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FEATURE |
This article considers the factors which the courts in
Damages
in Libel and Slander
It
is important to bear in mind the subtle but important distinction between the
basis for an award of damages in a claim for libel, where the words complained
of are published in a permanent form, and in a claim based on slander, where the
words are spoken or in some other transient form.
In
a claim for libel, damage is presumed to have occurred and it is not necessary
for the plaintiff to prove any actual damage to his reputation. In slander,
however, damage is generally not presumed and therefore slander is not
actionable per se unless the plaintiff can show that he has suffered actual
damage. This in many instances is usually extremely difficult to prove. There
are four exceptions to the rule that slander is not actionable per se. These
are:
• where
the words impute a crime for which the punishment that the plaintiff may be
subject to is physical in nature, for example, imprisonment;
• where
the words impute to the plaintiff a contagious or infectious disease;
• where
the words are calculated to disparage the plaintiff in any office, profession,
calling, trade or business held or carried on by him at the time of publication;
and
• where
the words impute unchastity or adultery to any woman or girl.1
The
Various Types of Damages
Damages
are the principal remedy for libel and slander. In addition to damages, the
court may also order an injunction restraining the defendant from further
publication of the defamation. Even though an action in defamation is really an
action to repair damage caused to the plaintiff’s reputation, the court does
not have the power to order the defendant to publish an apology.
There
are two types of damages that may be awarded by the court. These are general
damages and exemplary damages.2 There is a subset of general damages
which is called aggravated damages and which is sometimes viewed as a third and
distinct type of damages. A possible explanation for this distinction is that in
certain cases the court has awarded aggravated damages as a separate head of
compensation from general damages. Aggravated damages are essentially damages
taking into account the aggravating factors ie factors which aggravate the
damage that has been caused and which justify a higher amount of general damages
being awarded.
The
purpose of general damages is to compensate the plaintiff for the effects of the
defamatory statement. Unlike damages recoverable for personal injury or property
damage, general damages in defamation claims serve different functions. Such
damages are intended to console the plaintiff for the hurt and distress that
has been caused by the defamation. It is also intended to redress (insofar as a
monetary award is able to) the harm that has been caused to his reputation and
as a vindication of his reputation.
In
defamation, general damages are ‘at large’. By this, it is meant that the
damages cannot be assessed by means of any mechanical, arithmetic or objective
formula or method. The court assesses damages after hearing all the evidence.
The
Factors
There
are various factors which the court traditionally considers in determining an
award of damages for defamation. What is set out below is not meant to be an
exhaustive list of the factors which the court may consider. Certainly, some of
these factors may not apply in every case and other factors may have to be taken
into account, depending on the facts and circumstances of the case.
Factors
pertinent to general damages
The
factors which the court is likely take into account when determining an award
are:
• The
gravity of the allegation that is made in the words complained of.
• The
size, mode and influence of the circulation. In this regard, where the defamatory words form part of an article or
are contained in a broadcast programme, the court may also consider the
influence that the particular newspaper, magazine or broadcast programme has on
the minds of the reasonable reader or viewer.
•
The position and standing of both the plaintiff and the defendant.
•
The conduct of the plaintiff to the extent that the plaintiff may have
contributed to the publication of the defamation or damage to his reputation.
•
The conduct of the defendant from the time of publication of the
defamation to the time the verdict is given against him.
•
The effect that the defamation has had on the plaintiff’s reputation.
Where the plaintiff can show actual damage to his reputation, this is a factor
which will also be taken into account.
Again,
it must be stressed that the factors set out above should not be taken as a
complete list of the factors that may apply in a particular case. For example,
there may be occasions where the court will have regard to the motives of the
defendant in publishing the defamatory statements.
Factors
which aggravate general damages
Insofar
as aggravation of damages is concerned, the factors which the court would
generally take into account are those which would tend to exacerbate the harm to
reputation. Once again, the precise factors which the court may take into
account in a particular case will vary according to the unique facts and
circumstances of that case. The following are a list of the more common factors
which the court may consider:
• The
improper or irregular conduct of the defendant in connection with the
publication of the defamation. For example, misquoting the plaintiff, not
allowing the plaintiff an opportunity of reply and subterfuge.
• Failure
to apologise.
• Any
malice which the defendant may bear against the plaintiff.
• A
plea of justification.
• The
defendant’s overall conduct of the litigation.
• Other
defamatory publications of and concerning the plaintiff.
The
Trend of Awards
In
The Court of Appeal expressed this policy in its decision
in the case of Arul Chandran v Chew Chin Aik Victor JP3 where
it held as follows:
In Suit 1116/96, the Senior
Minister, Mr Lee Kuan Yew, was awarded $550,000 as damages for defamation by the
trial judge. This was reduced to $400,000 by the Court of Appeal (see
Tang Liang Hong v Lee Kuan Yew & Anor and other appeals [1998] 1 SLR
97). In that case, the Court of Appeal made it clear that while a cap should not
be placed on the quantum of damages for defamation, grossly exorbitant awards
such as those made by juries in some other jurisdictions are to be avoided.
