QUESTION After an ongoing dispute between neighbours Wendy and Rupert, Wendy is

QUESTION

After an ongoing dispute between neighbours Wendy and Rupert, Wendy is fleeing Rupert after receiving a threatening sms from him. Wendy heads to the local train station where she has arranged to be picked up by her niece.

Wendy spots Rupert as she is passing through the crowd of morning commuters, but she can’t easily get away. Rupert is oblivious as he’s checking emails on his mobile phone while walking. As they jostle past each other, he accidentally steps on Wendy’s toes.

‘Ahh!’ Wendy yells out. ‘You’ve injured me. You’ve actually done it! Attacked an elderly lady!’ People in the crowd start staring. Rupert looks up and realises what has happened.

‘Shut up, you crazy witch!’ he shouts. ‘You’ve completely lost your marbles!’

Rupert boards the train to travel to work. Another local resident sits beside him and speaks to him on the way. He tells Rupert about Wendy’s background and how she has experienced all kinds of difficulties in her life. Rupert starts feeling bad for treating Wendy so harshly. He sends Wendy another sms, saying ‘I’m sorry for everything that’s happened. It wasn’t nice to call you names in front of all our neighbours.’

Sample answers below are based on students’ submitted assignments in LAW5PTO Principles of Tort Law in 2018.

SAMPLE ANSWER 1 (C)

The Tort of Defamation

Back to our case, when Rupert and Wendy jostle past each other in the train station, as Rupert is checking his mobile while walking, he steps on toes of Wendy without any intention and by accident. In response, Wendy, as she has a thought of Rupert’s message which caused a fear on her, starts to yell out immediately and in front of many people in the crowd of station shouts to Rupert that he attacked injured her.

“Defamation occurs when there is a publication of material that would make ordinary, reasonable people think less of the plaintiff.” Wendy’s statement is clear on its face and all people around can understand the meaning of her statement. Her statement is absolutely defamatory as it damages Rupert’s “reputation” in the view of the present people in the station; it is understandable by others only with that sentence and brings a meaning to other’s mind that Rupert may committed to a tort of battery towards her. So, it can be said that there is a publication of defamatory material as there are other people as “observer” other than Wendy and Rupert in the train station.

According to section 7(2) of Defamation Act 2005, Rupert as a plaintiff may sue for tort actionable per se; but it seems very unlikely that Rupert decides to do so as he has had a conversation with one of the local residents who was the evidence of the incidence; he finds that Wendy has had many difficulties in her life, so, he sends message to Wendy and apologise her. Although, in the case that Rupert wants to sue Wendy, could recover the damages resulted from the defamation by Wendy without proving any actual loss according to the aforementioned section of Defamation Act.

SAMPLE ANSWER 2 (C)

Issue 8: Is Rupert’s statement on Wendy “crazy witch” and “you’ve completely lost your marbles” defamatory?

Rule: To determine whether material is defamatory, it must be first determined what the material actually means, and whether someone other than the plaintiff and the defendant sees, hears or reads and understands it.

Analysis: Witch is a defamatory word, referring to a person who practices black magic for the purposes of evil. And “lose one’s marbles” refers to the person to be or become mentally deficient, incompetent, or deranged. These are abusive wording that would be detrimental to Wendy since it would have two meanings: (1) Wendy is an evil woman that may be harmful to others; and (2) Wendy is a mentally deficient person that may ruin her reputation. Moreover, Rupert shouts out these word in the train station where there are numerous passengers who are arriving to catch the train, and people in the crowd start staring at them, so everyone at the train station may see and hear about what Rupert says to Wendy. And it is evident that a local resident indeed hears about his abusive wording and speaks to Rupert when they are on the train, indicating that Rupert should not be so harsh to Wendy. This local resident knows about Wendy’s background that’s why he talks to him, but any other commuters who do not know about Wendy may have bad image about Wendy.

Conclusion: Rupert’s wording at Wendy constitutes defamation.

SAMPLE ANSWER 3 (A)

ISSUE THREE: DEFAMATION:

Issue 3.1: Did Rupert’s comments about Wendy following all the above-mentioned incidents constitute defamation, impacting on Wendy’s reputation and character?

