Wale v Solomon Star Ltd [2015] SBHC 9; HCSI-CC 437 of 2012 (30 March 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona PJ)

CIVIL CASE NO. 437 OF 2012

BETWEEN:

MATHEW WALE
Claimant

AND:

SOLOMON STAR LIMITED
First Defendant

AND:

EDITOR OF SOLOMON STAR NEWSPAPER
Second Defendant

Dates of Submissions: 10th February 2015, 10th March 2015
Date of Decision: 30th March 2015.

Mr G. Suri for the Claimant
Mr G. Fa'aitoa for the First and Second Defendants

DECISIONS ON ASSESSMENT OF DAMAGES

Introduction

Faukona PJ: This is an assessment hearing in a libel action. The suit was filed on 21st December 2012 by the Claimant against the Solomon Star Limited newspaper and its editor.

2. The Claimant who was a Member of Parliament for Aoke Langalanga Constituency at that time, alleged that on 8th and 9th February 2011, the first and second Defendants published or caused to be published in Solomon Star newspaper various serious defamatory material against him. The allegations were based on articles entitled Government hefty claims about Australia and reporting on the position of Transparency Solomon Islands regarding allegations made against the Claimant.

3. Perhaps it is not worthy to outline in summary the defamatory materials complained of. On the first incident or first article issue 4469 the allegation was that the Claimant owed allegiance to foreign power, that he intended to effect fall of Danny Philips government by colluded with RAMSI and by that collusion the Claimant received monetary benefits from Australian Government, a party to bribe members of Parliament.

4. On the second occasion, in an article issue 4470, contain the contumelies material tantamount to bribery by foreign Government with the motive to destabilize Solomon Islands Government, which may undermine sovereignty of Solomon Islands as an independent nation.

5. On or about 28th January 2015, the Court was informed by both Counsels that the Defendants had conceded to the claim. In other words they have admitted liability, and of course in doing so, willing to meet the value of damages and costs. A function for the Court now is to decide on the assessment of damages.

General Observations:

6. Upon admission of liability, the starting point is to make a direct reference to the claim to perceive what actually the Claimant sought by way of reliefs. I noted Order 2 is a claim for general damages and Order 3 is a claim for aggravated or exemplary damage.

7. Actions for libel and slander are maintained principally for the purpose of protecting and vindicating the personal reputation of the defamed claimant. An award of damages may partially compensate him for the decline in his esteem in which he may be held by others and provide solace for his wounded feelings, grief, annoyance[1] and shame to add. Almost in similar term was exposed in the case of PNG Aviation Services Pty Ltd V Somare[2].

8. In Sikua & Manele V Tradewinds Co. Ltd,[3] Chetwynd J attempted by search to answer the question, what is the nature of damages in libel case? In doing so he defined libel as about status and reputation which is considered a valuable, its loss is treated in law as violence on absolute right.

9. As being recognized widely there is no fixed measure for damages in a libel action, hence, it is difficult to calculate an appropriate financial equivalent for its loss-see Coyle V Henao[4]. The same sentiment was echoed by His Lordship Muria (ACJ) in Goh v Yam[5] which he termed as "at large" and further addressed that some subjective assessment will be required and not simply by objective computation. The same words were said by His Lordship Palmer CJ in Wale V Philip[6]. The term at large was adopted from Rookes V Barnard[7] who perhaps first invented the words which mean an award is not limited to any pecuniary loss that can specifically prove.

10. It is also to be noted the award of damages could be justified such as not to penalise the Defendants for their conduct but simply to adequately compensate the hurt caused to the Claimant, See Coyle V Henao[8]. In Rookes V Barnard[9], Lord, Devlin stated the object of damages is to compensate the plaintiff and not, except in exceptional circumstances, to punish the defendant. On the other hand the Court is allowed to consider pecuniary losses and social disadvantages – see Cassell & Co. Ltd V Broom [1972] UKHL 3; (1972) 1 ALL ER 801 per Lord Hailsam. The same was adopted by His Lordship Muria (ACJ) in the case of Goh V Yam[10]. His Lordship further stated that an award is to compensate to who the wrong was done and not to punish the wrong doer. In the case of Alliance V Sanau[11], His Lordship Palmer CJ stated that punitive or exemplary damages may be awarded in a case where the Defendant profited from his wrong doing by publishing the defamatory material, See also the case of Manson V Associated Newspapers Ltd[12].

