Taufa v Editor of Taimi 'O Tonga [2001] TOLawRp 17; [2001] Tonga LR 101 (1 June 2001)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 458/2000

Taufa

v

Editor of Taimi 'O Tonga

Ward CJ
29, 30 May 2001; 1 June 2001

Defamation – publication of correction and apology far less prominently than article – showed lack of intent to remedy the wrong
Damages – calculated based on effect on plaintiff - not his family

The plaintiff was a serving police officer and, in early April 2000, was a passenger in a car that was the cause of an accident which resulted in the death of one young woman and injury to another. On 15 April 2000, the Taimi 'o Tonga published, on page 3, a prominently displayed report of the accident and death including a photograph of the victim. The article suggested that the plaintiff was driving the vehicle at the time and that the police investigation of the case was being delayed because the plaintiff is the son of a senior officer of the Prisons Department. The father of the plaintiff spoke on the telephone to one of the editorial staff of the paper in Tonga and pointed out the falsity of the allegation. He was told the other man did not care to speak to him and that he should speak to a lawyer. The plaintiff's father did so and, on 17 April, the lawyer wrote to the newspaper pointing out that the report was false and had caused considerable distress to the plaintiff and his family. The letter sought publication of an apology and correction and payment of $5,000 and modest costs as compensation for the tort. Although the letter required an answer within 14 days, no reply was received. However, an apology was published in the newspaper on 2 May. It was on page 27 and was displayed far less prominently than the original article. No defence was filed and judgment was given on liability against both defendants. A hearing was held to assess the appropriate level of damages.

Held:

1. It was clear that the article had a very unfortunate effect on the members of the plaintiff's family. However, the damages were to the plaintiff for the effect on him of the article. Any effect on his family would not be part of the award except to the extent that it caused the plaintiff added distress to know that the untrue allegation had caused his family to doubt and to criticise him.

2. Any correction and apology should have been full and given similar prominence to the original article. When the correction and apology have been published so it was less likely to be seen and was in less than complete terms, it may be evidence that the intention was to avoid doing all that was reasonable to remedy the wrong. The Court was satisfied that was the case.

3. The Court awarded general damages of $5,000 and costs.

Counsel for plaintiff: Mrs Vaihu
Counsel for defendants: Mr Tu'utafaiva

Judgment

The plaintiff is a serving police officer and, in early April 2000, was a passenger in a car that was the cause of an accident which resulted in the death of one young woman and injury to another. On 15 April 2000, the Taimi 'o Tonga published, on page 3, a prominently displayed report of the accident and death including a photograph of the victim. The article suggested that the plaintiff was driving the vehicle at the time and that the police investigation of the case was being delayed because the plaintiff is the son of a senior officer of the Prisons Department.

The first that the plaintiff and his family knew of the article was a number of telephone calls from members of their family in New Zealand who had read it. The father of the plaintiff spoke on the telephone to one of the editorial staff of the paper in Tonga and pointed out the falsity of the allegation. He was told the other man did not care to speak to him and that he should speak to a lawyer.

The plaintiff's father did so and, on 17 April, the lawyer wrote to the newspaper pointing out that the report was false and had caused considerable distress to the plaintiff and his family. The letter sought publication of an apology and correction and payment of $5,000 and modest costs as compensation for the tort.

Although the letter required an answer within 14 days, no reply was received. However, an apology was published in the newspaper on 2 May. It was on page 27 and was displayed far less prominently than the original article. It stated:

"Correction

Correction is hereby made to the news of the 11 April, which shows that Halatoa Taufa was driving the vehicle that caused the accident resulting in death. Correction is hereby made that Halatoa was only a passenger and he was not the driver. Any inconvenience caused by the article is hereby regretted."

No defence was filed and judgment was given on liability against both defendants. A hearing was held to assess the appropriate level of damages.

There can be no doubt that that this was a serious libel. It was totally untrue and was published without any attempt to confirm the facts. The fact the plaintiff was a serving police officer makes the allegation in a case such as this more serious. However, the defence points out that the plaintiff had just been awarded the Baton of Honour and he had been celebrating. In the car with him were two prison officers, one of whom was the driver, and they had all been drinking. The plaintiff admitted he was drunk and they were all on their way to a dance. He agreed he took no steps to stop his drunken companion from driving.

The plaintiff gave evidence of the effect the report had on his colleagues in the police force and the probable effect on his career. I consider the undisputed allegations about his conduct on that night would have a similar effect and reduce any damages in relation to his work.

It is clear that the article had a very unfortunate effect on the members of the plaintiff's family. However, the damages in this case are to the plaintiff for the effect on him of the article. Any effect on his family will not be part of the award except to the extent that it caused the plaintiff added distress to know that the untrue allegation had caused his family to doubt and to criticise him.

The attitude of the staff member of the newspaper was unfortunate but it is correct that an apology was published. Counsel for the plaintiff criticises it on a number of grounds. It was given nothing near the prominence of the original article, it was limited in its correction and, in particular, it did not correct the unfounded suggestion that the police enquiry was being delayed because of the position held by the plaintiff's father. Those criticisms are well founded.

Such a correction should be full and should be given approximately similar prominence to the original article. In this case the original article was prominently displayed on the third page in the part of the paper carrying major news. The apology was small, on the twenty seventh page immediately above a number of far more prominent advertisements.

If a newspaper publishes an article that is shown to be incorrect but then publishes an apology and correction, it will go some way to reducing the damages. Not only does it show an intention to correct the wrong but it helps negative any suggestion of malice. When as here, the apology is published so it is less likely to be seen and is in less than complete terms, it may be evidence that the intention was to avoid doing all that is reasonable to remedy the wrong. I am satisfied that is the case here.

There was no dispute the article was wrong and it was wrong on two extremely damaging facts. Despite that, the manner of the publication of this retraction suggests that the paper had little interest in properly correcting its error. The court will always consider the spirit and intention of the party who publishes the defamatory article and I have taken that into account in my assessment of damages.

At the same time, the complaint of counsel for the plaintiff that the correction was incomplete must be seen against the request by the plaintiff's lawyer. When such a retraction is sought, it is sensible to draft a suggested form to be printed. Had that been done here, the failure to include a correction of the suggestion about the investigation may not have occurred.

The statement of claim sought damages of $10,000 under each of three heads of general, aggravated and punitive damages.

Damages in defamation cases differ in some ways from other torts. Proof of actual damage is not necessary and the damages are at large. The court must attempt to assess an appropriate figure to compensate the victim of the libel for the distress and hurt that has been caused. It is relevant to that also to consider the extent of the publication. This is a newspaper that circulates in a number of other countries where there is a significant Tongan population. The court will, in such a case, always take into account the undeniable fact that many of the people who have read and believed the false statement may continue to believe it and the victim is left to some extent with the feeling that people he meets may still believe the worst of him in relation to the allegations.

The attitude of the defendants may aggravate the award but, in most cases, that will be taken as part of the assessment of general damage. As I have pointed out, the attitude shown by the defendants in the way the apology was published is a matter that has aggravated the award in this case to a limited degree.

Whilst it may be appropriate in some case to award punitive damages, they are generally only awarded where the court considers that the general damages, after taking into account any aggravating factors, do not sufficiently punish a particularly bad case. I do not consider punitive damages are appropriate in this case.

In the circumstances, I consider a proper award in this case is one of $5,000 general damages. The defendants must also pay the plaintiff's costs.