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Day v Kabui [2024] SBHC 65; HCSI-CC 507 of 2023 (5 April 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 507 of 2023

BETWEEN:

CRAIG DAY (aka PETER CRAIG DAY)
Claimant

AND:

ELLINGTON KABUI (aka ELLINGTON WASHINGTON DC,
aka WASHINGTON DC)
Defendant

Date of Hearing: 15 March 2024
Date of Ruling: 5 April 2024

Ms Lilly Ramo for the Claimant
No appearance for the Defendant

RULING ON ASSESSMENT OF DAMAGES

Commissioner Aulanga

1. This hearing on assessment of damages follows a default judgment order granted by the Court on 26^th January 2024. This assessment premised exclusively on quantum of damages for a claim for libel. The heads of damages sought in the claim are for general and exemplary. The other heads or categories of damages were not sought. In the claim, an amount of $1, 000,000.00 for both general and exemplary damages was sought.
2. The facts of this case show that the Claimant is a reputable business man, holding a position of a Chief Executive Officer (‘CEO’) and Director of a business, trading as Solomon Motors Limited in Honiara. He held that position since 2011. The facts further uncover the Defendant made false and defamatory publications on three separate occasions against the Claimant on social media Facebook page Yumi Tok Tok Forum (‘YTTF’). The first publication was made on 7^th July 2023 as follows “This expat Craig Day makes allegations without evidence against the DCGA and People of Republic of China. He alleged that the PG2023 stadium is not a free gift from PRC but a soft loan which SIG must pay back to PRC. This kind of person who made allegations without evidence are so dangerous because their rumours is likely to create hatred toward certain political groups. This kind of rumours can also lead to chaos if people believe it and formed hatred and acted upon the baseless allegations. My good people of Solomon Islands do not believe this rumour from this expart who spread propaganda.” The second publication was made on 20^th August 2023 as follows “Craig David shame on you, you kon man. Encouraging people to abuse freedom of speech. Take your white supremacy attitude somewhere.” The third was on 21^st August 2023 as “Craig Day, you want to politicise the visit of the Peace Ark to Solomon Islands. You think people don’t know your motives. We can see your posts on Facebook. If you want to point out the failures of the government, then go to them and point it out to them and not here on Facebook. You always post highly of Australia and USA actions in Solomon Islands despite USA’s action is reaction to PRC SI relationship. I called you kon man because you posted on Facebook saying the PG2023 stadium is not a grant but a concessional loan of 2% interest. You didn’t provide evidence so you’re a real professional kon man in this sense. Again, stop your white supremacy attitude. You need to know what is hate speech and an instruction to stop certain bad attitude you’ve been displaying on Facebook.”
3. It is important to note that after the first publication, the Claimant has requested the Defendant to refrain from indulging in making racial vilification on that YTTF against him but that was ignored. He continued to make the subsequent defamatory publications and racial vilifications against the Claimant. The Defendant did not render any apology or statement of remorse to the Claimant.
4. As a general rule in defamation cases, consolation for the personal distress and hurt caused to the Claimant by the publication, and harm done to the reputation of the Claimant (including business), are compensatory by way of damages. In terms of loss of reputation, the law takes into account the Claimant’s subjective reaction to the defamation, namely, the Claimant’s injured feelings, loss of self-esteem and dignity, and the feeling of outrage as a result of the defamation. Public perception of the Claimant and any insult publicly inflicted on the Claimant from the defamation must be taken into account as well. The Claimant’s standing in the community and whether the defamation was malicious must be considered in the assessment of the damages to be awarded to the Claimant.
5. In any event, only the general and exemplary damages were sought.
6. General damages according to Lord McNaughton in Stroms Bruks Aktie Bolag v John and Peter Hucthison [1905] UKLawRpAC 52; [1905] A.C. 515 at page 515, means those damages which the law will presume to be the direct, natural or probable consequences of the act complained of. They can be given for both pecuniary loss and non-pecuniary loss. While for exemplary damages, are damages which are awarded to punish and deter the wrong doer or defamer. In Solomon Star Limited v Wale [2016] SBCA 10, at paragraph 18, the Court of Appeal made it clear that exemplary damages “may be appropriate when there is evidence of oppressive, arbitrary or unconstitutional action by the servants of government, or where there is evidence of a calculated attempt at making a profit from the defamation which may well exceed the damages payable.”
