Defamation law aims to protect an individual's reputation from false and damaging statements made against them. A key aspect of defamation cases is the award of damages to compensate the plaintiff for the harm they have suffered as a result of the defamatory statement.
In this blog post, I explore the nature and extent of the relationship between damages and the relevant harm in defamation cases.
Three Purposes of Damages
In Cerutti v Crestside Pty Ltd [2014] QCA 33, the court outlined three purposes of awarding damages in defamation cases: reparation, consolation, and vindication.
Reparation compensates the plaintiff for harm to their personal and business reputation, while consolation addresses the personal distress and hurt caused by the publication.
Vindication serves to restore the plaintiff's reputation in the eyes of the public.
These three purposes often overlap in reality, with a single amount awarded to cover all three.
Harm Sustained by the Plaintiff
Section 34 of the Defamation Act 2005 (WA) requires that there be "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded."
As explained in Roberts and McHugh J's remarks in discussing "harm" in s 46 of the Defamation Act 1974 (NSW), this includes matters such as damage to reputation, hurt feelings, distress, humiliation, and other emotional impacts.
Damages for the failure to apologize are also considered damages for relevant harm.
Harm to Reputation
As Windeyer J noted in Uren v John Fairfax & Sons Pty Ltd, a person defamed receives damages for being injured in their reputation, rather than for the damage to their reputation itself.
This principle has been followed and applied in various cases.
Proving Harm
In defamation cases, it is not necessary for the plaintiff to provide specific evidence of harm, such as witnesses stating that their opinion of the plaintiff has changed.
In McCarey v Associated Newspapers Ltd (No 2), the court noted that some harm to reputation could be inferred based on the nature of the defamation and the extent of publication.
Presumption of Damage
The common law of libel presumes damage when defamatory words are published.
In Bristow v Adams, Basten JA analyzed authorities supporting this presumption, which exists in Australian law.
Consolation and Vindication
Awards for consolation should provide solace for the injured feelings of the plaintiff, including hurt, anxiety, loss of self-esteem, and indignity.
Vindication, on the other hand, focuses on signaling to the public that the plaintiff's reputation has been restored.
Key take-aways
The award of damages in defamation cases serves multiple purposes, addressing the harm suffered by the plaintiff and working to repair, console, and vindicate their reputation.
Understanding the relationship between damages and the relevant harm is essential in ensuring that defamation awards appropriately compensate plaintiffs and restore their damaged reputations.
Cases mentioned in this blog post:
Cerutti v Crestside Pty Ltd [2014] QCA 33
Roberts v Prendergast [2013] QCA 47
Bristow v Adams [2012] NSWCA 166
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 ; [1966] HCA 40
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86