Supreme Court of WA|2001-12-07|Before: Steytler J

Todd & Anor v Swan Television and Radio Broadcasters Pty Ltd [2001] WASC 334 (7 December 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TODD & ANOR -v- SWAN TELEVISION AND RADIO BROADCASTERS PTY LTD [2001] WASC 334

SWAN TELEVISION AND RADIO BROADCASTERS PTY LTD (ACN 008 689 745)

Defamation - Television news broadcast - Report that owner of "Todds Furniture Mart" killed his wife and attempted suicide - Footage screened identifying plaintiffs' business premises and attached residential dwelling

Defamation - Imputations conveyed - Whether imputations defamatory of Mr Todd - Injury to reputation - Relevance of reputation and social standing - Damages - Consolation for personal distress and hurt caused by broadcast - Vindication of reputation in the community - Whether awards of damages for personal injury are of assistance in determining quantum

Defamation - Imputations conveyed - Whether imputations defamatory of partnership operated by Mr and Mrs Todd - Where business shunned as a result of the broadcast - Consequential loss of partnership profits - Where imputations did not reflect on character of partnership or mode of carrying on business

Defamation - Aggravated damages - Whether defendant acted recklessly in failing to properly investigate or verify accuracy of information broadcast - Effect of second broadcast on domestic violence which used footage from the earlier broadcast - Whether maintenance of untenable defence a sufficient basis

Defamation - Exemplary damages - Whether defendant acted in contumelious disregard of plaintiffs' rights - Whether reckless indifference as to truth of information contained in broadcast

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd [1985] FCA 37; (1985) 58 ALR 549

Brown v Marron [2001] WASC 100

Chakravarti v Advertiser Newspaper (1998) 193 CLR 519

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Cornwell v Myskow [1987] 1 WLR 630

Costello v Random House Australia Pty Ltd [1999] ACTSC 13; (1999) 149 FLR 367

Coyne v West Australian Newspapers Ltd (1996) 15 WAR 51

E Hulton & Co v Jones [1910] AC 20

Gardiner v Ray [1999] WASC 140

Guise v Kouvelis (1946) 46 SR (NSW) 419

Henry v TVW Enterprises Ltd (1990) 3 WAR 474

Hewitt v Queensland Newspapers Pty Ltd [1995] ACTSC 54

Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504

Humphries v TWT Ltd [1993] FCA 577; (1993) 120 ALR 693

John Fairfax & Sons Ltd v Hook [1983] FCA 83; (1983) 47 ALR 477

Johnstone v Stewart [1968] SASR 142

Junius v Messenger Press [1999] SASC 99

Kruse v Lindner (1978) 19 ALR 85

Ley v Hamilton (1935) 153 LT 384

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

Morgan v Odhams Press Ltd [1971] 1 WLR 1239

Nixon v Slater & Gordon [2000] FCA 531; (2000) 175 ALR 15

Praed v Graham (1889) 24 QB 53

Rigby v Associated Newspapers Ltd [1969] 1 NSWLR 729

Risk Allah Bey v Johnstone (1868) 18 LT 620

Ronci v Nationwide News Pty Ltd, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996

Slazengers (Limited) v C Gibbs & Co (1916) 33 TLR 35

Smith v John Fairfax & Sons Ltd (1987) 86 FLR 343

Steel and Morris v McDonalds Corporation and McDonalds Restaurants Ltd [1999] EWCA 1397

Sutcliffe v Pressdram Ltd [1990] 2 WLR 271

Vadic v The Ballarat News Pty Ltd [1981] VicRp 23; [1981] VR 213

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

1 STEYTLER J: On 12 November 1995 the plaintiffs, Mr and Mrs Todd, were, as they still are, the owners of a business commonly known as "Todds Furniture Mart", although its registered name has, since about 1993, been "Todds Furniture and Auctions". They operate the business in partnership. It involves the selling of furniture by way of auction and retail. The business operates from premises on a semi-rural lot ("the property") entered from Hawtin Road in Forrestfield. There is a showroom and, behind it, a warehouse. The showroom is used for retail sales and auctions are held in the warehouse. Behind the warehouse, and separate from it, is Mr and Mrs Todd's home.

2 Mr Todd was, on 12 November 1995, 45 years old. He had lived on the property since he was about 9 years old. The business, which had been established in 1964, had previously been owned and operated by his father. His father and mother had lived on the property for a number of years while his father owned the business.

3 In 1976 Mr Todd bought the business from his father. He had previously worked for his father on a casual basis, while still a student, and then full-time from about 1971.

4 Mr Todd has two children from a previous marriage, a son named Adam and a daughter named Laura. Adam Todd works in the business. Mr and Mrs Todd have two boys from their present marriage, Joshua and Ben.

5 Mr Todd was well known for his work at the business. He was there seven days a week, although he played golf on Thursdays at the Hartfield Country Club. He conducted valuations on behalf of the business and it was he who conducted its auctions. He did much of the buying on behalf of the business and he often worked in the retail shop.

6 He was also well known in the Forrestfield area. Quite apart from his business contacts he was known by many of the members of the Hartfield Country Club, which had a membership of around 1,000 people. He was also well known at the Kalamunda Rugby Club, for which he had played first grade rugby for a period of around 10 years. He had been a State selector for the Western Australia rugby team. He had also managed that team. His business was advertised at the Kalamunda Rugby Club grounds. He was a member of the Kalamunda District Chamber of Commerce.

7 Mrs Todd, too, led an active life. Apart from people who had met her through her work in the business (she was often in its showroom), she had, on 12 November 1995, many friends in the area. These included people that she had met through singing in a chorus known as the Perth Harmony Chorus. One of these people was a woman known as Wendy Middleton. She, and her husband Phil, became close friends of the Todds. Mrs Todd sang with Wendy Middleton in a group of four women. Mr Todd and Mr Middleton played golf together.

8 In mid-October 1995 the members of the Perth Harmony Chorus travelled to the United States. Wendy Middleton went with them but Mrs Todd stayed behind. She could not go because she had recently given birth to her son Ben. Joshua was then three years old. Ben was born, three months prematurely, on 25 September 1995. He was placed in intensive care at a nearby hospital. There was considerable doubt whether he would survive. Mrs Todd visited him at the hospital every day and Mr Todd visited him whenever he could. It was a difficult and emotional time for both of them.

9 Shortly before Wendy Middleton left for the United States she asked Mrs Todd if she could stay at the Todds' home for the first weekend after her return. She had decided to separate from her husband. Mrs Todd agreed.

10 On 12 November 1995 Mrs Middleton, having recently returned from the United States, was in the Todds' home. The Todds were not there that day, as they had gone to the hospital to visit their son Ben. That afternoon, after leaving the hospital, Mr and Mrs Todd visited friends of theirs at a house in Burswood. While they were there Mr Todd received a telephone call on his mobile telephone. The caller was an employee of the business. She told him that something serious had happened at his home and that an ambulance and police were there. Mr Todd rang his home. The call was answered by a policeman who told him that his house was the scene of a domestic crime involving Mr and Mrs Middleton. The Todds left their son Joshua in the care of their friends and immediately drove home.

11 When they arrived at their home they found that their driveway had been cordoned off by a police tape. Police and media representatives were in the vicinity. Cameramen were filming the house and business premises. Mr Todd told a police officer that he was the owner of the house. The time was around 4.30 pm.

12 After some delay Mr Todd was told by another officer that Mr Middleton had attacked a woman in the house. The woman had been rushed to hospital. Mr Todd realised that the woman was Wendy Middleton. He knew that the Middletons' son, Stuart (who was then 20 years old), had that day been doing some casual selling for the business at Midland Markets. He and Mrs Todd decided to wait for Stuart to return so that they could tell him what had happened. Stuart returned at about 5 pm. Mr and Mrs Todd and Stuart then left the property in order to tell Stuart's sister, Louise, what had happened.

13 Some two hours later, Mr and Mrs Todd returned to their home. They found that the media had left, although representatives of the police were still there. When they entered their home, Mr Todd saw that there was blood all over the kitchen. He and Mrs Todd then gave statements to police officers. During that time their telephone rang repeatedly but the police answered all calls. One of these calls was from Mr Todd's daughter, Laura. Mr Todd was told that he should speak to her as she was distraught. He did so. She told him that she had heard that he had been involved in a domestic brawl and that he had killed his wife. She said that she had been trying to get through to him on the telephone for 45 minutes. He was shocked by this and upset to hear of his daughter's distress.

