Free Essay

Life

In: English and Literature

Submitted By ivyhi
Words 1501
Pages 7
Case Study on tort of Defamation
(Relevant to AAT Examination Paper 6: Fundamentals of Business Law)
Alfred Chan, Solicitor
There has been an increase in the number of defamation cases which have gone to court. In the two scenarios cases that follow, both of which are taken from recent court cases, we can see examples of legal issues in defamation and how one can approach them. Hopefully this will improve your technique in answering problem-solving type questions. First to refresh your memory, in defamation:
1.

The plaintiff has to prove
a.
the statement is defamatory and it refers to him
b.
there is publication of the statement
c.
whether there should be special damages for slander.

2

The defendant can defend by showing the statement is
a. justified (defence of justification)
b. a fair comment
c. made on a privileged occasion which can be
i)
absolute privilege ii) qualified privilege
d. retracted and section 4 of the Defamation Ordinance is complied with, in the case of a newspaper defendant
But the plaintiff can defeat defences 2b and 2c(ii) by proving malice on the part of the defendant in making the statement.

3.

The plaintiff can claim damages if he succeeds; there is more than one kind of damages. **************************
CASE 1
A representative from an accounting firm (who graduated from the AAT 20 years before) told a prospective SME client: "I have read your company’s books. Though your accountant is a CPA, he has not served you well. See, he took so long to finish the audit work. He has written off accounts receivable, messed up stock and your company had to pay more tax. From my experience in this field, I think his performance is less than professional."
Are the statements defamatory?
A statement is defamatory of the person of whom it is published if it tends to lower him in the estimation of right thinking members of society generally or if it exposes him to public hatred, contempt or ridicule or if it causes him to be shunned or avoided: see
Gatley on Libel and Slander (10th ed) at para.2.1. A person’s reputation is not confined to his general character and standing but extends to his trade, business or profession, and words will be defamatory if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade, business or professional
-1-

activity.
Need to prove damage
Generally a slander case has to prove special damage. There is an exception in section 23 of the Defamation Ordinance:
"In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business."
This may save the CPA from proving special damage.
Is any defence available?
The fair comment defence is not available here. Check your book or notes to see why.
If the case appears in examination you should explain it briefly.
Qualified privilege may be relevant here. There are two types of qualified privilege.
In the first, the maker of the statement is under a legal, social or moral duty to make the statement and the recipient has a corresponding interest to receive it. In the second, the maker of the statement is acting pursuant to his interest and the recipient has a corresponding interest or duty in relating to the statement; or the maker is acting in a matter in which he has a common interest with the recipient.
In both cases, there must be reciprocity of interest. “Interest” is not construed in a technical sense here but in the broadest popular sense. This occurs when we say a man is interested in knowing a fact – not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news.
Do you think the circumstances the statements were made in fall into either type of qualified privilege? The answer is probably yes for the first type but it is arguable both ways for the second. You will have to explain further in your script.
Has there been any malice?
The rationale behind qualified privilege is that there are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. If a person’s dominant motive is not to perform this duty or protect this interest, he is outside the ambit of that defence. He can however show to the court he genuinely believes (even if stubbornly) what he uttered. This would impact on what the court thinks his dominant motive was.
So you can see this is not an open and shut case as it first appears. You should form a view to the outcome and justify it by sufficient explanation.
(Note: in the fair comment defence there is a similar but not identical concept of malice.) *************************

