Resene Paints Fiji Ltd v Mohindra [2012] FJHC 1392; HBC87.2004 (5 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 87 of 2004

BETWEEN:

RESENE PAINTS FIJI LIMITED
[1st Plaintiff]

RAKESH MALHOTRA
[2nd Plaintiff]

HAMPTON SINGH
[3rd Plaintiff]

AND:

VIKRAM SINGH MOHINDRA
[1st Defendant]

MADHAVI MOHINDRA
[2nd Defendant]

Counsel : Ms. B. Narayan for the plaintiffs
No appearance for the defendants.

Date of Judgment: 5th October, 2012

JUDGMENT

[1]. This is the plaintiff's formal proof of their claims for damages against the 1st and 2nd defendants. The claim arose out of a termination of the 1st defendant's employment by the 1st plaintiff. The defendants did not appear either in person or by legal representation.

[2]. The 1st plaintiff is a limited liability company having its registered office at Wailada Road, Lami, Fiji. The 2nd plaintiff was the General Manager of the company. The 1st defendant who was an Indian national was employed by the 1st plaintiff as the Manager Technical Services. The 1st defendant's employment with the plaintiff was terminated on or about 15.01.2003.

[3]. The plaintiff in their statement of claim made three claims namely, damages and costs for repossession of vehicle DY 180, damages for malicious prosecution and damage for defamation.

[4]. At the trial, Rakesh Malhotra the 2nd plaintiff gave evidence. In his evidence he explained the nature of the contract of employment the 1st defendant had with the plaintiff company. As a part of the 1st defendants' package of salary and benefits he was assigned a vehicle bearing the number DY 180. According to the contract regarding assignment of the vehicle, the ownership of the vehicle was with the company and it shall be returned immediately upon request of the company.

[5]. Further as a part of his salary benefits the plaintiff company had rented a house for the 1st defendant and his family.

[6]. Having found the 1stdefendant's performance was unsatisfactory and after several warnings, the plaintiff company dismissed the 1st defendant from his employment.

[7]. Subsequent to the dismissal of the 1stdefendant, he was required in terms of the contract of employment to return the vehicle DY 180, to vacate the premises at 123 Princes Road and also to return all belongings in the house that belonged to the company.

[8]. Despite several requests, the 1st defendant did not return the vehicle DY 180 nor did he vacate the premises at 123 Princes Road.

[9]. When the 1st plaintiff through its servants and employees attempted to repossess the vehicle on or about 17.01.2003, the 1st and 2nd defendants through their unlawful acts had prevented it and also had lodged a false complaint against the 2nd and 3rd plaintiffs alleging that they had assaulted the 2nd defendant.

[10]. Since the defendant had resisted the plaintiffs' agents when they attempted to repossess the vehicle the plaintiff company had to employ a bailiff for that purpose, which incurred additional costs to the company.

[11]. On 21.01.2003, the 1st plaintiff through its solicitors again attempted to repossess the vehicle but met resistance from the 1st and 2nddefendants and as a result the vehicle was damaged.

[12]. The plaintiff claims special damages incurred in the process of seizing the vehicle as follows:

1. Bailiff fees - $200.00
2. Towing charges $100.00

100. Balance of monies owed to Carpenters Company $1, 916.00
     

[13]. According to the plaintiffs' evidence, the 2nddefendant had lodged a formal complaint at the Samabula Police Station on 17.01.2003 alleging that she was assaulted by the 2nd and 3rd plaintiffs and consequently the 2nd and 3rd plaintiffs were charged by the police.

[14]. However, on 27.01.2004 the Director of Public Prosecutions formally withdrew all the charges against the 2nd and 3rdplaintiffs acquitting them on the basis that the charges had been fabricated by the defendants.

[15]. In their statement of claim, the plaintiffs claim damages for defamation also.

[16]. First, I will consider the first cause of action i.e. the damages and costs for repossession of the vehicle DY 180. It is proved that the vehicle DY 180 belonged to the plaintiff company, the 1st defendant was required to return the vehicle on his termination of contract of employment with the plaintiff company and despite the request made by the plaintiff company the 1st defendant refused to hand-over possession of the chattels and the company vehicle.