Aggravated damages:

11. There is contention in relation to the category of aggravated damages. Counsel for the Defendants argues that there is no separate category known as aggravated damages. In general acknowledgement, aggravated damages appear where damages are generated in the sense that they cannot be calculated precisely. It can be awarded where the defendant's behaviour, his intentions and motives, high-handed, malicious or oppressive manner were such as to aggravate the injury to the claimant. They are species of compensatory damages in their purpose to compensate the claimant for injury to his feeling of dignity and pride. In other words they are species or factors to be considered in determining the award in general damages.

12. In Rookes V Bernard[13] the Court clearly stated where the injury to the plaintiff has been aggravated by the conduct of the defendant, the plaintiff may claim aggravated damages. In Sikua & Manele V Tradewinds,[14] the Court refers to the act of libel as serious and there are considerable aggravating features. In Luluaki V Paraka lawyers[15], the Court commented that the case as having both aggravating and mitigating features.

13. In David Syme & Co Ltd V Mather[16] which was quoted in PNG Aviation V Somare[17] the Court stated that the reason for judgment of all three judges manifested the fact that both hurt to the plaintiff's feelings and the increased damaged to his reputation can be the basis for an award for aggravated damages. In the case of Heston V Moli[18] there was an award of aggravated damages. Factors that feature such award were front page publication with highlighted shading, no effort to check the story or ask for information, no apology and no retraction. In Rookes V Barnard[19] the Court stated where the injury to the plaintiff has been aggravated by the conduct of the defendant, the plaintiff may claim aggravated damages. Such damages are part of, or included in the sum awarded as general damages and therefore "at large".

14. With the authorities there is clear implication that aggravated damages is not a separate or a damage of its own category. They are factors or features which hasten or aggravated the conduct of the defendant and are counted towards deciding an award in general damages. What the Courts are saying, from the conduct of the defendant there are features or aggravated factors that will increase damages to feeling, position and reputation. It is not an additional damage to be considered which may justify increasing the award. Aggravated damage is part or included in the general damages and there should be one award for general damages.

Damages to be awarded:

15. What are the damages to be awarded? Undoubtedly, general damages are at the forefront. There is no dispute as to that; an attempt to is futile because of the admission of liability. So what is left is a claim for exemplary damages. It is quite difficult to distinguish between aggravated damage (part of general damage) and exemplary damages. In Cassell V Broome[20] Lord Wilberforce said that the difference between the two is that function of exemplary damages is to punish the defendant, whereas the function of aggravated damages is to compensate the plaintiff.

16. It is apparent that the law as it stands and as I quoted in paragraph (10) above. Claim for damages in libel action is for adequate Compensation for the hurt cause to the Claimant by the defendants is quite remote at this stage. His Lordship Justice Muria (ACJ) said in Goh V Yam[21], that although punitive and exemplary damages may be awarded but only in a case where the defendant profited from his wrong doing by publishing the defamation. The same words were expressed by His Lordship Justice Palmer (as he was then) in Alliance Trading Association SI V Sanau[22]

17. The question now, has the Defendants benefited from publishing the defamatory statements. If there should be, evidence must provide that the Defendants had indeed profited in any manner or from the sale of their newspapers. Or the revenue collected for sale of newspapers on or certain days after the publication had risen dramatically. Meantime there is no evidence to suggest so. I have read the submissions by the Counsel for the Defendants (para 8.2) and of course measure up with exhibit OE-4 attached to sworn statement of Mr. Eremae. Based on that sworn statement and exhibit it can be observed that publication of first Defendant's newspaper on those very days or following days of that month did not increase the sale, therefore, the Defendants did not profit from the sale of the newspaper containing defamatory statements.

18. Is the deliberate decision to publish defamatory statement without checking the truth of it tantamount to reckless or negligent conduct which justifies punitive damages? I don't think so. However, I feel, that should be subsumed as part of the award in general damages. In the light of that, I do not think a claim for exemplary damages is appropriate.

