SABAPATHY v. HUNTLEY

037-NLR-NLR-V-38-SABAPATHY-v.-HUNTLEY.pdf


Sabapathy v. Huntley.
171
1935
Present: Maartensz and Koch JJ.SABAPATHY v. HUNTLEY.
328—D. C. Avissawella, 1,635.
Defamation—Statements made against Medical Officer—Charges of professionalincompetence and negligence—Made to Director of Medical and SanitaryServices—Communication to the Chairman of Planters' Association whowas also Member of Medical Wants Committee—Privilege—Truth ofstatements a complete defence—Appeal—Question, of fact—Decision ofHouse of Lords—Evidence Ordinance, ss. 114 and 165.
Plaintiff, the District Medical Officer in charge of a Governmenthospital, sued the defendant, a planter, for the recovery of damagesarising from certain defamatory statements made by the defendantconcerning the plaintiff.
The statements were made in a letter, which was addressed to theDirector of Medical and Sanitary Services, a copy of which was sentto the Chairman of the Planters’ Association of the District and waspublished in the newspapers as part of the proceedings of a meeting ofthe Association.
The Chairman of the Association was also a member of the MedicalWants Committee instituted under the provisions of the Medical WantsOrdinance, No. 12 of 1916.
The statements were also repeated by the plaintiff at an interviewwith the Director of Medical and Sanitary Services.
The statements charged the plaintiff with incompetence and negligenceand with being perfunctory in the discharge of his professional work.
Held, that the statements were true in substance and in fact, and thattruth was a complete answer to the action.
Where a plea of justification is raised to an action for defamationit means that the libel is true not only in its allegation of facts but alsoin any comments made thereon.
Held, further, that the statements to the Director at the interviewwere made on an occasion of qualified privilege but that the communica-tion to the Chairman of the Planters’ Association was not privileged.
Where a Judge examines a witness under section 165 of the EvidenceOrdinance and the evidence given in answer to the questions is adverseto either party, leave should be given to that party to cross-examinethe witness upon his answers.
Where a party is permitted to prove a document at a later stage of hiscase he should not be allowed to do so after his case is closed.
The principle laid down by the House of Lords in the case of Poweli v.The Streatham Manor Nursing Home *, viz., “ Where the question at issueis the proper inference to be drawn from facts, which are not in doubt,the Appellate Court is in as good a position to decide the question as theJudge at the trial is ”, applied.
1 (1935) A. C. 243.
15/38
172
Sabapathy v. Huntley.
T
HE plaintiff, the Government Medical Officer at Karawanella, incharge of the Government Hospital Instituted this action against
the defendant, a planter, for the recovery of Rs. 50,000 damages resultingfrom certain defamatory statements made by the defendant concerningthe plaintiff.
The defendant, who was the superintendent of an estate, and his wifemet with a serious motor accident and was brought to the GovernmentHospital for treatment. After they were discharged from hospital thedefendant wrote to the Director of Medical and Sanitary Servicescomplaining of the professional treatment received by him and his wifeat the hands of the plaintiff.
The statements contained in the letter, which the plaintiff alleged wereinjurious to his name and reputation, were as follows : —
A statement which refers to the “ negligence and incompetence ofthe District Medical Officer at Karawanella ”.
A statement which refers to a “ very perfunctory examination ”,meaning thereby that the plaintiff did work on the occasion in avery perfunctory manner.
A statement which refers to the District Medical Officer whose oneexamination occupied only two or three minutes, meaningthereby that the plaintiff was negligent in his professional work.
The plaintiff further complained of certain statements of a similarcharacter made to the Director at an interview.
A copy of the letter which contained the statements was also sentby the defendant to the Chairman of the Planters’ Association of theDistrict and was published as part of the proceedings of that body in thePublic Press.
The defendant pleaded that the statements were true in substanceand in fact and that he was justified in uttering them.
He further pleaded that they were published on a privileged occasioninasmuch as the Chairman of the Association was a member of theMedical Wants Committee created by Ordinance No. 12 of 1916, and thatthe plaintiff communicated with him in that capacity as well.
The defendant also pleaded that the statements were fair comment onmatters of public interest.
The learned District Judge found in favour of the plaintiff on the issuesframed and awarded him Rs. 10,000 as damages.
Hayley K.C. (with him E. F. N. Gratiaen), for defendant, appellant.—The trial Judge has misdirected himself on many points and has “ failed touse or palpably misused the advantage of seeing the witnesses”. All thecircumstances are therefore present which would justify a Court of Appealin reversing his findings of fact on the plea of justification. (Powell v.The Streatham Manor Nursing Home Mechanical and General InventionsCo. v. Austin2.)
The trial Judge was wrong in refusing the defendant’s counsel the rightto cross-examine the plaintiff’s witness, Dr. Briercliffe, on new pointselicited by the Judge himself after the witness had been re-examined.{Coulson v. Disborough’, Enoch v. Zaretzky, Bock & Co.)
> (1935) A. C. 243.8 (1894) 2 Q. B. D. 316.
8 (1935) A. C. 346.1 (1910) 1 K. B. 327, at p. 333.
173
MAARTENSZ J.—Sab apathy v. Huntley.
— ” %
Even if the defendant’s plea of justification fails, the statementscomplained of were published on a privileged occasion, and the plaintiffhas wholly failed to prove express malice. The defendant had a commoninterest with his fellow-members of the Planters’ Association in theefficiency of the plaintiff as Officer-in-Charge of a District Medical Hospitalestablished under the Medical Wants Ordinance, No. 9 of 1912, andmaintained at the expense of the planting industry. (Vide Jenoure v.Delmege Adam v. Ward2, Monckton v. British South African Co*.Baird v. Wallace James1, and David v. Bell*.) With regard to expressmalice the mere presence of reporters does not destroy the privilege.(Pittard v. Oliver °, Kleinhans v. Usmar)
The expressions of opinion contained in the statements complained ofconstitute fair comment. Any comment is “ fair ” if it does not exceedthe limits beyond which “ a fair man, even if prejudiced ” would not go.(Merrivale v. Carson*, Crawford v. Allen ", and Me Quire v. Western Morn-ing News “.)
The.defendant is not in any event liable for the publication by the Pressof the words complained of. There is no evidence that he requested thereporters to publish the defamatory statements. (Park.es v. Prescott21.)
R. L. Pereira K.C. (with him A. R. H. Canekeratne and P. Navaratna-rajah), for plaintiff, respondent.—A Court of Appeal should not interferewith findings of fact affecting the credibility of witnesses. (Fradd v.Brown”.) Where there is a plea of justification, the whole libel mustbe justified. (Odgers, 6th ed., at p. 154.)
The defendant is liable for the publication of the defamatorystatements by the Press. He knew that there was every reason to thinkthat the reporters present would publish the proceedings, and he tookno steps to prevent them from doing so. (Spencer-Bower on ActionableDefamation, 2nd ed., p. 6.)
The plea of privilege must fail. The “ common interest ” relied onmust be that which the law recognizes. (Odgers, 6th ed., p. 232.) TheAssociation was not in a position to investigate and deal with the defend-ant’s complaint. (Botteril v. Whitehead u.)
There is sufficient proof of “ express malice ” in that the defendantgave a wider publicity to the defamatory statements than was necessary(Spencer-Bower p. 101), and acted recklessly (Finlay v. Knight1').
November 28, 1935. Maartensz J.—
Cur. adv. vult.
This is an action for the recovery of damages resulting from certaindefamatory statements made by the defendant concerning the plaintiff.
The defendant appeals from an order of the District Judge awardingthe plaintiff a sum of Rs. 10,000 as damages.
The events which led to the alleged defamatory statements beingmade took place on January 27, 28, and 29. The plaintiff was at that
1 (1891) A. C. 73.
(1917) A. C. 309.
(1920) A. S. A. D. 324.
(1915) 85 L. J. P. C. 193.
16 N. L. R. 318.
(1891) 1 Q. B. 474.
’ (1929) S. A. A. D. 121.
8 20 Q. B. D. 275.
■ * (1917) S. A. A. D. 102.
>• (1903) 2 K. B. 100.
“ (1869) L. R. 4 Exch. 169.11 20 N. L. R. 321.
» 41 L. T. 588.
»* (1935) S. A. A. D. 58.
174
MAARTENSZ J.—Sab apathy v. Huntley.
time the Government District Medical Officer at Karawanella and incharge of the Government Hospital in that district. The defendant wasthe Superintendent of Vincit estate in Ruanwella.
On January 27 about 5.30 p.m. the defendant and his wife met with aserious motor accident while they were returning home from Mr. Urqu-hart’s bungalow on Panawatte estate. The car went off the road at ahairpin bend about half a mile from Mr. Urquhart’s bungalow, travelled15 or 20 feet down a slope, fell 12 to 15. feet over the edge of a cliff andturned upside down, pinning the occupants underneath. The hood wasat the time folded back.
Mrs. Huntley could not be extricted till the car was lifted off her. Thedispenser of Panawatte rendered first aid. Mr. Huntley’s^right arm wasput into a sling, but Mrs. Huntley could not stand the pain of having herinjured left arm in a sling. They were then driven in Mr. Urquhart’s carto the plaintiff’s bungalow. Mr. Urquhart went with them.
