INTRODUCTION
In this last unit on law of torts, we shall briefly learn about few more specific torts like defamation, conversion and detinne and nuisance and conclude with vicarious liability. Defamation is a statement which is calculated to injure the reputation of another, by exposing him/her to hatred, contempt or ridicule. Action for conversion and detinne arise when one title to chattel is challenged on where the chattel is detained respectively. The term “nuisance” is elastic. It is a state of affairs that interferes with ones use of enjoyment of property. Lastly we will touch the issue of vicarious liability: let the superior make answer”; He who does a thing through another does it himself: that is to say: ‘look to the man higher up’.
Defamation
This is an important but very complex area of the law. To cover some of the main principles the following extracts have been chosen from Gillies (1993, pp 96-8):
The tort of defamation is concerned with publications (the concept includes spoken words, written words, cartoons and the like) which tend to injure the plaintiff’s reputation. The word ‘publication’ is a standard one in this part of the law, but it is not synonymous with publication through the media – a relevant publication takes place with the communication of the complained of statement to one or more persons (though publication to the plaintiff alone is not a relevant publication).
(In other words, if you write a letter to someone in which you defame him/her then there is no tort committed – assuming the letter does not fall into the hands of any other persons).
Defamation law is largely a product of the common law, it is also to be found in the Criminal Code and Penal Code.
As with other areas of tort law, policy plays an important role. The law attempts to strike a balance between protecting a person’s character and reputation from attack and allowing free speech. However, most commentators agree the scales are tipped against free speech.
Elements
A defamatory statement is broadly defined by the law – it is one which tends to lower a person in the estimation of others. In a classic phrase, it is frequently an imputation which tends to bring the plaintiff into ‘hatred, contempt or ridicule’, although it need not be this extreme. Defamations can be direct or implied – indeed, provided that the reasonable recipient of such a statement can infer that it is directed at the plaintiff, it is unnecessary that the latter actually be named in it.The law distinguishes slanders - essentially spoken defamations, and libels – essentially written ones. The division is not clear cut, however – by virtue of decisional and statute law, certain defamations not in writing are classed at libels. For example, defamatory radio and television broadcasts are libels as are defamatory motion films. At law, actual damage must be shown, whereas libel does not require this – an inferred injury to reputation, albeit an intangible one, is presumed.For practical purposes the distinction between libel and slander have either been abolished or are now irrelevant.
The definition of defamation is broad, and the reports reveal that quite mild strictures have been litigated. Accordingly, the defences bear the brunt of limiting liability for defamation.
Defences
The basic defence is that of justification or truth. The defendant must prove that the statement was true. This is an absolute defence. In certain jurisdictions, this is not enough. The statement also must be in the public benefit, as well be on a matter of public interest (or be published under qualified privilege).a)Qualified Privilege
This is a broad and potential important defence. At common law, it is a defence where the statement was made by a person having the interest or duty, legal, social or moral, to make it to the recipient, and the latter has a like duty or interest in receiving it. An example would be a conversation between the managers in a company, relating to a personnel matter. The duty or interest must be reciprocal – a limitation. It is arguable that the privilege is not lost because the information is false, provided the defendant acts in the reasonable belief that the information is true. (Malice will defeat the privilege).For some years it has been supposed that a media company and its audience did not have such a common interest to attract the privilege, on the basis that the recipient’s interest had to be a fairly immediate one, such as might be apparent if the communication was relevant to the making of a decision by him or her. However, the times may be changing – it was accepted that such a community of interest could exist between media and audience.
b)Fair Comment
This defence is directed to expressions of opinion only. Having said that, it is often too difficult to tell where fact ends and opinion begins. For the defence to apply, the comment must be ‘fair’ (meaning honest, rather than reasonable); it must have been based on facts which are true; and it must be on a matter of public interest, such as matters of government, or a work of art or an artistic performance made available to the public, Malice (the concept is vague, but it includes spite) will defeat the defence.c)Absolute Privilege
Another important defence is absolute privilege which covers statements made in parliament or the courts. Also the publishing reports or statement that are themselves subject to qualified privilege can attract a similar defence.d)Constitution or Theophanous Defence
The most recent defence developed by the courts is known as the constitutional or Theophanous defence. It is based on the implied freedom of potential discussion assumed to be present in the Constitution. It restricts the ability of politicians and other public figures to sue for defamation but there are a number of limitations to the defence.Finally, it should be noted that damages are not only available against the maker of the statement but also the publisher. In some cases the publisher may have a defence if the statement is published in good faith for public information.
Conversion and Detinne
Detinne is the detention of the goods having received a demand for their return. Contrast conversion where the goods may not have been retained (e.g. they could have been sold or destroyed in which case a demand for their return is not relevant.Nuisance; Here the most important type of nuisance; for our purposes is private nuisance. The basic elements of this action are:(a) Substantial and unreasonable interference with (b) The enjoyment or use of land by (c) A person who has a right to occupation or possession of land. So private nuisance cases usually involve neighbourhood disputes.
