LW204: TORTS LAW II

Lecturer and Course Coordinator: Louis Vakaran

USPEmalusCampus|
Week1|
Semester22023

Topic 1: Introduction to Torts 1

Overview
Today’s session:
• General housekeeping matters and preliminaries;
• Have a general overview of the course content and assessments of
LW204;
• Understand the expectations the Coordinator’s have for LW204 students;
• Commencement of Defamation.

Topic 1: Introduction to Torts 2

Course Coordinators
Navneel Sharma
Laucala F2F and
Overall Coordinator
Office: Statham Campus
Email: navneel.sharma@usp.ac.fj
Louis Vakaran
Kanksha Ghimire
Emalus Coordinator Online Coordinator
Email: louis.vakaran@usp.ac.fj
Email: kanksha.ghimire@usp.ac.fj
Topic 1: Introduction to Torts
3
Contact Hours

• One 2hour lecture every

week.

• 1 hour Tutorial per week.

Select your tutorial slot.
Remain in that tutorial for
rest of semester. No
changing!!

• Tutorials begin week 2.

• Tutor – Louis Vakaran

• Emalus Tutorial sign-ups

on Moodle. Available
shortly. Topic 1: Introduction to Torts 4
Emalus Students

• View and hear weekly Emalus Lecture Captures

• Attend and Participate in Tutorial.
Consultation Hours

Wednesdays 12:00pm – 1:00pm

Thursdays 12:00pm-1:00pm

Please email for consultation and discussion

Available via email also to respond to queries
Louis.vakaran@usp.ac.fj
Points of Contact
• Students should contact their respective coordinators for any
questions or queries that they may have;
• For General issues for Emalus campus face-to-face and online:
Law School Secretary Ms. Bolenga, at teiau.bolenga@usp.ac.fj.
• For Laucala F2F students: Laucala Law School Secretary Ms. Lite
Ragede: lite.ragede@usp.ac.fj
• If you have issues viewing content or access to the moodle
shell, please take a screenshot and email:
arpana.deb@usp.ac.fj
Assessment Scheme
Assessment Weighting
F2F Tutorials and active participation - Weekly
1 20%

Research Essay
2 30%
Due: 20 August 2023 2359hrs FST

Final Examination 50%

3 Scenario based (IRAC) and case-related questions (Minimum mark: 20/50)
Dates: TBC

Topic 1: Introduction to Torts 8

How can I pass this course?
In order to be awarded a pass in this unit, students must achieve an overall mark
of at least 50% in the course.

In addition:

Face-to-Face students are required to attend at least 60% of the tutorials to take
the final examination and to be eligible to pass the course.

ALL students are required to obtain 40% of the marks available for the final
examination to be eligible to pass the course. Students who fail to achieve mark
in the examination will fail the course (even if they achieve a passing mark
overall).
Topic 1: Introduction to Torts 9
Extra Tips!
• Maintain your physical health - Eat well, keep moving and get
enough sleep! Visit your medical center if not well.
• Take care of your mental health – meditate/pray, call home, talk
to a good friend, have a support buddy or visit campus
counseling;
• Reach out to Student Support Services for academic support;
• Announcement will be made as to your PASS Leader once the
person is selected.
• Read moodle announcements.
• Utilize F2F consultation opportunity.
8
Lessons learnt from TORTS 1
• You will not pass the course by doing the bear minimum. Put in the hours
• Plagiarism is a concern – cut/paste experts, don’t copy from friends and acknowledge
source.
• A.I.
• Prepare well for tutorials. READ THE CASES!
• Avoid Wikipedia and Lawteacher – read the case!
• Keep yourself interested
• Improve writing style. Clear, concise, sharp and address the issue
• Poor utilization of contact hours.
• Own the Unit. Self responsibility. Do not wait till exam week to begin consolidating matters
pertaining to the course.
• PLAN YOUR SEMESTER!
• Get your assignments in on time. I DO NOT easily grant extensions!
14 weeks at a glance
LW204: TORTS
II TOPIC 1 (PART I)
DEFAMATION—The
Plaintiff’s Case
 Ridicule…
Avoid…
Despise…
Shun…. Injury…
Amber Heard defamed
Depp by writing in a 2018
opinion for The
Washington Post that she
had become a “public
figure representing
domestic abuse.”
Johnny Depp sued Amber Heard for defamation because of an opinion she
published in the Washington Post in 2018.

