152-NLR-NLR-V-39-WICKREMANAYAKE-v.-THE-TIMES-OF-CEYLON-LIMITED.pdf
MAARTENSZ J.—Wickremanaydke v. The Times of Ceylon, Limited. 547
1937Present: Maartensz and Koch JJ.
WICKREMANAYAKE v. THE TIMES OF CEYLON,LIMITED.
224—D. C. Colombo, 5,005.
Defamation—Measure of damages—Proof of special damage unnecessary—Homan-Dutch law.
Where, in an action lor defamation, the words used by the defendantare prima facie actionable it is not necessary to give proof of specialdamage.
Plaintiff may recover a verdict for damages without giving evidence ofactual pecuniary loss.
^^PPEAL from a judgment of the District Judge of Colombo.
Hay ley, K.C. (with him N. E. Weerasooria and E. B. Wickramanayake),for the appellant.
H. V. Perera, K.C. (with him N. Nadarajah), for the respondents.
Cur. adv. vult
November 17, 1937. Maartensz J.—
This is an action for the recovery of a sum of Rs. 20,000 as damagessustained by the plaintiff by reason of a libellous paragraph being pub-lished concerning him in the issue of the newspaper known as the Timesof Ceylon, dated January 24, 1936. –
* 21 N.L. R. 165.
548 MAARTENSZ J.—Wickremanayafee v. The Times of Ceylon, Limited.
•The defendants who are the proprietors and editor-in-chief respectivelyof the newspaper in question admitted the publication of the paragraphand that it was libellous, but denied that the plaintiff suffered the damagesclaimed. They alleged that they had made all possible amends for thepublication of the paragraph by publishing an apology and an expressionof regret in the issue of the paper dated January 27, 1936, and theybrought into Court a sum of Rs. 500 as representing the damages sufferedby the plaintiff.
The District Judge awarded the plaintiff Rs. 500 as damages apddirected him to pay the defendants’ costs.
The plaintiff appeals from this award.
I do not think it necessary to set out the paragraph complained of infull. It is sufficient to say that it purports to be a report of certainproceedings in the Police Court of Galle in which one LetchimananChettiar charged one Mr. Benjamin Jayesekere with cheating, and theplaintiff with abetment.
As the libel must have injured the plaintiff’s reputation it is actionableper se and the plaintiff may recover a verdict without giving any evidenceof actual pecuniary loss. (Nathan’s Common Law of S. Africa, vol. III.,p. 1626, s. 1585.)
The plaintiff in his plaint claimed damages for pain of mind and injuryto his reputation, and, judging by the averments in paragraphs 7 to 10of the plaint, on the ground of his defeat at the poll taken for the electionof a member to the State Council by the Galle electorate. The lastground of claim was abandoned at the trial.
It was not alleged or proved that the defamation was deliberate andmalicious, or that the defendants, who were deceived by the forgery ofthe signature of their reporter in Galle, Mr. Wootler, to the communica-tion, were culpably reckless or negligent in the matter. There weretherefore no circumstances to enhance the damages.
The 24th of January, 1936, was a Friday. The plaintiff heard of theparagraph that night and instructed his ^Proctor, Mr. Jayasundere, tosend a letter of demand to the-second defendant demanding payment of asum of Rs. 50,000 as damages sustained by the plaintiff by reason of thepublication (letter P 8). The letter was according to the seconddefendant’s evidence received by him on the 27th ; but he had receivedon the 25th a telegram from Mr. Wootler in which he denied sending thereport. In the issue of the 27th, the second defendant published anapology. I do not think I can. possibly accept the suggestion that theapology was a tardy'one. P 9 is a copy of the apology that was published.It appeared as a second leading article and is headed “ Forged Reportsent to ‘ Times of Ceylon ’. Claims for damages follow ”.
These headlines would certainly draw the attention of the readers ofthe paper to the article. There should also in my opinion have been aheadline to indicate that the article was intended to be an apology for thepublication of the report.
The article contains a resume of the report and states that it has beenfound to be false, that the Times of Ceylon had no reason to suspect theauthenticity of the report, which bore what seemed to be the signature ofMr. S. T. Wootler, the representative of the Times of Ceylon at Galle, and
MAARTENSZ J.—Wickremanayake v. The Times of Ceylon, Limited. 549
that letters of demand have been received from Mr. Jayesekere andMr. Wickremanayake claiming as damages Rs. 20,000 and Rs. 50,000respectively.
There follows an unqualified apology and an expression of regret for thepublication of the report.
The article concluded with a statement to the effect that the apology ispublished in the earliest possible issue after the receipt of confirmation ofthe facts, a repetition of the statement that the journal had no reason tosuspect the authenticiy of the report and that the matter has been placedin the hands of the Criminal Investigation Department.
The second defendant replied to Mr. Jayasundere’s letter of demand onJanuary 27 (P 10) intimating that he greatly regretted the publication ofthe “ para ” and that he is tendering an apology in the issue of the paperof the 27th, and requesting him in the circumstances to withdraw his letterand claim of January 24.
Mr. Jayasundere replied by letter P 11 dated January 31, .1936, that hisclient has instructed him to say that his reputation has been irreparablydamaged and that the statement that the report was based on a forgery isnot proved to his satisfaction.