Admittedly, the amount of damages awarded for defamation depends on the
circumstances of each case. All the same, in the light of the amount of damages
awarded to the Senior Minister in Suit 1116/96, Mr Arul’s assertion that he
should be awarded around $1.875m in damages could not be countenanced.
This
stands in stark contrast to our neighbours across the causeway, where the courts
have awarded general damages of up to an aggregate of RM10m.4 To this
end, it is the writer’s view that foreign cases ought not to be relied on as
an indication of the quantum of general damages that should be awarded
in
The
table below sets out the list of selected defamation cases heard in the High
Court since1989 where awards for general damages have been made.
Year
Name of Case
Citation
Award
1989
Lee Kuan Yew v Davies & Ors
[1989] SLR 1063
S$230,000
1992
Jeyaretnam Joshua Benjamin v Lee Kuan Yew
[1992] 2 SLR 310
S$260,000
1994 Overseas-Chinese Banking Corp Ltd v Wright [1994] 3 SLR 760 S$50,000
Norman & Ors and another action
1995
Sin Heak Hin Pte Ltd & Anor v Yuasa Battery
[1995] 3 SLR 590
S$100,000
Singapore Co Pte Ltd
1995 Lee Kuan Yew & Anor v Vinocur & Ors [1995] 3 SLR 477
and another action
1995
Chiam See Tong v Xin Zhang Jiang
[1995] 3 SLR 196
S$50,000
Restaurant Pte Ltd
1996
Chiam See Tong v Ling How Doong & Ors
[1997] 1 SLR 648
S$120,000
1997
Tang Liang Hong v Lee Kuan Yew & Anor
[1998] 1 SLR 97
Between S$60,000
and other appeals
and S$270,0007
1998
Goh Chok Tong v Jeyaretnam Joshua Benjamin
[1998] 3 SLR 337
S$100,000
and another action
1999
A Balakrishnan & Ors v Nirumalan K Pillay & Ors
[1999] 3 SLR 22
S$30,0008
S$25,0009
1999
Cristofori Music Pte Ltd v Robert Piano Co Pte Ltd
[2000] 3 SLR 503
S$50,000
2001
Arul Chandran v Chew Chin Aik Victor JP
[2001] 1 SLR 505
S$150,000
2003
Ei-Nets Ltd and another v Yeo Nai Meng
[2003] SGCA 48
S$80,000
2005
Lee Kuan Yew v Chee Soon Juan
[2005] SGHC 2
S$200,000
2005
Goh Chok Tong v Chee Soon Juan
[2005] SGHC 3
S$300,000
It
goes without saying that all the cases cited in the table below have their own
peculiar facts. That said, it is evident from a quick review of the quantum of
the awards in the table and from the stated reasoning in some of the cases
tabulated that the courts have adopted a ‘policy’ of following established
benchmarks.
In
the case of Goh Chok Tong v Jeyaretnam Joshua Benjamin and another action,11
the Court of Appeal increased the quantum of damages awarded by the court below
in order to bring the award in line with the established benchmarks:
57
Lastly, notwithstanding that the trial judge correctly identified that each
defamation case must be taken on its own facts, we are of the view that
insufficient B C D E regard was paid to the precedents established in case law.
A broad framework of awards has emerged from past cases and these cases serve as
a guide in determining the appropriate amount of damages to be awarded. In this
respect, the awards made in cases preceding this appeal must be treated with
care: they are not necessarily accurate indications of appropriate awards of
damages. Even so, given our findings on the issue of malice and the gravity of
the aggravating factors, together with the extent of republication and the high
standing of Mr Goh, the global award of $20,000 appears to us totally
disconsonant with those awards, including those which might now be considered
excessive.
58 In
particular, we note that an opposition Member of Parliament, Mr Chiam See Tong,
received awards of $50,000 in Chiam See Tong v Xin Zhang Jiang Restaurant Pte
Ltd [1995] 3 SLR 196 in respect of the publication of his photograph in the
restaurant’s advertising material and $120,000 in Chiam See Tong v Ling How
Doong & Ors [1997] 1 SLR 648 in respect of accusations made by his
former political allies that he had become a government stooge. We are mindful
of the differences between these two cases and the present one. Nonetheless,
they are of some relevance in this respect showing a broad framework of the
awards made.
59 In
light of what we have said, we think that the quantum of damages arrived at
below must be reconsidered and the amount of damages must undergo an upward
revision. In all the circumstances, we are of the opinion that a fair and
reasonable sum to be awarded to Mr Goh as damages should be $100,000.
Accordingly, we increase the award of $20,000 to $100,000.
Lastly,
in the case of Ei-Nets Ltd and another v Yeo Nai Meng12 the
Court of Appeal again made reference to the benchmarks that had been set when
determining whether the award of damages made by the court below had been
excessive:
‘63 As
regards the question of quantum of damages, the appellants argued that $80,000
is excessive. They relied on the following cases in support. First, Lee Kuan
Yew v Jeyaretnam JB [1978–1979] SLR 429, which was an action concerning
defamatory statements made against the then Prime Minister of Singapore, and
where $130,000.00 was awarded for what the court termed a ‘very serious
slander’.
