Assessment of damages
50 Dr Colagrande seeks damages, including aggravated damages, for hurt feelings, damage to reputation, and vindication of reputation, as well as damages for the costs of discovering the identity of the respondents as publishers of the false review.
51 I accept that the defamatory imputations carry a serious sting and stigma for any person, but particularly a doctor said to have breached a patient's trust by subjecting the patient to a sexual assault in the course of a medical consultation. Accordingly, damage to Dr Colagrande's professional and personal reputation must be real and is likely to be far more extensive than the direct evidence exposes. The need for vindication of reputation is also strong. As submitted for Dr Colagrande:
The circumstances of this case are extraordinary, involving entirely false allegations of the most serious nature made without any justification by a practicing (sic) medical practitioner, and his wife, against another practicing (sic) medical practitioner.
52 I further accept the submission for Dr Colagrande that:
The imputations that have been conveyed are among the gravest that can be alleged against a practicing (sic) medical practitioner. These are the type (sic) of allegations that will always raise questions and doubts. It is human nature to apply a cautionary approach to persons subject to such allegations both personally and professionally. Even where the False Review is not believed, the allegations will cause people to treat Dr Colagrande with caution into the foreseeable future - his reputation is stained by the allegations forever.
53 Given this, the principle that "[v]indication looks to the attitude of others to the [applicant]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [applicant's] reputation" expressed in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 61 is engaged.
54 I accept that Dr Colagrande was profoundly hurt and distressed, indeed re-traumatised, by the false review. As discussed, the fact that Dr Colagrande might have been more susceptible to serious hurt and trauma from the false review than someone else might have been due to his previous experiences does not undermine the extent of his hurt and trauma caused by the false review. "A person publishing defamatory imputations must take applicants as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant": Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [446(c)].
55 I accept that this hurt and trauma was compounded by Dr Colagrande's subsequent discovery that the false review was not posted by his former patient, intent on causing him further harm, but by another doctor unknown to him who Dr Colagrande rightly inferred wished to do him professional harm. In this regard, the state of mind of the respondents, which I consider to have been actuated by malicious intent towards Dr Colagrande, substantially exacerbated the harm suffered by Dr Colagrande as provided for in s 36 of the Defamation Act.
56 As Dr Colagrande said when he found out the respondents owned the relevant IP address from which the false review was made and that the first respondent was Dr Mitchell Kim, he felt "sick to the bone" and could not believe a fellow doctor would so such a thing. He became paranoid about other doctors seeking to destroy his reputation and did not know who to trust. He felt his medical fraternity was turning on him and was punishing him. He became detached from colleagues and avoided medical conferences. He felt that it "was destroying [his] mind space and…ability to turn to fellow doctors for support", as "Dr Kim was [a] medical professional, a person with intellect and understanding of the destruction of what a post may do to [Dr Colagrande] personally". His anxiety rose as he "feared others would read Dr Kim's post and think it was in fact from the female who alleged sexual assault was trying to get back her vengeance on me". His ability to focus was so affected he had to take extended time off work. This is an understandable reaction from a person in Dr Colagrande's circumstances.
57 While the evidence supports an inference that reviews on the RateMDs website are generally anonymous, nothing indicates that such anonymity is necessary. Moreover, the uniquely malicious sting of the false review required anonymity. The natural and ordinary meaning of the false review is that the purported victim of the sexual assault, a person in the unique position to know the truth, was asserting that the sexual assault in fact occurred. This required anonymity. The false review could not have functioned as it must be inferred to have been intended by the respondents to function had the first and second respondents identified themselves as the authors of the post. In these circumstances, the fact of anonymity of the false review is an aggravating circumstance of the respondents' conduct in posting the false review. I accept that "[t]hrough deception and underhandedness, the respondents took direct aim at the applicant's personal and professional reputation and thus sought to destroy his character, his reputation, and his livelihood". The circumstances expose improper and unjustifiable conduct of the respondents: Hockey at [446(g)].
58 I also reject the proposition that it should not be inferred that the respondents knew that the conviction of Dr Colagrande had been quashed. The very fact that the false review was couched in terms indicating that it had been posted by the purported victim of the sexual assault is evidence that the respondents knew that it was not open to them to post merely that Dr Colagrande had been previously convicted of sexual assault. This was the unique sting of the false review. The fact that Mr Russo was unable to find any evidence of the Court of Appeal's decision when he searched online, and Dr Colagrande agreed that the appeal decision received comparatively little media attention, does not lead to any favourable inference for the respondents in this regard. Given that they did not give evidence when they could reasonably be expected to do so, the terms of the false review are sufficient to found an inference adverse to the respondents - that they knew Dr Colagrande's conviction had been set aside and calculated the best way in which to cause Dr Colagrande the most possible harm by inducing readers to believe that the sexual assault had occurred.
59 I accept that the fact that the respondents did not remove the false review until September 2021 despite having been requested to do so in January 2021 was further improper and unjustifiable conduct on their part. I infer that the respondents, as the joint authors of the post, could have removed it at any time but did not do so as part of their intention to "bring to surface false matters… to an audience with the greatest invested interest in such knowledge".
60 While I do not accept that the initial plea of bad reputation is an aggravating circumstance (because it involves some complexity of reasoning to determine its inevitable failure as discussed above), the fact that the respondents have chosen to continue to deny responsibility for publication in the face of overwhelming contrary evidence is another aggravating factor. The respondents have never acknowledged their responsibility for the false review or apologised to Dr Colagrande for their egregious and dishonest conduct which are relevant factors: Hockey at [446(e)]. Their inferred motives - for the first respondent to damage a commercial competitor and the second respondent to assist the first respondent in achieving that object - are also aggravating factors because, as provided for in s 36 of the Defamation Act, they exacerbated the harm suffered by Dr Colagrande.
61 The respondents pleaded that a matter in mitigation of damages was that Dr Colagrande's websites advertising his services involved women "wearing lingerie and high-heeled shoes", "posing in an overtly sexualised manner", and that he used "overtly sexual imagery in the depiction of women's bodies, including women who are purported to be 'Actual Patients' of [Dr Colagrande], in order to advertise his services as a cosmetic surgeon, in a way which exceeds what is necessary or appropriate to objectively depict the results of surgeries performed by [Dr Colagrande]", which was "unprofessional conduct for a medical practitioner". This pleading was not in good faith and was improper and unjustifiable. It is not apparent how these matters could have been relevant to the plea in mitigation. They could not be said to be relevant background context to the publication of the false review. The plea was maintained until March 2022 but then abandoned. This too is an aggravating circumstance.
62 It is common ground that the Defamation Amendment Act 2020 (NSW) amendments in relation to the damages that came into force after 1 July 2021 do not apply. Further, that under s 35 of the Defamation Act the maximum amount of damages for non-economic loss is $432,500.
63 Further, there was no dispute as to the principle summarised by Lee J in Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 at [236] that:
… if an award of aggravated damages is appropriate in this case, the cap is inapplicable and an order for damages for non-economic loss that exceeds the cap in respect of both pure compensatory damages and aggravated compensatory damages can be made: Bauer Media [Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674] (at 732 [249]); Rush [Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432] (at 526-7 [459]-[466]). But it is of significance, as the Full Court pointed out, that it is always necessary to bear in mind that s 34 of the Act continues to apply and provides an "ever-present guide to ensure remedies are fair and effective in the context of achieving the objects of the Act with the aim of ensuring consistency of awards in defamation proceedings across jurisdictions and to correct any imbalance with awards of damages for personal injuries": Bauer Media (at 731 [244]).
64 I accept that the circumstances of this case justify an award of aggravated damages so that the maximum amount of damages for non-economic loss of $432,500 does not apply by operation of s 35(2) of the Defamation Act (as it was before the 1 July 2021 amendments). Section 35(2) provided that a court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages
65 The submissions for Dr Colagrande provided the following summary of cases said to be comparable to some extent (albeit noting that some cases pre-date the Defamation Act and others involve different maximum caps on damages for non-economic loss):
(a) Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110 where an Australian businessman was awarded $1,350,000 (in total) for general and aggravated damages including interest in respect of two ongoing internet publications on a website that conveyed imputations that he had breached fiduciary duties, that he so lacked in integrity to pay a journalist to publish invented lies and that he attempted to pervert the course of justice.
(b) Tribe v Simmons [2021] FCA 1164 per Lee J - where the brother of a famous basketball player was awarded $550,000 in general damages including aggravated damages in an undefended hearing for serious allegations of sexual assault and molestation of his half sister (a minor), and causing her mental and permanent physical injury, in three "tweets" on Twitter, where the actual extent of publication was unknown.
(c) Nettle v Cruse [2021] FCA 935 per Wigney J - where a plastic surgeon was awarded $450,000 in general damages including aggravated damages in an undefended hearing for internet publications alleging fraud and medical malpractice.