In the opinion, headlined “I spoke up against sexual violence — and faced

our culture’s wrath. That has to change,” Heard never mentions Depp, but
she refers to herself as “a public figure representing domestic abuse.”
Depp and his lawyers have argued, and a judge has agreed, that Heard is
clearly implying that Depp abused her over the course of their year-long
marriage.
 Extract of Judgement
In John v MGN Ltd [1996] All ER 35 it was held:

• The successful plaintiff in a defamation action is entitled to recover, as general damages,

such sum as will compensate him for the wrong he has suffered.
• That sum must compensate him for:
• the damage for his reputation;
• vindicate his good name; and
• take account of the distress, hurt and humiliation which the defamatory publication has
caused.
• In assessing the appropriate damages for injury to reputation the most important factor is
the gravity of the libel; the more closely it touches the plaintiff’s personal integrity,
professional reputation, honour, courage, loyalty and the core attributes of his personality,
the more serious it is likely to be.
• The extent of publication is also very relevant: a libel published to millions has a greater
potential to cause damage than a libel published to a handful of people.
 Extract of Judgement
In Kiam v Neil TLR 26.7.96 p.33 C.A it was held:

“The libel jury could properly take into account the prominence of the plaintiff’s reputation
when deciding what figure was required to vindicate it. They were also entitled to take
account of fact that it struck at the core of his life’s achievements…

In Reynold v Times Newspapers Ltd & Others [1999] 4 All ER 609 it was held

“Reputation is an integral and important part of the dignity of the individual. It also forms the
basis of many decisions in a democratic society which are fundamental to its well-being
whom to employ or work for, whom to promote, whom to do business with or to vote for.
Once [tainted] by an unfounded allegation in a national newspaper, a reputation can be
damaged forever, especially if there is no opportunity to vindicate one’s reputation.”
Defamation Case
▪ Protects people’s reputation in certain circumstances.
• Restricts what people can lawfully say about others.
• Therefore can be viewed as a restriction on the right of free
speech, expression and publication – s.17 of Fiji Bill of Rights,
2013 Constitution. / Artilce 5(1)(g) – Freedom of Expression –
Vanuatu Constitution
❑ Can you think of other areas where law
restricts free speech?

❑ Free speech limited by consideration of:

➢ National Security
➢ Indecency
➢ Public safety & order
➢ Hate speech
➢ Others
DEFAMATION IS A PART OF COMMON LAW

❑ Judge made law

❑ Precedents building on precedents.
➢ Some binding
➢ Some persuasive
DEFAMATION:

❑ A social tort
✓ Covers something that D has done to the
Plaintiff that affects how other people
regard the Plaintiff.
✓ It protects the Plaintiff’s
reputation/status/image.
✓ Unlike other torts, it does not cover a kind of
harm that D directly causes to P.
DEFAMATION:

❑ It is also a Political/Public Tort

✓ Restrains the discussion of public
issues in the public arena
✓ It touches on the risk of damaging
someone’s reputation.
 1. DEFAMATION: WHAT IS
DEFAMATION
❑ Defamation consists of published statement (libel), or other
communications (slander), which imputes a derogatory quality
or act to the Plaintiff
❑ Defamatory Imputation:
➢ Refers to the meaning conveyed by a statement which imputes to the
Plaintiff something which “would tend to lower him in the estimation
of right-thinking members of society generally”
DEFAMATION: WHAT
IS DEFAMATION
❑ Sim v Stretch [1936] 2 All ER 1237 –
➢ “Defamation consist of the publication of
material which reflects on a person’s
reputation so as to lower the claimant in the
estimation of right thinking members of society
generally.”
➢ Lord Atkin provide 3 features to that definition:
✓ It is
an objective test
✓It is vague – Lowered estimation is the standard,
however, others include ‘exposed P to redicule, being
shunned or avoided’ as alternatives.
✓ Does not take into consideration the society as
a whole but only the views of the ‘right thinking
members’ whose opinion counts.
Vohor’s case

