Legal principles as to damages
73 General damages for defamation have been described by the High Court as addressing three overlapping purposes addressing personal hurt and distress (again, referred to in these reasons as hurt, or hurt feelings), reparation for harm done to reputation, and vindication of reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-1; confirmed in Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at [60] (see also [34]-[35], endorsing [60]). The respondents contend that there is no separate award for vindication. That is correct only insofar as vindication is a natural consequence of arriving at a decision to award damages, rather than a separate head of damages, as the High Court has made clear in both Carson and Rogers.
74 As also made clear in both Carson and Rogers, the first two aspects - hurt and reparation - focus on the wrong done. The third aspect, vindication, looks to the attitude of others and what is needed to signal the gravity of what has been wrongly said and its impact on social standing. It is essentially concerned with the community in which the person defamed lives and works, in the context of that person's prior social standing and the standing of the wrongdoer in conveying the imputation. Vindication has been described as requiring a sum sufficient to convince a bystander of the baselessness of the allegation made in the publication: see Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75], citing and applying Cassell & Co Ltd v Broome [1972] AC 1027 at 1071; see also Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; 237 FCR 33 at [446] and the authorities there cited and summarised.
75 As noted by White J in Hockey at [446(a)], citing Bristow v Adams [2012] NSWCA 166 at [20]-[31], damage to reputation need not be proved as it is presumed. The applicant's closing submissions stated that this presumption is practically irrebuttable, citing Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 at [32] per Lord Phillips of Worth Matravers MR, quoted in Bristow v Adams at [21]-[31] per Basten JA. It is worth noting, however, that Basten JA explicitly stated that it was not necessary to determine whether the presumption is irrebuttable under Australian law (at [29]), with Beazley JA (at [7]) and Tobias AJA (at [45]) agreeing with his Honour's discussion of the relevant case law. This issue also does not arise in the present case.
76 The pragmatic object of the presumption, as articulated in Jameel at [31], is to avoid an evidentiary contest as to whether or not the publication in fact damaged reputation. That reasoning does not preclude evidence being relied upon which has the effect of limiting the scope for the presumption to work, for example regarding the nature, location and extent of the publication and thereby its capacity to do harm.
77 There are issues in dispute between the parties concerning the cross-examination of Mr Hayson on the Sydney Morning Herald articles and related issues that require closer than usual consideration of the written defamation (libel) damages case of Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737. The English Court of Appeal had overturned the trial judge's award of damages, substituting that award with a higher amount: Dingle v Associated Newspapers Ltd [1961] 2 QB 162; [1961] 1 All ER 897. This was done by reason of several identified errors of principle. One such error concerned the use of prior publications of the same defamatory material to reduce the award of damages. On appeal to the House of Lords, the publisher contended (at 376-7) that the Court of Appeal had misapprehended the true basis of the trial judge's assessment of damages, characterising it as no more than seeking to isolate the damage done by the published article from that done by prior publications. Mr Dingle (at 383) contended that, rather, the trial judge impermissibly mitigated damages on the basis that prior publications of the same libel by other newspapers had already damaged his reputation.
78 The publisher's appeal in Dingle was unanimously dismissed by the House of Lords, which accepted the characterisation of impermissible mitigation found by the Court of Appeal. It is necessary to look at the different House of Lords judgments in Dingle to understand not only the prohibition on using prior publications of the same defamatory material to mitigate damage, but also the permissibility of isolating the effect of the sued-upon publication from any other source of damage to reputation. As will be seen from a close consideration of the speeches, there would have been nothing wrong with the trial judge in Dingle isolating the effect of the impugned publication from the other defamatory publications, if that was possible, but this was not what had in fact happened.
79 Lord Radcliffe (with whom Lord Morton of Henryton agreed) said:
(1) at 394-5:
I have come to the conclusion that what [the trial judge] intended to do was to mitigate the damages he was to award to [Mr Dingle] by the consideration that, though the "Daily Mail" had defamed him on June 16, the person it was defaming already possessed at that date a reputation tarnished to some extent by what had been said about him in the report and in its reproduction and, for all I know, embellishment in other newspapers. To do this is not merely to ascertain and isolate the actionable matter: it is to fix the damages arising from that matter by reference to similar (I do not say identical) allegations made by other persons in other publications.
In my opinion this is an inadmissible proceeding. There is more than one reason why it should not have been followed.
The first is that the newspaper extracts were put in evidence at the trial on an understanding as to their use, which excluded any reference to their contents for the purpose of mitigating damages.
(2) at 396:
It is, I think, a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident. A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law.
