ABZ v Singapore Press Holdings Ltd

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 12 August 2009
• Neutral Citation: [2009] SGHC 182
• Date: 12 August 2009
• Subject Matter: Justification,Tort,Malice,Whether defendant succeeded in its plea of justification,Whether defendant could avail itself of defence of qualified privilege,Whether statements bore the defamatory meaning pleaded by plaintiff or some lesser defamatory meaning,Defamatory statements,Whether publication of article was actuated by malice such that defendant was precluded from this defence,Defamation,Qualified privilege
• Docket Number: Suit No 413 of 2008
• Published date: 16 September 2009
• Defendant Counsel: Andrew Yeo, Ramesh s/o Selvaraj and Ramesh Kumar (Allen & Gledhill LLP)
• Court: High Court (Singapore)
• Plaintiff Counsel: Anthony Leonard Netto (C H Chan & Co)

12 August 2009 Judgment reserved.

Lee Seiu Kin J:

Introduction

1 In the 23 May 2008 edition of The Straits Times (“the Newspaper”), the defendant published an article entitled “13-month-old boy critically ill in hospital” (“the Article”). The 13-month-old boy in the Article, [B], had contracted hand, foot and mouth disease (“HFMD”). The Article appeared prominently on the first page of the Newspaper’s Home section at a time when HFMD was prevalent in schools and kindergartens. The plaintiff was named in the Article. In this action, the plaintiff seeks general and aggravated damages for libel in respect of the Article, as well as an injunction to restrain the defendant from further publishing articles which are defamatory of the plaintiff.

Factual Background

2 The plaintiff is a Singapore company in the business of operating education centres at two locations in Singapore. In particular, the plaintiff is the owner of [xxx] (“the Centre”), which is a childcare centre. The defendant is a well-known Singapore company listed on the Singapore Exchange. It is the owner and publisher of the Newspaper.

3 For ease of reference, I set out the characters that feature in this suit:

(a) [B], the 13-month old boy who was critically ill from HFMD;

(b) [C], [B]’s mother;

(c) [D], [B]’s five‑year old cousin who attended the Centre at the material time;

(d) [E], [D]’s mother who is also [C]’s cousin; and

(e) Salma Khalik (“Salma”), senior health correspondent of the Newspaper and the author of the Article.

The plaintiff’s case

4 The crux of the plaintiff’s case against the defendant is for damages suffered as a result of the publication of certain words (“the Statements”) in the Article. The main body of the Article is reproduced in full below (with the Statements italicised):

A SECOND child in Singapore is critically ill following complications from hand, foot and mouth disease (HFMD). Doctors fear he may have encephalitis, or inflammation of the brain. [B], who turned 13 months old yesterday, was diagnosed with the childhood infection last Friday. He had a fever, no appetite and a rash. By Saturday, the normally active infant was refusing to eat or drink. That night, he woke up crying several times. The next day, his father, [F], 39, a technical officer with [xxx], took [B] to KK Women’s and Children’s Hospital (KKH), where he was warded. On Monday night, while his parents were with him, little [B] had a seizure and stopped breathing momentarily; his blood pressure plummeted and his heart rate raced up. Said his mother, [C], 29, an executive officer with the [xxx]: “It's a blessing that we took him to the hospital early. If it had happened at home, I wouldn't have known what to do.” [B] was resuscitated and has been in intensive care since. Dr Chong Chia Yin, head and senior consultant of infectious diseases at KKH, said yesterday that it was too early to know how he will fare, though his blood pressure has improved and he is now less dependent on a ventilator for breathing. But she added: “He had a new seizure this morning.” Dr Chong said [B] has fever, mouth ulcers and rashes on his palms, soles and buttocks. He throws up what he eats and is also drowsy. [C], who is expecting her second child in October, said [B] probably caught the bug from his older cousin. The cousin's mother, who looks after [B] while his parents are at work, called on Wednesday night last week to say that her son had HFMD. So [C] took leave the next day to look after her son at home. “But it was too late,” she sighed. More than 13,000 children here have come down with HFMD this year, including 156 who have been hospitalised. While the epidemic seems to be tailing off – with a 25 per cent drop in cases from 1,246 for the week ending May 10 to 940 cases last week – the danger is not over yet. This is because the number of kids getting infected with the virulent EV71 virus is still on the rise. So far, 32 per cent of all children infected here were hit by the EV71 bug – up from 29 per cent a week ago. This is the virus that infected [B]. Seven-year-old [G], the other child who suffered from encephalitis, was infected by one of the other 80 HFMD viruses. She has recovered fully and is back at school. It was the spread of the EV71 bug that caused the Health Ministry to compel childcare centres to close if they have more than a certain number of children infected over 15 days or more. So far, 24 schools have been told to close, and another 75 urged to do so. The school that [B]'s cousin goes to, [the Centre] in [address redacted], is not among them. [C] was upset that the centre did not inform parents that it had some children down with this illness, so parents could keep their children away. The centre operator could not be reached for comment last night. HFMD is usually a mild childhood illness which is passed from child to child through bodily fluids such as saliva or nasal mucus. The number of HFMD cases here has been climbing steadily in recent years, from about 6,000 a year in 2003 to just over 20,000 last year. [emphasis added]

