Architect's Claim for Damages

Progress, Volume XIII, Issue 1, 1 September 1917, Page 18

Architect's Claim for Damages

Case in. Auckland A claim for damages for an alleged slanderous statement made in connection with the erection of the Grand Picture Theatre, Queen Street, was made last month, says the “Herald” before Mr. Justice Cooper and a jury of 12. The plaintiff was Benjamin Charles Chilwell (Mr. Haddow), a member of the firm of Chilwell and Trevithick, architects. The defendant was Richard Webster (Mr. Ostler), overseer, and sometimes clerk of works, of Auckland. The plaintiff was appointed by Messrs. Webster and Tonks as architect in charge of the construction of the Grand Theatre. The defendant was engaged as clerk of works on the building, the contractors for the, erection of which were Messrs. Johns and Sons. The statement forming the basis of the action was alleged to have been made by the defendant to Robert Malcolm, a retired builder. The words were set out in the statement of claim as follows:—“The cellar walls were specified to be directly under the main walls. Instead they were put in inside the main walls. By doing it that way the contractor saves money and the owner loses space. I had no instructions and it was done by the architect. The architect made no deduction. If that is not collusion 1 do not know what is. I have a book that Chilwell would give £IOO for.” The statement of claim set out two further causes of action. One was in respect to a statement, made to J. Butterworth, asphalt expert, on February 28th, 1916, on which occasion the defendant was alleged to have said;“lt is a rotten job; it is a slummocky job.” The second was a statement allegedly made to William Pardington, master plasterer, of Auckland, consisting of the following words:—“Those two are working into each other’s bauds. I have a hook in my pocket they would give a few hundreds for.” The plaintiff asserted that the words were false and malicious, and meant that the plaintiff had been

guilty of deliberate fraud in favour of the contractors upon the owners of the building for pecuniary reward; that the plaintiff had been guilty of gross negligence in his capacity as architect; and that the plaintiff and the contractors had fraudulently conspired together. The plaintiff contended that he had suffered material damage in his profession, and he therefore claimed £5Ol damages in respect to each cause of action or alleged slanderous statement —a total claim, of £1503.

The defendant denied having made the alleged slanderous statements. As an alternative defence he asserted that if the words were spoken, they did not refer to the plaintiff's profession, or to the plaintiff in relation thereto; they were not defamatory or slanderous in their ordinary natural meaning. The words did not bear, nor were they capable of bearing, the meaning alleged by the plaintiff; they were spoken without malice and in the belief that they were true, and, in the circumstances, they constituted a privileged communication; that in so far as the words consisted of statements of fact, they were fair and bona-fide comment, In support of his defence the defendant quoted some facts regarding a civil action instituted by the contractors of the Grand Theatre against the owners, claiming a balance of contract moneys due.

_ The Court set the question of the final certificate aside on. a principle of law recently laid down in the English Courts, that such certificates are not final when a dispute arises between the parties. In regard to the third cause of action the defendant contended that that was barred bv the Statute of Limitations.

The only evidence heard before the Court adjourned for the day was that of J. ButterAVorth, who testified to the conversation between him and the defendant.

When the Court resumed, Robert Malcolm, a retired builder, detailed conversations he had had with the defendant regarding the erection of the Grand Theatre. At this stage counsel for defence raised an objection to the evidence of William Pardington, master plasterer, being taken. Mr. Ostler said the third cause of action was barred by the Statute of Limitations, and the plaintiff was endeavouring to introduce the evidence as showing malice on the part of the defendant against the plaintiff. The plaintiff alleged that the remarks of the defendant had reflected on him in his profession. The defence consisted of a denial of the allegations.. Tf, however, it was proved that the words Avere used the defendant pleaded that they were fair comment on facts, and were, therefore, privileged. Thev were not used so as to affect the plaintiff in the practice of his profession.

His Honor said the third cause of action could not be sustained, because of the reason stated by Mr Ostler. He considered, however, that the evidence of Mr. Pardington could be accepted as showing the state of the feeling between the plaintiff and the defendant Counsel for plaintiff asked if the third cause of action could be struck out of the claim, but His Honor said he would have to give judgment for the defendant on it.

Mr. Pardington proceeded to give his evidence, which related to the conversation he had had with the defendant.

"William Cornelius Johns, contractor for the Grand Theatre, and William E. Johns, foreman on the work, also gave evidence.

