A family fights hard to protect their family tombstone.

Case reviewed: Bradley v Wingnut Films Ltd, High Court, Wellington
[1993] 1 NZLR 415

Background

In 1992, the defendant—the production company of Oscar-winning filmmaker Sir Peter Jackson—produced the ‘splatter horror’ zombie-comedy film Brain Dead (AKA Dead Alive).  The film was shot at various locations around Wellington, including the Karori Cemetery, at which the plaintiff’s family had since 1911 held an exclusive right of burial in perpetuity at a certain plot.  The plot had a prominent tombstone.

In the film, the tombstone was displayed as a backdrop.  It was never shown in its entirety, appeared for just 14 seconds, and at no time was it possible to read anything on the tombstone.

Through an article in The Dominion, the plaintiff and his wife learnt about the filming that took place at the cemetery.  The article also drew their attention to the use of their family tombstone.  The article contained a photo of filming taking place, in which the letters “BRA” on the tombstone could be made out.

During a visit to the plot, a stranger approached the Bradleys and said he had recognised the tombstone “from television”.  He said he assumed the Bradleys had given their permission for the tombstone to be filmed and had been paid.

At that stage, no member of the plaintiff’s family had seen the film.  The plaintiff sought an interim injunction to prevent its publication.  The application was rejected.  The defendants sent off the film to the Cannes Film Festival, where it enjoyed considerable success, and afterwards received a favourable review in Time magazine.

The plaintiff came back to Court seeking a permanent injunction “to restrain the defendant from publishing or disseminating any part of the film Brain Dead or any film material depicting or containing images of the plaintiff’s tombstone, in New Zealand or elsewhere”.

The plaintiff sought this remedy upon several causes of action:

• Intentional infliction of emotional distress

• Breach of privacy

• Defamation

• Malicious falsehood

• Negligence

• Trespass

Hearing

At the trial, over which Justice Gallen presided, the Bradleys were said to be “shocked and upset” when they saw the film.  Mrs Bradley described it as “disgraceful”.  They were particularly concerned by one scene in which a zombified woman rises out of the grave and attacks a young lout for urinating on the grave.  At the hearing, the parties disputed whether this scene depicted the youth being disembowelled by the corpse or—as the Bradleys contented—having sexual intercourse with it.  (Gallen J dutifully recorded the competing arguments, before deciding that he did not need to reach a “definite conclusion” in order to decide the case.  The scene is at about 0:45:20 of the film if you are interested in deciding for yourself.)  In another scene, the hero of the film was seen to sit on the steps of the plot.

The plaintiff called evidence from a university lecturer from the religious department at Victoria University, who indicated there are many people from varying religious backgrounds who see a cemetery generally and a grave in particular as being a sacred place and who are vulnerable to any action that may be seen as desecrating it.  The lecturer said that even the action of sitting on the steps could be regarded as unacceptable behaviour.  However, the cemetery’s sexton, who was also called by the plaintiff, conceded in his evidence that, on occasion, he himself had sat on the steps.

Judgment

Gallen J dismissed all the causes of action and declined to issue the injunction.

In respect of the claim for ‘intentional infliction of emotional distress’, the Judge held that the shock and distress the plaintiff suffered as a result of the film (which the Judge accepted on the evidence of the plaintiff and his wife) was sufficient to meet the threshold required for the cause of action.  However, there was no evidence that the harm was foreseeable or that the defendant intentionally directed any action against the plaintiff.  Hence the cause of action failed.

With regard to the breach-of-privacy claim, the Judge did not find any breach had occurred.  Gallen J agreed with the comments of the judge who had rejected the application for interim injunction; that there “could scarcely be anything less private than a tombstone in a public cemetery [and that] [t]he whole purpose of the stone is as a memorial and a publication to all those who choose to read it”.  Further, Gallen J rejected that the publicity given to the tombstone in its depiction in the film would be highly offensive to a reasonable person.  Breach of privacy thus failed.

As for defamation, the plaintiff claimed the film “gives rise to innuendoes that the plaintiff consented to the use of the tombstone, approved of the nature of the film and/or received gain or profit from doing so”.  The plaintiff’s claim in this regard seemed to rest largely on the evidence of the stranger who had approached him and his wife in the cemetery.  Although Gallen J accepted this occurrence had taken place, the stranger could not be located to give evidence.  The Judge held that the stranger must have been mistaken in saying they had seen it “on television” – that this person must have recognised the tombstone from the newspaper.  Overall, however, the Judge appeared to believe this pleaded meaning was too strained to be substantiated.

The tort of malicious falsehood fell down because there was no evidence of direct malice on the part of the defendant against the plaintiff:

The tombstone is merely a part of the ambient cemetery.  It is not significantly involved … at all.  When the actor sits on the steps leading to it, no significance is given to the action by the tombstone or the grave plot.  There is no juxtaposition of the action with the tombstone or grave plot in such a way as to relate or connect the two other than as part of the background.

In respect of the claim for negligence, Gallen J was reluctant to find that a duty of care existed between the film production company and the plaintiff, in view of previous reluctance by the Court of Appeal to merge defamation law and negligence principles (in Bell-Booth v Attorney-General [1989] 3 NZLR 148 and Balfour v Attorney-General [1992] 1 NZLR 519).  Further, the Judge believed there was insufficient connection between the tombstone or grave plot and the scenes to which the plaintiff took exception, for a duty of care to exist.  Hence the claim for negligence failed.

