When Hamlet spoke of ‘the oppressor’s wrong, the proud man’s contumely’, he was cataloguing some of life’s downers. He would shortly come to the ‘insolence of office and the law’s delay.’ When lawyers talk of damages being awarded against a wrongdoer not just to compensate the injured plaintiff, but to teach the wrongdoer and others a lesson, they sometimes refer to ‘contumacious’ behaviour. ‘Contumely’ and ‘contumacy’ sound the same. We have the general idea that someone showing either quality is riding for a fall, but the Oxford English Dictionary shows the differences. ‘Contumely’ means ‘insolent reproach or abuse; insulting or contemptuous language or treatment….scornful rudeness; now esp. such as tends to dishonour or humiliate.’ ‘Contumacy’ means ‘perverse and obstinate resistance to authority.’ The first is ‘up you’ to the world in general or the person you are talking to, and the second is ‘up you’ to those in charge.
Most of us feel like that we have been on the wrong end of both contumely and contumacy when dealing with some government or corporate monolith. They can also misbehave badly in litigation. The Americans have a most apt term for these unruly heavyweights - an eight hundred pound gorilla. ‘Where does an eight hundred pound gorilla sit? Wherever it likes.’ Insurance companies used to provide the worst examples. Some did not have claims departments – they only had rejections departments. Nowadays it is the banks and communications companies, government entities and some airlines which put us off with a mechanised proud and insulting manner. While you wait for a seeming eternity to be despatched to some uncomprehending minion in another hemisphere, what is left of your brain is irradiated with computerised nonsense about what they have in store for other bunnies like you. You are left insulted to the point of outrage.
This kind of behaviour can sometimes land people in court. Sometimes it can happen on the way to court. For example, a shonky insurer after a widespread bushfire tells an insured whose $500, 000 house has been burned down that they can take $100,000 now or the insurer will see them in court in five years’ time if they are lucky. Or take a foreign media company that is sued for libel for saying that the parents of a dead child were responsible for the death of that child mauled by a neighbour’s pit bull terrier. The corporation has no defence, but it says that it will take every point that it can on pleading and discovery and send the grieving parents mad or bankrupt before they can even get before the jury.
Our laws dealing with procedure, say on the amount of damages or on the amount of costs and who must pay them, may help a little in dealing with this kind of thing in court, but otherwise we offer little redress for conduct outside court that most would see as an outrage or at least as an insult. If you go to a lawyer and complain that your gas supplier or your bank or your telephone company has just committed an outrage against you, your lawyer will say that you need more than the label ‘outrage’ before you can start a law suit against the wrongdoer. You need to prove facts that show a breach of contract or some recognised head of unlawful wrong, like a breach of contract, or a libel, a trespass, or nuisance or so on.
Things were different more than two thousand years ago under Roman law. Their 800 pound gorillas were rather more personal and lethal than ours, but their law did recognise the right of citizens to sue for wrongs called insult or outrage. (The Latin word is injuria, or injury.) We will look at the Roman right of action for ‘insult’, but it is not right to say that our law altogether ignores what might be termed insulting or insolent behaviour. For example, part of an award of damages for the wrong of defamation or libel is compensation for injury to feelings. Since most defamation will be offensive and insulting to the victim, this is important. This is to look at the wrong from the point of view of the victim, and repairing the insult is an important part of the process. Damages can also be increased because the conduct of the publisher was insulting or outrageous. A standard formulation refers to a ‘contumelious disregard of the rights of others.’ That could be a direct take from the Roman law of insult.
Sir Frederick Pollock was a distinguished jurist and historian of English law. In commenting upon damages for insult or outrage, Pollock referred to compensation that was payable in Anglo-Saxon times. He said that under a law of Elfward – in the tenth century, C E – ‘contumelious outrage’ was visited ‘with heavier fines than any but the gravest wounds.’ Sir Frederick went on : ‘In the modern common law, compensation for insult, as distinct from actual bodily hurt, is arrived at only in a somewhat indirect fashion, by giving juries a free hand in the measure of damages.’
We shall come back to this freedom on the measure of damages, or what is left of it, but the object of this paper is to look at some of the ways that our law and other legal systems might try to deal with the insulting or outrageous behaviour of 800 pound gorillas.
This discussion comes at a time when the press want to be free of the restraints on insulting or offensive behaviour on the ground of race – others would take the view that there you have the ideal wrong on which to leave a jury at large to reflect the community’s sense of outrage. The greedy or overbearing corporation, or the reluctant or the plainly guilty corporation, may be brought to heel, and to account, by many people uniting together to bring a class action. The class action is a form of procedure developed by the Americans as a form of social engineering to enable people to come together to get relief against the strong, but this note shall look only at laws that may affect one on one contests against nasty gorillas.