14 After the police left, Mr and Mrs Todds' telephone rang constantly. They took about 20 to 30 telephone calls. Most of those who telephoned had thought that Mr Todd had killed Mrs Todd. There had been a television broadcast (the "first broadcast"), earlier that evening, which had referred to the stabbing. The broadcast had been made by Channel 9, the television station owned by the defendant, as part of its 6.00 pm "National Nine News" program.

15 The segment had been shown as the lead item on the news. The news commenced with the newsreader saying the words, "Tonight, a woman stabbed to death in suburban Forrestfield, another victim of domestic violence". Then, after mentioning of the leading sports news, the newsreader said:

"A woman is dead, her husband fighting for his life in hospital after what is believed to be a murder-suicide attempt in Forrestfield late this afternoon. The woman died of stab wounds."

16 Video footage of the business premises and of the house was shown. This included, for a period of one and a half seconds, footage of the sign which was erected on the front of the showroom. The sign contained the words "Todds Furniture Mart".

17 There was then the "voice over" of a Channel 9 reporter, Paul Kadak. He said this:

"Police were called to this house at the rear of a furniture store in Forrestfield just before 4 pm. Suffering severe stab wounds the wife of the store owner received CPR for 10 minutes before being rushed to Royal Perth Hospital where she later died. Her husband, suffering stab wounds to the stomach, is also in hospital tonight fighting for his life."

18 There was then footage showing a police officer, Detective Sergeant Bob Colton, who said:

"It appears from what was a domestic argument a 44 year old female is now deceased and we are at [sic] the process of interviewing a 44 year old male in hospital."

19 Not surprisingly, having regard for the events which had taken place there, Mr and Mrs Todd decided that they could not stay at their home that night. They booked a room at the Burswood Resort Hotel. They returned to their friends' home in Burswood in order to collect their son Joshua. Their friends told Mr and Mrs Todd that they had seen the television broadcast on Channel 9. They urged Mr and Mrs Todd to get legal advice.

20 Mr and Mrs Todd and Joshua spent the night at the hotel. On the following day they were telephoned by a number of their friends who said that they had seen the Channel 9 news on the previous evening. Some of these friends said that they had been worried about Mrs Todd and about what would happen to the Todds' children. Mr Todd said that it upset him that some of his friends had thought, if only for a short time, that he was capable of killing his wife.

21 On the same day, Mr Todd's father, who had recorded the television broadcast, showed Mr and Mrs Todd the recording of the segment which had mentioned the killing. Upon viewing this recording Mr Todd's mother began to cry. Then, Mrs Todd began to cry. After a while Mr Todd, too, broke down.

22 Mr Todd returned to the business premises. He began to telephone some of his friends in order to tell them what had happened at his home on the previous day. He also arranged for the lodgement of an advertisement in the next day's West Australian Newspaper. It appeared under the heading "Todd's Auctions" and read as follows:

"NOTICE TO CUSTOMERS AND FRIENDS, THE PROPRIETORS AND STAFF WERE NOT INVOLVED IN THE INCIDENT AT OUR PREMISES ON SUNDAY 12TH NOVEMBER. BUSINESS WILL CARRY ON AS USUAL.

Andrew Todd, Proprietor."

23 Next, Mr Todd visited his solicitors. He instructed them to do what they could to obtain an apology from the defendant.

24 On the following day Mr Todd spoke with one of his long standing customers, Mr Brian Quigley. Mr Quigley operated his own antique business. He had bought furniture from, and sold furniture to, the Todds' business. He said that he had had a lot of phone calls from people who said that they had heard that Mr Todd had killed his wife. This alerted Mr Todd to the fact that many people were starting to talk about the incident and that they had, as he put it, "got the wrong end of the stick". He found this extremely alarming.

25 Mr Todd began to grow concerned about the effect of all of this on the business. He continued to telephone as many people as he could think of, including his close friends and most important customers.

26 The business was, by then, holding weekly auctions. These were held on Wednesday evenings. They had become something of a social occasion, being coupled with a "sausage sizzle". Free hamburgers were given to children and tea and coffee were available. Mr Todd though it important to hold the auction which had been set for Wednesday 15 November. However, he said, the auction was not a success. Only half the normal number of people were present and the atmosphere was funereal. He was disappointed and concerned. He told those who were present what had happened on the Sunday. He continued to telephone clients. He found this process to be very demeaning.

27 On 21 November 1995 the defendant, having been contacted by Mr and Mrs Todd's lawyers, published an apology. This was done immediately prior to the first advertising break in the course of the 6.00 pm "National Nine News" program. It was in the following terms:

"On Sunday, 12 November we reported the alleged murder of a woman in Forrestfield. At the time it was wrongly reported that the owner of the house, where the incident occurred, had stabbed his wife. Neither the owner, Andrew Todd, nor Mrs Todd were on the premises at the time and were not involved in the stabbing in any way. Channel 9 sincerely apologises for distress caused to Mr and Mrs Todd and their family."

28 On the following Wednesday another auction was held by the business. It, too, was unsuccessful, although there might have been slightly more people present.

29 Mr Todd became increasingly concerned for his business. Stock was starting to dry up because people were not placing stock with the business to auction it on their behalf. In order to make up for the loss of stock, Mr and Mrs Todd started removing furniture from their retail floor and putting it up for auction. This meant that their profit margin on those items decreased.

30 Mr Todd also telephoned a number of furniture dealers and visited other auction rooms in order to find people who had been vendors or prospective vendors to the business. He asked them if they would like to have their furniture auctioned by the business. He found this process to be "very demeaning". He said that it was "like begging".

31 Mr Todd spoke to one of his regular customers, Mr Bob Turrell. Mr Turrell told him that there had been "a lot of bad vibes around the place". He said that the general talk around the town was that Mr Todd was not getting many people to his auctions and that prices were down.

32 Mr Todd spoke to another regular customer, Mr Laurie Shortland. Mr Shortland told him that he was not prepared to do business with someone who was a murderer. This shocked Mr Todd. The conversation took place a few weeks after the killing of Mrs Middleton.

33 Mr Todd said that turnover of the business was still down in December 1995. He decided to hold a special auction of antique and collectable items. The auction was held in December 1995 and, he said, "went reasonably well", although a good deal of what was sold did not return much profit.

34 Business was still poor in January 1996 and Mr Todd became seriously concerned. He and Mrs Todd had discussions with their accountant, Mrs Simone Andrews. She urged them to purchase items for auction from England. They decided to do so. Mr Todd arranged with his bank for an overdraft of $50,000 and, in April 1996, he travelled to the United Kingdom to purchase additional stock. In order to cover his absence, he arranged for someone to provide additional assistance in the shop. He took Stuart Middleton with him overseas in order to assist with the buying. The stock so purchased arrived in June 1996. An auction was held shortly afterwards. It was successful. Mr Todd said that it got the business "back to somewhere where we were the previous year". It also attracted attention to the business.

35 Thereafter, Mr Todd returned to the United Kingdom on a couple of occasions in order to buy stock. The business was able to sell the stock on its arrival in Australia.

36 By this time, almost everyone who knew Mr and Mrs Todd knew the truth about what had happened at their home on 12 November 1995. However, there was an occasion, Mr Todd said, some 12 to 18 months after the first broadcast, when he drove past a friend. His friend, Mr Brendan Moylan, a real estate agent, was standing outside a house with another man. Mr Todd waved to Mr Moylan. The other man then asked Mr Moylan whether Mr Todd was not "the guy who killed his wife". Mr Todd said that he was absolutely stunned when told of this by Mr Moylan.

37 On 2 August 1996 Mr Todd was overseas on one of his buying trips. He received a telephone call from his wife. She told him that she had seen a report on television dealing with the topic of domestic violence. It had shown footage of the front of their business premises. The footage had appeared on the defendant's 6 pm news program. A newsreader had said the following:

"A report on domestic violence has accused our police of apathy.

Launched today by Chief Justice David Malcolm, the Legal Aid report found police either failed to show up or took no action in 60 per cent of domestic violence call outs."

Footage was then shown of Mr and Mrs Todd's business premises and house in Forrestfield, with police vehicles parked outside the premises. The footage did not show the name of the business. It could consequently only be identified by someone who was familiar with the premises.

