Gleaner Company Ltd v Wright
| Jurisdiction | Jamaica |
| Judge | Carberry, J.A.,Henry, J.A.,Melville, J.A. |
| Judgment Date | 21 February 1979 |
| Neutral Citation | JM 1979 CA 4 |
| Docket Number | Civil Appeal No. 29 of 1975 |
| Court | Court of Appeal (Jamaica) |
| Date | 21 February 1979 |
Court of Appeal
Henry, J.A.; Melville, J.A.; Carberry, J.A.
Civil Appeal No. 29 of 1975
Mr. Norman Hill, Q.C., and Mr. David Murray for the defendant/appellant.
Mr. Berthan Macaulay Q.C., Mr. K.C. Burke and Mrs. M. Macaulay for the plaintiff/respondent.
Tort - Damages — Libel and Slander.
On the 12th day of July, 1978, we gave judgment in this mater, allowing the appeal and ordering a new trial on both liability and damages, and we promised to put our reasons in writing. We do so now.
On Monday January 29, 1973, the Appellants published in their “Star” newspaper on account of the undefended divorce petition brought by the respondent's wife against him and heard before Mr. Justice Rowe on Friday the 26th January, 1973. The report was published under the caption: “Cruel hubby caused wife to have many miscarriages.” The divorce was on the ground of cruelty, and after a preliminary paragraph purporting to sum up the story, it consisted of a report of the wife's evidence, which broadly speaking occupies two pages of foolscap, and a short paragraph setting out the evidence of her supporting witness Dr. Kenneth Royes as to her condition as a result of the respondent's treatment. The case was a distressingly average type of case, and no exception was taken to the headline or content, save as to a short paragraph taken from the account of the wife's evidence. It reads: “Petition said that respondent became ill in December, 1971, and was admitted to Bellevue Hospital as a patient of DR. KENNETH ROYES. He left the hospital before he was discharged and accused her of conniving with the doctor to keep him there.”
The respondent's Statement of Claim alleged: –
“4. By the said words the defendant meant and wasunderstood to mean that the plaintiff was mentally ill andwas hospitalised in a mental institution.
Particulars pursuant to Section. 170(2) of Cap. 177.
(a) The plaintiff was the respondent in the Divorce proceedings in respect of which the aforementioned words were published.
(b) The only Bellevue Hospital in Jamaica is a mental asylum.
(c) Dr. Kenneth Royes way at all material times a Psychiatrist and Senior Medical Officer (acting) attached to the Bellevue Hospital.”
Section 170(2) of the Judicature (Civil Procedure Code) of Jamaica reads:- “In an action forlibel or slander if the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall five particulars of the facts and matters on which he relies in support of such sense.”
This provision formerly to be found in the United Kingdom Rules of the Supreme Court in Order 19, rule 6 (see now Order 18, rule 12, and Note 18/12/14), now appears in Order 82, rule 3. In brief it requires the plaintiff in an action for libel or slander to give particulars of facts which he relies on to show that there is an innuendo or hidden defamatory meaning about which he complains in the offending matter. Where he alleges meanings which are not obvious he should also set them
The Defence pleaded to this action canvassed the following points: (a) There was a denial that the words were defamatory or capable of being defamatory; (b) The defendants asserted that the words were a fair and accurate report of judicial proceedings: this involves two aspects, first the common law defence of privilege on that score, and secondly the statutory defence available to newspapers under The Libel and Slander Act section 15. (formerly Cap. 219) which provides:- “A fair and accurate report in any newspaper of proceedings publicly heard before any Court exercising judicial authority shall, if published contemporaneously with such proceedings, be privileged …….”
The section was borrowed from the United Kingdom Law of Libel Amendment Act, 1888, section 3. The consensus of opinion is that the common law affords only qualified privilege, but that the Statute provides absolute privilege. (c) Finally, the defence pleaded that the words complained of were true, and set up the defence of justification. (d) The defendants also added that they had offered to make an apology to the plaintiff, but that he had rejected it. As no payment into Court was made the offered apology did not fall within the terms of Section 2 of the Libel and Slander Act (borrowed from Lord Campbell's Act of 1843, section 1) but it was a matter to be considered on the issue of damages.
The action was heard before Mr. Justice Wilkie and a special jury on the 19th, 20th and 21st of May, 1975. It resulted in a verdict by the jury in favour of the plaintiff/respondent in the sum of $2,000.00. The present appeal seeks to set aside that judgment.