INSULT OR OUTRAGE IN ROMAN LAW
There was a kind of insult that Roman law gave redress for. It started as simple physical injury (iniuria) like our ‘trespass’, being possibly the only kind of insult that primitive people recognized. Over the centuries this wrong became extended to outrageous conduct at large. Any outrage or wanton infringement of rights would be an actionable ‘insult’ or injury. More than two thousand years ago, Roman law had evolved to give a remedy for any act which showed contempt for the personality of the victim or which was such as to lower the victim in the estimation of others – and it was so intended. Their law relating to defamation was narrower than ours because it required proof of intent, but it was also much broader than ours, because it did not require any publication to someone else.
It started with the Twelve Tables, a very old and primitive code (fifth century BC). That code contained provisions against insult or inuria mainly in the form of assault, with fixed money penalties. The old code was then expanded by a succession of judicial decrees or edicts. The first such edict stipulated that the plaintiff should specify the nature of the injury complained of and the amount claimed. The next dealt with public insult (convicium) and the action spread from there.
The essence of the wrong lay in intentionally injuring reputation or outraging feelings. Commonly, an injury to reputation will also hurt the feelings of the person defamed, but in Roman law, outrage itself was actionable. It followed that someone could sue on a publication that had not been made to anyone else. ‘Injury’ had come to extend to every kind of ‘wanton aggression’ upon a man’s person or personality – what we call an ‘affront’. The action rested on outraged feelings, not economic loss. Since the action was not connected to property, the damages were assessed according to the standing of the parties and the grossness of the outrage. The Institutes 4.4.12 provide:
The right of action is lost if a man conceals his feelings. Therefore if a man ‘abandons his injury’, that is, does not immediately resent it, he may not afterwards change his mind and revive an injury which he has once condoned.
The action resembled our suit for libel in that truth was a complete defence, which meant that there was no protection against raking up old stories – if they could be shown to be true. But the action might be available where there was no publication at all. For example, the seduction of a daughter could have been an ‘injury’ without any need to show any loss of services.
Although the texts refer to a ‘wanton interference with rights’, legal historians do not agree on whether the Romans had a general conception of abuse of rights. It is sufficient for our purposes that the Romans by their laws allowed compensation for conduct showing contempt for the personality of a person by outraging feelings or lowering their standing in the eyes of others. That is a law to protect the dignity of people. It is just the kind of law that is needed to deal with an 800 pound gorilla. Indeed, Sir Frederick Pollock said as much when he wrote that all the cases that allowed exemplary or punitive damages were cases that would have come within the Roman notion of inuria.
Gorillas in the jungle do not act out of malice; nor, it appears, do a lot of 800 pound gorillas act out of malice. Both sorts of gorilla just do what they do because that is the way that they are, the way that they are made. Gorillas have to eat to live and to protect their home and their young. Trading corporations are formed to make money, and if they do not make enough money, they are put to sleep. Neither form of gorilla knows the meaning of the word conscience. (We do have laws against unconscionable conduct, under both statute and the general law of equity, but for the most part they work so that the person imposed upon can set aside a transaction unconscionably entered into rather than recover compensation for that conduct.)
At the beginning of Richard II, a duel or trial by combat is proposed, and the king asks whether the dispute between the parties arises from ‘ancient malice.’ The word ‘malice’ comes from the Latin malus meaning bad, and means simply badness or wickedness. In law, it means an intention to do something against the law, and sometimes it means the kind of evil intent that aggravates the seriousness of the offence. ‘Malice aforethought’ is not used much now, but it denoted the intent required for the proof of some kinds of crime. Malice is also an element to be proved in the wrong of wrongful imprisonment.
Malice is referred to here because by our common law, malice may destroy a defence that would otherwise be available to an action for defamation. In The Common Law published in 1881, Oliver Wendell Holmes said:
It has been shown, in dealing with the criminal law, that when we call an act malicious in common speech, we mean that harm to another person was intended to come of it, and that such harm was desired for its own sake as an end in itself.
That is clear enough – as definitions go, it has not been improved on. The criminal law is more concerned with intent rather than motive, and for the purposes of the criminal law, ‘intent alone was found to be important, and to have the same consequences as intent with malevolence superadded.’
