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A statement which is found not to be true which lowers the plaintiff reputation in the eyes of right thinking members of society and is published to at least one third party
(ii) slander
- Temporary / transient form, ie spoken words @ gesture - Not actionable per se need to prove actual damages (financial loss)
(i) Slander to women (s.4 DA) imputes adultery to any women/girl requires no proof/damages Luk Kai Lam v Sim Ai Leng
Resp called app a prostitute & said the app charged RM50 to entertain men at any one time.
Elements of Defamation
(1) The words are defamatory SB Palmer v AS Rajah
The words must have tendency to lower the pls reputation in the minds of right thinking members of society, so that pl exposed to hatred / avoided.
EXCEPTIONS
(iii) Juxtaposition
(involves a situation that employs visual effects)
(iii)Relation to title, goods & malicious falsehood Borneo Post Sdn Bhd v Sarawak Press (iv) Contagious disease
(iii) the knowledge may cause the words to be defamatory in the eyes of reasonable men who are privy to the special facts. R Murugason v The Straits Times Press
The pl alleged that the report in the ST imputed that he had acted improperly in his conduct as advocate & solicitor. The pls claim was dismissed as he failed to prove that one/more persons have special knowledge w regard to court proceedings.
(v) Crime attracts corporal punishment, ie death penalty, whipping & imprisonment. C Sivanathan v Abdullah b Dato Hj Abd Rahman
Calling the pl cheat, dishonest & liar did not attract corporal punishment.
(3) Publication
(Dissemination of the defamatory words or material to a third party other than the plaintiff)
(a) Language used must be understood by third party (b) The plaintif must be able to specify what exactly has been said/written by the def (c) Must prove the identity of the person (d) Republication: Lee Kuan Yew v Derek Gwyn Davies
If the words are repeated or copied, a new course (e) Place of publication:
DEFENCES TO DEFAMATION
(1) Consent
(consented to publication; express/implied)
(2) Justification
(article complained of is true)
(6) Privileges (d) Of public interest London Artists Ltd v Litter (a) Absolute privilege
(occasion legislatures & judicial proceeding)
Rajagopal v Rajan
If the matter affects people at large so that they concerned what is going on, it is public interest everyone is entitled to fair comment.
Vicarious Liablity
A situation where an employer is responsible for damage or injury for tortuous act of the employee.
Elements
(1) Commission of Tortious Act Pui Lai Ong v Kassim bin Yunus
The court will first and foremost decide whether a tort has been committed where all the elements of particular tort must be satisfied.
(3) Tort committed within the course of employment (a) Carelessness Century Insurance v Northern Ireland Road Transport Board
The def was liable for his workers negligence as the act was done in the course of employment although the actual act of smoking and causing explosion in the pls property did not benefit the employer.
(ii) Grey Areas (a) Hospital staff Ellis v Wallsend District Hospital
The hospital will be found vicariously liable if the conduct of the medical officer is deemed to be part of the hospitals biz.
(c) Multiple Test Ready Mixed Concrete v Minister of Pensions and National Insurance
Three factors to be fulfilled: (1) The employee agrees that he will use his own expertise and the employer pays him in monetary form @ remuneration (2) The employee agrees (express/implied) that he will be bound by the employers instructions
(3) All other conditions in the agreement are consistent with the
nature of job being a contract of service.
Elements
(1) Accumulation for own purpose
(The defendant must bring the hazardous material on to his land and keep it there for own use)
(3) Escape
(escaped from a place over which the def has control & authority to a place over which the def has no control & authority)
Giles v Walker
Seeds from some thistles on the defs land blew into pls land and damaged his crops. The def was not liable as he had not brought the thistles onto his land and there cannot be liability under Rylands v Fletcher for a thing which naturally accumulates on land.
Defences
(1) Consent of the plaintiff (2) Common benefit (3) Act of Stranger
The express or implied consent of the pl to the presence of source of danger, provided there had been no negligence on part of the def.
If the source of danger was maintained for the benefit of both the claimant and def, the def will not be liable for its escape.
The def will not be liable if a stranger was responsible for the escape.
Rickards v Lothian
The def was not liable when an unknown person blocked a basin on his property and caused a flood, which damaged a flat below.
Nichols v Marsland
Exceptionally heavy rain caused artificial lakes, bridges and waterways to be flooded and damage adjoining land. The def was held not liable.
Nuisance
Private Nuisance
Bamford v Turnley
An unlawful, substantial and unreasonable interference with a persons use, comfort, enjoyment and any interest that a person may have over his land. Malone v Laskey The pl occupied a house as a licensee; the defs were the occupiers & owners of the adjoining premises. The defs operated an electricity generator on their premises, from which the vibration damaged various fitting in the claimants house, to the extent eventually that an iron bracket fell from the wall and injured the pl. held, the suit failed because only a person with a proprietary interest in the land can sue, not a mere licensee.
Public Nuisance
An act or omission which inflicts damage, injury or inconvenience on subjects of the State or on members of a class who came within the sphere or neighbourhood of its operation which might affect some members to a greater extent than others.
Elements
(1) Interference
Either interference with the comfort & convenience, physical damage to the land or encroachment of the land.
(2) Unreasonableness
Interference must be unreasonable before it can be considered as unlawful.
(3) Special Damages (i) The plaintiff must suffers damage more than what is suffered by other person who are exposed to the same interference. (ii) The damage must be a direct consequence of the interference.
(v)
Malice
Syarikat Perniagaan Selangor Sdn Bhd v Fahro Razi, Mohdi & Ors
The built of open stage & staged some shows when at first placed the promise is only to build skating rink, restaurant & cinema. Held, even the urban population is accepting a lot of noise; however, it does not mean that they accept an excessive noise.