FEATURE

Damages in Defamation: What is Considered and What is Awarded?


This article considers the factors which the courts in Singapore are likely to take into account when determining an award of damages for defamation and trends in the quantum of damages in recent defamation cases.


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 Singapore , the courts have been loath to allow the quantum of awards for general damages in defamation cases to be substantially scaled upwards. The trend in awards over the last 15 years has seen a general consistency in the quantum of general damages (including aggravated damages) in line with established benchmarks. Whilst the court has acknowledged that the quantum in each case ought to be decided based on its particular facts, it has in many instances taken cognisance of previous awards that have been made.

 

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 Singapore .

 

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: michaelp@harryelias.com.sg

 

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.