ATU and others v ATY

Lee Seiu Kin J:

[1] This is a defamation action arising out of the alleged sexual abuse of children by staff in an international school in Jakarta, Indonesia. The matter came before me for damages to be assessed after judgment in default of appearance was entered against the defendant.

[2] ATU, the first plaintiff, is a private, non-profit international school that serves, in the main, the expatriate community in Jakarta. The school has three campuses: two for elementary students, and another for junior high and high school students in Cilandak. ATV, the second plaintiff, is the principal of one of the campuses for elementary students (“the Campus”). ATW, the third plaintiff, was a school administrator while ATX, the fourth plaintiff, was a teacher’s aide.

[3] The defendant is the mother of B, who was a student of the Campus.

[4] As the defendant did not participate in the suit, the facts set out below are all obtained from the affidavits of the plaintiffs. They disclose as follows.

[5] Sometime in March 2014, the parents of C complained that their son was assaulted by people in blue uniforms. On 24 March 2014, C’s parents lodged a police report. On 3 April 2014, the police arrested three cleaners employed by a cleaning company engaged by ATU.

[6] On 14 April 2014, C’s mother called for a press conference at which she alleged that C had been sexually assaulted by cleaners working at ATU. The press conference appeared on television and other media. At the same time, C’s mother also called for a parents’ meeting to be held on 15 April 2014. At that meeting, the defendant claimed that B, was the victim of an attempted assault but had managed to get away in time. After the defendant’s allegation at the parents’ meeting of 15 April 2014, ATU engaged (on 16 April 2014) an expert in the area of clinical social work and child counselling, to interview B to find out what happened.

[7] On 25 April 2014, the defendant and her husband met with representatives of ATU as well as a representative from the Spanish embassy. At that meeting, the defendant and her husband repeated their allegation that B was the victim of an attempted assault and further alleged that B had witnessed C being abused. They claimed that the attackers were the fourth plaintiff and a security guard.

[8] Around this time, the defendant told at least one of her friends that B had not been sexually assaulted. In a statutory declaration made pursuant to the Oaths and Declarations Act (Cap 211, 2001 Rev Ed), the defendant’s friend (“D”) stated:

[9] In an email dated 29 April 2014, B’s father wrote:

[10] The above statements were corroborated by the results of a physical examination conducted on B at KK Women’s and Children’s Hospital. There was no sign of any trauma to B’s anus – no fissures or evidence of healed fissures. The clinical notes concluded that either there was a previous injury that had healed or there was no significant injury to begin with.

[11] After the physical examination at KK Women’s and Children’s Hospital, the defendant sent a text message to an ATU parent saying that everything was okay. The translation of the message is set out below:

[12] Later in May 2014, the defendant continued to maintain that B had never been sexually assaulted. In her statutory declaration, D said:

[13] Up to this point, it appeared that the defendant had taken the position that B had not been sexually assaulted.

[14] However the defendant’s story changed soon after. In a series of emails and WhatsApp messages to various parents of students at ATU, the defendant claimed that B was sexually assaulted.

[15] On 28 May 2014, the defendant sent an email to three ATU parents (“the 28 May Email”) alleging, inter alia, that B was raped more than 20 times and that the recipient’s son was also a victim. These emails did not identify any of the plaintiffs save that the purported abuse had taken place at ATU. The emails were almost identical; only the addressees were changed. One of these emails read:

[16] On 5 June 2014, the defendant sent another email to the parents of six ATU students alleging that her son, together with their children, were victims of sexual assault (“the 5 June Email”). In the same email, the defendant also claimed that the incidents of sexual assaults had been filmed and recorded. The email included, inter alia, photos of the third and fourth plaintiffs. The text of the email reads:

[17] On 6 June 2014, the defendant sent a WhatsApp message (“the 6 June WhatsApp”) to the parent of a ATU student, alleging that the third and fourth plaintiffs had brutally violated children. She further alleged that the second plaintiff participated in the abuse by taking the children to places where they were raped and filming the rapes. She also claimed that the school was aware of the abuse but wanted to wash “their hands off this” by claiming that the perpetrators had already been deported. The message which was originally written in Spanish was forwarded to the Deputy Head of School of ATU. The following translation was provided by the recipient of the message:

[18] On 6 June 2014, the defendant filed a police report alleging that the third and fourth plaintiffs, among others, had participated in the sexual abuse of B. She alleged that the third plaintiff had sexually abused B five times prior to Christmas 2013. She also claimed that the fourth plaintiff had been sexually assaulting B since August 2013. In her words, “[a]ll incidents started with abuse by hitting the abdomen and the back part of the body”.

[19] The defendant continued to repeat her allegations against the first, third and fourth plaintiffs even after they commenced the present action on 23 July 2014. In a Jakarta Post article of 2 September 2014 (“the Jakarta Post Article”), the defendant, together with the parents of two other students who were allegedly sexually assaulted, were reported to be jointly accusing ATU of “covering up systematic sexual abuse on its premises”. The relevant parts of the article read:

[20] An article by The Independent dated 7 November 2014 (“the Independent (UK) Article”) further reproduced allegations made by the defendant to Australia’s Fairfax Media. The salient parts of the article are reproduced below:

[21] At this juncture, I pause to take stock of the defendant’s allegations which may be classified as follows:

(a) ATU attempted to cover-up the purported child abuse that allegedly occurred on its premises.

(b) ATV actively participated in the sexual abuse of children by “taking [them] to places where [they] could be raped and then recording it with her camera”.

(c) ATW and ATX, who were all members of staff, sexually abused children under their care.

[22] The defendant did not enter appearance in the present suit and on 9 September 2014, the plaintiffs obtained a judgment in default of appearance. Since the issue of liability has been settled, it leaves the determination of an appropriate quantum of damages that should be awarded. In this regard, the plaintiffs seek the following reliefs:

(a) ATU – S$50,000 in general damages, S$50,000 in aggravated damages and US$2,985,400 in special damages.

(b) ATV – S$300,000 in general damages, S$300,000 in aggravated damages and US$944,240.60 in special damages.

(c) ATW – S$300,000 in general damages, S$300,000 in aggravated damages and US$515,020.85 in special damages.

(d) ATX – S$300,000 in general damages, S$300,000 in aggravated damages and S$41,400 in special damages.

[23] The first plaintiff accepts that, as a corporate claimant, it may not claim significant damages for distress or a loss of reputation separate from economic loss. Thus, it submits that a sum of S$50,000 would be appropriate.

[24] According to the second to fourth plaintiffs, the defendant’s accusations struck at the heart of their integrity and character. On this basis, they contend that the quantum of damages ought to reflect the gravity of the libel. They rely primarily on the English Court of Appeal decision of Rantzen v Mirror Group Newspapers (1986) Ltd [1994] 1 QB 670 (“Rantzen”) in which £110,000 was awarded to the plaintiff, a successful television presenter, to compensate her for an allegation that she had helped to protect the identity of a purported child abuser. However, the plaintiffs submit that the award should be adjusted upwards because Rantzen was decided in 1993 and the allegations in that case had a lesser impact on the victim’s career and reputation.

[25] The functions of general damages were succinctly stated by the Court of Appeal in Arul Chandran v Chew Chin Aik Victor [2001] 1 SLR(R) 86 (“Arul Chandran”) at [53]:

[26] The above passage merits some elaboration. In a defamation suit, the award of damages seeks to repair the injury to the victim’s reputation. Such damages have no “real connection with any pecuniary loss at all” (per Lord Greene in Rook v Fairrie [1941] 1 KB 507 at 515 to 516). This distinction is critical since the plaintiffs in the present case are also claiming pecuniary losses that they have allegedly suffered as a consequence of the defamatory statements. Such damages fall under the category of special damages which will be discussed later in this judgment.

[27] Closely connected to the above is the vindicatory purpose of an award of damages. This purpose was explained by Lord Hoffmann in The Gleaner Co Ltd and another v Abrahams [2004] 1 AC 628 at [55]:

[28] Lastly, there is the element of injury to feelings that is taken into account when determining the size of the award. This entails a consideration of the “natural injury to [the claimant’s] feelings—the natural grief and distress which he may have felt at having been spoken of in defamatory terms” (per Pearson LJ in McCarey v Associated Newspapers Ltd [1965] 2 QB 86 (at 104 to 105). Therefore a corporate entity may only recover damages appropriate for vindication of its injured reputation; it may not recover for injury to its feelings. As was stated by Lord Reid in Rubber Improvement Ltd and another v Daily Telegraph Ltd and another [1964] AC 234 at 262, “[a] company cannot be injured in its feelings, it can only be injured in its pocket”.

[29] In ascertaining the appropriate general damages to be awarded in a case of defamation, the following factors should be considered:

(a) the nature and gravity of the defamatory statement itself;

(b) the conduct, position and standing of the plaintiff and the defendant; and

(c) the mode and extent of publication.

[30] In Lim Eng Hock Peter v Lin Jian Wei and another and another appeal [2010] 4 SLR 357 (“Peter Lim”), the Court of Appeal also considered relevant the “intended deterrent effect” of the award, especially where the defendant “has not simply got its facts wrong but has behaved outrageously from start to finish” (at [9]).

[31] That said, there is no fixed formula governing the assessment of damages. To ensure that such assessments proceed in a coherent and principled fashion, sufficient regard must be paid to past awards in comparable cases, see Lee Hsien Loong v Singapore Democratic Party and others and another suit [2009] 1 SLR(R) 642 at [73] per Belinda Ang J:

[32] I now proceed to consider each factor in turn.

[33] In essence, the defendant has accused the plaintiffs of participating in the sexual abuse of young, elementary school children over a period of time. I agree with the plaintiffs’ submission that the defendant’s accusations were of a particularly grave nature. Not only did these accusations suggest sexual perversion on the part of the plaintiffs, they pointed to a systematic abuse of the trust reposed in educational institutions and individuals responsible for the learning and general well-being of the young children under their charge.

[34] The first plaintiff was relatively well known within the international school community. I am also prepared to accept that the second and third plaintiffs were experienced educators who have had illustrious careers in the field. However, the evidence showed that the fourth plaintiff did not enjoy the same standing as the second and third plaintiffs.

[35] The 28 May Email was circulated to the parents of three ATU students whilst the 5 June Email was circulated to parents of six ATU students. One other parent received the 6 June WhatsApp message. On 6 June 2014, the defendant filed a police report against inter alia the third and fourth defendants, accusing them of sexually assaulting B.

[36] In the Jakarta Post Article, the defendant was reported to have accused the school of covering up systematic child sexual abuse on its premises. Subsequently, in the Independent (UK) Article, the defendant was also reported to be repeating her allegations against the second to fourth plaintiffs (ie that they each played a role in sexually abusing children).

[37] There is no direct proof that the defendant had communicated her allegations to the press. Nonetheless, in the absence of evidence to the contrary, I find that the content of the web articles were prima facie evidence that the defendant had done so.

[38] The next question that arises is whether the defendant should be held liable for the damage that resulted from repetitions by the press. It is pertinent to note that the defendant is not automatically absolved of responsibility simply because the defamatory statements were voluntarily repeated by the Jakarta Post and the Independent. The publisher of a libel may be liable for re-publication by others if he had intended it, or it was a foreseeable consequence. In Goh Chok Tong v Jeyaretnam Joshua Benjamin [1997] 3 SLR(R) 46, S Rajendran J stated:

[39] The same issue fell to be considered in McManus and others v Beckham [2002] 1 WLR 2982. After an extensive review of the authorities, the English Court of Appeal held (at [34]):

[40] Bingham LJ eloquently explained the rationale for this in Slipper v British Broadcasting Corporation [1991] 1 QB 283 at 300:

[41] In the present case, it is clear that the web articles conveyed the sting of the defamatory statements made by the defendant. It would not be unreasonable to infer from the defendant’s conduct that she had communicated her statements to the press with the full appreciation, and indeed intention, that what she said would be repeated in whole or in part. The defamatory statements centred on allegations of sexual abuse that were made against educators which the general public would have a great interest in knowing. The press was almost bound to repeat the statements. Therefore, I find the defendant liable for the damage that flowed from the repetition of her statements by the Jakarta Post and the Independent.

[42] I tabulate below damages that have been awarded in comparable cases in Singapore:

[43] From the table above, past awards range from $15,000 to $140,000 depending on the severity of the allegations, the extent of publication and the standing of the plaintiff in question. The table excludes awards in respect of public leaders (both political and non-political leaders who serve in the State and the public) to whom higher awards are generally awarded (see Peter Lim at [12]).

[44] The awards in the table at the higher end of the spectrum were justified on the basis that the plaintiffs were prominent businessmen. In Peter Lim, the plaintiff was a prominent businessman and investor who had built up a formidable reputation in the stock broking industry and was frequently cited by Forbes Asia as one of the richest men in Singapore and Asia (at [26]). The libel had called into question his competence, integrity and business acumen. Likewise, in Ei-Nets, the plaintiff was a businessman holding positions of responsibility in public and private organisations.

[45] Bearing in mind the discussion above at [28], the first plaintiff may not recover damages for injury to feelings. According to George Wei JC in Golden Season at [134], much will depend on whether the defamation has injured the business goodwill of the company such that the business reputation of the company can only be vindicated by a “really substantial award”.

[46] In the present action, it is likely that the gravity and the extent of circulation of the defamatory statements had a substantial impact on the business reputation of the school. This was borne out in the evidence adduced by the first plaintiff. Therefore, I consider it fair and appropriate to award the first plaintiff S$30,000 in general damages.

[47] Although the sexual abuse allegations were undoubtedly serious attacks on the plaintiffs’ character and integrity, such severity does not justify an award of S$300,000 which belongs to the scale of awards to public leaders in Singapore (see for example Goh Chok Tong v Chee Soon Juan [2005] 1 SLR(R) 573). Furthermore, I note that none of the plaintiffs in the present suit enjoy a reputation as formidable as that enjoyed by the plaintiffs in Peter Lim or Ei-Nets.

[48] Counsel for the plaintiffs has referred me to the decision in Rantzen where £110,000 was awarded by the jury for allegations of child sexual abuse. However, I am mindful of the caution issued by the Court of Appeal in Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576. L P Thean JA, delivering the judgment of the Court of Appeal, said:

[49] I therefore find greater guidance in the awards given by our courts than the English courts. Taking into account the awards that have been given in those cases, the standing of the plaintiffs, the gravity of the libel, the extent of the publication and other relevant factors, I consider it fair and appropriate to award general damages of S$50,000 to the second and third plaintiffs and S$40,000 to the fourth plaintiff.

[50] The plaintiffs’ claims in aggravated damages were premised on the following. First, the plaintiffs submitted that the defendant acted with malice because she either knew that the defamatory statements were false or was reckless as to their truth. Second, the plaintiffs contend that their injury has been aggravated by the way the defendant had conducted these proceedings. According to the plaintiffs, the defendant and her husband had actively sought to evade service, and at the same time, giving the impression that (a) they were in the dark about the action; and (b) the action was an attempt by ATU to pervert the course of justice of proceedings in Indonesia. Third, the plaintiffs argued that the defendant’s failure to retract her statements or apologise had similarly increased the plaintiffs’ injury.

