Damages assessment where defamatory publications combined with non-defamatory

Case Note by Peter Heerey AM QC

A plaintiff suffers hurt, embarrassment and reputational damage as a result of the defendant’s publications. Parts of those publications are clearly defamatory; other parts, although hurtful and damaging, are not. How are damages to be assessed?

This question was considered in the recent Court of Appeal decision in Jeffrey v Giles [2015] VSCA 70.

The plaintiffs and their company operated a quarry in rural Gippsland. The defendant was an adjoining landowner who engaged in vigorous VCAT litigation in opposition. The defendant set up a website and published statements attacking the plaintiffs. Amongst other things she accused them of giving perjured evidence at VCAT. There was also other damaging, but not defamatory, material.

The trial judge awarded damages of $12,000 and $8,000 respectively to the plaintiffs. The Court of Appeal held these awards to be manifestly inadequate, a conclusion with which it is hard to disagree.

However, the Court also held that the trial judge erred in “implicitly” proceeding on the basis that “the damages to be awarded are to compensate harm “only where the harm has been solely caused by the defamation.” The judge was wrong in “imposing a requirement that the harm for which an award was to be made was that for which the defamatory statements were the sole cause” (at [38]).

Their Honours referred with implicit approval to the decision of Beach J in Trkulja v Google (No 5) [2012] VSC 533.

However, Beach J in Trkulja appears to accept that damages could not be recovered for one publication held to be not defamatory (because it did not convey the imputation alleged). He rather held that damages by way of vindication would be awarded in respect of the publication which was defamatory.

This seems right.  Assume a plaintiff complains of a publication asserting he was (a) a murderer (b) a rapist and (c) a negligent motorist, and only (c) is found to be untrue. It seems odd that plaintiff can recover for distress, humiliation etc for all three allegations. (I leave aside for the moment the defence of contextual truth under s 26 of the Defamation Act 2005 (Vic).)

If the plaintiff, a barrister, is struck off the Roll, expelled from the Melbourne Club and abandoned by his wife, could he attribute all these misfortunes to the negligent motorist allegation?

The Court of Appeal further stated (at [42]):

Where causation is in issue, it is only necessary that the tortious conduct be a cause of the plaintiff’s injury; it is not necessary that it be the sole cause. [footnote 77] Once it is established, the plaintiffs are entitled to general damages that have an appropriate and rational relationship to the harm they have sustained.

Two authorities are cited in footnote 77: March v E & MH Stramere Pty Ltd (1991) 171 CLR 506 and Rigby v Mirror Newspapers Ltd [1964] NSWR 868.

The March v Stramere type situation is distinguishable.  There you have two wrongful acts: one vehicle left in middle of road, the other driven at excessive speed.

Rigby was a pleading summons in a defamation action. Manning J dismissed the defendant’s application to strike out an allegation that the plaintiff “suffered great pain of body and mind”. The case does not seem to bear upon the present issues.

A defendant cannot be liable to compensate a plaintiff for hurt caused by conduct that is not wrongful – in this case publications which, albeit hurtful, are not defamatory.

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