Reputation
82 I have set out in full the transcript of the broadcast and the description by the defendant of the plaintiff. More needs to be said. Prior to the broadcast, the reputation of the plaintiff was of a highly respected, if not legendary, sportsperson, "a real gentleman" who exemplified the very highest attribute which Australians admire in their sporting heroes. There is significant unchallenged evidence to this effect. Mr McGaw's reputation is not challenged by Channel Seven.
83 The broadcast describes Mr McGaw as "a sporting superstar", "one of rugby league's favourite sons", "a State of Origin hero" and "a sporting great". It also describes him as "a television star" and "a household name".
84 Each of these descriptions is deserved. The evidence in this case is irrefutably to that effect.
85 The sporting prowess of the plaintiff was a matter of evidence. He played first grade rugby league for Cronulla Sharks from 1984 to 1992, for Penrith Panthers in 1993 and for South Sydney in 1994 and 1995. He played representative football representing New South Wales in State of Origin from 1987 to 1991 and Australia from 1988 to 1991. He was so well respected and so well thought of in terms of his sporting prowess and reputation that he was invited back, after his retirement, to play in a game called the Legends of League State of Origin, between New South Wales and Queensland, part of which was broadcast on Today Tonight in the episode in question.
86 A section of that game was shown in which Mr McGaw and Mr Mal Meninga engaged in an altercation. The tape discloses that Mr McGaw was seemingly hit in the jaw by Mr Meninga's forearm during the course of a tackle and responded. Mr Meninga gave evidence in the proceedings. He described the reputation of Mr McGaw as at the end of 2002 in the following way:
"He's highly respected. Not only for his ability on the field but certainly all the things that he used to do off the field. Again, I mention his community work, he gave himself readily all the time to, you know, whether charity or to school appearances or to any presentations the rugby league world took him to."
87 He described his reputation as a player in the following way:
"Mark was a fierce competitor, very intent on the football field, but certainly a great player. I had a lot of respect and admiration for his ability off the field, he was a fantastic bloke, I got on with him really, really well, you know, gave himself very clearly in a lot of community work and we struck up a pretty good friendship.
Q. Did you maintain any contact with Mark McGaw after you finished your playing career?
A. Every now and again in community work or, you know, in charity rugby league games and things like that where we obviously used to play football and raise funds for different charities, different charities around the Eastern [Sea] Board of Australia."
88 As to the incident between he and Mr McGaw, he made clear that this was not an incident that was typical of Mr McGaw's rugby league career. Asked of his recollection of the incident, Mr Meninga said:
"I've since seen the video, so I've seen - my recollection has been heightened a fair bit. But, you know, the charity games are in fun. We were raising a lot of money for different charities, Sydney Hospitals and things like that. It's not a high-class game of rugby league; it's a very enjoyable game. I remember, you know, at times to lighten the load, you know, this particular incident was designed around that fact where Mark put a big hit on me, I went towards him, I landed on top of him, striking his head with my elbow unfortunately, and obviously that struck a chord with Mark a little melee occurred after that and it soon broke up and we got on with life...it was just a decision by both the teams to put a little bit of biff on really. It was a lighthearted affair, just a pretend game in retrospect. It's just to heighten the enjoyment, the fun for supporters."
[For the uninitiated, "big hit" is a lawful but tough tackle.]
89 This is consistent with the evidence that the incident shown was a deliberate course of conduct engaged in by both the teams for 'entertainment' purposes. There can be little doubt that within rugby league circles, at least prior to the broadcast, Mr McGaw's reputation as a sportsperson was amongst the top rugby league players in Australia in this generation and as a person was second to none. His reputation went beyond that of rugby league.
90 As a consequence of his sporting prowess and his high regard he was chosen as a star of a program on national television. This program was called "The Gladiators" and Mr McGaw played the role of "Hammer". Indeed, the instant broadcast described him as "a television star" and "a household name". The Gladiators was a national television program, which took Mr McGaw's reputation well beyond that of the rugby league playing areas of Australia.
91 His reputation in rugby league, which would have been greatest in New South Wales, Queensland and the ACT, was augmented by his role in the Gladiators which spread his reputation and renown well beyond those areas. He appeared in TV commercials and was regularly involved in charitable institutions for which and by whom he was sought after. The evidence in this proceeding discloses that he was involved with and a contributor to the Starlight Children's Foundation, Camperdown Children's Hospital, Royal Prince Alfred Hospital at Randwick, celebrity golf and tennis days for benevolent concerns, variety club fundraisers, rotary club presentations, involvement with aboriginal children, and country New South Wales causes.
92 The level of commitment of his own time to benefit those less well off than himself bespeaks a person who rightly gained a reputation of the highest possible order. The plaintiff's submission describes him and his activities as all having "contributed to the plaintiff generating a reputation, across numerous and diverse walks of life in Australia, as a man of generous spirit and friendly temperament, and as one of those rare individuals who despite fame and success retained an earthy authenticity and outward perspective on the world." I accept this submission as accurate in light of the evidence before the Court.
93 Apart from Mr Meninga, Mr Steve Rogers (since deceased) and his wife, Mrs Ingrid Rogers, gave evidence, all to the same effect. Evidence was given as to the reputation of Mr McGaw by the former leader of the New South Wales Opposition, Ms Kerry Chikarovski, Mr Alan Jones of Radio 2GB and a number of others. The effect of the evidence was the same. He was described by Mr Jones, which description I accept, as being "very highly regarded; impeccably courteous; always well presented. His demeanour was always sound, he wasn't a man given to course language or delivering insults. A courteous gentleman." He was described by Ms Chikarovski in the following terms:
"Mark was known to be a good bloke, a very generous individual. He was generous with both his time and his commitment to the community, particularly to young people; he was very well regarded. I never heard a bad word against him."
