SABAPATHI v. HUNTLEY

112-NLR-NLR-V-39-SABAPATHI-v.-HUNTLEY.pdf


396
Delivered by LORD ALNESS.—Sabapathi v. Huntley.
[In the Privy Council-]
1937Present : Lord Thankerton, Lord Alness, and
Sir Lancelot SandersonSABAPATHI v. HUNTLEY.
Defamation—Charge of negligence and. incompetence against Medical Officer—Letter to Director of Medical and Sanitary Services—Communicationto Chairman of – Planters’ Association—Publication of proceedings ofAssociation in the Press—Defence of privilege—Plea of justification asdefence—Public benefit—Roman-Dutch law.
The plaintiff, a Government Medical Officer, sued the defendant torecover damages for alleged defamatory statements made by the defend-ant in a letter-written by him to the Director of Medical and SanitaryServices complaining of the negligence and incompetence of the plaintiffin the medical treatment received by him and his wife. The statementswere repeated at an interview with the Director on a subsequent date.
A copy of the letter was also sent by the defendant to the Chairmanof the Planters’ Association and was read at a meeting of the Association,at which several members expressed themselves in strong terms .onplaintiff’s conduct and a resolution was passed endorsing the terms ofthe letter.
A report of the proceedings and the terms of the letter were publishedin the public newspapers.
Held, that the statements made at the interview with the Director ofMedical and Sanitary Services were made on a privileged occasion butthat they were made maliciously.
Held, further, that the statements made in the letter to the Chairmanof the Planters’ Association were not privileged.
^^PPEAL from a judgment of the Supreme Court1.
• December 21, 1937. Delivered by Lord Alness.—
This is an appeal from a judgment and decree of the Supreme Courtof the Island of Ceylon, dated March 9, 1936, which set aside a judgmentand decree of the District Court of Avissawella, dated September 1, 1934.These judgments and decrees were pronounced in an action for defamation,in which the appellant was plaintiff, and the respondent was defendant.The District Court awarded the plaintiff a sum of Rs. 10,000 as damageswhile the Supreme Court dismissed the plaintiff’s action.
The circumstances under which the present suit was brought, excludingcontroversial matter, are as follows : —
The plaintiff is a Bachelor of Medicine and Master of Surgery of theUniversity of Madras, a Licentiate of the Royal College of .Physicians,London, and a Member of the Royal College of Surgeons, England. Hewas, at all times material to this action, employed as the Government' District Medical Officer in charge of the Government Hospital at Kara-wanella, and had been in the service of the Government of Ceylon for aperiod of twenty-two years or thereby. The defendant was, at all'material times, a member of the Kelani Valley Planters’ Association,and the superintendent of the Vincit estate, which is situated atRuanwella in the Kelani Valley District.
On January 26, 1933, the defendant and his wife paid a visit to oneMr. D. S. Urquhart, the acting superintendent of the Panawatte estate,
■ 37 N.L.R. 171.
397
Delivered by LORD ALNESS.—Sabapathi v. Huntley.
which is some 16 miles from the Vincit estate, and stopped the nightwith him. On the afternoon of January 27, 1933, the defendant and hiswife were being driven home, in their car,, by a chauffeur, when theywere involved in a serious accident. The car left the road, fell down adeep slope, and overturned. The defendant and his wife were pinnedunderneath the car. A message was thereupon sent to Mr. Urquhart,who arrived in a short time at the scene of the accident in his car. Thedefendant and his wife were assisted into the car, and were conveyed tothe Karawanella Hospital. On their way there, the car stopped at theplaintiff’s bungalow, which is close to the hospital. The plaintiff was inhis bungalow, and, being informed of the circumstances of the accident,he directed the party in the car to proceed to the hospital. He statedthat he would follow them. Beds were prepared with all speed in thehospital for the reception of the defendant and his wife. They wereassisted into the building, were undressed, and were put to bed. Theacting matron of the hospital—Sister Cooper—was in charge of theward to which the defendant and his wife were admitted. After certaintreatment by the plaintiff, who followed them to the ward, he left thedefendant and his wife in charge of Sister Cooper, and returned to hisbungalow. The defendant and his wife decided not to go home, but toremain for the night in the hospital.