There is some conflict of evidence as to whether Mr. Urquhart of hisdriver drove the car, and as to what the plaintiff was doing when theHuntleys came to his bungalow. Neither matter is, in my judgment,material to the case.
The plaintiff was told of the accident and directed the Huntleys to goto the hospital which is about 300 yards away. The Doctor changed hisclothes and came to the hospital about ten minutes later.
There is a strong conflict of evidence as to what took place at thehospital on the 27th. According to the defendant and his witnessUrquhart, the plaintiff examined Mr. and Mrs. Huntley while they wereseated in the car to ascertain whether they had sustained any fractures.Mr. Huntley whose right arm was painful was seated on the back seaton the left and Mrs. Huntley whose left arm was injured on the right.
The plaintiff got them to sit sideways and moved their injured armsupwards and sideways and forwards and said there were no fractures,or that no bones were broken and did not advise them to enter hospital.
Mr. Huntley then said they should be given anti-tetanic injections,and inquired whether the injections could be given in the car—to whichthe plaintiff replied “ No, you must come to the hospital to get theinjection ” and added that thereafter they could go. Then the defendantconsulted his wife. She said she was too ill to go home and they decidedto stay at the hospital that night, and the plaintiff agreed.
The paying wards in the hospital are rarely used and a room had to beprepared which took about half an hour. When the room was ready theHuntleys were carried into the hospital, undressed and the anti-tetanicinjections administered. The defendant denies that the plaintiffexamined him and his wife in the ward by moving their arms and legsfor the purpose of ascertaining whether there were any fractures.
There is also a conflict of evidence as to whether the plaintiff examinedthe Huntleys on the 28th and saw them on the 29th morning before theyleft the hospital which they did on the 29th morning. The evidence forthe defence is that the plaintiff did not examine the Huntleys on the 28thbut only inquired after their health and did not see them on the 29th,having bade them goodbye on the 28th evening.
MAARTENSZ J.—Sabapathy v. Huntley.
175
The case for the plaintiff is that he made no examination in the carbut examined the Huntleys carefully in the hospital, which they enteredon his advice, taking 15 minutes over each of them and told them therewere no signs of fractures or no evidence of fractures ; that he examinedthem again on the 28th both morning and evening and altered the treat-ment and discharged them on the 29th as they wished to go away. Indischarging them he told them to continue to apply Icthyol and Belladonnaand let him know if the pain did not subside in a week’s time. He toldthem there were no signs of fractures, and not that there were no fractures,because he was not sure that they had no fractures, which could not bediscovered by a clinical examination ; for the same reason he asked themto let him know if the pain did not subside in a week’s time. But headmittedly did not tell them that there might be fractures which hewas unable to detect. Nor did he advise them to have an X-ray exami-nation made.
The plaintiff therefore let the Huntleys leave the hospital under theimpression that they had not sustained any fractures as a result of themotor accident. This was bound to be their impression whether theplaintiff told them there were no fractures or whether he told them therewere no signs of fractures ; the lay mind could not possibly have gatheredthat the latter expression meant that the plaintiff was not sure whetherthey had sustained fractures or not.
On February 1 Mr. Huntley wrote letter P 11 which is as follows : —
The D. M. O.,Karawanella Hospital.
Vincit,
1.2.33.
Dear Dr. Sabapathi,
I will be grateful if you would let me have your own Hospital bills as soon aspossible tor settlements 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. I
I have quoted this letter as it was strongly relied on by the plaintiffas negativing the defendant’s plea of justification and as evidence thatthe Huntleys required no further medical advice or treatment and theDistrict Judge has adopted the plaintiff’s view of the letter.
On February 7 the defendant had to come to Colombo to draw moneyfrom the bank to pay his labour force. As Mrs. Huntley was still in painand wished to consult a doctor in Colombo, this opportunity was takento consult Dr. A. M. de Silva, Senior Surgeon of the General Hospital,Colombo. Colombo is about 40 miles away from Vincit estate.
Dr. de Silva examined Mrs. Huntley and advised an X-ray examination.This examination revealed that Mrs. Huntley had sustained certainfractures. Thereupon Dr. Silva advised Mr. Huntley to have an X-rayexamination made of himself and it was found that he had sustaineda fracture.
17BMAARTENSZ J.—Sabapathy v. Huntley.
The result of Dr. Silya’s clinical examination and the Radiologist’sX-ray examination cannot be expressed better than in Dr. Silva’s report,P 12 dated February 25, 1935, to the Director of Medical and SanitaryServices (hereafter referred to as the Director) :—
CONFIDENTIAL.General Hospital, Colombo,
25th February, 1933.
Re Complaint against D. M. O., Karawanella,
The Director of Medical and Sanitary Services,
Colombo.
Sir,
I have the honour to acknowledge receipt of your letter No. T. A. 1/398 of the21st inst. with enclosure.
The facts regarding the cases of Mr, and Mrs. G. Huntley, as known to me,are the following : —
(i.) These two patients consulted me on February 7 in respect of injuries sus-tained in an accident on January 27.
(ii.) Clinical examination revealed the following : —
Mr. Huntley—bruising, swelling, pain, tenderness and deformity
of right shoulder region.
Mrs. Huntley—pain, tenderness, deformity, and limitation of
function of left shoulder joint ; pain and tenderness over leftside of pelvis.
Definite diagnosis of the underlying injuries in either patient was notpossible without the aid of X-ray examination, which Iadvised.
(iii.) X-ray report by Radiologist, General Hospital :—
Mr. Huntley—fracture through surgical neck of right humerus
with avulsion of the great tuberosity.
Mrs. Huntley—
impacted fracture of surgical neck of left humerus.
linear fissure of the left ilium.
(iv.) Taking into consideration the interval of time that had elapsedbetween the accident and the time of examination of the patientsby me (11 days) it is difficult for one to pronounce an opinion as totheir condition at the time of the accident.
I am, Sir,
Your obedient servant,
(Sgd.) A. M. de Silva,
Senior Surgeon, General Hospital.Colombo.
Dr. de Silva advised the Huntleys to take treatment in Colombo and theyentered the “ Frazer ” Nursing Home where they had to remain some weeks.From the Nursing Home the defendant wrote the following letter D 10 tothe Director : —
13th February, 1933.
The Director of Medical and Sanitary Services,
Colombo.
Dear Sir, I have to make a very strong complaint' against the negligenceand incompetence of the District Medical Officer at Karawanella.
On Friday the 27th ultimo after a very severe car smash on Fanawatteestate 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.
MAAKTENSZ J.—Sabapathy v. Huntley.
177
We arrived at the Hospital at 8 vja. and the D. M. O. after a veryperfunctory examination pronounced definitely that no bones were brokenand, without any suggestion whatever of an X-ray examination in Colombo,put us in charge of the Acting Matron in the paying ward and actuallyintimated that we might leave on the following morning.
We stayed two nights as my wife was too unwell to travel, the D. M. O.making no examination of any sort during that period.
On the 7th instant, being able to walk slowly, I took my wife who com-plained of 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 furnish fullparticulars.
Mr. Urquhart of Panawatta estate can also corroborate my statementre D. M. O’s treatment at Karawanella Hospital.
I cannot too strongly condemn the attitude of the D. M. O. whose oneexamination at night occupied only two or three minutes and thereaftertook no interest in us whatever, merely prescribing lead lotion and the usualliniment and leaving everything to the Acting Matron. My driver was noteven given an anti-tetanus injection, though I insisted on it for ourselves.
Both my wife and myself are amazed at such behaviour and hope you willtake strong action in the matter.
Yours faithfully,(Sgd.) G. Huntley.
The defendant sent a copy of this letter to Mr. Selwyn, the Chairmanof the Kelani Valley Planters’ Association (hereafter referred to as theAssociation). Mr. Selwyn brought the letter up before the AnnualGeneral Meeting of the Association held on February 23, 1933. A reportof the meeting appeared in the “ Ceylon Daily News ” and the “ Times ofCeylon ” newspapers of February 24. D 10 was reproduced in full inboth papers. The papers are marked P 1 and P 2. In the report in the" Times of Ceylon ”, P 2, Mr. Selwyn, is said to have stated that Mr.Huntley had sent him a copy of the letter and asked him to bring thematter up before the meeting.
According to the report it was resolved to endorse Mr. Huntley’s letterand to communicate the resolution to the Director-
The Director had in the meantime referred the letter D 10 to Dr. A. M.de Silva for a report by a letter dated February 21 which is not anexhibit.
Paragraph iv. of the report already quoted is the reply, I take it, to aquestion whether the plaintiff could have or should have detected thefractures on January 27.
On March 1 the plaintiff volunteered letter P 3 to the Director to refutethe statements made by Mr. Huntley in his letter D 10 which he had readin the “ Daily News ” of February 24. He enclosed with his letter a copyof Mr. Huntley’s letter P 11.
On March 20 the Director wrote letter P 13 to the Secretary of theAssociation in which he quoted P 11 and Dr. Silva’s opinion that definitediagnosis of the underlying injuries in either patient was not possiblewithout an X-ray examination.