In his evidence the plaintiff outlined several disagreements he bad had with the defendant concerning the manner in which certain of the work had been allowed to be carried out. His cross-examination occupied the whole of the afternoon. He admitted that he did not consult with the owners regarding all the variations and deviations in the contract. He did not consult with them regarding the substitution of a cheaper material for Fama flooring, but he did consult with the theatre proprietors, who were interested in the erection of the building. ' If a cheap material was substituted for a dear material there should be a corresponding deduction in the contract price, unless other work of a similar value was carried out. He did not make a deduction in connection with the flooring material because other work equal to the difference in the cost of the two flooring materials was done on the floor.

In opening the ease for the defence, Mr. Ostler moved for a nonsuit in respect to the second cause of action on the following grounds:—That the words alleged to have been used by the defendant—it is a rotten job; it is a slummocky job—are not in their ordinary and natural meaning capable of bearing a defamatory meaning, and do not in the circumstances of the present case refer to the plaintiff; that notwithstanding the fact that the words may affect the reputation of the architect, yet inasmuch as they refer to the job and not directly to the architect, they are not words spoken of the plaintiff in relation to his profession.

Counsel was granted leave to defer argument on the nonsuit points raised. Mr. Ostler outlined his defence in respect to the first cause of action prior to the adjournment of the Court.

At the next day's bearing considerable argument took place on the question of the pleas of justification and privilege and fair comment adopted by the defendant. On account, of the illness of one of the chief witnesses for the defence, and in order to shorten the proceedings, Mr. Ostler agreed to abandon the plea of justification and to confine his evidence to a short history of the case, evidence in rebuttal of malice and a denial that the words were uttered. In regard to the pleas of privilege and fair comment, the defendant quoted some particulars in his statement of defence relating to a civil action that had been instituted by the builders of the Grand Theatre against the owners, claiming a balance of contract moneys alleged to be due. It was alleged that the plaintiff, as architect, gave the builder a final certificate without hearing the owners, although he knew that the owners claimed that the contract had not been carried out according to the specifications. The owners claimed that this final certificate was not binding upon them, and succeeded m establishing this by a judgment of the Court. The evidence of Josiah T). Webster, one of the owners of the Grand Theatre, and his cross-examin-ation, was confined chiefly to a history of the contract. He said that when he entered into the contract he was unaware that he gave the architect power to make any

alterations or variations in the contract. The plaintiff had consulted him and his co-owner on two occasions only in regard to variations. The plaintiff did not notify him when the building was completed, nor invite him to inspect the theatre. A day or two after the issuing of the final certificate witness asked the plaintiff if the owners were not entitled to a refund for works specified in the contract, and not put in the building. The plaintiff was of opinion that the owners were not entitled to any refund. Harry C. Tonks, part-owner with the previous witness in the Grand Theatre, also gave evidence. In the course of his evidence the defendant emphatically denied making use of the words attributed to him by the witness Malcolm, which words comprised the allegations in the first cause of action. The erection of the Grand Theatre was not mentioned in the conversation referred to by Malcolm, nor at any other time. He had never mentioned the word "collusion" in connection with the Grand Theatre or the plaintiff. He admitted saying to the witness Butterworth that the building was a "slummocky job and a rotten job." He was still of that opinion. The conversation with the witness Pardington had reference to the material that was being laid on the floors in substitution of Fama flooring, which was specified in the contract. Pardington at first asserted that the material was Fama, but he subsequently admitted that it was not. The plaintiff was not referred to in the conversation with Pardington. After the defendant had been crossexamined the Court adjourned.

The morning of the fourth day of the hearingwas taken up with counsel's address and the Judge's summing up. After a retirement of three hours'the jury found that in the first cause of action the Avords were not uttered and that in the second cause of action the words were uttered about the plaintiff, that they were defamatory, but were uttered without malice. Damages of one farthing were awarded. Mr. Ostler, for defendent, moved for judgment on the findings.

Mr. Haddow, for plaintiff, moved for judgment on the second cause of action.

His Honor said on the findings of the jury, judgment must go for defendent on the first cause of action, as well as on the third cause, to which the Statute of Limitations applied. Both parties had moved for judgment on the second cause of action, and the matter resolved itself into a question of costs. On tin 1 findings they must assume that plaintiff had never been charged with collusion. He suggested that a conference between counsel would probably clear the matter. He understood defendent was willing to apologise for anything he might, have said which could be interpreted to the detriment of plaintiff.

Mr. Ostler said defendant was prepared to say he never uttered the words attributed to him in the first cause of action, and that he had never wished to make anv reflection on the character of the architect. The finest ion of costs was held over, pending- the result of a conference between the parties. •' Application for a new trial has been made on the grounds that the verdict was against the weight of evidence, and that the damages of |d. was insufficient,