Oeti v Samoa Observer Company Ltd [2021] WSSC 8 (19 February 2021)

IN THE SUPREME COURT OF SAMOA
Oeti & Anor v Samoa Observer Company Limited [2021] WSSC 8

Case name:	Oeti & Anor v Samoa Observer Company Limited
Citation:	[2021] WSSC 8
Decision date:	19 February 2021
Parties:	OPAPO SOANAI OETI (First Plaintiff) and TOAIPUAPUAGA PATRICK (Second Plaintiff) v SAMOA OBSERVER COMPANY LIMITED, a duly incorporated company having its place of business at Apia (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The Defendant to pay to each Plaintiff the following compensation: First Plaintiff - $16,800 ($33,600 less 50% discount) Second Plaintiff - $52,500 ($105,000 less 50% discount) The Defendant to also pay $3000 towards the Plaintiffs costs.
Representation:	M Lui for the Plaintiffs T Lamb for the Defendant
Catchwords:	Costs (damages) – defamation – general damages – aggravating damages – punitive damages.
Words and phrases:
Legislation cited:	Defamation Act 1993, s. 14.
Cases cited:	Alesana v Samoa Observer Company Limited [1998] WSSC 1; CP 042 1997 (6 July 1998); Apia Broadcasting Ltd v Ponifasio [2012] WSCA 5 (1 June 2012); AG v Niania [1994] 3 NZLR 106; Enosa v The Samoa Observer Company Limited & Ors [2009] WSSC 95; Malifa v Uili [1993] WSCA 6; [1980-1993] WSLR 561; Mauli v University of the South Pacific (5 April 2007), unreported; Mauli v University of the South Pacific (19 September 2008); CA05/07, unreported; McElroy Milne v Commercial Electronics Ltd [1993] 1 NZLR 39; Ponifasio v Apia Broadcasting Ltd [2011] WSSC 136 (13 December 2011); Samoa Observer Company (Apia) Ltd v Oeti [2020] WSCA 7 (4 September 2020); Salmon v McKinnon [2007] NZCA 516; Uili v Malifa [1991] WSSC 2; [1980-1993] WSLR 440.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

OPAPO SOANAI OETI, of Vaitele
First Plaintiff

AND:

TOAIPUAPUAGA PATRICK of Vaitele
Second Plaintiff

AND:

SAMOA OBSERVER COMPANY LIMITED, a duly incorporated company having its place of business at Apia

Defendant

Counsel:
M Lui for the Plaintiffs
T Lamb for the Defendant

Date: 19 February 2021

RESERVED DECISION OF TUATAGALOA J ON DAMAGES

My apologies to the parties for the delay in delivering this decision.

Background

1. The Plaintiffs filed a suit of defamation against the Defendant claiming that nine statements in a Letter to the Editor published by the Defendant on 29 March 2017 were defamatory in their natural and original meaning or in innuendo. I found five of those statements to be defamatory. The Defendant appealed the decision and the Court of Appeal upheld three of the five statements to be defamatory.
2. The issue of damages was not assessed at the time until after the appeal. It is now for me to assess damages on the defamatory statements upheld by the Court of Appeal.

Damages claimed by Plaintiffs[1]

3. The Plaintiffs claim the following damages:
   • (a) General damages of $400,00;
   • (b) Aggravated damages of $200,000; and
   • (c) Punitive damages of $100,000.

The Court of Appeal decision[2]

4. The Court of Appeal upheld three of five statements to be defamatory: (a) Ms. Patrick’s two children were fathered by somebody other than their putative father; (b) at least two of Ms. Patrick’s siblings were aware of her illicit relationship relating to the paternity of her children; and (c) Reverend Oeti and his daughter were in an incestuous relationship. The three statements all link back to the call for DNA tests to be administered.
   • “20. We are satisfied that in their natural and ordinary meaning the words calling for DNA tests to be administered, when construed objectively and in context, called into question the paternity of Ms. Patrick’s children, and implied that someone other than their putative father was their biological father. The passage was defamatory in its suggestion that Ms. Patrick had had an adulterous relationship during her marriage and had been unfaithful to her husband. This damaging sense was compounded by the imputation of possible criminality in the conception process which was conveyed by the call for the Police to become involved in the process and interview Ms. Patrick’s brother and sister. The letter did not restrict the author’s assertion of a need for DNA testing to the matter of immaculate conception.
   • “21. The Samoa Observer made no attempt to justify the truth of the words used. In our judgment they were false and were designed to discredit Ms. Patrick and lower her reputation in the eyes of right - thinking members of Samoan society. The statement in its ordinary meaning defamed Ms. Patrick but not her father.
   • “35. The only plausible reason for involving the Police would be to investigate criminal activity relating to the birth of both Ms. Patrick’s children. The only purpose of requiring DNA tests would be to provide evidence that Reverend Oeti was the children’s biological father. The crime of incest would be proved as a result. And the blogger OLP had explicitly identified Reverend Oeti as the father of Ms. Patrick’s first child, explaining the later call in the letter for DNA tests on both girls.
   • “55. The defamatory sting in the letter was in its call for police intervention to enforce scientific testing for the purpose of establishing the true paternity of Ms. Patrick’s children and its imputation of criminality in their conception. In the absence of this allegation the other allegations about the father and daughter being sick in the head or the father brainwashing his daughter would not have supported defamatory findings. The first statement would have been construed as an intemperate and indiscriminate attack directed at anybody who believed in stigmata, and the second as an assertion about an undesirable but not uncommon aspect of the family relationship. In summary, both statements satisfy the four elements of the fair comment defence; they were statements of opinion based on a factual substratum, on a subject of public interest and were “fair”. There was no finding of malice.

