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Lambu v Dugube [2006] PGNC 226; N3082 (7 September 2006)

N3082

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 897 OF 1994

BETWEEN:

DAVID LAMBU

Plaintiff

AND:

GEORGE DUGUBE

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Kandakasi, J.
2005: 14 & 15 November
2006: 17 March
7 September

DEFAMATION – Letter containing allegations against plaintiff written by a third party and published by first defendant –Apology and compensation sought from original publisher of letter - No final and satisfactory settlement with original publisher - Allegations proven false – Defendants'' failing to establish truth of allegations before publishing – Whether first defendant acted on a frolic and detour of his own – State failing to take issue– State vicariously liable for the acts of its servants – Liability established against both defendants.

EMPLOYMENT – Employee publishing defamatory material – whether acting within cause of employee – Use of employer''s vehicle, doing normal routine duties –Employer vicariously liable – Employer liable at common law – Defamation Act codifies and adopts principles on vicarious liability of employers for the actions of it employees – Sections 1(1) and (2) and 17 of the Defamation Act..

DAMAGES – Damages for defamation – Measure of damages – Plaintiff under obligation to properly pleaded his special and out of pocket expenses with particulars – Effect of – No right to lead evidence and get any damages for matters not pleaded – No basis to asses and award special damages - General damages of K80,000.00 awarded.

LEGISLATION – Defamation Act – Codification of common law on defamation – Employers can be liable for conducts of employees actions in the cause of their employment – Section 17 defence a specific defence and is of no general application – Section 1(1) and (2) and 17 of the Defamation Act.

PRACTICE & PROCEDURE – Pleadings – Plaintiff required to plead his damages or loss with particulars - Failure to so plead – Effect of – No right to lead evidence and get damages not pleaded – Defendant under an obligation to plead any statute or defence that would render the plaintiffs claim not maintainable – Failure to so plead - Effect of – Defendant not at liberty to raise the defence at trial and succeed - O. 8 r 14 and r 85.

Papua New Guinean Cases Cited:
Henzy Yakham & Ors. v. Stuart Hamilton Merriam & Anor. (30/07/99) SC617.
Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau & Moresby Claims Adjustment Partners Ltd (16/08/02) N2277.
Moresby Claim Adjustment Partners Ltd & Benny Diau v. Wyatt Gallagher Basset (PNG) Limited (15/08/03) SC 713.
PNG Aviation Services Pty Ltd & Ors v. Michael Thomas Somare & Ors (20/12/96) N1493.
Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (27/09/02) SC694.
David Kofowei v. Augustine Siviri & Os [1983] PNGLR 449.
The State v. David Wari Kofowei & Ors [1987] PNGLR 5.
Linda Stanley v. Mathew Kawa & The Independent State of PNG (28/07/05) N2865.
Desmond Huaimbukie & 7 Ors v. James Baugen & The Independent State of Papua New Guinea (16/07/04) N2589.
Arlene Pitil v. Rutis Clytus & 3 Ors (01/08/03) N2422.
Philip Kunnga v The Independent State of Papua New Guinea 282/07/05) N2864.
David Coyle & Ors v. Loani Henao (30/11/00) SC 655.
David Baros and Cecilia Baros v. Valarenao June Lumayak.
Eriare Lanyat & Anor v. The State [1997] PNGLR 253.

Text Books Cited:
LB Curzon, A Dictionary of Law, Richard Clay (The Chaucer Press) Ltd, Bungay 1979, 95.
Raymond E. Brown, The Law of Defamation in Canada, Carswell, 1987

Counsel:
Mr. P. M. Dowa, for the Plaintiff.
Mr. L. Manua, for the Defendants.

7 September 2006

1. KANDAKASI J: I conducted a trial on both liability and quantum in this case on the 14 and 15 of November 2005. At the end of the trial, I directed the parties to settle out of Court if they could within 14 days. Also, I directed them to file their submissions within a further fourteen (14) days if they fail to settle. The parties failed to settle and so they filed the last of their submissions on 17 March 2006.

Plaintiff''s Claim

2. The plaintiff who is a senior lawyer now in the employ of the State with the Solicitor General''s Office is suing the defendants for damages allegedly for publishing defamatory material against him on or about 1 May 1994. At that time he practiced on his own as a private lawyer. He alleges that certain allegedly defamatory material written by someone else were circulated widely and published by the first defendant who was then in the employ of the State as a policeman. He further claims that the first defendant was acting in the course of his employment. Accordingly, he claims that the first defendant was acting in the course of his employment, thereby forming the foundation for the plaintiff to claim that the second defendant is vicariously liable.

Defendants'' Response

3. Both of the defendants deny the plaintiff''s claim. They claim that the first defendant was carrying out his duties as a policeman when a third party claimed in a written piece of paper that the plaintiff committed the offences of purchasing and supplying a firearm and a carton of ammunition to purposely kill the members of a tribe involved in a tribal fight with one of the plaintiff''s wife''s tribe. They further claim that the first defendant merely received the document containing the alleged defamatory material and merely had it delivered to the plaintiff''s clansmen. This, they argue, did not constitute any publication of any defamatory material by them. Furthermore, the defendant''s claim that, even if there was any publication as alleged by the plaintiff, the plaintiff did not suffer any damages. Accordingly, they submit that the claim should be dismissed.

Relevant Issues

4. From the foregoing arguments, the following appear to be the issues for me to determine:

(1) Are the contents of the allegedly defamatory letter in fact defamatory against the plaintiff?

(2) If the answer to the first question is in affirmative, did the defendants publish the alleged defamatory material against the plaintiff?

