardene had recorded the statements of Dr. Ramachandran,Wilson Silva and the two Dispensers, Weliwitigoda and M. A.Gunatilleke. At the conclusion of the inquiry Dr. Siriwardene sent hisreport P5 dated 03.02.1967 to the D.H.S.
In the report P5 Dr. Siriwardene refers to what transpired at theinquiry and reported that the comments made by the Defendant inparagraph 5 of P1 would not apply to the Plaintiff. He further statedthat the allegations of rudeness and callous treatment made in P1referred to Dr. Ramachandran who held the E.N.T. Clinic at Balapitiyaon the day in question. Dr. Siriwardene went on to state in P5 thatthere was no evidence to show that Dr. Ramachandran was rude tothe Defendant or had given callous treatment.
The Plaintiff sent the letter of demand P2 dated 12.12.1966 to theDefendant claiming a sum of Rs. 25,000/- as damages. In P2 thePlaintiff has relied not only on P1, but on defamatory statementsalleged to have been published orally to some of the Plaintiff’sprofessional colleagues and members of the public. But in the plaintthe Plaintiff has confined himself to P1 only. The Plaintiff has notpleaded an innuendo, he is relying on defamation per se.
Three questions arise for our consideration: Firstly, whether therehas been a defamation of the Plaintiff as contemplated by our law. Inconsidering that question it has to be borne in mind that in Roman-Dutch Law animus injuriandi is an essential element in proceedingsfor defamation. Secondly, whether the occasion on which the allegeddefamatory statements were published, was privileged. Thirdly, if theoccasion was privileged, was there malice.
As these three questions are closely connected and bound upwith each other, they will have to be considered together. It was the
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contention of Counsel for both parties that the document P1 mustbe read as a whole. Learned Counsel for the Defendant,Mr. Jayewardene contended that when P1 is read as a whole it isclearly seen that the complaint of the Defendant is against the E.N.T.Surgeon and not against the Plaintiff. The Plaintiff's name ismentioned in P1 because the Defendant believed that was the nameof the E.N.T. Surgeon. The Plaintiff was an Eye Surgeon. On the otherhand learned Counsel for the Plaintiff, Mr. Daluwatte contended thaton a reading of P1 as a whole there can be no doubt that theDefendant intended to refer to the Plaintiff and no one else. Heargued that the one thing that stands out in P1 is the Plaintiff’s nameand the reference to his father, a former Minister.
It is necessary to analyse the contents of P1. The heading of P1 is“Complaint Against a Public Servant Doctor.” In the first threeparagraphs of P1, the Defendant refers to the E.N.T. Surgeon. Theword “He” in these three paragraphs is a reference to the E.N.T.Surgeon. The first reference to the Plaintiff is in paragraph 4. Theword “He" in that paragraph refers to the E.N.T. Surgeon who theDefendant had been informed, was Dr. Goonesekera, the Plaintiff, ason of a Minister of a former Government. Taking paragraph 4 byitself it is not libellous. Having received the information from thedispenser that the name of the E.N.T. Surgeon was Dr. Goonesekera,the Defendant goes on in the 5th and last paragraph of P1 toattribute to the Doctor, who is said to have been rude to him, apossible motive for his behaviour. Mr. Jayewardene submitted thatthe mere attribution of a possible motive for the conduct of a personwho is identified by a wrong statement made by the dispenser, doesnot by itself constitute animus injuriandi. On the first date of theinquiry held by Dr. Siriwardene, which was the very first opportunitythe Defendant had of correcting his mistake, the Defendant said thatthe doctor whom he had consulted on the day in question was notthe Plaintiff. The Defendant’s evidence is that although he knew thePlaintiff’s father very well for about 20 years, he did not know thePlaintiff and had never seen him till he saw him on the first date ofinquiry on 24.09.1966. The word “He” is used four times in the lastparagraph of P1 and the word refers to the E.N.T Surgeon whom theDefendant mistakenly thought was the Plaintiff. I am inclined to agreewith the submission of Mr. Jayewardene that at the most thereference to the Plaintiff in P1 was a statement made on a mistakenidentity based on an inaccurate identification by the dispenser whoought to have known and certainly would have known that the doctorin question was not Dr. Goonesekera. We do not know whether thedispenser made a deliberate statement or what purpose he had inmind. The dispenser Weliwitigoda who gave the information to theDefendant was not called as a witness at the trial. Mr. Jayewardenedrew our attention to the letters sent by the D.H.S. regarding the inquiry
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to be held by Dr. Siriwardene. The letter D1 sent by the D.H.S. to theDefendant bears the heading "Complaint Against a Public Servant -E.N.T. Surgeon, Balapitiya G.H.” The letter D1A addressed to theS.H.S., Galle by the D.H.S. bears the same heading as D1. The letterD3 addressed to the Defendant by the S.H.S. Galle summoning theDefendant for the inquiry bears the heading “Complaint Against aPublic Servant – A Doctor.” The letter P4 addressed to the Plaintiff bythe S.H.S. Galle, summoning the Plaintiff for the inquiry bears the sameheading as D3. The Plaintiff is described in P4 as the Eye Surgeon,Galle. None of these documents refer to any complaint againstDr. Goonesekera. There is substance in Mr. Jayewardene’s submissionthat these documents show that the Department itself did notunderstand P1 as a complaint against Dr. Goonesekera but as acomplaint against the E.N.T. Surgeon. This is further buttressed by thefact that the Department appointed the Plaintiff’s own brother-in-law,Dr. Siriwardene to hold the inquiry. The Plaintiff himself in his evidencestated that he was officially made aware for the first time that thecomplaint had been made against him, was when he received thedocument P4 requiring him to attend the inquiry on 24.09.1966. Hestated that earlier when he was in the Head Office he came to knowthat there was a complaint against him. According to the Plaintiff at theinquiry Dr. Siriwardene questioned him about the contents of P1.