[51] It is well established that aggravated damages may be awarded where the motive or the conduct of the defendant has increased the injury to the plaintiff. The nature of such damages has been summarised by the following passage in Gary Chan K Y, The Law of Torts in Singapore (Academy Publishing, 2011) at paras 13.128 – 13.129:

[52] In Arul Chandran, the Court of Appeal endorsed the following passage from Gatley on Libel and Slander (Patrick Milmo & W V H Rogers eds) (Sweet & Maxwell, 9th Ed, 1998) where some factors warranting the award of aggravated damages are set out:

[53] The presence of malice is another factor that goes towards aggravating the damage caused, and hence increasing the size of the award (see Halsbury’s Laws of Singapore vol 18 (LexisNexis, 2012 Reissue) (“Halsbury”) at para 240.201). As the Court of Appeal held in Chan Cheng Wah Bernard and others v Koh Sin Chong Freddie and another appeal [2012] 1 SLR 506 at [90]:

[54] Lastly, the principle of proportionality applies to the award of aggravated damages. Caution has to be exercised in the award of aggravated damages to avoid double counting for the distress and humiliation caused to the plaintiff (see Freddie Koh 2013 at [75]).

[55] An important question that arises from the preceding discussion is whether the first plaintiff, as a corporate entity, is entitled to its claim for aggravated damages. It has been noted by the Court of Appeal in Basil Anthony Herman v Premier Security Co-operative Ltd and others [2010] 3 SLR 110 that the ability of a corporate plaintiff to recover aggravated damages for defamation has not been authoritatively settled (at [65]).

[56] In Messenger Newspapers Group Ltd (plaintiffs) v National Graphical Association (1982) (defendants) [1984] 1 All ER 293 (“Messenger Newspapers”), it was held that, although a company cannot suffer injury to feelings, it could nonetheless be awarded aggravated damages. In Golden Season, George Wei JC was of the view that the decision in Messenger Newspapers was explicable on the basis that the court was really awarding exemplary damages rather than aggravated damages:

[57] In any event, the decision in Messenger Newspapers has not been followed in a number of first instance cases, in particular, in Collins Stewart Ltd v The Financial Times Ltd [2006] EMLR 5 (“Collins Stewart”) where it was held (at 114, line 30):

[58] The decision in Collins Stewart has been affirmed by the Court of Final Appeal (Hong Kong) in (1) Oriental Daily Publisher Ltd; (2) MA Ching Kwan v (1) Ming Pao Holdings Ltd; (2) Ming Pao Newspaper Ltd; and (3) Cheung Kin Bor [2013] EMLR 7. The court noted at the outset (at [112]) that the object of an award of aggravated damages is to “compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way”. Consequently, the court held:

[59] More recently, the ghost of Messenger Newspapers has been finally laid to rest by the English Court of Appeal in Eaton Mansions (Westminster) Ltd v Stinger Compania de Inversion SA [2014] H.L.R. 4 where Patten LJ stated:

[60] Thus, I consider it settled law that a corporate plaintiff may not recover aggravated damages. It naturally follows that the first plaintiff is not entitled to its claim for aggravated damages.

[61] I was of the view that an award of aggravated damages would be appropriate to repair the increased injury caused by the defendant’s conduct. In the absence of evidence to the contrary, it appears that the defendant had acted maliciously by being reckless as to the truth of her allegations.

[62] First, there was no reasonable basis for the defendant to claim that the first plaintiff was covering up sexual abuse at the school. The school had volunteered resources to investigate the matter. These resources included an expert in clinical social work and child counselling to interview B, and a former agent with the FBI to uncover the truth.

[63] Second, the objective evidence suggested that B was never sexually abused. The defendant and her husband were repeatedly asking B whether he had been sexually assaulted and B had maintained that he had not. This was confirmed by the physical examination at KK Women’s and Children’s Hospital which did not find any injury or scarring in B’s rectal region. After the medical examination, the defendant sent a text message to a friend saying “Thank God everything is okay” and “we’re more than happy because at least we can close this chapter and start a new chapter in Singapore”. Later in May 2014, the defendant sent a WhatsApp message to D saying that the news was exaggerating and that she had never said B had been raped. It was only on 28 May 2014 that the defendant started alleging that B had been raped more than 20 times.

[64] Furthermore, the defendant did not care to enter appearance in the present suit even though she was fully aware of the proceedings. This knowledge was evident from the Jakarta Post Article in which she was reported to be suggesting that the motive behind the suit in Singapore was to prevent her from testifying in the criminal trial in Indonesia. I further note that the defendant has also failed to apologise or retract her defamatory statements.

