The Jefferson Cumberbatch Column – The Ordinary Reasonable Reader

The individual at caption may not really exist. He, or she is no more than an anthropomorphic conception of justice, much like the reasonable man in negligence cases by means of whose presumed conduct it is determined whether there has or has not been a breach of the duty of care.

The ordinary reasonable reader, on the other hand, is used to determine the meaning of the words used where it is alleged that these convey an imputation defamatory of the claimant in defamation cases. This conception has been variously formulated. One English case describes him or her thusly-

The ordinary, reasonable reader is not naïve; he can read between the lines. But he is not unduly suspicious. He is not avid for scandal. He would not select one bad meaning where other, non-defamatory meanings are available”.

And, according to another-

The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs…”

I have often wondered whether the ordinary reasonable reader in the Commonwealth Caribbean is of an identical bent, given our notorious readiness to read the worst into nearly every circumstance and to leap to the defamatory rather than innocent conclusion.

This precise issue arose in a relatively recent Jamaican case, Deandra Chung v Future Services International Ltd et al.

We have all seen those types of notices in the press before. One business concern or another publishes that a former named employee is precisely that (no longer employed by the concern) and that the public is thereby warned not to transact any business with that individual where he or she claims to be acting on behalf of the company.

Ms Chung voluntarily resigned from the defendant company at which she had been employed on February 6, 2012. A few days later, the company, FSI, caused to be published the following words in the Daily Gleaner-

NOTICEThe public is hereby advised that Miss

Deandra Chung is no longer employed to Future

Services International Ltd and is therefore not

authorized to conduct any business on our behalf.”

Ms Chung was not amused. She filed an action for libel, as it then was called in Jamaica, pleading that the words meant and were understood to mean that “the Claimant’s termination of employment was such as to warrant notification to the public at large and that the Claimant was at the time (post resignation) engaging in conduct which was detrimental to the company and which warranted the public being warned”.

She also pleaded that there was an innuendo (hidden meaning) to that effect and sought to justify these claims by the following particulars-

It is commonly known by right thinking Jamaicans that such publications is [sic] warranted in circumstances where ex-employees are dishonest, thieves, fraudsters and are purporting the [sic] act for their ex-employers for the benefit of the ex-employees.”

The company denied that the words were capable of bearing the meanings pleaded by Ms Chung and that they meant precisely what they said and nothing more.

At the trial of the matter, the judge, McIntosh J., dismissed the claim with costs and Ms Chung appealed, notably on a ground that “(b). The judge failed to demonstrate that he considered the words complained of in the context of the Jamaican society and the meaning that would be ascribed to the words complained of by the average Jamaican”

In a most lucid judgment and relying on previous authority, Justice of Appeal Morrison who gave the decision of the Court restated the well-accepted principles that in considering a publication that is alleged to be libelous, the court should give the words complained of the natural and ordinary meaning that they would have conveyed to the ordinary, reasonable and fair-minded reader; that is, a person who is not naïve, unduly suspicious or avid for scandal and that applying this criterion, the judge must determine the single meaning which the publication might be apt to convey to the notional reasonable reader and to base his consideration on the assumption that this was the one sense in which all readers would have understood it.

In applying these principles to the facts of the case, he concluded, “In my view, the ordinary, reasonable and fair-minded reader of this notice would take it to mean no more than it said, viz, that the appellant was no longer employed to the 1st respondent and that she was as a result not authorized to conduct any business on its behalf. Such a reader would appreciate, I think, that persons leave the employment of other persons for a variety of reasons, including, as in this case, resignation of their own volition, or other reasons not necessarily reflecting on their honesty or competence. It seems to me that it would take a reader who is either unduly suspicious or especially astute to discover scandal at every turn, to, assuming the worst, attribute to the notice in this case the meanings that (a) the appellant’s employment was terminated for misconduct by the 1st respondent and (b) after the termination, the appellant was engaging in conduct detrimental to the 1st respondent, making it necessary to warn the public”.

I chose to discuss this case in this space today because I do believe that most Barbadian readers commonly tend to think, as Ms Chung’s counsel pleaded in his particulars of Jamaicans, that that such publications are warranted only “in circumstances where ex-employees are dishonest, thieves, fraudsters and are purporting to act for their ex-employers for the benefit of the ex-employees.”

If so, then we are not acting as ordinary reasonable readers. How many of my readers believe that a press report of any person charged means that he or she must be guilty of the offence alleged and that his or her subsequent acquittal must have been owed purely to a technicality… or worse?

20 comments

  • Wily has a question for JEFF….

    Are these type of announcements in the PRESS the NORM for dismissed, resigned employees etc ?

    If so then the plaintiff was not justified, however if these announcements are not the NORM then plaintiff has justification and JUSTICE is flawed.

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  • I do agree with the court ruling
    However people do have inquisitive minds but in that case the Company did not even mentioned termination which can draw a suspicion of wrong doing in the minds of the reader
    The notice was simple and drawing or concluding that a bad deed was done and cause for termination of Mrs. Chung would be hard to imply

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  • @Wily

    The practice is that certain job types see the names being published. You observe it a lot with insurance salesmen and people that solicit business from the public where exchange of monies feature.

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  • The question DAVID, are these announcements the NORM, IE made for more than 50% of all employees leaving employment for whatever reason. If this in NOT THE CASE then readers of these type of announcements will assume the individual is doing something detrimental to the posting agency.

