Hopping v Boen [2016] PGDC 5; DC3000 (2 February 2016)

DC3000

PAPUA NEW GUINEA
[In the District Court of Justice sitting in its Grade V civil Jurisdiction]

Complaint No: 42 of 2015

BETWEEN

JESSICA HOPPING
Complainant

AND
CYRLINE BOEN
Defendant

BUKA: B.TASIKUL
2016: 2^nd February

CIVIL LAW:

CASES CITED:

COUNSEL:
Appearing for Complainant: In person
Appearing for Defendants: In persons

JUDGEMENT

1. BTASIKUL: Jessica Hoping is claiming compensation for damages to her character against the defendant namely; Cryline Beon for defamation.
   
2. It is alleged that the defendant published false allegation against her in a letter address to the Secretary for Health, Department of the Autonomous Bougainville Government and copies forward to the Public Solicitors-Buka, Nursing Officer on Duty-Lemanmanu Health Center, Matron, Buka General Hospital and Department of Bougainville.This letter is dated 24th September 2015 and is tendered into evidence by consent of the parties and marked as exhibit "A".
   
3. The subject letter which I shall quote in detail for all to appreciate its content:
   

Dear Sir

Subject: Dai blong Pikinini kamap bikos Lemanmanu Health Centre HEO, Miss Jessica Hopping no bin laik [[REFUSE] long halivim mi long karim Pikinini,

Long dei 4^th September, 2015 long 4 kilok long morning mi bin pilim bikpla pen long karim Pikinini na mi go long Lemanmanu Health Centre long karim. Nursing officer wok long displa taim, (Jacklyne James) bin woklo jekim mi. taim nurse I lukim olsem mi (Cryline Boen) I nidim bikpla na urgent halivim, em go singautim HEO(Jessica Hopping) long kam lukim mi lo 6 kilok lo morning.

HEO husat I stap klostu long Hausik kirap kam na askim,”husat meri laik karim”, nurse bekim na tokim em olsem,”Cryline Boen laik karim Pikinini,”HEO I bekim na I tok olsem, mi nonap kam, halivim displa meri bikos em na ol lain family blo em I gat koros wantaim family blo mi na tu bin les lo reconcile wantaim mipela.

Nursing offisa I bin lukim olsem mi wok long pilim bikpla pen na em laik mi mas go tasol long Buka general bikos HEO ino laik long halivim mi. Displa taim tu, Ambulance blong Lemanmanu bin gat mechanical fault na fuel problem. Displa problem long ambulance ol nap long stretim pastaim bai redi tasol long halivim ol sik manmeri go long Buka Hospital long taim blong emergency. Displa em I narapla rong tu bin contribute long dai blong Pikinini blong mi.

Long 9kilok, mi payim wanpela kar long K400.00 na ol kisim mi wantaim dispela nurse on duty(Jacklyne James) go long Buka Hospital. Taim mipela go kamap long 12kilok, ol I rushim mi go long labour ward. Ol nursing opisa wantaim Matron (Miss Masoai) chekim mi na painim aut olsem Pikinini blong mi dai pinis na ol I pulim aut tasol wantaim win(vaccum).

Taim Matron bin lukim displa(Pikinini dai), em bin korosim nurse blong Lemanmanu, husait I bin go wantaim mi na askim, “Why na HEO(Jessica Hopping) no laik halivim taim Pikinini kam arasait klostu pinis? Nurse (Jacklyne James) bin bekim olsem,”HEO(Jessica Hopping) blong Lemanmanu ino laik(refuse) long halivim bikos ol I gat hevi lo ol yet lo ples.

Mi nau I laik putim ol displa wari blong mi na mi laikim office blong yu I mas mekim sampla samting hariap.

1. Pikinini nogat wanpela rong na dai mating bikos Wok meri blong Health Department(HEO) ino laik long halivim long mekim wok blong em.
2. HEO(Jessica Hopping) I kisim ol problem blong peles igo long wok blong em na dispela pasin em ino gutpela na em I kosim Risk na poret(FEAR) long ol sik manmeri long community.
3. Sapos ambulance I bin orait tu bai mi nap long kam hariap long Buka Hospital na savim laip blong Pikinini blong mi. Rong nau I stap long management blong Lemanmanu Health Centre bikos ol no stretim ambulance.
4. Mi laik save long wanem mekim save(Action) Department blong Health I save givim long ol wok manmeri husat I save:

1. No laik(refuse) long attend long wok blong em,
2. No stretim ambulance long wokim wok blong em.

5. Mi bai kisim legal advice long dispela hevi bikos Pikinini blong mi I nonap dai sapos HEO(Jessica Hopping) blong Lemanmanu Health Centre (husait I bin sapos long kam wantaim gutpela advice) I bin kam halivim mi taim mi bin nidim halivim.

