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Baker v Lae Printing Pty Ltd [1979] PNGLR 16 (9 February 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 16 - Theresa Joan Baker v Lae Printing Pty Ltd

[1979] PNGLR 16

N178

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THERESA JOAN BAKER

LAE PRINTING PTY. LTD.

Rabaul

Wilson J

24-26 October 1978

9 February 1979

DEFAMATION - Statements amounting to defamation - Particular statements - Meaning of “odious” and “revolting” - Ordinary and natural meaning.

DEFAMATION - Injury to reputation - Action in defamation protects reputation - Defamatory imputation need not be believed by those to whom published - Actual effect upon reputation need not be proved - Defamation Act 1962, s.6.

DEFAMATION - Statements amounting to defamation - Reference to plaintiff - Defamatory statement need not refer to plaintiff by name - Must be understood by reasonable people to refer to plaintiff.

DEFAMATION - Defences - Vulgar abuse - Not available when defamatory statement written.

DEFAMATION - Defences - Jest - Not available unless manifest that not attack upon reputation - Defamation Act 1962, s.19.

DEFAMATION - Damages - Assessment - “At large” - Compensation for injury to personal reputation, feelings and health - Injury to business reputation - Methods of calculation - Damages assessed at K6000.

DEFAMATION - Damages - Assessment - Mitigation - Apology - Must be full apology - Defamation Act 1962, s.30.

An action for damages for defamation was brought by a married woman, a member of the Chinese community and a well respected family, the owner/ manageress of a successful fashion boutique known as “Theresa’s”, and a person of some social standing in the community, against the publishers of a newspaper Ailans Nius, with a large circulation in and around Rabaul and the New Guinea Islands region, in respect of the publication of a letter to the editor containing the following words:

“I walked into ‘Theresa’s” one day last week, and the most odious, revolting creature greeted me, but it was with sarcastic criticism from behind the counter. When I realised I was trying to be fed, I also realised that the creature was the owner itself.”

A purported apology was published some three weeks later.

Held

(1) The words complained of, used in their ordinary and natural meaning meant that the owner of “Theresa’s” boutique was a most disagreeable and unpleasant woman, to be likened to a sexless creature, and prone to treating her customers with sarcasm.

Semble:

The words “odious” and “disagreeable” have similar meanings; “odious” variously means “disagreeable”, “repugnant”, “offensive” and “repulsive”, whereas “revolting” variously means “unpleasant”, “offensive”, “disgusting” and “repulsive”.

(2) The words complained of in their ordinary and natural meaning were clearly defamatory, and imputed to the owner of “Theresa’s” characteristics and a disposition of a kind which would tend to lower that person’s general reputation in the estimation of reasonable people, and to affect that person’s business reputation.

(3) The right to have one’s business reputation protected from false statements published about him to his discredit is protected in Papua New Guinea by the action in defamation.

Scott v. Sampson [1882] UKLawRpKQB 32; (1882), 8 Q.B.D. 491, per Cave J., at p. 503, referred to.

(4) An imputation may be defamatory whether or not it is believed by those to whom it is published;

Hough v. London Express Newspaper Ltd., [1940] 2 K.B. 507; and

Morgan v. Odhams Press Ltd., [1971] 1 W.L.R. 1239, referred to;

and whether or not it actually affects that person’s reputation.

(5) To be actionable a defamatory imputation need not refer to the person defamed by that person’s full and proper name, provided it is understood by reasonable people to refer to that person.

David Syme & Co. v. Canavan [1918] HCA 50; (1918), 25 C.L.R. 234, at p. 238, referred to.

(6) Accordingly, the words complained of were defamatory of the plaintiff.

(7) In so far as the defence of vulgar abuse may be a defence to an action in defamation under s. 19 of the Defamation Act 1962, it lies only in cases involving the spoken word or in actions which, prior to the Defamation Act 1962, would have been known as actions in slander.

Uren v. Australian Consolidated Press Ltd. (1969), 71 S.R. (N.S.W.) 29, at p. 40, and

Thorley v. Lord Kerry [1812] EngR 269; (1812), 4 Taunt. 355, at p. 364; [1812] EngR 269; 128 E.R. 367, at p. 370, referred to.

(8) Jest as a defence under s. 19 of the Defamation Act 1962 is not justifiable unless it is manifest from the language employed that it could in no respect be regarded as an attack upon the reputation of the person to whom it related.

Triggs v. Sun Printing & Publishing Association (1904), 71 N.E. 739, at p. 743, referred to.

(9) It was not manifest from the words complained of that it could in no respect be regarded as an attack upon the reputation of the plaintiff, and the defence of jest was accordingly not justified.

(10) Damages for defamation are “at large”, and are to compensate the plaintiff for injury to personal reputation, feelings and health and any injury to reputation in business.

Rook v. Fairrie, [1941] 1 K.B. 507, at p. 516;

Ley v. Hamilton (1935), 153 L.T. 384, at p. 386;

Uren v. John Fairfax & Sons Pty. Ltd. [1966] HCA 40; (1966), 117 C.L.R. 118, at pp. 150-151;

Australian Consolidated Press Limited v. Uren [1967] UKPCHCA 2; (1968), 117 C.L.R. 221, at p. 240;

Fielding v. Variety Incorporated, [1967] 2 Q.B. 841;

Goslin v. Corry [1844] EngR 433; (1844), 7 Man. & G. 342, at p. 346; [1844] EngR 433; 135 E.R. 143, at p. 145; and

McCarey v. Associated Newspapers Ltd. (No. 2), [1965] 2 Q.B. 86, referred to.

(11) An apology to the plaintiff for the defamation, sufficient to mitigate damages (s. 30 of the Defamation Act 1962) should be a full apology, one sufficient in both substance and time.

Kelly v. Sherlock (1866), L.R. 1 Q.B. 686, at p. 695, and

Saunders v. Mills (1829), 6 Bing. 213, at p. 220; [1829] EngR 720; 130 E.R. 1262, at p. 1265, referred to.

(12) In the circumstances the apology printed was not sufficient to reduce the damage.

(13) Damages should be assessed at K6000 (including K1000 for loss of income reasonably attributable to the defamation).

Trial

This was an action for damages for defamation.

Counsel

M. Wilson, with him G. Payne, for the plaintiff.

R. J. B. Wood, for the defendant.

Cur. adv. vult.

9 February 1979

WILSON J: In this action in defamation the plaintiff seeks damages from the proprietor of a weekly newspaper known as the Ailans Nius in respect of the publication of a letter to the editor in the issue of 5th January, 1978, containing a statement which the plaintiff contended was defamatory of her.

In order to understand the matters in dispute between the parties it is necessary that I should describe the scene in which the events took place and the circumstances surrounding the publication in question. The description which follows has been extracted from the evidence that was not in dispute.

The defendant company is the proprietor of the Ailans Nius which is a weekly newspaper which has a large circulation. (more than 3,000 copies) in the New Guinea Islands region. It is widely read in and around Rabaul in East New Britain, in West New Britain, in New Ireland, and in Manus.

The plaintiff is a married woman who for some years has been involved in business and more recently in the world of fashion. In Rabaul she has become well-known, particularly since July 1976 when she opened her boutique, not only for her connection with “Theresa’s” boutique but also as a fashion editress and fashion-conscious citizen.

“Theresa’s” bears the first given name of the plaintiff as its business name. It is situated in the Travelodge Mall, Mango Avenue, Rabaul. The boutique is owned by Theresa’s Pty. Ltd., a private company of which the plaintiff is the manageress, a director and the owner of ninety-nine of the one hundred issued shares in the company. Since the boutique opened in July 1976 the plaintiff herself has always been closely identified with it.

The plaintiff is a third generation Chinese who was born in Rabaul. She is one of six children; the plaintiff, her oldest sister and her three brothers and their parents have all been planters, restaurateurs or business people. Indeed, they have many interests and are involved in the business community of Papua New Guinea in particular and South-East Asia in general. They are a well-respected family. Chinese is the plaintiff’s first language, and she and the other members of her family share a very strong respect for and adherence to the traditional Chinese culture.

The plaintiff does all the buying for the boutique, and, for that purpose, travels to Australia about four or five times a year. “Theresa’s” is a successful business on account of several factors including the quantity and quality of the stock, the decor, the presentation of stock, and the polite, relaxed and friendly atmosphere that exists. Fashion shows, compered by the plaintiff, are conducted periodically, and the plaintiff herself, by writing social columns in local newspapers (including the Ailans Nius for a time), has not only promoted the boutique but also has established herself as something of a local identity.

If I may be pardoned for using a pun in this context, the snob value associated with women’s fashions and the good reputation of the plaintiff have gone hand in glove with the undoubted success of the business.

I now turn to consider the edition of the Ailans Nius dated 5th January, 1978, which contains the letter complained of, and the events which followed. I find that this edition, as with all others of that weekly newspaper, had a widespread circulation in and around Rabaul and in neighbouring provinces. The letter complained of, which appeared in the Letters to the Editor column, reads as follows:

“e’olson

charge d’affaires

Dear Editor,

Hello and how are you? As for me, well my holidays are fantastic. I haven’t been in touch with you for about two tight weeks and that’s getting to be a bit of a slack communication. I was wondering how you’ve been keeping yourself and if you’ve been enjoying yourself.

I went to the ‘Indian Curry Nite’ at the New Guinea Club. I think I missed out on the curry and it most probably was because I strolled in at twelve midnight. But anyway the music was A-one. Winterwood’s a fantastic group and when Basil Lam does his thing he really sets you rolling but what keeps you rolling is Greg Seeto himself.

Have you ever been to the Steakhouse Disco? If so, I’d like to know what you think of it. I reckon it’s two acres too big. I mean with all that space we’re given, we could fit another thousand ants inside. It’s got the music but it lacks style.

Would the possibility exist of having a bit of real disco dancing at the Steakhouse instead of people just swaying, and instead of them Wong girls just shaking their backsides. The Steakhouse is advertised as New Guinea’s top Disco (ha ha) though it would be a matter of interest if they had a Disc Jockey.

Ever felt that you deserve a fantastic, worth-while meal? Then call in at the New Guinea Ambonese Club. For two kina a plate, the Poon connection will present you a most delightful and filling lunch.

The five cooks and waitresses give a set meal for each lunch hour which is from twelve noon through till 2 p.m. The different dishes are delicious, so why don’t you just bore on down, and give yourself the best lunch in town.

I walked into ‘Theresa’s’ one day last week, and the most odious, revolting creature greeted me, but it was with sarcastic criticism from behind the counter. When I realised I was trying to be fed, I also realised that the creature was the owner itself.

Well, well, well, Editor, you’re probably wondering what I’m jiving on about. It just so happened, that, as I was checking out the local paper, labelled Ailans Nius there was an eye-catching advert which read ‘Why don’t you write a letter to the Editor?’ And I says ‘Why not?’ And dear Editor why don’t you answer and reveal a bit of your adventures in this paradise.

CALYPSO CAT.”

(The words emphasised are those that the plaintiff has alleged were defamatory of her.)

In the week that followed the plaintiff consulted her solicitor; an apology was demanded and a request was made that all copies of the edition in question be withdrawn from sale. There was no such withdrawal and no apology appeared in the editions of 12th January or 19th January. In the latter edition two letters to the editor were published both purporting to be answers to “Calypso Cat”. In so far as the original letter published in the edition of 5th January had ignited a controversy (and I find that it did), the publication of the two “answers”, which were purportedly signed by “Zoso” and “Pluto”, only added fuel to the fire of that controversy. If I may continue the fiery metaphor even further, the publication of those two “answers” did nothing to quell the flames at a time when the defendant had it within its power to do so.

Ultimately, in the edition of 26th January, the defendant purported to publish an apology. It was in the following terms:

“APOLOGY

In the issue of the 5th January, 1978, there appeared a letter signed under a pseudonym, “Calypso Cat”.

The solicitors for Mrs. Theresa Joan Baker of Rabaul have pointed out to us that the letter may be read as defamatory of their client. No such imputation was ever intended.

We greatly regret any distress or embarrassment that the wording of this publication may have caused to Mrs. Baker and we are glad to take this opportunity of expressing this our apology and of disclaiming unreservedly any such imputation.

Editor,

Ailans Nius”

In the editions of the Ailans Nius of 2nd February, 1978, and 9th February, 1978, and notwithstanding the purported “apology” further references were made to the controversy in the Letters to the Editor column. Whilst what was published was rather innocuous and was in no sense adverse to the plaintiff, the controversy was kept alive at a time when, had the defendant’s motives been beyond reproach, it would have declined to publish such letters in order to ensure that the controversy died down.

I find that the statement complained of understood in its ordinary and natural sense bears the following meaning:

1. The owner of “Theresa’s” boutique is a most disagreeable and unpleasant woman.

2. She is to be likened to a sexless creature.

3. She is prone to treating her customers with sarcasm.

In making these findings I am aware that the words “odious” and “revolting” may have similar meanings. “Odious” variously means “disagreeable”, “offensive”, “repugnant” and “repulsive”, whereas “revolting” variously means “unpleasant”, “offensive”, “disgusting” and “repulsive”. In the context of a letter which would leave any reasonable reader in no doubt that it was written without regard to good manners or good taste, I am content to understand the words “odious” and “revolting” in the meaning least unfavourable to the defendant.

I am of the opinion that the words in their ordinary and natural meaning are clearly defamatory. They impute to the owner of “Theresa’s” characteristics and a disposition of a kind which would tend to lower that person’s general reputation in the estimation of reasonable people. Their tendency is moreover to affect that person’s reputation within the business. An owner/manageress of a fashion boutique is required to be first and foremost feminine in her behaviour and outlook, and then also to be polite and friendly in her dealings with customers. She should command respect and secure the confidence of her customers whose motives in purchasing fashion garments may be prompted by an admiration for wealth or social position. A person having the attributes attributed to the owner of “Theresa’s” and one who had been, at the very least, disagreeable, unpleasant and sarcastic (therefore possessing qualities detrimental to the successful carrying on of such a business) must necessarily be likely to be injured in the fashion business. The use of such words could be expected to make the owner of “Theresa’s” the object of ridicule in the eyes of those who knew the owner.

It must be here observed that the defamatory nature of the individual words complained of was not seriously contested on behalf of the defendant. Indeed, Mr. Wood, counsel for the defendant, acknowledged that they were distasteful to say the least.

