Damages
43 The appellant challenged the Judge's award of damages as appellably excessive, her finding that the plaintiff's pre-publication reputation was good, and submitted that she had failed to take into account, in mitigation of damages, the substantial truth of its contextual imputations.
44 The Judge's statement that it was not necessary to adduce evidence that the plaintiff's pre-publication reputation was good is undoubtedly correct. In Scott v Sampson (1882) 8 QBD 491, 503 Cave J said:
"Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if … he is a man of no reputation."
45 The classic statement in this country is that of Sir Victor Windeyer in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 150:
"When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. … money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed."
46 The plaintiff was publicly defamed and was entitled to damages without proof of his good reputation in the absence of evidence that he had a bad one. In any event there was evidence, which the Judge accepted, that he had a good reputation. The plaintiff said that following the article he had been shunned during casual encounters and had difficulty in dealing with the local council and the National Parks and Wildlife Service. He used to receive many social invitations but afterwards there was a dramatic decrease. He had had something of a profile as a local historian having been involved in historical associations and published in local newspapers but he now sensed that others no longer wished to associate with him. His minor convictions, as the Judge held, were immaterial.
47 Section 47(b), which makes evidence that the imputation was a matter of substantial truth admissible in mitigation of damages, has no direct application where a defence of contextual truth fails despite proof that the contextual imputations were substantially true.
48 At common law evidence adduced in support of a plea of justification which fails and evidence in partial justification of a severable libel may be considered in mitigation of damages. In Howden v Truth and Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287, 290 Jordan CJ said:
"There can be no doubt that, at common law, in a civil action, a justification need not be to the whole, but may be to a part. If a man say that a certain neighbour of his was guilty of manslaughter and was also a thief, it is perfectly open to take a plea in justification of either charge only … It is, however, necessary that the part sought to be separately justified should be severable, and also that the pleadings should clearly indicate exactly what the severed part is which is sought to be separately justified."
49 The principle was applied in Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623, 627 by Jacobs and Manning JJA:
"… where a defence of justification to the whole libel is set up and is clearly proved as to a separate part or parts it is the duty of the judge to direct the jury not to give damages in respect of such part or parts … we can see no reason why a plaintiff should obtain damages in respect of … matter which was proved to be true and the publication of which was held to be for the public benefit.