(3) At the relevant time, was the first defendant acting within the cause of his employment and not on a frolic and detour of his own?

(4) Is the State vicariously liable for the actions of the first defendant? And

(5) If liability is established against the defendants'', what are the plaintiff''s damages?

The Evidence

5. At the outset of the trial, parties agreed to a number of things. First, they agreed to the Court taking into account their statement of agreed and disputed facts filed on 6 June 2005. That statement sets out the relevant agreed and disputed facts. According to that statement, there is no dispute that on 28 April 1994, there was a letter in Pidgin English (hereinafter ""the letter"") in the following terms:

""TOWARDS MAKOLE LAIN WAN PISIN

MI WAIBEN LAIN BLONG NAINDI VILLAGE I RAITIM DISPELA PAS

Mi Save Pait Wantain Ol Pepere (KOMBATU) Lain wan pisin, tasol ol ino gat Wanpela Gun. Olsem na nau ol itok olsem yu LAWYER, MR DAVID bilong LYAMALA Village ibin baim Wanpela 5 ROUND – long BAREL Wantaim Wanpela CARTRIDGE CARTON NA GIVIM long ol TAMBU Lain Bilong Yu. Olsem na mi tok Save long yupela olsem. Sapos ol pepere i sutim wanpela long mi ORAIT Mi bai kam atap long Lyamala na bai yu Makole bai Kompensatim mi. Olsem na mi laikim yupela mas tokim (DAVID) na KISIM BEK DISPELA GUN Yupela ibin givim long ol Tambu Lain BILONG YU. Sapos yu no KISIM BEK ORAIT BAI MI STAP long Lai bridge na Kukim Wanpela Makole KAR WANTAIM ol PASINDIA STAP INSAIT LONG EN.

EM TASOL.""

6. Translated in to English:

""TOWARDS MAKOLE CLAN

I AM WAIBEN CLAN OF NAINDI VILLAGE IS WRITING THIS LETTER

I used to fight with the Pepere (Kombatu) clan and I have not seen them use any gun. But now I heard that you lawyer, Mr. David of Lyamala Village bought one 5 round –long barrel with one cartridge carton and gave them to your in-laws. I am therefore giving you notice that, if the Peperes shoot one of my people, then I will come up to you at Lyamala and you Makole will compensate me. That is why I want you to tell David and take this gun you gave to your in-laws back. If you do not take it back I will stay at Lai bridge and burn down one of Makole vehicles with the passengers in it.

That is all.""

7. Secondly, the parties agreed that, the allegations in the letter were false. Thirdly, they agree that the plaintiff was at the material and relevant times, a private lawyer based in Port Moresby. He operated on his own, providing legal services to the members of the public for reward or fees. Fourthly, the first defendant drove a police motor vehicle to the plaintiff''s Lyamala village in the Laiagam District of the Enga Province. That was whilst carrying out his routine patrolling of that part of the Sir Okuk Highway and in the course of performing his normal and official duties as a policeman. Hence, in the course of carrying out his duties, the first defendant delivered the said letter to one of the plaintiff''s brothers who was walking along the Highway. Finally, despite having filed his notice of intention to defend, the first defendant did not file his defence. Liability against the first defendant was thus established due to his default in filing and serving his defence.

8. What was not accepted by the defendants and therefore disputed facts are the plaintiff''s claim that, the contents of the letter are defamatory. They take that position because they claim that the contents were not read or published in public by the first defendant at the various locations as the plaintiff claims because they claim that the letter was sealed in an envelope and delivered only to the plaintiff''s brother. Accordingly, the defendants take the position that the plaintiff did not suffer any damages and as such, is not entitled to any damages.

9. The position taken by the parties reshapes the issues for this Court''s determination to only the first, second and fifth issues. I will thus, address each of those issues in the order presented, by reference to the evidence and the relevant facts emerging there from and the law on point.

Are the Contents of the Letter or Publication defamatory?

(a) The Evidence and Findings of Fact

10. At the trial, the plaintiff adduced into evidence two of his own affidavits deposed to respectively on 29 October 2003 and 30 October 2005[1] and his oral testimony. He also admitted into evidence the affidavits of Pastor Nemboro Taliyanga sworn on 24 September 2003,[2] Yakali Tep sworn on 24 September 2003,[3] Tony Tambi sworn on 27 September 2003,[4] and Thomas Tumbulumb sworn 24 September 2003.[5] All of these witnesses were cross-examined. Hence, they gave oral testimonies in addition to their affidavits.

11. The defendants tendered into evidence in their defence the affidavits of the first defendant and a Paul Waga, both sworn on 28 April 2005. These witnesses also gave sworn testimonies both under examination in chief and cross-examination.

12. These evidences support the facts the parties agreed to as undisputed facts. On the strength of the parties'' agreement and the evidence before me, I find that the plaintiff established those facts. This leaves me to consider the evidence before me and make the relevant findings of facts in relation to the disputed facts.

13. Omitting the evidence successfully objected to, the plaintiff and his witnesses give a consistent account. That was despite cross-examination by the defendants'' counsel. The plaintiff''s case is that, on or about 1 May 1994, the first defendant in the course of his employment with the second defendant as a policeman published, released or circulated the letter, the subject of these proceedings, in public at least at two locations in the Surinki Sub-District, of the Laiagam District in the Enga Province along the Okuk Highway. He did so by waving and or showing to members of two different crowds of people totalling about 500 to 1000 who were present at the two different places and repeating in his own words, the allegations about the firearm and carton of ammunition being bought and supplied by the plaintiff to his in-laws to kill their enemies in a tribal fight. He also allowed the members of the crowd to read the contents of the letter for themselves. He then suggested to members of the plaintiff''s tribe to talk to the plaintiff for him to take his gun and ammunition back and for an urgent negotiated settlement with the Waiben people.

