41 As I have said, the plaintiff called evidence concerning the impact which the broadcasts had had upon him. Although the fourth defendant had the opportunity to cross-examine each of the witnesses called, the evidence was, for all practical purposes, uncontradicted.
42 When the plaintiff heard the first and second broadcasts, he said that he "was absolutely distraught" and "extremely upset". He felt concern about its impact upon his family, particularly his children. He said that he "couldn't believe what he was hearing". He said that he felt "extremely distressed", "embarrassed", and demeaned. He gave evidence that as a result of the broadcasts he was very concerned about his reputation and his good name. He said that his sleep was disrupted and that he would wake up in a sweat at night. He gave evidence that he had suffered other physical reactions such as headaches and migraines as well as hot spots on the top of his head. He gave evidence of attending social events with less frequency and becoming withdrawn in the wake of the broadcasts.
43 The evidence of the plaintiff was corroborated by that of his wife. She observed that he was "angry" and "upset" and that he was unable to sleep. She said that he would experience "cold sweats" and that he could not eat properly and that he had become depressed. She said that her husband had suffered from severe migraines with hot spots on the top of his head. She gave evidence that he had developed a "reflux peptic" reaction in his stomach. She also said that he had withdrawn socially.
44 The plaintiff gave evidence that there had been a reduction in the number of solicitors whom he had employed from 5 in 1996 to 2 or 3 in 1998. Furthermore, he said that "a number of clients withdrew instructions" following the broadcasts in August 1996. The evidence also reveals that the proportion of the plaintiff's Greek clients declined from about 80% of his overall practice in 1996 to its current level of about 50-55%.
45 Mr Babalis gave evidence of the "many, many, many people", including people he knew, who listened to the "Voice of Greece" at the time. The plaintiff's wife said that in the Marrickville Greek community every household had a Voice of Greece radio and that "thousands" of people received the Voice of Greece broadcasts.
46 In assessing the damages to be awarded in the present case I must pay due regard to the matters set out in Part 4 of the Defamation Act 1974, and to the authorities in which the general principles to be applied are enunciated. As Hayne J, with whom Gleeson CJ and Gummow J agreed on the question of damages, observed in Rogers v Nationwide News Pty Ltd (2003) 77 ALJR 1739, there are three purposes to be served by an award of damages for defamation. His Honour said that they are:
"(i) consolation and hurt caused to the [plaintiff] by the publication;
(ii) reparation for harm done to the [plaintiff's] personal, and in this case, professional reputation; and
(iii) the vindication of the [plaintiff's] reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the [plaintiff]; vindication looks to the attitudes of others" (at 1750).
47 A little later his Honour said:
First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury. (at 1751)
48 In Carson v John Fairfax & Sons Ltd (1992-3) 178 CLR 44, Brennan J said:
The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation….
The sufficiency of the amount awarded is not to be determined by
reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v Cassell & Co said:
"Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge."
…
Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and "a solatium" for the plaintiff's internal hurt, that is, for the complex of reactions that the plaintiff has experienced as the result of the publication and its external consequences.
…
The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be "shunned or avoided" is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.
Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant. In Broome v Cassell & Co Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said :
"It has long been recognized that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation."