Solomon Motors Ltd v Herming [2024] SBHC 133; HCSI-CC 585 of 2023 (2 October 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Solomon Motors Ltd v Herming
Citation:
Date of decision:	2 October 2024
Parties:	Solomon Motors Limited, Craig Day v George Herming
Date of hearing:	11 September 2024
Court file number(s):	585 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; PJ
On appeal from:
Order:	1) Award claim for general damages in the sum of $20, 000 against the Defendant. 2) Refuse to award claim for compensatory, exemplary damages, aggravated and punitive damages as sought in the claim. 3) Cost of this proceeding is to be paid by the Defendant on standard basis.
Representation:	Ms Lilly Ramo for the First and Second Claimant Mr. D Marahare for the Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Creed v Perex [1988] HCA 64; [1998] 166 C.L.R 351, McCrohon v Harith [2010] NSWCA 67, Stroms Bruks Aktie v John and Peter Hucthison [1905] UKLawRpAC 52; [1905] A.C. 515, Solomon Star Ltd v Wale [2016] SBCA 10, Goh v Yam [1993] SBHC 43, Day v Kabui [2024] SBHC 65, Wale v Solomon Star Ltd [2015] SBHC 9, Sikua v Tradewind Investment Company Ltd [2010] SBHC 95, Wale v Philip [2011] SBHC 144, Goh v Tuhanuku [2016] SBHC 175, McNiel v Solomon Star [2023] SBHC 41, Uren v John Fairfax & Sons PTY Ltd [1966] HCA 40, Rookes v Barnard [1964] UKHL 1; [1964] A.C 1129

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 585 of 2023

BETWEEN

SOLOMON MOTORS LIMITED
First Claimant

AND:

CRAIG DAY
Second Claimant

AND:

GEORGE HERMING
Defendant

Date of Hearing: 11 September 2024
Date of Ruling: 2 October 2024

Ms Lilly Ramo for the First and Second Claimant
Mr. D Marahare for the Defendant

RULING ON ASSESSMENT OF DAMAGES

Aulanga; PJ

1. This is an assessment of damages for defamation following the granting of default judgment on 16 April 2024. The only issue for the Court to determine is the appropriate head and quantum of damages that should be awarded to the Claimants.
2. Five different heads of damages, recognised in common law and adopted into our jurisdiction, were sought in the reliefs against the Defendant namely;
   • (a) Compensatory damages;
   • (b) General damages;
   • (c) Exemplary damages;
   • (d) Aggravated damages; and
   • (e) Punitive damages.
3. Defamation is a tort in common law. The law seeks to protect the good reputation of individual and corporate entity from unlawful and malicious publications. Hence, a defamatory publication is unlawful unless the publication is protected, privileged or excused by law. The general proposition in law is that when the Court determines the category and amount of damages, it has the effect of converting the value of the injury suffered into money terms. This is stated by Mason CJ in Johnson v Perez; Creed v Perex^[1]:
   • “When a court assesses damages, it converts the value of the injury into nominal terms; it fixes or liquidates that value. That conversion into monetary term avoids the difficult task inquiring into the value of goods and services over time and is necessary for the stability of economical legal relationships. The theory according to which damages are awarded by the Court is that a plaintiff’s loss or injury can be adequately compensated by a lump or fixed sum of money.”^[2]
4. Damages in defamation are at large cannot be assessed by reference to any mechanical, arithmetical or objective formula. The Court is entitled to take into consideration a wide range of matters including the conduct of the Claimant, his credibility, his position and standing and the subjective impact that the libel has had on him, the nature of the libel, its gravity and the mode and extent of its publication, the absence or refusal of any retraction or apology, and the conduct of the defendant from the time when the libel was published down to the verdict. In this present proceeding, since different heads of damages were sought, it is important, for the purpose of this ruling, to briefly explain those categories of damages.
5. Compensatory damages according to McCrohon v Harith^[3] are damages aim to place the Claimant in the same position financially as if the wrong had not occurred. Compensatory damages are interchangeably used with aggravated damages. This category of damage is commonly ordered in cases involving breach of contract and tort where there is evidence of the Claimant suffering financial loss as a result of the wrong.
6. General damages according to Lord McNaughton in Stroms Bruks Aktie Bolag v John and Peter Hucthison^[4], are those damages which the law will presume to be the direct, natural or probable consequences of the act complained of. They can be awarded for both pecuniary loss and non-pecuniary loss.
7. Exemplary damages, are damages awarded to punish and deter the wrong doer or defamer. An example of exemplary damages is punitive damages. In Solomon Star Limited v Wale^[5], the Court of Appeal explained that exemplary damages “may be appropriate when there is evidence of oppressive, arbitrary or unconstitutional action by the servants of government, or where there is evidence of a calculated attempt at making a profit from the defamation which may well exceed the damages payable.”^[6]
8. Aggravated damages differ from exemplary damages. However, its distinction has not been clearly explained which can give rise to confusions. A fine distinction can be that they are usually awarded as compensation whereas exemplary damages are to punish and deter the defamer, and are not awarded as compensation for the loss and injury.^[7] As said by Lord Delvin in Rookes v Barnard^[8], aggravated damages are “given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances and the manner of the defendant’s wrong doing. On the other hand, exemplary damages are awarded to ‘punish and deter’ the wrong-doer though, in many cases, the same set of circumstances might well justify either an award or exemplary or aggravated damages.”^[9] Punitive damages are examples or species of exemplary damages. They, as held in Goh v Yam^[10] are to “teach the wrong doer that tort does not pay.”^[11]
9. Having clarified those damages sought and with regards to this proceeding, the accepted facts showed that the defamatory statements (libel), the subject of assessment, are the publications the Defendant made on Facebook on 22 November 2023 against the Claimants in the following manner:
   • “George Herming
   • Hope your unpaid workers bills have been paid
   • Craig Day
   • George Herming, there are no unpaid workers bills within our business. Retract the statement and publicly apologise immediately.
   • Reply
   • George Herming
   • Craig Day I am aware of your trade dispute issue Sir, let’s see the outcome first.
   • Craig Day
   • George Herming
   • Reread my post
   • Reply
   • George Herming
   • Craig Day whatever
   • Reply
   • Craig Day
   • George Herming
   • Your post was written recklessly on this thread to create damage to the reputation Solomon Motors Limited and myself. The post is totally false and amounts to significant defamation against Solomon Motors Limited and myself. We require a full public apology in the Solomon Star by Friday.
   • Reply
   • Edited
   • George Herming
   • Craig Day. Where did I mention Solomon Motors? It’s you yourself that said it no. I won’t apologise.
   • Reply
   • Craig Day
   • George Herming
   • Reread my post and act on it.
   • Reply
   • Edited
   • George Herming”
10. As revealed above, the only defamatory words are the reference to the unpaid bills of the Claimants’ employees which construed to have ridiculed and disrepute the business and personal reputation of the Claimants. Facebook can be a tool or platform if used inappropriately can aid the making of defamatory publications as held in Day v Kabui^[12]. There is no law at present that exempt or give impunity to Facebook users from defamation.
11. In determining the applicable and appropriate damages, the starting point is by reference to Wale v Solomon Star Ltd^[13], where the Court explained that general damages would inevitably apply and ought to be considered first before other heads of damages.
12. In assessing the appropriate award, the Court in Goh v Yam^[14] has made it clear that the award must be an adequate and fair compensation, and must be reflective of the local context of Solomon Islands.
13. The defamatory words in this present case when properly construed in light of the Court of Appeal decision in Solomon Star Limited v Wale^[15], in my view only attract general damages. I reached this conclusion on evidentiary basis. That is, there is no evidence of oppressive or unconstitutional action said to be done by the Defendant against the Claimants. Further, there is no evidence that the Defendant has been financially benefitting from the publication of the defamatory statements. Furthermore, and as rightly pointed out by counsel for the Defendant, there was no publication or reproduction of the materials except to the comments made by the Defendant on the Facebook media. Besides, there is no evidence of financial loss of the Claimants’ business as a result of the libel. For these reasons, the other heads of damages are therefore not appropriate.
14. I have considered the nature of the defamation of this case and compared it to past defamation cases to ascertain what should be the appropriate award under the head of general damages such as those decided in Goh v Yam^[16], Sikua v Tradewind Investment Company Limited^[17], Wale v Philip^[18], Wale v Solomon Star Limited^[19], Goh v Tuhanuku^[20], McNeil v Solomon Star^[21] and Day v Kabui^[22]. In my view, the culpability of the Defendant is not that serious as in the case of Wale v Solomon Star Limited^[23] where an award of $200,000 was imposed or below to that of Goh v Yam^[24] where an award of $2000 was awarded by the Court. The nature of this case falls between these two cases.
15. The only publications said to be defamatory were in relation to the Claimants unpaid bills to their workers which the Defendant published on the Facebook and his refusal to apologise when requested by the Second Claimant which construed to be deliberate and intentional. The imputation from that publication in their natural and ordinary is that the Claimants were unable to pay their employees bills which were false and defamatory to the Claimants. Despite they may have served some purpose, they cannot be taken as fair comments.
16. I understand the Defendant is a journalist by profession and was a senior employee of the Solomon Islands Government at the time he made the defamatory statements. However, when properly construing the defamatory statements, it is my view that he should only be held accountable to a fair compensation and not one that seeks punishment or deterrence on him.
17. There is submission pointing to the right of the Defendant to make comments on the Facebook media. Whilst that is understandable, the exercise of that right is not absolute but it also comes with care and responsibility. In Day v Kabui^[25], I made these comments:
    • “While in this modern era, Facebook media provides an efficient and fastest way of communication, the right to use and make comments on Facebook is not absolute but qualified and subjected to certain restrictions imposed by the law. The law, especially the law of defamation in tort, requires a Facebook user to take responsibility, accountability and caution when making publications on Facebook. This is to avoid an infringement of rights of another which can be actionable in the Court.”^[26]
18. The comments made by the Defendant on this media platform somehow went beyond what was required as fair comments. Be it due to heated or acrimonious exchange of Facebook comments or something else, it should be within the boundaries of fair and reasonable comments as permitted by the law. As a journalist, he should know better not to make comments that would injure or disrepute the status of the Claimants. In this case, I find the statements despite their brevity, have caused injury to the good reputation of the First Claimant as one of the reputable businesses in the country and the Second Claimant as the Chief Executive Office of that business. It could have a very serious repercussion on the business, responsible for providing fuel services, accommodation, vehicle hiring and many more for the public within the Honiara city if the defamatory statements are serious and widespread. The Claimants must be compensated by way of general damages for the wrong done by the Defendant.
19. The obvious question is whether both Claimants should be awarded general damages. In terms of the First Claimant, the law is that the damages that are recoverable by a company in a defamation suit are only for financial loss. The reason for this is simple, that is, a company cannot be injured in its feelings, it can only be injured in its pocket. The injury need not necessarily be confined to loss of income. Its goodwill and reputation may also be injured. I accept the good reputation of the First Claimant has been tarnished as a result of the defamation despite no financial loss. For these reasons, the First Claimant must be awarded damages.
20. In relation to the Second Claimant, there is no doubt that as a Chief Executive Officer of the First Claimant, the publication made in the Facebook for public viewing regarding his company’s inability to pay the outstanding bills of his employees would no doubt bring hurt and injury to his feelings and reputation. These must be remedied by way of damages.
21. The injury caused to the reputation of the Second Claimant can be better understood in the summation by Windeyer J in Uren v John Fairfax & Sons Pty. Ltd^[27] as follows:
    • “A man’s reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurable. 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 a 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. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations. One of these is the conduct of and the intentions of the defendant, in particular whether he was actuated by express malice. Yet in the abstract the harm that a plaintiff suffers cannot be measured by, nor does it necessarily depend at all upon, the motive from which the defendant acted or upon his knowledge or intentions.”^[28]
22. The Claimants’ counsel sought $100,000 for general, compensatory and aggravated damages, and $20,000 for exemplary damages. The total award sought is $120,000. I have already decided that only general damages are the appropriate head of damages to be considered in this case. The other heads or categories of damages are refused. I have considered that amount and in light of the nature of the defamatory publications for this proceeding, it is my view that the amount sought is too extreme and excessive. Align with the trend of the awards in defamation cases in this jurisdiction, the appropriate damages I order to be paid by the Defendant to the Claimants is $20,000.