14. Witnesses Pastor Nemboro Taliyanga and Yakali Tep who heard and witnessed what the first defendant did that day, testified to the above account of what happened. They went on to say further with the support of the other witnesses, Toni Tambi and Thomas Tambunlumb that, what the first defendant said of the plaintiff shock their trust and confidence in the plaintiff as a lawyer and a respectable member of his clan and the whole community. They further testify that, members of the crowd to whom the first defendant published essentially the contents of the letter were divided between those who believed and those who did not believe what was said of the plaintiff. Furthermore, the witnesses testified that the publication brought immediately into their minds suggestions that the plaintiff was a criminal, a murderer, liar, conman, not a professional and untrustworthy lawyer, a troublemaker, pretender, conspirator and therefore cannot be a fit and proper person to be a lawyer.

15. The plaintiff''s relatives, including the then Enga Provincial Assembly, Speaker, Mr. Tony Tambi, contacted the plaintiff who was then in Port Moresby and informed him of what the first defendant put to them. They then asked the plaintiff to return to the village and sort the matter out as it entailed danger to himself and his people travelling on the Nandi portion of the Okuk Highway in the Enga Province.

16. The plaintiff went to his village in early June 1994 and met with his people. He informed them that the allegations were false and that they have to sort the matter out with the Waiben people. Having arrived at that decision, the plaintiff and his people went to the Waiben people with a view to identifying the author of the letter and to establish the fact that the allegations were false and demand compensation. The first defendant went with the plaintiff and his people on 5 June 1994 and met with the Waiben people. There, the plaintiff informed the Waiben people that, he was there concerning the allegations and asked them to identify the author and substantiate the allegations as he did none of the things alleged in the letter and was not the kind of person implicated in the letter. He said he was a respected member of the community as a person and as a lawyer.

17. The Waiben people denied any knowledge of the letter and its publication. They were also not able to identify the author of the letter. In the circumstances, the first defendant was asked to identify the person who allegedly delivered the letter to him. He said he did not know the person''s name but could identify the person by appearance, which he did not do. In the circumstances, the Waiben people did not accept any responsibility. However, they paid K29.00 cash and a pig worth K400.00 to show their genuineness and apologies for what had happened and to clear their names. The Plaintiff did not accept this as a full and final settlement of the damages he has suffered and indicated that he would take the matter to Court for damages against those responsible. Eventually, he issued these proceedings toward the end of the same year of the alleged publication.

18. In their defence, the defendants through the first defendant claim that a George Popo delivered the letter to the first defendant in the presence of the witness Paul Waga as they drove along the Highlands Highway doing their routine police patrol. They then took the letter in a sealed envelope and the first defendant delivered it to a man who was identified as the plaintiff''s brother. The first defendant confirms that he accompanied the plaintiff and the plaintiff''s clansmen to the Waiben clan for what they claim was a reconciliation meeting which did take place and resolved the matter with the payment of compensation, consisting of 3 pigs and some cash.

19. I accept the plaintiff''s submissions that there are difficulties attending an acceptance of the defendants'' evidence and therefore their claims. First, the first defendant did not file and serve a defence identifying the author of the letter. Also, in answer to interrogatories filed against them, the defendants said in answer to question 2(a) and (b) that they did not know and cannot say who was the author of the letter. Further, a period of over 11 years passed before the matter came up for trial. Until 24 May 2005, the defendants did not disclose the name of the author of the letter. At the trial, the defendants sought to adduce into evidence an affidavit sworn by George Popo, allegedly the person who authored the letter, identifying himself as the author of the letter. The plaintiff successfully objected to the admission into evidence of that affidavit. I therefore, find that, the identification of George Popo as the author of the letter is a recent invention and as such is not credible.

20. Secondly, I accept the plaintiff''s submission that there are serious inconsistencies in the evidence adduced in Court for the defendants as follows:

(1) The first defendant said in his evidence that he delivered the letter to the plaintiff''s brother, on the identification of an old lady. However, the witness Paul Waga said he knew the plaintiff''s brother so he introduced him to the first defendant. He further testified that, the first defendant and he did not talk to any other person before delivering the letter.

(2) The first defendant said he did not see anyone at Lyamala village whereas, Paul Waga says there were a lot of people.

(3) In answer to interrogatories filed on 8 March 1996, at question 2(3) the first defendant said he was on his own when he came to the plaintiff''s village but in evidence he says he went with Paul Waga.

(4) In answer to question 2(8) of the above interrogatories, the first defendant said the defamatory letter was in a sealed envelope but in his evidence he said the letter was just a ruled piece of paper without any envelope.

(5) Further, in the answers to question 2(5) of the interrogatories referred to above, the defendants said no one accompanied the first defendant but at the trial, the defendants said the witness Paul Waga accompanied the first defendant at the time of receiving the letter and delivering it to the plaintiff''s brother.

(6) In the notice of admitted and disputed facts filed on 6 June 2005, the defendants admitted to the Waiben clan paying to the plaintiff a pig worth K400.00 plus some cash being in compensation. However, in their evidence, they said the Plaintiff was paid 3 pigs and K300.00 cash.

20. Given the dispute in the facts, I watched carefully for the demeanour of each of the witnesses. I found the plaintiff and his witnesses were clear and precise on what they were saying and cross examination failed to create any dent in their individual and overall testimonies. On the other hand, the defendants'' witnesses appeared uncertain and unclear on their testimonies and serious inconsistencies as noted above arose. They did not give me the impression that they were telling the truth and therefore, truthful witnesses. Further, they did not provide any explanation for the departure from their answers to the interrogatories In the circumstances, I accept the evidence of the plaintiff and find in terms of the import of their testimonies as outlined in the foregoing.

(b) Answer to the Question

21. Bearing the above findings of fact in mind, I now turn to the question, are the contents of the letter defamatory? This is a mixed question of fact and law. The factual part concerns the conduct or action alleged against the plaintiff in terms of whether he in fact bought and supplied a gun and carton of ammunition for the alleged stated purpose. There is no dispute between the parties and the evidence confirms that the contents of the letter were false and I so find.

22. The legal issue is dependant on the answer to the factual part of the question posed. Having found that the allegations were false, the legal issue then is, do the contents of the letter amount to defamation of the plaintiff. As noted, the plaintiff claims that the defendants defamed him whilst the defendants say they did not do that. In my view this calls for a consideration as to what constitutes defamation in order to determine whether the defendants defamed the plaintiff as alleged. Section 2 of the Defamation Act[6] defines defamation in the following terms:

""an imputation concerning a person or a member of his family whether living or dead by which the reputation of that person is likely to be injured; or he is likely to be injured in his position or trade or other persons are likely to be induced to shun, avoid, ridicule or despise him.""

23. The Supreme Court in Henzy Yakham & Ors. v. Stuart Hamilton Merriam & Anor.,[7] found this definition exhaustive and added that ""[a]n imputation may be expressed directly or by insinuation or irony."" The Court then held that in order for there to be a case of actionable defamation:

""any defamatory imputation must likely bear the following consequences:-

1. That reputation of that person is likely to be injured;

2. That person is likely to be injured in his trade or profession;

3. Other persons are likely to be induced to sun, avoid, ridicule or despise him.""

24. In my view, however, neither the Defamation Act nor the Supreme Court or any other decision in PNG has clearly stated what kind of imputation could have the kind of consequences outlined by the Supreme Court decision. I find the definition by LB Curzon in his, A Dictionary of Law[8] helpful. The learned author says:

""The publication of a statement which tends to lower a person in the estimation of right thinking members of society. It may be actionable without proof of special damages where it involves, eg, imputation of criminal offence punishable with imprisonment. Defences may be based on justification (or truth) privilege (absolute or qualified), fair comment ...""

25. In Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau & Moresby Claims Adjustment Partners Ltd,[9] I held that, an essential element in an action based on defamation is publication of the alleged defamatory material to third parties, that is, to a person other than the one, the subject of the publication.[10] I considered some overseas cases[11] and noted that, publication could be achieved by the publisher making known to a third party, for example, saying the defamatory words or material in the hearing of a third party or a third party reading the defamatory material if in writing. In the case then before me, I found that the defendant published the alleged defamatory material by getting them typed by a typist in a letter addressed to the Insurance Commissioner. Then in the ordinary course of business, the secretary to the Insurance Commissioner would have received it and read its contents. I found further that, there was further and ultimate publication when the Insurance Commissioner received the letter and read its contents.[12] On appeal, the Supreme Court upheld my decision in its decision delivered on 15 August 2003.[13]

26. In the present case, on the basis of the evidence I accepted and the findings of fact I have just made, I find that the First defendant did publish the letter containing the false allegations against the plaintiff. He did that at two different places in the Lyamala area in the Laiagam District of the Enga Province both by, orally repeating the contents of the letter and in particular, the actual allegations and allowing some of the people present to read the contents of the letter for themselves.

27. The question then is, did the false allegations have an imputation that was likely to injure the reputation of the plaintiff in his trade or profession and that, it was likely to induce shunning, avoidance, ridicule or despise of the plaintiff? Unless properly licensed, it is illegal to purchase and have in one''s possession a firearm and or ammunitions, which acts are criminal. The situation becomes worse when one buys a firearm and large quantities of ammunition to supply to people involved in a tribal conflict or fight and more so when the person allegedly buying and supplying the gun and ammunition is a lawyer. There is a serious element of criminality involved. Lawyers are admitted to practice law on the basis of their undertaking to uphold the law and its authority. The allegations of the type made against the plaintiff do have the potential or likelihood of causing other people to have the kind of impression of the plaintiff as pleaded in the statement of claim and supported by the evidence called for the plaintiff which I have accepted. Those defamatory words had the potential and did in fact suggest to those who heard and read of the allegations against the plaintiff, that the plaintiff was a criminal, a murderer, a liar, conman, an unprofessional and untrustworthy lawyer, a trouble maker, pretender, conspirator and not a fit and proper person to be a lawyer.

28. Any rational human being reading or hearing the contents of the letter could have easily come up with these kinds of inferences and impressions of the plaintiff. It was therefore, incumbent on the first defendant to carryout his own investigations as a policeman to establish the truth of the allegations first before doing anything about it, and more particularly, making it a public issue. On the evidence before me, I find that the first defendant simply failed to ascertain the real facts before acting in the way he acted. In so doing, I find that, he did not act in the way police usually act when they receive complaints from the members of the public suggesting a possible breach of the law. Usually police investigations remain a confidential matter until the investigations are completed and a decision is made either to lay charges against anyone found to have broken the law or not to do so. Only after that stage has been reached, a matter becomes public issue or knowledge. There is no evidence of this procedure being adhered to by the first defendant in this case. Instead, the first defendant proceeded as if the allegations were established as proven facts and went onto repeat the allegations in his own words and allowed other people to read the contents of the letter. In that way, the first defendant held the allegations out as facts. He therefore published the defamatory material even if initially the letter was written by another person.

