Loro v Posou [2005] PGDC 72; DC436 (19 April 2005)

DC436

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 4476 OF 2004

BETWEEN

Shirley Loro
Complainant

V

Solange Posou
First Defendant

Mary Posou
Second Defendant

Sea Outa
Third Defendant

Tae Waitao
Fourth Defendant

Wouta Fareho
Fifth Defendant

Port Moresby: Bidar, Pm
2005: 16th March, 4th; 11th April

Damages –
Claim for damages /
Compensation for spreading false information or reports -
Liability not contested -
Damages / Compensation -
Requirement to prove damages / compensation –
Assessment of –
Judgement for Complainant.

Cases Cited
Livingstone -v- Rawyards Coal (1880) 5 App Cases 25 at 39.

DECISION

19th April 2005

BIDAR. PM: This is a claim for compensation / damages as a result of defendants spreading false reports or information concerning the complainant.

Complainant says that sometimes in November 2003 she attended a fund raising dance for Caritas grade 12 students with first and second defendants as well as five others. On the next day after the dance the first defendant told complainant that she was not happy with complainant’s behaviour during the fund raising dance. She did not elaborate what she was not happy about.

When the first defendant went home during Christmas that year she told relatives and family members that complainant was having affairs with one Peter Malaisa, one of their cousin brothers who also attended fund raising dance.

During new year, complainant went home with her children whilst her husband remained due to work commitments.

Complainant learnt of the rumours, reports in the village when Peter Malaisa told her. Complainant being aggrieved by these rumours, filed these proceedings.

These reports which complainant says are completely baseless has seriously affected her marital relation with her husband. Their relationship is not as it used to be prior to publication of these rumours.

Defendants despite being served the Court process have never appeared at all. They also have filed no notice of intention to defend or defence. This matter proceeded ex parte on 16th March 2005 and liability was made out. Cause of action is founded on defamation and in the circumstances deposed to by complainant in her affidavit sworn and filed on 8th November 2004. I find the defendants liable.

I proceed to assessment of compensation.

The general principle in award of compensation or damages is that stated by Lord Blackburn in Livingstone -v- Rawyards Coal (1880) 5 App. Cases 25 at 39.

"When an injury is to be compensated by damages, in settling the sum of money to be given for ......... damages ..... should as nearly as possible, get at that sum of money which shall put the party who has been injured, or who has suffered, in the same position as would have been if he had not sustained the wrong for which he is now getting compensation.........."

This claim is for defamation which does not involve physical injury but injury to character and reputation.

In McGregor on Damages Sweet & Maxwell, (13th Ed. 1972, London) the learned author puts the same principle in another way at p.935.

"The plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages: This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person’s case, the proof of such allegation falls on him. Even if the defendant fails to deny the allegations of damages, or suffers default, the plaintiff must still prove his loss".

Damages/Compensation

Complainant does not state any specific amount in her claim. In her statement in support of an award of compensation she tells of her mental sufferings and the embarrassment the rumours has caused her and her relations with her husband and her in laws. Apart from that, there is really no evidence to support any kind of amount to be awarded. Doing the best I can and in all the circumstances, I assess K500.00 as general damages which I award.

I therefore order judgement for complainant in the sum of K500.00. I order interest at 8% per annum from date of summons to judgement which calculates to K20.00. There shall be total judgement for complainant in the sum of K520.00. Payment to be made in full within 30 days from date of order.

In Person: Complainant
No Appearances: Defendant