Powery v Bush

• Jurisdiction: Jamaica
• Judge: (Smith, Edun and Graham-Perkins, JJ.A.)
• Judgment Date: 16 March 1973
• Court: Court of Appeal (Jamaica)
• Date: 16 March 1973

Court of Appeal of Jamaica

(Smith, Edun and Graham-Perkins, JJ.A.)

POWERY

and

BUSH

W.K. Chin See and Miss A. Bodden for the plaintiff;

I. Boxall for the defendant.

Legislation construed:

Judicature (Administration of Justice) Law (Laws of the Cayman Islands, 1963, cap. 74), s.150: The relevant terms of this section are set out at page 152, lines 1924.

Tort-defamation-slander-slander of married woman to accuse her of sexual relations with another man in her husbands absence

Tort-defamation-vulgar abuse-if publication proved and words ex facie defamatory, burden shifts to defendant to show that merely vulgar abuse-not fatal to fail to raise vulgar abuse in pleadings, since integral to courts decision whether words defamatory

Civil Procedure-pleading-defence-requirement in Judicature (Administration of Justice) Law (cap. 74), s.150 that defendant answer statement of claim necessitates pleading of formal defence-failure to do so not fatal if defence integral to decision on plaintiffs case

The plaintiff brought proceedings against the defendant in the Grand Court for slander.

The plaintiff alleged that the defendant had told her son: Go home and watch your mother, Iva Powery, because she has Barrick for her work man, and Osbourne Barrett for her fuck man. The plaintiffs husband, Barrick, was at the time working at sea.

The plaintiff brought proceedings for slander against the defendant. In her statement of claim, she submitted that the words were obviously defamatory since their intended meaning was that she was guilty of immoral behaviour by having sexual intercourse with another man while her husband was away. In answer to this claim, the defendant denied

using the words and all further allegations by the plaintiff. Having heard the evidence adduced by both parties, the Grand Court held that the words amounted to vulgar abuse rather than defamation and were therefore not actionable.

On appeal, the plaintiff submitted that since publication of the words had been proved and they were ex facie defamatory, it was for the defendant to show that they were not defamatory and it was wrong for the court to conclude that the words were merely vulgar abuse when the defendant had not expressly raised this as a defence.

The defendant submitted in reply that he was under no obligation to state all his specific defence in order that the court might consider all the relevant issues. Under s.150 of the Judicature (Administration of Justice) Law (cap. 74), the requirement that he answer a statement of claim meant only that he should appear and defend the case.

Held, allowing the appeal:

(1) Since the plaintiff had proved publication of the offending words, which were ex facte defamatory (it being defamatory to accuse a married woman of having sexual relations with another man in her...