-2-

CASE 2
Defame Daily is a newspaper with a wide circulation. One day it ran a front page story
‘Solicitor feared to have absconded with clients’ funds’. There was also a photo of the front of an office bearing the name ‘Money Ho & Co’ next to the story. The newspaper published the article based on information given by a caller to its hotline but it did not verify the facts. Later it found it had made a mistake and immediately published an apology. The sole proprietor of the firm Money Ho was pregnant during this period.
She was depressed and this led to a pre-term delivery. She sued for libel and the
Defame Daily paid $1m to the court “by way of amends”.
Is the statement defamatory?
For a solicitor who has to deal with clients' money daily, honesty and integrity are prerequisite. One can think of very few defamatory statements more serious than these. Is the statement actionable?
Libel is actionable per se, without proof of any special damage.
Defence
Can Defame Daily rely on section 4 of the Defamation Ordinance as its defence to libel? There are several criteria to consider here:
1. the libel was inserted in the newspaper without actual malice’, which will not be the case if:
a.
the article had been inserted without an honest belief in its truth, or
b.
in knowing indifference to whether it be true or false, or
c.
the person responsible had purposely abstained from making inquiries which would have revealed the truth, or
d.
he had deliberately stopped short in his inquiries in order not to ascertain the truth
2. the libel was inserted in the newspaper without gross negligence; and
3. there was an apology before the commencement of the action or at the earliest opportunity afterwards
4. the newspaper has paid money into court by way of amends From the facts given do you think Defame Daily can satisfy all the criteria? Why or why not?
Damages
Ho has probably suffered, mentally and physically, more than a usual libel victim because of her pregnancy. Is her damage too remote to be compensated? The thin egg shell skull rule provides the answer. You should be able to explain what the rule is.
The rule applies to negligence as well as defamation.
-3-

What head of damages is Ho entitled to? The commonest head is ordinary damages.
Less common types are aggravated and exemplary damages. The last type is special damages that compensate expenses incurred. In an examination you have to set out in more details of the type that you think is more appropriate.
1. Ordinary damages; the objectives are to:
a.
console the plaintiff for hurt and distress suffered
b.
repair the damage done to his reputation
c.
vindicate his reputation
In assessing the amount the court will consider:
(1) Gravity of the libel:
This particular libel cast doubt on integrity, which is the cornerstone of a lawyer’s profession.
(2) Plaintiff’s reputation:
Does she have a good reputation?
(3) Prominence and circulation of the article:
This newspaper had a wide circulation, and the articles was on the front page.
2. Aggravated damages:
a. Conduct of defendant :
Was an apology published, or was the defamatory statement repeated? b. Conduct of case
c. State of mind: evidence of malevolence/spite?
3. Exemplary damages: was the defendant motivated by a cynical calculation that the publication was to his mercenary advantage?
4. Special damages: financially measurable damages (e.g. medical bill)
In regular class you should have learned the principles in awarding ordinary, aggravated and exemplary damages. In the examination, you will have to explain these if damages are an issue (they usually are if there is no valid defence) and form a view as to which type(s) of damages apply.

-4-

Similar Documents

Free Essay

Life

...FROM SATAN I saw you yesterday as you began your daily chores. You awoke without kneeling to pray. As a matter of fact, you didn't even bless your meals, or pray before going to bed last night. You are so unthankful, I like that about you. I cannot tell you how glad I am that you have not changed your way of living, Fool, you are mine. Remember, you and I have been going steady for years, and I still don't love you yet. As a matter of fact, I hate you, because I hate God. He kicked me out of heaven, and I'm going to use you as long as possible to pay him back. You see, Fool, GOD LOVES YOU and HE has great plans in store for you. But you have yielded your life to me, and I'm going to make your life a living hell. That way, we'll be together twice. This will really hurt God. Thanks to you, I'm really showing Him who's boss in your life with all of the good times we've had. We have been... watching dirty movies, cursing people out, loving worldly things, having bad influences, stealing, lying, being hypocritical, fornicating, overeating, telling dirty jokes, gossiping, being judgmental, back stabbing people, disrespecting adults, and those in leadership positions, no respect for the Church, bad attitudes. SURELY you don't want to give all this up. Come on, Fool, let's burn together forever. I've got some hot plans for us. This is just a letter of appreciation from me to you. I'd like to say 'THANKS' for letting me use you for most of your...