[17]. Documents No. 21 of the Agreed Bundle of Documents (ABD) shows that towing charges incurred was in the sum of $100.00.

[18]. Further, Document No. 39 of the ABD is a statement made to the police by Peni Nava who was assigned to repossess the vehicle.

[19]. Document No.2 of the ABD was an invoice issued by Carpenters Motors in relation to the repairs carried out in respect of vehicle DY 180. According to that, the total repair cost of the vehicle was in the sum of $4931.88. However, the evidence shows that a part of the said amount was recovered by the plaintiff company from the final salary owed to the 1st defendant upon his termination of employment.

[20]. Though the balance claimed in the statement of claim is $1,916.00, Document No. 54 of the ABD shows the balance as $1,579.38. Accordingly, I award $1,579.38 as balance money owed to the Carpenters Motors.

[21]. Now I shall consider the 2nd cause of action i.e. malicious prosecution.

[22]. The evidence before me proved that the 2nddefendant had lodged a formal complaint at the Samabula Police Station on 17.1.2003 against the 2nd and 3rd plaintiff. It is further proved that the Director of Public Prosecutions withdrew all the charges against the 2nd and 3rd plaintiffs on the basis that the charges had been fabricated by the defendants.

[23]. In an action of malicious prosecution the plaintiff must prove:

a). That he was prosecuted by the defendant.

b). that the proceedings complained was terminated in favour of the present plaintiff.

c). that the prosecution was instituted against without any just or reasonable cause.

d). that the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, which was wrongful in fact.

e). that he suffered damage to his reputation or to the safety of person, or to security of his property.

[24]. In the present case, it is proved that the Criminal Case No. 817 of 2003 was instigated by the defendants and subsequently it was terminated in favour of the plaintiff.

[25]. It is further proved that the prosecution was instituted against the plaintiffs without any reasonable or probable cause.

[26]. The next element that the plaintiff must prove is malice. The mere fact that a criminal prosecution resulted in acquittal or discharge of the accused will not establish that the defendant had acted with malice. The plaintiff must prove that the defendant had some other motive apart from that of bringing an offender to justice.
[27]. In the present action, the evidence undisputedly proved that the defendant had ill will towards the plaintiffs since the defendant was terminated from the employment and also he was asked to handover the vehicle given to him by the plaintiff company.

[28]. The above evidence leads to an inescapable inference that the defendant had developed ill will towards the defendant and was motivated to make a false complaint against the plaintiffs. This was further substantiated by strained relations between the plaintiff company and the defendant.

[29]. More importantly, withdrawal of charges by the DPP on the basis that it was fabricated amply demonstrates the lack of honest belief on the part of the defendant when he made the complaint to the police against the plaintiffs.

[30]. When there is absence of some reasonable cause giving to defendant's want of belief in the truth of his charge is a conclusive evidence of malice.

[31]. In Allen –v- Flood (1898) 8 AC 1 at 92, Lord Watson explained the nature of malice as follows:

'The expression 'maliciously induce' as it occurs upon the face of the verdict, is ambiguous: it is capable of signifying that the appellant knowingly induced an act which of itself constituted a civil wrong, or it may simply mean that the appellant procured, with intent to injure the respondents, an act which, apart from motive, would not have amounted to a civil wrong; and it is, in my opinion, material to ascertain in which of these senses it was used by the jury.'

[32]. Therefore, I conclude that the plaintiffs' evidence has proved the existence of malice on the part of the defendant when the plaintiffs were prosecuted.

Damages

[33]. It has to be proved that the plaintiff has suffered damages as a result of the prosecution complained of.