38 The newsreader went on to say that the report on domestic violence had criticised the traumatic court process which women face when seeking restraining orders against violent men. There was then a comment from a representative of the Legal Aid Commission, who said:

"I think it's a long way to go for the whole community ... statistics show that a big percentage of the community thinks that it is alright for a husband to beat his wife in particular circumstances."

39 Mr Todd said that, when told of the broadcast (to which I shall henceforth refer as "the second broadcast"), he was in a state of disbelief. He was upset and angry. He was also upset by the fact that his wife was upset.

40 Mr Todd had, by then, commenced this action against the defendant. In it, he alleged that he had been defamed by the first news broadcast.

41 The statement of claim filed in the action has since seen a number of amendments. Mrs Todd has been joined as a plaintiff. Mr and Mrs Todd allege that the first broadcast was one which was "of and concerning" Mr Todd and the business. They plead, in the alternative, that viewers who watched that broadcast, and knew Mr Todd and the business, knew that Mr Todd was a businessman who, in partnership with Mrs Todd, carried on the business known as "Todds Furniture and Auctions", and as "Todds Furniture Mart", at Hawtin Road in Forrestfield. They plead that those viewers also knew that Mr and Mrs Todd lived at the rear of the business premises. They allege that the first broadcast meant, and was understood to mean, that Mr Todd had murdered his wife, that he had attempted suicide and that the business was owned by a man who had murdered his wife and who had attempted suicide. This, they plead, had the result that Mr Todd was brought into hatred, contempt and ridicule and that the reputation of the business was injured, causing it to be shunned.

42 Mr Todd claims damages in respect of the injury to his reputation. He and Mrs Todd claim damages arising from what they say was the injury to the reputation of the business. The latter damages are pleaded to comprise losses incurred by the business by way of a reduction in its net profit for the financial years ended 30 June 1996 and 30 June 1997.

43 Mr and Mrs Todd also claim aggravated and exemplary damages from the defendant. They say, firstly, that the defendant published the first broadcast when it knew or ought to have known that it identified Mr Todd, and conveyed the meanings to which I have referred, with a reckless disregard as to whether those meanings were true. They contend that the defendant made no effort to verify the truth of the meanings with the police department's Media Liaison Officer, who was responsible for addressing any queries concerning the incident, or by any other means. They say that the whole situation was exacerbated by the second broadcast, showing their business premises in the course of the segment on domestic violence.

44 Mr and Mrs Todd also rely, in support of their claim for aggravated and exemplary damages, upon the conduct of the defence by the defendant. They say that it has conducted its defence in a manner which lacked bona fides or was unjustifiable. They rely, in this respect, upon the fact that the defendant has denied that the first broadcast contained the meanings alleged by the plaintiffs and that the broadcast identified Mr Todd, notwithstanding the terms of the apology which the defendant broadcast on 21 November 1995. They also rely upon the fact that the defendant has denied that the second broadcast contained footage which was similar to, or taken from, the first broadcast. Finally, they contend that the defendant has never accepted, or adequately accepted, responsibility for what it has done. They say that it has, by its counsel's cross-examination of Mrs Todd, in particular with respect to events which occurred on 12 November 1995, exacerbated the hurt and distress of Mr and Mrs Todd (although Mrs Todd is not a plaintiff other than in her capacity as a partner in the business). I should add, in this last respect, that it is common cause that the terms of the defence, and the manner of cross-examination, were left to the defendant's lawyers. The defendant did not, itself, take any part in the decision making processes in that respect.

45 Before leaving the issue of Mr and Mrs Todd's claims, and turning to consider what imputations were conveyed by the first broadcast, it is convenient for me, first, to consider the question whether any and, if so, what losses were suffered by the business as a consequence of that broadcast. I will deal, later, with the question whether any such losses are recoverable by the plaintiffs from the defendant. While I appreciate that a negative answer to the latter question will render the former otiose, it seems to me to be prudent to deal with this issue in any event.

46 I should say, firstly, that I accept the evidence of Mr Todd and of Mrs Andrews in respect of the financial affairs of the business, although, where they differed in matters of detail, I preferred the evidence of Mrs Andrews. She seemed to me to have a more detailed understanding of the financial affairs of the partnership at the material times. While counsel for the defendant complained that there were gaps in the documentary evidence, I am not persuaded that these were such as to cast any real doubt on either the evidence of Mr Todd or that of Mrs Andrews in respect of the partnership's financial position.

47 Mr Todd said, and I accept, that the retail and auction aspects of the business each accounted for 50 per cent of its turnover.

48 I have already mentioned that the first auction, following upon the first broadcast, was badly attended and that the same was true of the following auction, a week later. It had, by then, also become apparent that the amount of stock being placed with the business for sale by auction was significantly down compared with the period prior to the broadcast. By 15 December 1995 most of the stock which had been held for auction had been sold and very few vendors were bringing in stock to be auctioned. There was also a decline in retail sales, although this was not as significant. Mr Todd was initially able to redress the problems experienced with the auctions, to some extent, by his stratagem of auctioning stock which had been held in the business' retail section. However this was a short term measure as new stock was not coming in because of a loss of confidence, on the part of vendors, that the business would attract sellers. I have earlier mentioned that this short term measure resulted in reduced profit margins, the margin having been less in the case of stock sold at auction than it was in the case of retail sales.

49 Mr Todd said that, about a month after the first broadcast, a few of the business' regular vendors again started to supply stock to the business. However, he said, it took considerably longer than that for vendors, generally, to regain confidence, causing the business to suffer from a sustained drop in profit. I have mentioned that Mr Todd arranged for the holding of a special auction in December, which generated a reasonable amount of interest but returned only a relatively low profit.

50 The accounts for the business over the four month period preceding the first broadcast (more precisely, from 1 July 1995 to 31 October 1995) had showed sales totalling $248,733, or an average of $14,213 per week, producing a net profit of $49,155. This figure, which did not purport to be precise (the accounts having been only "rough" accounts), was significantly better than any previous profit. Indeed, it was greater than the profit which the business had earned over the entirety of the previous financial year. Mr Todd put this down to the fact that the business had, from the beginning of 1995, begun to hold regular weekly auctions, each of which was advertised in the West Australian Newspaper. The business had previously held only fortnightly auctions.

51 However, sales over the period 1 November 1995 to 31 January 1996 produced a total revenue of only $133,862, representing $10,297 per week. Net profit fell from $49,155 at the end of October 1995 to $37,020 to the end of January 1996, showing that the business suffered a loss of $12,135 over the period from 1 November 1995 to 31 January 1996. By the end of June 1996 the net profit remained at only $37,109, showing that, over the period from the end of October 1995 to the end of June 1996, the business suffered a loss of $12,046.

52 I have mentioned that, in early February 1996, Mr and Mrs Todd increased their bank overdraft facility and that, in April 1996, Mr Todd and Stuart Middleton travelled to the United Kingdom in order to acquire additional stock, after Mr Todd had arranged for extra staffing to cover his absence. The first auction of the stock so acquired (and I have mentioned that there were subsequent buying expeditions) was, as I have also said, successful and, by mid-1996, the business had begun to revert to normal.

53 Mrs Andrews, in her evidence, said that there had been a real improvement in the business from late 1994. She said that this was due to new stock lines being introduced, such as white goods, carpets and floor rugs. The gross profit margin of the business moved to about 31 per cent in June 1995. It had increased, by October 1995, to 39 per cent. Also, in the year which ended on 30 June 1995, the business had made a net profit of $39,920. As will be apparent, this figure was exceeded in the four month period from July 1995 to October 1995.

54 Mrs Andrews also said that she had, in the period which followed the first broadcast, a real concern that what appeared to be a loss in consumer confidence had already destroyed the business. She urged Mr Todd, in early 1996, to incur the additional expense of travelling overseas in order to purchase stock for the business. She did so because of her concern that, if its turnover was not increased, the business would have to be placed in the hands of administrators.

55 Each of Mr Todd and Mrs Andrews attributed the drop in profits, following the first broadcast, to the fact of that broadcast. Mr Todd said that he could offer no other explanation for the downturn. None was put to him in cross-examination. Mrs Andrews said that she was not aware of any change in the environment in which the business operated that would have caused such an immediate decline in sales. Once again, no change of this kind was suggested to her in the course of cross-examination.

56 Mr and Mrs Todd, in calculating the losses claimed by them, have, so far as the year ended 30 June 1996 is concerned, taken their profit of $49,155 for the period 1 July 1995 to 31 October 1995 and annualised that figure for the full year. That produced a projected profit of around $147,000 which, they say, they would have earned were it not for the first broadcast. In fact, over that year, the business made, as I have said, a profit of only around $37,109, producing what Mr and Mrs Todd contend was an overall loss, for that year, of around $110,000. In the year ended 30 June 1997 the business made a total profit of $64,124. Mr and Mrs Todd contend, once again, that it would, were it not for the first broadcast, have made a profit of around $147,000, and that they have consequently suffered a loss, in that year, of around $83,000. I should add, although no claim is made in respect of the financial year which ended on 30 June 1998, that the business earned a total profit, in that year, of $78,880, still significantly less than the annualised figure advanced in respect of previous years.

57 There are obvious shortcomings in the formulation of the claim in this way. Some of these were pointed out, in evidence, by Mr Jeffrey Herbert, a respected chartered accountant, who gave evidence on behalf of the defendant. Perhaps the most important, in my opinion, is that the projected performance of the business was based solely upon what it had done in the four month period to which I have referred. This period was selected as the basis for the projection because it was said that the nature of the business had changed not long before the commencement of that period. Mr Todd relied, in this respect, upon the fact that the business had moved from fortnightly auctions to weekly auctions (although I have mentioned that Mrs Andrews referred, also, to the introduction of new stock lines from late 1994). While these changes were, no doubt, significant, the fact remains that there is a real danger in basing projections upon so short a period. Mr Herbert, in his evidence, said that this is particularly so in the case of smaller businesses, which tend to show a variability in performance which might be contributed to by any number of reasons. One might add to this the fact that the changes to the business had preceded this four month period by some months, although it might reasonably be assumed that they would take some time to develop momentum.

58 However, shortcomings of this kind (and it is unnecessary to recite them all) are not fatal to the plaintiffs' claim. It is, as I have said, a general claim for damages resulting from a loss of business (as to which see Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 251 - 252, per Glass JA, and 258 - 259, per Mahoney JA, and also the comments of Hutley JA, at 236, as regards a situation in which a loss of profit is claimed over a particular period of time). I am satisfied, on the evidence, in particular of Mr Todd and Mrs Andrews, that there was a loss of business which followed upon the first broadcast and which was caused by it. However, it is impossible to be precise either as to the amount of that loss or as to its duration.

59 That said, I am satisfied that the loss was not as great, and that it did not endure for as long, as was contended for by counsel for the plaintiffs.

60 It seems to me, firstly, that the business had recovered its momentum by the end of June 1996. By then, the vast majority of Mr and Mrs Todd's customers, and suppliers, must have known of the untruth of what had been broadcast. Indeed, it seems to me to be very probable that the vast majority of these would have known of this within the first few weeks after the first broadcast. While I accept that the initial downturn in stock for auction and in buyers led to a lack of confidence on the part of those who would otherwise have placed stock with the business, there is insufficient in the evidence to suggest that this continued to have any significant effect after 30 June 1996.

61 Mr Quigley, in his evidence, suggested that the auctions appeared to be back to normal (and, indeed, "really buzzing again") within three to four months after the first broadcast. Mr Todd himself said in evidence that, in June 1996, the business was "back to somewhere where we were the previous year". He also said that the "worst effect was probably for 3 to 4 months" after the broadcast. The evidence established that, by June 1996, the average monthly gross profit of the business had moved up to about 34 per cent.

62 I have also mentioned that, in the year which ended on 30 June 1997, the business made a total profit of $64,124. I am not at all persuaded that there was, during that financial year, any noticeable continuation of the effect of the first broadcast on the profitability of the business. It was not even contended that the broadcast had any ongoing effect in the year which ended on 30 June 1988, during which, as I have said, the business realised a profit of only $78,880. These figures cast serious doubt on the validity of an annualisation based solely upon the profit over the four month period to which I have referred.

63 There is also the prospect that some people may have stayed away from the business merely because of the notoriety brought about by the fact that there had been a killing nearby, albeit not one involving Mr and Mrs Todd. It is, in this respect, noteworthy that Mr Quigley said that the atmosphere at the first of the auctions was somewhat "funereal", having regard for the events which had happened. However I accept that any influence in that respect would have been relatively minor.

64 Counsel for the defendant invited me also to take into account the fact that Channel 7, too, had broadcast a segment, in its evening news on 12 November 1995, with respect to the killing. That television station, while it did not identify Mr or Mrs Todd in its broadcast, did show some footage of their business premises and of their home. Its news broadcaster said that "the tragedy unfolded out of a domestic dispute at this home behind a Forrestfield furniture store". The premises might consequently have been recognised by some people, albeit the name of the business did not feature in the footage. However it seems to me that any effect which the Channel 7 broadcast might have had would have been very much less than that of the Channel 9 broadcast, which showed the name of the business and identified the killer as the store owner.

65 Taking all of these considerations into account, it seems to me that the best that I am able to do on the available evidence is to make some global assessment. I propose, in doing so, to place some reliance upon the drop in profits during the period which ended on 30 June 1996, upon the basis that, in my opinion, the probabilities strongly favour the proposition that the first broadcast was, as Mr Todd and Mrs Andrews believed it to be, its principal cause. However I will, as I have said, work upon the assumption that, even if there had been no broadcast, the profit of the business would, in the year which ended on 30 June 1996, still have been significantly less than the annualised figure of $147,000. While the four month period to which I have referred was particularly profitable, no similar profit was achieved in periods of a similar length even during the period between 1 July 1997 and 30 June 1998, when, as I have found, the first broadcast had ceased to have any effect. Taking this into account, as well as the other factors to which I have referred, and doing the best I can on the evidence, I am prepared to find that the general drop in business attributable to the first broadcast resulted in a total loss of profits of around $50,000.

66 The plaintiffs contend that there was also an (unspecified) loss of "goodwill". However, for the reasons I have expressed, I am not prepared to find that there has been any loss over and above that to which I have referred. Mr and Mrs Todd also claimed the costs incurred by them arising out of Mr Todd's visits to London, including the cost of additional staff. However, these costs were incurred for the purpose of improving the ongoing profitability of the business and they achieved that purpose. Moreover, in calculating the profits which were lost by the business as a consequence of the broadcast, all costs are necessarily taken into account. I am consequently not persuaded that these costs are claimable as a separate head of loss.

67 I propose, next, to consider what imputations were conveyed by the first broadcast and whether these were defamatory of Mr Todd, and of the partnership comprising Mr and Mrs Todd, respectively.

68 As to the first of those questions, the defendant denies that the first broadcast conveyed any of the meanings which have been pleaded by Mr and Mrs Todd.

69 The test to be applied in this context is well known: see, for example, Smith v Littlemore (1996) 15 WAR 289 at 294 - 295 and Singleton v Hudson (1998) 20 WAR 191 at 196. I will add only a reference to what was said by Brennan J in Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 at 505 - 506 as follows:

"Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees - Lord Selborne's reasonable men (Capital and Counties Bank v Henty (1882) LR 7 App. Cas. 741, at p 745) or Lord Atkin's right-thinking members of society generally (Sim v Stretch (1936) 52 TLR 669, at p 671) or Lord Reid's ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd [1964] AC, at p 260) - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made."

70 It seems to me that the first broadcast conveyed imputations to the effect that Mr Todd murdered his wife and that he attempted suicide.

71 There was no dispute as regards the imputation that the man referred to in the broadcast had attempted suicide, but counsel for the defendant contended that an imputation only of suspicion of murder was conveyed. I cannot accept this. The broadcast announced that a woman was dead and that her husband was fighting for his life in hospital after what was "believed to be" a "murder-suicide attempt". The woman was said to have died of stab wounds. Those wounds were later described as having been "severe". The police spokesman said that police were "interviewing" the male. I am satisfied that the ordinary reasonable viewer would have understood, in all of these circumstances, that a murder had been committed and that the man who had committed it had attempted suicide.

72 That the man in question was readily identifiable and identified as Mr Todd was not, in the end, in dispute. The evidence established that many people in the Forrestfield area, and outside it, believed him to be "the store owner" referred to. It also established that these people knew him to be the "front man" of the business and that some of them, at least, knew that he and Mrs Todd lived in a house at the rear of the furniture store. The evidence also revealed that there was only one other furniture store in Forrestfield and that this was situated in an industrial area. It could accordingly not have had a residential home immediately behind it.