Next morning—January 28—the plaintiff visited the defendant andhis wife in the hospital. At that time the acting matron, and a friendof the defendant, named Mr. Nicoll who had come to visit them, were inthe room. The plaintiff visited the defendant and his wife again in thecourse of the afternoon of January 28. In so doing he was complyingwith a rule which required him to visit each patient in a paying wardtwice a day.
On the morning of January 29, the defendant and his wife left hospitaland were driven in Mr. Nicoll’s car to their home. On February 1, 1933,the defendant wrote and dispatched to the plaintiff a letter in thefollowing terms : —
Vincit,
1st February, 1933.
The District Medical Officer,
Karawanella Hospital,
Dear Dr. Sabapathi,
I will be grateful if you would let me have your own hospital bills as soonas possible for settlement as we sail so early.
We are both very much better and grateful for the way in which we werelooked after at Karawanella.
Yours sincerely,
(Sgd.) G. Huntley. –
On February 7, 1933, the defendant had occasion to pay a businessvisit to Colombo, and he was accompanied by his wife. By prior arrange-ment with Dr. de Silva, a leading specialist in the city, he examined thedefendant’s wife, and subsequently the defendant. It is not unimportantto observe that, in the course of his examination, Dr. de Silva, even atthis date, did not diagnose fractures either in the case of the defendantor his wife. On Dr. de Silva’s advice, however, both of them wereX-rayed by Dr. Gunawardene. His examination revealed that both the
398
Delivered by LORD ALNESS.—Sabapathi v. Huntley.
defendant and his wife had sustained fractures by reason of the accident.On the advice of Dr. de Silva, the defendant and his wife repaired to theFraser Nursing Home, where they remained for 45 days, and were treatedby him.
On February 13, 1933, while still in the Nursing Home, the defendantwrote and dispatched to Dr.. Briercliffe, the Director of Medical andSanitary Services, Colombo, a letter in the following terms : —
The Director of Medical and Sanitary Services,Colombo.
Dear Sir,
13th February, 1933.
I have to make a very strong complaint against the negligence andincompetence of the District Medical Officer at Karawanella.
On Friday, the 27th ultimo, after a very severe car smash in Panawatteestate my wife and I and the driver were conveyed by Mr. Urquhart ofPanawatte estate in his car to Karawanella Hospital neither of us being ableto move.
We arrived at the hospital at 8 p.m. and the District Medical Officer aftera very perfunctory examination pronounced definitely that no bones werebroken and without any suggestion whatever of an X-ray examination inColombo put us in charge of the acting matron in the Paying Ward andactually intimated that we might .leave on the following morning.
We stayed two nights as my wife was too unwell to travel, the DistrictMedical Officer making no examination of any sort during that period.
On the 7th instant being able to walk slowly I took my wife who complainedof severe pain in the shoulder into Colombo to see Dr. A. M. de Silva.
He at once ordered an X-ray photo which not only disclosed a fracturedarm but a fracture of the pelvis as well and in my own case a fracture belowthe shoulder. Dr. A. M. de Silva will I know be pleased to furnishfull particulars.
Mr. Urquhart of Panawatte estate can also corroborate my statement reDistrict Medical Officer's treatment at Karawanella Hospital.
I cannot too strongly condemn the attitude of the District Medical Officerwhose one examination at night occupied only two or three minutes andthereafter took no interest in us whatever merely prescribing lead lotionand the usual liniment and leaving everything to the acting Matron. Mydriver was not even given an anti-tetanus injection though I insisted on itfor ourselves.
Both my wife and myself are amazed at such behaviour and hope youwill take strong action in the matter.
Yours faithfully,(Sgd.) G. Huntley.
A copy of this letter was also sent by the defendant to Mr. Selwyn,Chairman of the Planters’ Association. This the defendant did withoutgiving the plaintiff any opportunity of explaining or justifying his conduct.