[34]. A classic analysis of three kinds of damages that one could suffer as a result of malicious prosecution was presented by Holt C. J in Savile –v- Robert (1899) 1 Raym 374 as follows:

1. The damage to a man's fame as where the matter whereof he is accused of scandalous.
   
2. The damage done to a person as where man is put to a danger of losing his life, limbs or liberty.
   

100. The damage to a man's property as where is forced to expend money in necessary charges to acquit himself of the crime of which he is accused.
     

[35]. In assessing damages court has to also consider:

1. The nature of the offence the plaintiff charged of;
2. The inconvenience to which the plaintiff was charged to;
3. Monetary loss and;
4. The status of the person prosecuted.
   

[36]. In the present case the defendants' complain against the plaintiff as can be seen from the Document No. 2 of the ABD, was assault occasioning actual bodily harms, which was a charge of serious criminal nature. Needless to say that the plaintiffs have incurred substantial legal expenses leading up to their acquittal from Criminal Case No. 817 of 2003.

[37]. The 2nd plaintiff being the General Manager of the plaintiff company would have certainly faced great inconvenience while attending to Magistrate's Court and instructing Solicitors while discharging his duties in the company.

[38]. Further it is obvious that there was a loss to the 2nd plaintiff's prestige and reputation as a result of the false charge made by the defendants.

[39]. Considering the status of the 2nd plaintiff and in particular the false nature of the charge maliciously made against him by the defendants without any reasonable and probable cause, I conclude that the 2nd defendant is liable to pay $20,000.00 to the plaintiff.

[40]. Now let me consider the plaintiff's 3rd cause of action against the defendants. The plaintiffs in their statement of claim alleged that on about 15.01.2003 the 1st and 2nd defendants falsely and maliciously printed and caused to be sent a handwritten letter to the principal shareholder and Director of the 1st defendant Mr. Nick Nightingale concerning the 2nd plaintiff the following words:

"In addition to all this he came with other employees to my home and in my absence criminally assaulted my wife and kids and a police case already has been registered in his name in Samabula Police Station. Today after a long wait and suffering I have written and submitted a written complaint in Indian High Commissioner's office in Suva a copy of that I am forwarding to you for your kind reference and necessary action, copies I have submitted to New Zealand Embassy in Suva and also in the Ministry of Labour."

It was further stated:

"Police in Fiji has already charged him and now image and reputation of your company is going down in Fiji because of this case and this man who has done this with so many other people also in your company. I can tell you so many things which is doing in Fiji and spoiling the name of your company if you are interested.'

[41]. It is further stated that the 1st and 2nd defendants on 3.3.2003 falsely and maliciously printed and caused to be sent a letter in the 1st defendants' handwriting to the High Commissioner India, Resene Paints Wellington Head office, New Zealand High Commission and the Ministry of Labour which contained several defamatory comments against the plaintiffs.

[42]. Furthermore, the plaintiffs alleged that on 17.11.2003 the 1st and 2nd defendants falsely and maliciously typed and caused to be sent an electronic mail to the 1st plaintiff's principal shareholder and director Mr. Nick Nightingale which contained several defamatory comments against the 2nd plaintiff.

[43]. The plaintiff alleged that all three letters referred to the plaintiffs and contents were defamatory of them.

[44]. In an action of this nature, the burden is on the plaintiff to prove three elements; namely the statement is defamatory, it referred to the plaintiff and it was published.

[45]. The test to be applied in deciding whether a particular statement is defamatory or not can be found in Lewis –v- Daily Telegraph Ltd [1964] AC 234 where Lord Hodson stated at page 275:

"It may be defamatory to say that someone is suspected of an offence. But it does not carry with it that that person has committed the offence, for this must surely offend against the ideas of justice which reasonable persons are supposed to entertain. If one repeats a rumour one adds one's own authority to it and implies that it is well founded, that is to say, that it is true"

[46]. In Gillick –v- British Broadcasting Corporation and Another [1995] TLR 527 at 528 Neil L. J succinctly stated the correct approach that should be adopted in deciding whether a particular statement is defamatory as follows:

"A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally or likely to affect a person adversely in the estimation of reasonable people generally."