73 I am also satisfied that the first broadcast meant, in its natural and ordinary meaning, that the business known as Todds Furniture Mart was owned by a man who had murdered his wife and who had attempted suicide. I have already said that the television footage identified the sign "Todds Furniture Mart" and that the announcer said that it was "the store owner" whose wife had been stabbed in the "murder-suicide attempt" and who was himself "fighting for his life" after suffering stab wounds to the stomach.

74 The next question is whether or not the imputations to which I have referred were defamatory of Mr Todd. On any test (and I will return to these below), that to the effect that Mr Todd had murdered his wife was defamatory of him. While it is, for any practical purpose, unnecessary to consider whether or not the much lesser imputation of attempted suicide was also defamatory (and no argument was addressed to this issue), I am inclined to doubt that it was. To say of someone only that he has attempted suicide does not, of itself, cause others to think the less of him or to shun or avoid him.

Were the imputations defamatory of the partnership operated by Mr and Mrs Todd?

75 The question whether the imputations were defamatory of the partnership operated by Mr and Mrs Todd is more difficult.

76 There is no doubt that a partnership has a personality which is capable of being defamed and in respect of which it can bring an action for libel: Coryton v Lithebye (1670) 2 Wm. Saund. (5th ed) 115; Cook v Batchellor (1802) 3 Bos & Pul 151; Forster v Lawson [1832] EngR 595; (1826) 3 Bing 452; Le Fanu v Malcomson [1848] EngR 663; (1848) 1 HLC 637; Metropolitan Saloon Omnibus Co Ltd v Hawkins [1859] EngR 252; (1859) 4 H & N 87; 157 ER 769 and Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1977] 1 QB 585 at 595. However the partners cannot sue jointly in respect of a defamation causing injury to an individual member of the firm.

77 So, in Smith v McGuiggan (1863) 2 SCR (NSW) 268, Stephen CJ (with whom Wise J was in agreement) drew a distinction between a circumstance in which a slander reflected only upon the personal reputation of each partner and one in which it reflected upon their trade or mode of carrying on business as partners. Where the slander fell within the former category, there was no joint cause of action. (See also Haythorn v Lawson (1827) 3 C & P 195; and Vogel v Bushnell 221 SW 819 (Mo. 1920)).

78 In Bricker v Campbell (1891) 21 Ontario R 204 at 211, MacMahon J expressed the opinion that, where a libel was on a member of a firm in respect of his trade or business, the partner libelled could recover without proof of special damage. However, he said, all of the partners would have to sue jointly in respect of special damage sustained by the partnership (see also Harrison v Bevington [1838] EngR 1054; (1838) 8 C & P 708). But that, of course, does not mean that, in a case in which the words in question are defamatory of both the individual and of the firm, only the firm, or only the individual, could sue. In such a case, the individual and the firm could join their separate claims in one action. (Cf Gatley on Libel and Slander, 9th ed, par 8.25.)

79 Any defamation of a partnership must be in the way of its business: see, for example, South Hetton Coal Company Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 138 - 139 and 141; and D & L Caterers Ltd v D'Ajou [1945] 1 KB 364 at 367. In this State, where there is no equivalent to s 5 of the Defamation Act 1958 (NSW), malicious statements which injure a person's business or his or her goods, but do not disparage that person's reputation, are not actionable in defamation, although they might be so as injurious falsehoods. However a person whose reputation is disparaged by a defamatory statement can recover, as damages, any business loss sustained in consequence of the publication of the defamatory statement. (See Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1978) 141 CLR 632 at 639, per Mason and Jacobs JJ.)

80 As I have previously remarked in Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 448, the courts have not taken a narrow view of the defamatory imputations which are capable of injuring the reputation of a trading corporation: see New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 at 304 - 305; and South Hetton Coal Co Ltd v North-Eastern News Association Ltd, above, at 138. A firm or partnership is in no different position. So, for example, there might be injury to goodwill (see Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 and Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 339) or the defamatory imputation might prevent people from entering its employment or make people reluctant to deal with it (see South Hetton Coal Co Ltd, above, and Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534 at 547).

81 The question in this case is whether it is defamatory of a partnership to say that the business which it operates is owned by a man who has murdered his wife and who has attempted suicide, that being, as I have said, the imputation which is relied upon by the plaintiffs.

82 The classic statement of what is defamatory is that given by Lord Wensleydale (then Parke B) in Parmiter v Coupland [1840] EngR 168; (1840) 6 M & W 105; 151 ER 340 at 108; [1840] EngR 168; 151 ER 340 at 341 - 342, to the effect that a publication will be defamatory if, without justification or lawful excuse, it is "calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule ... ". However, in Tournier v National Provincial & Union Bank of England Ltd [1924] 1 KB 461 at 477, Scrutton LJ pointed out that a person's reputation in business could also be damaged by words which were not connected with hatred, ridicule or contempt (and see also Atkin LJ, in that case, at 486 - 487). The same Judge, in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, at 584, again criticised this "stock formula", noting that the trial Judge had, in that case, added the words "or causes them to be shunned or avoided". Scrutton LJ said that he had, himself, "always preferred the language which Mr Justice Cave used in Scott v Samson (8 QBD 491), a false statement about a man to his discredit". Slesser LJ, in Youssoupoff at 587, said that a matter was not only defamatory if it brought a person into hatred, ridicule or contempt by reason of some moral discredit on her part, but also if it tended to make the plaintiff "be shunned and avoided and that without any moral discredit on her part".

83 In Sim v Stretch (1936) 52 TLR 669 at 671, Lord Atkin proposed a test whether the words would "tend to lower the plaintiff in the estimation of right-thinking members of society generally".

84 In Drummond-Jackson v British Medical Association [1970] 1 WLR 688, Lord Pearson said that words could be defamatory of a trader or businessman although they did not impute any "moral fault or defect of personal character". He said (at 698 - 699) that the words would be defamatory if they imputed "lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of ... trade or business or professional activity ... ".

85 These, and other, cases were considered in Berkoff v Burchill [1996] EWCA Civ 564; [1996] 4 All ER 1008. Neill LJ there concluded (at 1013) that words might be defamatory "even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society". In the same case Phillips LJ said, at 1020, that it is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the plaintiff, "but it is axiomatic that the words must relate to an attribute of the plaintiff in respect of which hearsay alone is enough to provoke this reaction".

86 It has many times been said that a corporation cannot sue for defamation in respect of an allegation, for example, that it has committed a murder. The basis for this has been said to be that a corporation is incapable of committing a murder. Thus, in The Metropolitan Saloon Omnibus Company (Ltd) v Hawkins [1859] EngR 252; (1859) 4 H & N 87 at 90, Pollock CB said that a corporation could not sue in respect of an imputation of murder, or incest, or adultery, because it could not commit those crimes. The same thing was said, in South Hetton Coal Company, above, by Lopes LJ, at 141 - 142 (see also the comments of Kay LJ in that case, at 147). In D & L Caterers, above, at 366, Lord Goddard said that:

"If one said of a company 'It is a murderer' or 'it is a forger,' I have no doubt that the company could not bring an action, because a company cannot forge and a company cannot murder, so that in the ordinary way it would not be actionable to write something of a company which might be actionable in the case of individuals, unless what is written reflects on the company in the way of its business."

87 This kind of reasoning has been trenchantly criticised by Spencer Bower: The Law of Actionable Defamation, 2nd ed, at 244. The author there says that arguments of this kind assume "that an artificial person cannot have a corporate or collective reputation in respect of any acts or conduct except those for which it could be punished in the same way as a natural person could, and that, because a corporation cannot be hanged, it is not actionable to publish of it that it employs its members or agents to perpetrate crimes for which they could be hanged: in other words, that it would not be defamatory to write or say of a society that ... it seeks to effect its objects by murder and outrage ... ". The author suggests that such charges could be actionable at the suit of a body of persons, mentioning (ibid) that it would be as defamatory of a natural person to say of him that he employed another to commit murder as it would be to say of him that he committed that offence himself, and that it should make no difference that the principal was a company rather than a natural person.