' The letter referred to is the foundation of the plaintiff’s claim fordamages in the present suit, in so far as it is based on libel. On February21, Dr. Briercliffe referred that letter to Dr. de Silva for report. OnFebruary 23, 1933, at the annual general meeting of the Kelani ValleyPlanters’ Association at Colombo, the Secretary, under direction of theChairman, Mr. Selwyn, read the defendant’s said letter to the meeting.Several members of the association , expressed themselves in strong termsregarding the plaintiff’s conduct, and the association passed a resolutionendorsing the terms of. the defendant’s letter. All this was done without
Delivered by LORD ALNES.—Sabapathi v. Huntley,399
giving the plaintiff any opportunity of being heard in his defence. Thedefendant’s letter, as well as a report of the discussion which ensued,and also the terms of the resolution passed, were published in severalnewspapers in Ceylon. On February 25, Dr. de Silva replied toDr. Briercliffe’s letter of February 21. On February 27 the Planters’Association conveyed to Dr. Briercliffe the terms of the resolution passedby them at their meeting. On March 1, the plaintiff wrote to Dr. Brier-cliffe, expressing his surprise at the published report of the proceedingsof the association, and detailing the circumstances relating to his treat-ment of the defendant and his wife. On March 10, the plaintiff wrotea further letter to the Provincial Surgeon, at Sabaragamuwa, who washis immediate superior, and the official channel of communication withDr. Briercliffe.
On March 16, the defendant, not having had a reply to his letter fromthe Director of Medical and Sanitary Services, sent him a reminder, andon March 20 Dr. Briercliffe wrote to the Secretary of the Kelani ValleyPlanters’ Association a letter in these terms :—
No. T. A. 1/398.
Office of the Director of Medical and Sanitary Services,(P. O. Box 500),
Colombo, 20th March, 1933.
Complaint against Dr. Sabapathi, District Medical Officer, Karawanella.
Sir,
With reference to your letter dated 27th February, . 1933, and my letterNo. T. A. 1/398 of 7th March, 1933, I have the honour to inform you that Ihave had the complaints made by Mr. Huntley carefully investigated. Whenhe left the Karawanella Hospital on the 29th January, Mr. Huntley . appears.■ to have been satisfied with the manner in which he and his wife were caredfor by Dr. Sabapathi since on 1st February he wrote the following letter : —
Dear Dr. Sabapathi,
I will be grateful if you would let me have your own hospital bills as soonas possible for settlement as we sail so early.
We are both very much better and grateful for the way in which we werelooked after at Karawanella.
Yours sincerely, •(Sgd.) G. Huntley.
On7th February,Mr. and Mrs. Huntley consulteda Surgeon ofhigh
professional standing in Colombo, who after a clinical examination advisedthatanX-ray examination should be made. I havecommunicatedwith
this Surgeon, and he informs me that definite diagnosis of the underlyinginjuries in either patient was not possible without the aid of the X-rayexamination.
Dr.Sabapathi isof opinion that Mr. Huntley’sletter of the13th
February is libellous, and he desires to take proceedings. I consider it isregrettable that the letter was publicly discussed at a meeting of your asso-ciation on the 23rd February and published in the Ceylon Daily News on the24th February, before the allegations had been investigated. It appears tome thatMr. Huntley’sallegations of gross neglect andcarelessness -against
Dr. Sabapathi cannot be substantiated, but if a suitable apology were made toDr. Sabapathi I should advise Government not to allow Dr. Sabapathi toresort to legal action.
400
Delivered by LORD ALNESS.—Sabapathi v. Huntley.
In the second paragraph of your letter referred to above you state“ that this would not appear to be an isolated case as during .the discussionseveral other cases were mentioned which would rather point to the completelack of interest of this officer in his duties, and my association felt that theymust ask you to make a full inquiry into the whole matter and take thenecessary action I shall be obliged if you will bring these or similar casesto the notice of the Provincial Surgeon, Sabaragamuwa.
I am, Sir,
Your obedient Servant,
(Sgd.) R. Briercliffe,
Director of Medical and Sanitary Services.
The Hony Secretary,
Kelani Valley Planters’ Association,
Dabar estate, Deraniyagala.
