Percival Syblis v Delores Haughton
| Jurisdiction | Jamaica |
| Judge | Straw J |
| Judgment Date | 07 December 2012 |
| Neutral Citation | [2012] JMSC Civ 178 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO.2011 HCV 00138 |
| Date | 07 December 2012 |
[2012] JMSC Civ 178
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO.2011 HCV 00138
Libel/Slander/Malicious Falsehood/Assessment of Damages/Allegations Concerning Paternity
Mr. Percival Syblis, the claimant, obtained a default judgment against the defendant, Ms. Delores Haughton in relation to a claim for slander, defamation and malicious falsehood. He has asked that he be awarded general damages for a slanderous imputation against him that continued over a period of years [2002–2010], that he was the father of Ms. Haughton's child, Anthony Syblis and that he had refused or failed to maintain the said child.
He has also asked that damages be assessed in relation to a libellous publication made in July 2010 when Ms. Haughton spoke and published to Errol Smith, disc jockey of Mellow FM Radio Station in Montego Bay and its listeners, the following words:
‘The child [Anthony Syblis] wants to contact his father Percival Michael Syblis he cannot concentrate on his schoolwork, he is biting up his clothes because he needs to know his father.’
Mr. Syblis avers that those words meant and were understood to mean that the claimant was irresponsible in nature and had abandoned his child and as a result, he has been greatly injured in his credits, character and reputation and has been brought into public scandal, ridicule and contempt.
He has also requested that he be awarded the sum of $600,000.00 as special damages, this being the amount he paid out to Ms. Haughton over the years as maintenance for the said child.
It is to be noted that the claim has arisen because Mr. Syblis received a DNA report on October 5, 2010 which showed that he was not in fact the biological father of Anthony Syblis.
A man commits the tort of defamation when he publishes to a third person words containing an untrue imputation against the reputation of another. If the publication is made in a permanent form or is broadcast, the matter published is libel. It is slander where a defamatory sense is communicated by spoken words [Gatley on Libel and Slander, 7 th Edition, pages 2 and 73]. Once libel is proved, the law presumes that some damage will flow from the publication. It is therefore actionable per se .
However, in order for the publication of a slander to be actionable, some special damages must be proved to flow from it, unless it falls within certain specifiedcategories [none of which are relevant to these proceedings] except by virtue of Section 4 of the Defamation Act. The section reads as follows:
‘4. In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession or calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.’
I have examined this section of the Act as Ms. Mullings, counsel for Mr. Syblis, has submitted that the defendant's words were calculated to disparage Mr. Syblis in his calling for the following reasons:
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[a] At a point in time when he worked at Brinks Jamaica Ltd., she constantly attended and pointed out that he owed money for child support to his employers. According to the claimant, this ruined his relationship with the company and he resigned his position.
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[b] In July 2004, the defendant caused police officers to attend a ship owned by Royal Caribbean International Shipping Company who threatened to arrest him in front of ship security while the ship was on the port. He said this caused him severe difficulties as a report of the incident was placed on his permanent record. The claim made against him was that he had refused to pay her child support.
It is to be noted that the words concerned the non-payment of child support. Although the defendant is not contesting liability, I must have due regard to the evidence before me. The claimant has not said that [on any of these occasions] the allegations of non-payment were false. Up to October 2010, he had apparently accepted paternity for the child and his evidence is that she had taken him before the St. James and Westmoreland Family Courts.
As grieved as Mr. Syblis must have been after the fact, when the true position was revealed, I am not satisfied on a balance of probabilities, as to the nature of the untrue allegations spoken by Ms. Haughton to third parties in relation to the workplace. Section 4 cannot avail Mr. Syblis in the determination of an award.Mr. Syblis can only receive an award for the slanderous words concerning the paternity of the child if he is able to prove special damages.
Special damage is some actual temporal loss, the loss of some material or temporal advantage which is pecuniary or capable of being estimated in money [ Gatley , pg 202]. Mr. Syblis has pleaded and stated in his evidence that he paid out $600,000.00 to Ms. Haughton as maintenance over a period of time. He also stated that he demanded a refund of the money and she refused to repay him. There were no receipts nor any other documentary proof of this. Ms. Mullings stated she had some receipts, however, I refused an application to put them in evidence as she had failed to file and serve the requisite “Notice to Tender” document under Section 31 [E] the Evidence Act.
I bear in mind the oft quoted words of Lord Goddard C.J. inBonham Carter v Hyde Park Hotel [1948] 64 T.L.R. 177 at 178 concerning proof of special damages:
‘Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage: it is not enough to write down the particulars, and so to speak, throw them at the head of the Court, saying: “This is what I have lost; I ask you to give me these damages.” They have to prove it.’
However, his evidence on the point is before the court and I can attach some weight to it. I will attach sufficient weight to this evidence because the defendant has not defended the claim although an acknowledgement of service was filed by counsel on her behalf.
I also bear in mind that she did put him before the Family Court and attended at his place of employment in relation to demands for maintenance. I will therefore make an award of $600,000.00 as special damages in relation to claim for slander. My disapproval, however, will be reflected by the refusal of any order for interest on this sum.
Ms. Mullings had requested that the court consider an award under the head of Malicious Falsehood. This is a species of defamation and could only be awarded as an alternative remedy in this particular case as the evidence relied on is the same as it relates to slander. In order to establish such an action at common law, the claimant would have to prove that:
The words are false.
That they are published maliciously.
That special damage has followed as the direct and natural result of the publication [Evans v Johns and The Gleaner Co. Ltd. [1961]4 WIR, 502 [1961]4 WIR, 502 ].
In the alternative an award for Malicious Falsehood can be sustained by virtue of Section 5 of the Defamation Act:
“5[1] In an action for slander of title, slander of goods or other Malicious Falsehood, it shall not be necessary to allege or prove special damage—
[a] if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent...
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