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Air Fiji Ltd v Shandil [2004] FJHC 298; HBC0380J.1999S (23 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL JURISDICTION NO. 380 OF 1999

Between:

AIR FIJI LIMITED
Plaintiff

and

SHAILEND SHANDIL
ISLAND NETWORK CORPORATION LTD
Defendants

Mr. W. Clarke with Ms. R. Lal for the Plaintiff
Mr. S. Matawalu for the Defendants

JUDGMENT
(Assessment of Damages)

The Assessment of Damages hearing herein took place pursuant to judgment entered against the defendants on 25 January 2001 for having failed to file their Statement of Defence.

At the hearing the defendants were represented by Mr. S. Matawalu. Initially this case came before Shameem J when she gave two decisions on applications made by the defendants firstly, under Order 18 Rule 18 of the High Court Rules 1988 and then under Order 19 r.7. In the latter Her Lordship had on 25 January 2001 ordered that ‘judgment may now be entered by the plaintiff against the defendants and that the defendants do pay the plaintiff the damages to be assessed’.

Plaintiff’s claim as per Amended Statement of Claim

The plaintiff’s case is as stated in the Amended Statement of Claim filed herein. It is as follows:

1. The Plaintiff is a limited liability company capable of suing and being sued, is duly incorporated in the Republic of the Fiji Islands under the provisions of the Companies Act and carries on the business of providing domestic air services, transport and all other activities ancillary thereto throughout Fiji under the name and is widely known as “AIR FIJI”.
   
2. The Plaintiff and the name “AIR FIJI” under which it operates its business and trade enjoys very large and extensive goodwill, both within Fiji and internationally, as a safe, reliable and well managed airline which is compliant with all relevant local and international air safety requirements and regulations.
   
3. The Plaintiff operates its business and trade, both within Fiji and internationally, as a safe, reliable and well managed airline which is compliant with all relevant local and international air safety requirements and regulations.
   
4. The First Defendant was at all material times employed as a journalist by the Second Defendant.
   
5. The Second Defendant was at all material times a company duly registered under the Companies Act which carries on and engages in the business and trade, amongst other things, of transmitting for general reception wireless and radio programs including, but not limited to, news and current affairs.
   
6. On 24th July 1999, an “EMBRAER EMB 11OP1”, serial number 416 registration “DQ AFN” aircraft belonging to the Plaintiff and carrying 15 passengers and 2 pilots employed by the Plaintiff crashed causing the death of all on board the said aircraft (hereinafter referred to the said crash).
   
7. On 3rd August 1999 and 4th August 1999 on at least three separate occasions First Defendant spoke and the Second Defendant published by broadcast the words following which were defamatory of the Plaintiff:
   

Particulars

“An Air Fiji flight PC 153 bound for Moala in Lau suffered a mechanical failure mid-air causing it to make an emergency landing...”

The Plaintiff will at trial refer to the broadcast in its entirety for its full meaning and effect.

8. The full transcript of the broadcast is as follows:
   

“This is news that has just come to hand.........”

“An Air Fiji flight PC153 bound for Moala in Lau this afternoon managed to land after its right propeller suffered a mechanical failure mid-air.”

“There were seven passengers on board including representatives from various Ministries going to Naroi to attend Lau Provincial Council Meeting.”

“Our reporter, who’s covering the Provincial Meeting on the island, Waisale Tora, says the aircraft managed to make a safe landing.”

“The aircraft is currently undergoing repairs by company engineers who were flown to the island this afternoon with the spare parts.”

“The passengers also include Adi Litia Qionibaravi of the Ministry of Fijian Affairs, Apolosi Turaganivalu from Fisheries and Jo Mainavukea of the Ministry of Information.”

“Our efforts to contact the airline consultant Kalara Vusoniwailala, has been unsuccessful.”

9. The above said words by reason of the context in which they were published by broadcast bore the natural and ordinary and inferential meaning given the said crash referred to in paragraph 5 herein and the general concern expressed by the public and media about civil aviation in Fiji that the Plaintiff, as the owner, manager of the said aircraft and thus in overall charge its loading and management of its aircraft:
   
   • (i) did not have airworthy aircraft;
     
   • (ii) operated aircraft which are unsafe to fly in;
     
   • (iii) operated aircraft prone to serious malfunction;
     

operated an aircraft from Nausori to Moala which suffered a serious malfunction to its propeller mid flight on 3 August 1999.

