DC228

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 90 OF 2003

Leontine Camillus
Complainant

V

Josepha Yaot
Defendant

Port Moresby: Gauli, M
2003: 24, 26 September, 01 October

Civil Law: Defamation - Liability Admitted - Damages - Mitigation Of Damages - Offer Of Apology - Apology Not Made Sufficient In Substance And In Time.

Case Cited:
Joan Baker -V- Lae Printing Pty Ltd [1979] PNGLR 16

Counsel
For The Complainant: In Person
For The Defendant: Mr Ponea of Ninai Lawyers

01st October 2003

Gault, M: The Complainant, Leontine Camilus brought this action against the Defendant, Josepha Yaot claiming damages for publication of defamatory words in which the Defendant described the Complainant as a "pamuk" or a prostitute.

It is alleged that on Tuesday 29th April, 2003 at around 10:15 in the morning, the Defendant went to Complainant's office at the Tisa Building at Waigani and accused the Complainant of having affairs with Mr. Gabriel Yaot,- the Defendant's husband. Mr. G Yaot and the Complainant are both employed by the Police Savings and Loans Society, Mr Yaot as the General Manager. Their office is located on the 3rd Floor of the Tisa Building; The Defendant had a confrontation with her husband, Mr. Yaot at the Car Park of the Tisa Building at that time. The Defendant while at that Car Park shouted to the Complainant who was looking out of the window from the 3rd Floor, the following defamatory words:-

"Leontine yu weit istap bai mi kam lukim yu, yu pamuk, yu poret long kam daun na lukim mi, yu wakim wanem long wiken, lukim dispela meri, emi pamuk meri, yu kam autsait bai mi vvetim yu istap".

The Defendant then walked up to the 3rd Floor and insulted the Complainant in the presence of her colleagues and other members of the public by calling her a pamuk or prostitute.

The Defendant through her Lawyer on 26th September admitted liability but she submitted for the mitigation for damages. The defense council submitted that the only issue for this Court to consider in mitigating damages is:

"whether the Complainant had filed this cause of action after the Defendant had made an offer of apology".

The Council relies on the Section 25 of the Defamation Act which states that an offer of apology is a mitigating factor in damages. This provision states and I quote:-

25 Offer of apology

In an action for defamation the Defendant may plead and prove in mitigation of damages that he made or offered an apology to the Plaintiff for the defamation before the commencement of the action or if the action was commenced before there was an opportunity of making or offering the apology, as soon as he had the opportunity to do so".

This provision provides two instances where the Defendant could make an offer of apology. The first instance would be before the action is commenced in Court. And the second instance would be that an apology may be offered at the earliest opportunity after the action has been commenced. From the evidence as presented before this Court and upon the Complainant's confirmations during the Cross-examination that the Complainant filed this action after the Defendant had made an offer of apology. The Defendant published the defamatory words on the 29th April, 2003. She offered the apology on the 05th of May, 2003. And the Complainant filed this action in Court on 27th May, 2003. . I am satisfied that the Defendant made an offer of apology some 22 days before this action was filed in Court.

The effect of making an apology before or after the commencement of the action in Court is that the amount of damages may be reduced if the apology is made sufficient in substance and within a reasonable time.

In the Case of JOAN BAKER -V- LAE PRINTING PTY LTD [1979] PNGLR 16 the Plaintiff brought an action for the defamatory statements published by the Defendant in its weekly newspaper. The Defendant wrote a letter of apology one week later. The Court held that the apology was neither sufficient in substance nor sufficient in time. The National Court refused to reduce the damage and awarded a sum of K6, 000.00 in damages.

In the present case the Defendant was urged by her husband to apologize to the Complainant the following day after the publication of the defamatory words. The Defendant refused to apologize but she did make an offer of apology a week later. The Complainant refused to accept the apology. The terms of or the words used in the apology have not been made known to the Court. The Court could not be able to ascertain whether the apology was sufficient in substance. The case of BAKER -V- LAE PRINTING (supra) stipulates that an apology must be sufficient both in substance and time in mitigating damages. In the " absence of the exact word used in an apology, I could not be satisfied that an apology offered by the Defendant was sufficient in substance.

