Coyne v Citizen Finance Ltd

Coyne v Citizen Finance Ltd - [1991] HCA 10 - HCA 1991 case summary — Zoe

[5]

One can point to statements of authority in the reported cases to the effect that an appellate court should be reluctant or extremely slow to interfere with a jury's assessment of defamation damages for the reason that the quantum of such damages is a matter which is particularly appropriate for the determination of a jury: see, e.g., Broome v Cassell & Co. [20] ; Kornhauser v John Fairfax & Sons Pty. Ltd. [1] . Such statements, which are often coupled with the potentially misleading comment that damages in defamation proceedings are "at large", seem to us to be essentially unhelpful and of dubious validity. In the context of present circumstances in this country where judges commonly assess defamation damages (see below), there is no compelling reason why the assessment of damages for defamation should be seen as falling within the exclusive or special competence of a jury. Indeed, there is something to be said for the view that the assessment of damages in defamation proceedings is sometimes inappropriate for a jury by reason of the difficulty of ensuring that the jury understands and observes the essential requirements of the sometimes complicated rules governing the nature and limits of the damages which can properly be awarded in such a case. More important, such statements are likely to distract attention from the duty of an appellate court entrusted with jurisdiction to hear appeals from defamation verdicts to exercise "control in libel actions over juries' verdicts as to damages, and [to] set them aside if, on consideration of all the circumstances of the case, it is convinced that the amount awarded is unreasonable" (per Dixon, Williams, Webb and Kitto JJ., Triggell v Pheeney [2] , quoting McArthur J. in Falcke v Herald and Weekly Times Ltd. [3] ). In that regard, the "rule when a court of appeal is asked to set aside a verdict of a jury on the ground that the damages awarded are excessive is the same in libel actions as in any other cases" [2] . In such cases, the question for the appellate court is whether the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case. If the appellate court is of the view that that question should be answered in the affirmative, there can be no question of reluctance to intervene. The proper performance by the appellate court of the functions entrusted to it will require that it intervene to prevent miscarriage of justice. It is true that the somewhat unprincipled common law rules relating to the nature and limits of defamation damages may, in cases in those jurisdictions where exemplary or punitive damages are still available, make the task of the appellate court in reviewing a jury's award an unusually difficult one. The reason for the difficulty is that the interaction of sometimes competing notions of compensation, vindication, retribution and even deterrence may give rise to a wide variety of possible components of the jury's overall award. Even in such cases, the inability to identify specific components will not absolve the appellate court of the responsibility of determining whether the overall award is within the limits of what could reasonably be regarded as appropriate in the circumstances of the particular case. However, the present case involved no such extraordinary difficulty since, as will be seen, the jury were required to determine only the appropriate amount of damages to compensate the plaintiff for the injury to his reputation.

[16]

I am convinced that it is not just (and I do not think that it is the law ) that in equating incommensurables when a man's reputation has been injured the scale of values to be applied bears no relation whatever to the scale of values to be applied when equating those other incommensurables, money and physical injuries. I do not believe that the law today is more jealous of a man's reputation than of his life or limb. That is the scale of values of the duel. Of course, the injuries in the two kinds of case are very different, but each has as its main consequences pain or grief, annoyance or unhappiness, to the plaintiff. On that approach, the members of the Full Court in the present case were entitled to take account of the fact that the damages of $150,000 awarded by the jury as compensation for the injury to the plaintiff caused by the publication of the formally worded "notice" and the subsequent aggravating conduct of the defendant exceeded what would be accepted in Western Australia as falling within the limits of what might reasonably be seen as appropriate compensation for the pain, the suffering and the loss of the ordinary amenities and enjoyment of life sustained by a person who has been made a paraplegic by the negligence of a defendant (see, e.g., Clark v Kramer [12] ). Indeed, the total damages ($200,000) which the jury awarded the plaintiff in the two associated actions correspond with the amount awarded by the Full Court of the Supreme Court of Western Australia in a recent case as appropriate compensation for the pain, the suffering and the loss of amenities involved in the devastation of the life of a previously active young man who had been made a tetraplegic with "no lower limb function and grossly limited upper limb function", no normal bladder or bowel control, and mobility so restricted that he even required the assistance of another person "to get from a lying to a sitting position": see Farr v Schultz [13] ; and cf., in this Court, Sharman v Evans [14] . 1. (1990) 170 C.L.R. 321. 2. [1965] 2 Q.B., at p. 109. 3. [1986] W.A.R. 54, at pp. 58-59. 4. (1988) 1 W.A.R. 94, at p. 96. 5. (1977) 138 C.L.R. 563.

