Supreme Court of NSW|1996-12-10|Before: Knox CJ, Starke JJ, Kitto JJ, Higgins JJ, Sheller JA

Robert Clark v Leonard Ainsworth [1996] NSWSC 610 (10 December 1996)

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CATCHWORDS: Defamation - Whether failure to apologise is relevant to and capable of being a component of general compensatory damages: Carson v John Fairfax & Sons Limited ; distinguished.

SHELLER JA: I have had the benefit of reading the judgment prepared by Abadee AJA. I agree with his Honour's reasons but would add the following reasons of my own.

In Herald and Weekly Times Limited v McGregor [1928] HCA 36; (1928) 41 CLR 254, Knox CJ, Gavan Duffy and Starke JJ regarded it as open to the trial judge to instruct the jury that they were entitled to take into consideration in connection with the issue, whether a defendant had not only libelled a man to begin with but continued right up to the trial and through the trial to assert the truth of what he had said, assuming they found that what he had said was not true, in estimating the amount of damages for the wrong done to him: 262. At 263 their Honours said:

"In point of law, the learned trial judge would have been right if he had instructed the jury that in assessing damages they were 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 respondent, 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."

In Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 the direction complained of was that the jury might take into consideration the conduct of the defendant right from the start to the finish, including the trial. The defendant's counsel objected that there was nothing in the conduct of the trial which could be called aggravation, but the trial judge refused so to rule as a matter of law; 509-510. Two distinct questions arose upon the direction complained of concerning damages. The first was whether there was ground for treating the defendant as taking up a position at the trial which the jury could reasonably regard as what his counsel called `aggravation'. The second was whether the direction could be supported in point of law. Upon the first the majority of the Court did not think that it was not open to the jury to regard the defendant's attitude as an aggravation of damages. In dealing with the second question, in a joint judgment, Dixon, Williams, Webb and Kitto JJ acknowledged that in point of principle, much perhaps might be said for the view that the ultimate matter for consideration in defamation proceedings was the character of the tort and the quo animo and other circumstances of its commission, and that subsequent events were to be used only as evidentiary of the defendant's then state of mind and conduct: 513. That was not the view of the law taken by the majority in Herald and Weekly Times Limited v McGregor. Isaacs and Higgins JJ, who dissented, "adopted the view that failure to prove a legitimate defence raised bona fide could not expose the defendant to an award of greater damages and that the conduct of the defendant after the commission of the tort up to and including the trial could be taken into account only as affording evidence of malice either at the time of publication or at a later date." The majority of the Court did not so limit the use of such facts or material and appeared to have accepted as applicable to defamation the principle that the plaintiff had a right to give evidence to show that the charge was not one lightly made and soon abandoned, but that it was seriously made and persevered in to the last moment.

"It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times v McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable."

In Australian Consolidated Press Limited v Ettingshausen (unreported) 13 October 1993, Court of Appeal, Clarke JA said at 25 that the decision in Triggell v Pheeney had been interpreted by courts in New South Wales as permitting conduct by the defendant subsequent to publication to be taken into consideration on the issue of aggravated damages, only if that conduct was found by the jury to lack bona fides or otherwise to be improper or unjustifiable. His Honour referred to Andrews v John Fairfax and Sons Limited (1980) 2 NSWLR 225 at 243 per Hutley JA and Mirror Newspapers Limited v Fitzpatrick (1984) 1 NSWLR 643 at 660 per Samuels JA. In the first of these cases, Hutley JA said that the failure of defendants to retract or apologise had been traditionally regarded as a matter of aggravation, but that it was only a failure to apologise which the jury was entitled to regard as unjustified which would support the award of aggravated damages.

In Carson v John Fairfax and Sons Limited [1993] HCA 31; (1993) 178 CLR 44 at 66, the majority of the High Court pointed out that, under s46 of the Defamation Act 1974, it was necessary to confine an award of aggravated damages to what was truly compensatory by reason of the exclusion of exemplary damages. Their Honours continued:

"In determining what is truly compensatory in that context, regard should be had to what was said in the joint judgment in Triggell v Pheeney at 513-4. But, even then, we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of an apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury."

This dictum led Levine J to the conclusion that the "mere absence of an apology" was not and could not be a component in an award of general compensatory damages to a plaintiff.

If the defendant's improper or unjustifiable conduct after publication of the matter complained of makes worse the injury the plaintiff has suffered, the compensatory damages have been described as aggravated damages. In Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 at 1221, Lord Devlin said:

"It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be specifically proved. ........(the plaintiff) can invite the jury to look at all the circumstances, the inconveniences caused to him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle to award a round sum based on the pecuniary loss proved. Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff."

Only unjustifiable or improper conduct by the defendant can be taken into account in giving aggravated damages. The respondent submitted that a defendant's conduct in failing to apologise could increase the damages only if it was shown that it was improper or unjustifiable or demonstrated lack of bona fides.

However, the courts have not adopted so precise an analysis. In Triggell v Pheeney a distinction was made between evidence which suggested that the matter complained of was not lightly published and was persevered in to the last moment, so increasing the area of the publication and the effect of the libel, and evidence of unjustified conduct which aggravated the injury done to the plaintiff. On the one hand the harm from the original publication may be prolonged and intensified by the absence of apology, on the other additional injury may result from the defendant's conduct after publication. In Broome v Cassell & Co [1972] UKHL 3; [1972] AC 1027 at 1124, Lord Diplock classified damages recoverable for those torts for which damages are "at large" under three heads:

(1) "Compensation for the harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, ........ upon injury to reputation";

At 1125-6 his Lordship said that the tort of defamation had special characteristics which might make it difficult to allocate compensatory damages between head (1) and head (2) and continued:

"The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for `aggravated damages' under head (2). Again the harm done by the publication, for which damages are recoverable under head (1) does not come to an end when the publication is made. As Lord Atkins said in Ley v Hamilton (1935) 153 LT 384 at 386: `It is impossible to track the scandal, to know what quarters the poison may reach.' So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread. I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial, as in Ley v Hamilton, extends the quarters that the poison reaches. The defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages under head (1). In this sense it may be said to `aggravate' the damages recoverable as, conversely, the publication of an apology may `mitigate' them. But this is not `aggravated damages' in the sense that the expression was used by Lord Devlin in head (2). On the other hand the defendant's conduct after the publication may also afford cogent evidence of his malice of the original publication of the libel and thus evidence upon which `aggravated damages' may be awarded under head (2) in addition to damages under head (1)."

The appellant relied upon this distinction to submit that the failure to apologise was relevant to the claim for compensatory damages although not part of his case for aggravated damages.

In Coyne v Citizen Finance Limited [1991] HCA 10; (1991) 172 CLR 211, Toohey J gave the principal majority judgment with which both Dawson and McHugh JJ agreed. At 237 Toohey J said that mere persistence, or even vigorous persistence in a bona fide defence, in the absence of improper or unjustifiable conduct, could not be used to aggravate compensatory damages. His Honour continued:

"It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it: Herald and Weekly Times Ltd v McGregor. I take this to be the sense in which Lord Diplock suggested that `persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages': Broome v Cassell & Co. But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v Pheeney, does not warrant an award of aggravated damages to the plaintiff."

The harm done by the publication for which normal compensatory damages are recoverable does not come to an end when the publication is made, even though no improper or unjustifiable conduct by the defendant may be demonstrated. In assessing normal compensatory damages the jury may properly take account of the extent of the hurt to the plaintiff's feelings which flows from the absence of apology. In Coyne at 241, McHugh J said that Triggell v Pheeney 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 every 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 would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff: Herald and Weekly Times Limited v McGregor at 263". In Carson at 109, McHugh J said that the purpose of s46 was to prevent the plaintiff from receiving damages which do not have a restorative effect. "Thus, damages to vindicate the plaintiff's reputation are damages for relevant harm, and so are damages for the failure to apologise. And, in some cases, aggravated compensatory damages which include an amount for punishment or deterrents are `damages recoverable in accordance with the common law ...... for relevant harm': (s46 (2))."