88 In Australian Liquor, Hospitality and Miscellaneous Workers' Union (Miscellaneous Workers' Division) WA Branch v Mulligan (1996) 15 WAR 385 at 387, Anderson J endorsed the opinion of Spencer Bower, above, at 244, that if the act itself was one which the corporation was capable of committing, whether by itself or by an agent, there was no reason why an allegation that the act was committed could not carry a defamatory imputation and, if it did, why the corporation should not sue in defamation in respect of it. The real question, in this last respect, may be that of whether or not the acts of the person concerned can be imputed to the company or business, in circumstances in which they are committed by the "directing mind" of the company or business or at the instance of that "directing mind" (cf Gatley, above, at 184 and Bognor Regis Urban District Council v Campion [1972] 2 QB 169 at 177, discussed in Derbyshire County Council v Times Newspapers Ltd, above, at 545 - 547.)

89 There can, in this case, be no suggestion of any imputation to the effect that the murder was committed on behalf of the business. The business was only mentioned in the first television broadcast as a means of identifying the person who was believed to have committed the murder in the course of "a domestic argument". I have earlier said that the dispute was described, in the first broadcast, in that way and that the name of the business was shown in a context in which it was said that it was "the wife of the store owner" who was believed to have been stabbed by her husband during that dispute.

90 That, no doubt, is why the plaintiffs, in their joint action, plead only imputations to the effect that the business was owned by a man who had murdered his wife and that it was owned by a man who had attempted suicide. Are imputations of that kind defamatory of the plaintiffs in their capacity as partners who, in truth, own the business? Counsel for the defendant contends that they are not. He submits, firstly (and his submission echoes what is said by Gatley, above, par 2.26), that, to be actionable, words must impute to the plaintiffs themselves (here as a partnership) some quality which is detrimental, or the absence of some quality which is essential, to the successful carrying on of their trade and that the mere fact that words tend to injure them in the way of their trade is insufficient. He argues that there is nothing of that kind here, and he points to the fact that, even in their pleading, the plaintiffs allege only that the reputation of the business itself was injured and not that their own business reputation was injured. He points, also, to the fact that there was no evidence, at the trial, or even any plea in the statement of claim, to the effect that anyone knew that Mr and Mrs Todd owned the business of "Todds Furniture Mart" in partnership.

91 It is no doubt true that, if the plaintiffs are to bring an action in their capacity as joint owners of the business, they must show that they have been defamed in that capacity. Here they have pleaded, and proved (by the evidence of Mr Todd and by documentary evidence admitted at the trial), that they owned, and operated, in partnership, a business (which they have defined as "the Business") registered as "Todds Furniture and Auctions" but also carried on under the name "Todds Furniture Mart". Those names were, for any practical purpose, the names of the partnership. While the plaintiffs allege, in their statement of claim, that the reputation of "the Business" has been injured and that "the Business" has been shunned as a consequence of the defamation, it is evident that they mean, by that, that the partnership's reputation (under the name or names by which it is known) has been injured and that its business has been shunned as a consequence. It was upon this basis that the trial was fought out.

92 Next, it seems to me to matter little whether or not anyone knew that Mr and Mrs Todd were the partners who traded under the name or names to which I have referred. If the partnership was defamed in the name by which it was commonly known, that is, in my opinion, enough to enable it to bring its action. It does not need to show that those to whom it was defamed knew the name of each of the partners who traded under that name. It has, as I have said, a personality (which may exist under a business name or names) which is capable of being defamed and in respect of which it can bring an action for libel.

93 The more difficult question is whether the partnership, having its own personality under the name "Todds Furniture Mart", was defamed by the imputations to which I have referred, which were, as I have said, to the effect only that the business, "Todds Furniture Mart", was owned by a man who had murdered his wife and who had attempted suicide.

94 I am satisfied, on the evidence, that what was imputed to the business, namely that it was owned by a man who had killed his wife and attempted suicide, caused people to avoid it. I accept Mr Todd's evidence and that of Mr Quigley, who attended the auction on 15 November, to the effect that only half the normal number of people attended that auction (albeit the two men differed in their assessment of numbers). I have earlier accepted Mr Todd's evidence that, for a period, business fell away after the first broadcast and that there was no other factor than the broadcast which could explain the fall in business.

95 However the fact that the business was avoided does not mean that the partnership which owned it was defamed. While it might be so, as was said in Youssoupoff, above, at 584 and 587, that imputations which cause others to shun or avoid the plaintiff are defamatory, they must be imputations which bear upon the reputation of the plaintiff, and not of someone else, or, to use the words of Phillips LJ in Berkoff, above, which "relate to an attribute of the plaintiff". As was said by Street J in Slatyer v Daily Telegraph Newspaper Co (1907) 7 SR (NSW) 488 at 498, "A malicious falsehood not defamatory but causing damage may in some circumstances be foundation for an action on the case for damages, but unless the untruth is calculated to injure the reputation and character of the person of whom it is spoken, it cannot give rise to an action for defamation". (See also Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 1 NSWLR 16 and Mirror Newspapers Ltd v World Hosts Pty Ltd, above, at 638 - 639, dealing with the common law prior to the passing, in New South Wales, of the Defamation Act 1958 (NSW)). In Mirror Newspapers Ltd v World Hosts Pty Ltd, above, at 639, Mason and Jacobs JJ (with whom Gibbs and Stephen JJ were in agreement) said that, while a plaintiff whose reputation was disparaged by a defamatory statement could recover as damages any business loss sustained in consequence of the publication of the defamatory statement (as to which see Ratcliffe v Evans [1892] 1 QB 524 at 529, and Calvet v Tomkies [1963] 1 WLR 1397), malicious statements which injured a man's business or his goods but did not disparage his reputation were not actionable in defamation though they were actionable as injurious falsehoods (as to which see South Hetton Coal Co, above, at 139, and Drummond-Jackson, above, at 698).

96 Here the imputations undoubtedly injured the partnership in the way of its trade, but they did not involve any reflection on the "character" of the partnership itself or "upon the mode in which its business was carried on" (see Griffiths v Benn (1911) 27 TLR 346, at 350, per Cozens-Hardy MR). I am unable to accept that, to say of a business that it is owned by a man who has murdered his wife and attempted suicide in the course of a domestic argument, is to say anything of the partnership which, in truth, owns that business. Rather, what was said was capable of reflecting only upon the character of Mr Todd himself, albeit he has, somewhat inaccurately, been identified as "the owner" of the business. That it was Mr Todd who was identified as the owner of the business is, as I have earlier said, not in doubt.

97 Counsel for the plaintiffs contended that, in this case, the business was Mr Todd's alter ego, and that this should have the consequence that what was defamatory of Mr Todd was necessarily defamatory, also, of the business, by which expression I took him to refer to the partnership. He relied upon three cases in support of this proposition.

98 The first of these is Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9. There, Hunt J said that, whether an imputation concerning a director or officer of a company may reflect also upon the company itself depends upon the part that the director or officer is alleged to have played in the operations of the company and upon the extent to which the one is identified with or considered to be the alter ego of the other. In that case the material complained of was capable of being interpreted as identifying the plaintiff company sufficiently with one of its directors as to make matter capable of being defamatory of him capable of being defamatory also of it.

99 The second case is that of Aboriginal Nations Pty Ltd v John Fairfax Publications Pty Ltd [1998] ACTSC 125. There, Higgins J accepted that the question whether or not a corporation might be "affected" by allegations against its "part-owners" depended upon the part that the named individual is alleged to have played in the operations of the company and upon the extent to which the one is identified with or considered to be the alter ego of the other.

100 The third case is that of Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris [2000] FCA 1690; (2000) 179 ALR 738. The finding by the primary Judge in that case was to the effect that a letter had defamed the plaintiff company by its references to its managing director, who was also its "alter ego". The primary Judge found that the managing director and the company were so closely linked in the relevant industry (safari and hunting) that they were "identified as one and the same", with the consequence that an attack on the character and integrity of the managing director was one on the character and integrity of the plaintiff company. He arrived at the view that a fair and reasonable reading of the letter complained of in that case was that the plaintiff company was controlled and operated by a liar. He also viewed the letter as suggesting that the plaintiff and its managing director were "a danger to the well being of the tourism industry in the Northern Territory". The Full Court of the Federal Court in that case (Spender, Drummond and Kiefel JJ) said (at 748) that the statement that the managing director of the company was a liar clearly reflected upon the company itself and that the primary Judge was entitled to find that the company had been defamed.