On April 7, 1933, the defendant, at an interview which he had withDr. Briercliffe, made the following statements to him: — (1) that theplaintiff on January 27 had examined the defendant and his wife whilethey were still in the car, and (2) that the examination in each case lastedonly half a minute or so. These statements form the basis of the plaintiff’sclaim for damages, in so far as slander is concerned. On April 8, 1933,the Director of Medical and Sanitary Services wrote a letter to thePovincial Surgeon, Sabaragamuwa, in these terms : —
No. T. A. 1/398.
Office of the Director of Medical and Sanitary Services,(P. O. Box No. 500),
"Colombo, 8th April, 1933.
Complaint against Dr. Sabapathi, District Medical Officer, Karawanella.
Sir,
With reference to your endorsement R 483 of 15th March, 1933, I havethe honour to inform you that a deputation consisting of the Chairman,Kelani Valley Planters’ Association, Mr. Nicolls and Mr. XJrquhart togetherwith Mr. Huntley, discussed with me the case of Mr. and Mrs. Huntley, on the7th instant.
Certain of their statements do not agree with the third paragraph ofDr. Sabapathi’s letter of the 1st March. Mr. Huntley stated and Mr. XJrquhartconfirmed what he said, that Dr. Sabapathi examined Mr. and Mrs. Huntleywhile they were still in the car.
During this examination Dr. Sabapathi felt and moved their arms andassured them that no fractures were present; and the examination in eachcase, lasted only half a minute or so. The patients were afterwards assistedto get out of the car and into the Paying Ward in order that they might begiven injections of anti-tetanus serum. Mrs. Huntley then said she wasunable to go further and Mr. Huntley suggested that they should stay thenight there. There was one bed in the ward and another bed was broughtfor Mr. Huntley. When the patients were in bed. and some of their clothinghad been removed,' Dr. Sabapathi again examined them but this time helooked only for cuts and bruises and did not touch or re-examine the arms orshoulders of their patient for fractures. They consider, therefore, thatDr. Sabapathi did not make a sufficiently careful or reasonable examinationon which to give the definite assurance (which he repeated on several occasions)that no bones were broken. As these statements conflict with Dr. Sabapathi’saccount, I shall be obliged if you will request Dr. Sabapathi to explain thediscrepancies.
I am, Sir,
Your obedient Servant,
(Sgd.) R. Briercliffe,
The Provincial Surgeon,Director of Medical and Sanitary Services.
Sabaragamuwa1 Province,
Ratnapura.
Delivered by LORD ALNESS.—Sabapathi v. Huntley.
401
The plaintiff on April 15 wrote the following letter to the ProvincialSurgeon :—,
The District Hospital,
The Provincial Surgeon, Sabaragamuwa,Karawanella, 15th April, 1933.
Ratnapura.
Sir,
Referring to your T 1585 of 10th April, 1933, and of D. M. & S. S.’s T.A. 1/39Sof 8th April, 1933, I have the honour to submit the following : —
The statement in para. 3 of my letter of 1st March, 1933, is a correctaccount of what transpired on the evening of the 27th January last.
There was no examination of Mr. or Mrs. Huntley by me when theywere in the car. The statement that I examined them in the car is not true.
There was a careful and complete examination of Mr. and Mrs. Huntleyafter they were put in beds in the ward. That the examination and treatmentgiven to them left nothing to be desired is shown by the letter written to moby Mr. Huntley himself on 1st February, 1933, when the facts were fresh inMr. Huntley’s mind and when there was no reason for him to state anythingbut the truth.
After examining the patients with due diligence, I immediatelyrecorded in the bed head tickets of both the patients, the injuries and otherparticulars which I observed and put in writing my opinion in both the bedhead tickets as follows :—
“ No evidence of fracture ”.
I expressed the same opinion orally to the patients.
I annex herewith copies of three statements for your information asto what transpired that evening.
I am, Sir,
Your obedient Servant,
(Sgd.) C. Sabapathi, '
District Medical Officer, Karawanella.
Appended to the plaintiff’s letter were three sworn statements by theacting matron of the hospital, and two other witnesses, named De LaHarpe and Hassim.