[17]

It should, perhaps, be mentioned that the view of Diplock L.J., that it is legitimate for an appellate court in considering an appeal against the quantum of a jury's award of compensatory damages for defamation to bear in mind the scale of values which it applies in dealing with appeals in cases of serious physical injury, was rejected by the English Court of Appeal (Lord Donaldson M.R., Nourse and Russell L.JJ.) in Sutcliffe v Pressdram Ltd. [15] . Examination of the judgments in Sutcliffe discloses that the main grounds for the rejection of Diplock L.J.'s approach were the differences in both the kind of injury and the basis of compensation in the two classes of case and the fact that, in England, the assessment of damages in defamation proceedings was exclusively a matter for a jury whereas the assessment of damages for personal injuries was exclusively a matter for judges. Whatever strength those grounds might have had in England, they are not persuasive in this country. As to the first ground, it is true that there are some significant discrepancies between the basis upon which compensation is assessed in the two classes of case: the ascertainment of the "real" damages in a defamation case may involve peculiar difficulty (see, e.g., Ley v Hamilton [16] ) and may be complicated by considerations such as vindication and aggravation which are not present in the ordinary personal injuries case. An appellate court can, however, take account of such discrepancies. In so far as the difference in the kind of injury involved in the two classes of case is concerned, the above-quoted passage from the judgment of Diplock L.J. makes plain that that was something of which his Lordship was fully conscious. Its importance can be exaggerated in that the pain, suffering and loss of amenities of life in a serious personal injuries case will often comprehend mental strain and hurt to the plaintiff caused by the change in his or her reputation which may seem insignificant in the context of the direct effect of the physical injuries but which would, if it could be viewed in isolation, be at least comparable to that caused by an untrue allegation about lack of physical or mental capability or control. As to the second ground advanced by the Court of Appeal in Sutcliffe for rejecting Diplock L.J.'s approach, the clear distinction between assessment of damages in personal injuries cases by judges and the assessment of damages in defamation cases by juries has since become blurred in England as a result of the enactment of s. 8 of the Courts and Legal Services Act 1990 U.K. which empowers the making of Rules of Court enabling the Court of Appeal to substitute for a jury's award of damages which it considers to be excessive or inadequate "such sum as appears to the court to be proper" in the hope that "where cases went to appeal, the Court of Appeal's decision would filter through to the trial court": see the comments attributed to the Lord Chancellor (Lord Mackay) in The Law Society's Gazette, 21 February 1990, p. 4. That clear distinction simply does not exist in this country where in at least some cases in all Supreme Courts other than that of South Australia (where civil juries have been abolished altogether; see Juries Act 1927 S.A., s. 5), juries may assess damages for personal injury and where, in all Supreme Courts other than that of New South Wales, a judge assesses damages for defamation in the absence of some contrary order or election (see Rules of the Supreme Court 1971 W.A., O. 32, rr. 2 and 3 and Supreme Court Act 1935 W.A., s. 42; Australian Capital Territory Supreme Court Act 1933 Cth, s. 14; Rules of the Supreme Court 1986 Vict., r. 47.02; Rules of the Supreme Court 1900 Q., O. 39, rr. 4 and 5; Supreme Court Rules 1987 S.A., r. 75.01(2); Rules of the Supreme Court 1965 Tas., O. 39, rr. 5 and 6; Juries Act N.T., s. 7; and cf. Supreme Court Act 1970 N.S.W., ss. 85-89 and note that, in the absence of an order for a jury, a judge assesses defamation damages in the District Court of New South Wales under the District Court Act 1973 N.S.W.). Even if that were not the case, however, it seems to us that it would be quite wrong for an appellate court, entrusted with hearing appeals in both defamation and personal injury cases, to be indifferent to the need to ensure that there was a rational relationship between the scale of values applied in the two classes of case. The need for such a rational relationship is, of course, even more obvious in those jurisdictions (such as Western Australia) where, in the absence of an order for a jury such as that made in the present case, damages in all classes of civil action, including defamation, are assessed by a judge alone.

[99]

The jury in this case found that the publication of the "notice" in The West Australian newspaper meant, among other things, that the plaintiff "had been fraudulently improperly and without authority incurring debts and liabilities on behalf of Citizen Finance Sun Securities or CEC or pledging their credit". Absent a defence, the publication of this imputation in respect of a person described as "a property developer, promoter and marketer" called for a very substantial award of damages if damages in a defamation action are to serve their purpose of vindicating a plaintiff for an unjustified attack on his or her reputation. But the matters which the jury were entitled to take into consideration in this case went beyond the publication of this grave imputation to the large readership of The West Australian. First, the jury were entitled to find that the injury to the plaintiff's feelings, caused by the publication, was increased as the result of telephone calls from readers who called the plaintiff "a liar, a crook and a cheat". Secondly, the jury were entitled to find that the hurt to the plaintiff and the harm which he suffered were increased by the defendant's defence, persisted in until the end, that the defamatory imputations made against the plaintiff were true in substance and in fact. Triggell v Pheeney [59] is not to be taken as modifying in any way the principle that in a defamation action the jury are "entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the [plaintiff], and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff": Herald and Weekly Times Ltd. v McGregor [60] . Thirdly, the jury were entitled to find that the plaintiff had lost and would continue to lose considerable income as a result of the publication.

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Judgment (104 paragraphs)

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