The impact of publication by Solomon Star:

19. The extent of the impact of publication by the Defendant has subsequently taken up by media in Solomon Island and in the Pacific Ocean region. In fact, materials published by the first Defendant was picked and known throughout the region. And people have their own ideas and thoughts. The Islands Sun on 9th February 2011 repeated the allegation in the context of reporting responses by the Claimant and Australia High Commission. The Australia Associate Press published an article on 9th February 2011 contained an offer of bribery of SD$20, million to government MPs to defect because Canberra was unhappy with Mr. Philip's move to five year exist plan. ABC radio Australia broadcasted an interview with Mr. Wasuka and Mr. Sasako on 9th February 2011. The interview was basically on expression that opposition and deputy leader of opposition (Claimant) to disclose details of the deal struck with Australia and proved they are not funded by Australia. Radio New Zealand International reported on the 9th February 2011, on the SD$20 million bribe to lure Government MPS. The same was reported by Pacific Islands Report, Hawaii about $200,000 reward to each Government MP who crossed the floor.

Aggravated factors:

20. The Claimant was a member of Parliament and the Deputy Leader of the Opposition at that time. Currently he is still a Member of Parliament. The first Defendant is a leading newspaper in Solomon Islands and by publishing the articles would attract public and media within and the region. Such publicity gives readers the impression of who the Claimant is; he is a collaborator, conspirator, traitor, a criminal and a corrupted person in the highest level. That his alleged involvement and actions was for his personal gain and his group (the Opposition) which he was a member and serve.

21. Any compensatory award in this case must take account of the wounded feelings by the Claimant, his anxiety, emotions, grief, annoyance, frustration and malice act by the Defendants.

22. There is argument by the Counsel for the Defendants that there is no evidence from those who know the Claimant to verify his reputation has been seriously affected. That argument is flawed on the basis that I am dealing with a case where liability has been admitted. Where a defamatory statement is published it affects reputation of a person seriously in particular when it was published by other countries as well.

23. The Defendants have failed to check the truth of the report or information they possessed. They decided to publish it without proof of its truth. That is reckless or negligent publication. In the case of Wale v Philip[23] His Lordship Palmer CJ echoed that the decision to publish articles on the Report was entirely that of the newspaper (same newspaper). The newspaper accordingly must bear responsibility and accountability for what it published in its newspaper. The damage was caused by the subsequent act of the newspaper in publishing the defamatory material. There is no evidence of remorse, retraction or apology. And that is a tenuous evidence of malice, for it is consistent with a continuing belief in the truth of what one has said[24].

24. In the light of what I have said the Claimant is entitled to damages to adequately compensate him for the hurt caused. He is a person of reputable standing in Solomon Islands. If the sum awarded is construed as punitive rather than compensatory is unfortunately unavoidable because the distinction is often not identifiable-see Coyle V Henao[25].

25. On the outset it is a pertinent point to note what was pointed out by Justice Muria (ACJ) in Goh V Yam,[26] to assess damages to be awarded to the plaintiff in the sense must be fair to him in the circumstance of the case and that such an award is appropriate in the context of Solomon Islands. His Lordship continued by saying, it would be wrong to pluck a standard award from another jurisdiction and adopt it in this country without any rational comparison. Whilst I appreciate his Lordship's pronouncement, I perceived it as not undermining or changing the Solomon Islands constitution position in relation to foreign authorities. Those authorities remain as guiding principles in law and their status remain as persuasive authority rather being bound to it. In this case nothing can thwart me observing foreign authorities as it has been reflected herein, except where direct comparison is made to the actual figures, which I will take note of the actual monetary figures awarded but not in terms of exchange rate. That I presume had never taken into account when those awards were decided by those foreign cases.

26. To assist deciding the quantum of damages Counsels have advanced their perspective opinions. Mr Suri submits that the highest damage awarded in a defamation case in Solomon Islands is Sikua's case $75,000.00 which was awarded to Hon. Dr. Derek Sikua. He submits that the nature and impact of the defamatory statement made in this case is for more serious and devastating than Dr. Sikua's case. Therefore any award of compensation must be more than in Sikua's case; and that be $5 million for general damages.

27. Mr Fa'aitoa in another line of approach submits that in the case of Wale v Philip[27], of the five propositions pleaded, only three (identical to the three propositions in this present case) were found to have defamatory connotations. Therefore relying on the three defamatory prepositions to establish a successful case against one of the defendants. Therefore any monetary award for the damage against the Defendants in this case ought to be identical to the one awarded in Wale V Philip[28]. Base on the principles expounded in Goh V Yam[29] the Claimant ought to be awarded a nominal sum of $5,000.00 plus costs.