5 In addition to the main body of the Article reproduced above, there were three headings, namely, “HAND, FOOT AND MOUTH DISEASE”, “13-month-old critically ill in hospital”, and “He suffered seizures and doctors fear he may have brain inflammation” (collectively “the Headings”). The second heading was printed in a larger font than the first and third headings. There were also two pictures of [B] in the Article (“the Pictures”). The larger picture depicted [B] lying on a hospital bed with tubes going into his nostrils and bandages covering his head, while the smaller one showed a smiling [B] in healthier times.

6 For ease of reference, I set out the Statements hereunder:

Statement 1: “[C], who is expecting her second child in October, said [B] probably caught the bug from his older cousin.” Statement 2: “So far, 24 schools have been told to close, and another 75 urged to do so. The school that [B]’s cousin goes to, [the Centre] in [address redacted], is not among them.” Statement 3: “[C] was upset that the centre did not inform parents that it had some children down with this illness, so parents could keep their children away. The centre operator could not be reached for comment last night.”

7 The plaintiff’s complaint is that the Statements are defamatory of it in its trade and/or business. The plaintiff pleaded that the Statements, in their natural and ordinary meaning, meant and/or were understood to mean that:

(a) The plaintiff did not take any, or any reasonable steps to protect their students from HFMD.

(b) The plaintiff did not take any, or any reasonable steps in the prevention and control of HFMD as was required of the plaintiff by the Ministry of Health.

(c) The Centre had some children infected with HFMD and the plaintiff did not take any reasonable steps to warn or notify parents of all children who attend the Centre.

(d) [B]’s cousin contracted HFMD from the Centre and as a result, infected [B] and caused him to contract HFMD.

(e) Like the 24 kindergartens that were told to close down and the other 75 that were urged to do the same, the Centre should be amongst the same category.

(f) The plaintiff tried to avoid the press intentionally because the plaintiff failed to take any or any reasonable steps or alert and warn parents of children who attend the Centre.

(g) It was the plaintiff’s negligence in the management of HFMD amongst the children who attend the Centre that ultimately caused [B] to contract HFMD and suffer life-threatening conditions.

(h) The plaintiff was negligent in maintaining the health and hygiene standard of the Centre.

(i) But for the plaintiff’s negligence, [B]’s illness could have been avoided.

8 The plaintiff submitted that the Statements read together with the Headings and the Pictures create the impression that the plaintiff caused [B]’s illness and predicament. The plaintiff argued that there is no evidence to suggest that [B] contracted HFMD from [D] (who, as mentioned above, attended the Centre). Further, there is also no proof that [D] caught HFMD whilst at the Centre. In addition, the plaintiff also contended that it was untrue that the plaintiff failed to notify parents that certain children who attended the Centre had taken ill with HFMD. The plaintiff asserted that it took all reasonable steps to notify the parents. In fact, the plaintiff maintained that it quarantined the children who fell ill during the material period until doctors had certified that they were free from the HFMD virus.

9 Further, the plaintiff took issue with Statement 3, which it submitted, suggested that the plaintiff was avoiding the press intentionally. It was not disputed that Salma (representing the defendant) attempted to contact the Centre at least twice in the evening via telephone but there was no one at the Centre to answer the calls. The plaintiff was aggrieved over the fact that the defendant reported in the Article that the plaintiff was unavailable for comment. According to the plaintiff, this gave an implication “by way of ominous conclusion that the Plaintiff was avoiding the press.”[note: 1]

10 Finally, the plaintiff also contended that the publication of the Article was actuated by malice.

The defendant’s case

11 The defendant submitted that, first and foremost, the Statements, in their natural and ordinary meaning, were not defamatory. Secondly and in the alternative, even if the Statements were defamatory, the defendant can avail itself of the defence of justification. Finally, and again in the alternative, the defendant submitted that the Article was published on an occasion of qualified privilege.

12 Before I turn to address these issues, it would be helpful to first set out the background (as illustrated in the defendant’s evidence) in relation to how both [D] and [B] contracted HFMD. In doing so, it will be revealed exactly what the impetus for the Article...