In defamation cases, aggravated damages can be awarded when the defendant's conduct is particularly harmful or egregious.
This blog post explores the grounds for awarding aggravated damages in defamation, with reference to a recent court decision, Hockings v Lynch & Adams [2022] QDC 127.
Grounds for Awarding Aggravated Damages
Aggravated damages can be awarded over and above the maximum general damages.
A court can award aggravated damages where a defendant acts improperly or unjustifiably, or in a way which demonstrates a lack of good faith, thereby improperly aggravating the injury done to a plaintiff.
In Hockings v Lynch & Adams [2022] QDC 127, the plaintiff sought aggravated damages against each defendant individually, pointing to several factors:
1. The number and persistent nature of the defamatory publications and the extended period over which they were made (para [356](a)).
2. The recklessness of the defendants as to the truth of the statements they made and the meanings conveyed (para [356](b)).
3. The pursuit of the justification defense at trial, as well as a plea of truth and a defense of triviality in an earlier version of the defense (para [356](c)).
4. The allegations going to the very heart of the plaintiff's personal and professional life (para [356](d)).
5. The defendants' persistent refusal to apologize (para [356](e)).
6. The failure to respond to the concerns notice in a timely way and, upon receiving particulars, failing to make an offer to make amends or give an apology (para [356](f)).
The court in Hockings v Lynch & Adams [2022] QDC 127 emphasized that the plaintiff bears a heavy onus to establish malice, as per the principles in Brigginshaw v Brigginshaw (1938) 60 CLR 336, where stupidity, bias, or carelessness are not enough (para [360]). Malice refers to the defendant's primary or predominant motive for publishing the remark and can be inferred from the acts, conduct, or expressions of the defendants (para [359]).
Factors to Consider
The court in Hockings v Lynch & Adams [2022] QDC 127 considered several factors in determining the award of aggravated damages, including:
- The number, frequency, and tenor of the defamatory posts (para [365]).
- Whether the defendants were motivated by a desire to attack or diminish the plaintiff (paras [365], [367], [368]).
- The seriousness of the allegations made, particularly when related to a person's professional life (para [365]).
- The defendants' refusal to apologize and their persistence in pursuing their defense (para [373]).
In this case, the court found that the first defendant's conduct was substantially more egregious than the second defendant's conduct and awarded aggravated damages against the first defendant (para [374]). However, the court was not persuaded that an award of aggravated damages should be made against the second defendant (para [375]).
Key Take-Aways
Aggravated damages in defamation cases can be awarded when the defendant's conduct is particularly harmful or egregious.
Factors such as the number and nature of defamatory publications, the defendant's motive, the seriousness of the allegations, and the defendant's refusal to apologize may be considered by the court in determining the award of aggravated damages.