Defamation

A statement which is found not to be true which lowers the plaintiff reputation in the eyes of right thinking members of society and is published to at least one third party

Who can sue?

Individual (only living person) Companies (corporate reputation) Borneo Post Sdn Bhd v Sarawak Press Public Authority (no right to sue in respect of its governing admin if no actual financial loss alleged) Derbyshire Country Council v Times News Paper

Who can be sued? Types of Defamation (i) Libel

- In a permanent form visible to eyes, ie writing - Actionable per se - S.3 da broadcasting by radio communication Youssoupoff v MGM
A Russian princess alleged that a film about Rasputin had published pics and words suggesting that she has been seduced / rape by him.

Tjanting Handicraft Sdn Bhd v Utusan Melayu

Author of defamatory words includes publisher, editor, journalist and printer.

(ii) slander
- Temporary / transient form, ie spoken words @ gesture - Not actionable per se need to prove actual damages (financial loss)

(i) Slander to women (s.4 DA) imputes adultery to any women/girl requires no proof/damages Luk Kai Lam v Sim Ai Leng
Resp called app a prostitute & said the app charged RM50 to entertain men at any one time.

(ii) Relation to a persons profession

Elements of Defamation
(1) The words are defamatory SB Palmer v AS Rajah
The words must have tendency to lower the pls reputation in the minds of right thinking members of society, so that pl exposed to hatred / avoided.

EXCEPTIONS

John Tar Chor Yong v Lee Chay Tian

The def told pl (advocate & solicitor)s friends & clients that he was owing the def several months rent.

(iii) Juxtaposition
(involves a situation that employs visual effects)

Monsoon v Tussauds (ii) Innuendo

Words become defamatory either by inferences, special facts @ circumstances known by reader of the words. The pl was accused for committing crime but was released. The def erected a statue of the pl and placed together with statues of other criminals.

(iii)Relation to title, goods & malicious falsehood Borneo Post Sdn Bhd v Sarawak Press (iv) Contagious disease

(b) True Innuendo

Due to special facts that are known to the recipient of the publication. (i) existence of external factor other than the words (ii) these facts are known by one or more persons to whom defs words have been published Tolley v Fry & Sons
An ad in newspaper showed a caricature of the pl playing golf with a bar of defs chocolate sticking out of his trouser pocket

(i) Natural & Ordinary Meaning

(general knowledge & common sense of reasonable persons)

(a) False Innuendo

(may arise from combination of pics and statements)

(iii) the knowledge may cause the words to be defamatory in the eyes of reasonable men who are privy to the special facts. R Murugason v The Straits Times Press
The pl alleged that the report in the ST imputed that he had acted improperly in his conduct as advocate & solicitor. The pls claim was dismissed as he failed to prove that one/more persons have special knowledge w regard to court proceedings.

(v) Crime attracts corporal punishment, ie death penalty, whipping & imprisonment. C Sivanathan v Abdullah b Dato Hj Abd Rahman
Calling the pl cheat, dishonest & liar did not attract corporal punishment.

Hasnul Abd Hadi v Bulat Mohamed

Labeling a Muslim man as Abu Jahal is defamatory as it imputes that a person as a big liar, untrustworthy & irresponsible.

CS Wu v Wang Look Fung

Newspaper printed the pls pic + caption A lawyers activities are being investigated. Not allowed to explain the inferences that can be drawn.

(2) Words must refer to the plaintiff David Syme v Canavan

Test: Whether an ordinary reader would reasonably come to the conclusion based on the statement as a whole, that it was referred to the plaintiff.

(3) Publication
(Dissemination of the defamatory words or material to a third party other than the plaintiff)

Matchplan v William D Sinrich

Held: Publication does not arise if the words or printed material are only heard by the plaintiff and not heard or seen by third parties.

(a) No named person Morgan v Odhams Press

There was a gossip in a newspaper but without any name. Held: an ordinary reader has rational grounds for believing that the words referred to the pl.