As to whether the apology was made sufficient in time or within a reasonable time, I have to consider whether the apology was made by the Defendant willingly and freely without outside influences. The Defendant was urged by her husband to go and apologize to the Complainant the next day after the date of the incident. Defendant refused to apologize until a week later she offered an apology. The Defendant offered an apology not willingly and freely of her own accord but that she was being urged by her husband. Where an apology had been forced or influenced by others, in my view, that apology is not made willingly and freely. It would not be a full apology. As regard to a time factor, the apology was made a week later after being influenced by the husband. The Complainant and the Defendant's husband work in the same office in Port Moresby. The Defendant had all the opportunity to apologize even a day after the incident. I find that the apology was not made with sufficient substance nor within reasonable time.

Having found that an offer of apology by the Defendant was not been made with sufficient in substance nor in time, I refuse the mitigation of damage.

The other factors for mitigating of damages are also stipulated under Section 29 of the Defamation Act, which provides two factors. These are that the Plaintiff/Complainant:-

(a) has recovered the damage; or
(b) has received or agreed to receive compensation either before or after the commencement of the action. This provision however is not relevant since the Defendant does not raise mitigation under this provision.

The damages for defamation are at large. The Complainant can claim damages for injury to personal reputation, feelings and or health and any injury to reputation in business. These damages cannot be arithmetically measured therefore these damages are at large. The Complainant did not claim any specific amount in damages. Whatever the amount of damages to be considered must depend on the serious nature of the defamatory words published, and the amount must be within this Court's jurisdiction not exceeding K8,000.00.

The Defendant described the Complainant as a "pamuk" or a prostitute. The word "pamuk" in pidgin language in its ordinary meaning is understood to mean that the Complainant - (a) is a promiscuous; (b) lacked moral principles of ethics; (c) was involved in adulterous affair; (d) uses her body for material or monetary gains; (e) lacked respect for herself. The defamatory words were said in the presence of the Complainant's work mates and others inside a public office. The Complainant was demoralized, degraded and her feeling hurt and as a result she took a day-off from work immediately that day. The fact that the Complainant refused to accept an apology offered a week later was an indicative of how much she was been hurt of her personal reputations and feelings.

There was no truth in the Defendant in accusing the Complainant as a "pamuk". The Defendant's husband, Mr Gabriel Yaot in his affidavit said that there was no truth that the Complainant had affairs with him. He said in Paragraph 5 of his Affidavit:-

"On Wednesday 30th April, 2003, I found out that my wife had gone into the office and argued with one of my staff, Ms. Leontine Camilus. That evening I spoke to my wife to go and apologize the very next day (Thursday) to Ms. Leontine Camilus not only because Leontine was an innocent lady but also of my position as her boss".

And the Defendant in Paragraph 10 (b) of her Affidavit stated that she was informed by her son's schoolmate that he saw the Defendant's husband with a lady in the month of April, of which descriptions fits that of the Complainant. The Defendant approached the Complainant to ask her if it was the Complainant been seen with the Defendant's husband. There is no affidavit evidence filed from the Defendant's son's schoolmate to verify this allegation.

I find that there was no truth for the Defendant to accuse the Complainant of having adulterous affair, and accusing her as a "pamuk".

The defamatory words complained of are very serious in deed. The Complainant's feelings and reputations were really hurt. The offer of an apology by the Defendant was made without sufficient in substance and in time therefore the mitigation of damages must fail. The Complainant submitted that the damages for defamation should be between K2,000.00 to K6,000.00 There is no evidence to show how much the Complainant had suffered of her reputation, character and feelings as a result of the publication of the defamatory words to qualify for damages between K2,000.00 to K6,000.00. In view of this I consider that damages in the vicinity of K1,000.00 to be reasonable. Accordingly I assess damages for defamation in favour of the Complainant in the sum of K1,000.00 with costs. The cost is assessed at K2.00 per day for transport with a total of 8 days of attendance in Court plus K400.00 for drafting of Complaints, Summons and Affidavit. The total cost being K416.00. That the total judgment of K1,416.00 to be paid forthwith.

In Person: Complainant
Mr Para of Ninai Lawyers: Defendant