On December 21, 1933, the plaintiff, having obtained the necessarypermission, field the present suit against the defendant, the defendantfiled an answer, and certain issues were adjusted for the trial. The casewas heard by Mr. Vythialingam, the District Judge of Avissawella, withouta jury, and he, on September 1, 1934, issued judgment in favour of theplaintiff. He accepted his evidence and that of his witnesses as true.He disbelieved the defendant and several witnesses whom he had adduced.He held that the defendant’s plea of justification was not made put.The learned Judge further held that the defendant’s communication tothe Planter’s Association was not made upon a privileged occasion, buthe also held that if, contrary to his opinion, it was a privileged occasion,the defendant was actuated by malice in making the communication;The defendant appealed to the Supreme Court of Ceylon, and they, onNovember 28, 1934, sustained the appeal and dismissed the plaintiff’s suit.The Supreme Court held that the defendant’s plea of justification had beenestablished. They further held, agreeing with the trial Judge, that thecommunication of the plaintiff’s letter to the Planter’s Association wasnot in the circumstances made on -a privileged occasion, but, differingfrom the trial Judge, that the communication was not maliciously made.From that judgment this appeal has been taken by the plaintiff to HisMajesty in Council.
402
Delivered by LORD ALNESS.—Sabapathi v. Huntley.
There is no dispute between the parties that the written and verbalstatements attributed by the plaintiff to the defendant were made by him,nor is there any dispute that those statements were in the one instance libel-lous and in the other instance slanderous and actionable, unless they wereproved to be true or were written and spoken on privileged occasionswithout malice. The first question which arises accordingly is—has thedefendant’s plea of justification been made out ? The trial Judge inreply to that question said—No. The Supreme Court said—Yes.
It appears to their Lordships that the defendant, in seeking to establishhis plea of justification, is confronted by certain initial difficulties, whichare certainly grave, and which may prove to be insurmountable.
The establishment of the defendant’s plea involves the reversal•of the judgment of the trial Judge, who saw and heard the witnesses,and who was thus in a superior position to that of the Appeal Court, injudging of their demeanour and credibility on a pure question of fact.This is at all times a difficult enterprise for a litigant to undertake. (Cf.Powell v. Streatham Manor Nursing Home ’.) Moreover the Judge offirst instance in this case, despite some slips which he made in disposingof the case—and these, in the circumstances, are not surprising—andwhich were quite properly emphasized by the defendant’s counsel, haswritten a careful and painstaking judgment, which is deserving of fullconsideration and respect.
The statements made by the defendant in his letter to the Planters’Association and at his interview with Dr. Briereliffe, regarding theplaintiff’s incompetence and negligence are antecedently improbable.It must be remembered that their Lordships are concerned with a res-ponsible public official, who had been for 22 years in Government service,and against whom in the past no suggestion of inattention, far less ofincompetence and negligence, had been made. Moreover the plaintiff,on the occasion in question, was dealing with a European planter as apatient, who, to the knowledge of both parties, had sustained a seriousaccident; and it is in evidence that members of the Planters’ Associationare not slow to make complaints of medical inattention on the smallestprovocation. Finally, under this head, there is a complete absence ofmotive or explanation suggested by the defendant to account for thelapse from care and skill on the part of the plaintiff which is attributedto him.
Again, the sweeping character of the allegations made by thedefendant in his letter to Dr. Briereliffe, and at his subsequent interviewwith him, prima facie render them difficult to justify. Incompetence,negligence, lack of interest—all these are attributed, by the defendantto the plaintiff. Whether these allegations be general in their character,or are limited to the occasion in question—and their Lordships are disposedto take the latter view—it is manifest that the charges are hurtful andgrave. The most significant commentary upon them' is made by thedefendant himself, at the close of his letter, when he expresses the hopethat the Director will take “ strong action ” in the matter, and when,in evidence, he said that he hoped that an incompetent man like the
. plaintiff should be removed (record p. 39).
(1935) A. C. 243.
403
Delivered by LORD ALNESS.—Sabapathi v. Huntley.