7. In this case, there is no doubt that the use of the words the Claimant was a dangerous man and that he would create political chaos or instability to the Solomon Islands government, coupled with the publications that he was a professional conman for misleading the public and labelling him to have a white supremacy attitude, are scurrilous and defamatory words. They have the impact of injuring the Claimant’s reputation, feeling, dignity and self-esteem as the CEO of one of the reputable businesses in Honiara. In Wale v Solomon Star Ltd [2015] SBHC 9, general damages in this case would inevitably apply and ought to be considered first before other heads of damages. In assessing the appropriate award, the Court in Goh v Yam [1993] SBHC 43 made it clear that the award must be an adequate and fair compensation, and it must reflect the context of Solomon Islands.
8. I have considered the nature of the defamation of this case and compared it to past defamation cases to ascertain what should be the appropriate award under the head of general damages, such as decided in Goh v Yam [1993] SBHC 43, Sikua v Tradewind Investment Company Limited [2010] SBHC 95, Wale v Philip [2011] SHC 144, Wale v Solomon Star Limited [2015] SBHC 9, Goh v Tuhanuku [2016] SBHC 175 and McNiel v Solomon Star [2023] SBHC 41. In my view, the repeated assertions that the Claimant was a conman to the extent of labelling him as a professional conman who would cause chaos to the government of Solomon Islands, coupled with the repeated racial vilifications made by the Defendant are false and defamatory. Those comments may serve some purpose of the Defendant but they cannot be taken as fair comments when considered objectively in their entirety. As said in Goh v Tuhanuku [2016] SBHC 175, at page 2, they are “scurrilous”.
9. The Defendant published this in the YTTF that has more than twenty thousand members. The reputation, dignity, self-esteem and the status, amongst others, of the Claimant have been tarnished or injured by these publications. Those factors warrant this case to be slightly higher than the case of McNiel v Solomon Star cited earlier. In my distinct view, the nature of this case therefore warrants an award of general damages to be between the McNiel v Solomon Star and Wale v Solomon Star Limited, cited earlier. From the facts I have found, in my view, the sum of $70, 000 is an appropriate award of general damages to be paid by the Defendant. I reached this conclusion because those defamatory words were repetitious, intentional and maliciously made even when the Defendant was kindly asked to refrain or stop from making the defamatory publications against the Claimant. The amount of $1,000,000 sought in the claim for general and exemplary damages in my view is too excessive in the light of the awards given for defamation cases in this jurisdiction.
10. It is well understood there is general recognition of freedom and right of an individual to use and make comments on media, such as, the use of Facebook. While in this modern era, Facebook media provides an efficient and fastest way of communication, the right to use and make comments on Facebook is not absolute but qualified and subjected to certain restrictions imposed by the law. The law, especially the law of defamation in tort, requires a Facebook user to take responsibility, accountability and caution when making publications on Facebook. This is to avoid any infringement of rights of another which can be actionable in the Court. In this case, the Defendant has flouted that right which is unfortunate. The Defendant is a graduate lawyer by profession and he should know better the need not to defame another person through publications when using such media platform.
11. For exemplary damages, as said earlier, are damages which are awarded to punish and deter the wrong doer or defamer. Normally, they can be awarded in any of the three categories prescribed by Lord Delvin in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129. Those categories are first, due to oppressive, arbitrary or unconstitutional acts by government officers. Second, where the Defendant’s conduct in the defamation is for personal profit making and third, where it is expressly authorised by statute. The three categories prescribed in Rookes v Barnard above have been adopted in Alliance Trading Association Solomon Islands v Sanau [1999] SBHC 157, evidencing the stance of Solomon Islands in following English common law. Therefore, those two decisions are persuasive authorities for this Court to adopt.
12. In this case, I am not satisfied with any evidence that the Defendant’s action in the publications falls in any of the three categories prescribed in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129. There is no evidence that the Defendant is a government official or that he was financially profiting from the publications and further, there is no reference to any specific legislation in this jurisdiction that makes the action of the Defendant herein to warrant the award of exemplary damages. Based on these reasons, I am not inclined to award exemplary damages as sought in the claim against the Defendant.

Orders of the Court

1. Award claim for general damages in the sum of $70, 000 against the Defendant.
2. Refuse to award claim for exemplary damages as sought in the claim.
3. Cost of this proceeding is to be paid by the Defendant on standard basis, to be taxed, if not agreed.

THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court of Solomon Islands