[47]. When the letters and electronic mail sent by the defendants to the respective individuals or organisations are considered, it is plain and obvious that the meaning that would convey to an ordinary and reasonable person by those statements are that the plaintiff had committed an offence of criminal assault.

[48]. A copy of the hand written letter dated 3.3.2003 addressed to the High Commissioner of India, the Principal Shareholder and Director of the plaintiff company, High Commission of New Zealand and the Ministry of Labour was marked as number 41 in the ABD.

[49]. When the contents of the letter are analyzed it is abundantly clear that the meaning that would convey to a reasonable prudent person is that the 2nd plaintiff assaulted the wife of the 1st defendant, caused mental and physical harassment to her, and also had extra marital affairs with local and expatriate employees of the 1st plaintiff.

[50]. In light of the decided cases abovementioned, the contents of the letter dated 3.3.2003 would alone be sufficient to constitute defamatory comments in reference to the plaintiff, thus, it is not necessary to proceed any further to analyze the meaning of the other two letters written and sent by the 1st defendant to various people and institutions.

[51]. The oral and documentary evidence before me very clearly established that the words complained of have referred to the plaintiffs. In fact in the letter dated 3.3.2003, the 1st defendant specially named all three plaintiffs by name.

[52]. Therefore, I conclude that the plaintiffs have established the 2nd requirement i.e. the fact that the alleged statement referred to the plaintiffs.

[53]. The 3rd and final requirement that has to be proved by the plaintiff in an action for defamation is the publication. A person will be liable for any publication which he intends or which he can reasonably anticipate. In order to constitute the publication, the defamatory matter must have been communicated to some person other than the plaintiff. In the instant case, copies of the letter written by the 1st defendant dated 03.03.2003 to the High Commissioner of India were also sent to the Ministry of Labour, the High Commissioner of New Zealand, and Head Quarters of Resene Paint Ltd in New Zealand, which shows that the defamatory contents referred to the plaintiff were made public by the 1st defendant. In other words, the defamatory contents referring to the plaintiff were communicated to various people by the 1st defendant. Hence, the 3rd requirement was also proved by the plaintiff's evidence.

Damages:

[54]. The plaintiffs have claimed exemplary and aggravated damages. Exemplary damages are awarded in tort to punish and deter wrong-doers whereas aggravated damages are awarded as compensation. In Uren v. John Fairfax & Sons Pty Ltd (1966) 117 C.L.R118 at 129,Taylor J stated the circumstances in which exemplary damages are awarded as follows:

...damages of that character might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff's rights.

[55]. In Rookes v. Bernard [1964]1 AER 367 at 369, it was held:

that 'English law recognized the awarding of exemplary damages that is damages whose object was to punish or deter and which were distinct from aggravated damages (whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into account in assessing compensatory damages); and there were two categories of cases in which an award of exemplary damages could serve a useful purpose, viz., in the case of oppressive, arbitrary or unconstitutional action by the servants of the government, and in the case where the defendant's conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff.

It was further held that:

"When considering the making of an award of exemplary damages, three matters should be borne in mind;

1. The plaintiff cannot recover exemplary damages unless he is the victim of punishable behaviour.
   
2. The power to award exemplary damages should be used with restraint, and
   

100. The means of the parties are material in the assessment of exemplary damages.
     

[56]. In Huljich v. Hall [1973] 2 NZLR 279 at 287, the distinction between the aggravated damages and exemplary damages were discussed as follows:

'Aggravated damages are extra compensation to a plaintiff for injury to his feelings and dignity caused by the manner in which the defendant acted. Exemplary damages on the other hand are damages which in certain circumstances only, are allowed to punish a defendant for his conduct in inflicting the harm complained of.'

[57]. In A v. B [1974]1 NZLR 673 it was held:

1. The distinction between 'aggravated compensatory damages' and 'exemplary or punitive damages 'is that the former represent a solution to the plaintiff and the latter a punishment of the defendant.'
   
2. The awarding aggravated compensatory damages for the injured feelings of the plaintiff the conduct of the defendant is relevant.
   