(b) Fictional Name Hulton & Co v Jones

A fiction was written concerning an Artemis Jones. There was in fact a real Artemis Jones, the pl. Held: Defamation those who knew him understood the words as referring to him although that was not intended to be so.

(c) 2 people with same name Newstead v London Express Newspaper

The defs newspaper stated that Harold Newstead, 30, Camberwell man, was punished for bigamy. The statement was true on one but not the pl. Held: liable for defamation.

(d) Class defamation Eastwood v Holmes

A man wrote that all lawyers were thieves. Held: No lawyer could sue unless there was something to point to the particular individual lawyer.

Dr Jenni Ibrahim v S Pakianathan

The def wrote

(a) Language used must be understood by third party (b) The plaintif must be able to specify what exactly has been said/written by the def (c) Must prove the identity of the person (d) Republication: Lee Kuan Yew v Derek Gwyn Davies
If the words are repeated or copied, a new course (e) Place of publication:

DEFENCES TO DEFAMATION

(1) Consent
(consented to publication; express/implied)

(2) Justification
(article complained of is true)

(3) Unintentional Defamation

(def innocently publishes defamatory material of another person)

(4) Innocent Dissemination Vizetelly v Mudies Select Library

This defence is available to a def who is not the author, printer or first or main publisher of the defamatory article.

Yin Cheng Ang v Taro Imanaka

A letter containing defamatory words are written in Singapore and sent from Malaysia to Japan. Held, it is not actionable in Malaysia as publication takes place in Japan.

Normala Samsuddin v Keluarga Communication

S Pakianathan v Dr Jenni Ibrahim

It was not sufficient for him to state that he believed the allegation to be true.

(5) Fair Comment (a) Must be an opinion Telnikoff v Matusevitch

The test is it was enough for the def to show that the opinion was one a person could believe

(6) Privileges (d) Of public interest London Artists Ltd v Litter (a) Absolute privilege
(occasion legislatures & judicial proceeding)

(b) Based on true facts SB Palmer v AS Rajah

The def failed to prove his allegation that the pl walked out of a meeting in a dramatic fashion.

(c) Fair & not malicious

The comment must be an honest expression of the writer made in good faith. Hence, comment made maliciously is not a fair comment.

(b) Qualified privilege

(operates only to protect statements which are made without malice) The Times had published an article in Ireland to the effect that Reynolds had misled the Irish Parliament. Article was of public importance, attracted qualified privilege. However, it was held that Mr Reynolds had been treated unfairly.

Rajagopal v Rajan

If the matter affects people at large so that they concerned what is going on, it is public interest everyone is entitled to fair comment.

Chatterton v Secretary of State for India

Statements made by officers of state from one to another in the course of their official duty are protected.

Vicarious Liablity
A situation where an employer is responsible for damage or injury for tortuous act of the employee.

Elements
(1) Commission of Tortious Act Pui Lai Ong v Kassim bin Yunus
The court will first and foremost decide whether a tort has been committed where all the elements of particular tort must be satisfied.

(2) Special Relationship

(exist between def & tortfeasor employer & employee) TEST: Whether the relationship is on contract of service (employee) or contract for service (independent contractor)

(3) Tort committed within the course of employment (a) Carelessness Century Insurance v Northern Ireland Road Transport Board
The def was liable for his workers negligence as the act was done in the course of employment although the actual act of smoking and causing explosion in the pls property did not benefit the employer.

(i) Determining the existence of employer-employee relationship (a) Control Test

(ii) Grey Areas (a) Hospital staff Ellis v Wallsend District Hospital

(b) Mistake Bayley v Manchaster

The defs was held liable when their porter pulled out a passenger from a train, mistakenly thought that the passenger was on the wrong train.

Short v J & W Henderson

Four factors to be considered: (1) The power of selection by the employer (2) The power in determining salary (3) The power to control the method in which the work done (4) The power to terminate the employees service

The hospital will be found vicariously liable if the conduct of the medical officer is deemed to be part of the hospitals biz.

Roe v Ministry of Health

A part-time employee is still part of the organization.