Lastly, it is difficult to escape from the conclusion that the affirm-ation of the defendant’s plea of justification postulates, upon the plaintiff’s-part, not only perjury, but conspiracy as well. For, if the defendantis right, not only the plaintiff, but Nurse Cooper—-to whose demeanourand credibility as a witness the trial Judge awards a high certificate—De La Harpe and Hassim—whose evidence the trial Judge accepted astrue—must be regarded as parties to a plot to bolster up the plaintiff’sclaim, to deceive the Court, and to frustrate the ends of justice. On theother hand, the main witness on the other side is the defendant himself,and it is not only charitable but indeed probable to suppose that theserious accident which he sustained, with its consequent shock, mayhave tended to impair his recollection of some at least of the eventswhich ensued. He states in evidence that “ on some points I am quiteclear, and on other points I am not ” (p. 35).
Coming to closer quarters with the case, and surveying the evidenceadduced—and their Lordships may say that, in the circumstances, theyconsider themselves absolved from a meticulous examination of it—thereare certain incidents which seem to afford a touchstone hinc inde of thetruthfulness of the witnesses concerned. Their Lordships propose torefer to two of these.
The case for the defendant now is that the plaintiff, on February 28,examined him and his wife in the car before they were admitted to thehospital, and that thereafter there was no examination of them by theplaintiff in the hospital. The Supreme Court, in their judgment, it maybe noted refer to the fact that the defendant “ for some inexplicablereason seems to have persisted in saying that there was no examinationin the ward at all ” (p. 180). The only witnesses who depose to theexamination in the car are the defendant and his friend Mr. Nicoll. Onthat evidence two preliminary observations may be made. The first isthat it seems prima facie improbable that the plaintiff should in the carconduct an examination of his patients, in an imperfect light, and indifficult circumstances, seeing that they were about to be admitted tothe hospital ward, where a full and satisfactory examination would bepossible. The second observation is this—that, the defendant did notsuggest, in is letter of February 13, that an examination by the plaintiffin the car had taken place, and indeed did not suggest it till the interviewwhich he had with the Director of Medical and Sanitary Services onApril 7, 1933. It would appear to be an afterthought. However thatmay be, their Lordships have no hesitation in preferring, in this regard—as the learned trial Judge did—the evidence of the plaintiff, Hassim andDe La Harpe to the evidence of the defendant, whom on this point, thetrial Judge did not believe, and the evidence of Mr. Nicoll. It may benoted that Hassim and De La Harpe, in examination-in-chief, affirmedin terms that there was no examination of the defendant and his wife.by the plaintiff in the car, and that they were not cross-examined on thatevidence. If the alleged examination of the defendant and his wife inthe car be, not only an afterthought, but an. untruth, then that conclusioncuts, in their Lordships’ opinion, very deep into the defendant’s case.
, But there is another and even more significant consideration, andthat is the evidence afforded by the bed head tickets. These are
404
Delivered by LORD ALNESS.—Sabapathi v. Huntley.
contemporaneous records of the treatment received by the defendant andhis wife as inmates of the hospital ward at the hands of the plaintiff.The bed tickets were filled in by the secretary of the hospital, the actingmatron, and the plaintiff. There is no suggestion made that thesetickets are not bona fide, or that they were subsequently tampered with,and they may and indeed must be accepted at their face value. Whatdo they disclose ? They disclose, contrary to the defendant’s allegation,a course of normal, competent, and careful treatment of the defendant andhis wife. They disclose—again contrary to the defendant’s allegation—that the plaintiff’s diagnosis was—not “ no fractures ”— but “ no signsof fracture”—a very different thing. They disclose—contrary to thedefendant’s allegation—that the plaintiff visited the defendant and hiswife on the morning of January 29 before they left the hospital. Inshort, it is not too much to say, that, in their Lordship’s opinion, the bedhead tickets are largely destructive of the defendant’s case.
Their Lordships now pass to consider briefly what may be termed themedical aspect of the case. The pivotal charge which the defendant,in the end of the day, made against the plaintiff is that he failed at thetime to recommend the defendant and his wife to undergo an X-rayexamination. Now their Lordships think it clear that, until an X-rayexamination of the defendant and his wife was made in Colombo onFebruary 7—an examination which disclosed fractures in both cases—it had not occurred to the defendant to make any charge against theplaintiff. Indeed his letter to the plaintiff, dated February 1, 1933,which has been already quoted, records marked improvement in thecondition of the defendant and his wife, and expresses appreciation ofand gratitude for their treatment by the plaintiff and his staff while inhospital. And in evidence the defendant states: “Till the fractureswere discovered, I thought that Dr. Sabapathi’s examination was anample one ” (p. 42).
