1939 Present: Soertsz A. C. J.

VAITILINGAM v. VOLKART BROS.

7-C. R. Colombo, 44,357.

Defamation-Master and servant-Servant a member of Mercantile Union- Intercession by President of Union on behalf of servant-Letter from master-Privilege.

The plaintiff, whose services were discontinued by his employers, the defendants, was a member of the Mercantile Union and he prevailed upon the President of the Union to intercede on his behalf with the defendants. The Mercantile Union was a member of the Trade Union Congress between whom and the Employers' Federation there was a pact by virtue of which it was possible for disputes and differences arising between them to be investigated and settled.

The President of the Union, who was also President of the Trade Union Congress, addressed certain requests to the defendants to which they replied in a communication addressed to the Secretary of the Trade Union Congress.

Held, that the communications of the defendant were made on a privileged occasion.

Negligence in making defamatory statements on a privileged occasion is not actionable.

APPEAL from a judgment of the Commissioner of Requests, Colombo. The facts are given in the head-note.

H. W. Thambiah, for plaintiff, appellant. -Defendants? letter is not privileged. When plaintiff was discontinued he appealed to the President of the Union to intercede and get him reinstated. The President addressed a letter to the manager of the defendant Company, personally. The fact he used a letter paper which contains the names of the officials of the All-Ceylon Trade Union Congress does not alter the capacity in which he wrote the letter. He signed his name and in his evidence lie says he expected the replies to be sent to him personally. The Secretary of the All-Ceylon Trade Union Congress never wrote to the defendants. Hence communication of the libellous contents of the letter to the Secretary is not privileged. The Secretary opened the letter. The publication to be privileged must be addressed to the person who has a corresponding right to receive it and not to a third party. Vide Hebditch v. Macilwanie et al 1; Pullman v. Hill 2 The President only asked that an inquiry should be held. This statement is a volunteered and gratuitous statement and therefore not privileged.

Even if the occasion is a privileged one malice has been proved. Malice in law does not mean ill will or hatred. It means an improper motive. A wrongful act done intentionally, without just cause or excuse is malicious. Even where the defendant says that he honestly believed the statement to be true yet such statement will be malicious if the belief is an unreasoning belief. (Vide Tissera v. Holloway 3.)

The state of mind of a person cannot be known and can only be gathered from his conduct and other circumstances-one of the modes of proving malice is to show that the statements were so reckless that the plaintiff could have had no bona fide belief in their truth. Vide Gulick v. Green 4 Sand v. Bell 5; and Royal Aquarium and Summer and Winter Garden Society v. Parkinson 6. The manager did not know anything about the plaintiff. He formed his belief on a petition alleged to have been sent by a woman. The woman is not called and at the inquiries held nothing was proved. Hence the statements were made recklessly and were not bona fide and hence malicious.

E. F. N. Gratiaen (with him O. L. de Kretser, Jnr.), for defendant, respondent. -Plaintiff is a member of the Mercantile Union and as such appealed to Mr. Goonesinha, who is the President. The Mercantile Union is a member of the All-Ceylon Trade Union Congress. The defendant is a member of the Employers' Federation. There is a pact between the Employers' Federation and the All-Ceylon Trade Union Congress to refer all matters affecting employees to arbitration. Mr. Goonesinha wrote as President of the All-Ceylon Trade Union Congress and