Orders of the Court

1. Award claim for general damages in the sum of $20, 000 against the Defendant.
2. Refuse to award claim for compensatory, exemplary damages, aggravated and punitive damages as sought in the claim.
3. Cost of this proceeding is to be paid by the Defendant on standard basis.

THE COURT
Augustine Sylver Aulanga
PUISNE JUDGE

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^[1] [1998] 166 C.L.R. 351
^[2] Page 355
^[3] [2010] NSWCA 67
^[4] [1905] UKLawRpAC 52; [1905] A.C. 515 at page 515
^[5] [2016] SBCA 10
^[6] At paragraph 18
^[7] Maclnees. A, HANDBOOK ON DAMAGES, Law Book Company, 1992.
^[8] [1964] A.C. 1129
^[9]At page 1229
^[10] [1993] SBHC 43
^[11] At page 5
^[12][2024] SBHC 65
^[13] [2015] SBHC 9
^[14] [1993] SBHC 43
^[15] [2016] SBCA 10
^[16] [1993] SBHC 43
^[17] [2010] SBHC 95
^[18] [2011] SHC 144
^[19] [2015] SBHC 9
^[20] [2016] SBHC 175
^[21] [2023] SBHC 41
^[22] [2024] SBHC 65
^[23] [2015] SBHC 9
^[24] [1993] SBHC 43
^[25] [2024] SBHC 65
^[26] At paragraph 10
^[27] [1966] HCA 40; (1966) 117 C.L.R. 118,
^[28] Page 150-151