£16,500 Damages Claim For Alleged Libel

Press, Volume CII, Issue 30286, 12 November 1963, Page 14

£16,500 Damages Claim For Alleged Libel

(New Zealand Press Association) WELLINGTON, November 11. Throughout the magazine “Consumer” there was an appeal to the ordinary human appetite for scandal, counsel. Mr R. E. Harding, submitted today in the Supreme Court. He appeared for Turnbull and Jones, Ltd., which is claiming damages of £16,500 against the Consumer (xnincil and Allan Edward Monaghan, a civil servant, for alleged libel.

With Mr Harding for the plaintiff company is Mr B. R. Boon. Mr G. P. Barton, with him Mr R. T. Feist, appears for the defendants. The hearing is before Mr Justice McGregor and a special jury of 12. The statement of claim said the plaintiff company manufactured and sold electric heaters. It alleged that Monaghan was a civil servant and “is or was the editor of, or was otherwise responsible for.” the publication in March, 1962. of a magazine called “Consumer” and of the articles complained of about electric heaters. It was alleged that the articles had been submitted before publication to the Consumer Council, which authorised publication of them.

The words complained of meant, among other things, that the plaintiff company was manufacturing and selling heaters that were dangerous to life and property; that the plaintiff had committed and was continuing to commit offences against the Electrical Wiring Regulations, 1961; and that the plaintiff was fraudulently using the standards mark on heaters on which it was not entitled to use the mark, the statement of claim said. Content of Article Referring to the alleged libels, it said the article concluded by saying that one heater performed well, that it had a pleasing appearance and was one of the quietest, and that it had faults in construction and was potentially hazardous. Another heater was also described as hazardous, even though it had a good performance in efficiency tests. The article said it should be withdrawn from sale.

Of a third heater it was said that it did not conform with the New Zealand standard specifications but that that there was an oral assurance from the company that the fault had been rectified. Of a fourth heater there was criticism that flex cord ends were not taped and that internal wiring air spacings were too small. The statement of defence said the statements of fact were true and expressions of opinion were fair and bona fide comment made without malice on facts which were a matter of public interest. It added that publication of the words complained of was an occasion of qualified privilege.

In his opening address, Mr Harding said the defendants had libelled not only the plaintiff company, but 26 other manufacturers. The defendants had said that 43 heaters they had tested made by the manufacturers failed to comply with certain safety regulations that had recently come into force.

"What they omitted to say was that these regulations did not apply to any of the heaters they wrote about so that the readers of the article were left inevitably with the impression that all these manufacturers had been breaking the law, and they had not,” Mr Harding said. Monaghan, an officer of the Industries and Commerce Department at the time in question, was called executive officer of the Consumer Service and was concerned with the drafting of articles. It had been said of the 26 manufacturers allegedly libelled in the articles in question that 14 of them were making heaters that were either hazardous or potentially hazardous. “They said that two of our heaters came into that category,” said Mr Harding. “Our answer is that neither of the heaters is hazardous or potentially hazardous.” Reviewing the history of the Consumer Council. Mr Harding said the council, as an incorporated body, started in 1959 and, starting a magazine called “Consumer." had “invited all and sundry to subscribe to it at 10s per annum.” “Interested tn Subscribers” Throughout the magazine there was evidence of a certain amount of care being taken to suggest that it was not a Government concern. “The pose is almost: ‘We are an independent organisation.’ ’’ Submitting that the appeal throughout the magazine was to the ordinary human appetite for scandal, Mr Harding said the Consumer Council was most interested in getting more subscribers.

Early in 1961 it was proposed that tests of electric heaters should be made and the Department of Scientific and Industrial Research, apparently with some reluctance, undertook to test heaters for the Consumer Council.

Referring to New Zealand Standard Specification 1240. Mr Harding said that a subcommittee of the Standards Institute drafted standard specifications which were usually based on the British standard specifications. Nobody was obliged to comply with the standard. But manufacturers of electric fires, if they liked the kudos of having the standards mark attached to their product, submitted a specimen of their product for testing to ascertain whether it complied with the specification. Monaghan and his colleagues had wanted the heaters tested for compliance w'ith the specification, though hardly any of the manufacturers themselves had wanted to apply. “Unsafe In No Particular" Kinley Harold Black, managing director of the plaintiff company, said in evidence that he had an honours degree in electrical engineering of the University of New Zealand and other qualifications and was a registered engineer in New Zealand. Of the electric heaters manufactured by his company, Black said he knew of no particular in which the heaters were unsafe. Asked by Mr Harding how the damages claimed had been calculated. Black said it had been considered the company had incurred "more or less tangible expenses of £l5OO, to which had been added £15.000 by way of general damage to the company's reputation." The company had 16 branches throughout New Zealand and two factories. Its gross profit for the latest financial year was £571.000 The damages claimed were slightly under 3 per cent of one year’s gross profit. The hearing will continue tomorrow.