As I have already held above the reference to the Plaintiff by theDefendant in P1 was on a mistaken identity. I am of the view thatthere was no intention on the part of the Defendant to defame thePlaintiff, and further that the reference to the Plaintiff was due to abona fide belief on the part of the Defendant that the E.N.T. Surgeonwas Dr. Goonesekera. Nathan in his book The Law of Defamation inSouth Africa (1933 edition) at page 139 states as follows:
“If the Plaintiff cannot clearly show that he was the personintended by the statement of the Defendant, he must fail in hisaction.”
Nathan then goes on to refer to the case of Naude v. Glaassens.(1)The facts in that case are in the headnote. In that case too theDefendant did not know the Plaintiff or of his existence. It was held inthat case that the circumstances tended to disprove any malice or ill-will on the part of the Defendant towards the Plaintiff. Mr. Daluwattecited the judgment of the House of Lords in Hulton and Company v.Jonesl2). That too was a case of mistaken identity. The facts in thatcase are referred to in the headnote. The House of Lords held thatthe plaintiff in that case was entitled to maintain the action fordamages. This judgment was considered in the case of Naude v.Glaassens (supra) and Searle, J. stated at page 186 that it was opento some doubt whether the rule laid down in Hulton & Co. v. Jones<2)
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“that the true test in all cases is what would be the reasonableinterpretation of what was said as appearing to those who heard it, isin accordance with the principles of Roman-Dutch Law.” McKerron(6th edition) too states at page 168 that it is a debatable questionwhether the well-known English case of Hulton i/. Jones can bereconciled with the principles of the Roman-Dutch Law.
As regards the defence of qualified privilege the learned DistrictJudge has held that the occasion on which P1 was published wasprivileged. Mr. Daluwatte submitted that he does not concede that asfar as the Plaintiff was concerned P1 was published on a privilegedoccasion, because the allegations contained in P1 relating to thePlaintiff were not true. I do not agree with this submission ofMr. Daluwatte. I have already held that the reference to the Plaintiffwas due to a bona fide mistake. I am of the view that the learnedDistrict Judge was correct in holding that P1 was published to theHonourable Minister of Health, the D.H.S. and the P.S.C. on aprivileged occasion. That finding is in accordance with the well-known principles relating to the plea of qualified privilege. But thelearned District Judge went on to hold that the presence of animusinjuriandi destroyed the privilege and that the publication was madewith malice towards the Plaintiff. He was of the view that theDefendant had written the letter P1 with a reckless disregard of whatthe truth was as to the identity of the person concerned. The questionthen arises whether the Defendant was reckless or negligent inmaking the statements made in P1 in reference to the Plaintiff. I donot think that on the evidence it could be said that the Defendant wasreckless or negligent. The doctor whom the Defendant consulted wasnot known to him and in view of what happened the Defendant wasdesirous of finding out the identity of the Doctor concerned. He wentarmed with the prescription issued by the Doctor to the Dispensaryand made inquiries. He was told by Weliwitigoda that the Doctor’sname was Dr. Goonesekera. Both Weliwitigoda and Gunatilleke wereaccording to the Plaintiff’s evidence old hands at the BalapitiyaHospital. I think the Defendant was entitled to rely on the informationfurnished by Weliwitigoda. The learned District Judge states that theDefendant instead of merely relying on the information furnished bythe dispenser, should have made inquiries from the D.M.O. of thehospital. The learned Judge had lost sight of the fact that theDefendant went to the Dispensary armed with the prescription fromthe Doctor. It must also be remembered that the Defendant who wassuffering from an earache must have been in pain at the time, andthe letter PI was sent on the same day. I am of the view that thelearned District Judge has misdirected himself.