(b) Lending a worker (b) Organizational Test/Business Integration Test

(contract of service / for service)

(c) Protection of employers property Poland v Parr & Sons

The defs worker struck a boy, reasonably believed that he was stealing sugar beloged to his employer. Held, the def was liable as the excessive act was done in the course of employment.

Mersey Docks and harbour Board v Coggins and Griffith

It was held that someone remains the employee of the general or permanent employer although another employer borrows his services. (iii) Independent Contractor (principal: an employer is not liable for the tort committed)

Lee Tin Sang v Chung Chi-Keung

If the worker is in business on his own account, then it is more likely that he will not be deemed to be an employee.

(d) Worker delegating his responsibility Ricketts v Thomas Tilling

A bus company was held liable for negligence of its driver in allowing the conductor to drive a bus.

(c) Multiple Test Ready Mixed Concrete v Minister of Pensions and National Insurance
Three factors to be fulfilled: (1) The employee agrees that he will use his own expertise and the employer pays him in monetary form @ remuneration (2) The employee agrees (express/implied) that he will be bound by the employers instructions

Honeywill and Stein v Larkin Bros Ltd

The def engaged Larkin to take photographs of the interior of a cinema. Larkin used a flashlight which involved the ignition of magnesium powder. The camera was placed too close to a curtain on the stage and the entire theatre caught fire. The Court of Appeal held that the taking of photographs in this way was an 'extra-hazardous' activity for which Honeywill could not delegate responsibility to the photographer, and thus remained liable to the owners of the cinema for the damage caused.

(e) Against employer express prohibition Limpus v General Omnibus

A bus driver raced with other bus and collided with pls bus. Held, the drivers company was liable as the driver was doing an authorized act but in an improper manner.

(3) All other conditions in the agreement are consistent with the
nature of job being a contract of service.

Strict Liability Rylands v Fletcher

The defendant owned a mill and constructed a reservoir on their land. The reservoir was placed over a disused mine. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by the claimant causing extensive damage. Held: The defendants were strictly liable for the damage caused by a non- natural use of land.

Elements
(1) Accumulation for own purpose
(The defendant must bring the hazardous material on to his land and keep it there for own use)

(2) Likely to do mischief

(The thing need not be inherently hazardous, it need only be a thing likely to cause damage if it escapes)

(3) Escape
(escaped from a place over which the def has control & authority to a place over which the def has no control & authority)

(4) Non-natural use of land Crowhurst v Amersham Burial Board

The def planted a yew tree on his land. The branches and leaves of the trees extended to the pls land. Yew leaves are poisonous to cow. The pls horse died upon eating the leaves. Held, the def liable as planting a poisonous tree is not a natural use of land.

(5) Foreseeability of damage Cambridge Water v Eastern Counties Leather

The def who was a leather manufacture used a chemical in the process of manufacturing. The chemical had been spilled little by little on the concrete floor of their factor. It had then spread at the rate 8m per day until it reached the area the pl used to pump water for the daily supply of the residents in that area.

Giles v Walker
Seeds from some thistles on the defs land blew into pls land and damaged his crops. The def was not liable as he had not brought the thistles onto his land and there cannot be liability under Rylands v Fletcher for a thing which naturally accumulates on land.

Ang Hock Tai v Tan Sum Lee

The pl rented the shophouse and lived on the first floor. The ground floor was sublet to the def, who was in the biz of repairing & distributing tyres. The def stored petrol for the purposes of his biz. One morning, the building caught fire. The pls wife and children died in the tragedy. Held, the def liable as the petrol was a dangerous thing.

Shiffman v The Grand Priory of St John

A flag pole belonging to the defendant fell and hit the claimant. This was held to amount to an escape for the purposes of Rylands v Fletcher. The defendant was liable to pay damages for the personal injury sustained.

Rainham Chemical Works v Belvedere Fish Guano

The company was liable as the licensee which had accumulated the thing. The occupiers and landowners were also liable for the escape of the thing accumulated by their licensee as the accumulation was a discharge of their contractual duty to another party.