64 Next,
the case of Chiam See Tong v Xin Jiang Restaurant Pte Ltd [1995] 3 SLR
196 which involved the preservation of the reputation of an opposition Member of Parliament
(‘MP’), who was also an advocate and solicitor. The defamation there
consisted of publishing the photograph of the MP in business promotional
materials without his consent. Damages of $50,000 were awarded.
65 Third, the case of Tang Liang
Hong v Lee Kuan Yew [1998] 1 SLR 97, where there was limited circulation of
a defamatory report to the police alleging that three leaders of the government
had, without factual basis, been making statements that one Mr Tang Liang Hong
was a Chinese chauvinist and anti-English educated. The Court of Appeal awarded
to Mr Lee Hsien Loong, Dr Tony Tan, and Mr Lee Yock Suan $130,000 (taking into
account the fact that he had already been awarded S$220,000 in a related suit),
$150,000, $130,000 in damages respectively.
66 Last, the case of Goh Chok
Tong v Jeyaretnam Joshua Benjamin [1998] 3 SLR 337, where the allegation
against the Prime Minister of Singapore was that he was guilty of a criminal
offence, ie criminal defamation. The allegation was made during the heat of an
election rally. The Prime Minister was awarded damages of $100,000.
67 Of course none of the above cases
quite fits the facts and circumstances of the present case. Arguably the closest
is Chiam See Tong but not quite. In Chiam See Tong, the wrongdoing
was the use of the plaintiff’s photograph for a commercial purpose. There was
no allegation of dishonesty or fraud as such. Here, what was alleged against Yeo
was that he had conspired with others to misappropriate funds of Speed, clearly
an allegation of dishonesty and fraud. On the other hand, in Chiam See Tong,
the plaintiff was a more well-known public figure and the publication was very
much wider, unlike the present case which only involved four persons.
68 Contrast Chiam See Tong
with Tang Liang Hong v Lee Kuan Yew, where the sting was that certain
political leaders were guilty of criminal conspiracy and where the publication,
like the present case, was only to a few police officers. The award given by
this court was $150,000 to a Deputy Prime Minister and $130,000 to a Minister.
In giving these awards, the court took into account the standing of
each victim.
69 Yeo’s standing is nowhere near
that of a Minister. Neither is he a leading public figure. Nevertheless, he is a
man of business and has held positions of responsibility in public and private
organisations. Bearing in mind the quantum given in the cases discussed above,
it may appear that the award of $80,000 to Yeo is high. However, we do not think
it is so high as to warrant the intervention of this court. Here, we think the
principles laid down in Associated Newspapers Ltd v Dingle [1964] AC 371
at 393 are germane:
An appeal court rejects his figure
only in ‘very special’ or ‘very exceptional’ cases. Such cases are
embraced by the formula that the judge must be shown to have arrived at his
figure either by applying a wrong principle of law or through a misapprehension
of the facts or for some other reason to have made a wholly erroneous estimate
of the damage suffered ...
70 The trial judge appreciated that
in an exercise such as this, all relevant factors must be considered. He took
into account:
[T]he sting of the defamatory words;
the context in which the words were uttered; the occupation and professional standing of the person
defamed, the degree of harm caused by the defamatory words and the degree of
aggravation/mitigation present ...
This court had in Goh Chok Tong v
Jeyaretnam Joshua Benjamin [1998] 3 SLR 337 enunciated the principle that
the court should give sufficient regard to precedents as they provide a broad
guideline. However, we do not think that the judge had erred as a matter of
principle; nor can we say, on the above precedents, that his award was a
wholly-erroneous estimate of the damage suffered.’
Final Note
It is clear that the courts in Singapore have over the
last 15 to 20 years consistently applied well entrenched factors historically
recognised by English law in determining general damages in defamation cases and
in doing so, have established our very own benchmarks in defamation awards.
These local benchmarks continue to stand the test of time and should be
carefully considered by any libel lawyer when advising on damages for
defamation.
Michael Palmer
Harry Elias Partnership
E-mail: [email protected]
Endnotes:
1 Section 4
Defamation Act (Cap 75).
2 This article
will not deal with exemplary damages and the factors which give rise to it.
3 [2001] 1 SLR
505.
4 Tan Sri Dato
Vincent Tan Chee Yioun v Haji Hasan Bin Hamzah & Ors [1995] 1 MLJ 39.
5 1st and 2nd
plaintiffs.
6 3rd plaintiff.
7 The range of
individual awards ordered for each of the several plaintiffs in the various
actions.
8 1st, 3rd and
4th plaintiffs.
9 2nd and 5th to
10th plaintiffs.
10 [2001] 1 SLR 505.
11 [1998] 3 SLR 337.
12 [2003] SGCA 48.