Words: 556 - Pages: 3

Free Essay

Life

...Life in People’s Eyesight Life is what we can define. There are lots of facts we can associate and describe about it, based on different aspects and point of views of different kind of people. Well, Life is beautiful but not always easy, it has trials too and the challenges lies in dealing it with an exert effort and courage. There’s no human in this world that’s enjoying success without even conquering any hardships and failures. No wonder the saying “No Pain, No Gain”. Happiness and Victory, Sorrow and Defeat, are the two sides of life and what matter is choosing what side you prefer. There are people who see life with full of pleasures and adventures, a part of discoveries and innovations, a prospect for success and prosperity. Most of those people enjoy and live their lives to the edge. They take obstacles in life as their path through what they want. There are also people who see life with full of failures, burdens and bad omens. They think that their life is horrendous and miserable. They take it so bad, as if there’s nothing good about it. Some of them delight doing crimes as far as committing suicides, a permanent solution to a problem that’s merely temporary. There are times that other people lead them to do it, maybe because they suffered too much bullies and sarcasms that they can’t handle the pain so they decides to do unlikely things. Life shouldn’t control us, instead we should control it. We should choose the right to path, not the wrong one. But......

Words: 423 - Pages: 2

Premium Essay

Life

...LIFE As a parent, I believed that my son would outlive me and have sons and daughters of his own, so we could grow old watching them have families of their own, because that was the way of life. I had hopes and dreams for my son. When he died, it completely destroyed my world and left so many unanswered questions. I was completely lost and bereaved. Rebuilding my life and becoming one of the living again has been a long, hard struggle. The death of my son changed my life and me as a person forever. My son chose to end his life on October 3rd 2008. He was only 29 years old. Nothing in my life prepared me for his death. My world ended and everything that I have known in life was shattered. Life as I knew it had changed forever. I couldn’t think or feel anything other than for the pain that was in my heart. My family and my friends worried for me and wanted me to come and stay with them. How could I go and stay with anyone, when I was like a zombie or the living dead. The days did not mean anything to me anymore. Everything I did was like a robot on autopilot. I ate because someone put food in front me and slept when my mind was so exhausted I had to sleep. I knew I had to try to get back into life and live again and rediscover myself as a person. I knew that was what my son would have wanted me to do. I was a completely different person when my son was alive. I loved life, laughed a lot and was happy. I greeted everyday as an adventure and with joy in my...

Words: 895 - Pages: 4

Premium Essay

Life

...to give a presentation on megaliving- how to lead a perfect life. Let’s make this an interactive session. So, hers a question I invite you to consider on. How many of you out here think that you are leading a perfect life? Or before this can any one of you describe what a perfect life is? Before answering this question, let’s do an exercise, Everyone shut your eyes, take two deep breaths and picture this scene taking place many years into the future: you are in an elegant dining hall, surrounded by those closest to you (who are dressed beautifully, looking their best). The candles shimmer on every table and the importance of the evening wafts through the air like the aromas from the kitchen. This is your testimonial dinner, an opportunity for the people who know you best to speak about you as a person, your achievements and your contributions to those you love and to society in general. Just for a moment, reflect on what you would like them to say. This reflection my friends; is the perfect life you want for yourself. And how many of us are actually living our perfect life..? There are two competing schools of thought. One says go out there live your dream, be the best, play at your highest potential. And the other says that the purpose of life is to simply enjoy the journey, simply be happy, and live in the moment. When you think about these two schools, you realize that both are equally important, life is all about the balance. It’s important to reach for the......

Words: 2106 - Pages: 9

Free Essay

Life

...thinking of what is life, why we have been here on this earth and what is the purpose of life? As most of you I believe, during my whole life I have been thinking of these questions and have never been able to come across the right answer for this. A poor man is always worried about feeding himself and his family. The middle class people are always worried about arranging basic comforts of life that covers house, car, clothing etc. The upper class of the society is worried about the amount of wealth they are accumulating and the power they have in their hands. You take the case of any one of these and wonder why are we doing this. I partially support the poor class because food is something we cannot avoid in our lives. But how about the others? What are they running after? Atleast I have never been able to support the answer on this. Some may argue and I do partially agree that we do need to something to live this life. But the fact that upsets me the most is what we are doing is really that which we are supposed to do on this earth. Every religion on this earth in one form or the other guides us to do our work and perform duties and leave rest to the God. But, what kind of duties and why do those? Human thinking has been made narrow to the extent that we always think about future and desperately work, always think and devote our life to future. But what future is? It is nothing but death. Then why are we running after future. Why cannot we live in present? Life is......