The Director mentioned that the plaintiff considered letter I) 10libellous and that be himself thought the charge could not be substanti-ated and suggested an apology. The reply to this letter was a deputation
178
MAARTENSZ J.—Sab apathy v. Huntley.
from the Association consisting of Mr. Gillespie, the then Chairman ofthe Association, the defendant, Mr. Urquhart, and Mr. Nicholls, whodiscussed the case of Mr. and Mrs. Huntley with the Director.
The Director in consequence of this discussion wrote letter P 5 to theplaintiff dated April 8, 1933. It is as follows:—
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. Sabhapati, 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. Nicholls, and Mr. Urquhart 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. Sabhapati’s letter of the 1st March. Mr. Huntley stated and Mr. Urquhartconfirmed what he said, that Dr. Sabhapati examined Mr. and Mrs. Huntleywhile they were still in the car.
During this examination Dr. Sabhapati 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 clotliinghad been removed, Dr. Sabhapati again examined them but this time helooked only for cuts and bruises and did not touch or re-examine the arms orshoulders of either patient for fractures. They consider, therefore, thatDr. Sabhapati did not make a sufficiently careful or reasonable examinationon which to give the definite assurance (which he repeated on several occasionsthat no bones were broken. As these statements conflict with Dr. Sabhapati’saccount, I shall be obliged if you will request Dr. Sabhapati to explain thediscrepancies.
I am, Sir,
Your obedient Servant,
(Sgd.) R. Briercliffe,
Director of Medical and Sanitary Services.
The plaintiff replied on April 15, P 6, that he did not examined theHuntleys in the car, that they were carefully examined after they wereput in beds in the ward and that he recorded his diagnosis in the bedhead tickets that “ there was no evidence of fracture ” and expressed thesame opinion orally to the patients.
With this letter the plaintiff sent statements sworn to by MatronCooper, de la Harpe, and Hassim the Town Arachchi.
The plaintiff subsequently applied for and obtained permission to filecivil actions against Mr. Huntley and others mentioned in his letter.
The alleged defamatory statements were made in letter D 10 and at theinterview with the Director on April 7.
D 10 it is alleged was published to the Association and the Press by thedefendant sending a copy of it to Mr, Selwyn.
MAARTEN SZ J.—Sab apathy v. Huntley.179
Paragraph 9 of the plaint is as follows :—
9. The following statements relating to and concerning the plaintiff,which are contained in the above letter and which the defendant wroteand published, are false, malicious, defamatory per se and injurious to thename, fame, and reputation of the plaintiff as a Medical Practitioner andas a Government Medical Officer, viz.,
The statement which refers to “ the negligence and incompetence
of the District Medical Officer at Karawanella
The statement which refers to “ a very perfunctory examination ”
thereby meaning that the plaintiff did his professional workon the occasion in a very perfunctory- manner.
The statement which refers to “ the D. M. O. whose one examination
at night occupied only two or three minutes and thereafter tookno interest whatever ” thereby meaning that the plaintiff wasnegligent in his professional work.
Publication to the Director is alleged of the statements made at theinterview.
Paragraph 11 of the plaint is as follows :—
11. The defendant has further made and published the followingfalse, malicious and per se defamatory statements injurious to the name,fame, and reputation of the plaintiff at the defendant’s interview withDr. R. Briercliffe, the Director of Medical and Sanitary Services, on April7, 1933, viz.: —
The statement recorded by the said Dr. R. Briercliffe, and com-
municated to the plaintiff that the plaintiff “ examined Mr. andMrs. Huntley while they were still in the car ”, thereby implyingprofessional negligence on the part of the plaintiff.
The statement recorded by the above Dr. R. Briercliffe and
communicated to the plaintiff on the defendant’s statement tohim “ that the examination in each case lasted only half a minuteor so ”, thereby implying professional negligence on the part ofthe plaintiff in the plaintiff’s medical treatment of the defendantand Mrs. Huntley.
The plaintiff assessed his damages at Rs. 50,000.
The pleas in defence are embodied in the issues which are as follows : —
(a) Are the statements referred to in paragraph 9 (a) of the plaint
defamatory of the plaintiff ?
Are the statements referred to in paragraph 9 (b) of the plaintdefamatory of the plaintiff ?
Are the statements referred to in paragraph 9 (c) of theplaint defamatory of the plaintiff ?
Are the statements referred to in paragraph 11 (a) and (b) of the
plaint defamatory of the plaintiff ?
Were the said statements or any of them false ?
Did the defendant publish or cause or aid the publication of the
statement (a) to the Ranters’ Association, (b) to the “Timesof Ceylon ” and to the “ Ceylon Daily News ”?
180MAARTENSZ J.—Sab apathy v. Huntley.
(a) Were the statements or any of them published on a privileged
occasion ?
(b) If so, did the defendant act maliciously or lawfully ?
(a) (1) Is any of such statements a comment ?
And on a matter which is of public interest ?
(b) If so, is it a fair comment ?
Damages.
Is the defendant responsible in law for the publication of these
statements complained of ?
At a meeting of the Kelani Valley Planters’ Association on
February 23, 1933.
In the “Times of Ceylon ” issue dated February 24, 1933.
In the issue of “ Ceylon Daily News ” dated February 24,
1933.
(a) Are the allegations of fact contained in the statement specified
in paragraphs 9 and 11 of the plaint true in substance and infact ?
(b) If so, was the defendant justified in law in publishing thesaid allegations of fact or any of them to Mr. B. M. Selwyn,the Chairman of the Kelani Valley Planters’ Association, andDr. Briercliffe, respectively ?
The learned District Judge after setting out the facts as related by thedefendant and the plaintiff said that the chief points for decision were thefollowing : —
When did the Huntleys' arrive at the plaintiff’s bungalow and
when were they admitted to the hospital, at 6.45 p.m. or 8 p.m. ?
Did the plaintiff examine them in the car while it was halted
opposite to the paying ward, or did he examine them inside thepaying ward after they were put in beds ?
Did the plaintiff examine them very perfunctorily and did he after
such examination tell the defendant that no bones had beenfractured, that he and his wife were all right and that theycould go home that night itself, or did he tell him that therewere no signs of fracture and advise them to stay in thehospital ?
Did the plaintiff take any interest in them from the time of their
admission till their departure on 29th morning ?
Were the bed head tickets of the Huntleys posted up on the 27th
January night, or 28th January morning ?
Was it the duty of the plaintiff to have advised the Huntleys on
27th January night to get themselves examined with the aid ofX-ray?
Did the conditions shown in skiagrams D 1, D 1a, D 2, D 2a, D 3
and D 3a exist when the Huntleys were in the plaintiff’s hospital?
The learned District Judge found in favour of the plaintiff on all thesequestions.
MAARTENSZ J.—Sabapathy v. Huntley.
181
It was contended in appeal that the learned Judge’s findings of factwere erroneous, because—
His reasons for rejecting the evidence for the defence and accepting
the evidence for the plaintiff were unsound and in some casesnot based on evidence in the record.
In some cases his conclusions did not follow from the reasons given
by him for arriving at these conclusions.
He relied on documents (P 14 and P 15) which had been rejected
and on evidence elicited by him from Dr. Briercliffe which hedid not allow the defendant to test by cross-examination.
<d) He considered the evidence under the erroneous impression thatdefendant’s counsel did not press the defence of justification.
(e) He misdirected himself as to the party on whom the burden ofproof lay.
{{) He had formulated and decided questions which wholly or in partdid not arise from the-issues on which the parties went to trial.
It was also contended that there was evidence in the record uponwhich an Appeal Court could hold that judgment should have beenentered for the defendant and it was urged that plaintiff’s action shouldbe dismissed.
These contentions necessitate a close examination of the evidence andthe reasons given by the District Judge for entering judgment for theplaintiff for Rs. 10,000.
The District Judge was clearly wrong in referring to the documentsP 14 and P 15 when considering the character of the Plaintiff in hisprofessional capacity and in connection with the plea of privilege. P 14and P 15 are copies of entries made in the Karawanella Hospital VisitorsBook on December 28, 1932, and December 24, 1933. They were tenderedin evidence by the plaintiff to prove that the visitors who made theentries expressed satisfaction with the way in which the hospital was run.These documents were objected to by defendant’s Counsel and rejectedby the District Judge. But plaintiff’s Counsel purported to read themin evidence with other documents at the close of the trial.
The course adopted by plaintiff’s Counsel did not supersede the orderrejecting the documents and they should not have been considered by theDistrict Judge.
As regards Dr. Briercliffe’s evidence the learned District Judge did notin my judgment properly exercise the discretion vested in him by section165 of the Evidence Ordinance when he refused to allow defendant’sCounsel to cross-examine Dr. Briercliffe on evidence which the DistrictJudge had himself elicited.
Dr. Briercliffe was called by the plaintiff to produce and prove certaindocuments and the statements made to him on April 7. He was notexamined or cross-examined with regard to the plaintiff’s professionalcharacter or as an expert to rebut or support Dr. de Silva’s evidence.The District Judge, however, at the end of the cross-examination,examined Dr. Briercliffe at some length on these points but refused toallow defendant’s Counsel to cross-examine him on the evidence whichthe District Judge has treated as adverse to the defence.
182
MAARTENSZ J.—Sabapathy v. Huntley.