Let Us Take Those Elements in Turn:
- Substantial and unreasonable interference is most easily proven by material damage such as killing crops by pesticide spray, breaking windows with golf balls or dust damage to stock. Regard is had for what a plaintiff should be reasonably expected to bear in the circumstances. The examples given above are quite clear cut but if for instance the activity is noise then it is more difficult to judge. It would be difficult for a neighbour to sue in nuisance over one loud party. There would need to be sustained noise over a much longer period
- Interference to the use of land is clearly established when pesticide from next door kills the plaintiff’s crops. However, actionable nuisance can occur where the enjoyment of land is interfered with. Noise will do this but other less tangible events such as the opening of a sex shop in a residential area as occurred in one case in England.
- Clearly the owner of land can complain of a nuisance but also a tenant. In cases involving inner city nuisance it will more often be the tenant who is affected – especially if the building is owned by a large anonymous company.
Vicarious Liability
The idea that persons can be liable for the acts of others has earlier been mentioned. An important practical application of this notion is vicarious liability. The key point here is that liability is attached to one person even though he/she is not the actual wrongdoer. It arises because of the relationship between the wrongdoer (the actual participant in the tort) and the other person (the one vicariously liable). The classic and most important relationship where vicarious liability is imposed is that of employer/employee. Here the employer will be liable for the wrongful (tortuous) acts the employee committed in the course of his/her employment.Gillies (1993, p 100) sets out some reasons for imposing vicarious liability:The justifications for vicarious liability vary. A broad one is that the culpability of the secondary party will often be equal, or indeed, greater in the case of the person made vicariously liable. The secondary party may be getting the benefit of the vicar’s act, or at least, the general conduct of the vicar in the course of which the tortuous act is committed. The secondary party may have the greater ability to pay damages (obviously the case in the circumstance of an employer of substance). It may be unreasonable to allow the secondary party to shield him or herself from liability (again often the case in the circumstance of the employer). The fact situation may be such that the actual perpetrator of the tort may be impossible to identify, although the person vicariously liable can be identified (as, for example, where the party vicariously liable is the employer of hundreds of people, one or some of whom committed the tortuous act in the course of employment, it being unclear, however, exactly who was responsible).
Two common issues arise in relation to vicarious liability:
- In the employer/employee situation what is ‘in the course of employment’. Clearly the negligence of a delivery driver while picking up some goods will be covered. But what if the driver has an accident while going home for lunch (without the employer’s permission) or an accident which occurs after the employee has visited the hotel on his way home. Let us assume he is permitted to take the delivery van home. You can see the difficulty in drawing the line in these cases. Included in the term ‘course of employment’ are employee actions incidental to a person’s employment. Also covered is an unauthorized mode of carrying out an authorized act. Clearly the employer does not instruct the delivery driver to drive negligently but vicarious liability still attaches because the employee is carrying out an authorized act (the delivery) albeit in an unauthorized mode (by negligent driving)
- Another important question is whether the relationship in one of employment or an independent contractor. The delivery driver is clearly employed, especially if he works for no one else and he is subject to close direction by his employer. However, if the delivery drive had his own business and carried out delivery work for a range of clients then he would most likely be classified as an independent contractor.
One is the control test. If the employer controls not only what the employee does, but how he or she does it then it is likely that an employee and employer relationship is established. Contracts the independent contractor who is instructed what to do but not how to do it. A builder will instruct an electrician where to put the light fittings in the house but will not stand by and supervise how it is to be done. A second test looks at whether the ‘employee’ has his own business. If he has, then it is highly unlikely he is anything other than an independent contractor. Relevant points here look at the degree of skill of the contractor (e.g. is it a trade such an electrician or plumber) and whether the ‘employee’ works solely for the employer.
In our legal system, a number of practical considerations turn on whether a particular relationship is employee/employer or employer/independent contractor. Two of them are taxation and workers compensation insurances. If the person in question is an employee then the employer in responsible for extracting PAYE tax and also for covering their workers compensation insurance. Generally, independent contractors are responsible for these matter although there may be exceptions in different industries.
What you might ask is the significance of the distinction between employee and employer in relation to vicarious liability. The position is again adequately summarized by Gillies (1993, p 101):
Where the case is one of master-servant, [employer-employee] the employer is liable in tort not only in respect of the primary act commanded to be done, but also in respect of how it is done. If it is one of employer-independent contractor, the employer is liable only for the acts instructed to be done, but not for the manner of their performance. Thus, the shopkeeper who employs a signwriter will be liable in tort if, for example, the words which are painted under instructions, are defamatory, or provide ground for someone to sue pursuant to the tort of passing off. The shop keeper will not be liable, however, if in the course of painting the sign, the signwriter accidentally (or deliberately) drops a can of paint on a passer-by.
One final point to note is that where vicarious liability is established, the plaintiff can sue either the actual participant, (the person committing the actual tort, such as the employee) or the party vicariously liable (e.g. the employer) or both of them jointly. Commonly it is the latter.
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