Tenkyu

Miss Cryline Boen

Cc: Jessica Hopping(HEO) Lemanmanu Health Centre

Cc: Public Solicitors Office

Cc: Nursing officer on duty (4^th of September 2015(Jacklyne James

Cc: Matron Buka Hospital

Cc:HR- Department of Bougainville

4. It was not disputed by the defendant that she did published the allegation against the complainant.In paragraph 2.5,7 of the letter is the most contentious of all. This is because the statement carried the following imputations which were said to be defamatory. First, it stated that the complainant refused to attend to the complainant because they have outstanding issues with her family. Secondly the complainant brings in her outside issue into her work place. Finally, as the result of her refusal to attend to the defendant lead to the death of her child.
   
5. The defendant denies the complainant’s claim that shehas defamed the complainant by publishing the statement in paragraph 2, 5, 7 of the letter. In her defence, sheclaims that the statement made of the complainant in the letter was truth and for public good. Sherelieson sections 10 of the Defamation Act Ch 293. I shall refer to this provision later on when I consider the defence of the defendants in detail.
   
6. Before I discuss the evidence of the parties’ witnesses and make appropriate findings of fact in relation to the factual matters that are in dispute between the parties, it is appropriate to state in brief the law of defamation in this jurisdiction. The law of defamation in this jurisdiction more or less has been codified in theDefamation Act Ch 293.
   
7. The law on defamation and theDefamation Act prohibits a person in effect from unlawfully publishing a defamatory matter against a person. It follows therefore that a defamatory publication is unlawful unless the publication is protected, privileged or excused by law. Any person, as of the complainant who is unlawfully defamed and suffers in the consequence loss and injury to his or her reputation, is entitled to damages.
   
8. Section 5 of the Defamation Act Ch 293 states that, "It is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law." and section 2 of the same Act defines a defamatory matter as:

"2. Definition of defamatory matter

(1) An imputation concerning a person, or a member of his family, whether living or dead, by which -

(a) the reputation of that person is likely to be injured; or

(b) he is likely to be injured in his profession or trade; or

(c) other persons are likely to be induced to shun, avoid, ridicule or despise him,

is a defamatory imputation.

(2) An imputation may be expressed directly or by insinuation or irony.

(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law."

9. In David Lambu -v- Paul Paken Torato (2008) SC 593 the Supreme Court, per Cannings J, set out the elements of a cause of action of defamation as follows:

"As for defamation the elements required to sustain a cause of action are that:

- the defendant made a defamatory imputation of the plaintiff;
- the defendant published it;the publication was unlawful (i.e. it was not protected, justified or excused by law).

The first element is a question of law by virtue of Section 2(3) of the Defamation Act. Invariably, though it is not expressly stated in the Act, so is the third." (ii) Causing it to be read or seen; or

(iii) Showing or delivering it; or

(iv) Causing it to be shown or delivered,

with a view to its being read or seen by a person other than the person defamed.

9. Returning to the evidence presented by the complainant and noting the issues that are not disputed by the parties that the defendant published the alleged defamatory statements. I find as a fact that the defendant did published the following words complained off as states:
   

“HEO husat i stap klostu long Hausik kirap kam askim husat meri laik karim nurse bekim na tokim em olosem, Cryline Beon laik karim Pikinini, HEO i bekim na tok olosem mi no nap kam, halivim dispela meri bikos em na ol lain family blo em i gat kros wantaim family blong mi na tu ol bin les lo reconcile wantaim mi pela”

HEO Jessie Hoping i kisim ol problem blong ples i go long wok bilong em na ino gutpela na em i kosim risk na poret long ol sik manmeri lo community”

“Taim Matron bin lukim dispela Pikinini dai em bin korosim nurse blong Lemanmanu husat i bin go wantaim mi na askim, why na HEO Jessica Hoping blong Lemanmanu ino laik long halivim bikos i gat hevi lo ol yet lo ples’”

10. That is, there was publication of the defamatory statement within the meaning of section 4( c ) of the Defamation Act which statesthat, For the purpose of this Act, publication is -c) in the case of other defamatory matter

(i) exhibiting it in public; or

(ii) causing it to be read or seen; or

(iii) showing or delivering it; or

(iv) causing it to be shown or delivered,

with a view to its being read or seen by a person other than the person defamed’’

11. I also find that the statement carried the following imputations which are defamatory to the complainant. That the defendant actions endanger lives of the patients when she takes personal problems into her professional duties.
    
