Prasad v Lomaloma [2005] FJHC 18; HBC0209.1992L (2 February 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0209 OF 1992

BETWEEN:

MANGAL PRASAD
s/o Budhu Prasad
PLAINTIFF

AND:

DR B.R. LOMALOMA of Lautoka
1ST DEFENDANT

THE ATTORNEY-GENERAL OF THE FIJI ISLANDS
2ND DEFENDANT

Dr Sahu Khan for the Plaintiff
Ms S. Tabaiwalu for the Defendants

JUDGMENT

The plaintiff’s claim is for special and general damages arising out of first defendant’s defamatory actions. Only the plaintiff and one other witness one Saiyad Abhas Hussein a neighbour of the plaintiff testified. The defendants called no evidence.

The case arises out of two letters which were written to the plaintiff, On 18th January 1988 the Medical Superintendent at Lautoka Hospital wrote to the plaintiff informing him that he was suspended from work from 19th January as he had pilfered property of defendant and had threatened to assault a fellow worker. On 2nd March 1988 a second letter was written to him by the Acting Permanent Secretary terminating his employment for stealing a can of petrol and using threatening language. These two letters are plaintiff’s exhibits 1 and 2. There was hardly any challenge made to the plaintiff’s evidence.

The plaintiff told the court that he had worked as a labourer at Lautoka Hospital for 17 years prior to his termination. He denied taking petrol or threatening any worker. He said the contents of the two letters accusing him of theft and threatening language were not correct. Police investigation into allegations of theft resulted in no charges being laid against him. He said after he was terminated, he tried to look for a job but could not find a job. He said his co-workers said he was a thief and made fun of him.

In cross-examination he admitted he was an unestablished employee. At time of termination he was married. PW2 who was plaintiff’s neighbour said that the news of the plaintiff’s termination for theft led to negative reactions from the neighbours.

The statement of defence alleged that the defendant was an unestablished employee a fact admitted by the plaintiff in cross-examination. The defendants alleged that the terms of the plaintiff’s employment were governed by the JIC Agreement which the plaintiff said he did not know of. The defendants denied any publication of theft and assault or alternatively they were true in substance and fact. They alleged that the plaintiff was lawfully terminated under the JIC Agreement and that he suffered no damage.

The defendants called no evidence. The JIC Agreement was not tendered so it is not in evidence before the court. The court is unaware of the contents of that agreement. The defendant also has not called any evidence to show that the plaintiff stole or removed a can of petrol so there can be no justification. At the conclusion of the evidence I was left with unchallenged evidence for the plaintiff. I find that the plaintiff had been employed at Lautoka Hospital for 17 years as an unestablished employee prior to his termination. He would have barring any unforeseen circumstances continued work till age 55 that is for further 10 years. I find there is no evidence that the plaintiff stole the petrol or that he threatened any employee. These allegations are therefore improper. The termination letter I find was given to him and read out in presence of five other people. This I find must have caused the plaintiff some embarrassment. On the evidence before me I conclude that the contents of the two letters were both false and unfounded and capable of being defamatory of the plaintiff. They gave the impression that the plaintiff was a dishonest person and a violent person and that the plaintiff was unfit to be an employee of the hospital. This is the natural and ordinary meaning of the words used in the second letter. However I do not think that the words or the language of the letter suggest that the plaintiff is unfit to associate with members of the community or that he was great threat to society.

However the good name of the plaintiff had been tarnished and that is very significant. William Shakespeare in his play “Othello” vividly describes the value of a good name as follows:

“Good name in man or woman, dear my love

Is the immediate jewel of their souls

who steals my purse, steals trash, tis something nothing

Twas mine, it is his, and has been slave to thousands

But he that filches from me my good name

Robs me of that not enriches him

And makes me poor indeed.”

SPECIAL DAMAGES:

The plaintiff has prayed for special damages in the sum of $45,607.46 which he says is loss of wages from 26th February 1988 to December 1998 at $4209.92. He submits that had he not been terminated from employment he would have continued work till December 1998 at an annual salary of $4209.92. The defendants submitted that they had the right to dismiss the plaintiff for an act of indiscipline under the JIC agreement. It is for the defendants to show act of indiscipline and they have not called any evidence.

The plaintiff had worked as a labourer for 17 years and in all probability would have continued working till retirement at age 55. So he lost wages. He says he has been out of work for 10 years or so. He was a labourer at the hospital so one would expect him to look for similar employment after termination. Normally prospective employers do not seek references from previous employers in case of labourers unlike those in more administrative posts or those who handle finances. The plaintiff did not tell the court how many places he sought employment over the years nor the last time he sought employment and where. If he is to be believed, he appears to have just folded his arms and not protect his own interest and mitigate the damages. He has not made, in my view, serious enough efforts to find employment. There are jobs like cane harvesting, grass cutting, washing cars just to name a few where past records mean little. The position of the plaintiff as far as special damages is concerned is akin to someone being terminated without cause. However, I shall adopt a generous approach towards the plaintiff. I consider special damages equivalent to one year’s salary would serve ends of justice. I therefore award him $4,209.92 as special damages.