10. The words spoken, broadcasted or implied of the Plaintiff and its aircraft herein were and are untrue and false.
    
11. By publication through broadcast of the said words, the Plaintiff has suffered damage and loss to its credit and business reputation as an airline both locally and internationally.
    

The plaintiff claims from the defendants: (a) general damages, (b) special damages, (c) punitive damages, (d) interest and (e) such other order as the Court deems fit.

BACKGROUND FACTS

The writ of summons herein was issued on 13 August 1999.

The alleged defamation arose from a broadcast read by the first defendant and published by the second defendant on 3rd and 4th August 1999.

The broadcast impliedly reminded the listeners of the air crash of the said aircraft EMBRAER EMB 110P1 belonging to the plaintiff on 24 July 1999.

On 23 November 1999 Shameem J ordered that the plaintiff file an amended Statement of Claim to incorporate the full broadcast so that the defendants can properly file a Defence. The Plaintiff filed its Amended Statement of Claim but the defendants did not file their Statement of Defence which led to the judgment being entered in default with damages to be assessed on an application being made under Or 19 r.7 of the High Court Rules 1988.

PLAINTIFF’S SUBMISSION

Mr. W. Clarke, the learned counsel for the plaintiff, submitted that the alleged broadcast was a ‘special news bulletin and broadcast twice on 3 August and once on 4 August’. He submits that the ‘broadcast complained of is injurious in a particularly hurtful manner. And that is because it is talking of a near accident and of an emergency, it talks of a mechanical failure mid-air’.

Mr. Clarke submitted that because Air Fiji had just suffered an accident two weeks prior with PC121 makes that damage worse as Mr. McDonald said Air Fiji was already struggling. That was still fresh in the minds of the general public of Fiji and all reasonable persons.

Counsel further submitted that what has been “recorded that was alleged to have occurred in this broadcast it’s false and untrue ...... and this could have caused pain and serious damage to Air Fiji’s reputation”.

Counsel submits that the most important asset of any operation is their image of safety. If that image of safety is tarnished by a broadcast such as this one the circumstances in which it was made keeping in mind the fact that PC 121 was still so fresh in everybody’s mind. Instead of finding out what the real facts were, the defendants went ahead and published ‘this false and untrue story simply to create some hysteria and panic’.

It was submitted that the ‘story’ is false and untrue. Mr. McDonald giving evidence spoke of how there was a profound effect on the airline flying to its exclusive destination where people would not like to hear information such as this. The witness made it clear in the course of his evidence that if it did happen ‘no problem with responsible reporting being done of the situation where incidence does in fact occur’.

The plaintiff says that it has suffered damage arising out of this broadcast and makes a claim by this action.

DEFENDANTS’ SUBMISSION

Mr. Matawalu the learned counsel for the defendants said that because of the failure to file a Defence he ‘concedes that the Amended Statement of Claim now remains the only basis upon which your Lordship will now proceed’.

Counsel submitted on various aspects of the claim for damages.

ASSESSMENT OF DAMAGES

I shall deal with assessment of damages under the various heads appearing hereunder.

In support of the claim for damages evidence was given by Mr. Kenneth McDonald, the Chief Executive of Air Fiji Ltd (PWI) and Mr. David Treveoyn Pitt, Chartered Accountant and Manager Finance, Air Fiji Ltd (PW2).

Apart from the learned counsel for the defendants cross-examining the witnesses, the defendants did not adduce any evidence.

At the conclusion of the hearing both counsel made oral submissions.

I am in entire agreement with the submissions made by Mr. Clarke for the Plaintiff in regard to damage caused to Air Fiji’s reputation. This is particularly so when the news item that was broadcast by the defendants on the two days was ‘false’. The defendant at no stage made any attempt to refute the broadcast not even in the cross-examination of witnesses.

Mr. Matawalu is quite right when he said that in the absence of Statement of Defence the Court is left with the Plaintiff’s Statement of Claim to assess damages.

There is no doubt that the Plaintiff has suffered greatly by this irresponsible broadcast. As broadcasters who have been in this field for some years they should have known better and should have been more careful in what they broadcast.