Section 165 certainly says that “ neither the parties nor their agentsshall be entitled .. . . . without the leave of the Court to cross-examine any witness upon any answer given in reply to any such ques-tion ” that is, question by the Court. But when a witness is examinedby the Court and gives evidence adverse to one party that party shouldbe allowed to cross-examine him. In England it was held, I quote fromthe head note, that,
“ At the trial of an action the Judge has power to call and examine awitness who has not been called by either of the parties, and, when hedoes so, neither party has a right to cross-examine the witness withoutthe leave of the Judge.
“ If the evidence of the witness given in answer to questions put to himby the Judge is adverse to either of the parties, leave should be givento that party to cross-examine the witness upon his answers, but ageneral cross-examination ought not to be permitted”. (Coulson u.'Disborough *.)
The rule laid down in paragraph 2 of the head note is applicable to acase where a Judge examines a witness under the provisions of section165 of the Evidence Ordinance. I shall refer later to the contentionthat Dr. Briercliffe’s evidence was in fact not adverse to Dr. de Silva’sevidence.
As regards the burden of proof, in view of the course the trial took,I do not think the defendant can now urge the contention that theDistrict Judge should have decided first whether the occasions wereprivileged and then decided on whom the burden of proof lay.
The plaintiff closed his case after calling the two reporters, whosereports of the proceedings of the meeting of the Association held onFebruary 23 were published in the “ Daily News ” and “ Times ” ofFebruary 24, and tendering in evidence the newspapers P 1 and P 2and the exhibits P 3, P 4, P 5, P 6, P 7, P 8, P 9 and P 10.
The District Judge was not asked to rule whether the occasions wereprivileged, but the defendant led evidence on all points taken in theanswer.
The question whether the plaintiff should first prove whether thestatements were false or whether the defendant should be first calledupon to prove their truth is not very material in this case, as the state-ments with which the defendant is charged were made of his ownknowledge. Odgers in his work on Libel and Slander at p. 284 saysquoting from Lord Coleridge C.J. in the case of Howe v. Jones", “ If thedefendant is in a position to prove the truth of his statement, ‘ he has noneed of privilege : the only use of privilege is in cases where the truth ofthe statement cannot be proved ’ ”.
As regards the District Judge’s observation that Counsel for thedefendant did not press the plea of justification in his address but chieflyTelied on the pleas of fair comment and privilege, Mr. Gratiaen, whoappeared for the defendant in the District Court, stated in appeal thathe did press the defence and his statement was not disputed by Counselfor the plaintiff. The plea of justification was and is the main defenceto plaintiff’s claim, and if the District Judge approached the evidence> (1894) 2 Q. B. D. 316.1 (1885) 1 T. L. R., at p. 462.
MAARTENSZ J.—Sabapathy v. Huntley.
183
for the defence under the impression that the plea of justification hadbeen abandoned he was bound to take an adverse view of the evidence forthe defence.
Some of the questions formulated by the District Judge do not ariseupon the pleadings or issues. Some of the questions involve more thanone question of fact.
There was no issue as to the time when the Huntleys arrived at thehospital nor was it insisted by the defence that the time, 8 p.m., mentionedin letter D 10 was correct. But the District Judge finds that thedefendant mentioned 8 p.m. purposely to substantiate his false statementthat there was no proper diagnosis.
Counsel for the respondent at first said he attached no sinister signifi-cance to the time mentioned in D 10 but later qualified it by saying thatit was inserted to make the Director think the rest of it was true. Icannot see how it could have that effect in the absence of any statementin the letter that the plaintiff left immediately after the examination ofthe patients, nor was there such a statement in the evidence for thedefence. On the contrary the evidence for the defence is that theplaintiff was in the hospital a considerable time after he examined theHuntleys in the car.
The fifth question as to whether bed head tickets P 9 and P 10 wereposted seems to me quite irrelevant and whether Mr. Huntley read themor not quite immaterial to the trial.
But the reason given by the District Judge that he must have readthem because he had no other literature or any other amusement seemsfantastic. If he had read them the defendant would probably not havemade the mistake of saying in D 10 that he and his wife arrived at thehospital at 8 p.m.
The seventh question whether the dislocation and the fracture shownin skiagrams D 1-D 3a existed when the Huntleys were in the Karawa-nella Hospital was not pleaded, neither was it an issue in the case, norwas it plaintiff’s case at the trial till plaintiff’s Counsel said in the courseof his address in reply “ that plaintiff is not concerned with whathappened to the Huntleys between January 29 and February 7
The learned District Judge not only finds that there is no evidencethat these injuries existed between January 27 and February 7, but alsofinds that “ there is definite proof in P 11 that the injuries found onhim (them) with the aid of X-ray did not exist on February 1, 1933. . . . because the defendant wrote to the plaintiff ‘ we are bothvery much better and grateful for the way in which we were looked afterat Karawanella ’ ”.
The existence of the fractures was not in dispute and the District Judgeneed not have addressed himself to the question of whether they existedor not while the Huntleys were in hospital. But his view of the credi-bility of the evidence for the defence was bound to have been affectedprejudicially to the defendant, by his having misdirected himself as tothe effect of the letter P 11. For if the Huntleys had no fractures whenthey were examined by the plaintiff the plea of justification must fail-If his diagnosis was right his examination must have been adequate,and there was no reason why he should advise the Huntleys to have anX-ray examination.
184
MAARTENSZ J.—Sabapathy v. Buntley.
The District Judge next addressed himself to the question whether thefractures if they existed on January 27 and 29 were so patent that theplaintiff could have detected them. I cannot understand his doing soin view of his finding that there was definite proof that they did not existon those dates. When considering this question he holds that thefracture of Mrs. Huntley’s pelvis obviously did not exist because she didnot complain of pain and was able to walk to the lavatory. The DistrictJudge has again misdirected himself for she did complain of pain all overher body and Dr. de Silva was of opinion that Mrs. Huntley could havewalked in spite of the fracture.
This question appears to have been considered by the District Judgeas the result of a passage in the defendant’s evidence at page 61 thathe thought it was a simple matter for a doctor to have detected afracture and therefore thought that he was negligent or incompetentwhen he failed to detect the fracture. This evidence was elicited in cross-examination ; it was not a part of Huntley’s defence, nor was it an issuein the case as the statement was not made either in the letter D 10 or atthe interview.
The District Judge in dealing with Dr. de Silva’s evidence under thishead observes that “ it is a matter of regret that a doctor of his eminentposition should have given evidence which is diametrically opposite tohis report ”. The District Judge says that evidence was given in chiefbut does not specify it. I have read and re-read the examination-in-chiefbut I cannot find any passage which is opposed to his report. Dr. deSilva after his clinical examination suspected there were fractures andadvised an X-ray examination. He nowhere says that the fractureswere patent. He says regarding Mr. Huntley, “ judging from what I sawon the 7th I should think there must have been deep seated injurieswhich could have been detected by the doctor who then attended ”.There is nothing in his report to negative that statement except that hecould not say what their condition was at the time of the accident. It isone thing to say in evidence what one thinks, it is another thing to sayin a report that the condition of the Huntleys ten days before was suchthat the doctor should have detected fractures.
I am accordingly of opinion that the learned District Judge made thatobservation owing to a misapprehension of the effect of Dr. de Silva’sevidence and that there was no reason for making it or for rejectingDr. de Silva’s evidence.
Some confusion has arisen in the case from the number of questionsTyhich the District Judge has formulated and decided and from the formof those questions.
As the District Judge has himself observed in considering the plea ofjustification what the defendant had to prove was “ that the three specificstatements in the letter D 10 and the two statements at the intervieware true ”. The three specific statements in D 10 are—
the statement which refers to “ the negligence and incompetence
of the District Medical Officer at Karawanella ”,
the statement which refers to “ a very perfunctory examination ”
thereby meaning that the plaintiff did his professional workon the occasion in a very perfunctory manner,
MAARTENSZ J.—Sabapathy v. Huntley.
185
the statement which refers to “ the D. M. O. whose one examination
at night occupied only two or three minutes and thereafter tookno interest whatever ”, thereby meaning that the plaintiff wasnegligent in his professional work.
The two statements at the interview are—
the statement that the plaintiff examined Mr. and Mrs. Huntley
while they were still in the car,
that the examination in each case lasted half a minute or so.
Besides the three specific statements in letter D 10 referred to in the
plaint there is the statement that the plaintiff made no suggestion what-ever of an X-ray examination in Colombo.
It is to my mind manifest that the defendant’s main complaint,reading the letter as a whole, was that the plaintiff did not advise anX-ray examination. And I think that- the chief question in the case iswhether the plaintiff should have advised the Huntleys to have themselvesexamined by a radiologist.
