1954 Present: Gratiaen J. and Fernando A. J.

DR. P. J. CHISSEL, Appellant, and R. C. CHAPMAN,
Respondent

S. C. 484-D. C. Colombo, 21,987M

Delict-Action for " injurious falsehood "-Dolus or animus injuriandi is necessary ingredient-Negligence-Incidence of liability-Duty of care.

If A, in discharge of a contractual obligation which he owes to B, makes to B a negligent but honest and non-defamatory statement in relation to a third party C, A is not liable to C for pecuniary loss sustained by him in consequence of the statement.

Cable and Wireless Ltd. employed the defendant, who was a medical practitioner, to examine the plaintiff and report whether the plaintiff, who had been accepted for service as a telegraphist-apprentice, was physically fit for permanent employment as a telegraphist. Defendant examined the plaintiff, but reported that he was unable to recommend him for service with the Company. As a direct consequence of this report, the plaintiff's engagement as an apprentice was abruptly but lawfully terminated by the Company. Plaintiff then instituted the present action claiming damages from the defendant. He alleged that he was perfectly fit for employment as telegraphist in Cable and Wireless Ltd., and that the defendant's unfavourable report was " due to gross negligence and/or incompetence ". He made no allegation that the defendant had acted maliciously or dishonestly in the matter.

Held, that the action was not maintainable, even if the defendant's medical opinion concerning the plaintiff's suitability to undertake the duties of a telegraphist had been negligently arrived at.

Held further, that in regard to the question of negligence the law did not impose any duty of care on the defendant towards the plaintiff, other than the duty not to cause him physical injury.

Conflicting medical evidence discussed.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q.C., with S. J. Kadirgamar and B. S. C. Ratwatte, for the defendant appellant.

E. G. Wikramanayake, Q.C., with H. W. Jayewardene and P. Ranasinghe, for the plaintiff respondent.

Cur. adv. vult.

June 25, 1954. GRATIAEN J.-

The defendant is a qualified doctor, possessing the degrees of F.R.C.S. (Edinburgh), M.R.C.S. (England) and L.R.C.P. (England). He has practised his profession continuously in Ceylon since 1910 except during a period when he served overseas in World War I.

On 22nd April, 1949, the plaintiff, then 18 years of age, was accepted for service as a telegraphist apprentice in the Colombo branch of Cable & Wireless, Ltd., subject to the terms of a written agreement which provided inter alia that his physical fitness must be certified by the Company's own medical officer, whose decision was to be accepted as final. Two senior executive officers gave evidence at the trial for the plaintiff. One of them explained that this certificate was an essential condition of membership of the Company's Pension Fund; the other pointed out that, in addition, the exacting nature of a telegraphist's duties called for a high degree of physical and mental efficiency. The defendant had been the Company's medical officer for over 30 years, and was specially conversant with the standard of physical fitness required.

On 14th July, 1949, the plaintiff presented himself at the defendant's consulting room for his medical examination, which the defendant duly carried out in fulfilment of his own contractual obligation to the Company. It will be necessary to discuss at a later stage the precise nature of the legal duties which the situation imposed on him towards the examinee himself.

After a detailed clinical examination, the defendant sent a confidential report P5 to the Company to the effect that, although the plaintiff satisfied the requisite standard of health in other respects, his employment was not recommended because :

" There is a very forcible impulse over the cardiac a