Defences
(1) Consent of the plaintiff (2) Common benefit (3) Act of Stranger

The express or implied consent of the pl to the presence of source of danger, provided there had been no negligence on part of the def.

If the source of danger was maintained for the benefit of both the claimant and def, the def will not be liable for its escape.

The def will not be liable if a stranger was responsible for the escape.

Rickards v Lothian
The def was not liable when an unknown person blocked a basin on his property and caused a flood, which damaged a flat below.

(4) Act of God

An act of God is an event which no human foresight can provide against, and of which human prudence is not bound to recognize the possibility.

(5) Default of Claimant

If the escape is the fault of the claimant there will be no liability. Alternatively, there may be contributory negligent on part of the claimant.

(6) Statutory Authority

A statute may require a person or body to carry out particular activities.

Nichols v Marsland
Exceptionally heavy rain caused artificial lakes, bridges and waterways to be flooded and damage adjoining land. The def was held not liable.

Nuisance
Private Nuisance
Bamford v Turnley
An unlawful, substantial and unreasonable interference with a persons use, comfort, enjoyment and any interest that a person may have over his land. Malone v Laskey The pl occupied a house as a licensee; the defs were the occupiers & owners of the adjoining premises. The defs operated an electricity generator on their premises, from which the vibration damaged various fitting in the claimants house, to the extent eventually that an iron bracket fell from the wall and injured the pl. held, the suit failed because only a person with a proprietary interest in the land can sue, not a mere licensee.

Public Nuisance
An act or omission which inflicts damage, injury or inconvenience on subjects of the State or on members of a class who came within the sphere or neighbourhood of its operation which might affect some members to a greater extent than others.

AG v PYA Quarries Ltd

Public nuisance arises when an act materially affects the reasonable comfort and convenience of life of a class of the society.

Elements
(1) Interference
Either interference with the comfort & convenience, physical damage to the land or encroachment of the land.

(2) Unreasonableness
Interference must be unreasonable before it can be considered as unlawful.

(3) Special Damages (i) The plaintiff must suffers damage more than what is suffered by other person who are exposed to the same interference. (ii) The damage must be a direct consequence of the interference.

Sadleigh-Denfield v OCallaghan Andreae v Selfridge & Co. Ltd

The def had conducted its operations in such a way as by noise and dust to interference suffered by pl constituted as substantial inference. Unreasonableness is what is reasonable in accordance with the common sense and usual needs of mankind in a society/particular area.

Factors (i) Locality (ii) Seriousness of Interference Walter v Selfe

The inconvenience must interfere with the comfort of the human existence. Therefore, the interference must actually consequently resulting in inconvenience of comfort of parties.

(iii) Duration of Interference

The interference is continuous, occurs very often or foreseeable to cause damage

(iv) Hypersensitivity McKinnon Industries v Walker

Fumes from the D's factory damaged delicate orchids. As the fumes would have damaged flowers of ordinary sensitivity there was a nuisance.

(v)

Malice

The location of the pl & defs premises.

Ill will/improper motive in the mind of the def

Syarikat Perniagaan Selangor Sdn Bhd v Fahro Razi, Mohdi & Ors
The built of open stage & staged some shows when at first placed the promise is only to build skating rink, restaurant & cinema. Held, even the urban population is accepting a lot of noise; however, it does not mean that they accept an excessive noise.

Hollywood Silver Fox Farm v Emmett

The pl bred silver foxes for their fur which particularly timid and if disturbed when pregnant they are prone to miscarry. The def was the pls neighbour. He objected to the fox farm and fired a gun on his own land close to the breeding pens with the intention to scare the foxes and impede breeding. The claimant brought an action in nuisance. Held, the def was liable despite the abnormal sensitivity of the foxes as he was motivated by malice.

Matania v National Provincial Park

The pl lives on higher floor of the same building with the occupier. The occupiers independent contractor produced a lot of dust and noise in the performance of their job. The occupier was held liable to the pl as the act of the independent contractor amounted to continuing nuisance.