In conclusion Mr. Jayasundere stated : “ My client is willing to recon-sider the amount of damage if an unqualified apology is tendered to himthrough your journal ”.
The second defendant inquired what further apology was required(P 12).
Mr. Jayasundere in reply sent a draft of the apology (P 14) which hisclient wanted published in a prominent place in the newspaper.
The draft apology is a resume of the report, a statement that the reportis false and an expression of regret for the pain of mind and body un-wittingly caused to Mr. Wickremanayake.
The second defendant replied that he was prepared to publish theapology on condition that the claim for damages was withdrawn (P 15).
The condition was not agreed to and the apology required by theplaintiff was not published.
The plaintiff in evidence admitted, at page 26 of the record, that thethree paragraphs of the article published in the issue of January 27 wereby themselves a complete apology. He alleged however that it wasqualified by the introduction of the letters of demand. The plaintiffappears to object to the reference to the letters of demand on the groundthat it suggests that the plaintiff himself sent a false report to the “ Times ”for the purpose of making money (page 23 of the record). On the samepage, he said that he learnt from Mr. Jayasundere that Mr. Wootler madethis suggestion to Mr. Jayasundere. Mr. Jayasundere denied hearingMr. Wootler making such a statement (page 51). He said however thatthere was general talk to that effect and that it may have reached him tenthhand. There is therefore no reliable evidence that anyone drew from thereference to the letters of demand an inference that the plaintiff sent afalse report to the newspaper for the purpose of making money. In myjudgment there is nothing in the article containing the apology fromwhich such an inference can reasonably be drawn.
550 MAABTENSZ J.—Wickremanayalce v. The Times of Ceylon, Limited.
Apart from the omission in the heading of any words to indicate thatthe article was intended to be an apology—which I have already referredto—the article was, in my opinion, an adequate apology and it is asrequired coupled with an expression of regret for the publication of thefalse report. The District Judge has therefore not misdirected himself,as was urged by the appellant, regarding the adequacy of the apology,and, as I have already observed, there was no tardiness in its publication.No exception was taken to the apology on the ground that it did notappear in a prominent place in the newspaper or that it was printed insuch small type as to escape the notice of a reader of the paper.
It was also urged that the District Judge had misdirected himself asregards the claim for damages resulting from the injury to the plaintiff'sreputation. On this point the District Judge in his judgment said : “ Nodamages need be considered on the ground that plaintiff has lost profes-sionally, for plaintiff himself cannot produce a single person who hasdeserted him ; he says it is too early to judge. If for 24 years plaintiffhad held a very high place in the public esteem, and has proved to hisclients that he is quite dependable, I should be very surprised to find anyclient deserting him because of some publication in a newspaper whichhad never reached him, and which newspaper subsequently apologised forthe publication. If by any accident his clients include some rogues Ishould imagine that the fact that he was suspected of some sharp practicewill only commend him to them on that ground. Damages, therefore,need not be considered on that ground.
“ There then remains only to consider damages on the ground of thepain of mind which the plaintiff had sustained by the publication of thelibel. I do not think one need consider the question of loss of reputationor pecuniary loss at all. His reputation seems to be as high as it wasbefore ”.
The law on this point as stated by Odgers on Libel and Slander, pp. 304and 305 is as follows :
“ When on the face of them the words used by the defendant clearlymust have injured the plaintiff’s reputation, they are said to be action-able per se ; and the plaintiff may recover a verdict for a substantialamount without giving any evidence of actual pecuniary loss ”.
“ General damages are such as the law will presume to be the naturalor probable consequence of the defendant’s conduct. They arise byinference of law, and need not therefore be proved by evidence. Suchdamages may be recovered wherever the immediate tendency of thewords is to impair the plaintiff’s reputation, although no' actual pecu-niary loss has in fact resulted. They will only be presumed where thewords are actionable per se ”.
Under the Roman Dutch law, “ where words are defamatory they areprirna facie actionable, and it is unnecessary, whether they be spoken orwritten, to give proof of special damage ”. (Nathan, vol. III. p. 1626,s. 1585).
The observations I- have quoted from the judgment are not consonantwith the law as laid down in the passages from Odgers and Nathan. Theyindicate that the District Judge has not distinguished between general andspecial damages.
MOSELEY J.—Ibrahim Saibo v. Philips. ■
551
The District Judge awarded the sum of Rs. 500 as damages for pain ofmind only.
In my judgment he should have awarded the plaintiff damages forinjury to his reputation as well. I do not think it necessary to remit thecase to the District Judge to assess the damages as they do not depend onany findings of fact and we are in as good a position as the District Judgefor the purpose of deciding what sum should be awarded as damages forinjury to the plaintiff's reputation.
I think the plaintiff should be awarded a sum of Rs. 500 for injury to.his reputation in addition to the amount awarded.
The plaintiff will have costs in the Rs. 1,000 class and .pay thedefendants the difference as excess costs incurred by them by reason ofthe action being brought in a higher class.
The plaintiff in his petition of appeal prayed for judgment for "Rs. 20,000.He has succeeded to only a very small extent. I accordingly make noorder as to the costs of appeal.
Koch J.—I agree.
Judgment varied.