Although the question of whether or not the words complained of are capable of having a defamatory meaning is a question for me as judge of the law and although the question of whether or not the words complained of were in fact defamatory of the plaintiff is a question for me as judge of the facts, it is significant (and in a sense corroborative of the conclusions I have just announced) that each of the seven lay witnesses, who represented a wide and influential cross-section of Rabaul’s newspaper-reading community, were concerned about what they read in the letter complained of. Mrs. Florence Cohen, a former vice-president of the Rabaul Art Society, a Girl Guide commissioner and a resident of Rabaul for thirty years, was “very shocked and disgusted”. Mr. C. D. N. Read, the manager of the Caltex terminal for Rabtrad Niugini Ltd. in Rabaul, was “horrified” and described it as “a clear cut case of defamation of character”. Mr. B. Cooper, the general manager of Rabtrad Niugini Ltd. and a past commodore of the Rabaul Yacht Club, said he “felt sorry” for the plaintiff, he was “disgusted” with the words complained of, and he felt that it must have been “embarrassing” for the plaintiff. Mr. Ross King, the manager of Open Bay Timber Company, described it as “a nasty snipe at Theresa”. (Incidentally, it can here be observed that Mr. King frankly admitted having unintentionally embarrassed the plaintiff by means of words of sarcasm to her face, thereby causing her, in my view, to become the object of ridicule.) Mr. E. D. Clarke, a pharmacist in Rabaul, described it as “a bit much”, “a bit rude”, and “a bit revolting”. Mr. Jack Chipper, Chairman of the Rabaul Town Council, a director of many companies, one of the relatively few Europeans who has become a citizen of Papua New Guinea and one who has been in business in Rabaul for forty years, described his reactions in the following expressive terms: “Calypso Cat is sticking his neck out ... How could you call Theresa an ‘odious, revolting creature’?” Finally, Reddie McKenzie, a national employed as a receptionist at the Rabaul Travelodge, said in evidence: “It was not very nice to put nasty words like that in the newspaper.”

The law of Papua New Guinea recognizes in every owner of a business house, whether it be a boutique or otherwise, the right to have the estimation in which he stands in the opinion of others unaffected by false statements published about him to his discredit (see Cave J. in Scott v. Sampson[xxiv]¹). That right is protected in this country inter alia by the existence of the action in defamation.

The interest protected is basically a person’s general reputation, i.e., the esteem in which a person is held, the goodwill entertained towards him, or the confidence reposed in him.

If a person’s reputation is under an undeserved cloud of rumour and suspicion as a consequence of false statements so published, he is entitled to recover for damage to the good reputation he does deserve.

A newspaper proprietor is liable in an action in defamation if he publishes in his newspaper words containing a defamatory imputation against the reputation of the plaintiff. A defamatory imputation for the purposes of this case is an imputation concerning a person by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which the other persons are likely to be induced to ridicule him. (See s. 6 of the Defamation Act 1962.)

An imputation may be defamatory whether or not it is believed by those to whom it is published (see Hough v. London Express Newspaper Ltd.[xxv]², per Goddard L.J., affirmed in Morgan v. Odhams Press Ltd.[xxvi]³).

To be defamatory an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency. The fact that none of the witnesses called to give evidence may have thought any the less of the plaintiff is immaterial to the question of liability.

Mr. Wood, for the defendant, argued that the plaintiff had not proved that the words complained of were published of the plaintiff herself. He contended in support of the pleading in par. 4 of the defence that the words complained of neither were understood by readers of the Ailans Nius nor were capable of being understood as referring to the plaintiff or in any way intended to be referring to the plaintiff.

Mr. Wood, when he argued in support of this ground of defence, was no doubt mindful of the principle that, to succeed in an action of defamation, the plaintiff must prove not only that the defendant published the words and that they are defamatory, but also that the plaintiff was the person defamed. Such a principle has been stated to be as follows: it is an essential element of the cause of action of defamation that the words complained of should be published “of the plaintiff” (see Knupffer v. London Express Newspaper Ltd. [xxvii]⁴).

The complete answer to Mr. Wood’s contention is to be found in the undisputed evidence of the seven lay witnesses called on behalf of the plaintiff. Each one of them testified that they read the letter in question and understood the words complained of to be referring to the plaintiff and “Theresa’s” boutique. The evidence was that there is only one “Theresa’s” in Rabaul, viz., “Theresa’s” boutique owned by the plaintiff. The evidence on this topic was put most concisely by Mr. E. D. Clarke, who said: “There is only one ‘Theresa’s’ here in Rabaul. I naturally thought it referred to Theresa’s dress shop.” He, as did others of the seven witnesses, went on to state that he understood that “Theresa’s” was owned by the plaintiff.

It is true that the letter in question did not refer to the plaintiff by her full name, but it is not necessary that it should do so to be actionable. Provided that the words would be understood by reasonable people to refer to the plaintiff, there need be no peg or pointer for her identification in the words complained of themselves. The test to be applied was stated most helpfully by Isaacs J. in David Syme & Co. v. Canavan [xxviii]⁵, where his Honour said:

“The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the paintiff was referred to, that is a sufficient reference to him.”

I therefore conclude that the words complained of are not only defamatory but also they are defamatory of the plaintiff.

In reaching these conclusions I reject the argument of Mr. Wood to the effect that the words complained of were words of vulgar abuse and, on that account, are not actionable. I do so on two grounds. First, notwithstanding the fact that six of the seven lay witnesses who were cross-examined by Mr. Wood on this aspect all agreed with him that the words complained of were words of vulgar abuse, I unhesitatingly state that, as a matter of law, they should not be so characterised. Vulgar they may be; abusive they may be; but they are more than that. In making the statement that, as a matter of law, the words in question should not be characterised as words of vulgar abuse, I intend no criticism of the witnesses. All of them were speaking as ordinary citizens and none of them professed to be language experts or sought to intrude, except in so far as they may unwittingly have been led to do so, upon territory which is exclusively the court’s province. Furthermore, I undertood each of them to be saying no more than that, at the very least, the words complained of might be described as “vulgar” and “abusive”; they did not seek to set the limits of language within which the words complained of must be placed.

Secondly, in so far as the defence of vulgar abuse may be a defence to an action in defamation, it lies only in cases involving the spoken word or in actions which, prior to the enactment of the Defamation Act 1962, would have been known as actions in slander; Uren v. Australian Consolidated Press Ltd.[xxix]⁶ per Sugerman J.A., and Thorley v. Lord Kerry[xxx]⁷. Such a defence in the case of words spoken may be preserved by the enactment of s. 19 of the Defamation Act 1962. As the effect of s. 19 was not alluded to by counsel in the present case and as it involved words which were clearly “intended to be read”, I need not express a concluded opinion as to the availability or otherwise of the defence of vulgar abuse in cases involving the spoken word. I content myself by observing that in most cases there is a wide distinction between the use by a man of words of vulgar abuse whilst speaking and the publication of such words to the world at large through the medium of a newspaper.

It was also argued by Mr. Wood that the words complained of were published in jest and therefore not capable of having a defamatory meaning. He submitted that the author’s use of the words “... you’re probably wondering what I’m jiving on about”, in the paragraph following the words complained of, was a pointer to the humorous tone of the letter in question because “jiving”, so it was contended, means in the context “talking nonsense”, “kidding”, “fooling around” or “talking idly”. I am not persuaded that any one of these is the appropriate meaning of the word “jiving” in the context under consideration. I thought that Mr. Cooper hit upon the true meaning of the unusual and jargonistic word “jiving” in this context when he said that it is a slang word for “talking about” or “going on about” without necessarily indicating flippancy or foolishness or nonsense. It is to be noted here that no evidence was given on behalf of the defendant as to the absence of any improper motive.

The fact that each of the seven lay witnesses took the words complained of seriously is some indication that the words complained of in their context were capable of being understood to contain a defamatory imputation. The evidence aside, the words speak for themselves and they speak loudly.

Even if I am wrong in rejecting the argument that the words complained of were published in jest, I would say that the letter is nonetheless actionable upon the ground that it contains words bearing serious imputations of fact lying behind the superficially jocular. It was not obvious to the lay witness that jest was meant. If jest this was, it was jest in the poorest taste. An American judge put it succinctly when he said:

“[Jest is not justification] ... unless it is manifest from the language employed that it could in no respect be regarded as an attack upon the reputation ... of the person to whom it related.” (See Triggs v. Sun Printing & Publishing Association[xxxi]⁸, per Martin J.)

I am not persuaded (and the evidence is all the other way) that it is manifest from the language employed in the letter under consideration here that it could in no respect be regarded as an attack upon the reputation of the plaintiff.

I now turn to consider the question of damages. This is not a case for the award of exemplary damages; no damages of that kind were claimed in the pleadings nor were they asked for in argument.

Although the statement of claim in its original form contained a claim by way of special damages for the plaintiff’s loss of business, towards the end of the trial of this action an application was made by the plaintiff’s counsel seeking an amendment of the statement of claim by deleting the claim for special damages. At the time of making the application Mr. Wilson, on behalf of the plaintiff, indicated that the plaintiff was content that such claim as she had for loss of business should be included in the claim for general damages.

The damages are to be assessed on a compensatory basis. They must compensate the plaintiff both for the injury to her personal reputation, feelings and health, and the injury to her reputation in her business. In so far as the defamatory statement had an effect upon the plaintiff’s business and her reputation in it, this should have an important effect upon the quantum of damages. I bear in mind that damages are in all the circumstances of the case “at large” (see Rook v. Fairrie[xxxii]⁹, per Lord Greene).

Lord Atkin said in Ley v. Hamilton [xxxiii]¹⁰:

“It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation. No doubt in newspaper libels juries take into account the vast circulations which are justly claimed in present times.”

Windeyer J. spoke of what is meant by injury to a person’s reputation in Uren v. John Fairfax & Sons Pty. Ltd.[xxxiv]¹¹ in the following terms:

“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 commensurables. 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. These, however, have always been regarded as important in estimating damages. Indeed, the common-law rule that truth is a complete defence seems to reflect this. It has been rationalized by saying that the law does not protect the reputation that a man has, but only the reputation that he deserves. But is it not a mistake to suppose that there is not a deeper explanation?... It is enough to say here that when the law of libel was taken into the common law, although in a general sense compensation was the remedy given, the conduct of the defendant remained always a matter that jury might consider. Damages being at large, it became in time indisputable that a jury could in all cases consider ‘not only what the plaintiff should receive, but what the defendant should pay’ [Forsdike v. Stone[xxxv]¹²].”

The Privy Council approved of the dictum of Windeyer J. (just quoted) in Australian Consolidated Press Ltd. v. Uren[xxxvi]¹³ in the following terms:

“In analyzing the nature of the damages which are awarded to a plaintiff for an injury to his reputation Windeyer J. pointed out that the amount of a verdict will often be the product of a mixture of inextricable considerations, and that though the intentions and conduct of the defendant (in particular whether he was actuated by express malice) have always been regarded as important in estimating damages, the harm that a plaintiff suffers cannot be measured by, and will not necessarily depend upon, the motive or intentions of the defendant. There may be cases in which the existence of express malice in a defendant will bring it about that the plaintiff’s feelings will be all the more hurt. But there may be cases in which the existence of express malice in a defendant will not in fact have added to the hurt experienced by the plaintiff.”

In a case such as the present, like Fielding v. Variety Inc.[xxxvii]¹⁴, there is need to have particular regard to the injury to the plaintiff’s feelings. As in that case, so in the present case the actual injury to reputation was small but the injury to feelings was great. The plaintiff is to be compensated “for the mental suffering arising from the apprehension of the consequences of the publication” (see Goslin v. Corry[xxxviii]¹⁵ per Erskine J.) and “for the pain of a false accusation” (see Ley v. Hamilton[xxxix]¹⁶ per Lord Atkin). She is to be compensated for the natural grief and distress which she may have felt at having been spoken of in defamatory terms.

I take into account as part of the general damages the behaviour of the defendant over all (including the making of the purported “apology”) and the extent to which it added insult to injury by increasing the mental pain and suffering caused by the original defamation; the plaintiff’s pride and self-confidence were affected (see McCarey v. Associated Newspapers Ltd. (No. 2)[xl]¹⁷, which was approved in Fielding v. Variety Inc. [xli]¹⁸). I have examined the whole conduct of the defendant from the time the defamatory statement was published. An examination of that conduct reveals that the defendant has acted badly and has acted with malice. That malice has increased the plaintiff’s suffering and humiliation.

Because claims of hurt feelings are easy to make and hard to disprove, I examined with particular care the allegations made by the plaintiff. I was especially on the alert for anything tending to indicate that the plaintiff might be exaggerating the extent of her distress; court-rooms where defamations cases are tried are not infrequently the scene of histrionic behaviour. Not only was I impressed by the plaintiff’s sincerity, but also there was a good deal of other evidence which showed that the plaintiff’s reactions were predictable and far from unreasonable bearing in mind the extent of the gossiping and talking which followed the publication of the letter in question; the witnesses variously described the controversy in the following terms: it was “widely discussed”, there was “much talk”, there was “normal chatter”, it was “talked about”, and it was “quite a joke around town”. Such evidence highlighted the fact that there was a greater degree of mischief in this instance where the defamatory statement had appeared in a newspaper with a wide circulation in the region than might have been the case if this had been defamation by the spoken word.

It is to be noted that the plaintiff became very distressed when her attention was drawn to the publication and later on when she had the actual words complained of read to her in their full context, she was too upset to go out, had a sleepless night, and was so distressed concerning the ridicule she feared she would be subject to that she became physically ill. She felt she had lost face in the sense that her pride, her honour and her self-respect had been adversely affected. As a member of the Chinese community her feelings regarding the hurt which she and her family had been subjected to were strongly and sincerely held. Just as in many court cases in this country the evidence shows that Papua New Guineans carry a burden of shame, so in this case the evidence shows that the plaintiff, as a respected and respectable member of the Chinese community, was needlessly forced to carry her burden of shame. To characterise the effect upon the plaintiff as embarrassment, as the plaintiff herself did at one stage, through a rush of tears, whilst she was giving her evidence in the witness box, was an understatement.

In the months that followed the publication of the letter the plaintiff was not allowed to forget it. She felt acutely embarrassed whenever comments were made. Whilst other persons made the subject of allegations of this type might well have turned them to their own advantage and even benefited in business from the resultant publicity, the plaintiff saw fit to react in her own way. It was in no sense an unreasonable reaction. The evidence was all one way, viz., that she had a very distressing reaction, which must be compensated for, albeit rather artificially, by way of an award of damages.

The plaintiff’s fears, regarding the likely ridicule she felt she would be subjected to, were well-founded. An example of this described vividly by both the plaintiff herself and by Mr. King.

The fact that the plaintiff shortly after the publication removed a painting of herself from the boutique in order to try “to tone down (her) relationship with the shop” and adopted “a low profile” was an indication of the extent of the hurt she suffered. The fact that she withdrew herself from the social scene in Rabaul for a few months after the publication was indication of the extent of her hurt.

The lay witnesses were asked whether they noticed if the plaintiff was affected by the publication in question and in their answers they described the plaintiff in terms varying from “upset” and “embarrassed” to “very upset” and “very distressed”.

The plaintiff gave evidence of high blood pressure, migraine headaches, chest pains and a miscarriage, all of which followed the publication in question.