101 The evidence in this case undoubtedly established that Mr Todd was closely identified with the business known as "Todds Furniture Mart" and that he played a major part in its operations, to the extent that he was probably seen as the person who controlled it. However the situation in this case is readily distinguishable from the kind of situation considered by the court in each of the three cases to which I was referred. That is because what was said of Mr Todd, that he had murdered his wife and attempted suicide, could not have been understood as if it had been said of the partnership. A partnership could not have murdered its wife and attempted suicide. This case is consequently very different, for example, to that of Hunt Australia, in which the defamatory imputation bore upon the trustworthiness of the managing director of the plaintiff company in such a way as to make him a danger to the well-being of the very industry in which the company, of which he was the "alter ego", was engaged.

102 For all of these reasons, it seems to me that the claim, insofar as it is brought jointly by Mr and Mrs Todd in their capacity as members of the partnership which owns the business, is unsustainable and should be dismissed.

103 The next question is that of what compensatory damages should be awarded to Mr Todd in respect of the defamation of him.

104 The starting point is that the High Court has said, in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60 (per Mason CJ and Deane, Dawson and Gaudron JJ), that there are three purposes to be served by damages awarded for defamation. These are consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff's personal and (if relevant) business reputation and vindication of the plaintiff's reputation. The court there pointed out that the three purposes overlap considerably in reality and that "the amount of a verdict is the product of a mixture of inextricable considerations" (quoting Windeyer J in Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150). Their Honours also pointed out that the first two purposes are frequently considered together and constitute consolation for the wrong done to the plaintiff, and that vindication looks to the attitude of others to the plaintiff, with the sum to be awarded in this respect being at least the minimum necessary to signal to the public the vindication of the plaintiff's reputation. They also said (at 61), quoting Fleming, Law of Torts, 8th ed, at 595, that the gravity of the libel, the social standing of the parties and the availability of alternative remedies are all relevant to assessing the quantum of damages necessary to vindicate the plaintiff.

"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. Apart from special damages strictly so called and damages for a loss of clients or customers, 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. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money."

106 In John v MGN Ltd [1997] QB 586, the court (Sir Thomas Bingham MR and Neill and Hirst L.JJ) said, at 607, that the most serious defamations are those that touch "the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality".

107 Damages are "at large", in the sense that there is no objective formula by which they are awarded: Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027 at 1071, although there has been some controversy as regards the relevance, in assessing damages, of awards in actions for personal injury. In Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 235, Toohey J (with the concurrence of Dawson and McHugh JJ) did not accept the proposition that the adequacy of awards in one type of case might be tested by a reference to awards in another. However, in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 59, Mason CJ and Deane, Dawson and Gaudron JJ considered that appellate courts should be permitted, or even encouraged, to draw comparisons with personal injury verdicts in order to assist them in resolving the question whether the amount awarded was outside the range of what could reasonably be regarded as appropriate to the circumstances of the case.

108 More recently, in Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176, Mahoney ACJ said, at 192:

"Ordinarily, perhaps, what is suffered in a defamation case is different in kind from what is suffered in a personal injury case. Then, prima facie, the level of compensation given by courts or juries for the loss of a leg or the like is of little assistance in deciding what should be the compensation for the difficulties resulting from defamation. If the two are to be treated as comparable for the purpose of determining whether an award of damages for defamation is appealably excessive, it must, I think, be because of the normative character of awards of damages. As I have suggested, there is no market, in any real sense, to establish the value of the loss of an arm or a leg. The award of a particular sum as compensation for such a loss is to be justified because it is what right thinking people in the community, that is, the judges, see as the appropriate level of compensation. Similarly, the justification for an award for the distress and anguish caused by defamation is the conclusion of right thinking people that that is, in their community, the appropriate measure of compensation. If the two are to be compared, one with the other, it is because it is proper to compare normative evaluations of this kind."

109 The Defamation Act 1974 (NSW) was amended in 1994, with effect from 1 January 1995, by the enaction of a provision which requires the court "to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded" and "to take into consideration the general range of damages for non-economic loss in personal injury awards".

110 Awards of damages in other defamation cases provide little guidance. That is because the circumstances of defamation cases are, as Gatley points out (above, par 9.6), almost infinitely various.

111 This was a grave defamation. Mr Todd was said not only to be a murderer, but one of his wife. I was left in no doubt that this allegation was a source of genuine anguish to him. Being well known in the local community, his reputation was of considerable importance to him. It shocked him, not only that something of this kind had been said of him, but also that people could believe it of him. His distress was added to when he saw the visible distress of those around him in the hours and days immediately following the first broadcast. He was, as I have earlier mentioned, particularly distressed to learn, on the day of the first broadcast, that his daughter had, after hearing that he had killed his wife, been trying to telephone him for 45 minutes. I should add that I have accepted his evidence in this regard (his daughter having had a slightly different recollection of her conversation with him).

112 It has, in this last respect, been held in England, in Nixon v Channel Four Television, unreported, 11 April 1997 (referred to by Gatley, above, par 32.46), that a plaintiff can given evidence of the effect upon him of such distress as he observed of his wife and daughter. In that case Morland J considered that there was no logical distinction between injury to feelings caused by the plaintiff being shunned, and so-called "reflex distress" caused by the distress of the people in his environment.

113 Mr Todd was also upset by tasteless humour on the part of acquaintances at the Hartfield Country Club, who sought to make him the butt of jokes about the incident.

114 All of this was compounded by the adverse impact which the first broadcast had on Mr Todd arising out of the fact that it had caused the profits of the business to fall, the business having been his (and Mrs Todd's) sole source of income.

115 The fact that the partnership has no claim for damages arising out of the defamation, and that Mr Todd cannot claim for partnership losses, does not have the consequence that Mr Todd should not be compensated, as part of the general damages awarded to him for his hurt and distress arising out of what was said of him, for the anxiety which he was caused because people stayed away from his business as a result of the broadcast of the defamatory material.

116 Counsel for the defendant contended in this respect that, because one partner cannot recover for any special damage resulting to the partnership, it was "a fortiori" that he cannot recover for distress caused in relation to special damage resulting to the partnership. I am unable to accept that contention. It seems to me that distress of this kind, which is personal to Mr Todd and in respect of which only he could bring a claim, was suffered as a consequence of the defamation of him and can be taken into account in assessing the compensation which should be awarded to him arising out of the defamation.

117 I have no doubt, having listened to the evidence of Mr Todd and of those who dealt with him in the period following the first broadcast, that that period was one of enormous anxiety and distress for him. However counsel for the defendant contended that, in assessing the compensatory damages to which Mr Todd is entitled, I should take into account the fact that much of this distress would have been caused by the fact that a killing had taken place in his own house, involving close friends. While I accept that Mr Todd was distressed by this, it must, in my opinion, also be accepted that his distress was made infinitely worse by the fact of the first broadcast.

118 I was also invited to take into account the fact of the broadcast by Channel 7, as a contributing factor in respect of Mr Todd's distress. I have already expressed the opinion that any effect which that broadcast might have had would have been very much less than that of the Channel 9 broadcast.

119 That brings me to the contention that Mr Todd is entitled to aggravated damages arising from what was said to be the recklessness which attended the publication of the first broadcast, the defendant's conduct in publishing the second broadcast at a time when the effects of the first broadcast were still being felt by Mr Todd, the fact (as counsel for the plaintiffs contends it to be) that the defendant has never sufficiently accepted responsibility for its conduct and the manner in which the proceedings have been conducted by or on behalf of the defendant. I have said that counsel for the plaintiffs relies, in this last respect, upon the fact that the plaintiffs have been put to the proof of allegations which, he submits, should not sensibly have been in contest and upon the fact that Mrs Todd, in particular, was cross-examined, in the presence of Mr Todd, in a manner which, he contends, inevitably and unnecessarily forced her, and Mr Todd, to relive some of the horror experienced by them on returning to their home on the evening of 12 November 1995.

120 In awarding aggravated damages it must be shown that the defendant's conduct increased the injury to the plaintiffs' reputation or feelings (see David Syme & Co Ltd v Mather [1977] VicRp 58; [1977] VR 516 at 518, 526, 534 - 537) and it must also be shown that the defendant acted improperly, unjustifiably or lacked bona fides (Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514 and Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 - 654).

121 In alleging that the defendant was reckless, counsel for the plaintiffs relies upon its failure, including that of Mr Kadak, to check the facts, whether with the police Media Liaison Officer who was available at the time or with any of the police officers who were present or with anyone else, before publishing that it was the owner of the store who had killed his wife.