(d) Webster v Brewer (No 3) [2020] FCA 1343 per Gleeson J - where a politician who was also a doctor, her doctor husband and a charity for women were defamed in seven Facebook written and video posts alleging they were participants in a secretive criminal network involved in the sexual abuse of children. The first video was viewed 2400 times before it was removed from the platform by Facebook and there was evidence that each post was interacted with hundreds of times. There were findings that the allegations were believed by a small but significant segment of the local community harming the reputation of the applicants and that may have contributed to the decline in women being referred to the charity. There was however a significant finding that the publications were not reasoned or plausible and reasonable people would dismiss them as deranged and lacking in credibility:
i. First applicant, the politician and also a medical practitioner was awarded $350,000 in general damages including aggravated damages;
ii. Second applicant, a medical practitioner, only the target of three of the publications was awarded $200,000 in general damages including aggravated damages; and
iii. The charity was awarded $300,000 in general damages.
(e) Tavakoli v Imisides (No 4) [2019] NSWSC 717 per Rothman J - where a plastic surgeon was awarded $530,000 in general damages including aggravated damages plus interest in an undefended hearing for allegations of incompetence and cruelty against him on a Google review.
(f) Al Muderis v Duncan (No 3) [2017] NSWSC 726 per Rothman J - where a surgeon was awarded $381,000 (the then cap) in general damages and an additional $99,000 in aggravated damages in an undefended hearing for serious allegations of medical malpractice, cruelty and fraud on five internet publications complained of including videos on various sites including a website constructed using a similar URL to the surgeon's website and continuing internet publication constituting harassment. The extent of publication on the evidence was unknown.
(g) Crampton v Nugawela (1996) 41 NSWLR 176 - where (prior to the Defamation Act 2005) a doctor published a letter accusing another doctor of deliberately lying to those concerned with a medical conference, the jury awarding $600,000 in damages as an undifferentiated sum of compensation for lost opportunity to earn income and for distress, damage to reputation and vindication of reputation. The plaintiff was accused of lying in a professional context, and it was important that the accusations did not come merely from another doctor, but by him as acting for the second defendant, the Royal College. The damages award was unanimously upheld on appeal.
66 I am of the same view as Lee J in Tribe v Simmons (No 2) [2021] FCA 1164 at [48] that there "is no useful purpose in me going through the individual cases and identifying where there are similarities and where there are differences" as each case is as fact-specific as human ingenuity permits.
67 One aspect of Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221; (2020) 6 QR 64 is also relevant. Jackson J (with whom Morrison and Mullins JJA agreed) referred at [35] and [38] to s 6(a) of the Law Reform Act 1995 (Qld) (dealing with proceedings against joint and several tortfeasors) and XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at 456, which confirmed that the equivalent provision to s 6(a), s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), abolished the rule that for a joint tort there was a single wrong and a single cause of action. His Honour then said at [39] that the consequence must be that "where a single judgment or separate judgments in the same amount otherwise would be made against several concurrent tortfeasors for damages in respect of indivisible harm, separate awards must be made for any aggravated damages where the aggravating conduct is not jointly engaged in by all defendants and the same amount of aggravated damages is not assessed against all of them".
68 In the present case, that principle is inapplicable. Although I infer that the first respondent's motive was to harm his commercial competitor and the second respondent's motive was to assist the first respondent, that assistance is properly characterised as assistance to the first respondent to achieve his malicious motive. As a result, the first respondent's motive, I infer, was shared by the second respondent. Otherwise, I infer that at all times in their relevant conduct, including the defence of this proceeding, the respondents have acted jointly. They have the same legal representation and filed a single defence drawing no distinction between them. In these circumstances, the aggravating conduct is joint conduct of the respondents.
69 Taking this with s 8 of the Defamation Act (a "person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter"), there should be a single award of damages for non-economic loss for which the respondents are jointly and severally liable.
70 Given all of the circumstances referred to above I am satisfied that a substantial award of damages is required (including aggravated damages) on account of Dr Colagrande's hurt feelings, damage to his reputation, the need for vindication of his reputation, and the circumstances of aggravation. I award $420,000 to Dr Colagrande on account of his non-economic loss.
71 Dr Colagrande also sought special damages in the sum of $31,511.29 on account of the money he had to spend to ascertain the underlying facts which lead inexorably to the inference that the respondents posted the false review. There is no doubt that the false review caused Dr Colagrande to incur these costs. Dr Colagrande should be awarded $31,511.29 to compensate him for these losses.