FRANCIS GEORGE POLIDORE v CRUSADER CARIBBEAN PUBLISHING COMPANY 1971 LIMITED et al

SAINT LUCIA IN THE HIGH COURT OF JUSTICE CIVIL SUIT NO.380 OF 1990 BETWEEN: FRANCIS GEORGE POLIDORE Plaintiff and (1) CRUSADER CARIBBEAN PUBLISHING COMPANY 1971 LIMITED (2) GEORGE ODLUM Defendants Appearances: Mr. Peter I. Foster and Ms. Claire Greene-Malaykhan for the Plaintiff. Mr. Michael B.G. Gordon for the Defendants. --------------------------------------------------- 1999: September 27, 29 October 07 March 13 -------------------------------------------------------------- JUDGMENT

[1]HARIPRASHAD-CHARLES J. [Ag.] The Plaintiff is a Welder and t he father of Saskia Downes also called Sasha Downes.

[2]The First-named Defendant is a Newspaper Company, publishing the Crusader Newspaper w ith a w ide c irculation i n Saint Luc ia and el sewhere. The S econd- named D efendant i s t he E ditor, O wner and Publisher of t he F irst-named Defendant.

[3]On 22nd day of November 1990, the Plaintiff instituted the present action by issue of a w rit of Summons endorsed with Statement of Claim against the Defendants for libel in respect of an article published in the Crusader Newspaper of 1st day of September 199 0 at t he front pa ge captioned "THIS BEAUTIFUL 'SMILE S T.

LUCIA ' BABY DIED OF AIDS! See story on page 3."

[4]On 2nd day of March 1993, the Plaintiff filed an amended Statement of Claim and added further and or in the alternative, the cause of action pertaining to" breach of confidence."

RELEVANT EVIDENCE OF PARTIES

[5]The Plaintiff testified that prior to 1st day of September 1990, he enjoyed a normal existence with his common-law wife, Andrea Downes and daughter, Saskia, living in a small community in La Clery, near the City of Castries in Saint Lucia. In July of 1990 h is d aughter, S askia f ell i ll and w as r eferred t o V ictoria Hospital. Certain tests were taken but before the results were given, Saskia passed away on t he 25th day of August 1990 at the tender age of four years. Prior to her death, Saskia had been used as a poster child by the Dental Health Association for her lovely teeth. She had posed for that picture to be used in good faith by that Association. day of September 1990, he was in his backyard working

[6]According to him, on 1st when a friend came and showed him a copy of the Crusader Newspaper and he saw a l arge photograph of his deceased daughter, appearing on the front page. The captioned headline read: "THIS BEAUTIFUL ' SMILE ST.LUCIA' BABY DIED OF AIDS"- Exhibit FGP2. The Plaintiff asserted that he did not give the Crusader Newspaper or anyone working with that newspaper permission to use that photo.

[7]The P laintiff s tated t hat t he s tory w ritten under t he said h eadline c ontained a number of allegations to the following effect: (a) That Saskia Downes died showing all symptoms of clinical AIDS. (b) That Saskia Downes had recently been tested positive. (c) The results of the testing of blood samples that had been sent away for further confirmatory testing had not even returned when Saskia died. (d) The C rusader N ewspaper opined t hat S askia ha d acquired t he infection at childbirth or through breast-feeding. (e) Saskia's mother had also tested HIV positive.

[8]He f urther t estified t hat a t t he d ate o f t he publication of t he s aid C rusader Newspaper on 1st day of September 1990, he had no idea what Saskia died of. He further stated that the sentence declaring that "she died showing all symptoms of clinical AIDS" was grossly incorrect.

[9]The Plaintiff declared that the Crusader Newspaper followed up o n the "SMILE BABY" story with further stories appearing in their publications on the 8th and 15th day of S eptember 1990. It w as ac cepted that at n o t ime i n t he i ssues of the newspaper was Saskia's name or that of her family mentioned.