(i) The Law – were the words broadcast defamatory?

It is for the plaintiff to prove that the alleged defamatory words were published of it. On the evidence before me I have no doubt that they were and then of course judgment has already been entered against the defendants in default of defence.

It was said by A.L. Smith M.R. in Sadgrove v Hole (1901) 2 K.B. at p.4 that:

“The plaintiff in order to succeed in the action must prove a publication of and concerning him of the libellous matter, and if he does not satisfy the onus of proof which is on him in this respect, there is no cause of action.”

On the evidence before me I hold that the words of the broadcast were capable of bearing a defamatory meaning.

A similar situation as in the present case arose in Gillick v British Broadcasting Corporation and Anor (TLR at 527, 20.10.95 C.A.). There a live television broadcast was made by the B B C and Lord Justice Neill had to deal with whether the words complained of were capable of bearing the meaning alleged in the amended statement of claim therein. The actual meaning had yet to be determined.

In this case in the absence of a Statement of Defence, inter alia, denying the allegations, one has no alternative but to come to the conclusion that the broadcast was ‘false’ and ‘untrue’ as alleged.

On the facts and circumstances of this case I have considered the following principles on which the Court approaches the task of deciding the meaning to be attributed to the alleged words broadcast as summarised by Neill L.J. in Gillick (supra) at p.528 from the guidance given and the principles stated by Sir Thomas Bingham M.R. in Skuse v Granada Television Ltd (unreported March 30, 1993):

1. The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once.
   
2. The hypothetical reasonable reader or viewer was not naïve but he was not unduly suspicious. He could read between the lines. He could read in an implication more readily than a lawyer and might indulge in a certain amount of loose thinking. But he must be treated as being a man who was not avid for scandal and someone who did not, and should not, select one bad meaning where other non-defamatory meanings were available.
   
3. While limiting its attention to what the defendant had actually said or written the court should be cautious of an over-elaborate analysis of the material in issue.
   
4. A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.
   
5. In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court were entitled, if not bound to have regard to the impression made.
   
6. The court should not be too literal in its approach.
   
7. A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally.
   

Applying the above principles I have come to the conclusion that the words of the broadcast must have affected Air Fiji “adversely in the estimation of reasonable persons generally”, and I agree with the submission of the learned counsel for the plaintiff in this regard.

(ii) Damages in defamation

In this case the plaintiff is entitled to damages as a relief for defamation.

The damages have to be assessed on a compensatory basis; but in some circumstances exemplary (or punitive) damages can be awarded.

(a) Compensatory damages

As stated by Duncan and Neill in Defamation (1978 Edition) at page 130 for compensatory damages, the ‘basic rule of common law is that in civil action damages are awarded as compensation for injury, not as punishment for wrongdoing’. (18.03). The authors go on to state:

“The purpose of an award of compensatory damages is to restore the plaintiff, as far as money can do so, to the position he would have been in if the tort had not been committed. This principle of restitutio in integrum was stated by Lord Blackburn in Livingstone v Rawyards Coal Co as follows:

‘Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which would put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation’.”

In defamation cases, as compared to actions for personal injuries where awards for personal injuries for pain and suffering and loss of amenity have achieved a measure of uniformity, awards, however, in defamation do not approximate to any conventional scale (Neill, supra).

The nature of damages and the purposes for which it is awarded has been well expressed by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1967] 117 CLR at 150 thus and is worth noting:

“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.”

“This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being “at large”.” (emphasis added)

Factors considered in awarding compensatory damages

As stated in Neill (supra) at 18.09 the factors which are to be taken into account in assessing damages, apart from the ‘seriousness of the libel is of course always a relevant consideration, the other factors to be considered are: (a) special damages; (b) injury to the plaintiff’s feelings including aggravating factors; (c) extent of the publication; and (d) mitigating factors.’