29. The next question then is, is there any justification for the actions of the first defendant? As noted, the first defendant did not file any defence to the plaintiff''s claim. In the circumstances, the parties agreed to judgment in default being entered against the first defendant. I therefore find that the first defendant published the highly defamatory material especially when he repeated in his own words to the two crowds of people at Lyamala village, false allegations against the plaintiff and allowed other third parties to read for themselves the letter constituting the defamatory material. He is therefore, liable in damages to the plaintiff.

30. As for the second defendant, it did file a defence under the hand of Mr. Francis Damem on 21 February 1995, which merely denies the plaintiff''s claim and says further or in the alternative that, the first defendant published the defamatory material in his personal capacity and not as an authorized officer of the second defendant performing his functions. The State further claims that the publication was not actuated by any ill will toward the plaintiff and in any case, the plaintiff did not suffer any injury or damage either as alleged or at all.

31. There is no dispute that the Defamation Act[14] applies. This is in line with the position taken by Sheehan J. in PNG Aviation Services Pty Ltd & Ors v. Michael Thomas Somare & Ors.[15] which, has been followed by a number of subsequent judgments of the National Court including my own in Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau & Moresby Claims Adjustment Partners Ltd.[16]

32. Proceeding on the premise that the Defamation Act applies, the second defendant raises three points in its defence. First, it argues that s. 17 of the Defamation Act grants a complete defence to it because there is no evidence that it authorized the publications by the first defendant. Secondly, and effectively in furtherance of the first argument, the second defendant argues that the plaintiff''s claim is based on the Defamation Act. Therefore, it argues that it cannot be vicariously liable for the actions of the first defendant within the meaning of s 1 of the Wrongs (Miscellaneous Provisions) Act.[17] The third and final argument of the second defendant is that, the first defendant was acting in his personal capacity and so therefore his actions do not give rise to vicarious liability against the second defendant.

33. Turning first to the argument based on s. 17 of the Defamation Act, I note that the provision in question reads:

""Section 17. Protection of employers

An employer is not responsible for defamation merely by reason of the sale by his servant of a book, pamphlet, print or other thing, whether or not forming part of a periodical, containing defamatory matter, unless it is proved that he authorized the sale, knowing that the book, pamphlet, print or other thing contained the defamatory matter, or, in the case of a number or part of a periodical, that defamatory matter was habitually or frequently contained in the periodical.""

34. There are two problems with the second defendant''s argument. First, the second defendant did not raise this issue in its defence, which I find is a specific statute based. Order 8 r. 85 requires a defendant to specifically plead any defence or protection, justification or excuse at law. Earlier on, O. 8 r. 14 requires a party pleading in a defence or a subsequent pleading to plead specifically any matter, for example, performance, release, any statute of limitation, fraud, or any fact showing illegality that has the effect of rendering the opposite party''s case not maintainable, which if not pleaded, will take the other party by surprise or it raises matters of fact not raised in the previous pleadings. The need to specifically plead with the relevant particulars has been reaffirmed time and time again by both the National and the Supreme Courts in this jurisdiction. One of the latest reaffirmation of that position is the decision of the Supreme Court of which, I was a member in Papua New Guinea Banking Corporation v. Jeff Tole.[18] The pleadings provide the foundation for ones claim either as a plaintiff or as a defendant. As the Supreme Court said in the Jeff Tole[19] case, there can be no award of damages for a plaintiff without any foundation in the pleadings. It means therefore that, in the case of a defendant, he could not be allowed to succeed on a defence, the foundation of which has not been laid in fairness, in the pleadings, to avoid surprise to the plaintiff and costs to the parties. It follows therefore that, the second defendant is at no liberty to raise this issue and succeed.

35. Secondly, the provision the second defendant relies on specifically speaks about ""the sale by his servant of a book, pamphlet, print or other things, whether or not forming part of a periodical, containing defamatory matter...."" To my mind, this defence is specifically for a particular kind of defamatory material, namely, a book, pamphlet, any other print or thing whether in whole or in part which are put up for sale. This is understandable, because the other provisions of the Act already provide for other defenses in defamation cases.

36. In the present case, the publication was not part of something that was put up for sale. Instead, it was on a piece of paper written by a person whose identity was not disclosed immediately or soon after its publication. Further, as I have found on the evidence before me, the first defendant did his own publication by verbally repeating the contents of the letter and allowing other third parties to have a read of the written material as if the allegations contained in the letter were proven facts. Accordingly, I find that s. 17 of the Defamation Act is of no assistance to the second defendant.

37. I now turn to the second of the second defendant''s arguments, which is really a question of which law is applicable in relation to claims based on defamation. This is a very simple issue because the answer to the question is a simple one. Defamation is a tort at common law. The Defamation Act merely consolidates and codifies the common law as we have already noted. In the context of the second defendant''s arguments, I note that s.1 (1) of the Wrongs (Miscellaneous Provisions) Act generally adopts the principle of vicarious liability in respect of all actions based on the common law of tort. That of course, includes defamation which is a tort at common law. I am therefore, of the view that, the applicable law for an action for defamation is the common law of tort as codified in PNG by the Defamation Act.

38. Having regard to the provisions of the Defamation Act, it is clear to me that the Act or any other legislation has not abolished the principle of vicarious liability of an employer for defamation. Instead, it provides generally as to what amounts to actionable defamation and the possible defenses to a claim for defamation. Within that context, as already noted, s.17 merely provides a defence for an employer that it is not liable for defamatory material contained in publications put up for sale. This defence is not however absolute. The provision does make it clear that, if the material offered for sale is habitually produced and offered for sale, the employer is liable for the actions of his employee.

