the injurious falsehood claim
195 Innotek's claim against the respondents for injurious falsehood alleged that the representations already relied upon for its claims under the Act were similarly false for the purposes of this tort. It was also claimed that these representations were made in the knowledge that they were untrue (or at least with reckless disregard as to their truth) and with the intention of discouraging purchasers from acquiring its products, and thereby destroying its business. The claim for injurious falsehood was, of course, brought in the accrued jurisdiction of the Court.
196 The tort of injurious falsehood had its origins towards the end of the sixteenth century in cases involving a challenge to the plaintiff's title to land, thereby prejudicing his efforts to dispose of it. From this association the tort acquired the name "slander of title". Gradually, its scope expanded to cover disparaging remarks not only as to title, but also as to the quality of land or goods. Thus knowingly making a false assertion that the plaintiff's products were inferior, a lie calculated to injure that person in his trade, could give rise to liability.
197 Fleming, in The Law of Torts (9th ed, 1998), comments that today the tort is broad enough to encompass any damaging falsehood which interferes with prospective advantage, even of a non-commercial nature. The modern term for the tort is that coined by Salmond, "injurious falsehood".
198 In some respects, this tort bears a marked resemblance to defamation. Both involve a false and harmful imputation concerning the plaintiff which is made to a third party. They differ, however, in that the law of defamation protects interests in personal reputation while injurious falsehood protects interests in the disposability of a person's property, products or business. Defamation is generally actionable without proof of damage. Falsehood is presumed and liability is strict. In an action for injurious falsehood, the plaintiff must prove that he sustained actual economic loss, that the offending statement was false, and that it was made with intent to cause injury without lawful justification. The requisite state of mind is often described as malice.
199 Injurious falsehood, then, according to Fleming, consists in the publication of false statements, whether oral or in writing, concerning the plaintiff or his property, calculated to induce others not to deal with him. The falsehood must relate to the plaintiff's goods, and must be published with "malice". Originally, the averment of malice was said to have been only a superfluous pleading form, meaning nothing more than that the words were published with intent to disparage the plaintiff's title. Later however, it came to be treated as a separate element, and, as Fleming comments at 780:
"…today the dominant view seems to be that malice, in the sense of some indirect, dishonest or improper motive, or at any rate an intent to injure without just cause or excuse, must be proved by the plaintiff. It is sufficient evidence of malice that the defendant knew the disparaging statement to be false… Conversely, an honest belief in an unfounded claim is not actionable; nor is mere carelessness (in contrast to recklessness or conscious indifference to truth), …"
200 In Rogers, Winfield & Jolowicz on Tort (14th ed, 1994), the learned authors comment that malice is never easy to define in the law of tort. They say, at 307-308:
"The requirement is fulfilled if the defendant knows that the statement is false or if he is reckless, ie. makes the statement not caring whether it is true or false… However, even if the defendant does believe that untrue statement there may still be malice if he is actuated by some indirect, dishonest or improper motive …"
201 The leading case regarding this tort is Ratcliffe v Evans [1982] 2 QB 524. Though an action for injurious falsehood may be available in conjunction with an action for defamation, a publication need not be defamatory to ground an action for injurious falsehood.
202 Halsbury's Laws of Australia, vol 10, pars [145-835]-[145-845] asserts that malice may not be inferred from the fact of publication but will be inferred where a false publication was made with an intent to injure without just cause, and knowledge of the falsity or reckless indifference as to its truth or falsity. No action will lie where the false publication was made with mere lack of care or with an honest belief in its truth.
203 Innotek's claim against the respondents for injurious falsehood overcomes the first hurdle, namely proof of a false publication. I have already found that a number of the factual allegations made by Mr Apostolides regarding its products were false. Its electronic dog collars do not inflict a 3,000 volt shock upon dogs. Nor do they inflict burns, or cause 60 kg dogs to flip into the air, or to suffer brain damage. These statements were made by the RSPCA through Mr Apostolides. They were published in the Herald Sun article as he knew they would be, and as he intended.
204 It is plain that a number of these statements were directed against Innotek's own products, and not against electronic dog training devices generally. Two of the photographs contained in the article were of Innotek collars, as Mr Apostolides, who arranged for them to be taken, well knew.