At the trial the plaintiff/respondent was the principal witness. He claimed that the particular paragraph complained of had caused him great embarrassment at his work place. He is an engineer by profession and claimed that his workmen or some of them or possibly workmen in the plant not under his supervision wrote up rude paint and chalk marks on the walls calling him the “Bellevue man”, “mad baby killer” and so forth. He denied on oath that he was ever a patient of Dr. Royes, or had ever been treated by him. He admitted having been a patient of Dr. Mendez in August 1972 and that he was admitted to St. Joseph's Hospital but claimed that it was for the treatment of shingles only. Dr. Royes was a foremost psychiatrist attached to Bellevue Asylum and he would consult him only for mental illness. While at St. Joseph's he was fully aware of what happened there and was “collective”. He denied having been seen or treated by Dr. Royes, and denied receiving injections or drugs from him or on his orders. He had been in St. Joseph's for about two weeks and had left in his pyjamas and dressing gown. He discharged himself from the hospital. He equated treatment by Dr. Royes and Bellevue, and his complaint was that the offending passage meant that he way mad, mentally ill, and that he had lost the chance of a favourable business deal because of it. He knew that Dr. Mendez was off the island, and that Dr. Royes was dead.
The note taken by Mr. Justice Rowe of the undefended divorce put in evidence by consent. It occupies some three and a half pages of foolscap. The jury had the chance to compare it with the defendant/appellant's version in the “Star” newspaper. Rowe, J's the wife's evidence corresponding to the passage complained of reads thus:
“In July, 1972, husband was ill in hospital. I arranged for him to see Dr. Royes as respondent was very depressed. respondent agreed to see Dr. Royes. After a few occasions he ceased. After a while, respondent vaunted to go home. He wanted his clothes and his keys. He came out ofHospital in dressing gown and when he reached home he kicked down door and locked up telephone. My colleague was terrified; I felt embarrassed. I began to feel that I had reached physical and mental end of road…”
The longhand note taken by a trial judge hearing an undefended divorce is at best of times short and condensed. It does not purport to be a verbatim note of the evidence given. The note made by Rowe J. does not mention the name of the hospital. If the name of the hospital wasnot mentioned but the name of Dr. Royes was, it iseasy to see how a reporter could have assumed that the hospital was Bellevue, with which Dr. Royes had become identified. Neither the reporter nor the wife was called to give evidence. It is clear however that Bellevue was wrong: the hospital was St. Joseph's. The date was also wrong, it was July, 1972 (plaintiff/respondent says 5th to 18 th August), not December, 1971. So the Newspaper report was incorrect on both these points.
The trial took a rather remarkable course. At the close of the case for the plaintiff, counsel for the Defence showed to counsel for the plaintiff the medical record of the plaintiff. It is not clear whether these records from St. Joseph's Hospital, or Dr. Mendez, probably the former. On the strength of this, plaintiff's counsel formally admitted that plaintiff had peen admitted to St. Joseph's Hospital for shingles and paranoid depression, that he was referred to Dr.Royes, who came into the hospital and himself administered one injection. It appears that he visited the plaintiff on more than one occasion. plaintiff's counsel admitted that plaintiff was seen by Dr. Royes, but added that “it doesn't affect the gravamen of my case.”
The Defence called no witnesses and closed its case after this admission was made. An adjournment was taken, and next day counsel addressed and the judge summed up to the jury.
Unfortunately no verbatim note was taken of the summing-up. We have been presented with outline notes made by the judge as to what he proposed to say. Alternative versions prepared by the defendant/ appellant's instructing attorney and by the Gleaner Reporter were not agreed to and are not before us. This puts everyone in a position of some difficulty, particularly when the Grounds of Appeal address themselves to non-direction on important aspects of the case. It is not easy to understand why in expensive litigation of this sort the precaution of employing shorthand reporter for the summing-up was nottaken by one or other party.
Five Questions were left to the jury: –
- Are the words in their natural and ordinary meaning defamatory to the plaintiff? Answer: Yes. 2. Are the word a fair and accurate report of the proceedings in the divorce: proceedings? Answer: No. 3. Are the words substantially true? Answer: No. 4. Is the apology sufficient? (no answer given). 5. If yes, how much damages? Answer $2,000.00.
Before us all the grounds ordefences argued below have been in effect re-argued, and it has been argued that the directions of the learned trial judge as to them were inadequate...
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