Francis George Polidore Plaintiff v (1) Crusader Caribbean Publishing Company 1971 Ltd (2) George Odlum Defendants [ECSC]

• Jurisdiction: St Lucia
• Judge: Hariprashad-Charles J. [Ag.]
• Judgment Date: 13 March 1999
• Judgment citation (vLex): [1999] ECSC J0313-2
• Court: High Court (Saint Lucia)
• Date: 13 March 1999
• Docket Number: CIVIL SUIT NO.380 OF 1990

[1999] ECSC J0313-2

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

1 Hariprashad-Charles J. [Ag.] The Plaintiff is a Welder and the father of Saskia Downes also called Sasha Downes.

Hariprashad-Charles J. [Ag.]

2 The First-named Defendant is a Newspaper Company, publishing the Crusader Newspaper with a wide circulation in Saint Lucia and else where. The Second-named Defendant is the Editor, Owner and Publisher of the First-named Defendant.

3 On 22^nd day of November 1990, the Plaintiff instituted the present action by issue of a writ of Summons endorsed with Statement of Claim against the Defendants for libel in respect of an article published in the Crusader Newspaper of 1^st day of September 1990 at the front page captioned "THIS BEAUTIFUL 'SMILE ST. LUCIA' BABY DIED OF AIDS! See story on page 3."

4 On 2^nd 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 1^st 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 his daughter, Saskia fell ill and was referred to Victoria Hospital. Certain tests were taken but before the results were given, Saskia passed away on the 25^th 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.

6 According to him, on 1^st day of September 1990, he was in his backyard working when a friend came and showed him a copy of the Crusader Newspaper and he saw a large 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 Plaintiff stated that the story written under the said headline contained 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 Crusader Newspaper opined that Saskia had acquired the infection at childbirth or through breast-feeding.

• (e) Saskia's mother had also tested HIV positive.

8 He further testified that at the date of the publication of the said Crusader Newspaper on 1^st 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 on the "SMILE BABY" story with further stories appearing in their publications on the 8^th and 15^th day of September 1990. It was accepted that at no time in the issues 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 1^st day of September 1990, he was ostracized by his community at the 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, relatives and personal friends and Saint Lucians at large. Sometime on 15^th 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 so severe. I was not able to walk around town without being slandered by the public. Sometime in April 1991, I went to the dentist at the Health Centre for an extraction… I was the seventh person on the list…The dentist came in probably an hour or so late and names 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 cautioned 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 8^th 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 confidentiality of Saskia's medical condition, the Defendants and each of them broke that confidentiality and exposed this tragedy to the world, and in so doing for their own selfish and self serving reasons to have "a scoop which the Star's scooping sources had miraculously missed," to have the historic and controversial 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 single EIA test, we do confirmatory testing using a second method called the Western Blot Test. This was caused to be done so it was sent to Trinidad.I received the result on 3^rd day of October 1990 from CAREC — a laboratory in Trinidad. The result of the test was positive. I also did tests on Andrea Downes. The EIA Test was positive. The Western Blot Test was also positive."

15 Dr. King further testified that in common parlance, Saskia Downes died of AIDS. Andrea Downes, the mother of Saskia passed away in 1992. She was also 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 where one partner is HIV positive and the other partner is HIV negative."

THE PLAINTIFF'S CLAIM

16 At paragraph 6 of his Statement of Claim, the Plaintiff alleged that on page 3 of the said Crusader Newspaper, the Defendants falsely and maliciously wrote and 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 face was well known to many St. Lucians since she featured on calendars as a prime model of healthy St. Lucian childhood. She will be specially remembered as theSMILE BABY in the dental advertisements which sought to encourage children to practise better dental care. Her 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 Aids at the age of four. In recent months she had gone to Victoria Hospital a few times and was recently tested HIV positive being reactive to EIA (Positive Enzyme-linked Immunoassay) and blood samples weresent 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 Crusader this week publishes the cover-picture on this 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 known as Acquired Immune Deficiency Syndrome, contracted through 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 and 6 in its natural and or dinary meaning alternatively by reason of the facts and matters hereinafter set out meant and were understood to mean that the Plaintiff is a...