205 Although Innotek is not the sole manufacturer and supplier of electronic dog collars in this country, it is a major player in that market. It is obvious that an article in a tabloid newspaper such as the Herald Sun, containing a heading emblazoned with the emotive words "Tortured Pets", and featuring Innotek's distinctive collar in close proximity to injured dogs, was calculated to cause significant harm to its business. It was likely that such an article would dissuade prospective purchasers from acquiring its products. There was evidence that this is precisely what occurred in Victoria after the article appeared.
206 However, in order to succeed in its claim for injurious falsehood, Innotek must prove that the statements made by Dr Wirth and Mr Apostolides were made with malice, that is with knowledge that they were false, or with reckless disregard as to their truth or falsity.
207 It is first necessary to consider in some detail the evidence of Mr Apostolides. He was the prosecutor in the van Ree case and also had an involvement with the Armitage matter.
208 He was asked to recount the circumstances surrounding his interview with Mr Papps. He said that that particular journalist contacted the RSPCA on a fairly regular basis in relation to its investigations. He had been directed to Mr Apostolides for comment regarding the van Ree and Armitage matters, and also in relation to electronic collars generally.
209 Mr Apostolides said that he spoke to Mr Papps briefly over the telephone and then arranged for him to come out and interview him in person. The interview took place at RSPCA headquarters, and lasted in excess of two hours. He said that it was he who had told Mr Papps that dogs had "died after being given the shock therapy". He said that the basis for that comment was a call that he had received about 10 days prior to the interview from a woman who sounded distressed. She told him that her German Shepherd had been boarded at a kennel, and had had an electronic collar attached to it by the owners. This had been done because the dog had been fretting and barking continuously. She had had no knowledge of it. When she collected the dog, she observed that it was fitting, and took it to the vet. It subsequently died. The conversation with the woman formed the basis of "Case Two" in the article.
210 Mr Apostolides also conceded that it was he who had told Mr Papps that the Malamute dog, the subject of the Armitage matter, had been put down. He said that his interstate counterparts had told him of their experiences with electronic dog collars, and that in some cases, their use had resulted in dogs being put down or dying.
211 Mr Apostolides was then asked about the 60 kg dog which was said to have been flipped into the air. He agreed that he had related this incident to Mr Papps, though he could not recall actually using the word "flipped". He said that he told Mr Papps that the complainant in the Armitage matter was in fact the owner of the Malamute, and that that dog had been observed to be doing "backflips". He also said that there were a number of witnesses who had observed this happening, but had refused to provide statements to that effect.
212 Mr Apostolides agreed that he had shown Mr Papps photographs of the dog, including an area of its neck that he claimed had been deliberately shaved so that better contact could be achieved for the collar. He said that he understood that the electrodes on the collar had caused significant injury to the dog's neck. He told Mr Papps that the dog had inexplicably attacked its owner after it was returned to him, and had had to be destroyed. He also told Mr Papps that the owner's belief was that the dog had been affected by the collar, and that it had suffered some sort of "brain damage". In substance, he claimed that the references to the Malamute in the article attributed comments to him which were in fact made by its owner. He said that he had no belief as to whether these comments were correct.
213 As regards the reference in the article to the collars' inflicting 3,000 volt shocks, Mr Apostolides said that as a result of its investigation in the Armitage matter, the RSPCA had engaged Mr Collins to test the collar found on that dog. He said that he had discussed Mr Collins' findings with Mr Papps, and had provided him with a copy of the expert's report. He denied having told Mr Papps that the test showed that the collars inflicted a 3,000 volt shock. He claimed that what he said was that the expert had found that the collar "put out 3,000 volts". He agreed that he had said that "in many cases" the collars inflicted burns, and that the electrodes became stuck into the skin. He said that the basis for these statements was the veterinary reports on the dogs in the van Ree and Armitage matters, and also reports of interstate prosecutions.
214 Mr Apostolides was asked about a photograph which appeared in the article showing an electronic dog collar adjacent to his forearm. He said that Mr Papps had brought the collar with him to the interview and that it was, in fact, an Innotek collar. The caption to that photograph asserted that it showed an RSPCA inspector demonstrating how one shock burns the skin. The photograph showed the two electrodes on the collar separated by a plastic probe (which does not emit current) next to what appear to be three red marks on human skin. Mr Apostolides said that he had used the collar on his arm on a number of occasions shortly before the interview, and it had left a number of marks. There was no explanation as to why the activation of two electrodes should result in three distinct marks.
215 Under cross-examination, Mr Apostolides conceded that, in his affidavit of 11 September 2000, he had not mentioned of a number of the matters about which he later gave evidence-in-chief. He could not produce any record to substantiate his claim regarding the German Shepherd. He said that he rarely spoke with Dr Wirth, and would not have been the source of his comments that the collars had caused "epileptic fits, vomiting, seizures, burning and bleeding". He agreed that, at the time of the interview, he had been aware that, on 20 July 2000, the Armitage case had been dismissed. He agreed that although he had told Mr Papps that anyone using, selling or possessing a collar in New South Wales faced a fine of up to $5,000, and six months' imprisonment, he had been aware that there had been a case involving a man named Driver in which a District Court Judge had dismissed a charge arising out of the possession of such a collar.
216 When questioned about the statement in the article that the collars inflicted 3,000 volt shocks, Mr Apostolides insisted that he had said no such thing. He maintained that all he had told Mr Papps was that they "put out" 3,000 volts. He also agreed that he had provided Mr Papps with a copy of Mr Collins' report.
217 Mr Apostolides conceded that he read the article when it was published. He agreed that he took no steps to have Mr Papps correct any of the errors contained within it. He said that he was not an electrician, and did not understand much of what was contained in Mr Collins' report.
218 Mr Apostolides was the main source of the statements in the article which I have found to be false. Innotek must establish that, when he made those statements, he either knew that they were untrue, or made them without regard to their truth.
219 Having given careful consideration to this matter, I am not persuaded that Mr Apostolides made these statements with either state of mind. I should say at once that I have found his evidence concerning his remark to Mr Papps about the collars having a capacity to "put out" 3,000 volts unconvincing. I prefer the evidence of Mr Papps who said that Mr Apostolides told him precisely what he recorded in the article, namely that the collars could inflict a "3,000 volt shock". The latter formulation is precisely what I would expect a layman, confronted with a report prepared by an electrical engineer which he found difficult to understand, to use. In my view, Mr Apostolides introduced the notion of "putting out" 3,000 volts in order to mitigate the damaging effect of what he had said. Notwithstanding this fact, I cannot conclude that he was aware, when he spoke to Mr Papps, that what he was saying was false.
220 Nor do I think that Mr Apostolides ever adverted to the possibility that what he was saying about the 3,000 volt shock inflicted by the collars might be untrue. He struck me as having no idea of the difference between current and voltage. It might be said that he acted carelessly in telling Mr Papps that an Innotek collar had been tested and could inflict a 3,000 volt shock. Carelessness is not, however, tantamount to recklessness, and is certainly insufficient to give rise to liability for injurious falsehood.
221 Mr Apostolides' statement to Mr Papps to the effect that dogs had died after using the collars was plainly misleading, if not false. So too was his observation that the RSPCA had seen several animals that had been hurt by the collars. Nonetheless, there was at least some basis upon which that observation could be said to rest. His statement that there had been "many cases" in which the collars had inflicted burns was less defensible. He knew of only two such cases (van Ree and Armitage) and there were significant difficulties associated with each of them. There was no proper basis for his statement that a 60 kg dog had been flipped into the air, although it was said that some unnamed witnesses who had declined to provide statements claimed to have seen this occur.
222 At the same time, however, it is my view that Mr Apostolides genuinely believed that all of the factual allegations which he made about the collars were true. He believed that dogs had been burned as a result of their use. He also believed that they inflicted a 3,000 volt shock. These were damaging statements to make about Innotek's products. However, though false, they were not made maliciously.
223 Mr Apostolides also genuinely believed, notwithstanding the inherent improbability of the assertion, that the Malamute had done "backflips" when shocked by the collar. That statement was equally damaging to Innotek's collars. Although false, and made carelessly, it was not made maliciously.
224 There is nothing in the evidence of Dr Wirth which suggested that he did not honestly hold the views which he expressed to Mr Papps, and on radio, regarding electronic dog collars. Much of what he had to say was opinion rather than fact. I reject the contention that he exhibited malice.
225 It follows that Innotek's claim against the respondents for injurious falsehood must fail.