COMPENSATORY DAMAGES FOR INJURY TO REPUTATION ETC.

Proven economic loss can be taken into account as a proper subject of compensation. Apart from economic loss, the plaintiff is also entitled to damages because he/she has been injured in his/her reputation, that is because he has been publicly defamed - Uren v. John Fairfax & Co. Ltd. [1966] HCA 40; (1966) 117 CLR 118 at 150 per Windeyer J.

The principles expressed above were approved and applied by Justice Pathik in Air Fiji Limited v. Shailend Shandil & Another – HBC0380 of 1999. Lord Radcliffe in Dingle v. Associated Newspapers Limited – 1964 AC 371 at page 396 describes the purpose of defamation action as follows:

“A libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication.”

So the purpose of creating a defamation action is to provide an avenue for vindication to counter any harm done to a person’s reputation and for injured feeling.

Reputation is not a physical or tangible asset that depreciates in value once it is damaged. The damages awarded are for external results or consequences flowing from the libel like loss of employment, loss of business and it also provides a solatium for hurt feelings of the plaintiff as a result of such publication.

As Lord Diplock in the Carey v. Associated Newspapers Ltd. (No. 2) (1965) 2 Q B 86 at 107 stated:

“The injuries that (a plaintiff) sustains may be classified under two heads. (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself.”

A plaintiff may be shunned or isolated by others because of the defamatory publication. Accordingly I have to look at any evidence of hurt, loss of respect, anxiety and outrage felt by the plaintiff and absence of apologies. These reactions are normally produced in a normal person by unfounded allegations and they are factors that I have to consider in assessing the damages. However, assessing damages is a subjective exercise and such damages cannot be awarded with mathematical accuracy. Lord Hailsham in Broome v. Cassell & Co. [1972] UKHL 3; (1972) AC 1027 at 1071 stated that

“In actions of defamation and any other actions where damages for loss of reputation are involved, the principle of restituo in integrum has necessarily an even more highly subjective element.”

And later on –

“what is awarded is thus a figure which cannot be arrived at by any purely objective computation.”

In the present case the plaintiff was accused of theft and for threatening behaviour. To accuse a person of theft is to accuse him of dishonesty. It was first done on 18th January 1988, followed up again on 2nd March 1988 in presence of five others. The accusations were persisted in and the matter referred to police who found insufficient evidence. I can safely presume that the police must have seen the plaintiff in course of investigations. Hence the plaintiff must have suffered from anxiety over a period of time. There is also evidence of unpleasant reaction by neighbours and by co-workers. However I was not told the size of neighbourhood. I am aware that initially the letter was read in front of five persons but one cannot disregard loose tongues. Such allegations coupled with termination would certainly lower the plaintiff in the estimation of right thinking people generally and they would take an adverse view of the plaintiff. Taking these factors into account award a sum of $15,000.00 as compensatory damages.

INTEREST:

There is a claim for interest in the pleadings. Under Section 3 of the Law Reform (Miscellaneous Provisions) (Death and Interest) Act Cap 27 the court has a discretion in this type of case to award interest at rate it thinks fit and for period it thinks fit on the whole or part of the judgment sum.

The writ was filed on 20th July 1992. The acknowledgment of service is dated 26th August 1992. The defence was filed on 27th November 1992. Nothing happened until 26th April 1994 when notice of intention to proceed was filed. Summons for directions was filed on 24th March 1994, some eleven months later. Copy pleadings were filed on 17th July 1995. The case was fixed for hearing on 11th August 1997 but adjourned due to bereavement in plaintiff’s solicitor’s family.

It was put for mention a number of times before hearing was fixed for 16th and 17th August 2000 on which date there was order for amended statement of claim. There was also an application to dismiss for want of prosecution which was dismissed on 12th September 2003 by Justice Byrne who mentioned shortage of resources at Lautoka Court in his ruling.

Not all delay in these proceedings can be attributed to the plaintiff. In exercise of my discretion I allow the plaintiff interest at the rate of 6% per annum for a period of six years.

CONCLUSION:

I give judgment for plaintiff as follows:

Special damages .. .. .. .. $4,209.92

Compensatory damages .. .. .. .. 15,000.00

Interest in the above sum at 6% per

annum for 6 years .. .. .. .. 6,915.12

------------------------------------------------------------------------------------------------

T O T A L = $26,125.04

=========================================================

Accordingly I enter judgment for the plaintiff in the sum of $26,125.04 together with costs which I fix in the sum of $2,000.00.

Jiten Singh
JUDGE

At Lautoka
2nd February 2005