122 It seems to me that the defendant was negligent in failing to check the facts before broadcasting so serious an allegation. However, I am also satisfied that Mr Kadak genuinely believed, as he said he did, that the stabbing had been perpetrated by the store owner upon his wife, a belief which was, no doubt, encouraged by the fact that the killing had taken place in the home of the store owner.

123 There is no doubt that a failure to investigate an allegation before publishing it can aggravate damages (see Andrews v John Fairfax & Sons Ltd, above, at 244 and 250). However it is important to bear in mind that only recklessness will suffice in this context (see Broome v Cassell, above, at 1079, 1094, 1130 and 1133). Gatley, above, par 9.16, suggests that, in this context, recklessness has a meaning analogous to that of the mental element of deceit, in the sense that the statement must be made without belief in its truth, although the author also suggests, ibid, that conduct which shows a high degree of negligence is capable of being evidence of recklessness. Similarly, in John v MGN Ltd, above, at 618, the court said that the publisher must have suspected that the words were untrue and have deliberately refrained from taking obvious steps which, if taken, would have turned suspicion into certainty.

124 I do not accept that there was any recklessness of that kind in this case, whether on the part of Mr Kadak or on that of any of those who supervised, or should have, supervised him, Mr Kadak then having been a very junior reporter.

125 However, it seems to me that the situation was aggravated by the second broadcast. This was made at a time when, as I have said, proceedings had already been commenced against the defendant. Mr Todd was still in a state of considerable upset at what had been said of him. I have no hesitation in finding that his hurt was aggravated by what he saw as an uncaring attitude on the part of the defendant, in all of the circumstances, in unnecessarily identifying his home and business premises with an act of domestic violence, when he had not himself been involved in any such violence, by the use of file footage taken from what had been filmed for the purposes of the first broadcast.

126 I doubt that, by the time of the second broadcast, anyone who dealt with Mr Todd's business was still under any misapprehension as to what had occurred there. I consequently doubt that Mr Todd would have feared that the business was likely to suffer any additional loss as a consequence of the second broadcast (and he did not suggest that he did have any such fear). However, I have no doubt, as I have said, that the hurt to Mr Todd was aggravated by this careless and unjustifiable act and I propose to take it into account in assessing the damages which should be awarded to him.

127 Next, I am not persuaded that there has been any failure by the defendant sufficiently to accept responsibility for what it has done. It was reasonably prompt in broadcasting its apology and, while it did, in the course of evidence at the trial, demonstrate some reluctance to admit even to carelessness in respect of the defamation, I am not persuaded that this provides any sufficient basis for an award of aggravated damages.

128 Nor, in my opinion, was there anything in the conduct of the proceedings on behalf of the defendant which should justify such an award. I have mentioned that the plaintiffs rely, firstly, on the fact that the defendant has persisted unnecessarily, as they contend, in denying that the first broadcast carried an imputation that Mr Todd had murdered his wife, that footage from the first broadcast was used in the second broadcast and that the first broadcast, in its natural and ordinary meaning, identified Mr Todd.

129 In Coyne, above, 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, cannot be used to aggravate compensatory damages and that there must be some lack of bona fides, or improper or unjustifiable conduct on the part of the defendant. (See also Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379.)

130 In David Syme & Co Ltd v Mather [1977] VicRp 58; [1977] VR 516 at 517 -518 Starke J, after mentioning that the defendant, in its defence, did not admit that an article was defamatory or that it referred to the plaintiff, notwithstanding that both of these matters were admitted by counsel for the defendant in his final address to the jury, found it impossible to believe that a negative plea of that nature could in any way harm, let alone increase the harm to, the plaintiff's reputation. He pointed out that no one would know of the plea save the lawyers on each side and their clerks. His Honour pointed out that what was argued was that there was subjective hurt to the plaintiff which the jury could take into account when considering whether or not to award aggravated damages, but that there was no evidence that the plaintiff ever knew of the pleading. He went on to say (at 518):

"It was said that if the pleading had admitted the facts it would have been unnecessary to call four witnesses or even to call the respondent himself. I do not think there is any substance in the last matter. Whilst technically it is unnecessary for the plaintiff to give evidence in an action for libel experience shows that where the trial is by jury for tactical reasons he nearly always does. As for the other witnesses, they merely said that they took the article to refer to the respondent. This was obvious on the face of it and could not in my opinion in any way increase the injury to the plaintiff's feelings."

131 While, in this case, Mr Todd was required to prove some matters which, in the end, were not contested, or contested with any vigour, I am not persuaded that the need to do so in any sense aggravated his hurt.

132 Next, there was, in my opinion, nothing in the cross-examination of Mrs Todd which should lead to an award of aggravated damages. While it might be said that some of the cross-examination unnecessarily traversed matters which were painful to her (and hence to Mr Todd), it could not, in my opinion, be described as improper, unjustifiable or lacking in good faith.

133 Finally, there are circumstances present which reduce the damages which might otherwise have been awarded to Mr Todd.

134 The first of these is the fact of the apology by the defendant. It was, as I have said, broadcast reasonably promptly. It was also given a reasonable degree of prominence. While there can be little doubt, as the evidence demonstrated, that there were people who saw the first broadcast but who did not see the apology, it must still have been the case that the apology went some way towards redressing the harm which had been done. It must also have eased Mr Todd's anguish somewhat, although I accept that, even to this day, the fact of the publication continues to be a source of hurt to him.

135 Next, while I do not accept the contention, advanced by counsel for the defendant, that a television broadcast is of so ephemeral a nature as to be likely to cause little damage (this proposition being comprehensively controverted by the evidence), the defamatory imputation was easily disproved. Mrs Todd is living proof of its falsity. This case is, in this respect, very different from cases in which it is difficult, or even impossible, comprehensively to "nail the lie". One might, for example, compare it to the case of Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14. There a man was said to have sexually molested a young girl who was believed to have been his own daughter (she was his wife's daughter from a previous relationship), from a time commencing when she was only 7 years old. He was also said to have threatened to kill her or to "get" her younger sister if she complained. His conduct ("the years of incest") was said to have caused the girl to go into prostitution and heavy drug use. That kind of defamation (for which the plaintiff was awarded damages of $120,000) is, unlike that which occurred in this case, notoriously difficult to refute, more particularly in circumstances in which, as happened in Thompson, no apology is made.

136 While it is difficult to assess damages in this case, as in most cases, it seems to me, taking into account all of the circumstances, including the nature of the defamatory imputation and the fact of the apology, that an appropriate award of compensatory damages would be one of $70,000. This amount takes into account the hurt, distress and anxiety suffered by Mr Todd arising out of the first broadcast and the aggravation to his hurt and distress which was brought about by the second broadcast.

137 The plaintiffs rely upon the same matters as are advanced in support of their claim for aggravated damages in support, also, of their claim for exemplary damages.

138 These have, as their purpose, the punishment of a defendant for its conscious and contumelious disregard for the plaintiff's rights (see Uren, above, at 129 - 130, 154). Mere negligence will not suffice for an award of exemplary damages: see Maxwell v Pressdram Ltd [1987] 1 WLR 298; [1987] 1 All ER 656.

139 While the defendant's state of mind need not be malicious before an award of exemplary damages will be justified, it must, at least, "amount to conscious, high-handed behaviour" sufficient to fall within the formulation as to "a contumelious disregard of the plaintiff's rights": see Kercher and Noone, Remedies (2nd ed, 1993) at 363; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at 472. Damages of that kind have the twin objectives of punishing the defendant and deterring others from like conduct. They also achieve the appeasement of the victim's sense of grievance: see Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 at 586.

140 Exemplary damages are not, in any sense, concerned with compensation of the plaintiff. As Lord Reid said, in Broome v Cassell, above, at 1089:

"The difference between compensatory and punitive damages is that in assessing the former the jury ... must consider how much the plaintiff ought to receive, whereas in assessing the latter they must consider how much the defendant ought to pay."

Todd & Anor v Swan Television and Radio Broadcasters Pty Ltd [2001] WASC 334

At a glance

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Before

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Judgment (207 paragraphs)

Todd & Anor v Swan Television and Radio Broadcasters Pty Ltd [2001] WASC 334 (7 December 2001)

Were the imputations defamatory of the partnership operated by Mr and Mrs Todd?

Parties

Legislation Cited (1)

Cases Cited (32)