The factors relevant in considering the measure of damages in defamation case have been held as follows in the Singapore Court of Appeal case of Tang Liang Hong v Lee Kuan Yew & Anor and other appeals [1998] 1 SLR 97 (CA) (also reported in Commonwealth Law Bulletin – January and April 1998 at 195):

“First, a defamation action was fundamentally an action to vindicate a person’s reputation on a matter as to which he had been falsely defamed, and the damages awarded had to be regarded as the demonstrative mark of that vindication. Thus, the amount of damages awarded in defamation actions was only given in relation to circumstances of the past and present but it must be sufficient to vindicate the plaintiff’s reputation in the relevant respect in the future. Damages, and the size of the award, were the only means which ordinarily were available to attract the public or private attention involved in the vindication of the plaintiff’s position; Dingle v Associated Newspapers Ltd & Ors [1964] AC 371, Broome v Cassell and Co Ltd [1972] UKHL 3; [1972] AC 1027 and John Fairfax & Sons Ltd v Carson (1991) 24 NSWLR 259 followed. The defamation award also had to reflect the aggravation caused to the plaintiff by the defendant’s subsequent conduct or any mitigation, in addition to the need to vindicate the plaintiff’s good name; Sutcliffe v Pressdram Ltd [1991] 1 QB 153, Rantzen v Mirror Group Newspapers (1986) Ltd & Ors [1993] EWCA Civ 16; [1994] QB 670 and Carson v John Fairfax and Sons Ltd {1993) 178 CLR 44 followed.

For the purposes of this case, evidence has been adduced as to the alleged loss suffered by the plaintiff.

(b) Special damages.

The plaintiff is claiming special damages.

The law as to claim for ‘special damage’ has been stated clearly as follows by Neill (supra) at 18.10 and I consider it apt to be borne in mind in assessing damages.

“Special damage for the purpose of the law of defamation may be defined as any material or temporal loss which is either a pecuniary loss or is capable of being estimated in money. Thus, for example, a plaintiff is entitled in an action for defamation to recover as special damage any pecuniary loss suffered as a result of losing his employment or a contract because of the publication of the defamatory matter. Furthermore, special damage can include the loss not only of a specific contract or of any specific customers but also a general loss of business. Where, however, the plaintiff wishes to claim special damage he must give particulars of his loss in the pleadings and give discovery of any relevant documents. (emphasis mine)

In the case before me, the plaintiff has stated ‘general loss of business’ and has produced facts and figures in this regard.

It is said that ‘a publication in a national newspaper or by means of a television or radio may lead to a very substantial award because the defamatory material is likely to come to the notice of a very large number of people ...’ (Neill, supra at 18.14).

The broadcast was a very damaging allegation against a successful airline company with a good reputation except when there was a serious accident 10 days before the present defamatory broadcast. That accident tarnished the Plaintiff’s reputation and no doubt would have affected it as far as people wanting to travel by its aircrafts.

Subject to what I say hereafter, the plaintiff is entitled to special damages.

(c) Exemplary damages

The plaintiff claims exemplary or punitive damages.

I shall now consider whether exemplary damages should be awarded in this case or not.

On the aspect of ‘exemplary damages’, particularly its nature and in what circumstances it is awarded, Lord Devlin has dealt with it quite extensively in the House of Lords case of Rookes v Barnard and Others [1964] UKHL 1; 1964 AC 1129 at 1221 – 1231.

I refer to the salient features of the exemplary principle as stated by Lord Devlin. He said (at 1221):

“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter.....”

It was held in Rookes (supra) at 1131:

“that exemplary damages could be awarded in cases (i) of oppressive, arbitrary or unconstitutional acts by government servants; (ii) where the defendant’s conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff; (iii) where expressly authorised by statute (post, pp. 1226 1227); that in a case in which exemplary damages were appropriate a jury should be directed that only if the sum which they had in mind to award as compensation (which might of course be aggravated by the defendant’s behaviour to the plaintiff) was inadequate to punish and deter him, could it award some larger sum (post, p.1228); that the facts disclosed in the summing-up showed no case for exemplary damages and possibly none for aggravated damages (post, pp. 1232, 1233); however, the plaintiff could, without any departure from the compensatory principle, invite the jury to look at all the surrounding circumstances and award a round sum based on the pecuniary loss proved (post, pp. 1221, 1233).”

Lord Devlin said that the three considerations stated above ‘should always be borne in mind when awards of exemplary damages are being considered’.

