This appeal concerns the assessment of damages arising from defamatory statements uttered by unidentified callers to two live broadcasts on Q95 FM radio station in the Commonwealth of Dominica. The broadcasts were aired on 2nd January 2015 during a two-programme hosted by Mr. Mathias Peltier (‘Mr. Peltier’) and on 24th November 2015 during a programme hosted by Mr. Angelo Allen (‘Mr. Allen’). The broadcasts occurred against the background of disciplinary proceedings initiated by the Police Service Commission (‘PSC’) concerning the disappearance of US$16,000.00 in public funds while those funds were under the supervision of Mr. Cleville Mills (‘Mr. Mills’ or ‘the respondent’) at the Marigot Police Station. Mr. Mills was, as a result, charged with five disciplinary offences due to his inability to properly account for the missing cash. In 2010, the PSC found him guilty of all but one charge and imposed disciplinary sanctions.
On appeal, the Public Service Board of Appeal (‘PSBA’) quashed the PSC’s decision in September 2014 because the proceedings had not afforded Mr. Mills a fair hearing. However, the PSBA did not make a positive finding that the underlying allegations were factually untrue. Therefore, it became part of the public discussion surrounding the missing funds, which led to the two publications on Q95 FM radio station. Subsequent to the two publications on Q95 FM radio station, Mr. Mills filed a suit in the High Court on 31st December 2015 pleading that the statements made by the unidentified callers during the programmes hosted by Mr. Peltier and Mr. Allen and transmitted by West Indies Communication Enterprises Ltd (‘WICE’) falsely accused him of stealing the missing monies and engaging in criminal conduct while he was serving as a police officer and rendered him unfit to continue serving in that office.
Mr. Mills alleged that the publications gravely damaged both his personal reputation and his professional standing within the Police Force and the wider community. He sought damages and an injunction to restrain the appellants from repeating the broadcasts. By judgment dated February 2018, the Master accepted that the broadcasts were defamatory of Mr. Mills and concluded that they had caused serious injury to his reputation. In respect of the first publication, Mr. Mills was awarded damages in the sum of $80,000.00 against Mr. Peltier and WICE, and in relation to the second publication $80,000.00 in damages against Mr. Allen and WICE, inclusive of an unspecified aggravated damages component, together with prescribed costs.
Being dissatisfied with the Master’s decision, the appellants filed this appeal on 12th July 2018 seeking a rehearing of the assessment or alternatively, an order quashing or reducing the Master’s award of $160,000.00 in damages. The appellants contended that the Master erred by a) failing to give adequate weight to Mr. Mills’ pre-existing bad reputation arising from the disciplinary proceedings; b) finding malice on the part of the appellants; c) awarding aggravated damages; d) not according proper significance to the public interest context of the broadcasts; e) improperly assessing the evidence relating to Mr. Mills’ reputation; f) making manifestly excessive and disproportionate awards; g) not attaching adequate weight to constitutional freedom of expression; and h) making separate awards which produced an impermissible duplication of compensation. They also raised a preliminary issue regarding the absence of the transcript and Master’s notes.
The issues which arose for determination on appeal were therefore: 1) whether the absence of the Master’s notes and the transcript prevents a fair appeal; 2) whether the Master erred by not attaching sufficient weight to constitutional freedom of expression and the public 3 interest aspects of the broadcasts; 3) whether the Master directed herself as to Mr. Mills’ pre-existing reputation and the injury caused by the publications; 4) whether the findings of malice and award of aggravated damages were supported by the evidence and 5) whether the separate and aggregate awards were disproportionate, excessive or duplicative. Held: allowing the appeal in part, dismissing the counter appeal and making the orders set out at paragraph [176] of this judgment.
Taking all of the circumstances into account, I would allow a modest component of aggravated damages in respect of each appellant, an appropriate discount in relation to the second broadcast to reflect an acknowledgement that its effects on Mr. Mills’ reputation must be considered in isolation from the harm attributable to the first defamatory publication. This is in recognition that the second broadcast caused renewed and additional injury but could not be assessed as though the first publication had not taken place.
The comparative decisions are not tariffs. Their utility lies in testing the broad proportionality of the award. Differences in dissemination, existing reputation, proven consequential loss, aggravating conduct and the date of assessment necessarily limit exact comparison. Accordingly, taking the comparable awards as guides and giving particular weight to the gravity of the imputations, the prior controversy, the unquantified extent of the publications, and the limited aggravating conduct proved, I assess damages for the first publication on 2nd January 2015 at $65,000.00 comprising $60,000.00 in ordinary compensatory damages and $5,000.00 as aggravated damages. Mr. Peltier and WICE are jointly and severally liable for that sum. [172] I would assess the further injury caused by the second publication at $40,000.00 comprising $35,000.00 in ordinary compensatory damages and $5,000.00 in aggravated damages. Mr. Allen and WICE are jointly and severally liable for that sum.
Disposition
For the foregoing reasons, I would allow the appeal in part and make the following orders: (1) Mr. Mills’ counter-notice of appeal, having been withdrawn, is dismissed. (2) The appellants’ request for a rehearing of the assessment on the ground that the transcript and the Master’s notebook are unavailable is refused.
The appeal is allowed to the extent that the damages awards made by the Master are set aside and the following awards substituted: (a) In respect of the broadcast of 2nd January 2015, the first appellant Mathias Peltier and the second appellant West Indies Communication Enterprises Ltd shall jointly and severally pay Cleville Mills damages in the sum of $65,000.00 comprising $60,000.00 in ordinary compensatory damages and $5,000.00 in aggravated damages. (b) In respect of the broadcast of 24th November 2015, the third appellant Angelo Allen and the second appellant West Indies Communication Enterprises Ltd shall jointly and severally pay Cleville Mills damages in the sum of $40,000.00 comprising $35,000.00 in ordinary compensatory damages and $5,000.00 in aggravated damages.