[10]The evidence given by the Plaintiff was that since the publication of the article on day of S eptember 1 990, he w as os tracized b y hi s c ommunity at t he 1st supermarket, bakery, on public transport and by dentists. According to him: " Since 1 st day of September 1990, I have been shunned by people in the community, r elatives a nd personal f riends a nd S aint Luc ians at l arge. Sometime on 15th day of September 1990, I was at Central Bakery buying bread and the customers in there said, "here is the AIDS baby's father. I simply left the bakery with my head down because the embarrassment was s o s evere. I w as n ot abl e t o w alk ar ound t own w ithout being slandered by the public. Sometime in April 1991, I went to the dentist at the H ealth C entre f or an extraction…I w as t he s eventh p erson o n t he list…The dentist came in probably an ho ur or so late and n ames were called for the injection and my number came and gone and they didn't call me. I was the last patient left to be called…When I got to the dentist, I asked what was the reason for me being called last and she said to me that Ms. Sherry Ann Arlain had c autioned her towards me as being HIV positive as the father to the Deceased. There I left and went home to get a few of the Certificates which I had and I returned to the Health Centre where I presented them to the dentist to show her that I an HIV negative. There she made an apology to me and said that she is very sorry for the embarrassment. I did not extract the tooth. I went to a second dentist and I was confronted with the same situation… Since this article my reputation has been tarnished. I have very little friends…"

[11]The Plaintiff also testified that the flow of work to his welding shop ceased and he had to be supported by his father. He stated that when he went to job interviews "even though they don't know me by name but my appearance on job interviews throw me away because of the stigma; the AIDS stigma."

[12]On the 8th day of September 1990, exactly one week after the publication of the article entitled "THIS BEAUTIFUL 'SMILE ST-LUCIA' BABY DIED OF AIDS", the Plaintiff was interviewed by the Star newspaper and his picture appeared on the front page and on page 3 of that issue. - Exhibit FGP8. In that issue of the Star Newspaper, the Plaintiff was called Rueben Hinds which he admitted was a name by which he was known. He accepted that the publication in the Star newspaper was done with his consent.

[13]The Plaintiff alleged that instead of respecting the privacy and c onfidentiality of Saskia's m edical c ondition, t he D efendants and each of t hem b roke t hat confidentiality and exposed this tragedy to the world, and in so doing for their own selfish a nd s elf s erving r easons to have " a s coop which t he S tar's s cooping sources had miraculously missed," to have " the historic and c ontroversial front page that catapulted "The Crusader" into notoriety the paper sold.

[14]The Defendants did not testify in court but called Dr. Stephen King as their sole witness. Dr. King testified that as part of his duties, he supervised the Laboratory at Victoria Hospital and the Laboratory is the place where blood tests are done. He stated that he did tests on Saskia Downes' blood in July/ August 1990. The first test that was done is called EIA - Enzyme Immuno-Assay Test. The test proved positive. Dr. King further stated under oath: " That is not the only test I did. Because of the chance of false positive results on a s ingle EIA test, we do c onfirmatory testing using a s econd method called the Western Blot Test. This was caused to be do ne so it was sent to Trinidad. I received the result on 3rd day of October 1990 from CAREC - a laboratory in Trinidad. The result of the test was positive. I also di d t ests o n A ndrea D ownes. T he E IA T est was pos itive. T he Western Blot Test was also positive."

[15]Dr. King further testified that in common parlance, Saskia Downes died of AIDS. Andrea D ownes, t he m other of S askia p assed aw ay i n 1992 . S he w as al so confirmed HIV positive and died of AIDS. Dr. King continued his evidence: " The Plaintiff is HIV negative. The Plaintiff was the common-law husband of Andrea Downes. It is possible for the Plaintiff to be HIV negative even if he had a sexual relationship with someone who is HIV positive…I have only known four [4] cases or approximately 2% of reported cases in Saint Lucia w here on e partner i s H IV pos itive a nd t he o ther par tner i s H IV negative."

