Damages criteria
21/06/2005 The Star Articles of Law with Bhag SinghDamages 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.
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