[1979] KILR 27

HIGH COURT OF THE GILBERT ISLANDS

Civil Appeal No 2 of 1979

KARERE IRATA
and
NEI TEMANENE IRATA

v

NEI EMI BOBU

(O'BRIEN QUINN C.J.)

Betio: 15th February 1979

Civil Appeal - Defamation - slander - alleged bias of Magistrates - imputation of a contagious disease - vulgar abuse - no damages suffered - appeal dismissed

The appellants lost their case for defamation in the Magistrates' Court and appealed to the High Court. The defamation alleged was that the respondent in the appeal had told the appellants to eat human dung with their children and that she had said that the second appellant had tuberculosis. It was also argued that the Magistrates were biased.

HELD: (1) That there was no evidence of bias on the part of the Magistrates;

(2) That the words used were mere vulgar abuse and not defamatory;

(3) That to include tuberculosis among the contagious diseases the imputation of which may be actionable without proof of special damage would be going outside the scope of the law;

(4) That the appellants did not suffer any damage whatever by the words used.

Authorities referred to:-

Gatley on Libel and Slander, 7th Edition, paragraph 166
Street, Law of Torts, 5th Edition, pages 283-284
Restatement of Law, Second, Torts, Tentative Draft No 11, pages 107-110
Rade v Press Publishing (1902) 75 New York Supp. 298
Kirby v Smith (1929) 224 N.W. Rep 230
Jones v Jones (1916) 1 K.B. 351, 358
Nei Ruita Uare v Nei Mangarita Tanentoa 1978 G.I.L.R. 89

All parties in person.

O'BRIEN QUINN C.J.:-

This is an appeal against the decision of the Magistrates' Court for the Betio Magisterial District given on 5th January 1979 in which the Court dismissed the claim of the Appellants, then the Plaintiffs, against the Respondent, then the Defendant, for the sum of $3000 by way of damages and compensation for abusive words used and defamatory remarks made by the Respondent in respect of them.

2. The Appellants claimed as follows:-

"We are complaining about the defendant Nei Emi Bobu when she told us to eat her human dung with our children and that she would smash our heads. She also said that I, Temanene, had Tuberculosis. She came to our house and said these nasty words to us. We were damaged and degraded and we therefore wanted to claim from the defendant $3000.00 as compensation. We beg the Court to consider our claim with justice. Thank you."

3. It would seem from the evidence given in the Magistrates' Court that there was trouble between the Appellants and the Respondent who lived very close to one another and that the Police were sent for by the Respondent when she claimed that the 1st Appellant threw stones on her roof. When the Police arrived an argument of some sort arose between the parties and the insulting and defamatory words were alleged to have been said at that time. However, peace was restored and two Special Constables were left on duty to maintain law and order. Later, the 1st Appellant was seen by one of the Special Constables to throw stones on the Respondent's roof. The 1st Appellant was arrested and was sentenced later for an offence arising out of the incident. While both Appellants stated on oath that the Respondent used the words alleged the Respondent denied using them and the one Special Constable who was called as a witness did not hear any insulting words used. The Respondent, in her evidence, testified that an exchange of words and insults did take place but that the words alleged were not said.

4. The Magistrates' Court, in dismissing the claim, said "The Court found that these insulting words were merely make-up and the cross fire arose from the Plaintiff Karere when he threw stones on Emi's roof."

5. In their appeal, the Appellants argued that the Magistrates were biased and related to the Respondent, that the Appellants were not given the right to cross-examine the Respondent and her witnesses, that the Special Constable who gave evidence for the defence worked closely with the Respondent's husband and that the reason for the Respondent's use of the abusive insulting and defamatory words was that she was annoyed because the Appellants had reported to the Police that the Respondent's little daughter was displaying her anus contemptuously while the Appellants were eating in their house.