12. Furthermore, I am satisfied that the first and second elements for the action of defamation have been made out because applying the statutory definition of defamation under section 2 of the Defamation Act Ch 293, there is no doubt in my mind that as a matter of law, the words published by the first defendant, in their natural, ordinary and unstrained meaning of common usage, were likely to injure the plaintiffs’ reputations, their standing in the profession and trade and likely to induce others to shun, avoid, riddle or despise them.
    
13. Therefore, the paramount issue now is: whether the defendant has a defence under section 10, of the Defamation Act.? At common law, it is a defence to an action for defamation for the defendant to prove that the matter published was true. In Papua New Guinea we have incorporated this defence in the Defamation Act Ch 293 under section 10 which states:
    

"10. Protection: truth.

For the purposes of this Act, it is lawful to publish defamatory matter if it is true, and if it is for the public benefit that the publication complained of should be made."

14. Section 10 provides a defence of truth. It is lawful to publish defamatory matter if is true, and if is for the public benefit that the publication complained of should be made. This defence has two components, firstly the publication of defamatory matter must be true, and secondly it must be for public interest.
    
15. I will firstly discuss the first part of this defence which is the truth of the matter.
    
16. The defendant testified that she was in the Health Centre when she overheard the night duty officer a Community Health Worker telling the Sister in Charge that she went to see the HEO Jessica Hoping but she refused to come. This was denied by these two nursing officers during cross examination. None of the defendant’s witness confirmed this statement.
    
17. Therefore I am satisfied that the evidence given by the defendant and her witnesses are hearsay. There is no evidence establishing that the statement was based on "facts". That is, the complainant refused to attend to the defendant because of their family outstanding issues.
    
18. Since the defendants must prove that the statement is true, I must find that they have failed to prove so. Therefore, I find that they have not made out their defence of truth and it must fail. It also follows that it is not necessary to determine whether or not the statement was published for public benefit because they have not proven that the statement is true.
    
19. The defendant is therefore liable to pay damages to the complainant.
    
20. What is damage? Thecomplainant is seeking damages to the amount of K10, 000.00.
    
21. For defamation the offer of an apology is a mitigating factor for damages. In the case of Theresa Joan Baker –v- Lae Printing Ltd, above, the National Court has awarded K6, 000.00 in damages since the apology was not made in full and sufficient both in time and substance. His Honor Justice Wilson further held that: “Damages for defamation are at large and are to compensate the plaintiff for injury to personal reputations feelings and injury to reputation in business.”
    
    22. In the case of Tei Abal –v- Anton Parau1976 PNGLR 251 where the defendant during a political gathering by spoken words published defamatory statement of the plaintiff, the National Court awarded damages of K1, 000.00. There was no apology offered and the publication was made in the presence of a crowd of over thousands of people. In defamation the damages are at large, it cannot be measured or ascertained but it depends on the good judgment of the judge or the magistrate. In the case of PNG Aviation Services Ltd –v- MichaelThomas Somare1977 PNGLR 515 the National Court said:
    

“No proof of actual injury is necessary in an action of defamationThe extend of injury to reputation is next to impossible to assertion; to obtain an exact measure of adequate compensation is equally difficult. Damages are therefore said to be at large. A fair and appropriate award must be based on all the circumstances.”

23. In the present case defendants had not apologized to the complainant and the publication of those words or statements were not only painted bad pictures of her but of her profession. I note that upon the receipt of the defendant’s letter a Dr. Patrick Diou recommended for the suspension of the complainant. The complainant was suspended and some of her allowances were withheld. This of course in my view had made the complainant suffered. It also affected her family. Having considered all of these factors I therefore ordered that the defendant pay the complainant the sum of K5000.00 compensation. Payment be paid within three months of today.

24. I further ordered that any cost arising from this proceeding be met by each of the parties themselves.