Sharma v Westpac Banking Corporation [1995] FJHC 137; Hbc0155d.95s (25 August 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0155 OF 1995

Between:

RAMENDRA PRASAD SHARMA
s/o Ram Prasad
Plaintiff

- and -

WESTPAC BANKING CORPORATION
Defendant

Mr. E. Veretaratini for the Plaintiff
Mr. R. Naidu for the Defendant (Applicant)

RULING

On the 21st March 1995 the plaintiff issued a Writ of Summons claiming "Damages for Slander'. The claim arose out of an incident that occurred in the Nabua Branch of the defendant bank when the plaintiff took exception to being served after a customer who had 'jumped the queue' to use a colloquialism. In particular, the Statement of Claim pleads the 'slander' as follows:

"10. THE Plaintiff was narrating the incident to the said servant and/or agent of the Defendant whereupon another servant and/or agent came and advised the Plaintiff to shut up his mouth."

It will be seen at once that the pleading is in reported speech. No actual words are used or indicated nor are they elucidated by the giving of 'particulars'. Order 18 r.6(2) of the High Court Rules 1988 provides:

"... the purport of any conversation referred to in (a) pleading must, if material, be briefly stated, and the precise words of the ... conversation shall not be stated, except in so far as those words are themselves material."

(my underlining)

In this latter regard Lord Coleridge C.J. observed in Harris v. Warre [1879] UKLawRpCP 5; (1879) 4 C.P.D. 125 at 128:

"In libel and slander everything may turn on the form of words, and in olden days plaintiffs constantly failed from small and even unimportant variance between the words of the libel or slander set out in the declaration and the proof of them ... In libel and slander the very words complained of are the facts on which the action is grounded.

It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends."

(applied in: Collins v. Jones (1955) 1 Q.B. 564.)

In similar vein and referring to 'libels', Lord Blackburn said in Capital and Counties Bank Ltd. v. Henty (1882) 7 A.C. 741 at p.771:

"... from the earliest times it has ... been the province of the Court to say whether words published in writing were a libel or not; and in order that a Court ... might have before it the materials ... the plaintiff was, by the old rules of pleading, required to place all those materials upon which he relied, upon the record. The words themselves must have been set out in the declaration or indictment in order that the Court might be able to judge whether they were a libel or not. And this still remains the law."

Finally and more recently the N.Z. Court of Appeal in striking out the amended statement of claim in Kerr v. Haydon (1981) 1 N.Z.L.R. 449 affirmed this 'rule of pleading' which is summarised in the headnote as follows:

"In an action for defamation the plaintiff must plead the actual words relied on as the alleged libel, and not merely their effect or substance. As the amended Statement of Claim in this case did not set out the actual words allegedly used by the defendant, it was struck out."

In view of the foregoing it cannot be said that the plaintiff's Statement of Claim complies with the relevant 'rule of pleading', more so, where there are a number of common expressions (with varying degrees of hostility and crudity) which might be used to convey the several meanings averred by the plaintiff in the Statement of Claim (para.11).

This particular aspect however was not pursued by counsel for the defendant bank in arguing the summons to strike out the plaintiff's Statement of Claim on the dual grounds that it 'disclosed no reasonable cause of action' and is "frivolous and/or vexatious".

Rather, counsel's principal submission was based upon another equally ancient albeit not entirely logical 'rule of law' which was succinctly enunciated by Bowen L.J. in Chamberlain v. Boyd [1883] UKLawRpKQB 44; (1883) 11 Q.B.D. 407 when he said at p.415:

"In law, words spoken are different from words written, and special damage is necessary to support an action for slander not imputing crime, misconduct in a profession or a trade, or some kinds of disease;"

As to the nature of the 'special damage' which the law would recognise as sufficient to support an action for slander 'not actionable per se' Lord Wensleydale said in Lynch v. Knight (1861) 9 H.L.C. 590 at p.600:

"... to make words actionable, by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking the words, not what would reasonably follow, or we might think ought to follow."

In this regard the various adverse consequences that are alleged to have been suffered by the plaintiff "as a result (of the word(s) uttered)" (paras: 12 to 15) are, in my considered view, neither 'direct' or 'natural' or even 'reasonably probable' having regard to the 'infirmities of human nature' and 'the relationship of the parties' which was in this instance, a bank employee and a bank customer.

Furthermore, even if such consequences as being 'gossiped about'; being 'looked at alarmingly with reservation'; being 'looked upon with malice'; and being 'excluded from society' could be reasonably and fairly anticipated, there is little doubt in my mind that any damage arising therefrom would be '... unsubstantial and shadowy and in truth incapable of being estimated in money (terms) ...' to adopt the description of Lord Coleridge C.J. in Chamberlain v. Boyd (op. cit at p.412).

Undoubtedly the plaintiff felt personally embarrassed and aggrieved at the utterance(s) and the defendant bank's lack of apology therefor, but such 'feelings' are incapable in my view, of supporting an action for slander not actionable per se.

In Jones v. Jones [1916] UKHL 2; (1916) 2 A.C. 481 which might be considered a much 'stronger case' than the present, the decision of the House of Lords in rejecting the plaintiff's claim is summarised in the headnote of case as follows:

"An action for slander will not lie for words imputing adultery to a schoolmaster, in the absence of proof of special damage, unless the words are spoken of him touching or in the way of his calling."

Lord Parmoor whilst recognising in his judgment, the inevitable injury to a teacher's office that an imputation of immorality was likely to cause, was nevertheless constrained to say at p.509:

"I am forced, however, to an opposite conclusion. The matter is not open. As the law of slander stands, words imputing moral misconduct to a plaintiff who holds an office such that the imputation cannot fail to be injurious to him are not actionable without proof of special damage unless they relate to his conduct in the office or import an imputation connected with his official duties."

(My underlining)

In this regard too, Lord Herschell in Alexander v. Jenkins [1891] UKLawRpKQB 178; (1892) 1 Q.B. 797 summarised the law relating to words imputing unfitness or misconduct in a calling or profession, when he said at p.800:

"It must be either something said of him in his office or business which may damage him in that office or business or it must relate to some quality which would show that he is a man who, by reason of his want of ability or honesty, is unfit to hold the office."

In the particular circumstances of this case it is difficult to conceive how telling the plaintiff to 'shut-up' in a bank could in any way, shape or form, relate to or cast an aspersion upon his office or employment or his suitability for such office. If anything, such an utterance if I may say so, is more likely to be in reaction to and a reflection on the manner and volume of the plaintiff's protestations.

Finally reference may be made to the provisions of Sections 10 and 11 of the Defamation Act (Cap. 34) which makes it unnecessary to allege or prove special damage in respect of - (1) 'words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication'; and (2) in an action for slander of title, slander of goods or other malicious falsehood for 'words calculated to cause pecuniary damage to the plaintiff.'

In this case no reference has been made to the above provisions nor was counsel for the plaintiff able properly to support his bare assertion that the words used by the defendant bank's servant (whatever they might have been) come within any recognised category of words that are 'actionable per se.' Nor has it been suggested that the plaintiff has suffered any pecuniary damage or had his employment terminated.

In all the circumstances and bearing in mind "... that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases" (per Lord Pearson in Drummond-Jackson v. B.M.A. (1970) 1 W.L.R. 688 at 695), nevertheless, for the foregoing reasons I am satisfied that the plaintiff's Statement of Claim as pleaded, discloses no arguable 'cause of action' which has any reasonable chance of success and accordingly ought to be summarily dismissed.

The application is granted and the plaintiff's Statement of Claim is dismissed with costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
25th August, 1995.

HBC0155D.95S