28. In assessing the submissions it is significant to refer to the case of Sikua V Tradewinds[30]. From a view point of an ordinary Solomon Islander the defamatory statements premise on a family domestic violence, a social behaviour which globally is predominantly common. It is neither a rare occasion nor a new one that could lure right thinking members of the society to underestimate the first Claimant. Of course it occurred in an environment which everyone else is expected to behave decently. His Lordship Chetwynd J clearly stated that the material clearly ascribes the first Claimant the characteristics of a drunken violent man. He is portrayed as being incompetent and irresponsible. With that it concludes the full description of who the first Claimant was on the date of the allegation.

29. In this case, the defamatory statements are summed up as collaborator, conspirator, traitor, criminal and a corrupted person. To conspire with a foreign element to topple a legitimate and sovereign elected Government of Solomon Islands is something worst and serious than Sikua's case. In my perception the award must be adequate compensation in the circumstances and must be appropriate.

30. In the case of Wale V Philip[31], although the Claimant's action for damages for libel was in respect of the publication of words to the same effect as the words on which the present case is founded, it is proper to examine the facts. At that time of publication of the defamatory materials there was a lot of movement by Parliament Members. There was a lot of mudslinging amongst the parties, both the Government and Opposition. In that particular environment that a report was released and came into the hand of the second Defendant who conceded giving a copy to the Solomon Star, but in the context of a request by the Editor of Solomon Star for verification purposes. The second Defendant in fact prepared an article and submitted for publication. That article was never published.

31. The report was never intended for publication; instead the Solomon Star published excerpts from the report directly. His Lordship stated on paragraph 20, that for the purpose of publication, the giving of the copy of the report to the Editor was sufficient, whether defamatory or not, giving it to him and verifying it with a report that does not contain defamatory material, fulfils the requirement of publication under the law of libel and slander. And last sentence of paragraph 24 stated, "The damage was caused by the subsequent act of the newspaper in publishing in its paper the defamatory material".

32. It would appear from the judgment that full responsibility for the damage was caused by the newspaper. Somehow, the newspaper was never a party to that case. And so damages was confined to nominal damages of $5,000.00 against the second Defendant, an individual (Mr. Alfred Sasako).

33. To conclude, the fact and effect in the Wale V Philip[32] has wider perspective of differences. It is not the same as this case. In this case, the newspaper, which is the first Defendant has directly responsible and that has reflected in its admission of liability. Therefore, the award of compensation in Wale V Philip[33] is inappropriate to consider in the circumstances of this case.

34. I feel $5,000.00 award of compensation is so minimal to be regarded as fair and appropriate compensation. As I have pointed out in paragraphs under aggravated damages and paragraph (29), facts and effects of this case is worst than Sikua's case. And of course this is the second time the same newspaper repeating publication of unproved defamatory material against the Claimant. Therefore, the appropriate award is expected to be more than the amount awarded in Sikua's case. I therefore award the sum of SBD$200,000.00 for damages plus costs against the Defendants.

Orders of Court:
1. Award claim for damages in respect of general damages of $200,000.00 against both Defendants.

2. Claim for aggravated damages is dismissed.

3. Cost is awarded against the Defendants.

The Court.

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^[1] . Coyle V Henao (2000) PGSC 17; sc655 (30 November 2000).
^[2] (2000) PASC 18; SC 658 (1 December 2000)
^[3] HCSI-CC 138.2009
^[4] Ibid (1)
^[5] (1993) SBHC 43; HCSI-CC 154 of 1989
^[6] (2011) SBHC 144; HCSI-CC 42 of 2011
^[7] (1892) 2QB524)
^[8] Ibid(1)
^[9] Ibid (7)
^[10] Ibid (5)
^[11] (1999) SBHC 157, (2001) 3 CRC 1
^[12] (1965) 2 ALL ER 954
^[13] Ibid (7)
^[14] Ibid (3)
^[15] (2012) PGNC 72
^[16] (1977) VR 516
^[17] Ibid (2)
^[18] (2000) VUSC 80; Civil Case No. 19 of 2000 (22 Sept 2000)
^[19] Ibid(7)
^[20] (1972) 1 ALL ER 801
^[21] Ibid (5)
^[22] (1999) SBHC 157; (2001) 3 LRC1
^[23] Ibid(5).
Horrockie V Lowe (1974) 1 A11 E.R 661 at 671
^[24] Ibid(1).
^[25] Ibid(5).
^[26] Ibid(5).
^[27] Ibid(6)
^[28] Ibid(6).
^[29] Ibid(5)
^[30] Ibid(3).
^[31] Ibid(6).
^[32] Ibid(6)
^[33] Ibid(6)