THE PLAINTIFF'S CLAIM

[16]At paragraph 6 of his Statement of Claim, the Plaintiff alleged that on page 3 of the said C rusader N ewspaper, t he D efendants f alsely a nd m aliciously w rote an d published the following article under the headline "THIS BEAUTIFUL 'SMILE ST. LUCIA' BABY DIED OF AIDS! See story on page 3: " On Monday last this beautiful young child was buried at Choc Cemetery. Her f ace w as w ell k nown t o m any S t. Luc ians s ince s he f eatured o n calendars as a pr ime model of healthy St. Lucian childhood. She will be specially remembered as the SMILE BABY in the dental advertisements which s ought t o encourage c hildren t o practise better den tal c are. H er smile and healthy teeth captivated many St. Lucians. Today she is no more. She died showing all the symptoms of clinical Aids, that is, she suffered from pnuemocystis pneumonia which is the end-stage of A ids at t he age of f our. I n r ecent m onths s he h ad gon e t o V ictoria Hospital a few times and was recently tested HIV positive being reactive to EIA (Positive Enzyme-linked Immunoassay) and blood samples were sent on for testing using the Western Blot method. The results had not even returned when the young child died. It is generally felt that she acquired the infection at childbirth or through breast-feeding. The mother has also tested HIV positive. The C rusader t his w eek publishes t he c over-picture on t his beautiful young child to sensitive St. Lucians to the dangers of the dreaded AIDS virus."

[17]At paragraph 7 the Plaintiff averred that AIDS is the abbreviated name for the fatal disease k nown as A cquired I mmune D eficiency S yndrome, c ontracted t hrough sexual intercourse of infected persons, and through blood transfusions.

[18]The Plaintiff further alleged at paragraph 8 of the said Statement of Claim that the said headline, photograph and article contained in paragraphs 4, 5 a nd 6 i n its natural and or dinary m eaning al ternatively by r eason of t he f acts a nd m atters hereinafter set out meant and w ere understood t o m ean t hat t he P laintiff i s a carrier and or infected with the disease known as Acquired Immune Deficiency Syndrome commonly known as AIDS.

[19]At paragraph 9 of his Statement of Claim, the Plaintiff averred that: "[9] By reason of these premises the Plaintiff has been greatly injured in his character, credit and reputation, and has been brought into public scandal, odium and contempt and has suffered great distress and humiliation."

[20]The Plaintiff alleged that further and or in t he alternative, the Defendants were supplied with hospital information pertaining to the Plaintiff's daughter's medical condition, i nformation of a c onfidential c haracter and h aving o btained t his information i n t heir s aid new spaper c ommunicated t he s aid c onfidential information by publications therein.

[21]In breach of the said obligation of trust and confidence and without the consent of the P laintiff, t he D efendants hav e unl awfully m ade u se of the s aid c onfidential information, and have unlawfully made profits for themselves by the sale of their newspaper and otherwise by exploiting the said confidential information by stating that the publication thereof was in the public interest.

[22]In the prayer of his writ, the Plaintiff claims: (1) Damages; (2) An inquiry as to damages for breach of confidence; (3) Damages for breach of confidence; (4) Such further or other relief as to the Honourable Court may seem fit; (5) Costs.

[23]In order to succeed in his action for libel, the Plaintiff must prove: (a) Publication of t he ar ticle c omplained of to a t hird person ot her than himself; (b) The article referred to him; and (c) The words complained of by him are defamatory. (a) THE PUBLICATION

[24]No civil action can be maintained for libel unless the words complained of have been published. The material part of the cause of action in libel is not the writing, but the publication of the libel. Dixon J. in Lee v Wilson (1934) 51 C.L.R. 276 at page 287 stated thus: " I t i s the p ublication not t he c omposition of t he l ibel which i s t he actionable wrong."

[25]In order to constitute publication, the matter must be published to (communicated to) a third party, that is to say, at least one person other than the Plaintiff.

[26]At par agraph 4 of t heir a mended D efence t he D efendants adm itted t he i ssue regarding pu blication of t he ar ticle. At p aragraph 2 of t heir D efence, the Defendants admitted that the Crusader has a wide publication in Saint Lucia and elsewhere. I ndeed, t he P laintiff t estified t hat t here he w as aw are t hat t he newspaper was sold all over Saint Lucia and he was able to purchase a copy from Wintrades Supermarket in La Clery.

[27]I therefore find that there has been publication of the article complained of to a third per son ot her t han t he P laintiff. I ndeed, t here w as pu blication i n t he commercial sense. (b) REFERENCE TO THE PLAINTIFF

[28]Learned Counsel for the Defendants, Mr. Michael Gordon argued that the article of the 1 st day of September 199 0 di d not m ention a ny nam es and nei ther di d subsequent pu blications of t he C rusader newspaper which f ollowed up o n t he "SMILE 'ST.LUCIA' BABY". Any reference to the Plaintiff could only be implied by an extended meaning or innuendo. The Plaintiff stated that the article referred to him bec ause h e w as t he common l aw husband of Saskia's m other a nd as a consequence, certain members of the community deemed him to be a carrier and or infected with the deadly AIDS virus.