It is a well-known principle of the Roman-Dutch Law that in anaction for defamation when it is shown that the occasion on whch the
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words were uttered or written was privileged, it is upon the other sideto displace that privilege by positive proof of express or actualmalice – Gulick v. Green,<3) Fernando v. Peris w and Ariyaratne v.WickremeratneP In Carbone! v. Robinson & Co. (Pte) Ltd. andAnother,(6) Hemmings, J. states as follows at page 151:
“For the sake of completeness I deal briefly with the case on thebasis that the defence of privilege has been proved. ThePlaintiff could then only succeed upon proof that thenewspaper, in publishing the letter was actuated by malice orexpress desire to injure him, or more accurately, by animusinjuriandi. This may be established by proving that thenewspaper acted from some indirect or improper motive, or thatit stated what it did not know to be true, reckless whether it betrue or false. Mere excess of language does not necessarilyprove malice, though it may be evidence of it. A defendant whoclaims privilege is entitled to succeed if he acted in good faith,and had a genuine belief in the truth of his statements, even ifthe belief was founded on nothing but hearsay, or was a foolishone. It is, I think more accurate to say that it is for the Plaintiff toprove the absence of an honest belief. Unreasonableness,however gross, is only evidence of and not a substitute foranimus injuriandi. Similarly, mere negligence can never amountto malice."
Mr. Jayewardene relied very strongly on the judgments of the Courtof Appeal and the House of Lords in the case of Harrock v. Lowe.mThe facts of that case are narrated in the headnote. It was acceptedthat the occasion on which the defamatory statements were allegedto have been made was privileged, but it was pleaded that theDefendant in that case was motivated by malice. It was held in theCourt of Appeal judgment as follows:
The appeal would be allowed since the judge had misdirectedhimself in finding that malice was established. So long as adefendant honestly believed what he said to be true he was notguilty of malice merely because the honest belief was inducedby gross and unreasoning prejudice. Accordingly, the findingthat the defendant honestly believed that what he said was truewas inconsistent with a finding that he was actuated by malice,and the plea of qualified privilege therefore succeeded.
The House of Lords affirmed the judgment of the Court of Appealand held as follows:
Since the defendant, however prejudiced he had been, orhowever irrational in leaping to conclusions unfavourable to the
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plaintiff, had believed in the truth of what he had said he wasentitled to succeed in his defence of privilege. Although grossand unreasoning prejudice could give rise to an inference ofmalice where it constituted evidence that the defendant hadbeen indifferent to the truth or falsity of what he had said, it couldnot do so in a case when it had induced him to believe in thetruth of his allegations and there were no other circumstancesfrom which malice could be inferred. Accordingly the appealwould be dismissed.
I am of the view that the dicta in the judgment in Harrock v. Lowemare applicable to the instant case. I am of opinion that animusinjuriandi has not been established in this case and that the plea ofprivilege succeeds.
For these reasons I would set aside the judgment of the learnedDistrict Judge and dismiss the Plaintiff’s action.
As regards costs I do not think that in all the circumstances of thiscase the Defendant should be awarded his costs of action. When atthe inquiry held by Dr. Siriwardene on 24.09.1966 the Defendantrealized that he had made a bona fide mistake, he did not offer anapology to the Plaintiff or withdraw the allegations in so far as theyconcerned the Plaintiff. Even in his reply P3 to the Letter of Demandsent on behalf of the Plaintiff, the Defendant did not attempt to makeany amends. In the answer filed by the Defendant, he maintainedthat “in so far as the said letter (i.e. P1) consists of allegations of fact,it is true in substance and in fact ….”. No offer was made toexpress regret at the trial until a late stage. It was only after all thePlaintiff’s witnesses had given evidence and just before Plaintiff’scase was closed, that Counsel for the Defendant stated that his clientwas willing to express regret. Whilst these are not matters that wouldhave been relevant in deciding whether the Defendant was liable indamages, they would have been relevant matters to have beenconsidered in computing the quantum of damages if it was foundthat the Defendant was liable in damages for defamation. I am of theview that they are also relevant matters to be considered on thequestion of costs. I would therefore hold that the parties should beartheir own costs of this action in both Courts.
ATUKORALE, J. -1 agree.