Torts Lecture 9 Defamation Vicarious Liability. What is defamatory? “ A defamatory statement may be defined as one which tends to lower a person in the.

Torts Lecture 9

Defamation

Vicarious Liability

What is defamatory?

• “A defamatory statement may be defined as one which tends to lower a person in the estimation of his fellow men by making them think the less of him. Frequently, it takes the form of an imputation calculated to bring the plaintiff ‘into hatred, contempt or ridicule’ (Parke’s B definition in Parmiter

v Coupland (1840) 6 M&W 105, 108), whether by direct statement, irony, caricature or any other means; but it is not necessary that the words have the tendency to excite feelings of disapprobation, provided they cause him to be shunned and avoided by his fellows.” J.G. Fleming

Slander and Libel

• Slander – A defamatory statement in oral or transient form actionable upon proof of damage.

• Libel – A defamatory statement in written form or other permanent form actionable per se.

• In NSW, Section 7 Defamation Act 2005 has removed the distinction between slander and libel.

Procedure

• Defamation actions are heard by a judge and jury.

• Judge – tribunal of law determines the meaning and linguistics.

• Jury – tribunal of fact determines whether the matter is defamatory

Who May Be Defamed?• Living persons – the dead cannot be defamed

no matter how distressing to the relatives and friends [see Section 10 Defamation Act 2005].

• “Excluded” Corporations – if the objects for which the corporation is formed do not include obtaining financial gain for its members or corporators, or the corporation employs fewer than 10 persons and is not related to another corporation [see Section 9 Defamation Act 2005].

• Local Government Body, Professional Association and Trade Union

Choice of Law

• Section 11 Defamation Act 2005:(1)If a matter is published wholly within a particular

Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication.

(2)If there is a multiple publication of matter in more than one Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.

Elements of Defamation

• Elements

– Matter must be capable of bearing a defamatory meaning (tarnish reputation).

– Matter must be published.

– Matter must relate to the plaintiff (cannot sue for someone else).

– Absence of lawful justification (or Defences).

Elements – Defamatory Meaning

• A question of interpretation, depending on the circumstances, the mode and the context of publication:

Charleston v News Group Limited (1995) 2A 11 ER. - Plaintiffs complained about photos of their heads and shoulders displayed above semi-naked models, the whole portraying sexual activity. No liability as the accompanying article made it clear the matter was lifted from another publication and criticised it as a form of pornography

Elements – Defamatory Meaning• False Innuendo

Lewis v Daily Telegraph Ltd [1964] AC 234 – Articles published in the Daily Telegraph and Daily Mail with headlines ‘Enquiry on Firm by City Police’ and ‘Fraud Squad Probe Firm’ which stated the police were inquiring into affairs of a company of which the plaintiff was chairman. Plaintiff alleged the words meant he was guilty of dishonesty or fraud. Held on appeal the words in question were not capable of inferring guilt of fraud in their ordinary meaning

Random House Pty Ltd v Abbott (1999) ATR 81-533 –

Defendants had published a statement indicating that two politicians had changed party immediately after having sex with an unnamed female, who later married one of the Ministers. The innuendo that each politician was prepared to abandon his political principles in exchange for sexual favours was readily drawn.

Elements – Publication

• Matter must have been communicated (or “published”) to a person other than the plaintiff or there is no injury to reputation.

• Publication need not be to a large audience. “Utterance” to a single individual is enough, provided he/she is other than the plaintiff himself/herself.

• Old common law rule that communication between spouses cannot constitute publication remains the law.

• Multiple distribution and republication – Section 8 Defamation Act 2005: A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.

Elements – Relate to the Plaintiff

• A defamatory statement is not actionable unless published of and concerning the plaintiff. The plaintiff need not be specifically mentioned.

• Test – Would a sensible reader reasonably identify the plaintiff as the person defamed?

• Group defamation – the plaintiff may prove himself or herself specifically identified, either the group is so small that the accusation can reasonably be understood to refer to each and every one of its members, or because the circumstances of publication permit the conclusion that it was he/she who was aimed at amongst the group

Elements – Absence of Lawful Justification (or Defences)

1. Triviality or Unlikelihood of Harm (Section 33 Defamation Act 2005).

2. Contextual Truth (Section 26).

3. Absolute privilege (Section 27).

4. Qualified privilege (Section 30).

5. Public documents (Section 28).

6. Proceedings of public concern (Section 29).

7. Honest opinion (Section 31).

Triviality (or Unlikelihood of Harm)

• Test - Would a reasonable person impute a defamatory meaning?