[29]According to Mr. P eter Foster, t he P laintiff must prove t hat he was t he person identified in t he article. It i s an essential el ement of t he c ause of action f or defamation that the words complained of should be published "of the Plaintiff." The question in all cases is whether the words might be understood by reasonable people to refer to the Plaintiff, subject to the qualification that where the words are published to persons who have special knowledge the issue will be decided by reference t o w hat r easonable persons possessing t hat k nowledge w ould understand by them. It i s irrelevant i n es tablishing that t he D efendant i s pr ima facie liable that he did not intend to refer to the Plaintiff and may never have heard of the Plaintiff.

[30]The Plaintiff need not be referred to by name. The test is whether the Plaintiff may reasonably be u nderstood to be r eferred to by the words. Thus, if the Plaintiff is not mentioned at all, like in the instant case, the law states that there need be no "peg or poi nter" f or hi s i dentification i n t he w ords c omplained of t hemselves: Morgans v Odhams Press Ltd. [1971] 1 W.L.R. 1239.

[31]Mr. Foster submitted that the Plaintiff has established without contradiction that he was the common-law husband of Andrea Downes and that they were the parents of Saskia Downes. They live in a small community where everybody knew them as a family unit.

[32]It was further submitted on behalf of the Plaintiff that he was referred to by his association with Saskia Downes and her mother, Andrea Downes. Dr. King in his evidence asserted that when he read the article it conveyed to him that the Plaintiff might be HIV positive and that meant that the article referred to the Plaintiff by association.

[33]I agr ee e ntirely w ith Learned C ounsel f or t he D efendants t hat t he article complained of di d no t m ention any n ames. ` Nor di d any o f t he s ubsequent publications of the Crusader Newspaper. It is an essential element of the cause of action for defamation that the words complained of should be published "of the Plaintiff."

[34]But, Counsel for the Plaintiff, Mr. Peter Foster rightly submitted that the test is whether the Plaintiff may reasonably be understood to be referred to by the words. I accept the submissions of Mr. Foster t hat t he P laintiff was referred t o by his association with Saskia Downes and her mother, Andrea Downes.

[35]The Learned Authors of Gatley on Libel and Slander (9th Edition) at Chapter 7 paragraph 7.12 (page 171) state that there are cases in which a statement which is di rectly def amatory of A m ay be r egarded as a lso c arrying a de famatory reference to B because of B's connection with A. So to say that A is a br othel keeper is also defamatory of A's spouse, who lives on the premises. See: Huckle v Reynolds ( 1859) 7 C.B. (N.S.) 114.

[36]In my opinion t he Plaintiff has satisfied the Court in respect of this limb of the requirement in an action for libel. (c) DEFAMATORY MEANING

[37]The Plaintiff must prove that the words complained of by him are defamatory or capable of conveying a m eaning defamatory of t he P laintiff. In determining the answer to this question, I am guided by the dictum of Camacho C.J. in Woolford v Bishop [1940] LRBG 93, in which the Learned Chief Justice at page 95 stated: "On this aspect of the case, the single duty which devolves on this Court in its dual role (of Judge and Jury) is to determine whether the words are capable of a defamatory meaning and, given such capability, whether the words ar e i n f act l ibellous of t he Plaintiff. I f t he C ourt dec ides t he f irst question in favour of the Plaintiff, the Court must then determine whether an or dinary, intelligent an d unbi ased p erson r eading ( or hear ing) t he words w ould understand them as t erms of di sparagement, and an allegation of dishonest and dishonourable conduct. The Court will not be astute t o f ind s ubtle i nterpretations f or pl ain w ords of obv ious a nd invidious import."

[38]Therefore, the Plaintiff has to prove that the Defendants published or caused to be published a statement that tended to harm the reputation of the Plaintiff so as to lower hi m i n t he es timation of the c ommunity or to d eter third par ties from associating or dealing with him.

[39]Clearly to say that a person is HIV positive even though the statement made it plain that the condition had been acquired innocently is highly defamatory and in the words of Lord Atkin in Sim v Stretch [1936] 2 All E.R. 1237 at page 1240 would tend " to lower such a person in the estimation of right-thinking members of society generally."