6. The first Appellant addressed me at length on his appeal and in support of his allegation that the Presiding Magistrate was biased in favour of the Respondent said that the deceased wife of the Presiding Magistrate had come originally from Onotoa as had the Respondent and that when the Respondent's father died the Presiding Magistrate's children attended the funeral. He also said that one of the Magistrates was the Respondent's grandfather. He said nothing about the third Magistrate, but said that when he started to cross-examine the Respondent and her witness the Presiding Magistrate ruled that he was making statements and not asking questions and would not let him continue unless he asked questions. He did not elaborate on the question of the Special Constable but maintained that the Magistrates, throughout the case, leaned in favour of the Respondent.

7. In the course of the first Appellant's argument I asked him if he could substantiate his claim for $3000 damages but he could not do so. All he could say was that he and his wife had been insulted and degraded and felt very badly about the insults given by the Respondent. He was unable to prove any actual damages.

8. The Respondent, in reply, denied ever having said the words alleged and said that she believed that the Appellant brought the action only because they wanted money and had made up their own story.

9. This was an action for spoken defamation which is known in law as slander. I outlined the principles upon which a Court must act in the case for a claim for damages for slander, in High Court Civil Appeal No 5 of 1978 Nei Ruita Uare and Nei Mangarita Tanentoa. In a slander action special damages must be proved unless the words used are false and (a) are to the effect that the person slandered has committed a criminal offence, (b) are to the effect that the person slandered is suffering from a contagious disease, like leprosy or venereal disease, (c) are to the effect that the person slandered, if that person is a woman, is of immoral sexual character and (d) are to the effect that the person slandered is unfit for his or her job or profession.

10. The only one of the exceptions that could possibly apply in this case would be that, by saying that the second appellant suffered from tuberculosis, it could be argued that it was an imputation that the second Appellant suffered from a contagious disease. However, Gatley on Libel and Slander, Seventh Edition, at paragraph 166 examines the question of the imputation of a contagious disease and points out that in Street, Law of Torts 5th Edition pp. 283-284 it is stated that venereal disease and leprosy are the only clear examples and that the Restatement of Law, Second, Torts, Tentative Draft No 11, pp. 107-110 limits the rule to leprosy and venereal disease. Nevertheless the imputation of consumption (or tuberculosis) was raised in Rade v Press Publishing (1902) 75 New York Supp. 298 and in Kirby v Smith (1929) 224 N.W. Rep. 230, but the decisions conflict and are, in any event, not binding on me in this Court. Further, Swinfen Eady L J said in Jones v Jones (1916) 1 KB 351, 358 "The law of slander is an artificial law, resting upon very artificial distinctions and refinements, and all that the court can do is to apply the law to those cases in which heretofore it has been held applicable", and I am of the opinion that, by including tuberculosis among the contagious diseases the imputation of which may be actionable without proof of special damage I would be going outside the legal limits.

11. The first thing to decide is: were the words actually said by the Respondent? The second thing is: if they were said were they defamatory? The third is: was special damage proved?

12. The Magistrates' Court found that the words were never spoken but can I rely on the findings of that Court? While I find, on the Respondent's own admission that one of the Magistrates was her grandfather, I find that neither the Presiding Magistrate nor the remaining Magistrate was related to her or connected with her in any significant way. Thus, there may have been some bias in her favour but the unbiased Magistrates outnumbered the one who may have been biased. However, on the Record, I cannot find any evidence of bias and, where the allegation regarding cross-examination is concerned, I do not consider that there is any real substance in it.

13. Nevertheless, assuming that there was bias and that the Respondent spoke the words alleged, were these words defamatory? I have outlined the law above in paragraphs 9 and 10 and I find that the words were mere vulgar abuse and not defamatory. But, even if they were defamatory, have the Appellants shown that they suffered special damage thereby? Here I find, without a shadow of doubt, that the Appellants did not suffer any damage whatever by the use of the words.

14. Thus, on all aspects of the case, I cannot but agree with the findings of the Magistrates' Court in dismissing the action and I also dismiss the appeal.

15. The appeal is dismissed and the decision of the Magistrates' Court is confirmed.