The civil law of libel or defamation does not require an intent by the publisher to injure someone as something that has to be proved against a publisher by a person suing on the ground that they have been hurt by the publication. The liability is what is known as strict – the victim does not have to prove any kind of fault. But sometimes this strict liability may impede communication where it is either necessary or desirable, as where someone asks me for a reference for someone applying for a job who has previously worked for me – and who did an awful job and who left a lot of money unaccounted for. The person asking for my comments will want to hear them, and they are likely to be better informed if I can talk to them without having to ask if I can prove everything I say in court if I get sued. For this purpose, the law says that on this occasion I have a privilege, or protection, from the law in responding – if I get sued, I will not have to prove the truth of what I say in order to defend myself.
The law calls this privilege a qualified privilege. I can lose this privilege if I am found to have acted out of malice. The person suing me would have to prove malice. This is Holmes again:
It is said that the plaintiff may meet a case of privilege thus made out on the part of the defendant by proving actual malice, that is, actual intent to cause the damage complained of. But how is this actual malice to be made out? It is by saying that the defendant knew the statement which he made was false, or that his untrue statements were … in excess of what the occasion required……It is for the public interest that people should be free to give the best information they can under certain circumstances without fear, but there is no public benefit in having lies told at any time; and when a charge is known to be false, or is in excess of what is required by the occasion, it is not necessary to make that charge in order to speak freely, and therefore it falls under the ordinary rule, that certain charges are made at the party’s peril, in case they turn out to be false, whether evil consequences were intended or not.
What malice means is an intent to harm and so, at common law, I can lose the protection of the law if I am found to have acted with the intention of hurting someone by what I say. We will see that the civil law in Europe gets to a similar result. It is hardly surprising that the law should treat differently a party who actually intends to hurt another person to a party who has no such intention – our law of wrongs for the most part turns on allegations that someone has done something wrong, that someone is ‘to blame’, but we will see that the press have been chipping away at this avenue of attack on wilful wrongdoers.
ABUSE OF RIGHT
Common lawyers think in terms of causes of action and legal compartments. They are keen on categories and labels. Even the requirements of ‘conscience’ are compartmentalised under the heading of ‘Equity’. Now and then some brave or hardy jurist makes a large statement, but it gets forgotten. For a while, there was a question whether the law in the late twentieth century might revive the medieval action on the case for damage suffered in a manner that was not lawful but which did not fall within any established cause of action. This attempt to revive the dead failed.
Sir Charles Bowen had said that at common law there was a cause of action whenever one person did damage to another wilfully and intentionally and without just cause or excuse. That large proposition also fell to earth, but it holds up well as statement of the law of France. Articles 1382 - 1383 of the French Civil Code provide as follows:
1382. Every act of man of what nature soever, which occasions damage to another, obliges him through whose fault it has happened, to repair it.
1383. Everyone is responsible for the damage which he has occasioned not only by his act, but also by his negligence or imprudence.
These laws are expressed in large terms. The French courts hold that ‘fault’ for the purpose of article 1382 may be found in an abuse of right. The abuse of a right may negative a defence based on the existence of a right. In that case, the abuse of right operates like malice to our qualified privilege. If you like, our excess of privilege is like their abuse of right – but only in one legal category, and not as a matter of general law.
There are many cases where a landowner has been found liable in damages for exercising rights in an abusive manner – as where the defendant erected on the land an enormous wooden tower with metal spikes to prevent his neighbour using his land as an airfield for hot-air balloons, or where the defendant ‘maliciously and capriciously’ grew giant ferns to darken the land of the plaintiff. Damages have been awarded if a contractor exercises rights in an unreasonable manner and so causes harm. Labour law will give damages for a ‘rupture abusive’ of an employment contract. Liability has even been imposed outside of employment, as where the court thinks that it was wrong for a party to an industrial dispute to call a strike or lock-out, or that a black ban or boycott was improper, or that a party improperly terminates precontractual negotiations – an abus du droit de rompre la negociation. The finding in the latter case was that the ‘fault’ lay in ‘wantonly and capriciously’ breaking off negotiations after the plaintiff had been induced to incur expenses in his reasonable expectation that a contract would be entered into. The German law covers the last by the Roman law culpa in contrahendo. We try to meet cases like the last with our law of unjust enrichment.
The doctrine of abuse of rights applies right across the law in France. We have seen instances of findings of ‘fault’ in the realm of property, contract, and labour law. In the laws of procedure, a party may be found to have been at ‘fault’ for bringing an action or taking steps in an action for the sole purpose of burdening the other side with costs. In some of these cases, the conduct may be actionable at common law, or leave the lawyers acting for the oppressor liable to an order for costs against them personally, but the French courts appear to have greater latitude. Punishing lawyers may not always work for the outraged litigant.