[40]At paragraph 2.6 of Gatley on Libel and Slander (9th ed.), the Learned Authors had this to say: " And it is submitted that it would be defamatory to say that a person was HIV positive even though the statement made it plain that the condition had been acquired innocently, for example by a blood transfusion."

[41]The Learned Authors referred to the treatise, Clerk and Lindsell, Torts (17th ed.) 21 - 30 in which it was pointed out that a person who was t hought to be H IV positive might suffer adverse discrimination in employment, insurance. However, a person who was said to have a weak heart might suffer disadvantage in insurance and it is thought that this would be actionable, if at all, only as malicious falsehood or negligence. Possibly there is a distinction in the fact that being HIV positive is so closely associated in the public mind with promiscuity and drug-taking that the innocent explanation has little impact, but a better distinction lies in the fact that HIV i s per ceived as da ngerous t o others. I n Peters-Brown v Regina District Health Board [1996] 1 W.W.R. 337 it was held defamatory to put the plaintiff on a list of persons with infectious blood conditions.

[42]Mr. Foster rightly submitted that even if the Plaintiff had been tested HIV positive; that to have published this statement in a newspaper would be defamatory of him as it would hold him up to ridicule, odium, contempt and he would suffer adverse discrimination as was evident in the instant matter.

[43]Counsel for the Plaintiff contended that the words published in the article of the 1st day of September 1990 tended to cause the Plaintiff to be hated and despised. It also caused him to be ridiculed.

[44]It was submitted on behalf of the Defendants that the article of 1st September 1990 in i ts nat ural a nd or dinary m eaning i s n ot c apable of r eferring t o t he Plaintiff. Counsel f or the D efendants ar gued t hat t he al legation of t he Plaintiff t hat the article meant and was understood to mean that the Plaintiff is a carrier of and or infected with AIDS is unfounded and unsubstantiated.

[45]There could be no denial that the article of 1st day of September 1990 referred to the Plaintiff and that it was published commercially.

[46]The article of 1st day of September 1990 speculated that Saskia Downes died of AIDS. The article stated that the mother has tested HIV positive. Undoubtedly, any person r eading t his ar ticle w ould nat urally c onclude t hat t he P laintiff w as H IV positive.

[47]The s ubsequent p ublications i n t he C rusader N ewspaper of 8 th and 15 th September 19 90 r espectively di d not am end t he d amage d one; i ndeed t hey aggravated it. The article of 8th day of September 1990 highlighted the promiscuity and high incidence of infidelity in the society. It continued: "Isn't i t t ime w e s tarted t o unv eil s ome of t he s ecrecy and c onspiracy surrounding the AIDS issue? The public has a r ight to know who is an AIDS victim in order to preserve the health of the Island and this is where the Media must play its role. The public has a right to know if perchance any one of us has had a potential brush with death having slept with an AIDS candidate. We are too small to afford the luxury of confidentiality and professional ethics where AIDS is concerned."

[48]To s ay t hat s omeone h as A IDS, as i t i s t o s ay t hat s omeone h as l eprosy i s defamatory of that person. To say that A is operating a brothel is defamatory of A's spouse. In similar vein, the say that Saskia Downes died of AIDS and that the mother of S askia al so di ed of A IDS i s def amatory of t he P laintiff. T his i s defamation by association. It is trite law that it is not a defence to say that one did not know of the existence of the other person.

[49]So, t he p ublication i n i ts c ontext, t ogether w ith a huge ph otograph of S askia underpinned with the "SMILE 'ST. LUCIA BABY" headline with the knowledge of the identity of Saskia Downes in Saint Lucia and especially with the knowledge of her relationship to the Plaintiff in the La Clery Community conveyed the meaning that there was every likelihood that the plaintiff had AIDS, and in that community and in all other communities, it would instill the reaction that the Plaintiff has a contagious disease and ought to be avoided and shunned.

[50]After considering the evidence and even though I must confess to have been very impressed by the ingenuous arguments of Learned Counsel for the Defendants, I am of the considered opinion that the article published in the Crusader Newspaper of 1st day of September 1990 within the whole context in which it was published, would i n t heir na tural and or dinary m eaning h ave c onveyed t o t he or dinary reasonable person, that the Plaintiff is a carrier of and or infected with the disease known as Acquired Immune Deficiency Syndrome commonly known as AIDS.