(3) at 397-8, in considering Harrison v Pearce (1858) 1 F & F 567; 175 ER 855:
In my opinion that decision can be rather a misleading guide to the assessment of general damages for defamation. There the defamatory words had been published in two ways, by newspaper advertisement and on placards. The plaintiff had suffered an ascertained loss of circulation of his newspaper and it was therefore necessary for the judge, in directing the jury, to remind them that the part of the circulation loss attributable to the placard publication should not be visited upon the newspaper publisher, who was not responsible for the placard. That, I think, is the only real point of the case. In so far as it asserts that a defendant is only to pay damages for the defamatory words he has himself used, not for defamatory words used by others, it is commonplace: but, for the rest, I think that it is best understood in relation to what we should today characterise as an item of special damage (though it was not so regarded then), and that it does not contain a full expression of any general rule for the ascertainment of libel damages where they are at large.
80 Lord Cohen also agreed with Lord Radcliffe, and said (at 405-6):
The appellants contend that the trial judge did not mitigate the damage on account of the report and the publication in other newspapers and they rely on the fact that he pointed out the importance of isolating the damage done by the appellants' publication from the damage done to the respondent by the report and by the printing of extracts from it in other newspapers. This, as Holroyd Pearce L.J. pointed out, [in the Court of Appeal [1961] 2 QB 162, 17] was the correct approach provided he was not mitigating the damages on account of injury done to the plaintiff by the publication of the report. … I do not think there was any evidence on which the trial judge was justified in treating [Mr Dingle's] reputation as tarnished.
81 Lord Denning said:
(1) at 410, emphasis in original:
Now comes the difficult point which I may state in this way: The "Daily Mail" are only responsible for the damage done to the plaintiff's reputation by the circulation of the libel in their own newspaper. They are not responsible for the damage done to the plaintiff's reputation by the report of the select committee or by the publication of extracts from it in other newspapers. If the judge isolated the damage for which the "Daily Mail" were responsible from the damage for which they were not responsible, he would have been quite right, see Harrison v. Pearce [(1858) 1 F & F 567; 175 ER 855]. But it is said that he did not isolate the damage. He reduced the damages because the plaintiff's reputation had already been tarnished by reason of the publication of the report of the select committee and of the privileged extracts from it in the "Daily Mail" and other newspapers. I think he did do this and I think he was wrong in so doing.
(2) at 411:
Newspapers in particular must not speak ill about people for the spice it gives their readers. It does a newspaper no good to say that other newspapers did the same. They must answer for the effect of their own circulation without reference to the damage done by others. They may not even refer to other newspapers in mitigation of damages.
82 Lord Morris of Borth-y-Gest said:
(1) at 414-5:
How, then, did the judge proceed to assess the damages for what he regarded as a damaging libel, which as to its most material parts was devoid of foundation? The appellants submitted that he awarded damages on the basis of isolating and excluding the privileged or justified parts of the article, and also of excluding from consideration any publications in other newspapers for which the appellants were not responsible.
A study of the judgment has, however, led me to the conclusion that though the judge isolated and excluded the privileged or justified parts of the article, he proceeded to assess damages on the basis that the actionable defamatory parts of the article merely added further blemish to a reputation which, having regard to all that had happened, had to be regarded as already blemished.
(2) at 417:
The judge referred to the case of Harrison v. Pearce [[(1958) 1 F & F 567; 175 ER 855]. It seems to me that the report of that case is somewhat too short to be helpful in declaring general principle. Though only general damages were claimed the ruling was concerned with what would today seem like an item of special damage. The jury were allowed, in assessing general damages, to consider whether loss of circulation of the plaintiff's newspaper resulted from what the defendant published in his newspaper: they were correctly told that they must disregard any loss of circulation which resulted from a publication of the same words by others but in quite a different manner. Other actions were pending against such others. The report does not record any observations on the subject of general damages for loss of reputation. A correct ruling would, in my view, have been that the defendant could not seek to mitigate damages by a plea that he had only published what others had also published.
83 It can be seen that while Dingle forcefully deprecates any attempt to mitigate damage upon the basis that prior publications of the same defamatory material had already tarnished reputation, it is permissible to isolate the damage of the sued upon matter from the damage caused by these other publications, where this is possible. That approach is reinforced by the decision of the Full Court of the Supreme Court of South Australia in Cornwall v Rowan [2004] SASC 384; 90 SASR 269 (at 794]):
The publication of the defamatory material by the television stations was an independent and separate tort. Generally speaking, each several tortfeasor is liable only for the damage caused by his or her own publication: Harrison v Pearce (1858) 175 ER 855; Dingle v Associated Newspapers Ltd [1964] AC 371 at 410. The difficulty arises where there are numerous publications to the same or similar effect. It may be impossible to determine which publication caused what damage. In those circumstances, the law regards the injury to the plaintiff as the joint result of each publication and each publisher will be liable for that damage.
84 The Full Court in Cornwall v Rowan then (at [795]-[796]) quoted from the Court of Appeal judgment of Devlin LJ in Dingle v Associated Newspapers at 186-7 and 188-9. These passages are to the effect that, while each publisher will be made responsible for the publication to its own circle of readers or listeners and not beyond, libel may spread beyond the immediate circle to the point where "no one can identify each separate source of infection". Secondly, mental distress due to repetition of the same libel may be such that the injury is indivisible; if there cannot be any meaningful separate assessment of the impact of different publications, each publisher who is a substantial cause of the injury must pay for the whole (subject now to statutory adjustment).
85 The damages assessment comes down to whether or not there is any capacity for divisibility, which turns on the facts in the case at hand, as established by the evidence.
86 In assessing damage, the Court is bound to take into account facts proved in support of a defence, even if the defence does not succeed, provided the facts pertain to the same "sector" of Mr Hayson's reputation as the defamatory imputations admitted or proven: Channel Seven Sydney Pty Ltd v Fisher [2015] NSWCA 414 at [96], citing Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 and appellate authority in New South Wales in which the application of the Pamplin principle has been accepted. If Mr Hayson's reputation in the relevant sector is proven to have been tarnished at the time of publication (excluding the parallel publications on the same topic), the damages assessment in relation to the publication sued upon might not encompass this prior tarnish insofar as the instant damage can be isolated from it.
87 Section 34 of the Defamation Act obliges the Court to ensure that there is an appropriate and rational relationship between the harm sustained and the amount awarded. Section 35 imposes a cap on damages for non-economic loss of $407,500 (as adjusted by gazetted declaration). This may be exceeded if and only if this court is satisfied that the circumstances are such as to warrant an award of aggravated damages.
88 Mr Hayson relies upon a table of comparative awards for damages, which provides a yardstick, but no more, for the award of damages in this case: see Rogers at [69]-[70]. I have had regard to those prior awards of damages to better appreciate the general landscape of such awards. I have also had regard to aspect of the recent New South Wales Court of Appeal decision that deals with damages: see KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28 at [141]-[151] per Payne JA (with whom Basten and White JJA agreed), especially at [146]-[147].
89 Section 38(c) of the Defamation Act requires the Court to take into account any recovery of damages for any other publication having the same meaning or effect, in this case a parallel publication by Nationwide News Pty Ltd in Sydney, the terms of settlement of which are before me on a confidential basis. In Chau v Fairfax Media Publications Limited [2019] FCA 185, Wigney J made a downward adjustment of damages of $25,000 to take account of such a separate publication and award of damages (at [359] to [360]).
90 In order to obtain an increase in the award of damages by reason of establishing an aggravated compensatory dimension to what has occurred then or since, usually but not necessarily associated with the hurt aspect of the damages awarded, Mr Hayson accepts that he must establish that any aspect of the conduct of the respondents relied upon was unjustifiable, lacking in bona fides or improper: see Hunt J in Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497C-E, explaining Triggell v Pheeney (1951) 82 CLR 497 at 514.5. Bickel was subsequently endorsed by the New South Wales Court of Appeal in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653-C and in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75C-D; see more recently Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; 56 VR 674; 361 ALR 642 at [66]. It is important not so lose sight of the fact that this basis for an increase in damages must always be compensatory in nature, not punitive, a distinction that is easy to forget in the adverse characterisation of the conduct relied upon. The focus must be on the damaging effect of the conduct relied upon, not as some sanction being imposed for that conduct: see Bauer Media v Wilson at [225].
91 Mitigation of damages that might otherwise be appropriate may be achieved in a number of different ways. First, and most obviously, are those expressly provided for in s 38 of the Defamation Act - apology, correction, and damages or compensation arising from other defamation involving imputations of the same meaning or effect. Only the last of these applies, by reason of the settlement of the parallel proceedings Mr Hayson brought against Nationwide News Pty Ltd. Other grounds for mitigation include criminal convictions or adverse findings in civil proceedings, and evidence primarily directed to an unsuccessful defence of justification or honest opinion, and relevant background context (known as the Burstein principle arising from Burstein v Times Newspapers Ltd [2001] 1 WLR 579; [2000] All ER (D) 2384; [2000] EWCA Civ 338 and discussed at some length by Wigney J in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; 359 ALR 564 at [32]-[46]).