A case of damages similar to the present case arose in the Malaysian case of Chong Siew Chiang v Chua Ching Geh & Anor [1995] 1 MLJ 551 (HC) (also reported in Commonwealth Law Bulletin, April 1995 at 483). There the High Court, in awarding RM 30,000 in compensatory damages, held (inter alia):

1. In a libel action, the general rule is that damages are assessed on a compensatory basis. However, in certain circumstances, exemplary damages may be awarded. Compensatory damages may include special damages and if aggravating circumstances exist, aggravated damages can also be awarded.
   
2. Before considering any exemplary damages, it must be considered first whether the sum in mind for compensatory damages would be adequate. In the present case, exemplary damages may only be awarded if the libel had been done with guilty knowledge, with the motive that the changes of economic advantage outweigh the chances of economic penalty.
   
3. The damage sustained by a plaintiff must depend substantially on the estimation in which he was previously held in the opinion of others unaffected by the libel. It is his reputation and not his character that is relevant in assessing damages. (emphasis added)
   

Applying the principles applicable to ‘exemplary damages’ to the facts and circumstances of this case I do not consider it to be case of award of exemplary damages.

I have come to this conclusion mainly because I intend to award adequate sum as compensation inclusive of special damages sufficient to punish the defendants. Also because it is highly unlikely that this careless act would be repeated as being a case of ‘once bitten twice shy’. When I say this I should not be understood as departing from the principle stated below by Sir Thomas Bingham M R in John v MGN Ltd (T.L.R. 14.12.1995 675 at 677 C.A.):

“The authorities gave judges no help in directing juries on the quantum of exemplary damages. Some such damages, were analagous to a criminal penalty, and although paid to the plaintiff played no part in compensating him, principle required that award should never exceed the minimum sum necessary to meet the underlying public purpose: that of punishing the defendant, showing that tort did not pay and deterring others.”

INTEREST

The plaintiff has claimed interest in the pleadings. A claim for interest is only appropriate where the plaintiff is claiming damages for financial loss (Gatley ibid 26.36).

Therefore the plaintiff is entitled to interest in this action.

CONCLUSION

In the outcome, for the reasons stated hereabove on the facts and circumstances of this case and on the authorities the plaintiff is entitled to general and special damages (as compensation) with interest and costs.

Assessing damages for defamation is fraught with difficulties and the general picture that presents itself in such a case can be obtained from the speech of Lord Atkin in Ley v Hamilton (1935) 153 L.T. 384, H.L) where he said:

“Speaking of damages for defamation Lord Atkin said that they were not arrived at by determining the ‘real’ damage and adding to that a sum by way of vindictive or punitive damages. 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. The ‘punitive’ element is not something which is or can be added to some known factor which is non-punitive.” (emphasis mine)

There are two defendants in this case. The first defendant was at all material times employed as a journalist by the second defendant.

As stated in the Amended Statement of Claim the first defendant spoke and the second defendant published by broadcast the words which were defamatory of the plaintiff.

Judgment in default of defence was entered against both of them. As far as liability is concerned, the principles of vicarious liability are as much applicable to defamation as to any other act. On this Gatley on Libel and Slander 9th Ed. states:

‘First, that where A procures or authorises B to commit a tort, A is liable with B as a joint tortfeasor. Secondly, that where there is a relationship in the nature of employment (commonly referred to as that of “master and servant” and signifying a contract of services) between A and B “in the course of that employment B (the servant) commits a tort, A is vicariously liable for B’s act”.

In view of the above passage and on the facts of this case the second defendant is not only vicariously liable for the defamation but also in its own right for having authorised or participated in the ‘publication’ of the defamatory alleged news item.

What I have stated above should not be taken to mean that the master (second defendant) is liable for defamation by the servant and not the servant, for that is not so as “it is a fundamental principle of English law that no tortfeasor can excuse himself from the consequences of his acts by setting up that he was acting only as the agent of another.” per Lord Moulton in Vacher v London Society of Compositors [1913] A.C. 107 at 131.

As I have stated hereabove the plaintiff is entitled to compensatory damages by way of general and special damages and interest.

In this case in assessing damages one cannot lose sight of the fact that as stated in item 6 of the amended statement of claim that: “On 24th July 1999 an Émbraer EMB 110P1 serial number 416 registration “DQ AFN” aircraft belonging to the plaintiff and carrying 15 passengers and 2 pilots employed by the plaintiff crashed causing the death of all on board the said aircraft”.