THE DEFENCE

[51]On 30th day of November 1990, the Defendants entered an appearance and filed an amended Defence on 7th day of June 1993. In paragraph 4 of their Defence, the D efendants adm itted publishing t he ar ticle c aptioned " THIS B EAUTIFUL SMILE S T. LU CIA B ABY DIED O F A IDS" but t hey denied t hat i t w as f alse or written or published maliciously.

[52]The Defendants admitted paragraph 7 of the amended Statement of Claim in so far as it goes but denied that AIDS can be contracted only in the manner therein set out.

[53]The Defendants denied t hat t he headline, photograph and article referred to in paragraph 8 of the Amended Statement of Claim had or were understood to have the meanings alleged or any other meaning defamatory of the Plaintiff. Thus: (a) To the extent to which the Plaintiff relies on the natural or ordinary meanings of t he s aid h eadline, photograph an d a rticle, t he Defendants state that the said headline, photograph and article did not bear and were incapable of bearing the natural or ordinary meaning as alleged. (b) To the extent to which the Plaintiff relies on the extended meaning of t he s aid hea dline, p hotograph an d ar ticle by r easons of t he facts s et out i n t he P articulars of t he S tatement of C laim, t he Defendants de ny t he al leged f acts an d s tate t hat i n any c ase those al leged f acts ar e i ncapable o f s upporting the ex tended meaning alleged.

[54]In t he al ternative, t he D efendants pleaded that t he said w ords c omplained of consist of Statement of Fact in that they are true in substance and in fact and insofar as the said words complained of consist of expressions of opinion they are fair comment made without malice on the said facts which are a matter of public interest.

[55]The crucial issue which falls to be determined is whether the plea of justification and fair comment could in the circumstances of the case avail the Defendants? This will necessitate an a nalysis of the pleadings, the relevant evidence and the law of justification as well as fair comment.

JUSTIFICATION

[56]A P laintiff establishes a pr ima f acie cause of action as soon as he proves the publication of defamatory words. S ince t he law presumes t hat every man is o f good repute until the contrary is proved, it is for the Defendant to plead and prove affirmatively t hat t he def amatory w ords ar e t rue an d s ubstantially t rue. I f t he Defendant pleads justification, where the words complained of consist of fact and comment, he m ust prove t hat t he de famatory s tatements of f act ar e t rue o r substantially true and that the defamatory inferences borne by the comments are true, as per Lord Findlay in Sutherland v Stopes [1925] A.C. 47 at pages 62 - 63.

[57]It i s, however, a complete def ence t o t he action of l ibel t hat the d efamatory imputation i s t rue. T he defence o f j ustification ad mits t he s ubstance of t he publication of the whole or so much of the defamatory statement as is justified, and asserts that it is true in substance and in fact. The Defendant should only plead justification where there is clear and sufficient evidence that the allegation is true.

[58]The Defendants contended that paragraph 1 of the article of 1st day of September 1990 raised no issue.

[59]Paragraph 2 s tated that the "SMILE BABY" died of AIDS, that she was recently tested HIV positive being reactive to EIA (Positive Enzyme-linked Immunoassay) and that blood samples were sent on for testing using the Western Blot method. Finally, the article went on to state that the results had not even returned when the young child died. The Defendants asserted that the entire paragraph is true and was confirmed by Dr. Stephen King.

[60]Learned Counsel for the Defendants submitted that paragraph 3 stated an opinion that it is generally felt that Saskia acquired the infection at child birth or through breast feeding and this was confirmed by Dr. King.

[61]In other words, according to Learned Counsel, each and every allegation of fact has been proven correct as has the comment made on the allegation of fact.

[62]In support of the Plaintiff's contention, I find that at the time of the publication of the article on 1st day of September 1990, it was incorrect to declare that Saskia Downes died showing all the symptoms of clinical AIDS. Dr. King confirmed this statement.

[63]I accept in its entirety the Plaintiff's submission that in any event, there can be no justification as it has been established that the Plaintiff is HIV negative. According to L earned C ounsel, the P laintiff is A IDS-free an d c onsequently, no plea of justification can be entertained. And I so hold. The Defendants should only plead justification where there is clear and sufficient evidence that the allegation is true.