The plaintiff admittedly did not give them that advice. The desirabilityof an X-ray examination is proved by the evidence of Dr. A. M. de Silva,First Sturgeon of the General Hospital. He says, “ In the case of injuriessustained by motor accidents the doctor must presume fracture untilotherwise proved …. If a clinical examination disclosed nofracture I would not consider that the doctor was justified in informingthat there was no fracture. I would not do so until the patient is X-rayed. Both for diagnosis and treatment of fracture X-ray is employed.”Dr. de Silva’s opinion is supported by the work on The Science andPractice of Surgery by Romanis & Mitchiner pp. 402, 403, and 404- There,after dealing with the clinical feature of fractures, it is laid down that anX-ray examination should always be carried out as soon as possible as itwill assist by confirming or making the diagnosis by checking positionduring treatment and by giving definite ocular evidence should medico-legal proceedings intervene; by the statement in A System of Surgeryby Choyce p. 667 that “ all signs and symptoms of fractures are compara-tively unimportant in diagnosis as compared with the evidence given bythe X-rays …. Every patient who has received a severe injuryto the joints or limbs must be examined radiographically ; neglect of thisrule is only justified if the necessary apparatus is inaccessible or thepatient’s general condition threatens a fatal issue.
“Radiograms are equally necessary to demonstrate the presence of afracture, its nature, its progress under treatment and its ultimate # con-dition.” And by the statement of Rose & Carless in their Manual ofSurgery, p. 534, that “ radiography has proved of the greatest service inboth diagnosis and the treatment of fractures. Many a case which wouldformerly have been called merely a sprain can now be demonstratedto be really a fracture ”.
(I have quoted from the typed extracts from these works which werehanded to the Court by Counsel for the appellant—the correctness ofthese extracts was not disputed.)
The learned District Judge arrived at the conclusion that the plaintiffwas not bound to advise an X-ray examination mainly on the evidence of
186
MAARTENSZ J.—Sab apathy v. Huntley.
Dr. Briercliffe—evidence which as I have said the District Judge elicitedhimself and did not allow the defendant to test by cross-examination.
Dr. Briercliffe said there was no departmental rule that states “ ii isthe duty of the medical officer to advise forthwith X-ray examinationon patients injured in motor accidents I should be very surprisedif there was, for the necessity for an examination must depend on thenature of the accident and the signs of facture seen at the clinicalexamination. The absence of such a rule does not affect the opinionsI have quoted
Dr. Briercliffe goes on to say, “ As a member of the medical professionI state that it should be left to his discretion to advise X-ray examination.If after reasonable grounds and careful examination he makes the correctdiagnosis he need not advise an X-ray examination”. No one canpossibly dispute this opinion. For if a correct diagnosis is made thatthere are no fractures it would be an improper exercise of the discretionto order an X-ray examination. But what Dr. de Silva and the writersI have quoted say is that a correct diagnosis cannot be arrived at withoutan X-ray examination.
Dr. Briercliffe’s evidence certainly does not go the length of sayingthat if a diagnosis cannot be made an X-ray examination is not necessary.The plaintiff does not say he made a correct diagnosis. What he doessay is “ I did not after examination exclude the possibility of fracture.I had an open mind as regards fracture. I thought if there was a fracturethat I might be able to detect it in a week’s time ; it might be a littlelonger than that ”. He had stated earlier if the pain continued beyondten or eleven days “ I would have suspected an undetectable fracture,that is, a fracture that cannot be detected by clinical methods. In thatcase I would have suggested an X-ray examination ”. Again he said“ If facilities are available at the spot for X-ray examination I agree thatan X-ray examination should be undertaken as part of the routine”.
According to this evidence the plaintiff was not sure of his diagnosisand would have advised an X-ray examination at once if there was anX-ray apparatus at the spot and would have advised an X-ray examina-tion in Colombo if the pain had continued for 10 or 11 days.
The only X-ray apparatus in Ceylon is in Colombo about 38 milesaway from Karawanella. The plaintiff did not advise an X-ray examina-tion on January 27 and 28 because the Huntleys were suffering fromshook and in pain and were not fit to travel. He gave various reasonsfor not advising an X-ray examination on the 29th. In examination-in-chief he said he did not advise the Huntleys to go to Colombo as theyleft the hospital expressing a desire to go to their bungalow ; in cross-examination he said “ on the 29th January nobody expressed the ideaof going to Colombo ; hence I did not think about it ”. Immediatelyafter, he said, “ Even after the 29th January I would’t say withoutfurther examination that they would have been fit to go to Colombo ’V
The plaintiff although he “ deferred judgment while the Huntleys werein hospital and adopted the treatment for undetected fracture and gavethem medicines when they left with instructions to follow the sametreatment and let him know ”, at no time told the Huntleys that hesuspected fractures, or that he was not sure of his diagnosis. He withheld
MAARTENSZ J.—Sabapathy v. Huntley.
187
fflii«i .information although the defendant was admittedly anxious toimnw whether he and his wife or either of them had sustained fractures.The plaintiff’s reason for withholding this information is because he doesnot “ discuss with patients the methods of treatment and examination ”,and he did not tell the Huntleys the reason for asking them to reportprogress because “ the reasons are more for the doctor than the patientThe plaintiff did not convey the information to the Huntleys afterthey left hospital because he received letter P 11 on February 2 andthought they were getting on well and took it “ for granted that theywere all right
"The reasons given by the plaintiff for not informing the defendantthat he suspected that they might have sustained fractures are to mymind most unconvincing. I can understand the plaintiff letting theHuntleys leave hospital on January 29 without any intimation that theymight have sustained fractures if his diagnosis was that they had notsustained fractures; but I find it impossible to believe that any doctorwho suspected fractures would let the patients leave without tellingthem so. He should in my opinion have given them the information toimpress upon them the necessity for keeping quiet and letting him knowwhether the pain and swelling continued for ten days. If the plaintiff’sevidence is true he is, in my judgment, guilty of culpable negligence innot telling the Huntleys what he suspected and that they should lethim know if the pain continued so that they might have an X-rayexamination.
It is in my judgment perfectly clear that the plaintiff's diagnosis wathat there were no fractures and that he is taking advantage of the formin which his diagnosis was entered in the bed head tickets to set up thisplea that he suspected fractures but did not tell the Huntleys of hissuspicions.
My opinion is confirmed by the fact that in letter P 3 written by theplaintiff to the Director to refute the statements in the letter D 10,which he saw in the “ Daily News ” of February 24, he nowhere says thathe did not pronounce definitely that there were no fractures, nor does hesay that he suspended judgment and asked the defendant on the 29th toreport how he and his wife were getting on. I regret I am unable toaccept the plaintiff’s evidence that his omission to do so was becausehe did not think it necessary to inform the Director of Medical andSanitary Services that he had asked the Huntleys to let him know howthey were progressing.
I have no hesitation in accepting Dr. de Silva’s evidence that theplaintiff told him that he had informed the Huntleys that there were nofractures and that this was said to him before he forwarded his reportto the Director. Dr. de Silva gave evidence on July 4, 1934, seventeenmonths after the incident, and it would have been surprising if he hadbeen able to fix the month and part of the month in which the statementwas made without reference to his report; and this report was notshown to him to enable him to fix the date. But he was always definitethat the statement was made before he sent in his report. The report isdated February 25. The plaintiff’s evidence is that he saw Dr- de Silvaat his request, conveyed to him by Dr. Balendra. There was no reason
16/38
188
MAARTENSZ J.— Sabapathy v. Huntley.
why Dr. de Silva should want to see the plaintiff, but there was everyreason why plantiff should wish to see him. Plaintiff admitted in onepassage of his evidence that he “thought about the possibility of theDirector of Medical and Sanitary Services requesting Dr. de Silva toreport on the matter”.
The plaintiff stated that he charged Dr. de Silva with having com-mitted a breach of professional etiquette in examining the Huntleyswithout a letter. Bui he would not say that Dr. de Silva was givingfalse evidence—he attributed the evidence to faulty memory. Dr. deSilva’s evidence that plaintiff told him that he informed the Huntleysthat there were no fractures cannot be disposed of in that way. Theevidence was given in re-examination and either Dr. de Silva is speakingthe truth or not. There is no reason why he should give false evidenceThe plaintiff’s evidence that he charged Dr- de Silva with a breach ofprofessional etiquette is unbelievable since the Huntleys were hospitalpatients, not private patients, who had left the hospital ten days beforeDr. de Silva saw them.
The plaintiff’s diary does not conclusively prove that the plaintiffdid not see Dr. de Silva prior to February 25. It only corroborates hisevidence that he came to Colombo on February 27.
The plaintiff’s reason for letting the Huntleys leave hospital on the 29thmorning although he suspected fractures is because they wanted to gohome and he had no right to keep them. Ignorant villagers sometimesinsist on leaving hospital against the advice of the doctors in charge ;but the Huntleys are not ignorant villagers and would no doubt havestayed in hospital if they had been advised that they might have sustainedfractures and that it was desirable they should remain. It seems tome incredible that the plaintiff would not have so advised them if hesuspected fractures.
The inference drawn by the plaintiff from letter P 11 would not beunreasonable if his diagnosis was that there were no fractures. But Icannot understand how he could possibly infer that the patients were allright from a letter written by a layman, who had left the hospital underthe impression that he had no fractures. In cross-examination theplaintiff said he “ understood in the case of Mr. and Mrs. Huntley theswelling must be less and the pain slightly less ”. And with referenceto letter D 10 he said, “ I was not surprised when I read P 1 that frac-tures were discovered in Huntley- I was not surprised either to readthat Mrs. Huntley sustained fracture in the pelvis”. Statementsentirely inconsistent with the inference he said he drew from P. 11 inexamination-in-chief.