This fatal disaster no doubt caused a damaging blow to the plaintiff as an airline and it goes without saying that the travelling public must have shyed away from engaging the Airline to travel for some considerable time resulting in loss of revenue to it.

Now to add fuel to fire so to say, barely 10 days later on 3 & 4 August 1999 a further serious blow was inflicted on the Airline with the present ‘false and untrue broadcast. No doubt had the broadcast been true the damage caused would not have been so severe.

The general picture therefore is one of an Airline which was almost on its knees as a consequence of the said crash of EMBRAER EMB 110P1 when within a matter of days another blow lands on it akin to hitting below the belt. What the motive of the defendants were in broadcasting this false and damaging so called news item is beyond my comprehension as no apology or explanation has come out in evidence. There is no apology and no remorse shown by the defendants and the fact that they failed to file Statement of Defence is sufficient to show that there is no defence.

A greater amount can be awarded where “the publication of a libel was irresponsible. No effort was made to check the report’s accuracy and the plaintiff’s name was included” (Kiam v Neill and Another TLR 26.7.96 p 33 C.A.).

The Court of Appeal went on to say further:

“The libel jury could properly take into account the prominence of the plaintiff’s reputation when deciding what figure was required to vindicate it. They were also entitled to take account of the fact that it struck at the core of his life’s achievement and that, according to the unchallenged evidence, it had a prolonged and significant effect on him personally”.

It is also pertinent to note what Sir Thomas Bingham M.R. said in John v MGN Ltd ([1996] 2 All ER 35, 48). He said:

“The most important factor is the gravity of the libel; the more closely it touches the plaintiff’s person integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people.”

For these reasons on the facts and circumstances of this case and bearing in mind the principles pertaining to the assessment of damages, I assess general damage in the sum of $80,000.00 (eighty thousand dollars).

I shall now deal with special damages.

As Neill (supra) has said “...special damage can include the loss not only of a specific contract or of any specific customers but also a general loss of business”.

The plaintiff has no doubt suffered a general loss of business and this is what it is claiming in exhibit P1 which is claim for loss. It has with it a ‘summary of claim for loss’ which is as follows showing a claim for loss at $245,383.00:

“Loss of Revenue from 3 August 1999 to 31 December 1999

Revenue for the period 3rd August 1999 to 31 December 1999

As per schedule 3 $4,655,151

Revenue for the period 3rd August 1998 to 31 December 1998

As per schedule 3 $5,984,954

Loss of revenue 1998 to 1999 for above period $1,329,803

Loss of Revenue as a percentage of 1998 revenue 22.21%

Revenue for the period 24 July 1999 to 3 August 1999

As per schedule 2 $311,605

Revenue for the period 24 July 1998 to 3 August 1998

As per schedule 2 $380,521

Loss of Revenue 1998 to 1999 for above period $ 68,916

Loss of Revenue as a percentage of 1998 revenue 18.11%

Increased Revenue loss from 3 August to 31 December

as a percentage of 1998 Revenue 4.10%

Calculation of loss from 3 August to 31 December 1999

4.10% of 1998 Revenue = 4.10% of $5,984,954 $245,383

Claim for loss $245,383”

No doubt the fatal crash of 24 July 1999 caused more loss of revenue or business than the broadcast of 3 August 1999.

Doubtless the plaintiff was still suffering loss of revenue when it was defamed by this broadcast. The plaintiff has calculated its loss of revenue in 1999 by comparing it with the 1998 revenue and has worked out the percentage of loss at 4.10 % of 1998 increase of $5,984,954.

The greatest loss was in my view due to that fatal crash with loss of lives and in my estimation on the evidence the loss through these defamatory words was not quite like the percentage worked out by the plaintiff. I would in the circumstances and on the facts assess the loss at $120,000.00(one hundred and twenty thousand dollars).

Order

For these reasons, there will therefore be judgment for the plaintiff against the defendants in the sum of $80,000.00 (eighty thousand dollars) as general damages and the sum of $120,000.00 (One Hundred twenty thousand dollars) by way of special damages making a total of $200,000.00 (two hundred thousand dollars) by way of assessment of damages together with interest thereon at 5% from 3rd August 1999 to date of this judgment with costs which I fix at $1000.00 (one thousand dollars).

D. Pathik
Judge

At Suva
23 June 2004