39. Section 1 (2) of the Wrongs (Miscellaneous Provisions) Act provides in clear terms that:

""(1) ... the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a) in respect of torts committed by its servants and agents; and

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.""
(Emphasis supplied)

40. This applies in cases where the acts or omissions of an employee would have given rise to a cause of action in tort against the employee.[20] The liability of the State arises even in cases where the duty or responsibility is imposed on the State as well as other persons.[21] Further, the liability of the State arises where the functions are imposed by statute or the underlying law, which includes the common law on an officer of the State and where a tort is committed in the course of performing or purported performance of his functions as if specific instructions to so perform came from the government of the day.[22]

41. In keeping with this legislative position, many judgments of both the National and the Supreme Courts establish that the State is vicariously liable for the actions or inactions of police officers acting in the course of their duty. Cases that readily come to mind are for example the decision of the National Court in David Kofowei v. Augustine Siviri & Os[23] and the decision of the Supreme Court on appeal, in The State v. David Wari Kofowei & Ors.[24] Cannings J., recently followed these line of authorities in his judgment in the case of Linda Stanley v. Mathew Kawa & The Independent State of PNG.[25]

42. This takes me to the second defendant''s third and final argument against liability that, the first defendant acted in his personal capacity and not in his official capacity as a policeman. This requires a consideration of the functions of a policeman or policewoman and whether or not the first defendant published the defamatory material in the course of performing his official duties or functions.

43. In the Linda Stanley[26] case, Cannings J., correctly, in my view, summed up the legal position on the powers, functions, duties and responsibilities of police officers in these terms:

""The powers, functions, duties and responsibilities of the Police Force and its members are prescribed by Constitutional Law, statute and the underlying law. Section 197 of the Constitution states that the primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament, to preserve peace and good order in the country and to maintain and, as necessary, enforce the law in an impartial and objective manner. Section 140 of the Police Act 1998 states (and Section 139 its predecessor, the Police Force Act Chapter 65 stated) that a member of the Force has the same powers, duties, rights and liabilities as a constable under the underlying law, except in so far as they are modified by or under an Act.""

44. I agree with His Honour''s observation in that case that, if it is established that police officers were acting within the scope of their functions, the State is vicariously liable for actions or inactions of the police officers. The only way in which the State could possibly avoid such liability is where it shows by appropriate evidence that, what the police officers concerned did or failed to do were totally removed from the domain of their authorized actions, which is in keeping with the common law principle of employees being out on a frolic and detour of their own.[27] Applying the later principle, I expressed the view in Desmond Huaimbukie & 7 Ors v. James Baugen & The Independent State of Papua New Guinea,[28] that, if a default judgment resolves the issue of vicarious liability against the State, the State would have great difficulty arguing against the effect of such a judgment. In this case there is already default judgment against the first defendant.

45. However, does that mean that the State is automatically liable for the actions of the first defendant? Whether or not the State should be vicariously liable for the actions or inactions of its officers is dependant on the particular circumstances in which the issue arises. In the present case, there is no argument that the first defendant was at the relevant time in the employ of the State as a police officer. There is also no dispute that, he drove a police labelled State vehicle. Further, there is no dispute that, at the relevant time, the first defendant was on his normal duty as a policeman carrying out highway patrol. Furthermore, there is no dispute in relation to the normal and accepted duties and responsibilities of a police officer, in particular to maintain peace and harmony in the communities, investigate and where appropriate prosecute offenders of the criminal laws of the country. There is no dispute also in this case that, the first defendant received the letter constituting defamation against the plaintiff in his capacity as a police officer, from a member of the community. The contents of the letter alleged the purchase and supplying of a firearm and ammunition by the plaintiff to one group of people with the intended objective of killing the members of another group involved in a tribal fight with the first group.

46. The allegations in the letter suggested commission of a number of criminal offences. On receiving that letter, the need for investigation to establish if there was any truth in the allegation immediately arose for the first defendant and therefore the State before any further step could be taken. There is no evidence that, the first defendant and therefore the State undertook appropriate investigations and established the truth of the allegations, which was within their power before the first defendant published them. Instead, the evidence is that, the first defendant acted on the allegations as if they were established facts and proceeded to further publish them in the way he did.

47. In Wyatt Gallagher Bassett (PNG) Limited v. Benny Diau & Moresby Claims Adjustment Partners Ltd,[29] I found that the defendants acted in bad faith when the first defendant published certain defamatory material against the plaintiff, which he had the opportunity to first check and ensure that they were true before publishing. However, he did not do that and proceeded to publish them. In the present case, I have no doubt in my mind that the first defendant was careless, if not deliberate by choosing to act in the way he did without first establishing the truth of the serious allegations against the plaintiff.

48. In these circumstances, there is only one inference to be drawn, which is that, the first defendant was in the course of his employment when he published the defamatory material against plaintiff. If however, he was not in the course of his duty and not in the course of furthering the interest of the second defendant, it was incumbent on the second defendant to first plead the issue with particulars such as the first defendant having a personal grudge or issue with the plaintiff and therefore acted in the way he acted and then produce the relevant and appropriate evidencing establishing the matters so pleaded. The pleadings merely pleads without more, that the first defendant acted in his personal capacity notwithstanding the facts now established against the defendants. Further, the second defendant did not adduce any evidence before me showing for example, that the first defendant had something against the plaintiff which caused him to act in the way he did and therefore he was pursuing his personal interest and not that of the State.

49. In all of the circumstances, I find that the second defendant failed to rebut on the required standard of prove, the case established against it by the essentially undisputed facts. Accordingly, I find that the State is vicariously liable for the actions of the first defendant. This leads us to the need for the Court to determine the remaining issue of, what are the plaintiff''s damages.