I have no doubt that the plaintiff’s diagnosis was that there were nofractures, and I am of opinion that he should, considering the nature ofthe accident, have advised an X-ray examination on at least January29. If the Huntleys could not travel forty miles on the 29th they couldhave done so a day or two later.
Accessibility is more a matter of means of communication than mileage.Forty miles in a car, and the Huntleys own a car, along the roads availablebetween Vincit estate and Colombo is no obstacle to the Huntleys havingthemselves examined by a radiologist.
MAARTENSZ J.—Sabapathy v. Huntley.
189
There appears to have been, considerable controversy in the DistrictCourt as to whether the plaintiff told the defendant and Urquhart,as they say, that there was no fracture or whether he told them, as hesays, that there were no signs of fracture. The plaintiff, however,admittedly did not qualify what he said by some such words as “ I am notsure” or “there might be fractures”, and the defendant would havebeen justified in saying that the plaintiff pronounced definitely that nobones were broken. Ic is clear from his letter D 7 dated January 28,1933, that what the plaintiff told the defendant conveyed to his mindthat there were no fractures, for in the last line of the letter he says“ I am glad to report that there are no fractures Earlier in the letterhe says that he is in hospital and hopes to move back to the estate inthe evening.
If the plaintiff’s diagnosis was that there were no fractures, as I am ofopinion it was, there is nothing improbable in his telling the Huntleysthey could go back that night or telling them when Mrs. Huntley expresseda wish to stay the night that they could go back next morning.
The District Judge is of opinion that the plaintiff would not have toldthe Huntleys they could go home on the 27th because their stay wouldincrease the revenue of the hospital, especially as there have been onlytwo paying patients for a year in the hospital. There might have beensome substance in this reason if the plaintiff’s salary depended on therevenue of the hospital or the hospital is looked upon by the Governmentas a source of revenue, but that is not the case.
The defendant’s evidence is rejected by the District Judge becausehe said in D 10 that the plaintiff told them they could go home nextmorning. But I cannot find anything in the evidence indicating thatHuntley was asked to explain the discrepancy. D 10 was put to Urquharton this point and he said the statement was not correct. It does notfollow that the plaintiff did not make that statement at another timewhen Urquhart was not present.
Before leaving this part of the case I must point out that the DistrictJudge was wrong in not allowing defendant’s Counsel to put to theplaintiff passages from certain medical text-books merely because theplaintiff had not read them. The Science and Practice of Surgery byRomanis & Mitchiner had been relied on by Dr. de Silva, and it wasunfair to the plaintiff not to give him an opportunity of saying what hisopinion was with regard to the statement relied on by the defendant.According to the record no objection was raised by plaintiff’s Counsel.
I shall now consider whether the defendant has proved the truth of thespecific statements (b), (c), (d), (e).
[His Lordship after discussing the evidence proceeds : —]
For the reasons given by me I should have, if I was the trial Judge,dismissed the action on the ground that the defendant had proved thetruth of the alleged defamatory statements.
Finally, the District Judge said, “I have thus shown that the allegedstatements in the letter D 10 and at the interview with the Director ofMedical and Sanitary Services are not true; there is another reason thatthey are not true because if they are true why. did the defendant writeP 11 expressing gratitude. All these facts on which he later based hisallegations must have been in his mind when he wrote P 11 ”.
190
MAARTENSZ J.—Sab apathy v. Huntley.
This inference from P 11 is obviously incorrect. The defendant wasasked with regard to the expression of gratitude in P 11 and the con-demnation of the plaintiff in D 10—“ How do you reconcile these twostatementsHis reply was, “ The prescription and treatment for simple
injuries in Karawanella Hospital were perfectly adequate. When Idiscovered that the injuries were so serious I could not think that thetreatment was adequate ”. In my opinion the defendant’s answer amplyand correctly explains why letter D 10 was written after he had writtenP 11 expressing how grateful he was for the treatment in KarawanellaHospital.
The learned District Judge has clearly misdirected himself in regardto the inference to be drawn from and the effect of letter P 11 which wasrescued from a waste paper basket twenty-two days after it was received.
The learned District Judge has clearly erred on several points in thiscase. Counsel for the respondent contended that the judgment shouldnevertheless be affirmed as the District Judge had the advantage ofseeing and hearing the witnesses.
The principles which should guide a Court of Appeal in an appeal fromthe decision of a Judge sitting without a jury were considered and laiddown by the House of Lords in the case of Powell and wife (appellants)and Streatham Manor Nursing Home (respondents)1.
The action was one for the recovery of damages caused to the plaintiffsby reason of injury to Mrs. Powell, resulting from the negligence of therespondent’s servants or agents. The trial Judge, sitting without a jury,gave judgment for the plaintiffs-appellants.
Mrs. Powell had sustained an injury ; the question for decision waswhether that injury had been caused by the doctor who performed anoperation on Mrs. Powell or by a nurse in the service of the nursing home.On the material issues there was a conflict of oral testimony.
The trial Judge said regarding the evidence, “ I wish to put my judgmenton the fact that having heard all the witnesses I am satisfied Mrs. Powell’saccount of the occurrence is true and accurate and that the injury wassustained by the negligence of Sister Hyndman ….”
The Judge said as regards the evidence of the doctors that they hadsatisfied him by their evidence that no such accident occurred.
No claim was made against the respondents for more than two yearsafter the appellant left the home ; even then, the first letter of claimdid not complain of the injury which was the main subject of the actionbut of another injury the claim for which was dropped.
An explanation for the delay was given by the plaintiffs and the Judgesaid, “ I have seen the witnesses and accept their evidence as to the delay ”.
The Court of Appeal reversed the judgment of the trial Judge and theplaintiffs successfully appealed to the House of Lords.
The principles laid down in the judgments are summarized in thehead note thus—-
“ Where the question at issue is the proper inference to be drawn fromfacts which are not in doubt, the appellate Court is in as good a positionto decide the question as the Judge at the trial is.
» (1935) L. R. A. C. 243.
101
MAARTENS Z J.—Sab apathy v. Huntley.
“But the appeal, although a rehearing, is a rehearing on documents(i.e., notes of evidence) and not, as a rule, on oral evidence ; and wherethe Judge at the trial has come to a conclusion upon the question whichof the witnesses, whom he has seen and heard, are trustworthy and whichaie not, he is normally in a better position to judge of this matter than theappellate tribunal can be ; and the appellate tribunal will generally deferto the conclusion which the trial Judge has formed
Lord Wright who delivered the main opinion in the case quotes withapproval the opinion of Lord Sumner in Hontestroom (Owners) v. Saga-porak (Owners)1. The relevant passage from Lord Wright’s opinion isas follows : “ Lord Sumner states the antinomy, which arises when theCourt which is judge of fact has neither seen nor heard the witnessesand discusses how it is to be reconciled. He says, ‘ Of course, there isjurisdiction to re-try the case on the shorthand note, including in such're-trial the appreciation of the relative values of the witnesses, for theappeal is made a rehearing by rules which have the force of statute :It is not, however, a mere matter of discretion to remember and takeaccount of this fact; it is a matter of justice and judicial obligation.None the less, not to have seen the witnesses puts appellate judges in apermanent position of disadvantage as against the trial judge, and,unless it can be shown that he has failed to use or has palpably misusedhis advantage, the higher Court ought not to take the responsibility ofreversing conclusions so arrived at, merely on the result of their owncomparisons and criticisms of the witnesses and of their own view of theprobabilities of the case ’. He adds a little later the following furtherquotation from Lord Sumner’s opinion :‘ If his ’ (the trial judge’s)
‘ estimate of the man ’ (the witness) ‘ forms any substantial part of hisreasons for his judgment the trial judge’s conclusion of fact should, as Iunderstand the decisions, be let alone ’ ”—pages 264 and 265.
The District Judge in this case has not apart from Matron Cooper andHassim expressed his opinion of the estimate of the witnesses nor can hisestimate of the witnesses be inferred. He has not, in the case of plaintiffand his witnesses except Matron Cooper and Hassim, considered thematters which negative their evidence and said that he accepts theirevidence, or in the case of the witnesses for the defence considered thematters which support their evidence and said he rejects their evidence.He has on the other hand given his reasons for accepting the evidenceof the plaintiff and his witnesses and rejecting the evidence for thedefence, reasons which are in my opinion unsound ; and he has drawnfrom documents conclusions which cannot be supported, particularly asregards the effect of P 11.
He has based his judgment of plaintiff’s professional character partlyon documents P 14 and P 15 which he had rejected, and rejected theevidence of Dr. de Silva as to the necessity for an X-ray examination onevidence which he elicited himself from Dr. Briercliffe and did not allowthe defendant to test by cross-examination. He has not considered thenegative effect of the plaintiff’s letter P 3 as regards plaintiff’s evidence
that he suspected fractures and asked the Huntleys to let him knowhow they were getting on, (2) that he examined them on the 28th.Finally he has not considered the effect of letter D 7.
1 (1927) A. C. 37, 40.
192
MAARTENSZ J.—Sabapthy v. Huntley.
The only persons whom he can be said to have estimated as wtinessesare as I have already said Matron Cooper and Hassim. But his estimateof these witnesses is at variance with the fact that their evidence isinconsistent with their statements.