Section 33 Defamation Act 2005: It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm.

Contextual Truth

• Section 26 Defamation Act 2005

It is a defence to the publication of defamatory matter if the defendant proves that:

(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ( "contextual imputations") that are substantially true, and

(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Truth – Substantial Truth• The defendant need only prove the substantial truth of the

statement

Alexander v NE Rys (1865) 122 ER 1221 – statement that the plaintiff had been sentenced to a fine or three weeks imprisonment was justified by showing that he had been given the alternative of two weeks’ imprisonment.

• Plaintiff may succeed where the defendant is unable to justify all of the statement

Becker v Smith’s Newspapers [1929] SASR 469 – defendant published the plaintiff was a blackmailer, liar, swindling share pusher and illegal immigrant. Plaintiff succeeded as the defendant was unable to justify the last allegation.

Truth – Public Interest

• JG Fleming proposes two broad divisions of matters:

1. Government (national and local, including behaviour of members of those governments), and the conduct of public institutions and services; and

2. Matters submitted to the public for its attention, whether for its edification, instruction, instruction or persuasion.

Mutch v Sleeman (1928) 29 SR(NSW) 125 – statement that a member of parliament was a wife-beater in relation to an incident that occurred four years previously was found to have no relevance to the public interest and was therefore defamatory.

Absolute PrivilegeSection 27 Defamation Act 2005:(a) matter published in the course of the

proceedings of a parliamentary body (b) matter published in the course of the

proceedings of an Australian court or Australian tribunal

(c) matter published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction, or

(d) matter published by a person or body in any circumstances specified in Schedule 1.

Qualified Privilege• The publication of defamatory statements is in some

instances protected by qualified privilege, in recognition of certain necessities of social intercourse.

• Section 30 (1) – Defamation Act 2005:There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that:

(a)the recipient has an interest or apparent interest in having information on some subject, and

(b)the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.

Qualified PrivilegeSection 30 (3) Defamation Act 2005

In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:

(a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the

public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter

published, and (d) the extent to which the matter published distinguishes between suspicions,

allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter

published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates,

and (g) the sources of the information in the matter published and the integrity of

those sources, and (h) whether the matter published contained the substance of the person’s side

of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant.

Qualified Privilege

• Principle categories of Qualified Privilege:– Freedom of political communication

Theophanos v Herald Weekly (1994) 182 CLR 104

– Defamation law and the Constitution

Lange v ABC (1997) 71 ALJR 818.

Protected Reports

• Section 28(1) of the Defamation Act 2005 It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in:

(a) a public document or a fair copy of a public document, or

(b) a fair summary of, or a fair extract from, a public

document

Public Document• Section 28 (4) Defamation Act 2005"public document" means: (a) any report or paper published by a parliamentary body, or a record of

votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or

(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings or

(c) any report or other document that under the law of any country: (i) is authorised to be published, or (ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or

(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or

(e) any record or other document open to inspection by the public that is kept: (i) by an Australian jurisdiction, or (ii) by a statutory authority of an Australian jurisdiction, or (iii) by an Australian court, or (iv) under legislation of an Australian jurisdiction, or

(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or

(g) any document of a kind specified in Schedule 2.

Honest Opinion• The defence of comment protects honest expressions of opinion on matters

of public interest. The rationale is that the truth of opinions cannot be objectively tested.

• Like the defence of Truth, Honest Opinion must relate to a matter of public interest:

Section 31 Defamation Act 2005:

• The defences under this Division are not available to any comment unless the comment relates to a matter of public interest and (c) the opinion is based on proper material.

• "proper material" if it is based on material that: (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this

Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this

section or section 28 or 29.

Gardner v Fairfax Newspapers (1942) SR(NSW) 171 at 174 per Jordan CJ “A critic is entitled to dip his pen in gall for the purpose of legitimate criticism, and no one need be mealy-mouthed in denouncing what he regards as twaddle, daub or discord” .