Damages

50. In Arlene Pitil v. Rutis Clytus & 3 Ors,[30] I noted that once a plaintiff establishes by appropriate evidence liability against a defendant in a defamation case, the plaintiff is entitled to damages. Damages are recoverable for injury to one''s reputation and or injury to his or her feelings. The Supreme Court judgment in David Coyle & Ors v. Loani Henao[31] adopted from The Law of Defamation in Canada by Raymond E. Brown, Carswell, 1987, the following principles of law governing the assessment of damages in defamation cases:

""A good name proverbially is rather to be chosen than great riches, but loss may require heavy financial solace. Actions for libel and slander are maintained principally for the purpose of protecting and vindicating the personal reputation of the defamed plaintiff. 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 and annoyance. However, the reputation of any person is necessarily an evanescent thing, and it is difficult to calculate an appropriate financial equivalent for its loss. An award must have regard for both probable past and prospective damages."" (Emphasis supplied)

51. Having regard to these and other principles, the Supreme Court in that case affirmed an award of K50, 000.00 in damages as reasonable and within the discretion of the National Court. In so doing, it noted in particular, that there is no requirement in defamation cases to establish actual injury or losses as a result of a defamatory publication as long as the three elements are met. These are; (1) consolation for the personal distress and hurt caused to the plaintiff by the publication, (2) reparation for the harm done to the plaintiff''s personal and (if relevant) business reputation and (3), vindication of the plaintiff''s reputation.

52. Allowing myself to be guided by the decision of the Supreme Court in the David Coyle & Ors v. Loani Henao[32] case, I awarded a claimed amount of K40,500.00 for actual loss and K50,000.00 to damage or loss of goodwill in the case of Wyatt Gaillagher Bassett (PNG) Ltd v. Benny Diau & Moresby Claims and Adjustment Partners Ltd[33]. That was a case of publication of a defamatory letter against a company. The letter was long and contained serous allegations of impropriety against the company without any factual foundation. The defendants did not believe in the truthfulness of what they set out to publish and even had the opportunity to verify the accuracy of the material they set out to publish but they did not do that.

53. In the other case of Arlene Pitil –v- Rutis Clytus, Nancy Simeon, Margaret Luku & Islands recruitment Management Services Enterprises Ltd,[34] I awarded a sum of K50,000 in damages In that case, there were serious baseless allegations, criminal in nature, were made against the plaintiff who was an accountant by profession and was employed as financial and administration manageress by the defendant. The allegations were that, the Plaintiff was living in the country illegally, had no work permit, was employed illegally and was defrauding the defendant''s company.

54. Similar awards of K50,000 were made by Jalina J., in David Baros and Cecilia Baros v. Valarenao June Lumayak.[35]

55. The only case with a higher award of damages is the decision of the Supreme Court in PNG Aviation Services Pty Ltd v. Michael Thomas Somare.[36] There, the National Court awarded K50,000 in damages but the Supreme Court on appeal increased it to over K1,000,000 on the basis that there was clear evidence of substantial business loss and damage suffered by the appellant. In the Wyatt Gaillagher Bassett (PNG) Ltd v. Benny Diau & Moresby Claims and Adjustment Partners Ltd[37] case, I noted that the case came closer to that of the PNG Aviation Services Pty Ltd v. Michael Thomas Somare[38] case. However, the plaintiff asked for damages up to K50,000 and that determined the plaintiff''s damages. In other words if the plaintiff asked for more damages I would have made a higher award.

56. In the present case, the plaintiff had a good standing and reputation both in his local and wider PNG community. He is a qualified lawyer by profession who had a private law practice at the time of the defamation. Prior to that, he was employed by the State with the office of the Solicitor General as a senior lawyer. He is also a well known figure in the community after having stood for the Enga Regional Seat in the previous National General Elections. The evidence clearly shows that the first defendant widely published highly defamatory material against the plaintiff to two different groups of people numbering up to 400 to 1000.

57. The allegations against the plaintiff had the potential and did in fact seriously and adversely reflected upon and did raise the risk of serious personal injury if not death to the plaintiff himself and his people and generally people coming from his area at the hands of the Waiben Clan, given the propensity of people in the highlands to take retaliatory actions quite indiscriminately in the kind of situation painted by the defendant''s publication of the defamatory material.

58. The defendants did not produce any evidence of the plaintiff doing anything to warrant the publication of the defamatory material against him. In other words, he did not provoke the publication. He did not incite or contribute to the adverse publication. The publication was unsolicited or invited in any way by any conduct, actions or inactions of the plaintiff. The material published was totally false, far damaging and having the potential to raise serious personal risks as against the plaintiff himself and the people coming from his area and was most unfair.

59. I accept the plaintiff''s submission that the publication was serious enough not only in terms of injury to his reputation and social standing but also in relation to his business. However, since the plaintiff did not plead with particulars, his claim for the defamatory publication directly leading to a closure of his business as a private lawyer, I am not prepared to find and accept that claim. The law on pleadings is well settled in our jurisdiction, as I alluded to earlier on. Unless a matter is sufficiently pleaded with the relevant and necessary particulars, there can be no award.[39]

60. Further, I note that the defendants continue to remain defiant. They have had much time and opportunity to come to the realization that, they published highly defamatory material which they could not successfully defend. Even after the trial, and after all of the evidence were presented before the Court, the Court gave the defendants the chance to consider resolving the matter out of Court. They maintain their defiance, which I take as a display of nothing else but arrogance and a deliberate refusal to acknowledge and make good the damage and injury they caused to the plaintiff''s reputation and character as well as exposing him and his clansmen and other people from his area to risks of personal injuries if not death.