Defining defamation:

Defamation is broadcasting or publishing in a defamatory manner about another person. Comments are considered defamatory if an ordinary and reasonable person thinks less of someone because of the comments made about them. Rupert called Wendy a crazy witch and said she had lost her marbles. These comments were heard by Wendy’s neighbours and someone spoke to Rupert because of his comments.

Proving defamation:

The test for defamation is whether a person’s standing in the community has been impacted because of the defamatory comments. To assess this, consideration needs to be given to the meaning of the comments and whether they are true or false innuendo. Rupert’s comments would be true innuendos as Wendy’s neighbour commented about the difficulties she had endured throughout her life, insinuating there are facts which support Rupert’s comments.

Secondly, it needs to be assessed that the comment was publicised and defamatory in nature. The comments only need to be comprehended by at least one person to enable them to make a judgement about a person’s character and reputation. Given the neighbours spoke to Rupert about his comments, they clearly comprehended the comments, however, it is not clear whether the comments resulted in the neighbours judging Wendy’s reputation and character. Rupert’s comments would be defaming if Wendy’s reputation was injured and if she were subsequently ostracised from her community.

Defences:

Substantial or contextual truth:

Rupert could use the defence of substantial or contextual truth if the comments he made were true, even if the comments did defame Wendy’s character and reputation. Rupert would need to prove his comments were either substantial true (a majority of his comments were true) or contextually true (some comments were true and although the other comments were false, they did not cause further damage to Wendy’s reputation).

Fair comment and honest opinion:

Rupert could argue that based on the facts (Wendy yelling and alleging she was attacked) that his comment was a fair comment because there was sufficient clarity between Wendy’s actions and Rupert’s comment. Rupert could argue that his comments were an ‘honestly held opinion’ ‘based on proper material’ because of the circumstances (issues one and two) prior to his comments, as the material could be seen as being ‘substantially true’. However, Rupert would need to prove that his honestly held opinion was publicised as a matter of public interest. If this defence was proven, Wendy would have the onus on her to prove that Rupert’s opinion was not honestly held.

Triviality:

Rupert could argue that his comments would not have impacted Wendy’s reputation further. Rupert could argue that the limited audience (their neighbours) did not disagree with him, but instead contextualised Wendy’s behaviour, which did not impact her reputation.

Remedies:

If Rupert’s defences were successful, Wendy would be unable to seek remedies. Rupert has not admitted liability or fault because he apologised via SMS and Wendy would not be allowed to use Rupert’s apology in court to prove an admission of guilt. If Rupert’s comments were proven to be defamatory, Wendy would be able to claim for damages. Wendy could claim up to $250,000 for non-economic loss and would also be able to claim aggravated damages if, as a result of the defamation, her feelings were hurt. If Wendy requested Rupert to make amends for his comments, Rupert would need to make amends within 28 days, either with a written correction or apology, or with compensation. If Wendy accepted Rupert’s offer to make amends, she would not be able to later sue Rupert for damages. If Wendy rejected Rupert’s offer, he would have cause to use this as a defence if Wendy tried to bring the matter to court.

SAMPLE ANSWER 4 (A)

I RUPERT’S LIABILITY

C Defamation

The alleged defamatory statement is Rupert calling Wendy a ‘crazy witch’ who had ‘completely lost [her] marbles’. Wendy must prove that the statement was published and had reached at least another person who would ordinarily and reasonably think less of her. On prima facie, it appears that the statement may affect Wendy’s reputation as a well- respected elder of the community. The meaning of the statement was clear and defamatory by true innuendo. However, the local resident who sat next to Rupert on the train did not think less of Wendy after hearing the statement, as he explained to Rupert Wendy’s past hardships in life. In addition, there is no evidence that suggests Rupert had published his statement between their altercation and when he boarded the train. He had apologised to Wendy shortly after. If such claim were to arise Rupert can argue a defence – he had made an offer to make amends. His apology is most likely to resolve the potential dispute and thus, would not require Wendy to engage in litigation. It is unlikely Rupert will be liable for defamation.

II WENDY’S LIABILITY

C Defamation

Wendy proclaimed that Rupert had ‘attacked an elderly lady’ when he accidently stepped on her toe. This was a reactionary statement to his threat rather than a defamatory one, as the latter needs to be firstly published to satisfy this tort. Thus, it is unlikely Wendy will be liable for defamation.

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