Words: 421 - Pages: 2

Premium Essay

Life

...I can remember as a child always asking myself the "why" questions of life. Why are we here? What is the purpose of life? Why do certain things happen? And is there really a God? I had always kept these questions to myself and eventually pushed them out of my mind altogether. I was raised in a Christian household and you just were not allowed to ask questions of that nature and doubt the faith. The world is the way it is because God made it that way and that is all there is to it. I was really excited to take this class because it would finally give me the opportunity to exercise my personal thoughts and beliefs. I have come to agree with Socrates that "the unexamined life is not worth living." In my opinion life is a combination of philosophical ideas such as morality, respect…………. The study of philosophy is a very complex and complicated task. There are so many different questions on many different topics and philosophy tries to explain them all. It tries to provide answers to the many questions that science and religion cannot explain. And from this it urges you to think about issues that may otherwise be ignored. I agree with the goal of autonomy, that philosophy is having the freedom to make your own decisions and beliefs by using your own reasoning capabilities. I believe that we all have the God-like quality of reasoning and therefore can make our own educated decisions. And because we can make our own decisions, we are fully responsible for our actions. This......

Words: 356 - Pages: 2

Free Essay

Life

...LIFE. Life may have many definitions. Through out the centuries, people have sought to understand life in different ways. People through their cultural practices, tries to explain and give meaning to life. Others through religion; their way of worship, explain what life is. Philosophers are in no doubt, a people who through the ages have embarked on this long search. However, with observation of nature, times and seasons, one can make an analogy to understand a section of life. The morning stage is the early part of the day or life. This can signify the period of conception in ones mothers worm till birth. This is also a stage where one begins a social orientation of knowing the parents and the family, learning to speak, walk and embracing the environment around him. We can also classify the time when one begins elementary school to graduating from the university and securing your first job as the morning stage of life. The age range is 1-25 years. The mid-day of life is when one has become a full adult. The person could at this stage be married and have children or his or her own nuclear family. One at this stage is independent and makes his own decisions; self actualization can also be found at this stage. Many times, the focus of people at this stage is their family and work. Acquiring houses, cars and all the luxury of life is very predominant at the mid-day of life. The age range is 35 to 60 years The evening stage of life is when people are taking rest from their......

Words: 437 - Pages: 2

Premium Essay

Life

...for superior and passionate patient service, clinical excellence, as the health care employer of choice, and the preferred partner of physicians. Our Values - Our values, which flow from our mission and Catholic tradition, ,ust have meaning for every one of us. Through them we put the healing minsitry of Jesus into practice throughout out organizational. The following are behaviors that are expected of all associates, physicians, volunteers, and anyone else acting on behalf of the organization. We hope these behaviors will influence for the better every person whose life we touch. Respect - we value each person as sacred, created, in the image and likeness of God, which gives worht and meaning to each person's life. Integrity - we value honesty and words and actions that build trust. Development - we value personal and professional rowth that bines the physical, emotional, spritual, and relational aspects of life and work. Excellence - we value superior performance in our work and service. Stewardship - we value our responsibility to use human, financial, and natural resources entrusted to us for the mon good, with special concern for those...