61. In all of the circumstances of this case, as I have just outlined, I accept the plaintiff''s submission and find that this is a serious case of defamation. It therefore, warrants an award of damages that is higher than the kind of damages the Courts have awarded to victims of defamation in the past decided cases. Those awards are in my view, no where near the kind of damages being awarded in similar cases in the US, Australia and else where. The awards in other jurisdiction, I believe acknowledge the fact that it takes a person years to build up a standing and reputation in society. However, it takes only one careless or reckless allegation to seriously damage for life the years of hard work and effort a person may have put into building up his reputation.

62. Meanwhile, there is an apparent increase in the number of defamation cases, going by the number of cases that have been concluded after a trial and those that are pending on the Courts list some of which I have already process through the ADR and Listings track. As was noted by the Supreme Court in the David Coyle & Ors v. Loani Henao,[40]loss arising from defamation of ones character and reputation ""may require heavy financial solace"" and such solace may only ""partially compensate the loss."" In other words, it would be impossible for an award of damages to fully compensate the damages defamation may have and would cause to the good name of the plaintiff because it is ""difficult to calculate an appropriate financial equivalent for its loss."" Hence, in my view, there is a need to reconsider the kind of damages thus far awarded in PNG so as to demonstrate that defamation is a serious matter and that it can attract substantial damages. Such an exercise is necessary with a view to discouraging people from baselessly attacking the reputation and character of another person. Bearing these observations in mind, as well as the particular circumstances and the kind of material published against the plaintiff, coupled with the possible personal injuries and death they attracted, I consider an award of K100,000 is appropriate in general damages for the plaintiff before me. Thus, I make an award in those terms.

63. The plaintiff has made a submission for an award of K150, 000 under the subheading, ""aggravated damages"". This, he submits is to compensate him for the defendants'' failure to promptly realize the untruthfulness of the publication and apologize. I do not consider it appropriate to make such an award for the simple reason that, that claim has not been properly pleaded with particulars and also because the award of K100,000 in general damages sufficiently reflects and covers any such damage or injury. In any case, an order for costs and interest would sufficiently compensate the plaintiff for any such aggravation. Accordingly, I decline to make any specific award under such a heading.

64. In addition to the above heads of damages, the plaintiff makes a substantial claim for loss of business as a lawyer. However, as I observed in the foregoing, the plaintiff did not properly plead with sufficient particulars that part of his claim. Further, he has failed to produce any evidence establishing a nexus between, the publication of the defamatory publication by the defendants and the plaintiff''s alleged closure of his law practice. As an example, the plaintiff failed to produce evidence of the nature and volume of his business and his associated income both prior to and after the publication of the defamatory material. Accordingly, I refuse to make any award for special damages.

65. In the end, I order that judgment be entered for the plaintiff in the sum of K100,000 together with interest at the usual rate of 8% under the Judicial Proceedings (Interest on Debts and Damages) Act (Chp.52) from the date of the issue of the proceedings to the date of judgment. I also order costs against the defendants to be agreed within seven (7) days from today and failing that taxation.

_______________________________
Paulus M. Dowa Lawyers: Lawyers for the Plaintiff.
Harricknen Lawyers: Lawyers for the Defendants.

^[1] Exhibits “A” and “B” respectively.
^[2] Exhibit “C”.
^[3] Exhibit “D”.
^[4] Exhibit “E”.
^[5] Exhibit “F”.
^[6] Chapter 293.
^[7] (30/07/99) SC617.
^[8] (Richard Clay (The Chaucer Press) Ltd , Bungay 1979), 95.
^[9] (16/08/02) N2277.
^[10] Ibid at 13.
^[11] For example, Pullman and Another v. Walter Hill & Co., Limited [1890] UKLawRpKQB 193; [1891] 1 QB 524, per Lord Esher M.R. at 527.
^[12] Opt cit n 9 at 19.
^[13] Moresby Claim Adjustment Partners Ltd & Benny Diau v. Wyatt Gallagher Basset (PNG) Limited (15/08/03) SC 713.
^[14] Chp 293.
^[15] (20/12/96) N1493.
^[16] Opt cit n 9 at 12.
^[17] Chp. 297.
^[18] (27/09/02) SC694.
^[19] Ibid.
^[20] Subs. (2).
^[21] Subs. (3).
^[22] Subs.(4).
^[23] [1983] PNGLR 449.
^[24] [1987] PNGLR 5
^[25] (28/07/05) N2865; See also his Honour’s Judgment in Philip Kunnga v .The Independent State of Papua New Guinea (28/07/05) N2864.
^[26] Ibid (first part).
^[27] See Eriare Lanyat & Anor v. The State [1997] PNGLR 253 for a similar view.
^[28] (16/07/04) N2589 at pp. 5 – 9.
^[29] Opt cit n 9 at pp 23 - 25
^[30] (01/08/03) N2422.
^[31] (30/11/00) SC 655.
^[32] Ibid.
^[33] Opt cit n 9.
^[34] Opt cit n 32.
^[35] (Unreported and unnumbered judgment delivered by the National Court in Mt. Hagen in 2002).
^[36] (Unreported Supreme Court judgment delivered I December 2000) SC658.
^[37] Opt cit n 9.
^[38] (Unreported Supreme Court judgment delivered in December 2000) SC658.
^[39] See Papua New Guinea Banking Corporation (PNGBC) v. Jeff Tole (27/09/02) SC694 and the earlier discussions.
^[40] Opt cit n 31.