DOCTORS AT LAW.

Otago Witness, Issue 3886, 4 September 1928, Page 36

DOCTORS AT LAW.

CASE OF STEWART v. BIGGS. RULING OF APPEAL COURT. WELLINGTON, August 27. The Appeal Court gave judgment today in the case of Dr J. G. Stewart v. Dr A. C. Biggs. The judgment of Mr Justice Ostler, Mr Justice Blair, and Mr Justice Smith was that the words complained of were prima facie defamitory, and that there was given in the court below sufficient evidence of malice to go to a jury. The appeal was therefore allowed, v 7 ith costs on the lowest scale as from a distance. Mr Justice Reed dissented from the above decision, holding that, in his opinion, there was not sufficient evidence of malice for the case to go to a jury. The case was heard on July 17. The appellant is a medical practitioner, of Milton, and the respondent is the superintendent of the South Otago Hospital Board, at Balclutha. The case arose out of a statement made to the board by the respondent, in consequence of which the appellant brought an action for libel, in which the jury awarded him £25, but the judge found for respondent, holding the occasion privileged. Mr J. S. Sinclair, in opening the case for respondent, stated that his defence was based on two grounds - —(1) That justification for the statement was proved at the trial notwithstanding the finding of the jury; (2) that there was no evidence of malice given in the court below to go to <a jury. The charge complained of, as „ made by respondent, was that appellant had endeavoured to get a woman suffering from mumps—an infectious disease • —into three different maternity homes in Dunedin. This respondent was justified in saying, as the statement was perfectly true. The latter part of the statement referring to women and babies was merely explanatory of the fact that these homes were not empty. Assuming that the words were untrue, then the contention was that the occasion on which the statement was made was privileged, and on a privileged occasion as much latitude as possible must be given to the person making a statement. Assuming, further, that the occasion was privileged, the law then was that malice was not presumed. Respondent here started off with a clear character, and the onus was upon appellant to prove affirmatively that this statement was prompted by malicious motives. It was submitted that he had failed to do this. Dealing with the question of privilege, Mr H. E. Barrowclough (for appellant) contended that not every statement made on a privileegd occasion was covered by privilege. Privilege extended to everything that was reasonably necessary to be said on a privileged occasion, but it could not be confidently asserted that the statement made by Dr Biggs was reasonable and necessary. The presence of the press at the meeting did not affect this position. Further, privilege was co extensive with duty, and if Dr Biggs had any duty on which to base his privilege it was a duty to investigate, and not to make it known to the whole of South Otago. The evidence given in the court below clearly established malice on the part of the respondent. There was certainly sufficient evidence for the matter to be left to the jury. This evidence as to malice fell under two heads— (1) As"" to the facts anterior to the statement complained of; the respondent’s actions at this time showed unreasoning prejudice towards appellant; and (2) evidence as to ill-feeling at the time of the statement. The language used on this occasion was extravagant, and went further than was necessary in the circumstances. The plea of justification raised by the spondent in the court below was not substantiated, and the jury found that the respondent did not honestly believe the words he used to be true.