[65] Considering the defendant’s conduct and the manner in which the events unfolded, I award aggravated damages of S$20,000 to each of the second, third and fourth plaintiffs.

[66] The first plaintiff claims US$2,985,400 in special damages for the shortfall in enrolment for certain grades at the Campus. The second to fourth plaintiffs claim US$944,240.60, US$515,020.85 and S$41,400 respectively for the wreckage of their careers.

[67] The first plaintiff seeks to recover losses representing the shortfall in enrolment at ATU. B was enrolled in Kindergarten in academic year 2013/2014. In academic year 2014/2015, there was a marked shortfall in the actual intake for the grade directly below (ie junior to) Kindergarten, Kindergarten and the grade directly above (ie senior to) Kindergarten. The shortfall in enrolment translated to a loss of US$1,492,700 for that academic year. The first plaintiff expects this shortfall in enrolment to persist for the next few years. Thus, the first plaintiff seeks to have a multiplier of two years applied to the loss incurred in academic year 2014/2015.

[68] The second to fourth plaintiffs seek special damages for their alleged loss of employability. Although they concede that they remain on the payroll of ATU, they claim that they would be unable to find alternative employment elsewhere.

[69] I accept that, as a general proposition, the tort of defamation allows the recovery of economic loss as special damages if such loss is referable to the harm to the plaintiff’s reputation. To recover special damages, the plaintiff has to prove ‘actual temporal loss’; the loss of some ‘material’ or ‘temporal advantage’ which is ‘pecuniary’ or ‘capable of being estimated in money’ (Halsbury at para 240.186). In Ratcliffe v Evans [1892] 2 QB 524 at 528, Bowen LJ explained that the term “special damage” is used to denote the particular damage which a claimant suffers beyond general damage:

[70] Actual pecuniary loss must be pleaded and proved. It is insufficient to plead the broad conventional allegation that by reason of the pleaded facts, damage has been suffered (see for example Lonrho plc and others v Fayed and others (No 5) [1993] 1 WLR 1489 at 1494). The level of particularity required is illustrated by the observation in Harvey McGregor, McGregor on Damages (Sweet & Maxwell, 18th Ed, 2009) (“McGregor on Damages”) at para 39-034:

[71] It must also be borne in mind that not all manner of pecuniary losses fall within the scope of special damage. In Low Tuck Kwong v Sukamto Sia [2014] 1 SLR 639, the Court of Appeal clarified that the scope of special damage in the context of defamation suits had to be loss referable to the damage to reputation. The Court stated at [98]:

[72] I am of the view that the first plaintiff has failed to prove its claim for special damages. Although evidence was adduced to prove the shortfall in enrolment, the question is whether such shortfall was wholly caused by the defendant in publishing the libel. The scandal started in March 2014, approximately two months before the defendant claimed that B was sexually assaulted. It may very well be that the defendant had contributed to the damage caused to the school’s reputation. However, the first plaintiff had endeavoured to pin the entire blame on her and as a consequence, did not prove the extent of the defendant’s contribution. Therefore, the first plaintiff’s claim for special damages must fail.

[73] In my judgment, the second to fourth plaintiffs’ claim for special damages is misconceived. As was discussed above at [70], actual pecuniary loss must be pleaded and proven. The second to fourth plaintiffs have not done so. At the time of this hearing, they remained on the payroll of the first plaintiff and had not suffered any financial loss. That their teaching careers have been wrecked by the defamation is but a bare assertion that is unsupported by proof of the loss of any particular employments or contracts. Thus, without proof of actual loss, the general harm caused to their teaching careers should fall within the scope of general damages, not special damages.

[74] For the reasons set out above, I make the following awards:

(a) ATU – S$30,000 in general damages;

(b) ATV – S$50,000 in general damages and S$20,000 in aggravated damages;

(c) ATW – S$50,000 in general damages and S$20,000 in aggravated damages; and

(d) ATX – S$40,000 in general damages and S$20,000 in aggravated damages.