Words: 299 - Pages: 2

Premium Essay

Life

...Date: 09-12-2015 LIFE SEASON OF LIFE WHAT IS LIFE? Life can be defined as a characteristic of living. It is the state of being alive or active in lively activities. The opposite of life is death, once one has stopped to exhibit or show the characteristics of life, he or she is said to be dead. Life is also made of many activities, but we will see how to perform this activities. WHAT DO WE REQUIRE IN LIFE TO SUCCEED? For us to be able to succeed in life, we must know the times and seasons which are required of us to do everything we are to achieve in life. This leads us to “the seasons of life”. SEASONS OF LIFE: Just like the day which is made up of 24 hours is classified into morning, afternoon and night; for example, we take breakfast in the morning, lunch in the afternoon and dinner at night, we can’t say that we take breakfast at night and dinner in the morning. So also, life is classified into morning, afternoon and night, and these times have specific activities it wants us to perform. Let us consider each of them below. MORNING: The morning at every person’s life is the time frame from when he/she was born to 20 years of age. At this age, one is required to learn how to walk, read, write, show respect, learn the basics of education, respect for parents, respect for teachers and other elders in the society. One should also learn how to behave himself or herself in the public, how to speak with good manners in the public. At the latter part...

Words: 576 - Pages: 3

Premium Essay

Life

...THE ABSURDITY OF LIFE Steven Luper, Trinity University In "The Absurd"[i] Nagel claims that self-conscious human beings are necessarily absurd, so that to escape absurdity while remaining human we would have to cease being self-conscious. Fifteen years later, in The View From Nowhere,[ii] he defends the same thesis, supplementing some of his old arguments with a battery of new ones. I want to suggest that Nagel has misdiagnosed, and exaggerated the inescapability of, our absurdity. He does so partly because the grounds on which he bases his conclusion are spurious, and partly because he does not acknowledge the extent to which we can eliminate absurdity by suitably redesigning our plans and modes of justification. Nonetheless, I do not mean to imply that we can easily eliminate absurdity from our lives. Life is not necessarily absurd, but unfortunately, in a world like ours, there are limits to what we can and should do to reduce the absurd elements of our affairs. The View of the Nowhere Man "In ordinary life a situation is absurd," Nagel says, "when it includes a conspicuous discrepancy between pretension or aspiration and reality: someone gives a complicated speech in support of a motion that has already been passed. . . ; as you are being knighted, your pants fall down."[iii] In this passage from "The Absurd" Nagel claims that absurdity is a particularly striking sort of incongruity, and the conception of absurdity he discusses in his book is the......

Words: 8565 - Pages: 35

Premium Essay

Student Life

...Student life is the best part of life. A student learns many things from books. But he has to enter the real world after his student life is over. So, he needs practical knowledge of things. Student life prepares a man to lead a successful life. In fact, student life is a life of learning. A student learns morality and good manners. He understand the value of discipline in life. So student life is a period of making and preparation. Student life is a care-free life. It is a life of joy. A student is free from almost all cares of the world. He gets a different atmosphere at college from that of home. He takes part in games and sports. He goes sometimes on a picnic and sometimes on educational trips. A student lives in a small world of his school or college. The life of a student, therefore, is a golden period of life. Student life is a life of discipline. At home a student may behave well or badly. But the atmosphere of a school college is completely different. Good boys are loved and praised. Wicked boys are punished. All students have to follow some rules and obey their teachers. Thus, they learn discipline. Discipline makes them self less and teachers them ‘live and let live’. Student life is a life of character building. Character has its importance in life. A student must be bold and fearless. He must think society. He should try to solve the problems of the nation. He must be loving and truthful. Student life is a life of character formation. Students must have a......

Words: 316 - Pages: 2

Free Essay

The Sound of Life

...waiting to hear the sound of trapped miners signaling their life from underground. In Church's "Auscultation", the underlying theme is that sound is essential to life. Sound can mean more than words ever could. Steven Church's "Auscultation" is a 4 chamber essay. Personally, I believe that the 4 chambers represent the 4 chambers of the heart. This is relevant due to the topic of the essay; the sound of life. The first chamber sets the tone by describing a mine that collapsed leaving 6 miners trapped in the deathly grasp of the mountain. The second chamber introduces the stethoscope as an essential part of life. The third chamber expresses the importance of the stethoscope, what makes a doctor a doctor, and the different instruments that a doctor has. The fourth and final chamber ends the essay by describing another devastating collapse leaving 9 coal miners trapped by rising water leaving families as well as other miners on edge about the life of their coworker, friend, or loved one. The essay compares a baby's heartbeat to the sound of a sledgehammer hitting metal within the womb of the cave -or stomach. This is because both of those sounds indicate life. Church describes this by musing that the doctors are "...hopelessly dependent on the curl and twisting turns of simple listening technology, the only tool for the vital job of reading and feeling the rhythmic thumps of the heart, that tap-tap-tap signal of life we cannot see and I can in no other way sense."...