Public Prosecutor v Vohor [2004] VUSC 22

Vohor v Public Prosecutor [2004] VUCA 23

Contempt of Court
Statement made by Vohor, that the Chief Justice of Vanuatu:
❑ “Was Acting for foreign interest in Vanuatu;
❑ Had a black skin but white heart;
❑ Was the child of a white man “pikinini blong whiteman”.
DEFAMATION: THE SINGLE
MEANING
❑ A statement (communication) can mean different things to
different people.
❑ It is the courts task to decide on a single meaning for that
statement
❑ Example:
➢ “pikinini blong whiteman” – Vohor’s case
❑ Allsop v. Church of England Newspaper [1972] 2 All ER 26
➢ A column in the Defendant Newspaper referred to the Plaintiff, a
BBC television host, as having a ‘pre-
occupation with the bent.’
➢ The Plaintiff alleged that the word ‘bent’ meant ‘sexually
perverted’; the Defendant said it meant ‘bizarre’.
DEFAMATION: THE
SINGLE MEANING
❑ The single meaning endorse by the courts should be the
meaning understood by the ‘ordinary person’.
❑ Example:
➢ Ratu Mosese Tuisawau v. Fiji Times & Herald (1975) FLR 149
✓ The Defendant Newspaper printed Plaintiff’s name amongst
the names of other candidates who were not selected for a
post advertised in the papers.
✓ The paper noted that the chosen candidate was chosen
because ‘he was incorruptible’.
✓ The Plaintiff alleges that the ordinary readers will then
think that all the other candidates are not incorruptible
(corrupt).
Ratu Mosese Tuisawau v Fiji Times & Herald (1975)21 FLR 149

Ratu Mosese Tuisawau v Fiji Times & Herald (1975)21 FLR 149
“the defendant newspaper printed the plaintiff’s name as one of the
candidates rejected for an important government post, under a headline
saying that the successful candidate was chosen because he was
“incorruptible”. The plaintiff alleged that the ordinary reader would take the
implication to be that the losing candidates were not incorruptible – i.e., that
they were thought to be dishonest.
The Court of Appeal divided according to the judges’ opinions of how Fijians
read newspapers. One judge thought the ordinary reader would jump to
conclusions, indeed reading the piece as the plaintiff claimed.
But the majority thought people assumed a certain amount of ‘sensationalism’,
or exaggeration, in newspaper stories, and would not read such a meaning into
these words because it was not a necessary inference. So the article was held
to be non-defamatory.
 DEFAMATION: THE SINGLE
MEANING
❑By this definition – What the
Defendant intended the
communication to mean is
not even relevant.
❑What matters is how the
ordinary reader or listener
would interpret the
communication.
 QUALITIES OF DEFAMATION

❑ An objective test
➢ What would the reaction of listeners be?
➢ It is not necessary to inquire into how listeners actually reacted.
➢ Therefore proving a case is more a matter of argument than evidence.
❑ Whether a statement is defamatory may depend
on cultural context
➢ What is lowered estimation?
➢ Or exposed Plaintiff to redicule?
➢ Or cause Plaintiff to be shunned or avoided?
❑ It can vary with the cultural context
➢ Jury used to represent community standards
➢ Trial judge acts as the jury—to make findings of fact
DEFAMATION: THE ORDINARY PERSON’S
INTERPRETATION
❑ There are 2 important points to note:

1.People receive meanings not just in their plain or literal

sense of the words, but also in what the words imply
(Innuendos.)
2.Given communication is interpreted as a whole by the ordinary
person (context)
➢ example: Altered photographs accompanied by written articles.
➢ See: Charleston v News Group Newspapers
[1995] 2 All ER 313 (HL)
Charleston v News Group Newspapers [1995]2 All ER
313 (HL).
A photograph ‘touched up’ to appear to show the plaintiffs naked in
pornographic poses, which by itself could carry the defamatory
innuendo that the plaintiffs had participated in making pornography,
was held not to do so because the accompanying article was about
video games which used photography altered in just that way. The
ordinary reader would have understood that the photograph was not
genuine.
DEFAMATION: TYPES OF DEFAMATORY
IMPUTATIONS

❑ The types of imputations that would lower a person in the

estimation of others:
1. Shame – acts the people could be ashamed of include:
a. The commission of a crime, and
b. dishonesty
2. Avoidance
3. Ridicule
4. Injury in business or occupation or calling.
DEFAMATION: TYPES OF DEFAMATORY
IMPUTATIONS
Shame. This is perhaps the most obvious type of defamation – an
imputation of some quality or act for which a person would be
ashamed. The range of such qualities or acts depends, of course,
upon the society. But the courts always treat two as defamatory:
- the commission of a crime, and
- dishonesty.
Another quality or act which would be defamatory is whatever is
locally considered to be ‘indecent’ behavior.
DEFAMATION: TYPES OF DEFAMATORY
IMPUTATIONS
Cause for others to avoid the plaintiff.
• Some qualities or conditions may carry no shame, yet lead other people to avoid the
plaintiff.
• The classic example is contagious and serious disease, of which the clearest modern
example is AIDS; one should include infection with HIV, the virus that causes AIDS.
Whether or not local people think being infected with HIV is shameful, they may still
avoid someone they think is infected;
• the likelihood of such avoidance is enough to make such an imputation defamatory.

Another example of a quality which may cause avoidance, whether shame attaches or
not, is insanity, as well as less drastic forms of personality disorder.
DEFAMATION: TYPES OF DEFAMATORY
IMPUTATIONS
Cause for others to ridicule the plaintiff.
It is possible to be subject to mockery without people being blamed or avoided.

In Ettingshausen v Australian Consolidated Press (1991) 23 NSWLR 443 (Reading 1.2) the defendant
magazine (‘HQ’) printed a photograph of the plaintiff, a famous rugby-league star, naked in a shower.
His penis seemed to be visible through the steam, and he was smiling. The imputation that he had
deliberately so posed, for such publication, was held to be defamatory, largely on the ground that most
people would regard such an act as ridiculous.

In Gabe v Clunn and Pacific Gold Studios (1995)N1378 (unreported), a band issued a tape cassette with a
song referring to ‘Kamea the old man from Elevala’ and mocking him for indecencies with children. The
plaintiff’s name was Kamea, and he lived in a village called Elevala (just outside Port Moresby, PNG,
where the tape was sold) – and he was a prominent and very dignified chief. The court did not hesitate
to consider this defamation, although there was no question of anyone actually believing the plaintiff
had committed indecencies.
DEFAMATION: TYPES OF DEFAMATORY IMPUTATIONS

Injury in business or occupation or calling.

Finally, it is possible for an imputation to fit none of the above yet still cause the
plaintiff to lose respect in what he or she does for a living. To impute to a priest a taste
for extremely expensive imported liquor, for instance, might not lead exactly to shame
or ridicule, or avoidance, but it might well cause people to think less of him as a priest.
(Note how much local standards of probity and appropriate behaviour matter to these
judgments. In England, these are jury decisions, but in our jurisdictions the decision is
up to judges, who must rely on counsel for evidence and argument on the common
standards of the jurisdiction.)
DEFAMATION: PUBLICATION AND
IDENTIFICATION OF THE PLAINTIFF

❑ A defamatory statement made only to Plaintiff cannot be

considered defamation
❑ It must be made in the presence of a third party in order
for it to be qualified for defamation
END