Article 823 of the German Code provides:
A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.
That is the German basis for a lot of our law of torts, but article 826 is much wider than our law:
A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage.
Art. 826 does not stipulate that the act must be done without legal right. It does not depend on malicious intent. It applies to intentional injury caused in a manner contrary to ‘public policy’. It differs from the French which negatives a defence based on a right that has been abused.
Article 138 provides that a contract that is contrary to public policy is void. These references to public policy make common lawyers very nervous. It is not hard to see the dangers that might arise if that latitude allowed to the courts to reflect on public policy – declared by whom? – fell into the wrong hands.
GOOD FAITH - EUROPE
It is common in Europe for the law require people to carry out their obligations under a contract in good faith. Bad faith looks very much like what we see when an 800 pound gorilla is on the rampage. How could, say, a dodgey insurer claim to be acting in good faith by rejecting or stalling on paying out on a claim duly made under a policy just to reduce the pay-out? This is welching – the insurer is not honouring the policy by granting the indemnity that the insured has paid for. In truth, one party is denying to or withholding from the other party the benefit of the contract.
The common law has turned its face against a general law to the effect of, say, Art. 242 of the German Civil Code (the Treu und Glauben provision) that people should carry out their contracts in good faith. The wording is: ‘An obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration.’ In spite of that wording, it is well settled that the obligation binds both parties.
The French Civil Code similarly provides with its customary economy:
1134. Contracts legally made have the force of law between those who have made them. They cannot be revoked but by their mutual consent, or for the causes which the law authorises. They must be well and faithfully fulfilled.
1135. Obligations bind not only to that which is expressed, but also to all the consequences which equity, custom or the law give to an obligation according to the nature of it.
These provisions would apply to the example of the dodgey insurer referred to above. They would not apply to the oppressive media litigant because there is no contract between the parties. That conduct is however in the back-yard of the court.
GOOD FAITH - AUSTRALIA
The common law aversion to a general obligation of good faith in contracts is a product of a long history that may not be satisfying in either logic or principle. The parties are said to be free to make what contract they like and the judges are said to be reluctant to do the parties’ job for them. The phrase ‘freedom of contract’ may be about as meaningful as ‘freedom of speech’ but it is in any event likely to be entirely illusory when one party is an eight hundred pound gorilla.
The common law, at least in the widest sense of that term, does have quite a lot to say about ‘good faith’, but for the most part our law of good faith is confined to relations involving trust or confidence. This division, or pigeon-holing, comes about as follows.
If you go into Myers and buy a hanky, or if you buy shares in Myers, you do not ordinarily come under a duty to Myers or its shareholders as a result of the transaction. You are there to look after yourself. So are Myers and its other shareholders. By and large it is a case of ‘buyer beware’ between you and Myers and the hanky. But if you go into Myers and get a job with them, or to become a director of the company, things are different. You are not there just to look after yourself - you are there to look after the interests of the company or its shareholders.
It is only natural, so our law goes, that in those dealings you will have duties and restraints that you would not have when you are not required to act in the interests of someone else - in those relationships that we refer to as being at ‘arm’s length’. This is because Myers or its shareholders are putting their faith and confidence in you as an employee or director. You hold what ordinary people - although not our law - would call a position of trust. It is a position that our law has sadly fixed with a very wobbly label – ‘fiduciary.’
How can you come to be in a position of trust? You can do so by agreement. You may agree to become an employee or a director of a company, or you may agree to act as a lawyer, accountant, financial adviser, broker or general agent, for someone else. Or you may agree to correspond with someone confidentially. Or you may agree to go into partnership, or negotiate to go into partnership, or, perhaps, into what you and your proposed ‘partners’ call a joint venture. In each of those cases, you would expect to be paid, or you would hope to derive a profit, but the real question in each case is whether, as a result of the agreement, you are obliged to act in the interests of the other party, and therefore you are in a position of trust. When I go into Myers to buy a hanky, they are not placing any confidence in me - but they do if I go in to work for them.
You do not have to enter into a binding contract to be in a position of trust. You can become what even the law calls a ‘trustee’ merely by saying that you hold property on trust for another. You can be put in a position of trust, or confidence, just by the nature of information that is confided to you. If you find in the street a document that is obviously confidential – say a list from a doping agency of footballers suspected of taking illegal drugs – you can be restrained from publishing it. You can become subject to the enforceable obligations of a fiduciary without any contract.