Defamation law exists to protect individuals and entities from false statements that could harm their reputation.
When a person or organisation is defamed, they may be entitled to compensation for the damage done to their reputation and the associated emotional distress.
In this blog post, I discuss the principles for assessing damages in defamation cases, drawing on the case of Cables v Winchester [2018] VSC 392, as well as other relevant cases, to provide a general overview of the subject.
Key Principles for Assessing Damages in Defamation Cases:
In Wilson v Bauer Media, John Dixon J summarized the well-established principles for assessing damages in defamation cases as follows:
1. Damages should provide consolation for hurt feelings, damage to reputation, and vindication of the plaintiff's reputation.
2. Damages ought to reflect the high value the law places on reputation, particularly for those whose work and life depend on their honesty, integrity, and judgment.
3. The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.
4. There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
5. The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
6. The court should take into account the 'grapevine' effect arising from the publication when determining the damage done to a plaintiff's reputation.
7. Injury to feelings may constitute a significant part of the harm sustained by a plaintiff.
8. Aggravated damages are a form of compensatory damages designed to reflect aggravation caused to a plaintiff's hurt or injury by reason of some conduct of the defendant.
Factors to Consider in Awarding Aggravated Damages:
In Cables v Winchester [2018] VSC 392, the court found that an award of aggravated damages was appropriate due to the following conduct of the defendant:
- Publishing words with the sole purpose of injuring the plaintiff's reputation
- Refusing to apologize
- Not appearing in the proceeding (until the hearing for assessment of damages)
Comparative Exercise and the Importance of Context:
As noted by Hayne J in Rogers v Nationwide News Pty Ltd, engaging in a comparative exercise for damages may be misleading, as each case is unique.
However, considering awards in comparable cases can be appropriate when there is no contradictor to respond to the submissions of the plaintiff.
In Fraser, Daly AsJ highlighted the importance of context, stating that reviewing other cases can be instructive in illustrating what features the current case does not have.