The passage in the majority judgment in Carson, upon which Levine J relied, came at a point where their Honours were dealing with the respondent's contentions that the trial Judge's directions on aggravated damages were inadequate (64). At 65 their Honours said that "the directions given on the subject of aggravated damages raise a more fundamental problem which was not explored in depth in the argument in this case." It was of the utmost importance that juries should be instructed, in light of the terms of s46, that any award of aggravated damages must be confined to what is truly compensation for the relevant harm and must not include any element of punitive damages. "Otherwise an invitation to award aggravated damages by reference to the defendant's conduct before and at the trial may be understood as an invitation to award punitive damages." It was in this context that their Honours made the remarks that they did about an apology. They were speaking about aggravated damages. I do not understand them to have been over-ruling the principle stated in Herald and Weekly Times Limited v McGregor at 263 and reiterated in Coyne v Citizen Finance Limited that the failure to apologise could be taken into account as something which extended the vitality and capability of the publication to cause injury to the plaintiff. In Carson the majority was concerned to ensure that the jury should not, through want of direction, fail to confine an award of aggravated damages to what was truly compensatory. They were not concerned with the relevance of the absence of an apology, to normal compensatory damages. In Carson at 78, Brennan J, as he then was, observed, although again in the context of aggravated damages, that the jury were entitled to assess damages on the footing that, "by failing or refusing to publish any retraction or apology until 22 December 1987, and then only in guarded terms, the defendants were continuing to assert or not fully to withdraw the imputations found to have existed in the first article."

In Rantzen v Mirror Group Newspapers Limited [1993] EWCA Civ 16; [1994] QB 670, one ground of appeal to the English Court of Appeal, against the verdict in favour of the plaintiff in an action for libel, was that the trial Judge had invited the jury to take into account in assessing damages the fact that the defendants had not apologised to the plaintiff; 673. In the course of discussing this ground of appeal, the Court said at 683:

"In our judgment the relevance of the absence of an apology depends upon the facts of the case. In Morgan's case [1971] 1 WLR 1239 the defence was that the words did not refer to the plaintiff and could not be understood to refer to him. The absence of an apology was therefore explicable. In other cases, though the absence of an apology may be no proof of malice, it can increase the injury to the plaintiff's feelings."

Levine J said that he derived some support for his conclusion from the summing up of Hunt J (as his Honour then was) in Sergi v Australian Broadcasting Commission (27 June 1985) in which his Honour said:

"I should also add that you must not use the defendant's failure to publish an apology as a matter which increases the damages otherwise payable to the plaintiff. That would be quite wrong. The defendant took the attitude, obviously enough, that nothing it had published demanded an apology because it had not defamed the plaintiff, it had done nothing for which an apology was appropriate. You may not agree with that view, but the defendant has not acted improperly or unjustifiably in declining to publish an apology."

"You may take into account in assessing the injury to the plaintiff's feelings his disappointment that no apology was published, but you must not increase his compensation in any way because you disagree with the attitude which the defendant took or because you feel that the defendant has acted wrongly, despite Mr Evatt's obvious plea to you in his final address that you should do so."

The summing up was consistent with the distinction between a defendant's failure to apologise as a factor in a claim for aggravated damages, which would require the plaintiff to particularise and prove that the failure involved or was part of a course of unjustifiable or improper conduct by the defendant, and the failure to apologise as contributing to the plaintiff's hurt caused by the persistence in and continued spread of the matter published.

In my opinion interrogatory 9 went to a matter which was relevant and an order should have been made requiring the respondent to answer it.

SIMOS AJA: I agree with Sheller JA and Abadee AJA.

ABADEE AJA: The appellant in an amended statement of claim claimed damages for defamation against the respondent for words spoken by him on the "7.30 Report". He claimed general compensatory damages and aggravated compensatory damages. Under the heading "Particulars of Aggravated Damages" the plaintiff did not particularise any failure on the part of the respondent to apologise. A defence and cross claim were filed by the respondent. The respondent in its defence did not plead mitigation of damages by reference to any apology under Pt 67 r 18(2)(c).

Subsequently the appellant sought to administer the following interrogatory of the respondent.

"9A. Has the defendant at anytime after publishing the material apologised to the plaintiff for publishing the matter complained of?".

9B. The defendant declines to answer this interrogatory on the ground that it does not relate to any issue between the parties".

The appellant sought orders from Levine J including an order that the respondent provide a proper answer to interrogatory 9.

In a reserved judgment his Honour held that the respondent was not obliged to answer interrogatory 9 on the ground that the mere absence of an apology "is and cannot be a component in an award of general compensatory damages to the plaintiff" and was therefore irrelevant to the issues between the parties.

The ruling is said to be one of importance for the purposes of defamation law.