Agreeable

5. Both Counsels are in agreement as follows but differ in how damages are to be awarded:
   • (i) Damages to be awarded;
   • (ii) The benchmark are the damages awarded in Ponifasio v Apia Broadcasting Ltd^[3];
   • (iii) Inflation to incur;
   • (iv) Damages are to be awarded separately for each Plaintiff; and
   • (v) An apology by the Defendant.

Law

6. The purpose of damages is twofold: (i) to impose a sanction on the wrongdoer by holding them accountable for the consequences of their actions, and (ii) to return (or try to) the plaintiff to the position he or she would have been in if the defamation had not occurred. Damages can only be an approximation and will frequently involve a judgment on the part of the court. As Cooke P stated in McElroy Milne v Commercial Electronics Ltd^[4]:-
   • “[I hold to] the basic view that in the end assessment of damages is a question of fact; that there is no such thing as a rule, as to the legal measure of damages, applicable to all cases; and that the ultimate question as to compensatory damages is whether the particular damage claimed is sufficiently linked to the breach of the particular duty to merit recovery in all the circumstances”.
7. In the assessment of damages, the court takes guidance from previous cases in defamation referred to (and including) by Slicer J in Ponifasio v Apia Broadcasting Ltd (supra) as follows:
   • “82. In Alesana v Samoa Observer Company Limited^[5], an award of $50,000 was made for the contents of an editorial. In that case the aggrieved party published a rebuttal of the editorial by the Prime Minister and the trial Judge did not seek to distinguish between general and aggravating damages. Allowance ought be made in the value in the change of money between 1998 and 2011.
   • 83. In Mauli v University of the South Pacific^[6], the Court awarded as compensation the sum of $15,000 but the Court took into account that there had been publication to 'only a handful of people', the response did not entirely remove the sting and damages were to be assessed 'at the lower end of the scale'.
   • 84. The case of Enosa v The Samoa Observer Company Limited & Ors^[7], Nelson J awarded $25,000 as general damages limited because the Plaintiff succeeded in only part of the claim. The case involved a report and editorial of Government and its officers. Much of the material was factually correct and dealt with actions taken by police and Cabinet. The first cause of action was dismissed and the second were upheld. The second cause succeeded on the basis that an ordinary reading of the report would be that the Plaintiff was corrupt in relation to a commercial transaction in a business operated by a family, and there had been a conflict of interest. The Plaintiff had sought general damages of $800,000 and exemplary damages of $200,000. The Plaintiff had not pleaded the particulars of the claim for exemplary damages and it was accordingly dismissed. Nelson J followed the approach taken in Dingle (supra) by Lord Denning at p753 that the Plaintiff "...has not been given by the (defendant newspaper) such a complete withdrawal as he might have been; and he was never given an apology."
   • 86. In the cases of Uili v Malifa^[8] and Malifa v Uili^[10], the Courts awarded compensation of $20,000 in each case. In the latter case, the Court found the defamation to be far less serious.”
8. This Court will follow in general terms the approach taken in Ponifasio (supra) but will award quantum according to the circumstances of the present matter.

Damages in the Ponifasio case

9. Both Counsels agree that the damages in the Ponifasio case is the benchmark to the award of any damages in the present case. Counsels each approached the damages awarded in the Ponifasio case differently.
10. Ms. Lui for the Plaintiffs took the $95,000 awarded as general damages and add the inflation rate of 14% for the nine (9) year period since 2011^[12] which comes to $308,935.12 for each Plaintiff.
11. Mr. Lamb for the Defendant disagrees. Mr. Lamb highlighted that the Court of Appeal^[13] found that the award of damages in Ponifasio had doubled dipped. The Presiding Judge had used the highest award of $50,000 in Alesana v Samoa Observer Company Limited as the Court’s base applied inflationary rate^[14] increasing it to $80,000 and then awarded a further $40,000 for aggravated damages. The “double dipping” Counsel was referring to is the further addition of aggravated damages whereas in Alesana that had already been included in the award of $50,000. The Court of Appeal in that matter addressed the issue by reducing the general damages by $15,000. Mr. Lamb submits that this in effect means that the highest award to date in the Samoan jurisdiction for general damages for the most serious defamation is $65,000. Nonetheless, the general damages awarded was $95,000 and that is the benchmark that this Court will adopt.