[58]. As can be seen from the plaintiff's oral and documentary evidence, the defendants, after sending letters of defamatory nature were advised by the plaintiffs' solicitors to refrain from publishing false allegations and defamatory remarks against the plaintiffs. It is further discernible from the evidence that despite being advised so, the defendants continued to defame the plaintiffs, which in my view is sufficient to warrant awarding of aggravated damages.

[59]. Assessment of damages in defamation cases is fraught with difficulties. In Uren v. John Fairfax & sons Pty Ltd [1967] 117 C.L.R. at 150, Windeyer J expressed the nature of damages and its purposes as follows:

"It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways- as vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.'

'This is why it is not necessary fair to compare awards of damages in this fieldwith damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant inn reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being "at large".

[60]. It must be noted that exemplary damages are generally awarded to punish a defendant and vindicate the strength of the law. If the court is of the view that an award of compensatory damages is sufficient in all the circumstances for compensating a plaintiff and also for punishing or deterring the defendant exemplary damages are not awarded. The above position was followed in Broome –v- Cassel & Co. [1972] UKHL 3; [1972] 2 W.L.R. 645.

[61]. Since I have already decided to grant aggravated damages and compensatory damages I am of the view that it would be adequate for punishing and deterring the defendant, thus I am not inclined to award exemplary damages.

[62]. In the present case, the 1st plaintiff is a limited liability company which has its Head Quarters in New Zealand. There is no doubt that the letters published by the 1st defendant contained some adverse and defamatory remarks about the company. However, the plaintiff's evidence before me has not established any damage or loss suffered by the company due to the 1st defendant's conduct. In other words the company's legal right has been infringed by the 1st defendant but no real damage has been suffered.

[63]. In tort where ascertainment is impossible or a plaintiff fails to prove loss when it is clear that some loss has been suffered, nominal damages may be awarded. See Wheeler v. Riverside Coal Transport Co. Pty Ltd [1964] Qd R.113 and General Tire & Rubber Co. v. Firestone Tyre & Rubber Co. Ltd [1975] 1 W.L.R. 819. Hence, it is my considered opinion that a nominal damage of $ 500.00 would be sufficed as damages to the company.

[64]. The 2nd plaintiff was the General Manager of the company and the defamatory remarks contained in the letters sent by the 1st defendant to various people and institutions would in my view have made adverse effects on the 2nd plaintiff's carrier in the relevant field. Further, the conduct of the 1st defendant and the manner in which he published those letters and his callous disregard to the rights of the others should necessarily be taken into account in assessing compensatory damages for the 2nd plaintiff.

[65]. For these reasons on the facts and circumstances of this case and bearing in mind the principles pertaining to the assessment of damages, I assess compensatory damages for the 2nd plaintiff in the sum of $ 20000.00 for malicious prosecution and $ 40000.00 for defamation.

[66]. In the circumstances, I also award $ 8000.00 as aggravated damages for malicious prosecution and defamation.

[67]. Plaintiff is also entitled to costs. This trial was concluded in the High Court within a day and therefore I summarily assessed the cost in the sum of $1500.00

[68]. The summary of awards and costs are as follows:

1. The 1st plaintiff is awarded special damages in the sum of $ 1879.38.
   
2. The 2nd plaintiff is awarded general damages in the sum of $ 20000.00 for the malicious prosecution.

100. The 2nd plaintiff is awarded general damages in the sum of $ 40000.00 for the defamation
     

4. The 1st plaintiff is awarded nominal damages in the sum of $ 500.00
   
5. The 1st and 2nd plaintiff's are jointly awarded aggravated damages in the sum of $ 8000.00.
   
6. Interest is awarded on the total sum awarded of $ 68500.00 for the general damages and aggravated damages at a rate of 4% per annum from 8th of March 2004 (date of institution of the action) to 05.10.2012 (the date of Judgment).
   
7. Costs $ 1500.00.
   

Pradeep Hettiarachchi
JUDGE