Chand v Kumar [1980] FijiLawRp 12; [1980] 26 FLR 112 (27 June 1980)

[1980] 26 FLR 112

COURT OF APPEAL OF FIJI

[Civil Jurisdiction]

PRAN COPAL CHAND

v

VIJENDRA KUMAR & OTHERS

[COURT of APPEAL-Gould, V.P., Marsack, J.A., Speight, J.A.,- 27 June 1980]

Libel in newspaper article - heading defamatory - damages may follow unless casual reading of rest of article will erase such impression.

K. C. Ramrakha & A. S. Singh for Appellant
B. N. Sweetman for Respondents

Appeal and cross appeal against verdict for the plaintiff an action for libel arising out of an article published in the Fiji Times on 23 August 1979.

The respondents' newspaper had publicised in one inch headlines an article, which read "GOVT FIRES TWO TOP CONSULTANTS". Thereafter what followed made it clear that termination of the employment of two consultants had been necessary because of certain legal provisions, there being a no suggestion that the reason for their dismissal had been either misconduct or inefficiency.

Marsack. J.A. who gave the Judgment of the court referred to the finding of the learned trial Judge namely that the newspaper in the caption had intended to convey the fact of summary dismissal. He found it defamatory entitling the plaintiff to damages. Thereafter as Marsack J.A. related the learned trial Judge considered the body of the article considerably mitigated the defamatory statement. Damage done, he considered was slight which could be compensated by a moderate sum. The appellant had contended that his amount ($200) was totally inadequate and the injury called for a substantially greater award.

Counsel for the appellant/plaintiff, as Marsack J.A. stated, drew attention in three other cases in Fiji where libel affecting personal reputation had attracted a considerably larger verdict though the injury was on all fours with that suffered by the appellant.

Marsack J.A. discussed the general principles as to review by the Court of Appeal of an award of damages made by a Judge Sitting alone.

He referred to Galley on Libel and Slander (see below).

The well known passage to which the Judge referred indicated that an Appeal Court would not readily interfere with such an award unless it found the trial judge had misapprehended the facts or applied a wrong principle of law; otherwise there would need to be very exceptional circumstances when the trial Judge had made "a wholly erroneous estimate" of the damages suffered.

Marsack J.A. stated that in the opinion of the court that principle properly applied to the instant case. He added that no submission had been made that the trial Judge had misinterpreted or failed to apply the law correctly except perhaps in respect of his reference to the appellant's character. In the court's interpretation of the relevant passage said to contain error the emphasis had been on the intention of the appellant not to stay long in Fiji whereby his reputation would be of little consequence. The learned Judge of Appeal stated that the trial Judge was quite entitled to make the comment. He referred to Duncan & Neil on defamation paragraph 18.

There has been nothing put to the court to show the learned Judge first instance had misapprehended any facts their Lordships concluded there was no justification for interfering with the awarded damages; in fact had it been their own duty to assess those damages, it was unlikely that their award would have been materially different.

The court referred to the cross appeal and to a submission on behalf of the respondent (former defendants) to the effect that assuming the headline had been defamatory the article which followed made it abundantly clear; i.e. that dismissal was necessary for legal reasons. Counsel relied upon authorities, which held that in a such circumstance the whole article should be read in order to decide if a portion of it was defamatory. He submitted that principle applied here, that "fires" in the headline conveyed no slur on the reputation of the plaintiff; that therefore the verdict and judgement should be set aside.

Held: The impression on the reader caused by the headline would by no means necessarily have been erased by a casual reading of the article.

Appeal and cross appeal dismissed.

The judgment of the Court of Appeal had been given earlier; the reasons now published on another day.

MARSACK, J.A.

Judgment of the Court

The Court has already dismissed with costs, both appeal and cross appeal, and we now proceed to give our reasons.