Had there been some medical evidence adduced pointing to there having been a direct link between the publication in question and the plaintiff’s subsequent illnesses and health changes, I might have felt satisfied on the balance of probabilities that the plaintiff should be compensated for the pain and suffering directly associated therewith, for loss of amenities and enjoyment of life, and for the disabilities about which she testified. In the absence of such medical evidence I feel able only to go as far as finding (as I do) that the plaintiff was distressed and worried to such an extent that she attributed her symptoms to the publication and thereby aggravated her distressed and worried condition.

Windeyer J. in Australian Consolidated Press Ltd. v. Uren[xlii]¹⁹ indicated what he considered to be a suitable direction to the jury in a case of this type when he said:

“A suitable direction to the jury might have been to tell them, using words that Bramwell B. used in Bruton v. Downes[xliii]²⁰, that they could, if they thought fit, give the plaintiff ‘such good sound substantial damages as will mark your sense of the injury the plaintiff has sustained’; and to tell them that in considering the extent of that injury they might take all the circumstances of the publication into account, but that they ought not to add anything to the damages simply from a desire to punish the defendant.”

In my considered opinion this is a case warranting “good sound substantial damages” of the type so described.

With reference to that part of the claim for general damages which arises from the plaintiff’s loss of business, it is unnecessary for me to canvass the very considerable amount of evidence that was directed to that topic. It is sufficient for me to state that such loss as the plaintiff suffered was not a direct loss for the reason that “Theresa’s” boutique is owned not by the plaintiff herself but by a company, Theresa’s Pty. Ltd., of which she is a director and the owner of ninety-nine out of the one hundred issued shares. No actual loss was proved, even by the company. What was proved, subject to a number of qualifications, was that in the period of three months immediately following the publication of the letter in question there was a decline in the growth rate of the company.

It was suggested at one stage on behalf of the plaintiff and by reference to the company’s monthly sales figures that, on the assumption that all other factors were constant, the growth rate for that particular three months period ought to have been approximately eighty-three per cent whereas it was in fact nineteen per cent. The drop was attributed to the publication of the defamatory letter. It was suggested that the defamation caused a loss of gross sales of K11,609 representing a loss of gross profit of K5,804 which represented something in the order of K2,700 to K4,600 net loss of income for the plaintiff either in the form of a loss of expected income from dividends (net after tax paid) or in the form of a loss of expected increase in salary (likewise net after tax paid) or otherwise.

However, it was not shown that the several assumptions were valid. Firstly, it appeared that there had been a change in the company’s advertising practices; indeed, the company did not advertise at all in the newspapers for two out of the three months in question. Secondly, it appeared that there was a downturn in community business growth in Rabaul at that time; Mr. Chipper gave evidence (which I accept) to the effect that the first quarter of every year is the worst for business and that in the first quarter of 1978 business in Rabaul was at its lowest ebb for fifty years. Some doubt was cast upon the accuracy of some of the figures contained in the accounts that were tendered in evidence.

Accordingly, the figures that had been suggested to me by Mr. Robert Mulkearno, the company’s accountant, albeit suggested tentatively and in a most defensive manner, could not be accepted as proof of loss.

Nevertheless, the figures retained some validity. Using the figures as a base of reference, treating them only as what they truly represent, making an allowance for the changes in trends and practices, and relying greatly upon the experienced Mr. Chipper’s opinion, I assess the plaintiff’s loss of income reasonably attributable to the defamation at approximately K1,000. Such a loss is not capable of precise mathematical calculation. It is necessarily an estimate made bearing in mind the onus of proof which in a case such as the present is on the balance of probabilities. Such a loss represents either the non-realisation of an expected salary increase to the plaintiff as manageress, or the loss of anticipated income from dividends, or other loss to her. It is a business loss the plaintiff herself suffered as a consequence of the publication of the letter in question and customer reaction to it, and for that she is entitled to be compensated. I include the abovementioned sum as part of an overall award of general damages.

In an action for defamation the defendant may plead and prove in mitigation of damages that it made an apology to the plaintiff for the defamation (see s. 30 of the Defamation Act 1962). In this instance the defendant, through its solicitors, wrote a letter dated 10th January, 1978, to the plaintiff’s solicitors in the following terms:

“10th January, 1978

Warner Shand Wilson & Associates,

Barristers & Solicitors,

Mango Avenue,

Rabaul.

Dear Sirs,

Re: PNG PRINTING CO. PTY. LTD. — AILANS NIUS

We act for the owners and editors of Ailans Nius and have been handed your letter to the Editor of that publication dated 9th January, 1978.

The letter of which you complain did appear in error in the copy of the publication of the Ailans Nius of 5th January, 1978, during the absence on leave of both the Editor-in-Chief and the Editor; the views expressed by the writer in the letter complained of are not the views of the owners of the publication or its editorial staff.

Nevertheless our client has instructed us that it is glad to take this earliest opportunity of correcting the error and expressing to your client our client’s regret for any distress or embarrassment caused to her by the original published letter.

Our client has further instructed us that it is prepared to print an apology in a form acceptable to your client and has invited us to correspond with you directly to ensure that an acceptable form of apology can be settled and published without delay.

