Defamation law is an important tool for protecting individuals from damage to their reputation.
In Australia, the assessment of damages for defamation involves ensuring an appropriate and rational relationship between the harm suffered by the plaintiff and the damages awarded.
This can be a complex process, with several inherent challenges.
In this blog post, I discuss these challenges, drawing on relevant cases, including the decision in Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221.
The Appropriate and Rational Relationship Between Harm and Damages
Section 34 of the Defamation Act requires courts to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
The concept of an "appropriate and rational relationship" was discussed in the case of Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, where it was noted that reputation is not a commodity with a market value, making comparisons between awards for defamation difficult.
Furthermore, because the remedy for defamation is damages, courts must have regard to what is allowed as damages for other types of non-economic injury.
The Role of Vindication in Damages Calculations
In assessing damages for defamation, courts must consider three purposes:
consolation for personal distress and hurt,
reparation for harm done to the plaintiff's reputation, and
the vindication of the plaintiff's reputation.
Vindication looks to the attitudes of others and is often considered in tandem with the first two purposes.
The appellants in the Wagner case argued that the size of the final awards was indicative of an excessive allowance for vindication.
They suggested that if a substantial sum is awarded for injury to reputation and hurt feelings, it is unnecessary to add a further sum for vindication, as the substantial sum will serve to vindicate the respondent's reputation.
However, this approach may not necessarily conform to the global assessment of damages usually employed by courts.
Comparing Awards Across Different Cases
The appellants in Wagner did not advance any arguments based on comparison with other awards of damages for non-economic loss in other cases of damages for defamation or possibly relevant awards of damages for personal injuries or false imprisonment.
This highlights the difficulty in comparing awards across different cases, as each case is unique, and there may not be a clear "external standard" against which to measure the required "appropriate and rational relationship."
Key Take-Aways
Assessing damages for defamation is a complex process, with inherent challenges such as determining the appropriate and rational relationship between harm and damages, comparing awards across different cases, and the role of vindication in damages calculations.
Courts must balance these factors to ensure a just outcome for both plaintiffs and defendants in defamation cases.