FAIR COMMENT

[64]The plea of fair comment only comes into play when the plea of justification fails. That plea failed because, as I have said above, t he Defendants have failed to day of justify "the truth of every injurious imputation" contained in the article of 1st September 1990.

[65]The Defendants in paragraph 7 pleaded that insofar as the said words set out in paragraph 6 of the Statement of Claim consist of expressions of opinion they are fair comment made without malice upon a matter of public interest.

[66]In this regard, I bear in mind what Lord Denning said in Slim v Daily Telegraph Ltd. [1968] 1 All E.R. 497 at page 503: - "In considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put on the words. T he important thing is to determine whether or not the writer was actuated by malice, i f he w as an honest m an ex pressing a genuine opinion on a subject of public interest, then no matter that his words convey derogatory imputations, n o m atter t hat hi s opinion w as w rong or ex aggerated or prejudiced, and no matter that it was badly expressed so that other people read all sorts of innuendoes into, nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. As long as he does this, he has nothing to fear, even though other people may read into it…"

[67]Learned C ounsel for t he Plaintiff, M r. P eter F oster t renchantly ar gued t hat t his defence is not open to the Defence at all in that they have not established the facts they wished to rely upon by calling evidence to that effect, or on the basis of their comment and indeed, such have not been pleaded as required.

[68]In Lord v Sunday Telegraph [1971] 1 Q.B. 235, it was held t hat evidence to sustain the defence of fair comment will be largely, if not exclusively, directed to establishing the facts relied upon as to the basis of the comment. Such facts have to be pleaded. Clearly the evidence will be confined to those matters which have been pleaded.

[69]I agree entirely with the submissions by Mr. Foster that the Defendants cannot avail themselves of this defence. There are absolutely no facts upon which to base the defence of fair comment and I so hold.

CONFIDENTIALITY

[70]The onl y i ssue that ar ises her e i s w hether or no t t he i nformation gi ven to t he Defendants was confidential information.

[71]The Defendants contended that the confidential information did not come from the Plaintiff an d t hat t here w as no ev idence t o s how t hat t he s aid confidential information belonged to him. According to Learned Counsel for the Defendants, "ownership, if there was any were in the two persons who are now deceased." He urged the Court to find that there was no legal nexus between the Plaintiff and the deceased persons.

[72]Learned Counsel, Mr. Foster unhesitatingly added that the information does not have to come from the Plaintiff. He relied on the evidence of Dr. King in respect of the assertion. Dr. King stated under cross-examination: " The information contained in the article of 1 st day of September 1990 was confidential information. I hold the information on trust for patients. The information belong to patient or caretaker."

[73]On re-examination, he confirmed that the information belonged to the patients and that he held it on trust for the patient.

[74]It has been established by the evidence of Dr. King that the information published in t he C rusader N ewspaper on 1 st day o f S eptember 19 90 r elating t o S askia Downes a nd A ndrea D ownes a nd by association t he P laintiff we re c onfidential information. He also confirmed that the said information belonged to the patient or caretaker. T he P laintiff t estified t hat h e w as t he f ather of S askia D ownes an d common-law husband of Andrea Downes and thus the caretaker of both of them. He also stated that he did not give anyone permission to publish such information concerning his daughter and common-law wife. Learned Counsel for the Plaintiff referred t o t he c ases of Attorney General v Guardian Newspapers (No.2) [1990] 1 A.C.109 and Petra Jeffrey Nelson v Attorney- General of Saint Lucia (unreported).

[75]At page 281 in Attorney General v Guardian Newspaper (No.2) [supra] , Lord Goff declared: " A 'duty of confidence' arises when confidential information comes to the knowledge of a p erson ( the c onfidant) i n c ircumstances w here he has notice, or is held to have agreed that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others."

[76]In light of the evidence adduced in this matter, I find as a fact that the information published in the Crusader Newspaper of 1st day of September 1990 was indeed confidential information and by association, the property of the Plaintiff.

[77]As in the instant case, where the Defendants have already broken their obligation of c onfidence a nd r eleased t he i nformation, an i njunction ag ainst disclosure i s pointless now but the Plaintiff will have a claim for damages for loss suffered.

