1920 Present: Bertram C.J. and De Sampayo J.

LIVERA v. PUGH.

356-D. C. Colombo, 52,557.

Defamation-Privilege.

Excessive language used in communications which are privileged does not of itself destroy the privilege.

THE facts are set out in the judgment of the learned District Judge (W. Wadsworth, Esq.):-

This is a claim for damages for defamation arising in the following circumstances :-

The plaintiff is an inspector of sub-agents employed by the National Mutual Life Association of Australasia, Ltd., and the defendant is the manager in Ceylon of the China Mutual Life Insurance Company, Ltd,

In January last defendant was informed that plaintiff had told one Mr. Jansen that defendant's company, the China Mutual, was a " bloody, rotten company," that defendant was not the manager of the China Mutual, and that defendant had no power to issue interim policies.

The defendant thereupon reported the matter to plaintiff's superiors, first by telephone and then by letters. The defamation complained of is said to be contained in these letters, and plaintiff claims the sum of Rs. 5,000 as damages.

The defendant pleaded that the communications to plaintiff's superiors were privileged, and that he did not falsely or maliciously or with intent to injure the plaintiff make the communications.

At the trial the following issues were agreed upon :-

(1) Were the communications made by defendant to the plaintiff's employers in defendant's letters dated January 23 and 26, 1919, privileged ?

(2) Did the defendant write and publish the statements referred to maliciously and with intent to injure the plaintiff ?

(3) What damages, if any, is plaintiff entitled ?

The case is a very simple one. The law is clear on the subject. If a statement defamatory per se is published of the plaintiff on an occasion which is privileged, not in an absolute but in a qualified sense, the defendant may set up a defence of qualified privilege. It is for the defendant to establish that the occasion was so privileged. If he does so, the burden of showing actual malice rests upon the plaintiff.; and if this is shown, communications made even on a privileged occasion can no longer be regarded as privileged communications. If defendant does not satisfy the Court that the occasion was privileged, the plaintiff is not called upon to prove actual malice, as the law implies it from the statement, which is per se defamatory. There is very little difference between the English law and the Roman-Dutch law on the subject.

At the trial I ruled that the burden of proof as to the privileged occasion was on defendant, and directed that he should begin.

An occasion is privileged where the person who makes a communication has an interest or a duty (legal, moral, or social, of perfect or imperfect obligation) to make it to the person to whom he does make it, and the person to whom he does make it has a corresponding interest or duty to receive it. Hunt v. Great N. R. Co.1[(1891) 2 Q. B. 189.]
 
There are several leading cases on the subject in the English law, and in Ceylon the same principle of law applies, and is fully set forth in the Judgment of Shaw J. in the recent case of Gulick v. Green. 2[(1918) 20 N. L. R. 176.] There is no dispute here as to the occasion when the communications were made, I have no difficulty in finding that the occasion was privileged. I accept the defendant's evidence that there is a code of honour that one insurance company or its agents or employees should not speak ill of another company, one of the reasons being that if insurance companies are run down, it will make people nervous regarding insurance generally. I also accept defendant's statement that if an employee, of any other insurance company had spoken ill of his (defendant's) company, it was a duty he owed that other company to report the matter to them. The plaintiff himself stated that if the statements attributed to hi