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Damages awarded in defamation cases is a topic of interest to various sections of the public.

A reader wants to know why the law allows damages awarded for defamation to be far in excess of what is awarded to persons who have suffered personal injuries and have in some cases been left with serious permanent disabilities. To the man in the street it is difficult to understand why a person who has lost an arm may receive only tens of thousands of ringgit whereas another person who is hale and hearty but about whom defamatory statements have been made and whose business has not been affected should receive hundreds of thousands of ringgit.

The law looks at damage to reputation caused by libel or slander and damage caused to a person’s body through injury rather differently even though both subjects come within the realm of tort. Physical /personal injury occurs generally through negligence whereas slander and libel fall within the sphere of defamation.

The award for damages in these two spheres has always been approached differently. For this reason there has been no relation between the damages awarded in these two spheres. In cases of negligence, the basis is the actual damage caused or that would have been foreseeable. Of course when the award is for loss of limb or other forms of pain and suffering, it is not quantifiable in monetary terms. However damage to a person’s reputation has an impact that is less tangible and therefore more subjective. At the same time intention or a deliberate intention to damage a person’s reputation are more relevant factors compared to a case of physical/personal injury arising from pure negligence.

Why is the approach to claiming different? The answer rests on two different considerations. One is that these two wrongs are perceived to be different and therefore require different treatment. The other is the manner in which decisions have been made in different cases in England where a jury system is in place for such trials and where therefore the jury decides what the award to be made should be. In England (to which we look for our legal ancestry) and on whose judgement and pronouncement reliance in different degrees in different situations it has been said that if such cases were routinely tried by judges sitting alone there would no doubt emerge a more or less coherent framework of awards which would, while recognising the particular features of particular cases, ensure that broadly comparable cases led to broadly comparable awards.

Respect for the constitutional role of the jury in such actions, and judicial reluctance to intrude into the area of decision-making reserved for the jury, have traditionally led judges presiding over defamation trials with juries to confine their jury directions to a statement of general principles, eschewing any specific guidance on the appropriate level of general damages in the particular case.

In England it has happened and been judicially noted that a series of jury awards in sums wildly disproportionate to any damage conceivably suffered by the plaintiff has given rise to serious and justified criticism. This has not been the fault of the juries. Judges confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable.

In principle suggestions that awards be on the basis of comparison with awards for personal injuries have not found acceptance. Of course one of the factors that militates against rigid guidelines has been the very different nature of defamation. The derogation or accusation made may be the same but the force with which it is made and the extent of distribution of the defamatory statement can differ from case to case. Whilst damage to reputation can be caused by a derogatory statement, its impact can be mitigated by retraction and an apology by the offending party. This will lead to reduced damages.

In England an attempt has been made to place some restraint on the unlimited power of the jury. This has come about following legislation whereby the Court of Appeal has been empowered, on allowing an appeal, to substitute for the sum awarded by the jury such sum as might appear to the court to be proper.

It is being recognised that the legal process should yield a successful plaintiff an appropriate compensation that is neither too small nor too large. Awards which bear no relation to ordinary values of life are, on the other hand, unjust to the defendant. Thinking of a new approach Sir Thomas Bingam MR in John v MGN Ltd said: “... But it serves no public purpose to encourage plaintiffs to regard a successful libel action, risky though the process undoubtedly is, as a road to untaxed riches. Nor is it healthy if any legal process fails to command the respect of lawyer and layman alike, as is regrettably true of the assessment of damages by libel juries. We are persuaded by the arguments we have heard that the subject should be reconsidered.”

No such legislation has been passed in Malaysia. In parts perhaps it is not necessary because trials are conducted by a judge alone. It is not wrong to say however that our courts have also in recent times given due recognition to these considerations so that the amount awarded would do justice to the one defamed and avoid injustice to the person complained against.