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  • @Wily Coyote

    One would have to guess the notice is placed for certain employees given the infrequent placements. This is a simple observation.

    Liked by 1 person

  • @ Jeff
    Thanks for a very informative article. The subject has been of concern to me for many years.

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  • Mr Cumberbatch

    have you read the CoA decision re Omar Holder? if so what are your thoughts?

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  • Maybe I am among the unreasonable people having a vivid imagination. When I see these sorts of notices I envisage the ex-employee persisting in selling and collecting goods and services on behalf of the former employer( and retaining the proceeds for personal gain) in the fugue before it becomes generally known that there was a parting of the ways. The CCJ reading of the matter would be interesting.

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  • What is reasonable ? Who determines what is reasonable? Slavery at one time was considered reasonable by a host of people and those who opposed were held to be unreasonable. So if the majority say something is reasonable it must be so as was the case with slavery ?

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  • David

    if this comes through could you kindly make this a separate topic

    OMAR DACOSTA HOLDER v THE QUEEN BDOS CA 2019 ORAL STATEMENTS MADE BY ACCUSED.pdf

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  • @ Robert Lucas

    In some companies when an employee is terminated or leaves , they change the office locks. Are we to assume that they believe the former employee will break and enter or is it just for security purposes ?
    I think as we plough our way into attracting businesses from different corporate cultures, we are going to confront many changes in relation to employer /employee relations.
    We may need to make many psychological changes in order to find and keep employment.
    You know the old saying: he who pays the piper ……

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  • Are these notices a legacy of our colonial history? I have never seen them in North American newspapers. In most companies that I’m familiar with when employees leave their access to internal company information is revoked and they are asked to return ‘‘pass cards” etc.

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  • de pedantic Dribbler

    Mr Blogmaster, it seems that you make the blogger @Willy’s point when he suggests it’s unfair to the terminated person with your comment One would have to guess the notice is placed for certain employees given the infrequent placements.

    What does one reasonably infer then about these certain employees

    To solicit money on behalf of a company for whom you are not working is fraud which should involve law enforcement if done.

    So that should not be a reason for such notification… the law is there for that.

    Further, one presumes this is relevant principally where the employee is interacting with clients outside the company’s office location…thus one can further assume that either a new person takes the role or another person like a manager canvasses those clients to update them on the change…via direct contact, email or other.

    Again, thus no real reason for that style public notification!

    As @Sargeant surmised is this a bad legacy of our past..

    It can cast an unnecessary shadow over the employee..

    Particularly in a social climate where every nuance of words can be misconstrued so easily as negative…just ask any political candidate in Bim (that decimal trope) or like Joe Biden who has had to defend rather innocuous remarks because folks jumped on the negative inference when so called REASONABLE man could easily have accepted a benign view.

    The courts have adopted a very tight legal definition of modern day reasonableness.

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  • @Dee Word

    The blogmaster sought to answer Wily as forthrightly as was possible given the anecdotal nature of the matter at hand.

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  • @ William Skinner August 11, 2019 10:26 AM

    “In some companies when an employee is terminated or leaves , they change the office locks. Are we to assume that they believe the former employee will break and enter or is it just for security purposes ? “

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  • @ William Skinner August 11, 2019 10:26 AM
    “In some companies when an employee is terminated or leaves , they change the office locks. Are we to assume that they believe the former employee will break and enter or is it just for security purposes ? “

    It is both. Nevertheless what is there to stop a former worker from collecting monies in the fugue before it becomes general knowledge that there was a parting of the ways.

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  • @David BU, apologies for making the request here, but I don’t know how else to do it.
    The story on page 1 of today’s Nation about the squatters living in Rock Hall is vexing and you need to place it on blog so that all of us can’t attempt to pressure the government into doing the right thing. The statement attributed the M.P Indar Weir is ridiculous and we need to call him out.

    P.S. PLEASE DON’T RESPONSE TO MY REQUEST UNDER JEFF’s TOPIC….WAIT UNTIL BOSSMAN DAVID/BU POST THE TOPIC FOR DISCUSSION.

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  • @David

    “One would have to guess the notice is placed for certain employees given the INFREQUENT PLACEMENTS.”

    The above statement makes my ARGUMENT, as these postings are infrequent and only published in certain circumstances in respect to known or suspected previous employee indiscretions. Then one can only assume and interpret any such postings as reflecting negatively on said employee. Publishing such an announcement without knowledge and proof of said employees negative intentions is libelous..

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  • I agree with Wily. The issue is not just the nature of the words and structure of the words but the context.

    The context can be broader than whether the reader did more than just read the literal meaning.

    If such announcements were not the norm, then by placing such an announcement the company inferred in context, that the lady left in less than amicable circumstances or at least, circumstances out of the ordinary.

    Surely we may suggest that a writer or journalist, a good one anyway, can construct a phrase to convey more than the literal meaning and the same phrase in two different circumstances means different things.

    How about the Bajan phrase ”yuh friend ova there”.

    That can have multiple meanings, yes? Context is everything.

    The next thing is whether the issue is absolute or one of degree.

    I would suggest, that if the company were trying to protect itself in the normal course of proceedings, a caveat should have been added that ”this notice is a matter of record and does not in any way imply nor impinge on the integrity of the former employee, who has no history of misconduct or otherwise with the company”.

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  • @Jeff
    Here is a topic I would like to see you take a stab at
    Typographical errors, grammatical errors and bad laws…/

    Like

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