I am accordingly of opinion that this is not a case in which, to use thelanguage of the head note, “ v/e should defer to the conclusion which thetrial Judge has formed
In my judgment the defendant has proved that the examination wasmade in the car—that it took only a few minutes—that the plaintiffpronounced definitely that no bones were broken or that there were nofractures, and that the plaintiff was negligent in not advising an X-rayexamination, such negligence in my judgment amounts to incompetence.
The statement that the examination took half a minute is not in thecircumstances actionable.
The District Judge having considered the issues of fact and stated hisfindings thereon went on to deal with the issues of law under the differentheads of justification, fair comment, and so on.
Under the head of justification the District Judge correctly statedat the commencement that the defendant was bound to prove that thethree specific statements in letter D 10 and the two statements at theinterview are true. But he went on to say that the defendant mustprove negligence and incompetence on the part of the plaintiff and thateven if he acted on Dr. de Silva’s opinion “ there was no justification tosend a copy of the letter to Mr. Selwyn to be brought up before theAssociation ”. I cannot quite understand this statement. Appellant’sCounsel argued that the District Judge had not properly appreciated thedefence and that it showed his lack of experience at all events in trials ofthis nature. However that may be, in view of my finding that the•defendant has proved the truth of the statements (b), (c), (d), and that (e)is not actionable, the only question is whether he was entitled to chargethe plaintiff with negligence and incompetence.
The District Judge has held on the authority of Bishop v. Latimer l,that one case of negligence or incompetence is not sufficient to raise ageneral charge of negligence and incompetence. The libel in the casecited by the District Judge was headed “ How Lawyer B treats hisclients ” followed by a report of a particular case in which one client ofLawyer B had been badly treated. That particular case was provedto be correctly reported, but this was held insufficient to justify theheading which implied that Lawyer B generally treated his clientsbadly. In another case referred to by Odgers at page 151 the wordscomplained of were that the plaintiff was a libellous journalist—proofthat he had libelled one man, who had recovered from him damages, washeld insufficient.
The effect of these decisions is that a general charge cannot be justifiedby a particular instance. But it is to my mind clear from the terms ofletter D 10 that the defendant was not making a general charge ofnegligence and incompetence, but a charge of negligence and incompetencein connection with the treatment of himself and Mrs. Huntley.
1 4 L.T. 775.
MAARTENSZ J.—Sabapathy v. Huntley.
193
Odgers lays down (page 149) that if the jury are satisfied that the wordsare true in substance and in fact, they must find for the defendant,though they feel sure that he spoke the words spitefully and maliciously.On the other hand, if the words are false and there be no other defence,the jury must find for the plaintiff, although they are satisfied that thedefendant bona fide and reasonably believed the words to be true at thetime he uttered them. These observations apply equally to a trial by aJudge sitting alone.
The District Judge has dealt with the question of malice under aseparate head and dealt at some length with the legal principles involved.But in this case, the defendant’s statements are based on his personalknowledge of the facts.
The only question for decision is whether the defamatory words aretrue or false. If they are true malice is immaterial, if they are untruethat would as a rule be conclusive evidence of malice. (See judgment ofMcCardie J. in British Railway Traffic & Electric Co. v. The C. R. C. Co. ’)
If the occasion on which the defamatory statements were made isabsolutely privileged, the plaintiff must fail—Odgers p. 189. If theoccasion is one in which the privilege is qualified the plaintiff must provethat the defendant acted maliciously, he can do so by proving that thestatements were false to the defendant’s knowledge. In this case if thedefendant’s statements were false, they were false to his knowledge andhe cannot shield himself behind the plea of privilege.
I have already held that the defendant has proved the truth of thealleged defamatory statements made by him and “ he has no need ofprivilege ” (Home v. Jones (supra) ).
I propose however to deal with the question of privilege briefly out ofdeference to the arguments addressed to us. It only arises in regard tothe publication of D 10 to Mr. Selwyn and at the meeting of the Associa-tion on February 23. The publication of D 10 to the Director is notpleaded by the plaintiff. The statements made to the Director at theinterview on April 7 were undoubtedly made on an occasion of qualifiedprivilege.
Whether the publication to Selwyn as Chairman of the Associationwas a privileged communication depends in my judgment on whetherthe publication to the Association was privileged.
Whether the meeting of the Association at which the letter D 10 wasread out was a privileged occasion is a difficult question.
According to the evidence of the defendant there is a parent associationfor planters to which are affiliated district associations. The Association(The Kelani Valley Planters’ Association) is a district association whichtakes interest in planting, roads, and hospitals of the district. TheKarawanella Hospital is situated in an estate medical district within thearea of the Association. Two visitors are annually appointed by theAssociation to visit Karawanella Hospital. They visit the hospital andreport to the Association. Their observations after inspection, thedefendant says, are conveyed to the Medical Department but he wasunable to say through which channel.
1 (1922) 2 K.B.at pp. 266-274. Odgers p. 284.)
7-J. N. B 32999 (1/M)
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MAARTENSZ J.—Sabapathy v. Huntley.
The parent association was incorporated by Ordinance No. 12 of 1916.The estates in the Kelani Valley district are worked with inunigrantlabour. The medical wants of immigrant labourers are provided for byOrdinance No. 9 of 1912.
It empowers the Governor to declare any district an estate medicaldistrict and to appoint district medical officers and provides for theestablishment of hospitals for every medical district.
Sections 6 and 7 enact that:
It shall be the duty of a district medical officer for the purposes ofthis Ordinance—
Upon the written request of a superintendent, to visit any sicklabourer upon his estate ;
lb) To direct the removal to hospital of any such sick labourer whoseremoval he may consider necessary ;
To attend upon all such labourers who at the direction of a districtmedical officer or otherwise may be admitted to hospital.
It shall be the duty of every medical officer (being a duly qualifiededical practitioner registered under section 12 and 13 of Ordinance). 2 of 1905) for the purposes of this Ordinance from time to time—
To visit the estates within his district, or any other estate which he
may' be specially directed to visit, and to inspect the sanitarycondition thereof;
To examine the labourers on such estates for the purpose of ascer-
taining their condition of health, and whether they have beenduly vaccinated;
To inspect all children under the age of one year resident upon
such estates, and to give directions to the superintendent fortheir proper care and nourishment;
To direct the removal to hospital of any sick labourer whose
removal he may consider necessary ;
To draw the attention of the superintendent to any defect in the
sanitary condition of his estate, and in the condition of healthof the labourers ;
(/) If any estate has an estate hospital or dispensary, to inspect suchhospital or dispensary ;
(g) To report to the Director of Medical and Sanitary Services on all orany of the above matters.
Section 9 provides that any superintendent shall be entitled—
To medical attendance by a district medical officer upon any sick
labourer upon his estate ;
To the reception at a hospital (subject to the accommodation- of the
hospital) of any labourer who in the opinion of a district medicalofficer ought to be admitted to the hospital;
Section 12 provides that it shall be the duty of every superintendent:
(a) To maintain the lines of his estate and their vicinity in a fairsanitary condition ;
195
MAARTENSZ J.—Sabapathy v. Huntley.
To inform himself of all cases of sickness on his estate, and to take
such steps as he may deem best for the immediate relief of the
sick;
To send any labourer to hospital when so required by a medical
officer ;
To send for the district medical officer in any case of serious illness
or accident.
Section 10 prescribes the charges payable by the superintendent formedical services rendered under the Ordinance.
Chapter VI. creates a Medical Wants Committee to advise the Governorupon the matters specified in the Chapter. Three of the members of theCommittee must be persons whose names are submitted to the Governorby the Planters’ Association of Ceylon.
Chapter VII. empowers the Legislative Council to impose export dutieson tea, rubber, coffee, &c., for the purpose of meeting the expenses of theadministration of the Ordinance.
Mr. Selwyn was in the month of February, 1933, a member of theMedical Wants Committee and there was a suggestion that the communi-cation of D 10 to him was privileged as he was a member of the committeeand it was argued that the privilege was not affected by the letter beingsent to him as Chairman of the Association.
In spport of the argument we were referred to the case of Harrison v.Bush In that case a complaint as to the conduct of a Magistrate wassent to a Secretary of State, who it was contended had no power to removethe Magistrate, that authority being vested in the Chancellor. It washeld that in being presented to the Secretary of State the petition wasreally presented to the Sovereign who has undoubtedly power to set footan inquiry through the proper channel and that this was enough toestablish the prima facie immunity claimed for the publication.
The decision is in my opinion not applicable as the Committee and theAssociation are independent bodies without, as in the case cited, a commonhead to whom the communication was in effect addressed.
The suggestion is untenable as the defendant had no intention ofcomplaining to the Committee.
It was argued as regards the Association that the members beinggoverned by the provisions of the Medical Wants Ordinance wereinterested in having a competent and careful District Medical Officerin charge of the district and that therefore the Association was a bodyhaving an interest in the subject-matter of letter D 10.
The argument would have had more force if the complaint made bythe defendant was in regard to the manner the plaintiff discharged theduties imposed upon him by the Medical Wants Ordinance. But that isnot the case—the defendant’s complaint was about a personal matter.
Counsel were not able to refei^me to nor can I find any case in which thefacts are analogous to the present case.