Yours faithfully,

McCubbery Train Love & Thomas

(signature)

R. H. B. WOOD.”

Subsequently, it appears that neither the plaintiff nor her solicitors took up the suggestion that an apology “in a form acceptable to” the plaintiff be agreed upon and published without delay. Indeed, the plaintiff did not remember having seen that letter and, on the evidence before me, it is probable that she was neither shown it nor given a copy of it by her solicitors.

Nevertheless, it was still for the defendant, if it wanted to mitigate the damages, to publish a full apology. Eventually, in the edition of 26th January the defendant published what purported to be an apology. The terms of that “apology” are set out earlier in this judgment.

It is to be noted that the “apology” was not a full apology; it does not contain a statement to the effect that the allegations contained in the letter complained of were wholly unfounded; whilst it contains an expression of apology for any distress or embarrassment that the plaintiff may have been caused, it concludes with something in the nature of a denial that the words were defamatory; there is an implication that, in the absence of any reason being given for it not being defamatory, the words were true. No mention is made of the fact asserted in the solicitors’ letter of 10th January that the letter complained of had been published in error. Indeed, no evidence was adduced by the defendant and, accordingly, there was no attempt made by the defendant to prove that the letter complained of had been published without actual ill-will to the plaintiff or other improper motive and without gross negligence (see s. 31 of the Defamation Act 1962). The absence of a pleading to this effect and the lack of proof of such matters by the defendant is not without significance in considering the extent to which the defendant did effectively apologise.

Viewing the defendant’s conduct overall (including the fact that the edition in question was not withdrawn from sale, although the defendant had an opportunity to withdraw it) and considering the words used by the defendant’s solicitors in their letter of 10th January and in the edition of 26th January in their full context, I am satisfied that the defendant’s “apology” was not a full apology. It was not a sincere apology. In fact, it had so many of the characteristics of the “tongue in cheek” apology that it was hardly an apology at all. When the plaintiff was asked in the witness box to indicate what her reaction was to the “apology”, I thought she used very restrained language when she said: “I felt that the wording in the apology was not sufficient to atone for the insults suffered.” Other witnesses called on behalf of the plaintiff lent support to that view.

I find therefore that the defendant’s “apology” was neither sufficient in substance nor sufficient in time. It was published a fortnight later than it might have been. It was, to use the words of Mellor J. in Kelly v. Sherlock[xliv]²¹ a “tardy and meagre apology”. The conduct of the defendant, far from righting the wrong that had been done, added insult to injury. The nature and circumstances of the apology were such as to “add a degree of bitterness to the original libel” (see Saunders v. Mills[xlv]²² per Tindal C.J.). Accordingly, I see no reason to reduce the damages on account of the defendant’s “apology”.

I take into account in the defendant’s favour the fact that this was a letter to the editor written in a modern style which not every reader would have taken seriously. It was neither a news report nor an article of great journalistic merit; I would have increased the damages had it been so. I also give full weight to the fact that none of the lay witnesses who were asked about this aspect were affected in their opinion of the plaintiff. Whilst that fact mitigates to an extent the damages to be awarded, it is also something that is to the plaintiff’s credit.

Mr. Wilson, in his final address, made reference to a number of matters which he said were important with reference to the question of damages. I am persuaded that the following matters are of particular importance:

1. The fact that this was defamation in writing (libel) with much more serious implications for the plaintiff than a mere slander.

2. The fact that the published material was widely read on the Gazelle Peninsula and in neighbouring provinces.

3. The fact that the plaintiff is a very well known personality in Rabaul holding a position of some standing in Rabaul society.

4. The fact that the plaintiff is a member of the Chinese community in Rabaul and therefore one for whom, if made the object of ridicule, there would be greater repercussions and implications.

5. The fact that the plaintiff has many business associates and contacts; such business relationships are founded on mutual trust and respect.

The plaintiff was fully entitled to come to court to vindicate her reputation and she is entitled to an award of damages. I assess the plaintiff’s damages at the sum of K6,000.

Judgment for the plaintiff for K6,000 with costs.

Solicitors for the plaintiff: Warner Shand Wilson & Associates.

Solicitors for the defendant: McCubbery Train Love & Thomas.

[xxiv][1882] UKLawRpKQB 32; (1882) 8 Q.B.D. 491, at p. 503.

[xxv] [1940] 2 K.B. 507, at p. 515.

[xxvi][1971] 1 W.L.R. 1239.

[xxvii][1944] A.C. 116.

[xxviii][1918] HCA 50; (1918) 25 C.L.R. 234, at p. 238.

[xxix] (1969) 71 S.R. (N.S.W.) 29, at p. 40; [1969] 1 N.S.W.R. 745, at p. 752.

[xxx][1812] EngR 269; (1812) 4 Taunt. 355, at p. 364; [1812] EngR 269; 128 E.R. 367, at p. 370.

[xxxi] (1904) 71 N.E. 739, at p. 743; (1904) 179 N.Y. 144, at p. 155.

[xxxii] (1941) 1 K.B. 507, at p. 516.