In defamation law, the role of a defendant's failure to apologise in assessing damages for non-economic loss, including aggravated damages, can be significant.
This blog post discusses the general importance of an apology in defamation cases and its influence on aggravated damages.
Carson v John Fairfax & Sons Ltd
A starting point for understanding the role of an apology in defamation cases is the 1993 High Court decision in Carson v John Fairfax & Sons Ltd.
In this case, the court found that the absence of an apology does not necessarily aggravate damages, as it does not increase the plaintiff's hurt or widen the area of publication.
However, subsequent case law has contradicted this view, suggesting that the failure to apologise can indeed aggravate damages.
Clark v Ainsworth
In the 1996 case of Clark v Ainsworth, the Court of Appeal of NSW distinguished the passage from Carson, stating that it related to aggravated damages, not ordinary damages.
The court held that the absence of an apology could be taken into account as something that extended the publication's vitality and capability to cause injury to the plaintiff.
Ali v Nationwide News Pty Ltd
The Court of Appeal of NSW in Ali v Nationwide News Pty Ltd further held that failure to apologise can aggravate damages.
It was established that damages for failure to apologise can be awarded as part of general compensatory damages, as the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages.
Trigell v Pheeney and Herald & Weekly Times Ltd v McGregor
In Trigell v Pheeney and Herald & Weekly Times Ltd v McGregor, the relevance of a failure to apologise to aggravated damages was considered.
This cases suggested that the conduct of the defence may be taken into account as improperly aggravating the injury done to the plaintiff if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.
Bauer Media Pty Ltd v Wilson
In Bauer Media Pty Ltd v Wilson, the Court of Appeal of Victoria found that the defendant's failure to apologise was not justifiable or bona fide due to their knowledge of the false imputations conveyed by the articles and their motive for publication.
The failure to apologise from the outset was considered improper and justified an award of aggravated damages.
Conclusion
Although the mere absence of an apology does not automatically aggravate damages in defamation cases, it can be a factor considered by courts depending on the specific circumstances of each case.
The failure to apologise can prolong and intensify the harm caused by the defamatory publication and may be taken into account when assessing both general compensatory damages and aggravated damages.