In any case, the charge which the Supreme Court has affirmed againstthe plaintiff, and upon the affirmation of which they regard his negligenceand incompetence to be established, was his failure to advise an X-rayexamination of the defendant at the time (p. 186, line 36). The pro-position affirmed by the Supreme Court would seem to run thus—Aftera motor car accident, the attending physician must advise resort to aradiologist, and, if he omits to do so, he displays both incompetence andnegligence. The proposition is simple in statement but is not so simplein solution. Their Lordships think that, as stated by the Supreme Court,the proposition is far too wide. An X-ray examination, their Lordshipsapprehend, must always be a question of circumstances—depending, forexample, on the condition of the patient, the character of the injuries,and the accessibility of the apparatus. In this case, the defendant’sleading and indeed only medical witness, Dr. de Silva, in his report, datedFebruary 25, 1933, said: —
“ Taking into consideration the interval of time that had elapsed betweenthe accident and the time of examination of the patients by me (11 days) itis difficult for one to pronounce an opinion as to their condition at the timeof the accident.”
The plaintiff’s position in the matter seems to their Lordships to havebeen clear and consistent throughout. He found, on examination of
Delivered by LQRD ALNESS.—-Sabapathi v. Huntley.
405
his patients, no evidence of fracture. He allowed them to go home,instructing them to let him know how they progressed. Had their painand other symptoms continued unabated for a week, he would no doubthave advised an X-ray examination. When, however, the plaintiffreceived a letter from the defendant stating that he and his wife were“much better,” it is not surprising that he concluded that the worst waspast, or that assuming, as he did, that they were carrying out theiravowed intention of going to Europe, he thought no more of the matter.It is not unimportant to observe that no witness adduced for thedefendant affirmed in terms that delay for a week, to await developments,before advising an X-ray examination, rather than advising such anexamination at once, per se constitutes negligence or incompetence onthe part of a physician. And yet such is the basis of the judgment of theSupreme Court against the plaintiff.
Their Lordships are in these circumstances clearly of opinion that thedefendant’s plea of justification fails. That being so, their Lordshipsare absolved from considering the apparently difficult question of whetheraccording to Roman-Dutch law, which obtains in Ceylon, the defendant’sstatements were not only true, but were made “ for the public benefitOn that question the existing law would appear, from the argumentwhich their Lordships heard, to be far from clear, and on it their Lordshipsoffer no opinion.
It only remains to consider—
whether the occasion on which the defendant penned his letter
to the Chairman of the Planters’ Association was privileged,
If it was, whether the defendant acted maliciously in the matter,
whether the statements made by the defendant to Dr. Briercliffe,
at the interview of April 7, 1933, were made on a privilegedoccasion, and, if the occasion was privileged, whether thestatements were made maliciously.
Agreeing with both Courts below, their Lordships are of opinionthat, in the circumstances disclosed in evidence, the occasion was not aprivileged one.
Their Lordships are further of opinion—agreeing with the trialJudge—that the defendant was actuated by malice when he wrote theletter in question. He must have known that its terms were false. Thefinding of the learned Judge of first instance on the question of maliceis a finding in fact. The state of a man’s mind, as has been said, is asmuch a fact as the state of his digestion. Their Lordships see noreason for disturbing the finding of the trial Judge on this question offact.
Their Lordships are of opinion, agreeing with the Supreme Court,that the statements made to Dr. Briercliffe by the defendant, at theinterview of April 7, were made on a privileged occasion, but, as alreadyindicated, they are of opinion that they were maliciously made, and aretherefore unprotected.
406
FERNANDO A.J.—Cnanaprakasam v. Mariaipillai.
It was admitted by the defendant’s Counsel that, in the event of thesuccess of the plaintiff’s appeal, he did not desire to dispute the quantumof the damages awarded by the trial Judge.
, Their Lordships will humbly advise His Majesty that the plaintiff’sappeal should be allowed, the judgment and decree of the Supreme Courtset aside, and that the judgment of the trial Judge should b,e restored,with costs here and in the Courts below.
Appeal allowed.