Words: 594 - Pages: 3

Free Essay

Beginning of Life

...AST 309 part 2: Extraterrestrial Life The Origin and Evolution of Life on Earth Overview • The formation of Earth • Pre-biotic chemistry (Miller-Urey exp.) • First evidence for early life • The evolution of life • Extreme life on Earth: lessons for astrobiology A timeline for the very early history of the Earth The formation of Earth: The Earth formed over ~50 Myr via planetesimal accretion Earth differentiation: The iron "drops" follow gravity and accumulate towards the core. Lighter materials, such as silicate minerals, migrate upwards in exchange. These silicate-rich materials may well have risen to the surface in molten form, giving rise to an initial magma ocean Early Earth heats up due to radioactive decay, compression, and impacts. Over time the temperature of the planet interior rises towards the Femelting line. After the initial segregation into a central iron (+nickel) core and an outer silicate shell, further differentiation occurred into an inner (solid) and outer (liquid) core (a pressure effect: solid iron is more densely packed than liquid iron), the mantel (Fe+Mg silicates) and the crust (K+Na silicates). Initially large portions of the crust might have been molten - the so called magma ocean. The latter would have cooled to form a layer of basaltic crust (such as is present beneath the oceans today). Continental crust would have formed later. It is probable that the Earth’s initial crust was remelted several times due to impacts with large......

Words: 2150 - Pages: 9

Free Essay

End of Life

...End of Life Essay It is very important for people to discuss and manage end of life issues. There are many issues that may need to have resolutions such as life support, curative vs symptom management, courses of treatment. Other issues such as burial plots and funeral arrangements. I have found that many people feel they have more time to discuss end of life issues. They feel that they have plenty of time to discuss their wants and wishes for the death and dying process with their loved ones. It is very important to discuss end of life issues with your significant others, spouses, children because one never knows when the end of life issues may come up. Maybe it is a young mother diagnoses with stage 4 ovarian cancer. Maybe it’s a 76 year old male patient that feels that while he has lived a good life, it is never enough time. Or it could be a 16 year old teenage girl that had a soft tissue sarcoma that wasn’t diagnosed until it had metastases all over her body. I have taken care of all of these patients. It is never too early to discuss end of life issues, but sometimes it can be too late. Death is very personalized such as life. It is important that the individual is allowed to pass in a manner that is important to them and to feel that they have taken care of issues that they may feel need to be resolved. We might think that we know what our loved ones want, but it could be very different from what they actually want. For example we may think that......

Words: 1707 - Pages: 7

Free Essay

Reverence for Life

...main ethical concept is called Reverence for Life. He proposes the idea as the root of the will or drive to live and keep on living on by evolving and improving our lives. Schweitzer’s Reverence of Life philosophy includes all living things that have the ability to feel empathy and even self-actualization with all other living things. The philosophy includes the idea that living beings don’t only care about themselves but also give much concern about the development of lives of other living beings as well. Some of the ideas that Schweitzer mentions do not make complete sense to me. For example Albert says in his article, “we are brothers and sisters to all living things, and nothing else, neither race nor color nor religion nor sex, should be more important than this one deepest, most extraordinary thing connecting us. Personally that doesn’t register in my mind because the fact that I feel as if humans are more superior to many living beings, I can’t be a brother to a species of a plant or I can’t be a brother to an exotic animal such as a tiger. On the other hand, there are some things I do agree with which is the idea of being aware with all of the things we do as living beings. The world has evolved and adapted to us living and gives us the opportunity to keep on living. This idea is only aware by humans; other living beings do not have the ability to become aware of such wills or drives to live. As stated in class, Reverence for Life includes sympathy, love, and in......

Words: 344 - Pages: 2