NONSUIT REFUSED

Evening Post, Volume CXI, Issue 78, 2 April 1931, Page 14

NONSUIT REFUSED

DEFAMATORY WORDS

DOCTOR'S LIBEL ACTION

"I think that the words " published were capable of a meaning reflecting upon the plaintiff's character and reputation as a professional man; and, the jury having found that the words were defamatory, in my opinion the verdict rau^ stand," said the Chief Justice (Sir Michael Myers in the course of a reserved judgment delivered yesterday on an application made for a nonsuit, which was raised during the libel action brought in the Supreme Court in Febvuary against Sun Newspapers, Ltd., by Dr. K. W. Bichards, of Wellington. At the trial the jury awarded Dr. Bichards £25 damages in respect of his £2000 claim, which was a sequel to a report in the Auckland "Sun" of a slander action taken by the doctor previously against an insurance society. .Counsel for Sun Newspapers, Ltd., at the conclusion of the plaintiff's case at the trial, moved for a nonsuit. The ■Chief Justice provisionally overruled the applteation, but reserved leave to the defendants to move later, and subsequently legal argument was heard on the nonsuit point. BOEDER-LINE CASE. The case, said his Honour in his judgment, was a border-line oue, and he confessed that he had had considerable difficulty in making up his mind upon it. Indeed, as the eases showed, the question as to whether or not words complained of as libellous were reasonably capable of a defamatory meaning had frequently given rise to- a similar difficulty and to a difference of opinion amongst Judges. . . In the present ease the publication complained of was a report, of an action tried in the Supreme1 Court -at Wellington and brought by Dr. Bichards against an insurance company based upon words clearly defamatory of the plaintiff, which were spoken by a nurse em-' ployed by the insurance, company to two women. . .' . The trial of the action against the insurance company occupied two days, 13th and 14th August) 1930, and reports of the proceedings appeared in the issues of the Auckland "Sun" of those two dates. The words actually complained of as defamatory were contained in 'the issue of 14th August, but as the reports in the two issues of the paper were connected, his Honour held that they should be read together for the purpose of ascertaining : whefher what appeared in the . issue of 14th August was capable of a libellous meaning. . ) THE SECOND REPORT. His Honour ruled that the only inference to be drawn from the second report, which appeared "with three very conspicuous headlines: 'Slander Action ( Pails.' 'Doctor's1 Claim for £1000.' 'Nurse's Words Privileged'," waß that the trial had been completed; that'the plaintiff's action had failed, and had failed because the nurse's words were spoken bona fide and without malice. In point of fact all that was untrue. On the contrary, it had been held that there-was evidence of malice. The case went to the jury, who found that there was malice and awarded Dr. Bichards £25 damages. The question in the present action was whether the words complained of were reasonably capable of a defamatory meaning. FALSE IMPRESSION CONVEYED. • "After much consideration," continued the judgment, "I have come to the conclusion that the words were in themselves capable of a'defamatory meaning." ... In • the slander action against the insurance company Dr. Bichards, in fact, had completely cleared his professional character and reputation, though' a perusal o£ the report in the newspaper tended to convey j the contrary impression to its readers. It would be unfortunate in those circumstances if the, plaintiff were without redress. . . • The defendants' motion for nonsuit ,was dismissed and judgment was entered for Dr. Bichards for £25 as awarded by the jury, together with scale costs and disbursements. His Honour certified that the action was a proper one to bring, and also allowed the plaintiff £7 7s costs of the motion for nonsuit and second counsel's fee £4 4s. ' "' At the hearing Mr. H. F. O'Leary appeared for the defendants in support of the motion for nonsuit, and Mr. A. Gray,,K.C., with Mr. J: S. Hanna, for Dr. Bichards to oppose the application.