The general principle is that “ If the communication was of such anature that it could be fairly said that those who made it had an interestin making it, and those to whom it was made had a corresponding interest
1 {18-53) 5 E. £• B. 344.
196
MAARTENSZ J.—Sabapathy v. Huntley.
in having it made to them …. the occasion is a privileged, one,and the question whether it was or was not misused is an entirely differentone”—Odgers p. 231.
Such common interest might be pecuniary, professional or may arisefrom the joint exercise of any legal right or privilege as from the jointperformance of any duty imposed or recognized by law.
The defendant was no doubt a person interested, but had the Associa-tion an interest in a matter personal to the defendant. The Associationhad no authority to investigate the charge and their interest if any in thecomplaint was too remote in my opinion to render the occasion privileged.
The occasion not being privileged the defendant cannot claim that he.was not responsible for the reports in the newspapers because he did notinvite the reporters to publish the letter. It is sufficient that he knewreporters would be present at the meeting.
The case of Parker v. Prescott & another is not applicable to the factsof this case nor the case of Kershaw v. Bailey 2.
Appellant’s Counsel argued that the first statement that the plaintiffwas incompetent and negligent was comment and the second statementthat the examination was perfunctory mixed comment and fact.
The second in my opinion is clearly a statement of fact and I aminclined to think that the first is also a statement of fact. But even ifthey are comments they must be comments on proved or admitted facts.If the defendant fails to establish the truth of the facts on which thecomment is based the plea must fail even if the comment on the allegedfacts is not unfair. Treating the statements as comments, the defendantin my opinion has proved the facts on which they are based and they arenot in my opinion unfair. It is unnecessary for me to discuss whetherthe matter was one of public interest or not, in view of my finding thatthe plea of justification had been established.
I am of opinion that the dictum of Viscount Finlay in the case ofSutherland v. Stopes *, is applicable to this case. It is as follows : “ It isclear that the truth of a libel affords a complete answer to civil proceed-ings. This defence is raised by a plea of justification on the ground thatthe words are true in substance and in fact. Such a plea in justificationmeans that the libel is true not only in its allegations .of fact, but also inany comments made therein. The defence of fair comment on mattersof public interest is totally different. The defendant who raises thisdefence does not take upon himself the burden of showing that thecomments are true. If the facts are trully stated with regard to a matterof public interest, the defendant will succeed in his defence to anaction of libel if the jury are satisfied that the comments are fairly andhonestly made ”.
There are one or two points which I desire to refer to before concludingmy judgment.
There is no evidence that the defendant was actuated by any personalanimus against the plaintiff when he wrote D 10. The plaintiff says thedefendant came once or twice to the hospital and he found him a courteousgentleman. The plaintiff did not suggest any reason why the defendantshould have written letter D 10. The District Judge says that the letter1 38 L. J. Ex. 105.* 17 L.J. Ex. 129.3 (1925) A. C. 47, at p. 62.
MAARTENSZ J.—Sab apathy v. Huntley.
197
was written because the defendant found he and his wife had to stay in anursing home and might have to pay a heavy bill. In appeal respond-ent’s Counsel suggested that D 10 was written with a view to gettingcompensation from Government. This suggestion is based on letter P 18in which the defendant calls the attention of the Director to letter D 10and says that he feels compensation is due to himself and his wife for thedelay in their “ ciire ” and the extra expense incurred. I think that infairness to the defendant the suggestion should have been put to himat the trial but it was not. I do not think that the defendant has beenshown to have had any other motive than dissatisfaction at the treatmenthe received at the hospital, resulting from the fact that the plaintiff’sdiagnosis was found to be incorrect, and the plaintiff’s failure to advisean X-ray examination.
The District Judge appears to have rejected the suggestion becauseDr. de Silva made no diagnosis and no definite pronouncement butdirected the Huntleys to have an X-ray examination. If my inferenceis correct, the District Judge has lost sight of the fact that when D 10was written the X-ray examination had been made and had revealedfractures.
The strictures passed by the District Judge on Dr. de Silva’s exami-nation of the Huntleys were I think unnecessary and without foundation—unnecessary because the plaintiff made no suggestion against the ade-quacy of the examination when Dr. de Silva was in the witness box, withoutfoundation because they are based on statements of defendant in cross-examination that Dr. de Silva’s examination “ took only a very shorttime, by this I mean next to no time ”. He does not specify the time.Dr. de Silva said he examined Mrs. Huntley for fifteen minutes andHuntley for about five minutes. It is quite possible that the defendantconsidered this a short time or next to no time for his case, but it does notnegative Dr. de Silva’s evidence.
But however brief Dr. de Silva’s examination was it was quite sufficient.He advised an X-ray examination which indicates that he diagnosed thepossibility of fractures which could not be detected by a clinical exami-nation and his diagnosis was confirmed by the X-ray examination.
There is in my opinion no reason for the District Judge’s observationthat Dr. de Silva’s evidence in examination-in-chief is based more or lesson what he has observed by reading the skiagrams and not on his personalobservation. Hence his rejection of Dr. de Silva’s evidence as to whathe observed at his clinical examination cannot be sustained.
Dr. de Silva was cross-examined regarding the time he took over hisclinical examination not to prove that his examination was inadequatebut to prove that if the time he took was sufficient for a proper exami-nation the time the plaintiff took to make his examination was equallysufficient.
Another point I have to touch on is the complaint that the DistrictJudge admitted documents before they were proved. The DistrictJudge was clearly wrong in admitting these documents subject to theirbeing proved at another time.
I do not think that the defendant has been prejudiced by the indul-gence granted to the plaintiff. But I would point out that section 114
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MAARTENSZ J.—Sabapathy v. Huntley.
of the Civil Procedure Code enacts that no document shall be placed onrecord unless it has 'been proved or admitted in accordance with the lawof evidence for the time being in force, and section 67 of the EvidenceOrdinance enacts that if a document is alleged to be signed ….by any person the signature …. must be proved to be in hishandwriting.
In practice a party is allowed to prove a document at a later stage ofhis case, but except by consent he should not be allowed to prove it afterhis case is closed.
The attention of this Court and the District Court was drawn to manydetails regarding which (a) there were discrepancies in the evidence ofthe witnesses for the defence, (b) there was a conflict of evidence. Dis-crepancies such as; whether Huntley was examined by Dr. de Silvabefore the X-ray examination of Mrs. Huntley as stated by Dr. de Silva,or after the X-ray examination of Mrs. Huntley as stated by Huntley ;whether Huntley was carried to the lavatory on the 28th morning byUrquhart alone as stated by Huntley, or by Urquhart and Nicol as statedby Urquhart and Nicol ; whether Huntley’s driver accompanied theHuntleys in Urquhart’s car as stated by defendant or went in the Pana-watte estate lorry as stated by Urquhart ; whether Urquhart’s car wasdriven by Urquhart himself as stated in D 10, or by his driver as statedin the evidence.
I do not think the discrepancies affect the evidence on material pointsin the case. The witnesses Were giving evidence some eighteen monthsafter the event and it would be surprising if their recollection agreed onevery detail.
The conflict of evidence is also in my opinion on points not materialto the decision of the case. The matters referred to were ; whether theplaintiff was reading by a lighted lamp when the car arrived at hisbungalow as stated by Urquhart, or talking to the Town Arachchi withouta lamp as stated by the plaintiff ; whether Mrs. Huntley was lying inbed on the 28th morning as stated by the defence witnesses, or seated in achair as stated by plaintiff and Miss Cooper ; whether the defendant wascarried to the car on the 29th as stated by him, or was helped to the caras stated by Matron Cooper ; whether the defendant went to the lavatoryas stated by him, or did not go at all as stated by Matron Cooper ; whetherthe plaintiff wore flannel trousers on the 28th evening or trousers ofanother kind.
I have for the reasons given by me not thought it necessary to dealwith all the matters referred to above.
The District Judge commented on the fact that certain witnesses thedefendant might have called were not called. Two of them, Benjaminand Muttiah, were employees of defendant, the third Jayatilleke isUrquhart’s driver. I do not see that any purpose would have beenserved by the defendant calling them. The fourth is a Scout of theAutomobile Association of which defendant is a member and that wouldhave discounted the effect of his evidence.
I have, I think and hope, discussed all the material points to which ourattention was drawn by Counsel for the appellant and respondent at theagrument which took twelve days during which the evidence or most ofit was read to us twice.
DALTON S.P.J.—John v. Pira.
199
I agree with the District Judge that the statements specified in issues1 and 2 are defamatory of the plaintiff and that they were published asset out in issue 4 and that defendant is responsible for the publicationof the statements specified in issue 1 at a meeting of the Kelani ValleyPlanters’ Association and in the “ Times of Ceylon ” and “ Daily-News ”of February 24, 1933.
On issue 5 I find that the statements made at the interview with theDirector were made on a privileged occasion. I hold on the facts of thiscase that the publication to the Association was not made on a privilegedoccasion.
I find on issues 3 and 9 (a) that the statements were not false but true,in substance and in fact.
I answer issue 9 <b) in the affirmative.
I accordingly dismiss plaintiff’s action with costs in both Courts. .
Koch J.—I entirely agree.
Appeal allowed.