QUANTUM OF DAMAGES

[78]I now have to consider what is an appropriate quantum of damages in this matter. In assessing the damages to which the Plaintiff should be entitled, I am mindful of the wide bracket within which damages in a defamatory action can fall. In Cassell & Co. Ltd. v Broome & Another [1972] 1 All E.R. 801 at page 836, Lord Reid had this to say: "Damages for any tort are or ought t o be f ixed a t a s um w hich w ill compensate the Plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not s o w here hi s r eputation has b een a ttacked - where t o us e t he traditional phrase, he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other people's minds have been affected, it is almost impossible to equate the damage to a sum of money. Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as no t u nreasonable - and different p eople w ill come t o di fferent conclusions. So in the end there will probably be a wide gap between the sum which an objective view could be regarded as the least and the sum which could be regarded as the most to which the Plaintiff is entitled as compensation."

[79]In an action for libel " the assessment of damages does not depend on any legal rule": Bray v Ford [1986] A.C. 44 at page 50. And i s gov erned by al l t he circumstances of the particular case. Some of the factors to be taken into account in awarding damages in this case are: (1) the conduct of the Plaintiff; (2) his position and standing; (3) the nature of the libel; (4) the mode and extent of the publication; (5) injury to the Plaintiff's feeling including aggravating factors and (6) mitigating factors.

[80]I should like to mention firstly the issue of publication; extremely relevant as it is to the determination of the quantum of damages. There is proof that the newspaper circulation increased as a result of the article. The Defendants themselves in a subsequent issue of their newspaper on 8th day of September 1990, [Exhibit FGP 4] a dmitted t hat t he n ewspaper s old. A ccording t o t he D efendants, " suddenly everyone wanted to possess a souvenir of this tragic scoop."

[81]The nature of the libel is a serious one. In my view, the Defendants in the instant case published and continued to publish articles in reckless disregard of the truth. In the issue of 8th day of September, they recognized that "the poor victimized family…were supposedly traumatized by our story."[My emphasis] Having recognized this, they did not once visit the family to express their condolences or try to find out the truth. Instead, they continued "to feast on t he headlines that rocked Saint Lucia."

[82]The D efendants w ere u ncaring a nd i nsensitive. T hey r idiculed t he m emory o f Saskia Downes by printing in the Crusader of 29th day of September 1990 [Exhibit FGP 7] under the column called Queek Quak, the following: " Talk about Cosmetics! Insiders say that the Star did all the photography and graphics in producing the ' Smile St. Lucia' Poster and t hey did not notice all the tell-tale pock-marks on the face of the beautiful baby and provided professional aid in touching up the picture so that the truth would not be brought to light. Guess this only endorses the Star's claim that the product itself is not important. It is how people are made to see it! Eh bien…"

[83]In determining the quantum of damages, I wish to adopt the dictum of Adams J. in Cilma A.M. Dupigny v Star Lestrade [Civil Suit No. 256 of 1990] [unreported] emanating from the Commonwealth of Dominica. He had this to say at page 9 of his judgment: "…Uncomfortably poised between the Scylla of making an award perhaps seen as bei ng t oo l ow a nd t he C harybidis of one c onsidered t o b e excessive, I feel justified in so doing."

[84]I am also guided by the level of awards given in similar matters in our jurisdiction. See: (1) Kennedy Simmonds v Joseph Nathaniel France et al [Civil Appeal No.2 of 1985] - St. Christopher & Nevis; (2) John Alfred Osbourne v The Montserrat Reporter Ltd. et al [ Civil Appeal No. 1 of 1991] - Montserrat; (3) Spice Islands Printers Ltd. et al v Andrew Bierzynski [ Civil Appeal No. 5 of 1992] - Grenada; (4) Learie Carasco et al v Neville Cenac [ Civil Appeal No. 4 of 1994] - Saint Lucia; (5) Bernard Nicholas v Kertist Augustus [ Civil Appeal No. 3 of 1994] - Dominica.

[85]Accordingly, I would order that the Defendants do jointly and severally pay to the Plaintiff damages in the sum of $30,000.00 for the libel contained in the article of 1st day of September 1990 and $10,000.00 for breach of confidential information making an aggregate of $40,000.00 with Costs to be taxed if not agreed.

Indra Hariprashad-Charles

High Court Judge [ag.]

CIVIL SUIT No. 380 OF 1990 Haripershad-Charles, J Delivered: 13/03/00