Honest Opinion

• Opinion or fact:

Kemsley v Foot [1952] AC 345 – Foot published an article headed “Lower than Kemsley” criticising the conduct of a newspaper, Beaverbrook Press, unrelated to newspapers owned by the plaintiff, Kemsley. The House of Lords held that a sufficient factual basis exised for the headline to be comment as Kemsley was a proprietor of a number of newspapers, whose standards of journalism were being unfavourably commented on by Foot. Kemsley’s ownership of newspapers and their content was public knowledge.

Remedies – Offer of AmendsSection 15 Defamation Act 2005: (1) An offer to make amends: (a) must be in writing, and (b) must be readily identifiable as an offer to make amends under this Division, and (c) if the offer is limited to any particular defamatory imputations—must state that the

offer is so limited and particularise the imputations to which the offer is limited, and (d) must include an offer to publish, or join in publishing, a reasonable correction of

the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and

(e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and

(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and

(g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to): (i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or (ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or (iii) the particulars of any correction or apology made, or action taken, before the date of the offer.

Remedies - Injunction

Courts are generally unwilling to grant an injunction at an interlocutory level as it may infringe freedom of speech and amount to a usurpation by the judge of the function of the jury.

However, in cases where the defendant’s case is hopeless, the courts will issue an injunction

Chappell v TCN Channel 9 (1988) 14 NSWLR 153

Remedies - Damages• Exemplary damages are not available in NSW – Section 37.• Damages for non-economic loss limited – Section 35• (1) Unless the court orders otherwise under subsection (2), the

maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the "maximum damages amount") that is applicable at the time damages are awarded.

• (2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.

VICARIOUS RELATIONS AND AGENCY

• An agent acts for the principal; but the liability of the principal for the act of the agent is not based on vicarious liability

• The liability of the principal is based on the maxim: qui facit per alium, facit per se

• The agent acts in a representative capacity and has the authority to act for the principal but is not necessarily a servant

VICARIOUS LIABILITY

• Vicarious liability makes D (usually the master/employer) liable for the torts of another (usually his or her servant/employee) although the master is without any blame or fault.

• Vicarious liability arises only in respect of the torts of the servant

• The master/employer is therefore responsible only for the torts of the servant and not the independent contractor: Hollis –v- Vabu

• For the master/employer to be held liable, the tortfeasor must:

– be a servant– commit the tort in the course of his or her

employment

SERVANTS AND INDEPENDENT CONTRACTORS

Non-delegable duties and vicarious liability

Vicarious liability arises in circumstances “when the law holds one person responsible for the misconduct of another, although he is himself free from blameworthiness or fault” (Fleming J, Law of Torts (9th edition) at 409)

Non-delegable duty arises in circumstances where a person cannot be excused from liability even if reasonable care is exercised in entrusting responsibility to another person

Civil Liability Act: Non-delegable duties and vicarious

liability

5Q Liability based on non-delegable duty (1) The extent of liability in tort of a person ("the

defendant") for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

(2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A.

Non-delegable duties and Vicarious duties

• New South Wales v Lepore ; Samin v Queensland; Rich v Queensland [2003] HCA 4 (6 February 2003)

- Liability of school authority - Alleged sexual assault on pupil by teacher - Whether school authority in breach of non-delegable duty of care - Concept of non-delegable duty - Whether school authority vicariously liable

- Test for imposition of vicarious liability.

WHO IS A SERVANT?

• A servant is one who is under a contract of service to another an independent contractor is under a contract for services

• The contractor is paid for the job by results rather than for time spent, receives a fee or commission, the servant receives wages

• The contractor is usually employed on a casual basis, the servant on a permanent basis

• The contractor usually specifies his/her work schedule and supplies his/her own tools

• The master may select the servant for the task

WHO IS A SERVANT?: THE CONTROL TEST

• If the Master controls what the employee does and how it is done, then the employee is a servant. The relationship will give rise to Vicarious Liability.

• Zuijs v Wirth Bros: The case of the trapeze artist• What is essential is whether there is lawful authority

to command or give directives if there is scope for it.• Stevens v Brodribb Sawmilling

‘IN THE COURSE OF EMPLOYMENT’

• D is liable only if the servant committed the tort in the course of his or her employment– Deaton v Flew– Morris v Martin