The matter has come to this Court by leave. On the appeal, Mr Evatt for the appellant submitted that an apology is and always has been relevant to general compensatory damages. Indeed, he submitted (as he had submitted to Levine J), that in the absence of the plaintiff contending that a failure to apologise aggravates damages by reason of its being improper, unjustifiable and lacking in bona fides, a plaintiff is nonetheless entitled to rely upon the mere act of failure to apologise as a component of general compensatory damages.

It is a matter perhaps of some regret that the issue has come before the Court in this manner without the benefit of a trial when the question could be properly and fully ventilated in the context of the actual issues and circumstances. Nevertheless, that said, it is necessary that the Court give its decision in relation to the ruling appealed from.

For the respondent it has been submitted that the matter of a lack of apology can only be a matter of aggravation and not otherwise. It was said that it had no other relevance, and certainly no place in the context of general compensatory damages. Indeed, it was argued that the absence of an apology could have no relevance to general compensatory damages at all.

Levine J based his ruling on a passage appearing in the majority judgment in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44. The passage quoted by his Honour appears in the majority view at 66 and I quote:

"But, even then, we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of an apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury".

It is this passage that was relied upon by his Honour to support his general proposition.

Mr Evatt has submitted that what the majority said in Carson is properly to be considered in the context of the issue being considered by the High Court and is not a decision that has the effect stated by Levine J, or that is otherwise supportive of his general conclusion. He submits that when one considers the question to which the quoted remarks were addressed they should be understood as going no further than observations in the context of aggravated compensatory damages. He submits that the passage has no applicability outside such issue and does not touch upon the absence of an apology in the context of general compensatory damages.

In Carson the question that arose for consideration was whether the jury's verdict of damages was excessive. In particular the High Court was asked to consider the fact that the jury were invited to take into account in the context of aggravated compensatory damages the absence of an apology by Fairfax in respect of the first publication at any time before action was brought (at 64 and also 67). The majority's conclusion that the mere absence of an apology could not aggravate damages was made in the context of this issue and not in the context of general compensatory damages. No argument appears to have been advanced that the defendant's failure to apologise could not further be considered as being relevant to general compensatory damages. The present issue was not raised discretely or in terms. Indeed, the issue of the relevance of an apology to aggravated compensatory damages itself was one raised in the context of a notice of contention. Thus it was submitted by the appellant that all that was held in Carson was that the mere absence of an apology could not aggravate damages, and that the decision in no way affected the principle that the fact of failure to apologise could nevertheless be a component of general compensatory damages.

Indeed, in the more recent decision of this Court in Australian Consolidated Press Limited v Ettinghausen (CA 13 October 1993, unreported) a similar question to that involved in Carson arose for consideration. In this case the jury had been directed that the failure to apologise was relevant only to an award of aggravated compensatory damages and the only issue on appeal was whether there was evidence of a relevant lack of bona fides or impropriety on the part of the defendant. No question appears to have arisen requiring final decision as to whether the failure to apologise could be regarded as a component of general compensatory damages.

To this extent Carson and Ettinghausen may be seen as decisions on the taking into account in the context of aggravated compensatory damages of the absence of an apology. They are not decisions on whether in assessing general compensatory damages, the fact that no apology was made can be taken into account.

"As some of the judgments in the High Court in Carson v John Fairfax & Sons Limited [1993] HCA 31; (1993) 67 ALJR 634, emphasise there is an important place, even in an award of compensatory damages for defamation for regard to the conduct of the defendant".

The Chief Justice also agreed with the reasons of Clarke JA who after referring to the three purposes to be served by an award of damages for defamation, being consolation for the personal distress and hurt, reparation for harm to reputation and vindication of that reputation (Carson at 60-61) then proceeded to state that aggravated compensatory damages could only be awarded in certain circumstances, and that insofar as they are regarded as being compensatory and not punitive, s 46(3)(a) was not relevant to a claim for aggravated compensatory damages.

His Honour concluded that there is or may be an overlapping of general and aggravated compensatory damages which required some clarification. His Honour referred to the decision of the High Court in Herald and Weekly Times Limited v McGregor [1928] HCA 36; (1928) 41 CLR 254 at 263 and quoted from what the Court said at 263:

"In point of law, the learned trial Judge would have been right if he had instructed the jury that in assessing damages they were 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 respondent, 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".

This statement it was said by his Honour, was an application by the High Court of what Lord Esher MR had said in the classic authority Praed v Graham (1889) 24 QBD 53. His Lordship there said at 55:

"... the jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his (the defendant's) conduct has been before action, after action and in court during the trial".

The statement of the majority in McGregor was relied upon by Mr Evatt in support of his proposition that a plaintiff is entitled to rely upon the mere fact of a failure to apologise as a component of general compensatory damages. Indeed, Levine J appears to have accepted that there was support in that statement for Mr Evatt's proposition. His Honour said (AB 69):

"Support for this proposition is founded in a general statement that it has `always been the case' and upon statements in Gatley, on Libel and Slander, 8th Edn., paragraph 1451 to the effect that the amount of damages being peculiarly the province of the jury will be governed by "all the circumstances of the particular case". The learned editors assert that the jury is entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication and "the absence or refusal of any retraction or apology ...". The editors cite in support of that proposition a statement of Gavan Duffy J in Herald & Weekly Times Limited v McGregor [1928] HCA 36; (1928) 41 CLR 254 at 263".

Levine J in concluding that the "mere absence" of an apology is and cannot be a component in an award of general compensatory damages to the plaintiff added that the cited paragraph from Gatley should be viewed in the light of the authority of the High Court in Carson (by which I take it to mean the quoted passage from p 66) in this State.

In Ettinghausen Clarke JA in referring to the passages from McGregor and Praed, did not consider that the matters referred to could only be taken into account in determining whether aggravated compensatory damages should be awarded. Indeed, he considered that the reference to the extent of publication and the potential of the identified factors to increase the capacity of the libel to cause injury to the plaintiff suggests that the majority in McGregor were discussing general compensatory damages and not aggravated compensatory damages. That this seems to me to be the case is also supported by the view that at the time of the decision in McGregor there was perhaps some blurring between the different types of damages still to be found in the authorities prior to Cassell & Co Limited v Broome & Anor (1972) AC 1050 at 1071.

The decision in McGregor is a decision in relation to a general compensatory damages case. The suggestion that compensatory damages might in turn be further classified into two categories namely being, general compensatory damages and aggravated compensatory damages did not appear to be recognised. The two classes of compensatory damages appear to more clearly have emerged at least in Australia albeit not expressly in terms, in Trigell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at pp 513-514. That decision has been interpreted by courts in New South Wales as permitting conduct by the defendant subsequent to the publication to be taken into consideration on the issue of aggravated compensatory damages, only if that conduct is found by the jury to lack bona fides or otherwise to be improper or unjustifiable: see Andrews v John Fairfax & Sons Limited [1980] 2 NSWLR 225 per Hutley JA at 660. In Andrews the trial judge left to the jury as a matter of aggravation the defendant's failure to retract or apologise. As in Carson and Ettinghausen it does not appear to have been left as a matter going to general compensatory damages or as a component of such damages, perhaps because the trial judge was not asked to do so. In Mirror Newspapers Limited v Fitzpatrick (1984) 1 NSWLR 643 Samuels JA at 660 expressed the view that the absence of an apology is "an item of conduct which falls within the much quoted statement of Lord Esher in Praed at 55".

Again in Ettinghausen Clarke JA considered that Andrews and Fitzpatrick stood as examples of the proposition in Trigell that the defendant's conduct subsequent to the publication of the libel cannot be used as a basis for an award of aggravated compensatory damages unless it was unjustifiable. However, I do not see the cases as being decisions that conduct represented by a mere failure to apologise cannot be used as a component in general compensatory damages, merely because it cannot be taken into consideration on the issue of aggravated damages unless the absence of apology is found to be improper, unjustifiable or lacking in good faith.

Clearly injury to the plaintiff's feelings caused by the publication is relevant to an assessment of general compensatory damages. There is no reason why the jury should be precluded from using facts that have come to light since the publication which include those relevant to the assessment of general compensatory damages.

"If it is correct to award damages for the hurt to the plaintiff's feelings which is caused by the libel and if it is correct to take account of the anxiety in the litigation then it is difficult to understand why the defendant's conduct following the publication, and including its conduct during the trial, could not increase the hurt and anxiety suffered by the plaintiff, whether or not the defendant's conduct is unjustifiable. For instance, if, as is clear, an apology may mitigate the damage why should not the absence of apology be regarded as a factor increasing the hurt suffered by the plaintiff (cf Fitzpatrick at 660").

As in Carson, Ettinghausen was an appeal against damages. The point raised by Clarke JA was again not the discrete issue calling for resolution as it is in this case. His Honour (at 29) considered that there was powerful support for the view that a jury may be directed that it can take account of a failure to apologise in awarding general compensatory damages.

With respect I do not see why the jury would not be entitled, depending upon the evidence to find that the harm suffered by the plaintiff could be affected or indeed increased by the defendant's conduct in failing to apologise. Injury to the plaintiff's reputation could be increased by readers or listeners who may have anticipated an apology. So might likewise injury to feelings be increased. Indeed, the failure to apologise itself could well in some cases further injure the plaintiff's feelings or cause him disappointment. An apology may reduce harm or hurt suffered by the plaintiff. Absent such an apology the harm or hurt may be increased. It is clear since Broome that the jury are entitled to take into account the subjective sufferings of a plaintiff and if such are increased by a mere failure to apologise, it is difficult to see why the general compensatory damages should not be increased to reflect this. Such involves not aggravated compensatory damages but general compensatory damages. What I have said would seem to be consistent with the approach of McHugh J in Coyne v Citizen Finance Limited [1991] HCA 10; (1990-1991) 172 CLR 211 at 241 and with his Honour's dissenting approach in Carson at 109 where his Honour said:

"The use of term "harm" in s 46 is curious. It is not a term of art in the law of defamation or the law of torts. But in the context of a section which provides that damages are recoverable in accordance with the common law, it must include such matters as effect on reputation, hurt to feelings, distress, worry, humiliation, fear, anger and resentment as the result of defamation. The purpose of the section is to prevent the plaintiff from receiving damages which do not have a restorative effect. Thus, damages to vindicate the plaintiff's reputation are damages for relevant harm, and so are damages for the failure to apologise. And, in some cases, aggravated compensatory damages which include an amount for punishment or deterrence are `damages recoverable in accordance with the common law ... for relevant harm' (s 46(2))."

Indeed some support is to be also found in the reasoning of Brennan J (as he then was) in Carson at 71.

I do not find it necessary to examine the cases relied upon by Mr Evatt including such cases as Kelly v John Fairfax & Sons Limited (CA 28 February 1995, unreported); Lever v Murray (CA 26 November 1992, unreported) and Sergi v Australian Broadcasting Commission (CA 27 June 1985) where directions relevant to the issues formulated in those particular cases were given as to the use that could be made of the defendant's failure to apologise. However, I would observe that in Sergi, in the paragraph immediately below that quoted by Levine J (at AB 70) support for the plaintiff's proposition is to be found. Hunt CJ at CL commenced that paragraph saying:

"You may take into account in assessing the injury to the plaintiff's feelings his disappointment that no apology was made ...".

Mr Blackburn for the respondent submitted this sentence reflected error. I do not agree. The sentence and the paragraph in which it appears did not refer only to aggravated compensatory damages. His Honour in the paragraph which contains the sentence, appears to be saying that the failure to apologise was relevant to general compensatory damages. Next there is some further support for the argument advanced by the appellant to be found in the decision of the Full Federal Court in Humphries v TWT Limited [1993] FCA 577; (1994) 120 ALR 693 at 699 where the court having referred to Carson on one view considered that a failure to apologise was relevant to general compensatory damages "even in the absence of circumstances of aggravation".

In my opinion a mere refusal or failure to apologise is relevant to general compensatory damages, and is capable of being included as a component of such damages. I do not consider that Levine J was correct in holding that (AB 72):

"The `mere absence of an apology' is and cannot be a component in an award of general compensatory damages to the plaintiff".

2. Set aside the orders of Levine J of 27 June 1996 in so far as they relate to the plaintiff's interrogatory 9 and costs and in lieu thereof order that the defendant answer the plaintiff's interrogatory 9 within twenty-eight (28) days;

3. Remit the question of the costs of the application to the Judge sitting in the Defamation List for reconsideration;

4. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors Fund Act 1951 if so qualified.

Robert Clark v Leonard Ainsworth [1996] NSWSC 610

At a glance

Court

Decision date

Before

Catchwords

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Judgment (75 paragraphs)

Robert Clark v Leonard Ainsworth [1996] NSWSC 610 (10 December 1996)

Parties

Legislation Cited (2)

Cases Cited (8)