Finally, the Judge considered the claim for trespass.  The plaintiff relied on the scene in which the actor was shown to sit on the steps leading to the plot.  Further, the plaintiff contended that a statutory right of burial in a reserve plot was to be equated with a property right.  He further relied on the university lecturer’s evidence that the act of sitting on the steps could amount to a desecration in the eyes of many people.  Meanwhile, the defendant argued that although the plaintiff had an exclusive right of burial in perpetuity, this did not amount to exclusive possession – a usual requirement for a claim of trespass.

The Judge leant towards the plaintiff’s view—that exclusive possession did exist—through the example that the family would likely be able to prevent, by injunction, the interment of a stranger within the family plot.  Ultimately, however, the Judge stated his doubt that the actor’s sitting on the steps:

even although seen as unacceptable and perhaps susceptible to prevention by use of the law of trespass, is such as to justify an injunction preventing the screening of the film in which the action is recorded.

And with that, the plaintiff’s final cause of action failed.

Comment

The defamation claim was a comparatively minor aspect in this case.  However, it is worth examining the meaning the plaintiff pleaded arose from the film: “that the film gives rise to innuendoes that the plaintiff consented to the use of the tombstone, approved of the nature of the film and/or received gain or profit from doing so”.

In this instance the plaintiff’s case appeared to confuse itself with the use of the term “innuendoes”.

In defamation law, different rules of evidence apply depending on whether a defamatory meaning is pleaded by the plaintiff as a ‘natural and ordinary meaning’ or an ‘innuendo meaning’.  If the plaintiff says a defamatory meaning arising from a publication is a natural and ordinary meaning, this is an assertion by the plaintiff that the meaning is what an ordinary reasonable person would understand the publication to mean.  Where natural and ordinary meanings are pleaded, evidence of meaning is not permitted – i.e. the plaintiff cannot call evidence from people who read or saw the impugned publication, and have them state how they interpreted the publication (which presumably would be directly in-line with the meanings pleaded).  In such cases, the finder of fact (the judge, or jury in some cases) must assess whether the pleaded meaning arises fairly from the publication.

By contrast, where a plaintiff says a defamatory meaning arises in the publication by way of innuendo, this means the plaintiff accepts that the alleged defamatory meaning would not have arisen in the eyes of ordinary people reading or viewing the impugned publication, but rather that the meaning would be understood in the eyes of certain people with knowledge of facts extrinsic to the publication – colloquially, ‘inside information’.

Because of this distinction, the word ‘innuendo’ has a special meaning in defamation law, which is discerned from its use in ordinary parlance.  Sometimes natural and ordinary meanings arise by way of implication or what are commonly—though not legally—referred to as “innuendoes”.  In these instances, the defamatory meanings will not be stated explicitly in the publication.  Rather, the meaning will arise inferentially.  But because such inference will be able to be drawn from the publication by an ordinary general reader (or viewer or listener) without needing any further information, this meaning will be classed a natural and ordinary meaning.  Judges dealing with this distinction have termed such a natural inference as a “false innuendo”; to signify that it is not an innuendo in the legal sense requiring special evidence rules—or a “popular innuendo”—to signify that it is only an innuendo in the popular usage of the term; not in its legal sense.

Where actual ‘innuendo’ meanings are concerned, judges use the phrase “true innuendo” or “legal innuendo” – in which cases additional evidence may be called to substantiate the meaning alleged.

Whew! Innuendo meanings are tricky, right?!

What makes the distinction difficult to comprehend is cases like the present, where the word ‘innuendo’ is used indiscriminately – when really the term ‘natural implication’ or ‘natural inference’ would have more appropriately described the impugned sting alleged to arise from the film.

In this case, the plaintiff clearly meant to allege the impugned implication or inference on the basis of natural and ordinary meaning: what would be a ‘false innuendo’.  Again, this does not mean it was alleged the potentially defamatory meaning arose explicitly in the publication, but rather that the defamatory meaning allegedly arose as a natural implication to ordinary people viewing the film.

This being the case, since the pleaded meaning should have fallen under ‘natural and ordinary meaning’, the plaintiff would strictly have been unable to call any evidence to verify that the meaning to be taken from the film was indeed “that the plaintiff consented to the use of the tombstone, approved of the nature of the film and/or received gain or profit from doing so”.

Ultimately, this case will be consigned to history for the plaintiff’s sheer determination to prevent the family plot and tombstone being shown in the film, and the creative causes of action pleaded in the hopes of achieving this.  Further, the case was an early statement in New Zealand jurisprudence on the then-fledgling tort of breach of privacy.  It is likely to be for this reason that the case was recorded in the law reports in the first place.

In the end, this case is probably best summed up as the managing editor of LexisNexis put it in his own review: “Some things are just not worth suing over – background images in splatter horror films being one example.”

Editor’s note

In the Judgment, Gallen J expressed doubt that an ordinary person would be able to identify the tombstone if taken to the cemetery for that purpose.

We can confirm the Judge’s suspicions.  Following a special Defamation Update field-trip to the cemetery, the tombstone proved impossible for us to find after a 45-minute search, though to be fair we were using 20-year-old footage from the film as a guide.  On that basis, it seems simply implausible that an ordinary person would identify it from the film!