The appeal was brought against the quantum of damages, $200, awarded by the learned trial Judge by way of damages for libel in respect of an article appearing in the Fiji Times on the 23rd August, 1979. The claim was based on the one-inch deadlines to the article, which read "GOVT FIRES TWO TOP CONSULTANTS". The article which followed made it clear that the Government had been compelled to terminate the employment of the two consultants because of certain legal provisions; and there was no suggestion that the reason for their dismissal had been in any way misconduct or inefficiency on their part. The learned trial Judge held that the Fiji Times in the caption intended to convey to its readers that the two consultants had been summarily dismissed. He found as a fact that the caption to the article was defamatory of the plaintiff and entitled him to damages. He went on to hold that, as to the quantum of damages, the article itself went a long way towards mitigating a defamatory statement. In the upshot he held that the damage done to the plaintiff's reputation was in his view slight, and the appellant could be fully compensated by an award in moderate damages and costs. The appellant contended that the sum awarded by way of damages was totally inadequate and that the injury to the appellant's reputation by the "flaring headlines" called for a substantially greater award.

In his argument Mr Ramrakha drew attention to the judgments in three cases in Fiji in which damages awarded for libel affecting the personal reputation of the claimant had been the equivalent respectively of $1,000, $1,000 and $3,000. In his submission he argued that in those cases the injury to the reputation of the plaintiff was to a greater degree on all fours with that of the appellant in this case.

The general principle with regard to the review by a Court of Appeal of an award of damages made by a judge alone is set out in Gatley on Libel and Slander, 6th Ed. Para. 1450 citing certain judgments there:

"The Court of Appeal will not readily interfere unless the Judge has misapprehended the facts or applied a wrong principle of law. It will otherwise reject his figure only in 'very special' or 'very exceptional' cases when he has made a wholly erroneous estimate of the damages suffered."

In the present case it cannot be contended that the learned trial Judge applied a wrong principle of law. No submission was made in the course of the argument for appellant that the learned trial Judge had in fact misinterpreted the law or failed to apply it correctly. The one possible exception to this in Mr Ramrakha's argument would be the, reference by the learned trial Judge to the character of the appellant, which appears in these words in his judgment:

"It is unlikely in my view that the Fiji Authorities would grant a permit to an accountant who had been involved in the Flour Mills of Fiji case and had been granted immunity from prosecution for the part he had played in the affairs of that company."

In fact this comment related to the finding that Appellant would not be staying long in the country, so that his reputation here would be of little consequence to him. In any event, in our opinion the learned trial Judge was quite entitled to make this comment. The law is in our view correctly stated in Duncan & Neill on Defamation, para. 18.16.

"In an action for defamation the plaintiff complains of injury to his reputation caused by the publication of the alleged libel or slander. As a matter of commonsense therefore it is relevant to consider the reputation which the plaintiff bore before the publication took place."

Accordingly, we are unable to say that the learned Judge has in his judgment applied a wrong principle of law.

That being so, and nothing having been put before us to show that the judge had in any way misapprehended the facts, we have concluded that there is no justification for interference on our part with the award of damages. Furthermore, it is very unlikely, if it had been our duty to assess the damages at first instance, that our award would materially have differed from that made by the learned trial Judge.

With regard to cross-appeal, Mr. Sweetman argued that even if the headline was defamatory the article itself was not; that article making it abundantly clear that the dismissal was rendered necessary for legal reasons. He quoted authorities holding that the whole article must be read in order to ascertain whether or not it is defamatory. If, in counsel's submission, any person reading the paper had read the whole article, he would have realised that the word "fires" in the headline merely meant "dismissed", with no slur whatever on the reputation of the persons dismissed. We are, however, satisfied that the learned trial Judge was correct when he held that the headline itself was defamatory; and that the impression on the reader thereby caused would by no means necessarily have been erased by a casual reading - otherwise, perhaps, than a careful study - of the article beneath that headline. In the result we could find no reason for disturbing the finding of the learned trial Judge.

For these reasons both appeal and cross-appeal were dismissed with costs.