94 His father, a former police officer, and his mother, a former nurse, described his celebrity status by recalling what it was like being out with him, especially in the Cronulla area. In his mother's words:
"It was almost embarrassing at times…we were out, people coming up and chatting to him and asking him for autographs. Yes, he was very popular…his popularity just escalated, he just became more known throughout Australia. He got mail from everywhere. Fan mail from Perth, New Zealand, everywhere. It [the Gladiators] escalated his popularity."
95 That reputation translated into Mark McGaw's circumstances in a number of ways. Firstly, he was sought after for a number of charity events, which he readily accepted. Ultimately, after retirement from football, he entered business as a physical trainer and is generally in the fitness industry. Those business interests largely depended upon his reputation and recommendation by word of mouth.
96 A personal trainer, or person offering services as a personal trainer, needs to invoke confidence, a feeling of security and safety in clients and have a reputation that would allow people to put themselves in his/her hands and in close quarters. A reputation as a person who has inflicted on someone close to him injuries of a kind that require that person to be hospitalised or a reputation as a person generally of dangerous domestic violence is inconsistent with the successful continuation of such a career.
97 For understandable reasons given the circumstances of this case and the state of his business at the time of the trial (his business was in administration at the time of the trial), no economic loss is claimed on behalf of the plaintiff and no economic loss will be taken into account. Nevertheless, this aspect is relevant, not because of any head of damage for economic loss but because the effect of the defamation and injury to reputation that occurred from this broadcast was felt in every aspect of Mr McGaw's life and being.
98 The evidence, which I accept, is that he was devastated. He was shunned in the Cronulla area and beyond. He became reclusive and depressed. There was a significant grapevine effect from the broadcast, which was described in evidence and was not confined to the Sydney region. He was the subject of vituperative "humour" on the basis of this story and his consequent reclusiveness. Mr McGaw was unable to attend charity functions because of the way in which he felt and invitations to charity functions were withheld. In some instances, eg, the 2003 Cronulla Sharks Immortals Night, the effect of the broadcast on his own personality was such that Mr McGaw, even though he was invited, declined to attend. The evidence was that the effect on Mr McGaw was immediate in terms of his personality and emotions and that it continues. Likewise, the severe distress suffered by Mr McGaw from the outset was, at the time of trial, continuing.
99 The effect of the broadcast on the plaintiff cannot be overestimated. It was described in submissions of the plaintiff as immense. Frankly, on the evidence before the Court, that seems an understatement. Perhaps the best description is that given by Channel Seven in the broadcast when it described Mr McGaw's public life as "now in tatters". Channel Seven was referring to his plea of guilty, but the description better suits the effect of the broadcast itself. The only qualification one would put on that description is that, on the evidence before the Court, it was not only his public life that was destroyed. To borrow a phrase from the criminal law, it is always possible to imagine a worse case, but the imagination of a judge does not determine whether the objective seriousness of behaviour is in the worst case category. In this instance it is difficult to imagine a defamation that would have more profound or worse effects on a plaintiff than this one.
100 The Court is injuncted to take into consideration the general range of damages for non-economic loss in personal injury awards: s 46A Defamation Act 1974. By legislative requirement that general range takes into account the statutory regulation of awards in this State.
101 It is of course impossible to truly compare personal injury cases and general damages associated therewith and an assessment for damage arising out of a defamation because they compensate in such different ways and compensate such different elements: Harrigan v Jones [2001] NSWSC 623 at [153].
102 Nevertheless, even though damages are at large, the assessment of those damages must necessarily be constrained by reference to the relevant harm suffered (see s 46(2) of the Defamation Act) and the general range of damages for non-economic loss in personal injury awards.
103 Section 46(2) of the Defamation Act provides:
"Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm."
104 Section 46A of the Act provides:
"(1) In determining the amount of damages to be awarded in any proceeding for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.
(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)."
105 There are a number of aspects to this provision which require comment. Firstly, s 46A(2) does not expressly limit the amount of damages that may be awarded. On one view, the subsection requires only that the general range of damages for non-economic loss in personal injury be taken into consideration. While it is clear that the range in personal injury awards must include statutory limits that are now imposed, those statutory limits are, pursuant to the provisions of s 46A, a consideration only. This is to be expected. While general damages in a personal injury case have an upper limit, that upper limit has been set in circumstances where, in those worst cases, it is most likely that there will be significant damages for economic loss, and further significant damages to compensate for other matters such as extended care arrangements.
106 Despite or because of that imprecision in language and the difficulties of comparing dissimilar situations, s 46A has been the subject of significant authority. It has been accepted, and for the purpose of the present proceedings I too accept, that the provisions of s 46A(2) of the Defamation Act require any judgment to be no more than the limits set by statutes for general damages in personal injury cases. I also adopt the principle adumbrated in a number of judgments, with which I will shortly deal, that the range between worst case and best case must fit within the statutory regime for personal injury damages, and that a comparison should be made with other defamation awards of recent time.
107 The High Court has provided the necessary guidance in relation to interpretation of this statutory provisions, in the following terms:
" [72] No doubt the purpose of comparing awards for defamation and awards in personal injury cases is to ensure that what Diplock LJ called "the scale of values of the duel" is not adopted. A person's reputation is not to be valued more highly than life or limb. If an award of damages for defamation is greater than the amount that would be allowed for the non-economic consequences of the most serious physical injuries with permanently disabling consequences, it may be evident that the amount awarded for defamation is manifestly excessive. In this way, the comparison which s 46A requires limits awards for defamation. What it does not do, however, is identify where, within the outer limits of proper awards, a particular case should find its proper level. It does not, for example, say that some or all forms of defamation should attract awards less than (or greater than) an award that might be made for (say) the loss of a limb.