Inflation Rate

12. Although both Counsels agree that the Ponifasio case be the benchmark and there should also be inflation, they differ in the inflation rate to apply.
13. In Ponifasio, there was no mention by Justice Slicer of the inflation rate he used, where and how he obtained the inflation rate used or why the rate he used was appropriate so as to provide some guidance on inflation rates to use.
14. Given that the Courts have accepted to apply inflation where relevant and appropriate, it is therefore crucial that for consistency the Court is to look at an appropriate source(s) to gauge the inflation rate from.
15. Ms. Lui applied 14% inflation as applied by the Banks. I do not find this rate appropriate; it not only too high but it is inflation rate used by commercial banks that operate solely to make a profit. Most importantly, there was no documentary evidence provided to the Court to substantiate the claim of 14% as the average inflation rate used by the Banks in Samoa in the last 8-9 years.
16. Mr. Lamb provided the court with the official inflation rates for Consumer Price Index published by the Samoa Bureau of Statistics for the years 2013 – 2020^[15] and suggested as appropriate the yearly average rate of 1.26%. Mr. Lamb’s submissions on the appropriate inflation and source is considered to be sound.

Methodology for Assessment of Damages

17. I adopt the following methodology in the assessment of damages to be awarded:
    • (i) Set an amount inclusive of (any) aggravating factors.
    • (ii) Apply the inflation rate; and
    • (iii) Discounts by way of (any) mitigating factors.
18. Justice Slicer in the Ponifasio case, said the range of awards was between $20,000 for less serious defamation an,000 for more seriousrious imputations. As said earlier, this Court will follow the approach in Ponifasio but will award quantum according to the circumss of the present matter.
19. I turn now to discuss and assess damages to be awarded.

Damages

20. Plaintiffs must allege and prove their loss and should then be compensated accordingly. The Court of Appeal in Oeti in relation to liability and assessment of damages says “...a witness’ reaction is irrelevant to the application of the objective test when determining liability (as opposed to an assessment of damages if liability is found).”^[16]
21. The point of damages is to put the Plaintiffs in the position they would have been had they not been defamed. What position was each Plaintiff in prior to being defamed? What evidence of any ‘adverse effects’ suffered by the Plaintiffs?
22. Tipping J stated in AG v Niania,^[17], “Circumstances of aggravation can justify an increase in compensatory damages just as circumstances of mitigation can justify a decreased award.”

General damages

23. The Plaintiffs advised the Court that they are not pursuing aggravated damages but instead have amalgamated aggravated damages under ‘general damages’ to the tune of $600,00 as opposed to what they pleaded in their Statement of Claim of $400,000 for both Plaintiffs.
24. I accept the amalgamation for aggravated damages are compensatory in nature and apply to torts which cause injury to feelings or reputation, such as defamation. Tipping J stated in AG v Niania:^[18]
    • “Rather than treating compensatory and aggravated damages as distinct categories of damage, it is in my view better to concentrate on the compensatory function of damages (other than exemplary). Where appropriate a greater sum is necessary to compensate the plaintiff for the injury suffered because of the way in which or the circumstances in which the tort was committed.”
25. However, I find the improved amount to be grossly excessive.
26. The subject matter of ‘stigmata’ was a matter of public interest. Ms. Patrick’s claim to have experienced stigmata in 2016 was well publicized. This stigmata expee by Ms. Ms. Patrick was corroborated by her father, Mr. Oeti (First Plaintiff). In that sense, both Ms. Patrick and Mr. Oeti can be said to be public figures.
27. Apart from the Plaintiffs evidence, the only other evidence offered by the Plaintiffs was that of a Reverend Misiparatiso who was only told about the letter and what was on OLP who said that he did not believe any of what was written about the Plaintiffs. In that regard, the evidence of Reverend Misiparatiso is of no weight to the issue of damages.
28. There was no evidence of any other ‘adverse effects’ suffered by the Plaintiffs.
29. The Court of Appeal finds that the “sting” in the letter was its call for police intervention for DNA tests to establish true paternity of Ms. Patrick’s children.^[19] The statement in its ordinary meaning defamed Ms. Patrick but not her father.^[20] The innuendo meaning of the words used in the letter about the relationship between Reverend Oeti and Ms. Patrick and the paternity of Ms. Patrick’s children was defamatory of both.^[21]
30. I consider the defamatory statements against a person’s morals is of a very serious nature especially so when that person as in the case of Ms. Patrick is a married woman and the daughter of a Church Minister who in the Samoan context exemplifies good and ethical behaviour. To imply an incestuous relationship between the father and his daughter and the father being a man of the cloth is callous.
31. The Samoa Observer is the most widely distributed newspaper in Samoa but it is also published on line. As such it has a wider audience not only locally but also overseas.
32. The Samoa Observer editor, Mr. Mataafa Keni Lesa admit that they did not give the Plaintiffs an opportunity to respond or to provide their views as to the contents of the letter before they published especially so if such a letter could be defamatory.
33. There is no doubt that the defamatory statements have caused both Ms. Patrick and Mr. Oeti distress and humiliation more so to Ms. Patrick than Mr. Oeti. In that regard award of damages will not be the same for each Plaintiff.
34. I assessed the inflated general damages to be:
    • First Plaintiff - $33,600 ($30,000 @1.26% from 2012 – 2020)
    • Second Plaintiff - $105,000 ($95,000 @ 1.26% from 2012 – 2020)

Punitive Damages

35. The Plaintiffs are claiming punitive damages of $100,000 for the breach of JAWS Code of Ethics but taking into account the existing award in general and aggravated damages.
36. Punitive damages are awarded where the defendant “acted in flagrant disregard of the rights of the plaintiffs”. Punitive damages need to be pleaded. In the present matter Ms. Lui for the Plaintiffs agree that they did not plead punitive damages but had only include it in their prayers for relief.
37. In any event, I have already taken into account in the general damages as an aggravating factor the fact that the Plaintiffs were not given with the opportunity to respond or provide their views before the Defendant published the letter.
38. I turn now to discuss any mitigating factors.

Mitigating factors

(a) Apology^[22] and Retraction

39. The Defendant published a retraction of the letter which refers to the police moving in to do DNA testing and also apologised to the Plaintiffs and their families two days after the letter was published.
40. Ms Lui said that the apology should be treated “partly” as it only sought to retract one sentence and not all the defamatory content. If anything (she said) it should only amount to 10% discount. Mr Lamb on the other hand suggests a starting point of 50% discount as the letter sought to retract reference to the ‘police moving in and DNA testing’ which sentence the Court of Appeal found to have the ‘sting’.
41. I agree that the sentence retracted is where the ‘sting’ is and the apology was to the Plaintiffs and their families. The apology and retraction was published in the Samoa Observer newspaper which has a wider distribution.

(b) No Malice

42. The Plaintiffs did not plead any malice on the part of the Defendant nor was there evidence of any malice on the part of the Defendant.
43. I give the mitigating factors a 50% discount.

Result

44. The Defendant to pay to each Plaintiff the following compensation:
    • First Plaintiff - $16,800 ($33,600 less 50% discount)
    • Second Plaintiff - $52,500 ($105,000 less 50% discount)
45. The Defendant to also pay $3000 towards the Plaintiffs costs.
    

JUSTICE TUATAGALOA

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^[1] Statement of Claim dated 3 May 2017
^[2] Samoa Observer Company (Apia) Ltd v Oeti [2020] WSCA 7 (4 September 2020).
^[3] Ponifasio v Apia Broadcasting Ltd [2011] WSSC 136 (13 December 2011).
^[4] McElroy Milne v Commercial Electronics Ltd [1993] 1 NZLR 39 at 41. Although that was a contract case, the approach is clearly applicable to all instances of compensatory damages.
^[5] Alesana v Samoa Observer Company Limited [1998] WSSC 1; CP 042 1997 (6 July 1998)
^[6] Mauli v University of the South Pacific (5 April 2007), unreported; Mauli v University of the South Pacific (19 September 2008); CA05/07, unreported
^[7] Enosa v The Samoa Observer Company Limited & Ors [2009] WSSC 95.
^[8] Uili v Malifa⁹ [1991] WSSC 2; [1980-1993] WSLR 440
^[10] Malifa v Uili¹¹ [1993] WSCA 6; [1980-1993] WSLR 561
^[12] Ponifasio case was decided in 2011.
^[13] Apia Broadcasting Ltd v Ponifasio [2012] WSCA 5 (1 June 2012)
^[14] There was nowhere in the judgment to say what inflationary rate the presiding judge used.
^[15] 2013 being the year after the appeal of the Ponifasio case; 2020 being the year the issue of damages for the present matter was heard.

[16] Salmon v McKinnon [2007] NZCA 516 at [41] – [43] referred to in Samoa Observer Co (Apia) Ltd v Oeti [2020] WSCA 7 (4 September 2020)

^[17] AG v Niania [1994] 3 NZLR 106
^[18] AG v Niania [1994] 3 NZLR 106

[19] Samoa Observer Co (Apia) Ltd v Oeti [2020] WSCA 7 (4 September 2020) at [55]

^[20] Supra at [20]
^[21] Supra at [40]
^[22] Defamation Act 1993, section 14