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 wifebeater 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 Privilege
Section 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 Privilege
Section 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 Amends
Section 15 Defamation Act 2005:
(1)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
An offer to make amends:
must be in writing, and
must be readily identifiable as an offer to make amends under this Division, and
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
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
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
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
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.
SERVANTS AND
INDEPENDENT CONTRACTORS
• 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
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